Against Our Will: Men, Women, and Rape (87 page)

"Consent" has yet another role to play in a case of sexual assault. In reviewing the act, in seeking to determine whether or not a crime was committed, the concept of consent that is debated in court hinges on whether or not the victim offered sufficient resistance to the attack, whether or not her will was truly overcome by the use of force or the threat of bodily harm. The peculiar nature of sexual crimes of violence, as much as man's peculiar historic perception of their meaning, has always clouded the law's perception of consent.

It
is accepted without question that robbery victims need not prove they resisted the robber, and it is never inferred that by handing over their money, they "consented" to the act and there fore the act was no crime. Indeed, police usually advise law-abiding citizens not to resist a robbery, but rather to wait it out patiently, report the offense to the proper authorities, and put the entire matter in the hands of the law. As a matter of fact, successful resistance to a robbery these days is considered heroic.

In
certain middle-class neighborhoods in New York City, people who must be out on the streets late at night, coming home from work, taking a trip to the deli, or walking the dog, have taken to carrying a ten-dollar bill as "mugger money" to satisfy the aims

384
I
AGAINST OUR WILL

and rage of any robber who might accost them. Clearly, the feeling seems to be that the loss of a few bucks is a better bargain than the risk of physical violence. Handing over money at knife point, or dipping into one's wallet to assuage a weaponless but menacing figure on a dark, deserted street, may be financially painful or emotionally distressing, but it hardly compares to the massive in sult to one's self-determination that is sustained during a sexual assault.

In a sexual assault physical harm is much more than a threat; it is a reality because violence is an integral part of the act. Body contact and physical intrusion are the purpose of the crime, not appropriation of a physically detached and removable item like money. Yet the nature of the crime as it is practiced does bear robbery a close resemblance, because the sexual goal for the rapist resembles the monetary goal of the robber ( of ten both goals are accomplished during the course of one confrontation if the victim is a woman ) , and so, in a sex crime, a bargain between offender and victim may also be struck. In this respect, a sexual assault is closer in victim response to a robbery than it is to a simple case of assault, for an assaultive event may not have a specific goal beyond the physical contest, and furthermore, people who find themselves in an assaultive situation usually defend themselves by fighting back. Under the rules of law, victims of robbery and assault are not required to prove they resisted, or that they didn't consent, or that the act was accomplished with sufficient force, or sufficient threat of force, to overcome their will, because the law presumes it highly unlikely that a person willingly gives away money, except to a charity or to a favorite cause, and the law presumes that no person willingly submits to a brutal beating and the infliction of bodily harm and permanent damage. But victims of rape and other forms of sexual assault do need
to
prove these evidentiary requirements that they resisted, that they didn't consent, that their will was overcome by overwhelming force and fear-because the law has never been able to satisfactorily distinguish an act of mutually desired sexual union from an act of forced, criminal sexual ag

gression.

Admittedly, part of the law's confusion springs from the normal, biologic, male procedural activity in an act of unforced copulation, but insertion of the penis (a descriptive phrase less semantically loaded than penetration, I think ) is not in itself,

despite what many men think, an act of male dominance. The real reason for the law's everlasting confusion as to what constitutes an act of rape and what constitutes an act of mutual intercourse is the underlying cultural assumption that it is the natural masculine role to proceed aggressively toward the stated goal, while the natural feminine role is to "resist" or "submit." And so to protect male interests, the law seeks to gauge the victim's behavior during the offending act in the belief that force or the threat of force is not conclusive in
and
of itself.

According to Menachem Amir's study, the assailant actually displays a dangerous weapon in no more than one-fif th of all police founded cases of rape. Clearly, these are the cases a jury would most likely believe. But most rapes are not accomplished by means of a knife, a gun, a lead pipe or whatever. The force that is employed more often consists of an initial stranglehold, manhan dling, beating, shoving, tearing at clothes, a verbal threat of death or disfigurement, the sheer physical presence of two, three, four, five assailants,
etc.
Without doubt, any of these circumstances can and does produce immobilizing terror in a victim, terror sufficient to render her incapable of resistance or to make her believe that resistance would be futile.

Currently employed standards of resistance or consent vis-a-vis force or the threat of force have never been able to accurately gauge a victim's terror, since terror is a psychological reaction and not an objective standard that can be read on a behavior meter six months later in court, as jury acquittal rates plainly show. For this reason, feminists have argued that the special burden of proof that devolves on a rape victim, that she resisted "within reason," that her eventual compliance was no indication of tacit "consent," is patently unfair, snce such standards are not applied in court to the behavior of victims in other kinds of violent crime. A jury should be permitted to weigh the word of a victimized complainant at face value, that is what it boils down to-no more or less a right than is granted to other victims under the law.

Not only is the victim's response during the act measured and weighed, her past sexual history is scrutinized under the theory that it relates to her "tendency to consent," or that it reflects on her credibility, her veracity, her predisposition to tell the truth or to lie. Or so the law says. As it works out in practice, juries presented with evidence concerning a woman's past sexual history make use of

386
I
AGAINST OUR WlLL

such information to form a moral judgment on her character, and here all the old myths of rape are brought into play, for the feeling persists that a virtuous woman either cannot get raped or does not get into situations that leave her open to assault. Thus the ques tions in the jury room become "Was she or wasn't she asking for it?";
"If
she had been a decent woman, wouldn't she have fought to the death to defend her 'treasure'?"; and "Is this bimbo worth the ruination of a man's career and reputation?"

The crime of rape must be totally separated from all tradi tional concepts of chastity, for the very meaning of chastity presup poses that it is a woman's duty (but not a man's ) to refrain from sex outside the matrimonial union. That sexual activity renders a woman "unchaste" is a totally male view of the female as
his
pure vessel. The phrase "prior chastity" as well as the concept must be stricken from the legal lexicon, along with "prosecutrix," as inflam matory and prejudicial to a complainant's case.

A history of sexual activity with many partners may be indica tive of a female's healthy interest in sex, or it may be indicative of a chronic history of victimization and exploitation in which she could not assert her own inclinations; it may be indicative of a spirit of adventure, a spirit of rebellion, a spirit of curiosity, a spirit of joy or a spirit of defeat. Whatever the reasons, and there are many, prior consensual intercourse between a rape complainant and other part ners of her choosing should not be scrutinized as an indicator of purity or impurity of mind or body, not in this day and age at any rate, and it has no place in jury room deliberation as to whether or not, in the specific instance in question, an act of forcible sex took place. Prior consensual intercourse between the complainant and
the
defendant does have some relevance, and such information probably should not be barred.

An overhaul of present laws and a fresh approach to sexual assault legislation must go hand in hand with a fresh approach to enforcing the law. The question of who interprets and who en forces the statutes is as important as the contents of the law itself. At present, female victims of sexual crimes of violence who seek legal justice must rely on a series of male authority figures whose masculine orientation, values and fears place them securely in the offender's camp.

The most bitter irony of rape, I think, has been the historic masculine fear of false accusation, a fear that has found expression

in male folklore since the Biblical days of Joseph the Israelite and Potiphar's wife, that was given new life and meaning in the psy choanalytic doctrines of Sigmund Freud and his followers, and that has formed the crux of the legal defense against a rape charge, aided and abetted by that special set of evidentiary standards (consent, resistance, chastity, corroboration ) designed with one collective purpose in mind: to protect the male against a scheming, lying, vindictive woman.

Fear of false accusation is not entirely without merit in any criminal case, as is the problem of misidentification, an honest mistake, but the irony, of course, is that while men successfully convinced each other and us that women cry rape with ease and glee, the reality of rape is that victimized women have always been reluctant to report the crime and seek legal justice-because of the shame of public exposure, because of that complex double standard that makes a female feel culpable, even responsible, for any act of sexual aggression committed against her, because of possible retri bution from the assailant ( once a woman has been raped, the threat of a return engagement understandably looms large) , and because women have been presented with sufficient evidence to come to the realistic conclusion that their accounts are received with a harsh cynicism that forms the first line of male defense.

A decade ago the FBI's Uniform Crime Reports noted that
20
percent of all rapes reported to the police "were determined by investigation to be unfounded." By 1973 the figure had dropped to 15 percent, while rape remained, in the FBI's words, "the most underreported crime." A 15 percent figure for false accusations is undeniably high, yet when New York City instituted a special sex crimes analysis squad and put policewomen ( instead of men ) in charge of interviewing complainants, the number of false charges in New Yark dropped dramatically to
2
percent, a figure that corresponded exactly to the rate of false reports for other violent crimes. The lesson in the mystery of the vanishing statistic is obvious. Women believe the word of other women. Men do not.

That women have been excluded by tradition and design from all significant areas of law enforcement, from the police precinct, from the prosecutor's office, from the jury box and from the judge's bench, up to and including the appellate and supreme court juris dictions, has created a double handicap for rape victims seeking justice under the laws of man's devise. And so it is not enough that