SEX AND LAW: RAPE

Particular difficulties in trials of rape with respect to definitions and demonstrations of consent or its absence on the woman’s side are further framed through comparison to crimes of theft. All too typically a rape victim’s acquiescence to the act has been established in court and thus charges against the alleged rapist have been dismissed, because it could not be established that she spent her last breath warding off the attack: thus has a woman’s consent been shown. On another, though not unrelated side, the victim’s demeanor, her class, her heritage, and her intimate sexual history have been examined intricately or implied subtly as germane by defense attorneys, attempting to portray her as fundamentally receptive to acts of rape. Recently a New York appellate court overturned a verdict of rape; the conviction had been previously overturned in a 1976 appeal on the grounds that the judge had not informed adequately the jury that proof of rape in the first-degree demands demonstration that the victim “opposed the perpetrator to the utmost limit of her power by genuine and active resistance” (New York Times). That reversal was itself overturned by the New York Court of Appeals. Most recently, the Appellate Division overturned the original conviction a second time on the grounds that the victim’s lack of consent was not shown adequately. The ruling, involving an alleged rapist and victim who had known each other for a week before the alleged rape occurred, suggests it is unlikely that a conviction for rape in the case of a dating couple could be sustained.

Obviously, the issues are complex. Not all men on trial for rape are guilty. The right of the victim to be protected from humiliation during trial must be balanced against the right of the defendant to a fair trial (c.f., Berger). Although the supposition seems strong in many trials for rape that certain victims “had it coming to them,” similar sentiments are less frequently and less explicitly expressed toward victims of theft. That a person, while being robbed, did not use all force at his or her command to repel the offense generally is seen to indicate common sense rather than a discreditation of the victim’s testimony. Personal blame for the robbed’s own misfortune is not presumed to follow from his or her amassed wealth, expensive jewelry, or previous tendency to give away money in the form of philanthropy.

At base, as has been remarked by several commentators (e.g., Brownmiller, Berger), rape law and the treatment of rape victims within the criminal system, at least until recent years, have been directed by a view of women as categorically chaste or unchaste; in this view, at the extreme, rape becomes a moot issue. The first kind of woman does not allow herself to get raped but neither does the second, since she consents (and thus the act is not definable as rape).

Brownmiller identifies the above categorization of women in regard to rape with that found in pornography. Females, she suggests “are depicted in two clearly delineated roles: as virgins who are caught and ‘banged’ or as nymphomaniacs who are never sated”. In a broader sense, obscenity, including its legal proscription and definition, offers an arena for examining comprehensions of sex by legislatures and the judiciary. Not only does pornography exploit, while perverting, wider society’s notions about sex but jurists, in deciding obscenity cases, must face definitions of sexuality and must differentiate various stances— obscene, educational, honest, scientific, degrading—toward the discussion and presentation of sexual matters. Substantively, the courts have tried to map a path between the constitutional rights of free speech and due process and a presumed right of the state to protect the public from obscenity and pornography.

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