Rape -- only as men see it

Peter W. Bardaglio

June 16, 1993|By Peter W. Bardaglio

THE Baltimore County judge who recently expressed sympathy for a convicted rapist because the 18-year-old woman he assaulted had gotten drunk and passed out is a sobering reminder of the extent to which a determinedly male perspective still shapes the prosecution of rape.

The jury in this case rejected the claim of Lawrence Gillette that the woman had enticed him, but Judge Thomas Bollinger insisted that she had "facilitated" the crime. Consequently, the judge granted Gillette probation before judgment instead of a prison term for a rape conviction.

According to Judge Bollinger, the sexual violation of the woman did not involve violence. Drawing an analogy between taking advantage of a woman when she was intoxicated and stealing a pocketbook left on a park bench, the judge suggested that the law should distinguish between rape and what he called "sexual exploitation." As he put it, "In a robbery, I grab your purse and push you. [But] if you get up and leave your pocketbook on the bench and I take it, [it's larceny]." Indeed, Judge Bollinger observed, having an attractive young woman unconscious and ripe for the picking is "the dream of a lot of males."

Unfortunately, this extremely constricted view of what constitutes violence against women has a long history. Judges in 19th-century America contended that unless a woman exhibited overt resistance to the violent behavior of an attacker, a charge of rape could not be substantiated. The Florida Supreme Court in an 1860 rape case argued, like Judge Bollinger, that "want of consent" did not necessarily imply "force or violence."

This limited view of coercion was so deeply entrenched that it could even override the racism that permeated the Southern legal system before the Civil War, leading to the release of African-American males charged with sexually assaulting white women.

Consider, for example, an 1832 decision that set free a black man indicted for attempting to rape a white woman. According to a Virginia jury, which was all male, the defendant "made the attempt to have such carnal knowledge of her when she was asleep, but used no force except such as was incident to getting to bed with her, and stripping up her night garment in which she was sleeping, and which caused her to awake."

Based on the conclusion of the jury that the defendant did not employ force, the court pronounced him innocent.

The Alabama Supreme Court held in 1857 that if a slave tried to have sex with a white woman while she was sleeping by pretending to be her husband, he could not be convicted of attempted rape. The jurists were clearly unhappy about their finding, but they saw no alternative, given the legal understanding of force that prevailed then in Alabama.

The court did not condemn the outcome of the case based on the belief that the woman's individuality had been violated. Instead, it drew an explicit parallel between virtuous womanhood and private property, viewing female chastity as a kind of precious commodity that could be traded on the marriage market. "Under our penal laws, one who obtains the goods of another under false and fraudulent pretenses is held guilty in the same degree as if he had feloniously stolen them," the Alabama judges commented. "He who contaminates female purity under like pretenses goes unwhipped of justice."

Several states, in response to judicial findings like this, enacted laws that punished a man for rape when he employed fraudulent measures to engage in sexual intercourse with a woman, either by pretending to be her husband or by administering some substance to her that prevented or weakened her resistance.

Implicit in such statutes was the assumption that respectable women would not consume alcohol or other such substances knowingly. Victorian assumptions about female morality played a key role in rape cases, as judges and juries sought to determine whether force had been used in gaining sexual access. Women who had previously engaged in an illicit sexual relationship were often presumed to have agreed to any subsequent sexual activity. "Now, who is more likely to consent to the approaches of a man," asked the Georgia Supreme Court in 1847, "the unsullied virgin and the revered, loved and virtuous mother of a family, or the lewd and loose prostitute, whose arms were opened to the embraces of every coarse brute, who has enough money to pay for the privilege?"

Judge Bollinger's criticism of the victim's behavior and his contention that she had "facilitated" the sexual attack shows how prevalent and deeply rooted these attitudes toward women remain. Underlying the emphasis on the character of the victim is a profound distrust of women's sexuality, the image of the woman as seductress.

Furthermore, the judge's attempt to distinguish between lack of consent and the use of force reveals how the crime of rape is still defined legally from the male viewpoint. In the words of Catharine MacKinnon, a feminist legal scholar, such a distinction overlooks the woman's perspective that "force is present because consent is absent."

Surely, if we are to consider ourselves a civilized society, it is time to embrace the view that violence involves any use of power -- physical or nonphysical -- that causes people pain or harm, or in some way violates them. Judge Bollinger ought to be taught this when he goes for his mandated counseling.

Peter W. Bardaglio is assistant professor of history at Goucher College.

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