Wednesday, Nov. 07, 2001

In my first-year criminal law class at Rutgers, we are now covering the unit on rape. Because the subject implicates the roles of gender and sexuality in a free society, it poses distinct challenges in the classroom.

Law professor Susan Estrich — the author of the book Real Rape — observed in 1986 that "[t]o examine rape within the criminal law tradition is to expose fully the sexism of the law." Though she wrote this fifteen years ago, attitudes have not evolved as much as one might have hoped. In particular, mainstream perceptions of acquaintance rape, or "date rape," remain extremely troubling.

Date-Rape Portrayed as a Trivial Offense

Last Friday morning, for example, I picked up the "Weekend" section of the New York Times. I thought it would be pleasant to read about something other than war and terror. I chose a review of a movie called "Tape," directed by Richard Linklater. The review was positive, and the movie sounded intriguing. As a professor teaching rape law and as a woman, however, I found the article quite disturbing.

"Tape," according to the review, is about two former high school classmates and the girl they both used to love. During the course of a tension-filled verbal power struggle between the men, it emerges that one of them raped the girl they had both dated.

Though the reviewer enjoyed the film, he nonetheless identifies what he sees as a flaw in the story: "As incisive as 'Tape' is," he says, "it is ultimately limited by the moral weight of the deed under consideration and the sexual politics swirling around the subject. This wasn't a murder, after all, but sex forced on a woman who admits she was in love with the man who took advantage of her . . . . To put it bluntly, it is very small potatoes."

Reading this movie review reminded me that many in the mainstream remain unconvinced that the rape of an acquaintance — what some call "date rape" — is a serious offense. Such a perspective presents a problem, because most rapes fall into this category.

Indeed, according to the U.S. Department of Justice, three out of four victims of sexual assault had a prior relationship with their respective attackers. If having had a relationship vitiates the severity of the offense, then the overwhelming majority of rape crimes are "small potatoes."

The movie reviewer in question was a man, but men are not the only people who take the view he expresses. Generation-X author Katie Roiphe became famous for writing that much of what prudish feminists call "rape" is not actually rape at all but just bad sex that women regret after the fact. Other writers like Camille Paglia have suggested that resisting a man's sexual advances does not convert his subsequent behavior into rape; it is all just part of the game.

Date Rape Perceived as a "Victimless" Crime

Rape is not unique among crimes in triggering controversy as to whether (in certain circumstances) it should qualify as a serious crime. Many have criticized laws that ban drug possession and prostitution, for example, and there are even organizations devoted to the repeal of these laws.

The difference, though, is that proponents of legalizing drug possession and prostitution can plausibly claim that these are "victimless" crimes, and that prosecuting them does more harm than good. Rape, by contrast, is never victimless. Those who perceive the crime as "small potatoes" thus demonstrate a profound failure of empathy.

The kind of rape that most people take seriously involves a man who attacks a woman he neither knows, nor has reason to believe has any interest in him. When it comes to date rape, however, people are skeptical of victims' allegations and dubious about the weight of the offense, even if it did occur.

The reason for such skepticism and doubt is the possibility that the victim might have liked her assailant. If she did, some believe, then having him force himself on her could not have been that bad.

As the movie reviewer described it, the rapist under such circumstances would have only "taken advantage" of his victim — the sort of manners offense that an eager salesperson might commit against a customer who really would have preferred not to buy the most expensive suit on the rack.

The Reality of The Crime of Date Rape

This view of rape, however, bears no relation to the reality of the crime for its victims. Indeed, the very types of attacks that people minimize may have the most devastating impact.

Studies have shown that rape victims who previously knew their attackers take longer to begin to recover from the psychological trauma of the crime than those who were raped by strangers.

Now that we live in an age of terrorism, this phenomenon should not surprise anyone. The closer we are to a familiar environment when tragedy strikes, the less safe we feel in what was previously "home." What is true for the physical spaces of our lives is equally true for our relationships.

This is one reason why many consider incest against children a worse offense than child molestation by a stranger. The law normally recognizes that the people in whom we place our trust bear an added responsibility not to betray it.

When someone we love, someone in whom we trust, hurts us, it is uniquely damaging because it shakes the foundations of our sense of security. When we would normally retreat to the familiar for comfort, it is the familiar that frightens us most.

We also come to doubt our ability to distinguish between friend and foe, between safety and danger — because after all, we were the ones who chose the company of our own enemy. (This further aggravates the insidious tendency of women to blame themselves for their own date rapes, on the logic that after all, they should have known better than to date such a man, or to dress provocatively, and so on.)

The movie reviewer was right that rape "after all" is not murder. The Supreme Court indeed held in Coker v. Georgia that capital punishment is an excessive penalty for rape, precisely because the rape victim survives. But the fact that rape is not murder does not diminish the gravity of the crime.

Like survivors of any disaster, rape victims continue to suffer long after the physical ordeal has passed. As one of my students said in analyzing Coker, rape is arguably worse than murder, because the attacker has, in some sense, both killed his victim and made a survivor out of her.

Teaching Rape Amidst the Controversy

A former colleague of mine once told me that he chooses not to teach rape law at all, because it is the one crime of which he is sure that there will be survivors in the classroom who could become upset by the material.

This is a real concern and one that I do not take lightly. I nonetheless resolve the matter the other way, because I think that cutting the material out of the syllabus communicates to students that this crime — one which alters forever the lives of its victims — does not "count" as much as manslaughter and robbery do.

By covering the law of rape, in all its complexity and controversy, I hope to convey to students that the crime is neither invisible nor insignificant. Rather, it is important and worthy of our attention, both as attorneys and attorneys-to-be and as members of a civilized society that aspires to equality for women.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. Her other columns on criminal law issues, and other topics, can be found in the archive of her columns on this site.

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