Against Our Will: Men, Women, and Rape (84 page)

That the testimony of the female person should be examined with caution is the bottom line in all rape cases from the moment they are reported to that rarer moment, if ever, when they are actually brought to trial. The issue goes deeper than "oath against oath."
It
is based on the cherished male assumption that female persons tend to lie.

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Wigmore on Evidence, the American text defining evidentiary rules that is the unchallenged, esteemed and venerated classic treatise on the subject, asserts:

Modern psychiatrists have amply studied the behavior of errant young girls and women coming before the courts in all sorts of cases. Their psychic complexes are multifarious, distorted partly by in herent defects, partly by diseased derangements or abnormal in stincts, partly by bad social environment, partly by temporary physiological or emotional conditions. One form taken by these
complexes is
that of
contriving
false charges of sexual offenses by men [italics added].

Male fear of the false rape charge brought by a lying woman the old syndrome of Potiphar's wife-is written into the rape laws of various states in the form of special rules of evidence that are conspicuously absent from evidentiary rules governing other kinds of violent crime. Unless these rules of evidence can be met, a prosecutor cannot bring a case into court, even though he knows, the victim knows, and the rapist knows that a crime has been committed.

TESTIMONY:
Anyway, I did not have any witnesses, it was his word against mine. My case was thrown out of court. One of the cops was in the courtroom and he tried to be consoling and sympathetic. He said, "Oh, look, honey, at least we kept him in jail overnight. That ought to make you happy."

One safeguard embodied in the law for the protection of defendants is the chastity, or unchastity standard, that is appended to statutory rape provisions governing assaults against females "below the age of consent." The principle of statutory rape holds that resistance is immaterial in the case of a child below a certain age since, as the saying goes, "the law resists for her." The age of consent itself has varied dramatically from state to state, from a low of
7
years in Delaware ( changed to
16
years in
1973)
to a high of
21,
under certain conditions, in Tennessee. Most states set the age of consent somewhere between age
12
and age
16.
States with a high age of consent usually employ the chastity standard for the upper-age limits. In some states the burden of proving prior chas tity, that is, virginity, falls on the prosecutor; in others, the burden

of proving prior unchastity falls on the defense. Previous unchastity on the part of a young victim means there can
be
no conviction for statutory rape.

TESTIMONY: I was
11
years old. There was some kind of hear ing but all I can remember about it is that the lawyer gave my father explicit instructions about the kind of clothes I should wear. I was told to wear a Peter Pan collar.

Evidentiary rules governing the trial of offenders who have raped adult women are more complex than those governing statu tory rape. They, too, show marked inconsistencies from state to state. According to the Yale Law fournaI, "Evidence of the com plaining witness's consent to previous acts of coitus with the defendant may be admitted, via the theory of a 'continuing state of mind,' to prove her consent to the act in question. Also, evidence of her general moral character is usually admissible. Courts appar ently reason that a reputation of 'loose moral character' probably has a basis in fact and that a girl with such a character is more likely than not to consent to intercourse in any given instance."

All jurisdictions allow testimony regarding previous acts of intercourse between offender and victim. In addition, many states allow testimony as to specific acts of intercourse between . the vic tim and other men at other times in her life in an effort to prove her "loose moral character." Some states restrict admissible testi mony to a general appraisal of her "reputation for chastity in the neighborhood in which she lives" from any number of witnesses, to be answered by "good" or "bad." Still other jurisdictions allow testimony concerning a woman's prior sexual history on the grounds that such information has a bearing on her "credibility."

TESTIMONY: The suspect was arraigned but the grand jury re fused to indict him. I think it was because they saw that my boy friend was_ of another race. That made me a bad woman, right?

Either by statute law or by case law ( judicial decisions that set a precedent ) , several jurisdictions in the nation have sought to protect the male defendant against the mere word of a woman in court by requiring independent corroborative proof in addition to her testimony. The burden of corroboration means that the prose-

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cutor must prove, apart from the victim's word, that there was penetration (vaginal tears, bruises, sperm ) , that force was applied (body bruises, a weapon, torn clothing) , or that the man on trial was the true offender (an eyewitness to some phase of the rape) .

The sheer impossibility of providing total corroboration is best demonstrated by the sad history of New York City's conviction rate under the state's old corroboration statute. In
1971
there were
2,415
"founded" rape complaints in New York and the police managed to make
1,085
arrests. However, only
100
cases were ever presented to the grand jury, and these resulted in 34 indictments and only
18
convictions. Justice under the state's corroboration statute was an unbelievable, bizarre revolving door.
In
1974
New York dropped its corroboration requirement, as did Connecticut and Iowa. But a corroboration requirement, which at this writing is clearly falling out of favor in judicial circles, is not the only bulwark against conviction. Surveys show that prosecutors seldom bring a rape case to trial without some form of corroborative proof because, regardless of the state's evidence rules, juries simply refuse to convict without corroboration. ·

TESTIMONY: They trotted out my whole past life, made me go through all these changes, while he just sat at the defendant's table, mute, surrounded by his lawyers.
Of
course that was his right by law, but it looked like
I
was the one who
was
on trial.

While a woman's past sexual history may be trotted out for a jury's appraisal, a man's relevant sexual history, including prior charges and convictions for rape, may not be introduced in evi dence if he does not take the witness stand. And so, a jury might see before them a sexually active woman and be told tha t her sexual activity reflects on her character and credibility, but the man may not be similarly examined or judged.

On the face of it, rape laws appear almost reasonable in the interrelated areas of force, resistance and consent. According to the Yale Law Journal in
1952,
"Today most states hold. that the amount of resistance must be proportional to the circumstances of the attack, such as the relative strength of the parties and the futility of persistence. Other states require only that degree of 'good faith' resistance which makes the woman's non-consent rea sonably evident." Overt signs of physical damage, of course, may be

introduced to prove force; and verbal threats of bodily harm or the presence of a weapon, courts have held, are also sufficient indi cators of force.

But although evidentiary requirements on force and resistance may appear reasonable on paper, juries are influenced hardly at all by bruises and have the poorest understanding that the threat of violence might be sufficient to terrorize a woman into submission. While some defendants in a rape case claim that "some other guy did it," the standard defense is that there was no force and no resistance because the woman freely consented to the act. A jury's concept of "consent" is based almost exclusively on its interpreta tion of the events leading up
to
the rape, and its judgment of the victim's "moral character."

TESTIMONY:
I don't understand it.
It
was like I was the defen dant and
he
was the plaintiff.
I
wasn't on trial. I don't see where I did anything wrong.
I
screamed. I struggled. How could they have decided that he was innocent, that I didn't resist?

"Despite the supposed emotional aspects of a rape trial," Judge Lawrence H. Cooke told a meeting of the New York Bar Association, "the defense rarely ever waives a jury trial knowing that the jury is an ally, not an enemy. Juries, which are of ten male dominated, are extremely reluctant to convict."

Judge Cooke was speaking from personal observation. Of all kinds of criminal prosecutions, rape ranks second only to murder in the percentage of cases in which a defendant prefers to take his chances on a jury rather than elect to be tried by a judge alone. The defendants and their legal counsel are right. Juries are allies. Judges are made of sterner stuff. For one thing, a judge has a better grasp of criminal law; for another, he has seen many similar cases come before him and defense counsel gambits are no surprise. But juries are allies of male defendants and enemies of female complainants for reasons that run deeper than their poor grasp of the law or their predominantly male composition. They are composed of citizens who believe the many myths about rape, and they judge the female according to these cherished myths.

A vast, national study of the American jury system and how it functions was undertaken at the University of Chicago Law School by Harry Kalven and Hans Zeisel. Examining
106
cases of rape, and