Because it bears repeating

Friday, January 5th, 2007 · 35 Comments »

“The Rape of Mr. Smith” was posted in the comments at Feministe by Tyra and elevated to a blog post by Jill. It’s been floating around so long that people attribute it to Anonymous, but in fact it’s from Connie Borkenhagen, who published it in the American Bar Association Journal in 1975.

The Rape of Mr. Smith1

In the following situation, a holdup victim is asked questions by a lawyer.

“Mr. Smith, you were held up at gunpoint on the corner of First and Main?”
“Yes.”

“Did you struggle with the robber?”
“No.”
“Why not?”
“He was armed.”

“Then you made a conscious decision to comply with his demands rather than resist?”
“Yes.”

“Did you scream? Cry out?”
“No, I was afraid.”
“I see. Have you ever been held up before?”
“No.”
“Have you ever GIVEN money away?”
“Yes, of course.”
“And you did so willingly?”
“What are you getting at?”
“Well, let’s put it like this, Mr. Smith. You’ve given money away in the past. In fact, you have quite a reputation for philanthropy. How can we be sure that you weren’t CONTRIVING to have your money taken from you by force?”
“Listen, if I wanted –”
“Never mind. What time did this holdup take place, Mr. Smith?”
“About 11:00 P.M..”
“You were out on the street at 11:00 P.M.? Doing what?”
“Just walking.”
“Just walking? You know that it’s dangerous being out on the street that late at night. Weren’t you aware that
you could have been held up?”
“I hadn’t thought about it.”
“What were you wearing at the time, Mr. Smith?”
“Let’s see … a suit. Yes, a suit.”
“An EXPENSIVE suit?”
“Well – yes. I’m a successful lawyer, you know.”
“In other words, Mr. Smith, you were walking around the streets late at night in a suit that practically advertised the fact that you might be good target for some easy money, isn’t that so? I mean, if we didn’t know better, Mr. Smith, we might even think that you were ASKING for this to happen, mightn’t we?”

*

I believe this is where the original ends; the final question and response in the version posted at Feministe ( “Look, can’t we talk about the past history of the guy who did this to me?”…) were probably added later by another hand.

So how much has changed in 30 years? Well, I’d say that this kind of victim-blaming is slightly less likely to happen now if your rapist is a complete stranger. But if you’ve ever been introduced to a guy, you’ve basically given him carte blanche to rape you, jam pool cues and broken bottles into your body, burn you with cigarettes, and whatever else he can convince the jury you gave him permission to do when you smiled at him. That is, unless you yourself are male. Curiously enough, it is still true that when men meet each other or become friends or just happen to find themselves at the same party, automatic consent to be raped and tortured is not assumed to be given. The legal system is funny that way.

*****

1From “The Legal Bias Against Rape Victims (The Rape of Mr. Smith).” Connie K. Borkenhagen, American Bar Association Journal. April, 1975

Filed under: Rape · Tags:

35 Responses to “Because it bears repeating”

  1. Burrow says:

    isn’t it though?

    I need to go practice with a punching bag now, excuse me.

  2. Violet says:

    Oh, hey wait — flawedplan and I are trying to flag you down in the other thread. Our attempts to comment at your blog keep getting bounced or eaten or something.

  3. will says:

    You asked how much has changed. Having spent 14 years in the court system, I would say a lot has changed. Victims (even prior to being established as victims) are rightfully provided with assistance with a very difficult matter.

    I am certain that there are exceptions as there are with any topic. But that simply isnt how rape trials are conducted around here.

    There have been changes to the legal system, as there should have been. But I would hope that you would want to write accurately about it as it stands today.

    I would suggest that you look at the Duke case if you want to see why the legal system has to provide due process for everyone. These are very difficult cases. Period.

    No one deserves to be raped. Period.

  4. Violet says:

    Having spent 14 years in the court system, I would say a lot has changed. Victims (even prior to being established as victims) are rightfully provided with assistance with a very difficult matter.

    I said I thought things were better for the victims of stranger rape, and I hope in fact that things are much, much better.

    But one does get the impression that with acquaintance rape (which is the majority of rapes) the burden is still on the victim.

  5. Zeke T. Dog says:

    Not to mention that the justice system is far from being the only place an interrogation like the one mocked above gets played out.

    If only blog comment threads had to follow caselaw!

  6. Chris Clarke says:

    Zeke! BAD Zeke! Get off the keyboard!

  7. Violet says:

    Zekey! Aw, him a good dog!

  8. will says:

    The burden always remains on the prosecution to prove it beyond a reasonable doubt.

    These are horrible, difficult cases. There is simply no changing that aspect.

    But, the rape shield applies regardless of whether the victim knew the defendant.

    The vast overwhelming number of cases do not make the headlines. Only the weird ones make it to the media. And you simply cannot trust the media to get it right.

    In my mind, the two best things to do are (1) to teach boys and girls that stop means stop immediately and (2) being raped is not shameful because the victim did not do anything wrong.

    Unfortunately, that can only reduce the number of rapes. It will never eliminate them completely.

  9. will says:

    “Gone off”?

    If you do not want me to comment here, just tell me.

  10. Violet says:

    The burden in a rape case is different from any other crime I can think of.

    I’m reminded that my cousin recently had his car stolen by a friend. Guy came to stay at his house, then up and took off with my cousin’s car. My cousin filed a police report, naturally, and the cops, naturally, without question, are going on the assumption that if a person says his car has been stolen, it’s been stolen. When they apprehend the guy who stole it he may say, “Hey, Violet’s cousin said I could have the car!”, and the cops will say, “Really? Got a title? Anything to prove that?”

    If the case goes to court of course the burden will be on the prosecution to prove that the alleged car-thief is guilty, but there won’t be a massive albeit not-always-articulated assumption that there’s an excellent chance my cousin is lying, that people like my cousin routinely invent stories of having their car stolen and file police reports to that effect just for kicks, and that without clear proof we should just assume that he wanted to give his car away, and that really it’s just a he-said/he-said kind of thing.

    Of course if my cousin were female and we were talking about rape, it would be a different story. Rape is the only crime I know of where the burden is on the victim to even prove that a crime took place. There is a myth that women lie about being raped — Potiphar’s Wife Syndrome — which is of course itself a lie. Women don’t lie about being raped any more often than people lie about their friend’s having stolen their car.

  11. will says:

    It would be a very interesting study to find out people’s initial reactions to a rape charge v. any other criminal charge.

    Are your first assumptions that the defendant is guilty or innocent?

    The duke case is a good example, but there are others. When you first heard the news, what did you think: guilty or not guilty.

    From my perspective, I think that people walk into court assuming the defendant of every crime is guilty, rape included. Of course, much of that depends on your prior exposure to the criminal justice system.

    I do not know if the conviction rate of rape charges is any different from any other crime. If it isnt, then I think your premise would be incorrect.

    I do not know the answer. That information would be much more accurate than antidotal evidence that rape cases are better, worse or the same.

  12. Violet says:

    I do not know if the conviction rate of rape charges is any different from any other crime.

    Many, many studies in different jurisdictions have demonstrated that the rape conviction rate is consistently lower than that for other crimes. I recall one in Alaska where the conviction rates for homicide and robbery were TWICE the conviction rate for rape.

    I can’t imagine what you think the Duke case is a good example of except the toxic levels of racism and sexism still extant in this country.

    It would be a very interesting study to find out people’s initial reactions to a rape charge v. any other criminal charge.

    How can you be so naive? There was a study recently that showed that one-third of people questioned believed that women were responsible for being raped if they flirted.

  13. Violet says:

    Actually I can’t recall where I read the news on that last survey I mentioned, so I don’t know if it was a proper study or not. But it’s in accordance with other statistics I’ve seen compiled on people’s attitudes.

  14. Cathy says:

    The study was conducted for Amesty International, Violet, so I think it’s reasonable to assume it’s legit.

  15. annared says:

    Interesting blog post from Stormy re: rape figures breakdown

  16. Violet says:

    Ooh, links! Cathy and annared, thank you both very much. I shall go read.

  17. Pastor Al E Pistle says:

    Women should be married and safely at home having babies.

    http://quiverfull.com/resources.php#r15

    http://home.att.net/~nathan.wilson/brthcntl.htm

  18. Burrow says:

    TO VS #2: try signing in anonymously and just adding your name. I know that anon comments, or comments with just a name are coming up ok. I emailed tech support.

  19. Mandos says:

    I am still away on vacation, but I was just checking up on the series of tubes. I just have to point out that with a car, we have vehicle registrations, etc, that can be checked in the case of theft, and usually the thief is caught red-handed. In the case of rape, what is the analogous evidence?

    Obviously I agree that rape is culturally loaded in a manner different from other crimes and this leads to injustices against women as a group. However, comparing the burdens of proof between rape and vehicle theft is problematic. If the burden of proof is different, some of it is surely accounted for by the evidence left in the crime itself? Rape and murder are probably more analogous, but even with murder, it’s not commonplace that homicide is consensual. Penetrative sex very frequently is.

    I’m probably carrying coals to Newcastle here (something I’ve always wanted to do in real life) and should return to my regularly scheduled trip.

  20. Violet says:

    People loan each other their cars all the time. They even give each other their cars (my parents recently gave my brother one of their cars).

    Homicide is a very poor analogy; the victim ends up dead and there are very few cases where people consent to be shot, stabbed, or whatever.

    Theft is a better analogy. People give money away all the time, even to strangers (panhandlers) on the street. The only reason people believe you when you say you’ve been robbed is because there is a presumption that a crime has occurred if a person says it has. Rape is the only crime where it’s presumed (officially or otherwise) that the person reporting the crime is lying unless she can prove otherwise.

  21. Mandos says:

    But is there such a *legal* presumption in theft or is it greatly reflected in the practice of the law? Let’s take an accusation of rape between acquiantances. According to you, that’s analogous to a case of theft among acquaintances. It would be interesting to know whether the word of the victim in the theft case is sufficient to result in a conviction *much more often* than in a rape case.

    In my ideal world, it wouldn’t, and I’m sure you’ll agree. But in my ideal world, that’s only because the word of the theft victim would be insufficient, not because the word of the rape victim would be sufficient.

  22. Paul Tergeist says:

    My roomie is Chinese and occasionally I get her to watch true crime shows instead of cooking or decorating. Every time the criminal is some psycho cracker who rapes his own daughters (or is a serial predator…whatever), she tells me “Men are such pigs!”. So I tell her to shut up or I’ll paste her (TO THE MOON, ALICE!) and she runs over and slaps the shit out of me.

    Where can I get her some counseling for those anger issues?

  23. Violet says:

    But is there such a legal presumption in theft or is it greatly reflected in the practice of the law?

    Are you trying to distinguish between case and statute law on the one hand, and practice on the other? If so, then 1) case and statute law evolves constantly and varies from jurisdiction to jurisdiction. I don’t know if everywhere in the U.S. the laws treating rape are perfectly fair but somehow I doubt it. And 2) Even if the laws are perfectly fair it doesn’t much matter since justice is administered by human beings, not law-bots. Or is it your contention that police, prosecutors, judges, and juries are all flawless people who administer the law perfectly? No, I guess not.

    It would be interesting to know whether the word of the victim in the theft case is sufficient to result in a conviction much more often than in a rape case.

    It’s amazing to me that even when men mean well, they clearly have no idea of what an unfair burden, social and otherwise, is placed on rape victims. How can people be so clueless? I guess it’s because it doesn’t affect you, you’ve never come up against the hard reality that women are held at fault for whatever it is that allowed/encouraged a rape to happen.

    This conversation is like Bizarro World, where men really don’t grasp that rape accusations are treated differently from any other crime.

  24. simply wondered says:

    men really don’t grasp that rape accusations are treated differently from any other crime.

    i think you’re right but only by degree – by which i mean that the powerless almost always get a bad deal from the courts because of that unspoken belief that the normative view of the judges is somehow the unbiased one and people like them are likely to be right by the very nature of who they are.

    and i didn’t realise the law worked like that until i started to experience it – you tend to want to believe that somewhere in society there is a force that will stand up for the honest wronged people; it makes playing along with society less scary. then we realise at some point it’s a myth – whether it’s on a civil rights march, a picket line or a rape trial. If you are in conflict with the system you will at some point become educated (and screwed over). As women get a more frequent bum deal than men (other things being equal: wealth education RACE etc) they often find it out sooner.

  25. Paul Tergeist says:

    men really don’t grasp that rape accusations are treated differently from any other crime.
    -SW

    Yes, we see that with the LaCrosse team.

  26. Violet says:

    We certainly do. Because the prosecutor has dropped the rape charge but KEPT the charges of kidnapping and first-degree sexual offense (which includes acts similar to rape), misogynists everywhere are declaring that this case proves that most rape accusations are false.

  27. Mandos says:

    It’s amazing to me that even when men mean well, they clearly have no idea of what an unfair burden, social and otherwise, is placed on rape victims. How can people be so clueless? I guess it’s because it doesn’t affect you, you’ve never come up against the hard reality that women are held at fault for whatever it is that allowed/encouraged a rape to happen.

    Well, it’s certainly true that I’ve never been anywhere close to a rape trial or anyone whom I know has gone through one on either side.

    Still, I think my question is still a fair and relevant question. How often *does* the word of a victim count as the determining factor in, for lack of a better term, “acquaintance theft”?

    I realize that culturally and socially, there is no comparison, but how specifically does that affect legal proceedings is what I’m after.

  28. Mandos says:

    I should add that I’ve never personally been near a theft trial either, not even someone I know.

  29. Violet says:

    I realize that culturally and socially, there is no comparison, but how specifically does that affect legal proceedings is what I’m after.

    Why do you think cultural and social factors don’t affect legal proceedings?

    How often does the word of a victim count as the determining factor in, for lack of a better term, “acquaintance theft”?

    If you want to know if there’s been a study of conviction rates or whatever in acquaintance theft as opposed to stranger theft, controlling for other evidentiary factors, then I doubt if there’s been such a thing, much less such a thing as done in such a way that it could be compared to rape.

    But you could always just ask yourself if there seems to be a general cultural trend that automatically casts doubt on a person’s credibility when he reports that he’s been robbed by a friend or family member. Which, in case you haven’t been alive long enough to know, there isn’t.

    A big reason that people are deeply reluctant to turn in, say, their drug-addicted relatives who have been stealing from them is because the assumption is that the theft victim will be believed. I can pretty well guarantee you that theft victims don’t have to deal with the expectation that the community and the police and the jury will say, well he’s your son, you’ve given him money before, how could he have known not to take that $300 from your wallet?

  30. Mandos says:

    Why do you think cultural and social factors don’t affect legal proceedings?

    I never said they didn’t. I asked about the extent.

    It’s too bad it’s unlikely that anyone has studied the difference between “acquaintance theft” and acquaintance rape in this particular.

    A big reason that people are deeply reluctant to turn in, say, their drug-addicted relatives who have been stealing from them is because the assumption is that the theft victim will be believed.

    Is this so? I’ve never been in or near this situation before. Myself, I would hope that the court wouldn’t rely on the theft victim’s own word entirely when it decides to convict. And again, I don’t know whether it does. Any of the lawyers around here been involved in this sort of case?

    I’m sure you are right that police, other family, etc would probably believe the victim in the theft instance.

  31. Violet says:

    Myself, I would hope that the court wouldn’t rely on the theft victim’s own word entirely when it decides to convict.

    Of course it wouldn’t, nor should it. We’re talking about the presumptions that govern how different crimes are perceived and handled.

  32. cicely says:

    Violet: Why do you think cultural and social factors don’t affect legal proceedings?

    Mandos: I never said they didn’t. I asked about the extent.

    How about – to the extent that most acquaintance rapes – and possibly still most stranger rapes – go un-reported because women have long observed how the legal proceedings are stacked against the chances of conviction if they don’t happen to be nuns or over a certain age, perhaps. Women don’t need a legal tape measure against other sorts of crimes to figure this out. The studies Violet mentions aside, because many women won’t even know about them, we just all know to think very, very carefully before we decide whether or not to seek justice after we’ve been raped. That’s because we know very, very well who’s really on trial, and guess what, it isn’t the rapist. Any man who elects to be pedantic about this is going to exasperate and infuriate women. These are our actual, factual circumstances. There’s no debate to be had here, only ‘sight’ vs ‘blindness’. Moving right along.

  33. gordo says:

    cicely–

    Well said. I’ve known a couple of rape victims, including a man, who did not report the rape for exactly that reason.

    Unfortunately for the men and children who are raped, they have to face the same system that was set up to make it difficult for women to prove rape.

  34. Mandos says:

    You’re ultimately right cicely. But I am nitpicky about everything. :)

    I do obviously acknowledge that most rapists don’t even get charged. However, I think it’s still interesting to compare the cases of those that do to other crimes.

  35. cicely says:

    Unfortunately for the men and children who are raped, they have to face the same system that was set up to make it difficult for women to prove rape.

    True, gordo. Men who are raped have other culturally silencing factors as well, and it’s amazing how pedophiles will often try to persuade people that their victims led them on! They can only believe that for a second themselves (where they actually do believe it) by appplying the culturally sanctioned male/female model.

    I do obviously acknowledge that most rapists don’t even get charged. However, I think it’s still interesting to compare the cases of those that do to other crimes.

    Well, Mandos, Violet provided a starting point in case you missed it…

    Many, many studies in different jurisdictions have demonstrated that the rape conviction rate is consistently lower than that for other crimes. I recall one in Alaska where the conviction rates for homicide and robbery were TWICE the conviction rate for rape.

    And remember, these are the rape cases where the victims felt confident enough to proceed in the first place. The internationally known Reclaim The Night March chant that goes:

    Yes means yes, No means no, However we’re dressed, Wherever we go…

    didn’t come out of nowhere.

    I believe there have been changes in some jurisdictions. One I read about was the removal of the defence that a rapist ‘believed’ consent had been given, precisely because there were too many (patriarchal) culturally supplied ‘reasons’ he could call on, opening the door to put the victim on trial. I wish I could remember where I saw this because what’s important is how this was done and worded. If I find it, I’ll post it.