When a Woman Just Says ‘No’

In 1987, a 19-year-old female college student walked into the room of a 20-year-old male student named Robert Berkowitz, looking for his roommate. The roommate wasn’t home, but Berkowitz seized the opportunity of her presence to have sex.

He put her on his bed.

She said “no.”

He straddled her.

She said “no.”

He pulled down her sweat pants, then removed her underwear.

She said “no.”

He penetrated her.

She left his room in tears and immediately reported the assault.

Was she raped? Not according to the all-male Pennsylvania Supreme Court, which proclaimed last week that “No” was not enough. I suppose the court, which upheld a lower court’s decision to toss out Berkowitz’s rape conviction, might have reinstated it if she had only screamed and fought or been badly injured.

Too bad for her. She thought she was doing the right thing by not resisting. And look what she gets. “I did what we were supposed to do, what everyone taught us to do in college,” she said. “If we were being raped, say ‘No’ and don’t fight, because you could end up dead.”

And then, of course, she would have been the perfect rape victim.

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I’ve been waiting for a case like this to come along.

All this spring, we were barraged by stories about various communities in a dither, protesting the paroles of rapists into their midsts. Concerned citizens decried rapists as the lowest of the low. They spoke of keeping neighborhoods safe from this form of human scum.

But something didn’t feel right to me. The whiff of hypocrisy was in the air.

After all, support is sometimes the last thing a community gives to a woman who claims to have been raped, especially by someone she knows. People don’t believe her: Maybe she was asking for it. What was she doing in his hotel room, anyhow? Why try to ruin a nice young man’s life over one small mistake?

A tiresome amount of time and ink have been devoted to debunking the notion of “date rape.” In print and on the air, date rape has been derided as an invention of campus feminists to excuse a woman who willingly has sex, then regrets it the morning after.

That view is attractive, I think, because it is easier to believe a woman is capable of lying to protect her reputation or to cover her shame than to accept that a young man with a bright future is capable of something we consider so heinous. (Never mind that women often do not physically resist because they believe the rapist--that is, their friend, their acquaintance , their date --will listen to them.)

Fortunately for the women of California, our state Supreme Court has a firmer grasp than the Pennsylvania court on what constitutes rape. Last month, the California court upheld the conviction of a man who raped a woman as she slept at a friend’s house the night before her 1990 wedding. Although the rapist--the fiance of a friend--was unarmed, the woman said she was too afraid to struggle or cry out. Her fear, said the court, made it rape.

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Last month, Leanora Annette Wong of Huntington Beach was raped and murdered. Police have arrested three-time convicted rapist Edward Patrick Morgan Jr., a man she met in a bar. Morgan was accused of a fourth rape in 1993, but prosecutors did not file charges because, they said, the woman gave police inconsistent statements.

In its coverage of the Wong case, The Times interviewed sociologist Gary LaFree, author of “Rape and Criminal Justice.”

LaFree was asked about the challenges of prosecuting rape cases.

Cases involving strangers were easiest, he said. Cases involving acquaintances, which turn on whether consent was given, are the toughest.

“The best predictors or verdicts in our data,” LaFree said, “had to do with our victims’ moral character. If the victim had been drinking or using drugs, or had been having sex outside marriage--or was even assumed to have been doing those things--they were less likely to get convictions. Even things like a gun were less important than the victim’s moral character.

“Almost everybody involved in the system is operating on stereotypes. They’re looking for stranger cases, they’re looking for squeaky-clean victims, they’re looking for cases where an offender breaks into a house.”

The Orange County deputy district attorney who declined to prosecute Morgan in that fourth rape case last year agreed with LaFree that it’s much harder to prove rape when the assailant knows the victim.

“I always tell juries that a woman always has a right to say no,” he said, “but that doesn’t always fly.”

I like an idea advanced in 1992 by the New Jersey Supreme Court. The question, said the court, is not whether a woman said “no.”

The question is whether a woman said “yes.”

* Robin Abcarian’s column is published Wednesdays and Sundays.