PERSPECTIVE ON RAPE : ‘A Trainload of Societal Baggage’

Despite the thousands of gallons of ink spilled on the William Kennedy Smith trial, and thousands of miles of videotape, women who report rapes will still be surrounded by the many of the same questions that swirled through the air during the Smith trial. What were they doing out late at night? Why did they accept an invitation to take a ride with a man? How did they fail to prevent the attack or to understand the gravity of the situation?

Rape cases are extremely difficult to prosecute. The basic underlying myth that prosecutors have to counter is that women who are raped ask for it. The myths abound: Women charge rape to protect their own reputation, to get attention, to get revenge.

Rape cases are hard because questions about the conduct of the complaining woman filter into a trial, directly or indirectly. The prosecutor labors not only under a burden of proof, but under a trainload of societal baggage. Recognizing the mountain that has to be scaled, it’s no wonder that some women don’t come forward to report rape.

Although many courts now recognize expert testimony that may explain rape victims’ behavior after their attacks, jurors still question whether the victims show “appropriate” emotions, whether they reported the attack quickly enough--or, as in the Smith case, whether they have a clear-enough memory of everything that happened the night of the attack. Every memory lapse is a suggestion that the entire incident was fabricated.

In one recent widely reported acquaintance-rape case involving a student at New York’s St. John’s University, some jurors said they acquitted the defendants because the victim couldn’t remember whether she had had two drinks or three.

Much was made throughout the Smith trial that men and women view sexual situations differently. How is a man to know when a woman doesn’t consent, the commentators ask? But most adults understand the meaning of no when it applies to a pay raise, a sales pitch or even a request to change television channels. Some men prefer to believe that when a woman says no to sex, she really means yes. Or in the case of date rape, even if she says no, she is to blame for letting herself get into the situation.

In one case prosecuted while I was Brooklyn district attorney, a young woman stopped by the home of her former boyfriend to pick up some clothes. The man tied her with a phone cord, beat her and forced her to have sex with him. Jurors convicted him of the assault but acquitted him of rape, saying she should have brought the police with her if she didn’t wish to have sex with him.

Little may have changed for the 100,000 women a year who will confront the dark side of male behavior--except that they now know a trial may be very trying, indeed.