Against Our Will: Men, Women, and Rape (85 page)

374
I
AGAINST OUR \VILL

comparing the jury's decision to acquit or convict with a written statement from the judge on the case telling how he would have voted, Kalven and Zeise!uncovered major discrepancies between a jury's interpretation of law and fact and the judge's opinion.

The authors wrote, "The law recognizes only one issue in rape cases other than the fact of intercourse: whether there was consent at the moment of intercourse. The jury . . . does not limit itself to this one issue; it goes on to weigh the woman's conduct in the prior history of the affair.
It
closely, and of ten harshly, scrutinizes the female complainant and is moved to be lenient with the defen dant whenever there are suggestions of contributory behavior on her part."

As Kalven and Zeisel saw it, juries in effect were rewriting the law. They were bootlegging concepts from tort law or civil actions such as "contributory negligence" and "assumption of risk" into a rape case. They "weighed the conduct of the victim in judging the guilt of the defendant."

The two professors found that juries preferred to acquit when there was no overt sign of physical force. "The jury's stance," they suggested, "is not so much that involuntary intercourse under these circumstances is no crime at all, but rather that it does not have the gravity of rape. . . . This rewriting of the law to accommodate the defendant when the female victim has taken a risk is on occasion carried to a cruel extreme."

Women who went drinking with the offender prior to the act, women who were "picked up," women who knew the offender previously and women whose past sexual history was alleged to be "promiscuous" were assessed by juries in this national study as having taken an undue risk and morally not worth a conviction for rape.

Kalven and Zeisel went on to separate out from their sample all cases in which there was evidence of "extrinsic violence," situa tions in which the defendant and victim were total strangers, and cases involving more than one assailant. The remaining cases, of which there were
42,
they called for the purposes of their study "simple rape." In these
42
simple rapes, the judges reported they would have convicted in
22
of the cases. But the jury convicted in
only
three. "This result," wrote Kalven and Zeisel, "is startling."

12

Women Fight Back

On the fourteenth of November,
1642,
a
young Virgine, daughter to Mr. Adam Fisher, was hurrying along a country road in Devonshire so darke that she could scarce discerne her hand when the figure of a Gentleman, Mr. Ralph Ashley, a debased Cavalier, approached on horseback. Inspired by the DeviII himself, this gentleman told the trusting maiden that he knew her father well and would be pleased to escort her home in safety, for there were lustful soldiers in those parts.

And then, Dear Reader, as
if
you didn't know what next, he galloped her off to a deserted spot and went about to ravish her while she fervently prayed, Help, Lord, or
I
perish.

Just then a fearefull Comet burst out
in the ayre
and strucke the rapacious Cavalier with a streame of fire so that he fell downe staggering.

According
to
some shepherds folding their flock who had witnessed the
Blazing
Starre from a distance, Mr. Ashley expired within the night, ranting and raving in terrible blasphemy about that Roundheaded whore. Adam Fisher's daughter, aroused from a graceful faint, found her Virginity intact and thanked her lucky starres and God Almighty.

The original text of this Puritan fable, a seventeenth-century propaganda pamphlet aimed at "those Cavaliers which esteem murder and rapine the chiefe Principalls of their religion," is housed today in the British Museum.

375

Three eventful centuries have passed since that fateful autumn night when Mr. Ralph Ashley attempted to ravish Mr. Adam Fisher's nameless daughter and was struck in his tracks by a bolt from the sky. Fewer of us these days, we would all agree, are young Virgines. The automobile has replaced the horse and blazing comets have proved fairly unpredictable af ter all. But the problem of rape, and how to deal with it, remains.

To a woman the definition of rape is fairly simple. A sexual invasion of the body by force, an incursion into the private, per sonal inner space without consentin short, an internal assault from one of several avenues and by one of several methods-con stitutes a deliberate violation of emotional, physical and rational integrity and is a hostile, degrading act of violence that deserves the name of rape.

Yet by tracing man's concept of rape as he defined it in his earliest laws, we now know with certainty that the criminal act he viewed with horror, and the deadly punishments he saw fit to apply, had little to do with an actual act of sexual violence that a woman's body might sustain. True, the law has come some dis tance since its beginnings when rape meant simply and conclu sively the thef t of a father's daughter's virginity, a specialized crime that damaged valuable goods before they could reach the matri monial market, but modern legal perceptions of rape are rooted still in ancient male concepts of property.

From the earliest times, when men of one tribe freely raped women of another tribe to secure new wives, the laws of marriage and the laws of rape have been philosophically entwined, and even today it is largely impossible to separate them out. Man's historic desire to maintain sole, total and complete access to woman's vagina, as codified by his earliest laws of marriage, sprang from his need to be the sole physical instrument governing impregnation, progeny and inheritance rights. As man understood his male real ity, it was perfectly lawful to capture and rape some other tribe's women, for what better way for his own tribe to increase? But it was unlawful, he felt, for the insult to be returned. The criminal act he viewed with horror and punished as rape was not sexual assault per se, but an act of unlawf ul possession, a trespass against his tribal right to control vaginal access to all women who belonged to him and his kin.

WOMEN FIGHT BACK
I
377

Since marriage, by law, was consummated in one manner only, py defloration of virginity with attendant ceremonial tokens, the act man came to construe as criminal rape was the illegal destruc tion of virginity outside a marriage contract of his making. Later, when he came to see his own definition as too narrow for the times, he broadened his criminal concept to cover the ruination of his wife's chastity as well, thus extending the law's concern to nonvir gins too. Although these legal origins have been buried in the morass of forgotten history, as the laws of rape continued to evolve they never shook free of their initial concept-that the violation was first and foremost a violation of
male
rights of possession, based on
male
requirements of virginity, chastity and consent to private access as the female bargain in the marriage contract ( the underpinnings, as he enforced them, of man's economic estate) .

To our modern way of thinking, these theoretical origins are peculiar and difficult to fully grasp. A huge disparity in thought male logic versus female logic-affects perception of rape to this very day, confounding the analytic processes of some of the best legal minds. Today's young rapist has no thought of capturing a wife or securing an inheritance or estate. His is an act of imperma nent conquest, not a practical approach to ownership and control. The economic advantage of rape is a forgotten concept. What remains is the basic male-female struggle, a hit-and-run attack, a brief expression of physical power, a conscious process of intimida tion, a blunt, ugly sexual invasion with possible lasting psychologi cal effects on all women.

When rape is placed where it truly belongs, within the context of modern criminal violence and not within the purview of ancient masculine codes, the crime retains its unique dimensions, falling midway between robbery and assault.
It
is, in one act, both a blow to the body and a blow to the mind, and a "taking" of sex through the use or threat of force. Yet the differences between rape and an assault or a robbery are as distinctive as the obvious similarities.
In
a prosecutable case of assault, bodily damage to the victim is clearly evident. In a case of rape, the threat of force does not secure a tangible commodity as we understand the term, although sex tradi tionally has been viewed by men as "the female treasure"; more precisely, in rape the threat of force obtains a highly valued sexual service through temporary access to the victim's intimate parts, and

the intent is not merely to "take," but to humiliate and degrade.

This, then, is the modern reality of rape as it is defined by twentieth-century practice.
It
is not, however, the reality of rape as it is defined by twentieth-century law.

In
order for a sexual assault to qualif y as felonious rape in an American courtroom, there must be "forcible penetration of the vagina by the penis, however slight."
In
other words, rape is de fined by law as a heterosexual offense that is characterized by genital copulation.
It
is with this hallowed, restrictive definition, the
sine
qua non of rape prosecutions, that our argument begins.

That forcible genital copulation is the "worst possible" sex assault a person can sustain, that it deserves by far the severest punishment, equated in some states with the penalties for murder, while all other manner of sexual assaults are lumped together under the label of sodomy and draw lesser penalties by law, can only be seen as an outdated masculine concept that no longer applies to modern crime.

Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-female offense. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. And while the penis may remain the rapist's favorite weapon, his prime instrument of vengeance, his triumphant display of power, it is not in fact his only tool. Sticks, bottles and even fingers are of ten substituted for the "natural" thing. And as men may invade women through other orifices, so, too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self?

All acts of sex forced on unwilling victims deserve to be treated in concept as equally grave offenses in the eyes of the law, for the avenue of penetration is less significant than the intent to degrade. Similarly, the gravity of the offense ought not be bound by the victim's gender. That the law must move in this direction seems clear.

A gender-free, non-activity-specific law governing all manner of sexual assaults would be but the first step toward legal reform.