Susan Estrich. Harvard University Press, $15.95. The strange man held an ice pick to Susan Estrich's throat. "Push over, shut up, or I'll kill you,' he said. She obeyed. After he raped her, he drove away in her car, never to be caught.
Thirteen years later, Estrich's fear and anger still linger. Her memory of being violated animates her teaching of sex discrimination at Harvard Law School (where I was her student) and, now, a provocative book. In Real Rape, Estrich focuses not on violent attacks by strangers but on what she calls "simple rape': a man the victim knows--a date, ex-boyfriend, or estranged husband--bullies or tricks her into sex against her will, without brandishing weapons or breaking bones. Simple rape, Estrich argues, is still real rape and deserves punishment.
Few people question the wisdom of locking up men who leap from the bushes with ice picks. But most men, and many women, assume that a little psychological, and even physical, arm-twisting is a legitimate part of the mating game. Estrich disagrees. Forced sex wounds its victim, even if she knows the man and unwittingly has put herself in a vulnerable position. That goes for the cheerleader who gets drunk at a fraternity party and the woman whose date simply won't take "no' for an answer after she invites him up for coffee. A woman ought not to have to risk injury by attacking her attacker, she adds.
Estrich acknowledges that recent legal changes have favored rape victims. "Shield' laws prevent defense attorneys from introducing irrelevant evidence of a victim's past sexual conduct. Courts and legislatures have eased rules that a victim must notify police immediately after being attacked and that her testimony must be corroborated. The demand that women demonstrate "utmost' (read: superhuman) resistance in the case of simple rape has become, in most instances, a requirement of "reasonable' resistance.
Despite these adjustments, Estrich contends that courts continue to distrust women who claim they were raped under any but the most harrowing circumstances. Victorian notions that respectable ladies would prefer to die than have their virtue sullied intertwine with pseudo-Freudian truisms about women's "unconscious desire' to be forcefully dominated. Estrich skillfully dissects the case law to reveal how such dubious and contradictory assumptions go unchallenged in court. More important, these assumptions--filtered through the actions of trial judges, lawyers, and law enforcement officials--reinforce the popular view that most victims of simple rape "asked for it.'
Estrich offers many convincing examples, including this 1984 case from North Carolina: The victim's former boyfriend told her he had a "right' to have sex with her. He added that he would "fix' her face to show he "was not playing.' During their previous "consensual' relationship, he had beaten her, and she had passively engaged in intercourse. Despite the victim's protest that the relationship was over, the man undressed her, pushed her legs apart, and penetrated her. She cried.
The North Carolina Supreme Court overturned the man's conviction. The court noted that the intercourse was against the woman's will, but it found that the defendant had not used "force,' as proven by the victim's failure to resist more strenuously. The court, says Estrich, scorned the woman's reaction as that of ""sissies' in playground fights. It is the reaction of people who have already been beaten, or never had the power to fight in the first place. It is . . . the most common reaction of women to rape.'
Estrich urges courts to shift their attention from how much force was used and whether it was resisted to the defendant's intent. Surprisingly, American courts rarely debate intent in rape cases, preferring to focus on overt acts. But Estrich would convict a man for "negligently' ignoring a woman's refusal to have sex. If the defendant acted "unreasonably,' as defined by the court, he could not claim that he mistook "no' for a playful "yes.'
Criminal law punishes other negligent behavior. Negligent homicide or manslaughter can lead to a prison sentence. Estrich predicts that it would take only a few rape convictions under a negligence standard for men to get the message and begin respecting a woman's right to refuse sexual advances.
Estrich has drawn an audacious line in the dirt. Her solution, however, contains a major flaw: the definition of "reasonable' behavior. A defendant could argue that where he comes from, everyone expects a man to keep asking, even when a woman says no. He kept asking his girlfriend, and she kept saying no, until finally she didn't say anything and they had sex. No physical force. Would a typical jury call that unreasonable and therefore rape? Should genuine confusion send a man to prison?
It's not too harsh to call Estrich's solution a lawyer's answer, with all the slipperiness that implies. Negligence and reasonableness have little meaning apart from a particular social context. Estrich envisions a "reasonable man [of] the eighties' who has shed all vestiges of the species' sexist past. She doesn't argue that this man actually exists but implies that changes in the law will contribute to his emergence. Details of the mutation remain a mystery.