PERSPECTIVE ON RAPE : Here, the Odds Are With Women : California courts have become more protective of the accuser, and the conviction rate has risen past 92%.

Rape victims should not be disheartened by the acquittal verdict in William Kennedy Smith’s trial, nor should potential rapists feel encouraged. In fact, a woman whose rape case makes it to a felony courtroom in California has a better than 90% chance of winning. One reason is to be found in the precedents set by court rulings over the past decade and a half. Consider the interesting 1986 case of People vs. Barnes:

Around 10 p.m. on May 27, 1982, Joaquin Barnes called Marsha X and invited her to his house to celebrate his parents’ having come into a sum of money. Marsha at first declined, but a couple of hours and two telephone calls later, she agreed to meet Joaquin. She told him that she wanted to buy some marijuana from him.

Joaquin was waiting outside and it was cold. After a couple of minutes, he persuaded Marsha to come inside. They talked for about 15 minutes, a conversation she described as “normal chatter.” Then Joaquin hugged Marsha. She pushed him away and told him to stop. She says she didn’t take him seriously; she felt he was only “coming on” to her.

But when Marsha tried to leave, Joaquin turned angry. They argued. Joaquin “fussed” at Marsha, she testified, and began to “lecture” her. He threatened her, told her he was a man and she couldn’t treat him like a kid. He displayed and flexed the muscles in his arms. He was, said Marsha, “ranting and raving.” He grabbed her sweater, told her he could pick her up with one hand and throw her out. Then his tone changed and he became affectionate.

When Marsha did not return his affection, he became angry. He threatened her again: “I can make you do anything I want.”

Marsha said she was frightened, that she felt she was in the room with a “psychotic person.” At this juncture, she said, she decided to “play along” and feign compliance with Joaquin’s desires. Marsha took off her clothes, got into bed with Joaquin, exchanged kisses with him, had sex and fell asleep.

When she awakened, Marsha returned home (Joaquin drove her) and immediately called a hospital, where she was referred to a sexual trauma center and examined for venereal disease. Although she feared reporting the incident to the police because “it was my word against his,” she did, and the prosecutor brought charges against Joaquin.

Marsha was right about one thing. Joaquin told a completely different story, a tale of consensual sex in which Marsha returned his hugs and kisses. But the jury believed Marsha and convicted Joaquin of rape and false imprisonment.

Joaquin appealed. The California Court of Appeal reversed his conviction as “unsupported by substantial evidence.” Marsha had offered no physical resistance and there were no marks or bruises to prove that she had been raped. The attorney general petitioned for review by the California Supreme Court.

In a unanimous decision authored by then-Chief Justice Rose Bird, the court ruled that a woman does not have to resist to prove rape. If a jury believes, after hearing both the accuser and the defendant testify, that the woman felt threatened by force, even if no force was actually used, that is enough to sustain a conviction. In this case, the jury believed the accuser, even though, according to her own testimony, she went to the defendant’s home at 1 a.m. to buy marijuana, voluntarily went inside and fell asleep after having had unresisting sex with Joaquin.

Who will a jury believe? No doubt, as in the William Smith trial, social class distinctions matter. A well-spoken, educated defendant from a good family will make a better impression on a jury than someone who seems like a menacing person. But such impressions also matter to bank loan officers and employers, as well as to juries. Life isn’t always entirely fair.

Nevertheless, the statistics show that the law has become increasingly protective of women who bring rape charges. Conservative prosecutors and police and liberal feminists have joined to eliminate courtroom advantages long enjoyed by those accused of rape. Most states now have “rape shield” laws that disallow testimony about the previous sexual activity of women who charge rape.

In 1975, the California Supreme Court struck down the ancient and mandatory “cautionary” instruction to the jury--that rape is a charge “easily made and, once made, difficult to defend against, even if the person accused is innocent.” Questioning that assumption, the court found that, of the FBI’s four “violent crime” offenses--murder, forcible rape, robbery and aggravated assault--”forcible rape has the highest rate of acquittal or dismissal.” The court said that forcible rape had “an acquittal rate second only to bookmaking.”

That was 1975. In the years since, the law and the statistics have radically shifted. Recent statistics (1989) show a 92.3% conviction rate for forcible rape in California, and a 92.9% conviction rate for homicide.

So, the outcome of one publicized case in Florida should not be interpreted as representative of a national pattern. Although the charge of rape brought by a woman who dated the accused or was well-acquainted with him can be hard to prove--it is indeed her word against his--her word often convinces juries. In California, as the statistics show, the odds are in her favor by nearly 10 to 1.