estrich

Susan Estrich

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"Did you know him?" 

"No."

"Oh, then you were really raped."

The first time I had this conversation was in the back seat of a Boston police car in 1974. I've been having it ever since. What could it possibly mean to be raped but not really raped?

I answered that question myself. As a young professor at Harvard, I read every single rape case that had ever been reported up to that time. The answer was very simple: When you are forced by someone you know to have sex without your consent, much less someone appropriate, it's not really rape because the police won't treat it that way; prosecutors won't treat it that way; and juries won't treat it that way.

Which is one of the reasons rape has traditionally been one of the most underreported serious crimes in America in repeated national crime surveys. And it's why, when asked whether they have ever been forced to have sex without their consent or without being capable of giving consent, 1 in 5 women say yes, even when they themselves don't count it as rape.

"Rape Not Rape to Most of Its Victims," one headline screamed after yet another survey revealed enormous gaps.

To be raped by someone you know, by someone who has power over you, by someone who could destroy your life, is rape, and the injury it inflicts for the future may be even greater because we've all been taught to blame ourselves. Blame the victim.

In fact, non-stranger rapes comprise at most 15% of all reported rapes. So for much of our history, we have spared appropriate men from accountability as long as it wasn't black-on-white rape (for which death was imposed) or gang rape.

"Is there anything about your past that you wouldn't want some defense attorney throwing at you in court?" That conversation also began in the back seat of the police car. It infuriated me almost as much. What does that have to do with whether this man raped me?

Last I checked, rape reform was enacted in virtually every state in America. The new laws, however, were twisted by many judges so as to exclude not only evidence of a woman's past sex life but also that of the alleged rapist, even if those prior acts presented a similar pattern. Thus the difference between Cosby 1 and Cosby 2. In Bill Cosby's first trial, all testimony from women other than the subject of the case was excluded, even though those witnesses would have substantiated her claims. The jury hung. In the second trial, that testimony was admitted. The jury convicted.

By the time of the Harvey Weinstein trial, more and more courts had recognized that a pattern of abuse of other women was, in fact, relevant to the charge of abuse by another woman, just as her past complaints of rape, not her consensual sex life -- no matter how many partners -- was relevant.

I called it the "nuts and sluts" defense. When men could no longer argue that women complained of rape to hide their own sexual indiscretions, they turned to other ways to put the victim on trial, using the women's sexual past and their psychiatric records -- the very kind of counseling that was intended for their benefit.

But that didn't defeat Weinstein's apparently fervent belief that the nuts-and-sluts defense would still work in his favor, that he could defeat the charges by putting the women on trial and convincing the jury that given what happened afterward, or before, or again, his acts weren't really rape. He failed.

One might be a nut; two might be a slut. But three? Three is a real problem.

When women stand up for one another, it's the man who ends up on trial, not the individual victim. And while this certainly doesn't mean that old presumptions are all gone, it is the biggest defeat of the old rules that I've seen since my time in that police car.

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