The rule of law in rape cases: still mostly a man's word and world

Real Rape, by Susan Estrich. Cambridge, Mass.: Harvard University Press. 160 pp. $15.95. When a young student was raped in 1974, the police told her she was fortunate that it had been a ``real rape'': The rapist had been a stranger and he had been carrying an ice pick. If he had been a friend or an acquaintance or a husband and had not been carrying a deadly weapon, it would have been termed a ``simple rape,'' and the chances for conviction would have been much slimmer.

That student, Susan Estrich, became a lawyer and a law professor at Harvard University. She has used that incident as a jumping-off point for her book, ``Real Rape,'' which takes a look at how the law has judged cases of rape by acquaintance and been found not only wanting, but also inconsistent, cruel, and unjust.

Estrich tracked rape cases from the 17th century to the present and determined that the decisions of male judges (women were prohibited from practicing law for most of that time) reflect society's feelings toward women. The law, on this issue, she says, is indeed not neutral.

According to Estrich, laws about rape were designed to protect men from false charges made by vindictive women. In the 17th century, English Lord Chief Justice Matthew Hale warned that rape is a charge ``easily to be made and hard to be proved, and harder to be defended by the party accused, tho' never so innocent.'' The burden of proof was on the woman to prove her own lack of guilt, not on the man to prove that he had not committed a crime. Hale's distrust of women translated into a clear set of presumptions against women that carried forward into this century.

In the 19th century, judges found men innocent when women did not manifest ``utmost resistance,'' even though they were living in a time that required women to be passive and retiring in every other facet of life.

By the 1950s and '60s, more reasonable standards prevailed. But the suspicion that a woman might be lying continued, now bolstered by Freudian theory. An often-cited Yale Law Journal article of that time basically said that women don't know what they want, and that they enjoy the struggle. The Columbia Law Journal in the late '60s asserted that the victim's word needed corroboration because, ``Since stories of rape are frequently lies or fantasies, it is reasonable to provide that such a story, in itself, should not be enough to convict a man of a crime.''

By the '70s, corroboration had generally been eliminated as a formal requirement, a woman's past sexual behavior wasn't always held up for inspection, and insistence that the victim file a ``fresh'' (immediate) complaint had loosened somewhat. Rape was now defined as an instance in which the man ``compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping....''

In the '80s, there's still work to be done. Some laws say that if a defendant believes (however foolishly) that the victim is consenting, then he is not guilty. In most states it is still not against the law for a husband to rape his wife.

Estrich admits that rape when the victim and perpetrator know each other is a complicated issue. Some of the examples she gives show ghastly mistakes in women's judgment. In one, a woman who had been raped by her ex-boyfriend showed up at the district attorney's office wearing tight jeans and a see-through blouse.

But Estrich's point is that suspicion about women's motives in pressing perhaps false rape charges was taken so far that the way rape by acquaintance has been treated is without precedent in criminal law. Only in rape cases is a woman's ``no'' not sufficient grounds for conviction. With trespass, merely putting up a ``No Trespassing'' sign is enough. Robbery cases where the defense has argued that the victim didn't put up enough of a fight - and therefore it was not robbery - have not been successful.

The only similarity is in how the law treats spectators at a baseball game. If you go, the law reasons, you might get hit by a fly ball. That's the risk you take. Similarly, Estrich states that a woman who dates a man or talks to him ``is held absent affirmative evidence (resistance) to the contrary, to assume the risk of unwanted sex in the same way that baseball fans assume the risk of fly balls.''

``Real Rape'' is a vital book for judges, lawyers, law students, legislators, police officers, and those working in rape crisis centers. It is not an easy book for the average reader. However dispassionately and discreetly the examples are set forth, they are nonetheless uncomfortable to read. And the language may be an initial barrier for those not legalistically minded. But those who can tough it out until the terminology becomes clear will be rewarded by a better understanding of the legal system.

Estrich's writing is calm, logical, eloquent, and often scathingly ironic. On its own terms, her book is valuable for its untangling of the various threads of illogic that have formed the centuries-old web that has prevented justice from being served - for men as well as women.

Catherine Foster is on the Monitor staff.