World Scofflaw : Rape and Common Sense

In the last decade California and other states have enacted much progressive legislation reforming rape laws. The new laws generally recognize the realities confronting potential or actual rape victims, acknowledge more fully that rape is a crime of violence rather than an act of sexual passion, and attempt to make courts handle rape cases with the same standards that they use on other criminal offenses. The California Supreme Court has now unanimously affirmed a linchpin of that reform effort--a 1980 state law saying that victims do not have to show that they physically resisted an attack.

Studies from the Department of Justice and the National Institute of Law Enforcement and Criminal Justice conducted before that law was passed found that the danger of physical injury, beyond that of the act of rape itself, doubles when victims resist their attackers. In her opinion for a unanimous court, Chief Justice Rose Elizabeth Bird said that sociologists still argue about the wisdom of resisting or not resisting a potential rapist, but added that it was certainly possible that resistance could increase the risk of serious harm. It should be, in short, a matter of individual judgment.

The Santa Monica Rape Treatment Center, which was the moving force behind the legislation upheld last week, discovered for itself the reality behind the numbers. Its staff found that many women were brutalized even more severely than by the rape itself because they tried to fight off attackers; if they did not resist, the law was not always on their side. Before 1980 the law said in effect that the victim must have resisted unless she was threatened with great bodily harm or her efforts were overcome by physical force. The law did not recognize legitimate, nonviolent circumstances that would prevent resistance.

Some victims froze with fear and were unable to resist, or knew that resistance was futile and might bring harm to others around them such as children sleeping or playing nearby. For whatever reason, their fear--or common sense--worked against them in court. The Legislature, led by then-Assemblyman Mel Levine (D-Santa Monica), voted clearly to eliminate that discrimination. It is reassuring to see the Supreme Court uphold that most crucial victory for society and common sense.