A Historical and Critical Analysis of Rape Law: Understanding the Complexities and Reforms, Papers of English Language

Download A Historical and Critical Analysis of Rape Law: Understanding the Complexities and Reforms and more Papers English Language in PDF only on Docsity! Messick 1 Hannah Messick ENG 216: Unit 2 27 March 2009 N Martinez Horny Laws and Shrewd Perspectives: Rebuking, Repairing, and Rebuilding Rape Laws On those cold, damp steps we clutched each other as the buildings gathered shadows and tossed them over their backs. Just hours earlier she was trapped inside, pinned on her back with arms shackled to the bed frame by leather belts while her skull was violently being driven into the headboard of her bed … his savage thrusting left her unconscious. The last thing she remembered was playing board games in the living room. Irrelevant, they said. What was once a vibrant little girl became a shell of a woman, stalked by the terror of unknown situations. She became a foreigner to her hallow body and battled the forces of shame and fear all the way to the fluorescent front desk of the hospital. The nurse’s swabbing was just another unwanted entity forced into her. The hospital filed a compulsory police report, an officer interviewed her, and rape charges were filed. The case made into the paper and she could feel all of society heaping blame and judgment upon her through deafening glances. Even her mother told her she should have been smarter and her dad told her she should have been more aware. I just told her I’d always be there. Law firm after law firm reviewed the case, only to reject her because she invited him over for a social gathering. Insignificant evidence, they said. This tender woman was my beloved little sister, Kate, who plummeted into an untouchable darkness that masqueraded drugs and alcohol as accessible escapes from her horrific reality. She became so tangled in a web of hopeless deception that only four months after our night on those cold, damp steps I came home from work and found her limp on the bathroom floor with a furry of pills dancing around her. She committed suicide by executing a terminal break from reality. But long before all this- before that man snatched my sweet sister’s innocence, before he plundered her fragile petals, before her arms became pimpled with prick marks, before the toxic glares- I remember pretending the forts that we build in the living room were castles and the pact we made at our round table when we promised we’d always be there to protect and love one another… I remember puffing up my chest, standing guard in the entryway telling our mom that I was our defender, then slashing the bad guys as they attempted to enter our space. Impossible, I realized. She’s gone. And I keep telling myself, if I only knew then what I know now none of this would have happened. If someone would have warned me. If my parents would have talked to us. If somewhere in my 20 years of schooling someone would have educated me. If I would have known the laws. If someone would have shown me the path to justice. How did we even get here!? Messick 2 I’ve spent the past three years trying to answer the questions I never knew I should have asked. You, my friend, are the beneficiary of my heartache and desperation, I’m going to equip you with the knowledge I wish I would have known. I will guide you through a tour of historical and present classification and interpretations of rape law, social myths, previous court cases, and research findings in order to reach a proposal for new standards and reformed laws… ones that might have saved my sister, ones that will protect us. Forrell and Matthews, two feminist lawyers, are seasoned experts in the criminology of Sexual Violence and introduced me to the 2004 case of People v May in their book A Law of Her Own: The Reasonable Woman as a Measure of a Man. In this case, Maria, a divorcee with three children, testified about how she was raped. Her and the defendant, William May, went to a couple bars, had a few drinks and shot some pool, then as the night approached May took Maria to his apartment. Upon entering the apartment he demanded that she go to the bedroom and get undressed. After giving orders he proceeded to the kitchen where Maria followed him, grabbed a knife, and told him no. Enraged, May took the knife from her, slapped her, seized her arm, marched her into the bedroom, and once again demanded that she get undressed. This time Maria didn’t say no, but “stood there for awhile” and then fearfully removed her clothes, at which time May undressed himself and got onto his bed. Maria tried to get up and make an escape, but May hit her again. “May then put his penis in her mouth and his mouth on her vagina, telling her to get his penis ‘nice and hard’. She began to suck on it, feeling like she ‘had no choice’. May continued to hit her with both his open hand and closed fist, while licking and biting her vagina. Maria responded by vomiting. While oral and vaginal intercourse continued, the phone rang. When May left the room to answer it, Maria got dressed and escaped from the apartment…” (Forell and Matthews 221) The defendant, May, told a completely different story, but the court of appeals overturned the jury’s rape decision and concluded that, “even assuming the truth of Maria’s testimony, her lack of consent ‘could reasonably have been misinterpreted’. The court summed up its rationale with this statement, “Maria’s behavior in willingly accompanying him to the apartment after several hours of merriment, her failure to escape when presented with the opportunity, and her lack of verbal objection while in the bedroom could reasonably have been misinterpreted by May as the conduct of someone playing games rather than resisting his advances…. Thus, there was unquestionably evidence substantial enough to permit a jury to find that the defendant had good faith, albeit mistaken, belief that Maria consented to the sexual acts he performed. In short, no doesn’t mean no, slapping and punching a woman into submission doesn’t mean she isn’t willing, and vomiting indicates pleasure and voluntary agreement” (Forell and Matthews 224). Similar to my sister’s case, if May had been a stranger and acted the same way, the courts would have prosecuted it much differently. The case above is not an anomaly. Not in the way the victim was beaten and forcibly raped against her will or the way the court system casually dismissed the crime and allowed the rapist to saunter away from the courtroom with a smug smirk. This is merely a snapshot of a much greater problem, the inherently male view taken by the justice system. Despite the law’s claim of treating all people and rape equally, in application it can be proven, as demonstrated here, that they do not. Susan Estrich, a brilliant American lawyer, legal iconoclast, and rape Messick 5 “the average woman is equipped to interpose effective obstacles to penetration by means of the hands, limbs, and pelvic muscles. Indeed many medical writers insist that these obstacles are practically insurmountable regardless of the usual relative disproportion of strength between man and woman, although no such impossibility is recognized by the law.” In essence, he is stating that it is impossible for a woman to be raped, thus all sex is consensual, because if she wanted she could squeeze her keegal muscles real hard, flail her arms and legs, and the assailant would be unable to penetrate her. He continues talking about a lack of resistance as consent to sex and the varying types of resistance. “Resistance or opposition by mere words is not enough,” he said, “the resistance must be by acts, and must be reasonably proportionate to the strength and opportunities of the woman… it must be in good faith and continue until the act is consummated” (Bailey and Rothblatt 277-278). When established lawyers teach their understudies interpretations like that, law becomes practiced in a way that propagates the myth that women are merely being coy when they resist and that they are responsible when raped. The other standard of consent is previous sexual relations. In an article published by the Journal of Criminal Law and Criminology a Harvard Law graduate and practicing lawyer cited these findings regarding consent, “… prior sexual relationship between the alleged victim and the defendant is a ‘real trump card for the defense,’ which makes it ‘practically impossible to convince the jury that the incident in question was anything other than one in a long series of consensual acts.’ (Adler, supra note 48, at 53)” (Byden and Lengnick 1205). In short, if the woman has ever had sex with the defendant she is forever available to him as a means to fulfill his cravings for sex and domination, even after the relationship has ended and against her will because if the woman says yes once that must mean that at any point in time she is always willing to have his penis roam around in her vagina, right? The same scholar continued his demonstration of this flawed assertion by taking a random sample of trials and concluding that "[w]hen the victim agrees that there had been sexual involvement [with the defendant] in the past, the defendant is almost invariably acquitted" (Byden and Lengnick 1205). Again, any previous sexual contact is seen as implicit consent that will work against the victim of a violent sexual violation. Researchers, sociologists, and anthropologists have long known that myths carry and communicate a culture’s worldviews. These myths originate in the way our culture blames victims of rape through a filter of inherent perspectives and discourses that subtly coerce an assumption that she is responsible for what happened to her. No other violent crime victim is viewed with the degree of suspicion and responsibility as that of rape victims. Members of society conjure up many reasons for blaming the victim as a mechanism of self-protection. As a learned psychologist I can confidently tell you that by asserting the rape victim as “bad” and “responsible” because of the way she dressed, what she was drinking, her race, her location, or her interactions, the person who is blaming her is able to distance themselves from the situation, thus they feel safer because “they wouldn’t do something like that.” Well let me tell you what, my little sister did not ask for rape and no matter how hard she squeezed her keegal muscles and resisted her attacker, hell continued to descend on her. The people heaping blame on the victim for ‘knowingly and carelessly’ entering a harmful circumstance, are once again focusing on the woman’s character and not the man’s abhorrent behavior. Messick 6 Another popular misconception is that rape is a spontaneous, uncontrollable outburst of male desire and that women fantasize about being physically overpowered and taken by a man. This myth finds its origins in Sigmund Freud’s psycholoanalytic approach to psychology which is based on intangible, subconscious, assumed, unknown feelings of his patients. Freud’s theories claim that women are incapable of overtly saying yes to sex, that they state what they do not mean, and even that women are jealous that men have penises and they don’t. His psychoanalytic theory was funded by this patient’s fathers, who were raping the daughters he was being paid to “diagnose” and “treat.” Nowadays, psychologist have discredited a majority of Freud’s theories, but his vast influence remains evident in the laws and paradigms which were effected by his egregious research and theories. Law commentators, bolstered by Freudian theory, suggest “women ‘need’ to be taken forcibly both to enhance their pleasure and assuage their guilt [in order to enjoy sexual intercourse]” (Estrich 38). Inherent in the law commentator’s misconception is the idea that women cannot and do not assert their true wishes, as if women are reluctant and unable to communicate their true desires. Truth is, rape is a crime of violence driven by an abuse of power. Another scholar recently made this comparison, “Rape is to women as lynching was to blacks: the ultimate physical threat by which all men keep all women in a state of psychological intimidation” (LaFree 147). This comparison, made by an educated intellectual with a doctorate in sociology and law, draws connections with colonial laws that condoned and celebrated the overt dehumanization, marginalization, and murders of unrepresented people on the fringes of society. Similar to women today, slaves had little to no legal representation, were not granted credibility, and were commodified. The ambiguous threat of rape is as constant as lynching were to blacks, always lingering, always a fearful possibility. Rape is the irrational execution of devious violations by forcing another to have unwanted sex. It is a planned act of violence where men raid women of their mental and physical security and autonomy. Western civilizations, such as the United States, are also under the misbelief that it is only rape if ambushed and mounted by a stranger, who a criminal type of the opposite race, at night. That definition, along with the definition of “real” rape, excludes the fact that simple rape is rape, too. Endorsed by the US Justice System, America’s leading educational and advocacy organization for Rape, Abuse, and Incest reveal that two-thirds of survivors are raped by someone they know and that the average rapist is a thirty-one year old, white, male. Moreover, forty-three percent of rapes occur while it is still light outside (RAINN Statistics). Meaning, a woman’s attacker is an average, middle-aged, white guy, who is more likely to be your neighbor or uncle, than he is to be hiding in the bushes waiting to jump from behind the shadows and rip off your clothes. These statistics concretely unveil the inaccuracy of prevalent myths. It is apparent that confusion continues to exist about what rape is when the conception that women deserve to be raped and that it cannot be rape under the confines of marriage or alcohol are still widespread myths. As previously stated, no woman deserves to have their mental and physical autonomy violated, especially because the lasting psychological effects of rape cause victims to be thirteen times more likely to abuse alcohol and twenty-six times more like to abuse drugs (RAINN Statistics). Through Kate’s somber struggles, I found out that rape destroys women’s lives, making their combined likelihood to suffer from depression, stress disorders, and suicide thirteen times more likely than the average US citizen (RAINN Statistics). Messick 7 Victims are not restricted by marital status or beverage consumption. For instance, if a woman had a few drinks with friends then returned home to find her house had been robbed, no one would state the drinks caused the robbery or that it was not robbery because it happened in her home. Yet, people still argue that if alcohol is a variable in the rape equation or that if a partner has committed the act, then it is not rape. The most predominate rape myth deals with allegation: the belief that rape is over- reported. This myth is firmly rooted in Lord Hale’s preoccupation with women being vindictive, lying, swindling cheats. When in fact, an overwhelming sixty percent of rapes are not reported, leaving approximately four million women paranoid and terrified of the unknown (RAINN Statistics). However, their fear would not be subsided if they reported the crime because a disgusting fifteen out of sixteen rapists never spend a day in jail (RAINN Statistics). Imagine every person in Los Angeles being a victim of an unreported rape, 4 million people living in shame and secrecy, contemplating suicide, numbing themselves with alcohol, distancing their self-hatred with drugs; constantly attempting to suspend reality long enough to pretend it never happened… knowing their assailant is only minutes away from attacking again. It is reported that a woman in America is raped every two minutes (RAINN Statistics). It is due to these erroneous views and horrendous myths that so many rapes go unreported because the social consequences and stigmas that are constructed and attached to rape victims. Rape is severely confined when people individually define rape using societal myths. However, these myths are so widespread they are even demonstrated in educational materials distributed by the nation’s second largest institution for higher education, Arizona State University (ASU). In 2009 the ASU police department, in conjunction with Campus Life, handed out flyers to help women “prevent [simple/]acquaintance rape” the subtle messages in the helpful tips section explained that women should purposely pay for their meals and other expenses when on a date to keep from “owing” him anything at the end of the night (Preventing Acquaintance Rape), meaning if they did not they could be indebted to unwanted sexual activity at the end of the night, thus making it the woman’s fault because she should have paid. Myth ridden tip sheets do not allude to the severity or brutality of what is actually happening. The pure existence of these myths are an indicator of a larger epidemic that is plaguing American campuses and consciences, misinformed views of rape. What is most discouraging is that these myths and misconceptions are not checked at the courtroom door; jurors carry these foundations of injustice well into the proceedings. Originally, the framers of the constitution intended jurors to be representative of the people and act as a “check” system to the judge, similar to the way the House of Representatives “checks” the Senate and so on. What we are seeing these days is that jurors are representative of the people and all the myths that “the people” believe, but they are not the informed citizens the pioneers of our nation had in mind. To prove this, multiple scientific studies have been conducted and published surrounding jurors’ courtroom commonplaces. In order to have a valid scientific study with reliable results, the experiments must be repeatedly proven true with results that are generalizable to a broader population. Valid scientific studies done by Harvard Law regarding the social constructions and biases guiding jurors’ decisions in rape conviction and sentencing is victim and defendants demographics which is influenced by the jurors opinions of that information (Byden and Lengnick 1278). One study’s conclusion found jurors are less likely to