The Rape Defense
by Sherry F. Colb
In my Verdict column this week, I continue a discussion I began two weeks ago of why people so frequently treat charges of acquaintance rape as “he said/she said” cases. I challenge this characterization for the obvious reason that defendants have every incentive to say “I’m innocent,” whether they are or not, while accusers have no similar systematic incentives to level accusations independent of their truth. Stated differently, what “he said” is inherently low in credibility, and it is not obvious why we would similarly demote what “she said” when we would not do so in cases of stranger-on-stranger crimes (including rape), even when there are just two witnesses, “he” and “she.” I suggest that the explanation for this puzzle may be a function of the stereotypical stories we all learn about relationships between men and women. All of us have heard that “hell hath no fury like a woman scorned.” Because no one wants to be rejected, we assume that the woman who accuses an acquaintance of rape may be enacting her revenge against him for rejecting her. When the accused expressly states that this is what happened, that they had consensual sex but he just wasn’t that interested afterwards, it all sounds plausible. Acquittal becomes a foregone conclusion.
Here I want to discuss a different theory of rape law, one published in 1998, that offers an excellent account of the “he said/she said” framing of acquaintance rape accusations. Professor Anne Coughlin wrote a fascinating article arguing that the history of rape law offers the best explanation for “rape exceptionalism,” the law’s tendency to treat rape victims as highly likely to lie and thus in need of requirements that applied to no other victims of violent crime. Examples include the obligation of the prosecution in any rape case to produce corroboration of the victim’s account, to prove that the victim resisted “to the utmost” the defendant’s efforts to rape her, the demand that the defendant have used force rather than simply heard the victim say “no” or otherwise refuse consent, and the admissibility of the victim’s sexual history to prove both her bad character for veracity (“the slut is a liar”) and her bad character for chastity (“the whore asked for it”). One additional (though not the only remaining) example was the special cautionary instruction that judges needed to give to juries in rape trials telling them some version of what nineteenth century jurist Sir Matthew Hale said: “it must be remembered, that it [rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” We could sum up much of this as “he said/she said.” The victim’s credibility, simply in virtue of her having made her accusation, was so degraded that the judge was expected to tell the jury how easy it is to falsify the claim and how difficult to prove one’s innocence. We have changed a good deal of this exceptionalism in the law of rape, but the “he said/she said” language for acquaintance rapes remains in place. Why?
Historically, Coughlin points out, the crime of rape did not reflect society’s effort to protect the sexual autonomy of women. Neither women nor men enjoyed a right to sexual autonomy. Indeed, marriage was the only place for lawful sex. Adultery and fornication were both illegal. Therefore, when a woman said that she was raped, she was essentially conceding that she had done something illegal, which is to have sex outside of marriage. But because she was raped, she would have an excuse. Rape was therefore a defense to a charge of sex outside of marriage, not solely an independent crime. As such, there was good reason to be skeptical of the woman who claimed that she was raped because she would have had an incentive to disclaim responsibility for the fornication or adultery of which she would otherwise have been guilty. Coughlin shows how the language of rape laws long mirrored the language of the duress defense. If you rob a bank because another person pressures you into doing so, you need to demonstrate more than that you said no. You had to prove some level of force or a threat that would have coerced you into committing an act that otherwise qualified as a crime. And it would be appropriate to be skeptical of what you said (“he threatened to kill me if I didn’t rob the bank with him”) because it is indisputably in your interest during a robbery trial to say what you need to say to be acquitted of the robbery. If we think of rape not as an act of violence against a woman (or a man or anyone who falls prey to the crime) but as an excuse for doing something illegal (sex outside of a marriage), then the whole structure of treating the woman as offering an affirmative defense makes a lot of sense. Coughlin urges us to understand rape and fornication and adultery as connected to one another historically and therefore as having remnants of a strong connection now (or at least in 1998). To speak of rape alone is to ignore one of the main reasons that society took note of the act, and that reason had little to do with the mantra “however we dress, wherever we go, yes means yes and no means no.”
The history then clarifies “he said/she said.” If we are in the historical habit of thinking about the alleged victim as a presumed criminal (because she has confessed to sex) with an excuse (he forced her), then we will doubt the truthfulness of her testimony, just as we properly doubt the truthfulness of a criminal defendant’s testimony when he says “I am innocent. I never committed a rape.” If both people are accused of misconduct and are testifying that they are not guilty, then it really is accurate to say that both are highly motivated to say whatever will help them avoid jail or prison. Equating their (lack of) credibility sounds much more sensible.
The story is incomplete, of course. The law generally treated female sexuality as far more dangerous and filthy than its male analogue. Though fornication and adultery could implicate both partners in crime, one of the partners would acquire a “reputation,” and the other would not. Men expected the women they married to be pure, to be virgins, and few expected this of men. Indeed, “virgin” generally described girls and women rather than everyone equally. It would be inaccurate to suggest that life used to be egalitarian with everyone suffering equally under the constraints of sexual regulation. Nonetheless, if we understand rape as a defense to fornication or adultery, then many of the legal conventions and social reactions to women who come forward and say they have been raped become coherent in a way that they otherwise would not be.
Adultery and fornication are no longer crimes (or at least crimes that are enforced among civilians in this country), and most people understand rape to be something awful that one person does to another rather than a defense that one accomplice offers for having participated in a crime with the other accomplice. Yet history can have a lasting residue. People easily accept without questioning the notion that acquaintance rape cases are “he said/she said,” as though the most stable and decent woman can become a false accuser at any time so that she has no more credibility than a criminal defendant. The first step to ridding ourselves of this residue is understanding that it exists and why. The next time you are tempted to say “he said/she said,” remember that (1) she is not on trial for a crime, (2) absent evidence to the contrary, she has nothing to gain from falsely accusing the defendant of rape, (3) the accused has less credibility than all other witnesses, a proposition that is not controversial in the context of any other criminal trial, and (4) the presumption of innocence is not a presumption that the prosecutor’s witness is lying. Catch yourself when you think “he said/she said.” History is whispering to you, and you may not even realize it.