TIME: Almanac 1993/TIME Almanac 1993.iso/time/060391/0603360.000

Text File | 1992-10-19 | 25.4 KB | 513 lines

                +¿%                                                        ╚BEHAVIOR, Page 48

COVER STORIES

When Is It RAPE?


He was a classmate, a co-worker or a date. He says she wanted it.
She calls it a crime. A battle of the sexes rages over drawing
the line.

By NANCY GIBBS -- Reported by Sylvester Monroe/Los Angeles,
Priscilla Painton and Anastasia Toufexis/New York


    Be careful of strangers and hurry home, says a mother to
her daughter, knowing that the world is a frightful place but
not wishing to swaddle a child in fear. Girls grow up scarred
by caution and enter adulthood eager to shake free of their
parents' worst nightmares. They still know to be wary of
strangers. What they don't know is whether they have more to
fear from their friends.

    Most women who get raped are raped by people they already
know -- like the boy in biology class, or the guy in the office
down the hall, or their friend's brother. The familiarity is
enough to make them let down their guard, sometimes even enough
to make them wonder afterward whether they were "really raped."
What people think of as "real rape" -- the assault by a
monstrous stranger lurking in the shadows -- accounts for only
1 out of 5 attacks.

    So the phrase "acquaintance rape" was coined to describe
the rest, all the cases of forced sex between people who
already knew each other, however casually. But that was too
clinical for headline writers, and so the popular term is the
narrower "date rape," which suggests an ugly ending to a raucous
night on the town.

    These are not idle distinctions. Behind the search for
labels is the central mythology about rape: that rapists are
always strangers, and victims are women who ask for it. The
mythology is hard to dispel because the crime is so rarely
exposed. The experts guess -- that's all they can do under the
circumstances -- that while 1 in 4 women will be raped in her
lifetime, less than 10% will report the assault, and less than
5% of the rapists will go to jail.

    When a story of the crime lodges in the headlines, the
myths have a way of cluttering the search for the truth. The
tale of Good Friday in Palm Beach landed in the news because it
involved a Kennedy, but it may end up as a watershed case,
because all the mysteries and passions surrounding date rape are
here to be dissected. William Kennedy Smith met a woman at a
bar, invited her back home late at night and apparently had sex
with her on the lawn. She says it was rape, and the police
believed her story enough to charge him with the crime. Perhaps
it was the bruises on her leg; or the instincts of the
investigators who found her, panicked and shaking, curled up in
the fetal position on a couch; or the lie-detector tests she
passed.

    On the other side, Smith has adamantly protested that he
is a man falsely accused. His friends and family testify to his
gentle nature and moral fiber and insist that he could not
possibly have committed such a crime. Maybe the truth will come
out in court -- but regardless of its finale, the case has
shoved the debate over date rape into the minds of average men
and women. Plant the topic in a conversation, and chances are
it will ripen into a bitter argument or a jittery sequence of
pale jokes.

    Women charge that date rape is the hidden crime; men
complain it is hard to prevent a crime they can't define. Women
say it isn't taken seriously; men say it is a concept invented
by women who like to tease but not take the consequences. Women
say the date-rape debate is the first time the nation has talked
frankly about sex; men say it is women's unconscious reaction
to the excesses of the sexual revolution. Meanwhile, men and
women argue among themselves about the "gray area" that
surrounds the whole murky arena of sexual relations, and there
is no consensus in sight.

    In court, on campus, in conversation, the issue turns on
the elasticity of the word rape, one of the few words in the
language with the power to summon a shared image of a horrible
crime.

    At one extreme are those who argue that for the word to
retain its impact, it must be strictly defined as forced sexual
intercourse: a gang of thugs jumping a jogger in Central Park,
a psychopath preying on old women in a housing complex, a man
with an ice pick in a side street. To stretch the definition of
the word risks stripping away its power. In this view, if it
happened on a date, it wasn't rape. A romantic encounter is a
context in which sex could occur, and so what omniscient judge
will decide whether there was genuine mutual consent?

    Others are willing to concede that date rape sometimes
occurs, that sometimes a man goes too far on a date without a
woman's consent. But this infraction, they say, is not as
ghastly a crime as street rape, and it should not be taken as
seriously. The New York Post, alarmed by the Willy Smith case,
wrote in a recent editorial, "If the sexual encounter, forced
or not, has been preceded by a series of consensual activities
-- drinking, a trip to the man's home, a walk on a deserted
beach at 3 in the morning -- the charge that's leveled against
the alleged offender should, it seems to us, be different than
the one filed against, say, the youths who raped and beat the
jogger."

    This attitude sparks rage among women who carry scars
received at the hands of men they knew. It makes no difference
if the victim shared a drink or a moonlit walk or even a
passionate kiss, they protest, if the encounter ended with her
being thrown to the ground and forcibly violated. Date rape is
not about a misunderstanding, they say. It is not a
communications problem. It is not about a woman's having regrets
in the morning for a decision she made the night before. It is
not about a "decision" at all. Rape is rape, and any form of
forced sex -- even between neighbors, co-workers, classmates and
casual friends -- is a crime.

    A more extreme form of that view comes from activists who
see rape as a metaphor, its definition swelling to cover any
kind of oppression of women. Rape, seen in this light, can
occur not only on a date but also in a marriage, not only by
violent assault but also by psychological pressure. A Swarthmore
College training pamphlet once explained that acquaintance rape
"spans a spectrum of incidents and behaviors, ranging from
crimes legally defined as rape to verbal harassment and
inappropriate innuendo."

    No wonder, then, that the battles become so heated. When
innuendo qualifies as rape, the definitions have become so
slippery that the entire subject sinks into a political swamp.
The only way to capture the hard reality is to tell the story.

    A 32-year-old woman was on business in Tampa last year for
the Florida supreme court. Stranded at the courthouse, she
accepted a lift from a lawyer involved in her project. As they
chatted on the ride home, she recalls, "he was saying all the
right things, so I started to trust him." She agreed to have
dinner, and afterward, at her hotel door, he convinced her to
let him come in to talk. "I went through the whole thing about
being old-fashioned," she says. "I was a virgin until I was 21.
So I told him talk was all we were going to do."

    But as they sat on the couch, she found herself falling
asleep. "By now, I'm comfortable with him, and I put my head on
his shoulder. He's not tried anything all evening, after all."
Which is when the rape came. "I woke up to find him on top of
me, forcing himself on me. I didn't scream or run. All I could
think about was my business contacts and what if they saw me run
out of my room screaming rape.

    "I thought it was my fault. I felt so filthy, I washed
myself over and over in hot water. Did he rape me?, I kept
asking myself. I didn't consent. But who's gonna believe me? I
had a man in my hotel room after midnight." More than a year
later, she still can't tell the story without a visible struggle
to maintain her composure. Police referred the case to the state
attorney's office in Tampa, but without more evidence it decided
not to prosecute. Although her attacker has admitted that he
heard her say no, maintains the woman, "he says he didn't know
that I meant no. He didn't feel he'd raped me, and he even
wanted to see me again."

    Her story is typical in many ways. The victim herself may
not be sure right away that she has been raped, that she had
said no and been physically forced into having sex anyway. And
the rapist commonly hears but does not heed the protest. "A
date rapist will follow through no matter what the woman wants
because his agenda is to get laid," says Claire Walsh, a
Florida-based consultant on sexual assaults. "First comes the
dinner, then a dance, then a drink, then the coercion begins."
Gentle persuasion gives way to physical intimidation, with
alcohol as the ubiquitous lubricant. "When that fails, force is
used," she says. "Real men don't take no for an answer."

    The Palm Beach case serves to remind women that if they go
ahead and press charges, they can expect to go on trial along
with their attacker, if not in a courtroom then in the court of
public opinion. The New York Times caused an uproar on its own
staff not only for publishing the victim's name but also for
laying out in detail her background, her high school grades, her
driving record, along with an unattributed quote from a school
official about her "little wild streak." A freshman at Carleton
College in Minnesota, who says she was repeatedly raped for four
hours by a fellow student, claims that she was asked at an
administrative hearing if she performed oral sex on dates. In
1989 a man charged with raping at knife point a woman he knew
was acquitted in Florida because his victim had been wearing
lace shorts and no underwear.

    From a purely legal point of view, if she wants to put her
attacker in jail, the survivor had better be beaten as well as
raped, since bruises become a badge of credibility. She had
better have reported the crime right away, before taking the
hours-long shower that she craves, before burning her clothes,
before curling up with the blinds down. And she would do well
to be a woman of shining character. Otherwise the strict
constructionist definitions of rape will prevail in court.
"Juries don't have a great deal of sympathy for the victim if
she's a willing participant up to the nonconsensual sexual
intercourse," says Norman Kinne, a prosecutor in Dallas. "They
feel that many times the victim has placed herself in the
situation." Absent eyewitnesses or broken bones, a case comes
down to her word against his, and the mythology of rape rarely
lends her the benefit of the doubt.

    She should also hope for an all-male jury, preferably
composed of fathers with daughters. Prosecutors have found that
women tend to be harsh judges of one another -- perhaps because
to find a defendant guilty is to entertain two grim realities:
that anyone might be a rapist, and that every woman could find
herself a victim. It may be easier to believe, the experts
muse, that at some level the victim asked for it. "But just
because a woman makes a bad judgment, does that give the guy a
moral right to rape her?" asks Dean Kilpatrick, director of the
Crime Victim Research and Treatment Center at the Medical
University of South Carolina. "The bottom line is, Why does a
woman's having a drink give a man the right to rape her?"

    Last week the Supreme Court waded into the debate with a
7-to-2 ruling that protects victims from being harassed on the
witness stand with questions about their sexual history. The
Justices, in their first decision on "rape shield laws," said
an accused rapist could not present evidence about a previous
sexual relationship with the victim unless he notified the court
ahead of time. In her decision, Justice Sandra Day O'Connor
wrote that "rape victims deserve heightened protection against
surprise, harassment and unnecessary invasions of privacy."

    That was welcome news to prosecutors who understand the
reluctance of victims to come forward. But there are other
impediments to justice as well. An internal investigation of the
Oakland police department found that officers ignored a quarter
of all reports of sexual assaults or attempts, though 90%
actually warranted investigation. Departments are getting better
at educating officers in handling rape cases, but the courts
remain behind. A New York City task force on women in the courts
charged that judges and lawyers were routinely less inclined to
believe a woman's testimony than a man's.

    The present debate over degrees of rape is nothing new:
all through history, rapes have been divided between those that
mattered and those that did not. For the first few thousand
years, the only rape that was punished was the defiling of a
virgin, and that was viewed as a property crime. A girl's
virtue was a marketable asset, and so a rapist was often ordered
to pay the victim's father the equivalent of her price on the
marriage market. In early Babylonian and Hebrew societies, a
married woman who was raped suffered the same fate as an
adulteress -- death by stoning or drowning. Under William the
Conqueror, the penalty for raping a virgin was castration and
loss of both eyes -- unless the violated woman agreed to marry
her attacker, as she was often pressured to do. "Stealing an
heiress" became a perfectly conventional means of taking --
literally -- a wife.

    It may be easier to prove a rape case now, but not much.
Until the 1960s it was virtually impossible without an
eyewitness; judges were often required to instruct jurors that
"rape is a charge easily made and hard to defend against; so
examine the testimony of this witness with caution." But
sometimes a rape was taken very seriously, particularly if it
involved a black man attacking a white woman -- a crime for
which black men were often executed or lynched.

    Susan Estrich, author of Real Rape, considers herself a
lucky victim. This is not just because she survived an attack
17 years ago by a stranger with an ice pick, one day before her
graduation from Wellesley. It's because police, and her friends,
believed her. "The first thing the Boston police asked was
whether it was a black guy," recalls Estrich, now a University
of Southern California law professor. When she said yes and gave
the details of the attack, their reaction was, "So, you were
really raped." It was an instructive lesson, she says, in
understanding how racism and sexism are factored into
perceptions of the crime.

    A new twist in society's perception came in 1975, when
Susan Brownmiller published her book Against Our Will: Men,
Women and Rape. In it she attacked the concept that rape was a
sex crime, arguing instead that it was a crime of violence and
power over women. Throughout history, she wrote, rape has played
a critical function. "It is nothing more or less than a
conscious process of intimidation, by which all men keep all
women in a state of fear."

    Out of this contention was born a set of arguments that
have become politically correct wisdom on campus and in
academic circles. This view holds that rape is a symbol of
women's vulnerability to male institutions and attitudes. "It's
sociopolitical," insists Gina Rayfield, a New Jersey
psychologist. "In our culture men hold the power, politically,
economically. They're socialized not to see women as equals."

    This line of reasoning has led some women, especially
radicalized victims, to justify flinging around the term rape
as a political weapon, referring to everything from violent
sexual assaults to inappropriate innuendos. Ginny, a college
senior who was really raped when she was 16, suggests that false
accusations of rape can serve a useful purpose. "Penetration is
not the only form of violation," she explains. In her view, rape
is a subjective term, one that women must use to draw attention
to other, nonviolent, even nonsexual forms of oppression. "If a
woman did falsely accuse a man of rape, she may have had
reasons to," Ginny says. "Maybe she wasn't raped, but he clearly
violated her in some way."

    Catherine Comins, assistant dean of student life at
Vassar, also sees some value in this loose use of "rape." She
says angry victims of various forms of sexual intimidation cry
rape to regain their sense of power. "To use the word carefully
would be to be careful for the sake of the violator, and the
survivors don't care a hoot about him." Comins argues that men
who are unjustly accused can sometimes gain from the experience.
"They have a lot of pain, but it is not a pain that I would
necessarily have spared them. I think it ideally initiates a
process of self-exploration. `How do I see women?' `If I didn't
violate her, could I have?' `Do I have the potential to do to
her what they say I did?' Those are good questions."

    Taken to extremes, there is an ugly element of vengeance
at work here. Rape is an abuse of power. But so are false
accusations of rape, and to suggest that men whose reputations
are destroyed might benefit because it will make them more
sensitive is an attitude that is sure to backfire on women who
are seeking justice for all victims. On campuses where the issue
is most inflamed, male students are outraged that their names
can be scrawled on a bathroom-wall list of rapists and they have
no chance to tell their side of the story.

    "Rape is what you read about in the New York Post about 17
little boys raping a jogger in Central Park," says a male
freshman at a liberal-arts college, who learned that he had been
branded a rapist after a one-night stand with a friend. He
acknowledges that they were both very drunk when she started
kissing him at a party and ended up back in his room. Even
through his haze, he had some qualms about sleeping with her:
"I'm fighting against my hormonal instincts, and my moral
instincts are saying, `This is my friend and if I were sober,
I wouldn't be doing this.' " But he went ahead anyway. "When
you're drunk, and there are all sorts of ambiguity, and the
woman says `Please, please' and then she says no sometime later,
even in the middle of the act, there still may very well be some
kind of violation, but it's not the same thing. It's not rape.
If you don't hear her say no, if she doesn't say it, if she's
playing around with you -- oh, I could get squashed for saying
it -- there is an element of say no, mean yes."

    The morning after their encounter, he recalls, both
students woke up hung over and eager to put the memory behind
them. Only months later did he learn that she had told a friend
that he had torn her clothing and raped her. At this point in
the story, the accused man starts using the language of rape.
"I felt violated," he says. "I felt like she was taking
advantage of me when she was very drunk. I never heard her say
`No!,' `Stop!,' anything." He is angry and hurt at the charges,
worried that they will get around, shatter his reputation and
force him to leave the small campus.

    So here, of course, is the heart of the debate. If rape is
sex without consent, how exactly should consent be defined and
communicated, when and by whom? Those who view rape through a
political lens tend to place all responsibility on men to make
sure that their partners are consenting at every point of a
sexual encounter. At the extreme, sexual relations come to
resemble major surgery, requiring a signed consent form.
Clinical psychologist Mary P. Koss of the University of Arizona
in Tucson, who is a leading scholar on the issue, puts it rather
bluntly: "It's the man's penis that is doing the raping, and
ultimately he's responsible for where he puts it."

    Historically, of course, this has never been the case, and
there are some who argue that it shouldn't be -- that women too
must take responsibility for their behavior, and that the whole
realm of intimate encounters defies regulation from on high.
Anthropologist Lionel Tiger has little patience for trendy
sexual politics that make no reference to biology. Since the
dawn of time, he argues, men and women have always gone to bed
with different goals. In the effort to keep one's genes in the
gene pool, "it is to the male advantage to fertilize as many
females as possible, as quickly as possible and as efficiently
as possible." For the female, however, who looks at the large
investment she will have to make in the offspring, the opposite
is true. Her concern is to "select" who "will provide the best
set up for their offspring." So, in general, "the pressure is
on the male to be aggressive and on the female to be coy."

    No one defends the use of physical force, but when the
coercion involved is purely psychological, it becomes hard to
assign blame after the fact. Journalist Stephanie Gutmann is an
ardent foe of what she calls the date-rape dogmatists. "How can
you make sex completely politically correct and completely
safe?" she asks. "What a horribly bland, unerotic thing that
would be! Sex is, by nature, a risky endeavor, emotionally. And
desire is a violent emotion. These people in the date-rape
movement have erected so many rules and regulations that I don't
know how people can have erotic or desire-driven sex."

    Nonsense, retorts Cornell professor Andrea Parrot,
co-author of Acquaintance Rape: The Hidden Crime. Seduction
should not be about lies, manipulation, game playing or coercion
of any kind, she says. "Too bad that people think that the only
way you can have passion and excitement and sex is if there are
miscommunications, and one person is forced to do something he
or she doesn't want to do." The very pleasures of sexual
encounters should lie in the fact of mutual comfort and
consent: "You can hang from the ceiling, you can use fruit, you
can go crazy and have really wonderful sensual erotic sex, if
both parties are consenting."

    It would be easy to accuse feminists of being too quick to
classify sex as rape, but feminists are to be found on all sides
of the debate, and many protest the idea that all the onus is
on the man. It demeans women to suggest that they are so
vulnerable to coercion or emotional manipulation that they must
always be escorted by the strong arm of the law. "You can't
solve society's ills by making everything a crime," says
Albuquerque attorney Nancy Hollander. "That comes out of the
sense of overprotection of women, and in the long run that is
going to be harmful to us."

    What is lost in the ideological debate over date rape is
the fact that men and women, especially when they are young,
and drunk, and aroused, are not very good at communicating. "In
many cases," says Estrich, "the man thought it was sex, and the
woman thought it was rape, and they are both telling the truth."
The man may envision a celluloid seduction, in which he is being
commanding, she is being coy. A woman may experience the same
event as a degrading violation of her will. That some men do not
believe a woman's protests is scarcely surprising in a society
so drenched with messages that women have rape fantasies and a
desire to be overpowered.

    By the time they reach college, men and women are loaded
with cultural baggage, drawn from movies, television, music
videos and "bodice ripper" romance novels. Over the years they
have watched Rhett sweep Scarlett up the stairs in Gone With
the Wind; or Errol Flynn, who was charged twice with statutory
rape, overpower a protesting heroine who then melts in his arms;
or Stanley rape his sister-in-law Blanche du Bois while his
wife is in the hospital giving birth to a child in A Streetcar
Named Desire. Higher up the cultural food chain, young people
can read of date rape in Homer or Jane Austen, watch it in Don
Giovanni or Rigoletto.

    The messages come early and often, and nothing in the
feminist revolution has been able to counter them. A recent
survey of sixth- to ninth-graders in Rhode Island found that a
fourth of the boys and a sixth of the girls said it was
acceptable for a man to force a woman to kiss him or have sex
if he has spent money on her. A third of the children said it
would not be wrong for a man to rape a woman who had had
previous sexual experiences.

    Certainly cases like Palm Beach, movies like The Accused
and novels like Avery Corman's Prized Possessions may force
young people to re-examine assumptions they have inherited. The
use of new terms, like acquaintance rape and date rape, while
controversial, has given men and women the vocabulary they need
to express their experiences with both force and precision. This
dialogue would be useful if it helps strip away some of the
dogmas, old and new, surrounding the issue. Those who hope to
raise society's sensitivity to the problem of date rape would
do well to concede that it is not precisely the same sort of
crime as street rape, that there may be very murky issues of
intent and degree involved.

    On the other hand, those who downplay the problem should
come to realize that date rape is a crime of uniquely intimate
cruelty. While the body is violated, the spirit is maimed. How
long will it take, once the wounds have healed, before it is
possible to share a walk on a beach, a drive home from work or
an evening's conversation without always listening for a quiet
alarm to start ringing deep in the back of the memory of a
terrible crime?