Jan 07 2013

From India to Los Angeles, Rape Culture Pervasive and Justice for Rape Victims Elusive

The brutal gang rape in Delhi, India of a 23 year old woman who died of her injuries continues to generate protests in India and internationally. With the permission of her family, Indian media have now revealed that her name was Jyoti Singh Pandey.

While US commentators report on the abysmal state of Indian women, American women also face extremely high rates of rape and sexual assault, and antiquated rape laws still remain on the books, making justice elusive for rape victims.

For example, right here in Los Angeles this past Friday a three judge Appeals Court panel reversed a rape conviction after learning that the woman who was raped was not married. The judges cited a law put onto the books in 1872 which states that it is only rape if the rapist is pretending to be someone’s husband and tricks the woman into having sex. Therefore if the rape victim is unmarried, according to this antiquated law, sexual assaults against her are not considered rape.

While the use of this 19th century law to protect a rapist is shocking, California Attorney General Kamala Harris has just called it “arcane,” vowing to work with the state legislature to revise it.

Meanwhile, in the small town of Steubenville, Ohio there have been accusations of a cover up of a sexual assault as two star high school football players await trial for the alleged rape of a 16 year old girl this past August. While police waited 11 days to arrest the suspects, online blogger Alexandria Goddard started covering the case and the Hacktivist group Anonymous staged a protest after leaking documents and video pointing to more suspects. Yet, the county police chief has said that no other people will be charged.

The Center for Disease Control and Prevention estimates that nearly 1 in 5 US women have been raped or have experienced an attempted rape. But these serious statistics have not moved House Republicans, who have refused to reauthorize the 1994 Violence Against Women Act or VAWA. That act would provide money to help fight domestic violence and sexual assault by upholding stiffer penalties for criminals as well as funding shelters and helping victims. Republicans refused reauthorization claiming that there were too many provisions allowed for Native American women, undocumented immigrants and LGBT people.

GUEST: Katie Buckland, Executive Director of the California Women’s Law Center. She was previously the domestic violence prosecutor for the City of Los Angeles.

Visit www.cwlc.org for more information about the California Women’s Law Center.

2 responses so far

2 Responses to “From India to Los Angeles, Rape Culture Pervasive and Justice for Rape Victims Elusive”

  1. Ricardo Toroon 07 Jan 2013 at 10:39 pm

    I posted an article on a local Orange County blog, asking David Beckahm to speak out. You may remember the movie “Bend it like Beckham” , which involved a family from India. If stars like Beckham speak out on this issue, the more grain of salts are added to spotlight this horrible phenomenon, and to stop it.

  2. Ricardoon 08 Jan 2013 at 1:46 pm

    I posted the link to the radio program in the blog mentioned in the previous comment. This is a response from one of the blog’s editors:

    Your explanation of the decision is not quite accurate; the opinion is well worth reading. The court did not say that an unmarried woman cannot be sexual assault. It said that the specific statutory establishing the crime of “rape by impersonation,” which on its face limits itself to impersonation of one’s spouse, did not apply when the impersonation was of someone other than a spouse. And then the court went out of its way to call for a revision in the language of the statute.

    Rape by impersonation is a tricky crime to address because the behavior of the victim is to acquiesce in the sexual act, despite that she (usually it’s a she) would not do so if the identity of the person seeking sex were clear. This leads to thorny factual questions from a jury about whether or not there truly was confusion about identity (which was raised here in the defense) or whether the woman was agreeing to sex with someone because she was attracted to him (usually it’s a him) — and whether the person seeking sex should have known that it was a case of mistaken identity. Women, like men, are perfectly capable of wanting to have sex with relative strangers (or at least with people other than their customary partners.) In this case, the jury had good reason to decide that the man in jail — who has already served his entire sentence, by the way — did know that the woman in question had good reason to believe that if anyone started caressing her where she lay, that it would be her boyfriend. (The man claimed that she was conscious from the start; she claimed otherwise — and of course if she was unconscious then there was no possibility of identity confusion and it would have inarguably been rape.)

    I think that the law has to be updated to reflect that someone in a monogamous relationship should have the same protection from rape by impersonation as one who is married. I’d like it to be updated beyond that to all acts of impersonation, but we should recognize that certain problems arise. If a woman, in a given period of time, has several boyfriends — that is, men with whom she would willingly agree to have sex — then how is a man seeking sex supposed to know that he doesn’t fall into that category? In such a situation, there would be a lower burden on the man to know that he was being given sexual access due to a mistake of fact and a higher burden on the woman, even if groggy, to know who was asking for sex before consenting to it.

    If this strikes anyone as harsh, try reversing the genders. We have no problem imagining a man who may have many “girlfriends” (under the “willingness to have sex with” definition used above) at a given moment. Let’s say that there are, say, nine of them. Is a tenth woman who sneaks into the guy’s bed naked — let’s say that he’s Rod Stewart in the late ’70s, just to make it more plausible — and lets him assume that she’s one of the nine “approved” partners guilty of rape-by-impersonation? My guess is: unless he tries to find out who she is before having sex with her, probably not. Then we have the situation of “sauce for the goose, sauce for the gander.” So how does one write the law so that all and only the “right” people are convicted? I don’t know — but I suspect that it’s less straightforward than people imagine.

    Rape-by-impersonation has the potential to be expanded to the point where it becomes a problem. If you don’t limit it to a spouse (and, we can probably agree, a steady boyfriend or girlfriend), then can one be accused of it not for impersonating a particular someone, but a member of a group to which one doesn’t belong — a doctor, a liberal, a vegetarian, an unmarried person? This recently became an issue in Israel, when a man met a woman at a party and they ended up having sex. The problem was that she was Jewish and he was an Arab Muslim, though he didn’t volunteer that information, and she would not have wanted to have sex with him had she known his religion (and maybe even his ethnicity.) I forget whether it was a civil or a criminal case, but either way he was found to have committed rape by impersonation. To me, that shows that the principle of sexual self-determination can go too far if not accompanied by some obligation of due diligence.

    … the action of this court is not in the same ballpark — or town, county, state, country, continent, planet, galaxy, or universe — as the vile actions that took place in India. They cannot and should not be lumped in any category when it comes to diminishing women’s rights. The court was trying to do its job — and did so under difficult circumstances, including probably knowing that the case would be misunderstood and that a storm of criticism would be coming its way.