Could a woman be held accountable for her rape?


April 26, 1993|By ROGER SIMON

Can a woman be responsible for her own rape? Can she be held accountable, at least in part, for being attacked?

In October 1989, in Broward County, Florida, a man was acquitted of raping a woman at knife point because the woman was wearing a tank top and a short, sheer white-lace skirt without underwear.

The jury foreman, Roy Diamond, said that because the woman was wearing a lace miniskirt without panties, "We all felt she was asking for it."

The verdict so outraged the public that a law was passed in Florida forbidding defense lawyers from using the victim's clothing as evidence to justify the attack.

In signing the law, the governor said: "There is no excuse for rape under any circumstances."

But for years juries have been asked to consider whether a woman was "asking for it" by drinking with her attacker or dating him or voluntarily entering his apartment.

Last week, Baltimore County Judge Thomas J. Bollinger gave the unusually light sentence of probation before judgment to a convicted rapist because the judge felt Maryland's current rape laws are too harsh.

A teen-age woman, who had been drinking with Lawrence Allen Gillette, 44, on Aug. 28 last year, had passed out in his apartment and awoke to find him forcing intercourse upon her. (Details of the case were presented in yesterday's column.) Under Maryland law, this is second degree rape and can be punished by up to 20 years in prison.

Second-degree rape includes rape by the use of force or the threat of force or if the victim is physically or mentally incapacitated. (First-degree rape is rape with a weapon.)

Since the woman had passed out after drinking, she was considered incapacitated under the law.

"But that law was meant to protect retarded women," Judge Bollinger told me. "That was the real thrust of the Maryland legislation."

But Bollinger, who researched the history of the law before passing sentence, admitted that "the voluntary ingestion of alcohol" was specifically rejected as an exception to the law by the Maryland legislature in 1976.

In other words, the lawmakers did not think that being drunk, even voluntarily, was an excuse for getting raped.

"In other states, this would have been the separate crime of 'sexual exploitation' and a misdemeanor," Bollinger said. "That is what we should have in Maryland. But we hand him [Gillette] a felony."

Bollinger also said other Maryland sex laws were too far-reaching. "If a husband and wife are in bed and she decides to fellate him and he wants to complain, that could be a sexual offense in Maryland," Bollinger said. "Of course, we'd probably send him to Spring Grove [i.e. a state mental hospital] if he complained."

Bollinger said calls to his office were "running about 50-50" as to whether his sentence was too light.

"The older women seem to agree with me and the younger women do not," he said.

Prosecutor Stephen Bailey disagreed with the sentence and said, "Incarceration was appropriate especially considering that to this day he [Gillette] maintains the sex was consensual and he has never admitted he did anything wrong."

Gillette's attorney for the sentencing, Roland Walker, took a different view. "There was no reason in the world to prosecute this guy," he said. "I couldn't believe he was convicted. I think the jury went haywire."

I mentioned to Walker that the victim had been upset by some of his harsh remarks about her.

"That's a shame," Walker said sarcastically. "If a woman goes into a bar, gets plastered, goes back to her boyfriend's apartment and gets into bed with him, she has to assume certain risks.

"And do you know my client now has to pay for her therapy? She says she woke up and he was forcing sex on her, but instead of complaining or resisting, she does nothing. What she needs therapy for I don't know.

"I'm a father and a grandfather and I've got a young daughter and I am sensitive about womens' rights. But this case was not about women's rights."

Some disagree. And Judge Bollinger admits that he has become a "cause celebre."

"We did have somebody call here and ask how they could impeach me," he said.

And do you think you'll be a judge a year from today? I asked.

"I'll be a judge 12 years from today," he said.

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