Final Version

Introduction

Rape presents a particular problem for our justice system. The subjective elements of the crime, the frequent lack of evidence outside the testimony of the parties involved, and the stereotypes and stigma that surround it all make it and especially difficult issue. Clearly these issues arise in some degree in the adjudication of all crimes, but rape generally exaggerates all these problems, particularly in cases of acquaintance rape where evidence of significant physical force is lacking. An intermediate misdemeanour charge, which entailed education and sensitivity training instead of jail time, would be a better method than either full acquittal or a full rape conviction for dealing with acquaintance rapes that are based on a mistaken belief of consent.

Rape and the Law

Rape is Endemic and Under-Reported

Rape laws differ widely. In some states, there must have been physical force or the threat of physical force for a rape charge. Other jurisdictions hold that a lack of consent warrants a rape charge, whether or not there was physical force employed. In Canada, the victim's statement that she did not give consent is sufficient to shift the burden to the offender to prove otherwise. My contention that there is a particular problem with rape and the law is based on the disparity between the estimated number of rapes committed and the number that are reported. Clearly accurate numbers are impossible to get on this issue, but it is generally accepted that a significant percentage of rapes go unreported. The reasons for this are shame and guilt over the incident, as well as the perception that reporting the rape will be taxing and useless.

The Criminal Justice System Deals Poorly with Rape

My particular interest here is in male-female acquaintance rapes, which are much more difficult to deal with than stranger rape. In these cases, there is rarely any evidence outside the testimony of the two parties, since any evidence of rape will generally also be consistent with consensual sexual activity. This makes it easy for both parties to tell extremely divergent stories of the incident. However, an even more difficult hurdle is that the man and woman involved may have genuinely different impressions of what happened. There is therefore a subjective element to this type of rape that makes it especially ill-suited to be dealt with by a justice system that attempts to establish the objective truth by examining evidence and deciding on credibility. The jury has to pick which of the narratives to believe, both of which may be subjectively true, with the following result: either men who do not believe they did anything wrong are convicted of rape, or the claims of women who did not consent to sexual activity are dismissed.

A Possible Alternative

Gender stereotypes are the underlying problem

Traditional ideas about sex roles and the socialization of the two genders are at the heart of acquaintance rape. First there is the idea (held by both men and women) that women are supposed to display initial resistance to sexual contact, and men are supposed to act aggressively in response to this. This can result in a woman’s resistance being taken for coyness. Then there is the idea that if a woman is not consenting, she should attempt to fight off the offender physically. Firstly, men tend to be larger and stronger than women, who may as a result perceive fighting back physically to be useless. Secondly, this concept is based in a very male idea of conflict behaviour: women (for any number of biological or social reasons) are less likely than men to respond in kind to physical aggression; they are more likely to try to avoid escalating the situation. These factors add up to a situation where a man can fail to perceive a woman’s lack of consent, despite her belief that she is making it clear.

Mandatory Education to Combat the Problem

If there is a genuine mistake about consent, it is unjust to punish the rapist. This can happen under a law like Canada’s, which says that if the victim was incapable of giving consent or made any indication of lack of consent, mistake regarding consent cannot be used as a defence. However, it is also unsatisfactory to acquit the rapist, because he obviously engaged in sexual conduct that was unwelcome. Since gender-based miscommunication is the source of this problem, the logical way forward is to work towards eradicating the ideas and misconceptions that underlie it. An intermediate charge that could be used in non-forcible acquaintance rapes might provide a viable alternative. A conviction under that charge would ideally entail education and sensitivity training for the defendant. The training would focus on eradicating the traditional ideas that lead to acquaintance rape based on miscommunication. Ideally this would impress on the offender the seriousness of what occurred, and prevent a recurrence, without the stigma and severe punishment of a rape conviction. The victim would also be vindicated in some sense because the court is recognizing that what the offender did was wrong. There are a lot of potential problems with this idea. Training and education are expensive, and may meet with resistance from students who do not perceive it as necessary. The most serious risk is that juries could abuse it to excuse acquaintance rape; offenders who ignored a lack of consent in bad faith might escape punishment. It would have to be made clear that there is a high standard – the charge can only be made where there is convincing evidence that the perpetrator had a genuine, objectively reasonable, good faith belief that the victim had consented, and there is no evidence of physical force.

Conclusion

Despite these problems, I think this idea could help combat both the occurrence of acquaintance rape and the failure to report it, by providing education for offenders and deterrence for others, as well as making full acquittals in cases of date rape less likely. It could also limit the number of men who are convicted of rape unjustly. Finally, it could help to counter the shame and guilt that is associated with victims of acquaintance rape by assuring women that, even in cases where the offender is an acquaintance and physical violence was largely absent, their lack of consent will be respected by the law.

-- ClaireOSullivan - 31 Mar 2008

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• This is an interesting essay, Claire, and I appreciate the vibrancy of the conversation it started, which is a good sign of the effectiveness of the writing.

• But your legal thinking here is unfortunately naive. It is not juries who determine either the under-prosecution of acquaintance rape or the underreporting of rape as a whole. You cannot significantly change prosecutorial behavior by adding another sexual misdemeanor to the "toolkit." Because we're not going to recriminalize "fornication," we can't make the sex itself a misdemeanor--some additional element must be proven. Prosecutors have sexual battery misdemeanors available in every modern penal code with which to charge less than felony rape or sexual crime if they want to. You might find it useful to look at the scheme in N.Y. Penal Law section 130, including the general provisions concerning consent, and the Class A misdemeanor called "forcible touching" which is New York's relevant offense already available.

• The problems with using this tool are twofold, and they lie away from your essay's focus. In the first place, the political moron-show that is public discussion of criminal justice matters has been scaring the booboisie sick about "sex offenders" for years now, and has been politically rewarded for passing statutes that horrendously burden the constitutional rights and daily lives of "sex offenders," which can include those convicted of the sexual battery misdemeanors. It's hard to get people to plead guilty to something that's going to destroy their lives if they don't think they did anything wrong and they have social and economic resources with which to go to trial. In the second place, and more importantly, prosecutors don't want to go to trial in misdemeanors that are simply "he said, she said" evidence--that's even worse for the prosecutor than the felony is, because the standard of proof is just as high, but if you win all you did was get a misdemeanor conviction--which doesn't help your stats at all--and if you lose you've wasted as much time as you'd have spent on trying the felony.

• So the real issue is whether you can get the offender to plead to the misdemeanor by threatening to take him to trial on the felony, which if successful will result in his being sent away to be raped by somebody else once he gets to prison. Prosecutors don't understand themselves as intake officers for psychotherapy and behavior modification, you understand? They're public servant warriors whose task it is to use the People's force to introduce offenders to the "correctional system" through guilty plea or trial verdict. Those they cannot convict by threat or force they do not want to charge. Sex crimes units are not special anti-patriarchy holistic intervention centers: they are run by and contain the same well-bred wolves who succeed elsewhere in the pack.

• I would freely concede that the "Drug Courts" bullshit offers the sort of picture that might convince you that you are on the right track here, which means that naivete has spread to people supposedly older and wiser than you are in the ways of this sick-making "system" of ours. But adversary criminal justice in the contemporary style is not a good place to look for social therapeutics, and you can't graft them together bough to stock.

• The sad truth of the matter is that we are a society in which a woman somewhere is beaten, in her home, every few minutes. Husbands commit forcible rape upon their wives, every single day. Any adolescent girl who through choice or circumstance associates unsupervised with adult males--including all too often relatives such as uncles and cousins, or co-resident sexual partners of her mother or other relatives--is likely to find herself initiated in what is at best a semi-consensual setting, and long before the age of consent. Young adult women report rates of abuse from puberty on that we should take seriously and be horrified about; every year I meet law students whose lives have been harmed, whose trauma has been severe. This society tolerates levels of brutality to and sexual mistreatment of women that should be a source of militant determination to everyone who lives here. Instead, we excuse ourselves by pointing out that few parts of the world are substantially better and many are inexpressibly worse. That excuse is obnoxious crap. But by the same token, we aren't exactly being realistic when we sit wondering how to use the criminal justice process to deal with the cases of mistaken understanding of consent while all the rest of the brutality goes on unchecked around us. You are right that we have work to do in the culture. But we should be designing that work with a view of the problem as a whole, not merely any part of it.