Victim's male acquaintance breaks into her apartment and grabs her. He is in a rage because she had refused to go out with him. He roughs her up a bit, including belting her across the face and throttling her. He then forces her at gunpoint to drive him to his house, where he keeps her overnight. He specifically tells her that he will shoot her if she tries to escape. He is distraught and talks repeatedly about how much he loves her. He talks about wanting to live with her in Mexico. Her survival strategy was to pretend to go along with his plans. She wanted to gain his trust. When he had sex with her that night, she "went along with it" in order to survive.
After finally escaping, she went to the police. She expected that he would prosecuted for kidnapping, assault and threatening. She was, however, shocked when I brought a rape charge against him. She didn't feel that she had been raped because she had "gone along" with the sex. When I questioned her, however, she said that she had "gone along" with it because she thought (quite reasonably under the circumstances) that he would blow her brains out otherwise. But, to my shock, in her mind, she herself felt that it was not a rape because she had not resisted in any way. (Under the law in my jurisdiction, sex that occurs during the course of a kidnapping is rape, and even if that were not so, I think the physical threat against her was sufficient to make this a rape.)
I think the majority of us would not hesitate to say that this event was a "rape." But I wonder specifically about why the woman here isn't one of them. And more generally, I'm frightened by an admittedly anecdotal trend that I'm observing where men--or at least younger men--are more likely to unambiguously call something a rape than women are.
In my Philosophy of Law class last term, we discussed a Maryland rape case called State v. Rusk (289 Md. 230, 424 A.2d 720 (1981)). Here are the facts of that case, as reported by the Maryland Court of Appeals:
At the trial, the 21-year-old prosecuting witness, Pat, testified that on the evening of September 21, 1977, she attended a high school alumnae meeting where she met a girl friend, Terry. After the meeting, Terry and Pat agreed to drive in their respective cars to Fells Point to have a few drinks. On the way, Pat stopped to telephone her mother, who was baby sitting for Pat's two-year-old son; she told her mother that she was going with Terry to Fells Point and would not be late in arriving home.
The women arrived in Fells Point about 9:45 p.m. They went to a bar where each had one drink. After staying approximately one hour, Pat and Terry walked several blocks to a second bar, where each of them had another drink. After about thirty minutes, they walked two blocks to a third bar known as E. J. Buggs. The bar was crowded and a band was playing in the back. Pat ordered another drink and as she and Terry were leaning against the wall, Rusk approached and said "hello" to Terry. Terry, who was then conversing with another individual, momentarily interrupted her conversation and said "Hi, Eddie." Rusk then began talking with Pat and during their conversation both of them acknowledged being separated from their respective spouses and having a child. Pat told Rusk that she had to go home because it was a week-night and she had to wake up with her baby early in the morning.
Rusk asked Pat the direction in which she was driving and after she responded, Rusk requested a ride to his apartment. Although Pat did not know Rusk, she thought that Terry knew him. She thereafter agreed to give him a ride. Pat cautioned Rusk on the way to the car that "'I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride;'" and he said, "'Oh, okay.'" They left the bar between 12:00 and 12:20 a.m.
Pat testified that on the way to Rusk's apartment, they continued the general conversation that they had started in the bar. After a twenty-minute drive, they arrived at Rusk's apartment in the 3100 block of Guilford Avenue. Pat testified that she was totally unfamiliar with the neighborhood. She parked the car at the curb on the opposite side of the street from Rusk's apartment but left the engine running. Rusk asked Pat to come in, but she refused. He invited her again, and she again declined. She told Rusk that she could not go into his apartment even if she wanted to because she was separated from her husband and a detective could be observing her movements. Pat said that Rusk was fully aware that she did not want to accompany him to his room. Notwithstanding her repeated refusals, Pat testified that Rusk reached over and turned off the ignition to her car and took her car keys. He got out of the car, walked over to her side, opened the door and said, "'Now, will you come up?'" Pat explained her subsequent actions:"At that point, because I was scared, because he had my car keys. I didn't know what to do. I was someplace I didn't even know where I was. It was in the city. I didn't know whether to run. I really didn't think, at that point, what to do.
"Now, I know that I should have blown the horn. I should have run. There were a million things I could have done. I was scared, at that point, and I didn't do any of them."
Pat testified that at this moment she feared that Rusk would rape her. She said: "[I]t was the way he looked at me, and said 'Come on up, come on up;' and when he took the keys, I knew that was wrong."
It was then about 1 a.m. Pat accompanied Rusk across the street into a totally dark house. She followed him up two flights of stairs. She neither saw nor heard anyone in the building. Once they ascended the stairs, Rusk unlocked the door to his one-room apartment, and turned on the light. According to Pat, he told her to sit down. She sat in a chair beside the bed. Rusk sat on the bed. After Rusk talked for a few minutes, he left the room for about one to five minutes. Pat remained seated in the chair. She made no noise and did not attempt to leave. She said that she did not notice a telephone in the room. When Rusk returned, he turned off the light and sat down on the bed. Pat asked if she could leave; she told him that she wanted to go home and "didn't want to come up." She said, "'Now, [that] I came up, can I go?'" Rusk, who was still in possession of her car keys, said he wanted her to stay.
Rusk then asked Pat to get on the bed with him. He pulled her by the arms to the bed and began to undress her, removing her blouse and bra. He unzipped her slacks and she took them off after he told her to do so. Pat removed the rest of her clothing, and then removed Rusk's pants because "he asked me to do it." After they were both undressed Rusk started kissing Pat as she was lying on her back. Pat explained what happened next:"I was still begging him to please let, you know, let me leave. I said, 'you can get a lot of other girls down there, for what you want,' and he just kept saying, 'no'; and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point -- I didn't know what to say; and I said, 'If I do what you want, will you let me go without killing me?' Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, 'If I do what you want, will you let me go?' And he said, yes, and at that time, I proceeded to do what he wanted me to."
Pat testified that Rusk made her perform oral sex and then vaginal intercourse.
Immediately after the intercourse, Pat asked if she could leave. She testified that Rusk said, "'Yes,'" after which she got up and got dressed and Rusk returned her car keys. She said that Rusk then "walked me to my car, and asked if he could see me again; and I said, 'Yes;' and he asked me for my telephone number; and I said, 'No, I'll see you down Fells Point sometime,' just so I could leave." Pat testified that she "had no intention of meeting him again." She asked him for directions out of the neighborhood and left.
The trial court convicted Rusk, the Court of Special Appeals reversed the conviction by a vote of 8-5, but the Court of Appeals reinstated it by a vote of 4-3.
In class, we discussed whether or not Rusk should have been convicted based on these facts. All the men in the class said yes, absolutely. The women, however were split. They offered many of the same explanations that the woman in the first case presented--she didn't actually resist, she could have done other things, and in this case that being "scared" wasn't enough to make it rape. Again, I find this to be a relatively clear cut case. But why was it that the primary dissents came from the women in the classroom?
This pattern flies in the face of most recent feminist scholarship. They tell us that letting women tell their stories and privileging their perspectives will provide insights into criminal law that currently are missing. Classically, feminism posits that it is men that generally "don't get" rape, or minimize it, or restrict applying it to only the most extreme cases. I don't dispute that as a general matter, but these recent observations do seem to throw a wrench into the equation. Part of it may be that a male student at a progressive liberal arts college feels compelled to assure his peers that he is "tough on rape", much like a Democrat has to go to great lengths to be "tough on crime." No man wants to be that creepy guy defending Rusk here. Even if privately some might defend or rationalize him (and there is no real way to determine who is genuinely appalled and who is performing), there are significant social costs that are incurred when a man steps out to defend him normatively. That may explain part of the problem, but I don't think it answers everything. While it may tell why the male opinion is so uniformly condemning, it doesn't explain the deep rift amongst female students. At some level, there has been a divergence from the classic thought on the matter. Women are denying that rape happened even as the men around them are adamant that it occurred.
Feministe quotes a male attorney who is playing the role of "creepy guy" defending the rapist. And I don't dispute that such men exist. I'd even agree that they represent a "mainstream" viewpoint, tragic as that is. His argument that the views of these women shows that the above actions don't constitute rape is BS, and the Feministe gals are right to shoot it down. But in doing so, they also dodge an issue that does have to be addressed. Community standards shouldn't act as rape shields. But where it is true that the community of women don't view naked sexual violence against them as "rape," that poses deep problems for the feminist enterprise as a whole. And where men are actually more aggressive in pointing out and pursuing the act than are women, that suggests that our anti-rape and women's rights strategies as a whole are coming at this from the wrong way, or at least are incomplete.
The question is: what social signals are we sending to women that are causing this misperception? And of course, how can we correct them? But it is also: what has caused men to re-evaluate rape in manner more consistent with the feminist enterprise? And how can we harness that power to bring about broader change?
My thesis on gender issues (and I make similar claims on race) is that there exists a cadre of men who, to some extent, buy what the feminists are saying about rape and other issues and who are willing to lend their support to progressive remedies to the problem. However, the growing focus on standpoint theory and feminism solely from the perspective of women ("the victims") has alternatively discouraged, disoriented, and/or disempowered these men from feminist political movements. They simply don't know what their "place" is in the fight. And with the stakes so high, and the knowledge that one mis-step will blow their progressive bona fides like a landmine, they find it safer to cheer passively from the sidelines rather than take a frontline position in the battle. I don't question the massive benefits that standpoint theory and perspective-based feminism has brought to the philosophical table--indeed, I'd credit many of their breakthroughs with enabling the sort of feminist-friendly consciousness one sees in many progressive males today. It is a sad irony, not an inevitable consequence, that such theories are now drinking from their own skulls and hampering the very type of political coalitions they so desperately need.
As such, I call for men everywhere to examine what they can do as men to end sexist oppression, in rape and in other issues. This isn't designed to compete with female efforts to do the same, but compliment them. In a patriarchal society, men possess most of the power--which may be bad holistically, but gives us disproportionate ability to affect change in the short-term. If rape is an area where we can do more than our female peers, then we have an obligation to advocate on rape. This makes sense from a feminist perspective anyway--the end goal always has been (or should be) to be our brother and sister's keeper, not to push each other away. An independent effort by men to strike out in favor of women is a critical step toward realizing that dream.