That debate was called back by Missouri Senate candidate Todd Akin and his reference to "legitimate rape". But that reference led to a search for the position of other Republican candidates. That search led to the discovery that Akin and Paul Ryan had co-sponsored the so-called "No Taxpayer Funding for Abortion Act". That bill proposed to limit the rape-exception in a ban on government-funded abortions. The bill proposed to limit the exception from rape to "forcible rape". That language that narrowed the definition of rape eventually was dropped from the bill.
So there we go. What’s old becomes new. But the answers to this old argument have been around for over three decades. In fact, we can find answers in a case that was decided by the California Supreme Court that talks about rape law in California.
1. Threats, coercion, and sex.
Juoquin sold marijuana. Marsha smoked a little marijuana with Juoquin at his house. After 10-15 minutes, he started to hug Marsha. She pushed him away and told him to stop. He had overstepped, but she didn’t think that it was any big deal. But he kept on hitting on her, so she told him that she wanted to go.
He told her that he didn’t want her to go. But she got up, left the house, and went to the front gate.
Things turned hostile outside. He yelled at her. He refused to open the gate, and she didn’t know how to open it herself. Then he said that he would open the gate, but that he wanted to put on his shoes first. She followed him inside.
Inside, he continued bullying her. Several times, he reared back his fist like he was going to hit her. He told her that he was a man. He flexed his arm muscles. He grabbed her sweater collar and told her that with one hand he could lift her up and throw her out.
He boasted. He said, "I had bitches do anything I want. I have had bitches suck me . . . I have had them do that. I can make you do anything I want. You understand me?" He said, "You're so used to see[ing] the good side of me. Now you get to see the bad." She expected him to hit her.
She was afraid. About 40 minutes after she followed him back inside, he turned affectionate and started hugging her. She thought that he was psychotic. She decided to act as if she were going along with what he wanted.
Then he said that he wanted sex. He told her to take off her clothes. She refused. He said that she was going to make him angry. She took off her clothes. They had sex
2. Criminal courts.
In Superior Court, the jurors convicted Juoquin of rape.
But the Court of Appeal overturned the conviction. The justices said that the conviction could not stand because Marsha had not physically resisted.
And in fact that had been the law before Joachin confined and grabbed and threatened Marsha and had sex with her. But it was not the law when he did these things.
The case went up to the California Supreme Court. In a decision written by Chief Justice Rose Bird, the Supreme Court reinstated the conviction. (People v. Barnes (1986) 42 Cal. 3d 284.)
The Supreme Court first noted that physical resistance was no longer needed to prove rape. In 1980 the rape-statute was changed so that a rape was rape if the rapist accomplished it by forcing the victim to have sex by fear of violence.
In its ruling, the Supreme Court noted how the new definition of rape reflects a new understanding of women and proof of consent.
This need for proof of physical resistance was based on distrust of women’s claims of rape. It was also based on false assumptions about a woman’s inevitable response to rape. As the California Supreme Court said, some women resist; others freeze. This "frozen fright" can be a "psychological infantilism" that looks like "cooperative behavior". Far from showing consent, the Supreme Court understood that lack of physical resistance could be the product of "profound primal terror". All of these conclusions were supported by reliable studies.
In fact, studies showed that physical resistance could fend off a rape, but that it could also lead to greater violence to complete the rape.
3. Judicial burdens.
The end of the need in rape cases to prove physical resistance has had judicial effects.
The effect of this law is that, yes, it is easier to convict a man of rape who in fact had consensual sex. This adds to the burden of an innocent defendant and his hopefully hard-charging lawyer.
But it also means that women have greater freedom from rape. A rapist’s ability to squelch physical resistance by making his victim feel a paralyzing primal fear is no longer a get-out-of-jail-free card.
4. Psychological burdens.
Any successful efforts of legislators to re-introduce the issue of "forcible rape" into abortion laws would have deep psychological effects.
I suppose that a rape victim who physically resists has at least the consolation of her courage. I would suppose that someone who was frozen in fear bears the risk of increased shame from her non-resistance. Efforts of the Todd Akins and the Paul Ryans would have the effect of narrowing the options and adding to the great burden of those victims who suffer the greatest feelings of shame.
5. Burdens on advocates
Some of my friends believe that a woman should not have the option of ending a pregnancy if she has been raped. I respectfully disagree. I mean both of those words. I respect them. And I disagree with them.
A substantial majority of Americans take the side of the rape victim. Given that substantial majority, any likely versions of the laws about abortion will protect the freedom of choice of rape victims.
That means that persons driven to protect the product of a rape will have to walk their efforts along the ancient ways. They will not be the law of the land; they must be the light of the world. If they succeed, it will be through love not compulsion. The choice will rest with the victim.
No comments:
Post a Comment