THE CONTROVERSY SURROUNDING QUESTIONS OF SHARED RESPONSIBILITY
Despite whatever progress has been made in the way rape cases are viewed in general and how they are handled by the legal system on a daily basis, a number of unresolved controversies still erupt when actual cases make the news and lead to com- plaints and arrests. One issue that triggers heated debates is whether the victim can be faulted in any way for sharing responsibility with the offender for the crime. This divisive issue has been examined earlier for cases of homicides, robberies, burglaries, vehicle thefts, and identity thefts (refer back to Chapters 4 and 5). But there can be no doubt that the stakes are higher and the level of
partisanship is greater when victim-blaming viewpoints are pitted against victim-defending arguments in certain real-life cases of rape and sex- ual assault.
“Real Rapes” as Compared to “Acquaintance Rapes” and “Date Rapes”
Early one morning, a recent college grad is waiting on a corner for a lift from her principal to her first day at a new “dream job” as an elementary school teacher. A drunken man comes up to her using the pretext of asking for directions, and then pulls out a gun, threatens to kill her, and drags her into an alley. He violates her “in every way imaginable.” A person in a nearby building hears a commotion and looks out the window, witnesses the attack, and calls the police. The assailants DNA is found on her clothing, and an emergency room doctor testifies he found evidence that force was used. The jury convicts the 28-year-old drunk (who, it turns out, was an off-duty police officer) and the judge sentences him to 75 years to life. (Lovett, 2013)
A college student claims that a star quarterback of the football team raped her. He is arrested and charged with one count, of “sexual intercourse without consent” which carries a penalty of from two years to up to one hundred years in prison, plus a lifetime of stigmatization as a registered sex offender. She takes the stand and testifies that while watching a movie, at first they kissed and took their shirts off, but then she said no to any further sexual advances. But the 6-foot-1,200-pound athlete kept going, taking off her leggings and underwear, pinning her to the bed and then forcing her to submit, she insists. “He just changed—changed into a totally different person,” she laments. She did not scream to friends in the house for help because she was “terrified and in shock.” But afterwards she texts a friend, “Omg … I think I might have just gotten raped … he kept pushing and pushing and I said no but he wouldn’t listen … I just wanna cry … Omg, what do I do!” The prosecutor tells the jury that the following day, she went to the university’s Student Assault Resource Center and had a medical exam, which noted injuries to her head, clavicle, chest and genitals.
Then the accused takes the stand and insists the sex was consensual, asserting “I would never do that to anyone,” “If somebody says no, you stop. You respect that.” The defense attorney argues that the woman wanted to be with the football player but turned on him when she realized that a relationship was not part of the deal. After three weeks of testimony that rivets the attention of the college town and divides the campus community, the seven- woman, five-man jury deliberates for two and a half hours and then acquits the young man. (Robbins, 2013)
Sexual crimes involve coercion of an unwilling person, according to the law. But not all sexual assaults qualify as “real rapes” in the court of public opinion (see Estrich, 1986). There surely would be a consensus that the first case cited above constitutes a real rape. But controversy still surrounds certain incidents, such as the second one cited above. Many people have trouble distinguishing imposed inter- course from willingly engaging in sex. As a result, when a woman claims to have been penetrated against her will, some people might conjure up images of “having sex” or even “lovemaking” rather than “forcible bodily invasion” if the two were acquaintances, and especially if they were dat- ing or had been intimate partners in the past.
Real rapes or “classic rapes” (in the language of sociology, ideal types in the sense that they are the clearest examples) are readily identifiable and raise few legal questions or moral doubts. Real rapes have several defining features: They are perpetrated against unsuspecting females who are ambushed in blitz attacks. The offender is a complete stranger. He is armed with a weapon and pounces out of the darkness to surprise his quarry. The injured party is virtuous and above reproach—she is too young, too old, or too inexperienced to be faulted for attracting his attention and arousing his desires. At the time of the attack, she is engaged in a “wholesome” activity that is above criticism. Even though she faces grave dangers, she dares to fight back, resists to her utmost, and suffers severe injuries in a futile attempt to fend him off. Eyewitnesses glimpse parts of the struggle and hear her cries for help. As soon as she escapes from his clutches, she reports the crime to the police. Detectives find
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forensic evidence that backs up all her charges of being caught off guard, confronted with a weapon, brutally assaulted, physically overpowered, and helplessly compelled to submit to his demands. Finally, the assailant, who is obviously deeply dis- turbed, quickly confesses when captured.
Few people would have any difficulty conced- ing that a rape that mirrors many of these charac- teristics is one of the worst experiences that a woman can suffer. Today, detectives, prosecutors, juries, and judges agree that girls or women harmed in such heinous attacks deserve to be treated with dignity and sensitivity within the criminal justice process and that the vicious sexual predators who prey upon them must be removed from society and severely punished (see Estrich, 1986).
The problem for most rape victims is that the facts in their cases usually fall short in one way or another of the unambiguous standards that characterize brutal “real rapes” committed by complete strangers.
Acquaintance rapes (by relatives, neighbors, classmates, colleagues from work, casual dates, and inti- mate partners) are quite distinct from real rapesby com- plete strangers. The nature of the victim–offender relationship is different as are their interactions before forced sexual submission took place. In cases of acquaintance rape, doubts about her version of the facts quickly surface if some other crucial defining fea- tures of real rapes are missing. Perhaps she fails to meet the old-fashioned criterion of being “virtuous,” or she does not report the attack promptly. Maybe the assail- ant did not brandish a weapon, or he did not inflict serious physical injuries. If there wasno ferocious strug- gle or she did not scream for help, some will reject her contention that she was unwilling. If there is no cor- roboration by eyewitnesses or from forensic tests, the case may boil down to her word against his. When the accused rapist is a date or a person with whom she has previously been intimate, then the teenage girl or woman will have an even tougher time convincing the authorities that she was violated against her will and that he should be arrested, prosecuted, and pun- ished (Estrich, 1986).
Until the late 1980s, most prosecutors were reluctant to move forward, press charges, and go to trial when the accused man was not a complete
stranger, if there were no eyewitnesses, no bruises from a beating, and no signs of a fierce struggle. Yet forced submission arising out of a romantic encoun- ter meets the legal definition of rape—the use of physical coercion against a nonconsenting person—and does not hinge on the prior relation- ship of the accuser and the accused (see Estrich, 1993a; and Spears and Spohn, 1997).
Some would argue that if forced intercourse is preceded by a series of consensual acts with sexual overtones, her “contributory behavior” makes the nature of the crime less serious, and it should be penalized less severely than an ambush of an unsus- pecting and depersonalized target. Others insist that it makes no difference if the victim and the offender knew each other and interacted warmly, even pas- sionately, before the incident. The encounter can- not be written off as a case of “miscommunication,” a “terrible misunderstanding,” or an instance of a woman having regrets for the way she behaved the night before. What counts is that she was stripped of control, denied the right to make a cru- cial decision, and compelled to submit to someone else’s sexual demands (Gibbs, 1991).
These sharply contrasting interpretations lead to a victim-blaming versus victim-defending debate over who or what is at fault and what should be done.
The conflict between victim blaming and vic- tim defending is particularly bitter when it comes to rape. If auto theft provided a clear illustration of a crime for which there are well-organized interests with a stake in promoting motorist blaming, then rape serves as the best example of a crime for which there is a vocal and deeply committed victim- defending community. The controversy erupts over whether certain instances of rape should be viewed as victim-precipitated acts of uncontainable male sexual desire or whether all instances of forced sex are inexcusable acts of brutal domination always imposed upon unwilling, objectified targets.
A great deal is at stake in the battle for public support between victim-blaming and victim- defending viewpoints. People must choose between two distinct courses of action. Who or what has to change: How females behave in the company of males, as victim blaming contends; or how boys and
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men relate to girls and women, as victim defending emphasizes? Accepting victim-blaming arguments might lead to the acquittal of certain defendants, but the more socially significant consequence is that this line of reasoning excuses institutions and traditions that can be viewed as demeaning to women. Accord- ing to victim defenders who blame the system, to reduce the threat of rape it is necessary to root out antifemale biases found within rigid sex roles, to rethink prevailing definitions of masculinity and fem- ininity that infuse popular culture, to end antifemale practices within the job market and the economy, and to reform existing laws and criminal justice procedures (see Hills, 1981).