When Is It RAPE?

He was a classmate, a co-worker or a date. He says she wanted it. She calls it a crime. A battle of the sexes rages over drawing the line.

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From a purely legal point of view, if she wants to put her attacker in jail, the survivor had better be beaten as well as raped, since bruises become a badge of credibility. She had better have reported the crime right away, before taking the hours-long shower that she craves, before burning her clothes, before curling up with the blinds down. And she would do well to be a woman of shining character. Otherwise the strict constructionist definitions of rape will prevail in court. "Juries don't have a great deal of sympathy for the victim if she's a willing participant up to the nonconsensual sexual intercourse," says Norman Kinne, a prosecutor in Dallas. "They feel that many times the victim has placed herself in the situation." Absent eyewitnesses or broken bones, a case comes down to her word against his, and the mythology of rape rarely lends her the benefit of the doubt.

She should also hope for an all-male jury, preferably composed of fathers with daughters. Prosecutors have found that women tend to be harsh judges of one another -- perhaps because to find a defendant guilty is to entertain two grim realities: that anyone might be a rapist, and that every woman could find herself a victim. It may be easier to believe, the experts muse, that at some level the victim asked for it. "But just because a woman makes a bad judgment, does that give the guy a moral right to rape her?" asks Dean Kilpatrick, director of the Crime Victim Research and Treatment Center at the Medical University of South Carolina. "The bottom line is, Why does a woman's having a drink give a man the right to rape her?"

Last week the Supreme Court waded into the debate with a 7-to-2 ruling that protects victims from being harassed on the witness stand with questions about their sexual history. The Justices, in their first decision on "rape shield laws," said an accused rapist could not present evidence about a previous sexual relationship with the victim unless he notified the court ahead of time. In her decision, Justice Sandra Day O'Connor wrote that "rape victims deserve heightened protection against surprise, harassment and unnecessary invasions of privacy."

That was welcome news to prosecutors who understand the reluctance of victims to come forward. But there are other impediments to justice as well. An internal investigation of the Oakland police department found that officers ignored a quarter of all reports of sexual assaults or attempts, though 90% actually warranted investigation. Departments are getting better at educating officers in handling rape cases, but the courts remain behind. A New York City task force on women in the courts charged that judges and lawyers were routinely less inclined to believe a woman's testimony than a man's.

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