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Archive for Sunday, August 29, 2004

Assumptions have history of trumping law in rape cases

August 29, 2004

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All the questions typical of date-rape cases are hovering around the criminal trial of Los Angeles Lakers' star Kobe Bryant.

Was the woman coerced or did she consent?

Was she of good character? Did Bryant inflict the bruises on her -- or were they caused by another man with whom she had sex around the same time?

The woman has filed a civil suit. Is she after Bryant's money?

The questions are loaded. But in rape cases, issues of the woman's willingness, character and greed are old as Eve.

Phrases like "date rape" and "acquaintance rape" are relatively new, of course, but the phenomenon isn't, says Brian Donovan, Kansas University assistant professor of sociology.

Laws attempting to protect women from it aren't new either, he says. Nor are efforts by defense attorneys to get jurors to forget the law and remember, instead, stories they believe and prejudices they hold -- perhaps without even knowing why.

Donovan says that in 1848, New York passed the first statute against the crime of "seduction."

By the end of the 19th century, 35 states had these statutes.

Donovan writes about the rise and fall of the statutes -- they began to disappear in the 1930s -- in an article due for publication later this year in the journal Law and Social Inquiry.

For the study, Donovan researched 3,500 pages of legal transcripts from 15 criminal seduction trials in New York between 1903 and 1918.

One use of New York's seduction law was to allow women to bring charges against men who promised to marry them, then reneged after the two had sex.

Another use was to help women bring charges against men they knew who forced them to have sex. In eight of the 15 trials, Donovan found testimony indicating overt physical coercion.

Although the seduction law didn't explicitly require a victim to resist the attacker, attorneys questioned women about how hard they struggled, Donovan says.

That put women in a bind, he says. Raised to be passive, they had to fight -- and risk retaliatory violence.

"Absent any evidence of struggle," Donovan says, "defense attorneys insinuated that victims willingly had sex."

The women also had to be of "chaste character." In effect, this meant the law was intended to protect virgins only.

Yet the seduction statutes were better than nothing, Donovan says.

Even so, he says, rape was difficult to prosecute then and still is today, especially when it involves attackers who aren't strangers.

Sometimes the laws don't work because they're ignored.

For example, he says, whether Bryant is innocent or guilty, Colorado's rape shield law, which makes discussion of a woman's sexual past irrelevant, has failed to protect the alleged victim in the Bryant case.

Why were the seduction laws repealed in the '30s? An odd alliance overthrew them, Donovan says.

Some feminists wanted a repeal because the picture of women the laws contained was politically incorrect. They weren't portrayed as sexually independent beings.

Some men, meanwhile, wanted to protect themselves against women they considered to be conniving gold-diggers.

The portrayal of the woman in the Bryant case as greedy, based on her choice to file a civil suit, contains the ghost of that old story -- whether it is true in the present case or not.

A threat to justice exists in the form of the old stories and stereotypes that shroud any rape case.

As Donovan says, assumptions are powerful things -- so powerful that they sometimes sneak into a courtroom and trump the law.

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