Initially, many women thought the unusual confluence of events in Washington and Palm Beach could have a liberating effect on themselves and on the country. Because of the high-profile nature of the cases, society finally seemed poised to confront the fears and sense of menace many women took for granted when they went out for drinks, accepted a ride home or conferred with a boss. Men who didn’t “get it” suddenly would. The Thomas hearings certainly didn’t work out that way. Now the Smith proceedings have confirmed what many women suspected all along: that when a man is accused of a sex offense, the woman goes on trial.
The spectacle in Palm Beach was a horror show for anyone who sets a premium on privacy. A forensic-evidence expert held up the alleged victim’s bra for the court’s-and the camera’s–scrutiny and discussed the grains of sand found in her panties. When asked during the cross-examination whether Smith had maintained an erection, the accuser broke down: “Why do you have to ask me questions like that?” Viewers were surely asking the same thing and wondering how they might come through a similar trial. Rape counselors are worried that fewer victims will step forward as a result. Last week a 39-year-old Manhattanite, who was assaulted by an acquaintance 17 years ago, said, “This case is going to make it worse for people who want to report. I haven’t prosecuted since I was raped, and I wouldn’t do it today.”
The furor sparked by the Thomas and Smith cases coincides with an acrid debate in academic circles over the ideological uses of sex crimes. Last spring Neil Gilbert, a professor of social welfare at the University of California at Berkeley, published an article, “The Phantom Epidemic of Sexual Assault,” in The Public Interest. Gilbert argued that feminists have exaggerated date-rape numbers to pursue their own political agenda. The problem, he claimed, was one of definition: some of what they were dubbing acquaintance rape, he would call “the kaleidoscope of intimate discourse-passion, emotional turmoil, entreaties, flirtation, provocation, demureness.” In other words, does no always mean no?
The Thomas/Hill testimony provided many Americans’ first glimpse into the hazy “he said, she said” nature of most sex-offense cases. “The controversy left people very conscious of the ambiguities in harassment and rape situations,” says Elizabeth Fox-Genovese, director of the Institute for Women’s Studies at Emory University. Fox-Genovese worries lest the Smith trial foster the perception that it’s always best to err on the side of reasonable doubt, leading to a failure of will both among victims and attorneys to prosecute such cases.
Men and women both have a particularly tough time banishing their doubts when the charge is date rape. “Date or acquaintance rape isn’t someone jumping out of a bush and attacking you,” says Leslie Calman of the Barnard Center for Research on Women. “The circumstances are usually more subtle.” The term date rape is itself a relatively new entry into the compendium of sexual crimes. “There was a time not so long ago when a fair number of people thought you couldn’t rape somebody you knew,” says Mary P. Koss, a professor of psychiatry and psychology at the University of Arizona and the author of a national survey on acquaintance rape.
Even now, women who bring charges against acquaintances face an extremely high burden of proof. Old prejudices die hard. The belief that “she asked for it” has proved particularly intractable. People believe that male sexuality, says University of Illinois at Chicago sociologist Pauline Bart, “is like a locomotive going downhill with the throttle out-it can only be stopped by the female orifice.” J. Patrick White, the attorney for Johnson County, Iowa, says jurors “struggle with acquaintance rape, especially when there was some sort of consensual act like kissing or fondling.”
Far-flung theories about motivation (Anita Hill was in love with Clarence Thomas; Smith’s alleged victim hates all men) show the lengths skeptics will go to deny the possibility of sexual offense. Research suggests that the notion that women invent rape charges is statistically unfounded and psychologically implausible. DePaul University law professor Morrison Torrey says about 2 percent of rape reports are false-approximately the same percentage as in other crimes. Says Susan Mooney, vice president of the National Coalition Against Sexual Assault: “Who would want to take the stand and be called a liar?”
Yet date rape remains a less than black and white affair. In the politically correct environment of many campuses today, the term has come to include verbal coercion or the lack of spoken consent. In a major piece of revisionism, cultural critic Camille Paglia suggests that it’s fair to blame the victim if she fails to protect herself. Every date, says Paglia, “by definition is a sexual situation. Each person is giving signals, and every signal can be misinterpreted.” Ultimately, says Gilbert, expanding the definition of date rape to include noncoercive incidents “trivializes the pain and trauma of real rape.”
Whatever the outcome, the Smith trial has given date rape its day in court. But who is to say what lessons women will take away? Activists worry that a “blame the victim” backlash might deter women from pursuing their own cases. But who could blame anyone who decides not to put herself on trial in order to bring her victimizer to justice?
