When I was a young social psychologist and feminist in the 1970s, I never imagined that I would be asked to testify for the defense in a rape case. Rape laws at the time still included the “marital rape exemption,” with rape commonly defined as “an act of sexual intercourse with a female, not one’s wife, against her will and consent.” Men joked about this. “If you can’t rape your wife,” California state Sen. Bob Wilson said to a group of women in 1979, “who can you rape?”
Making the nation aware of the reality and brutality of rape — in a time of jokes, nonsensical theories and misogynist laws — was an arduous task, so it put me in a state of cognitive dissonance when a female defense attorney asked me to work with her on a case. Her client had been accused of raping a woman he had fired for incompetence.
The plaintiff had ready responses to the defense attorney’s questions. Why did she wait a month after her dismissal to file charges against him? She was traumatized. Why didn’t she report it at the time to anyone she knew, or a doctor? She was ashamed. Why didn’t she have emotional or physical symptoms then or afterward? The absence of symptoms is a symptom of “rape trauma syndrome.”
The defense attorney was not squeamish in questioning the plaintiff specifically about what she claimed had happened in her office. The boss had straddled her on her desk chair? But the chair had arms. He forced her out of the chair, with one arm around her neck, and dragged her to the door to lock it? But she was taller and heavier than he. While holding her with that arm around her neck, he then lifted her dress with his other hand and removed her pantyhose?
The courtroom was silent as everyone, male and female, realized what a challenge that would be with a willing woman, let alone a protesting one. The woman next to me said, “Pantyhose are nature’s chastity belt.” The defendant was acquitted.
That defense attorney taught me two important lessons: Don’t let ideology ever trump justice — for women who are wrongly disbelieved or for men who are wrongly accused — and don’t shy away from precise questions, to clarify what “rape” is when we talk about rape.
The Justice Department and the FBI have expanded the definition of rape that existed decades ago. Today, it is defined as forced penetration of any orifice with any part of the body or an object. Under that definition, rates of rape are about 3% to 4% of college women and a slightly higher percentage of women not in college. If you add “attempted rape,” the number goes up.
But if you add all of the behaviors now considered sexual assault — which include any unwanted acts such as “forced kissing,” “fondling” and “rubbing up against you in a sexual way, even if it is over your clothes” — the number rises to that now-famous 20%. That’s the figure President Obama used in his news conference launching the Justice Department’s crusade against the campus rape “epidemic.” It is also close to the number reported in the Assn. of American Universities’ latest survey of sexual assault on U.S. colleges.
On one level, numbers shouldn’t matter: Rape is ugly, it’s serious and can have devastating consequences for its victims. But if numbers are being used to generate a national panic or to institute university policies that may cause more harm than good, then we need to assess them as dispassionately as possible, without being accused of being “rape cultured” or supporting perpetrators.
Should young women be encouraged to believe that a clumsy act of fondling or kissing is the same thing, emotionally or physically, as forced penetration? For people who believe that misogyny and sexual violence are widespread and entrenched, the answer is yes; 20% seems like the right number for the percentage of assault victims. The culture today, they argue, encourages young men to feel sexually entitled to take advantage of women who are inebriated or otherwise unable to consent; look at those frat guys chanting, “No means yes.”
For others, 3% or 4% feels like a more accurate number, supporting their argument that claims of rape are exaggerated in a political climate that supports any allegation a woman makes, and that invites women to turn unpleasant or regretted sexual encounters into assault charges. The culture today, they say, encourages women to avoid taking responsibility for their part in sexual encounters. Look at the language we use when we blame men for “getting a woman drunk.” “Getting”? What is she, an empty vessel with no ability to say she’s had enough?
Our challenge is to accept what is valid in both perspectives. We can vigorously pursue the goals of justice for rape victims and fairness for accused perpetrators. We can understand that many acts of sexual assault are violent, and appreciate the subtleties of sexual communication that can create mischief and misery.
It’s the subtleties that cause such controversy. When many people think of rape, they imagine two strangers, but 85% of all reports of rape occur between people who know each other. Some of these encounters are unambiguously coerced, but many are not. Sex researchers repeatedly find that people rarely say directly what they mean, and they often don’t mean what they say. They find it difficult to say what they dislike because they don’t want to hurt the other person’s feelings. They may think they want intercourse and then change their minds. They may think they don’t want intercourse and change their minds.
They are, in short, engaging in what social psychologist Deborah Davis calls a “dance of ambiguity.” Through vagueness and indirection, each party’s ego is protected in case the other says no. Indirection saves a lot of hurt feelings, but it also causes problems. The woman really thinks the man should have known to stop, and he really thinks she gave consent.
Davis and her colleagues Guillermo Villalobos and Richard Leo have suggested that the primary reason for the many “he said/she said” reports that make the news is not that one side is lying. Rather, each partner is providing “honest false testimony” about what happened between them. Both parties believe they are telling the truth, but one or both may be wrong because of the unreliability of memory and perception, and because both are motivated to justify their actions.
By far, the most well-traveled pathway from uncomfortable sexual negotiations to honest false testimony is alcohol. For some women, alcohol is the solution to the sex decision: If they are inebriated, they haven’t said yes, and if they haven’t explicitly said yes, no one can call them sluts. But for both parties, alcohol significantly impairs the cognitive interpretation of the other person’s behavior. Men who are drunk are less likely to interpret nonconsent messages accurately, and women who are drunk convey less emphatic signs of refusal. And alcohol severely impairs both partners’ memory of what actually happened.
When trying to reduce sexual assault, labeling all forms of sexual misconduct, including unwanted touches and sloppy kisses, as rape is alarmist and unhelpful. We need to draw distinctions between behavior that is criminal, behavior that is stupid and behavior that results from the dance of ambiguity.
Carol Tavris is a social psychologist and the coauthor, with Elliot Aronson, of “Mistakes Were Made (but Not by Me).”