Without Consent or Force

One of my jobs as a deputy prosecuting atto
ey was to review cases of sexual assault, determine what crime (if any) had been committed, and assess the likelihood that we would be able to prove every element of the crime beyond a reasonable doubt. While the specific laws are different in each state, every sex crime requires either a lack of consent on the part of the victim or the use of force on the part of the perpetrator. Too often people think that “without consent” is the same as “by force,” but that is not true in a legal sense. Appreciating the difference is the first step in understanding how the justice system works and why it so often fails in the eyes of sexual assault victims.

A Woman’s Presumed Consent

Sexual assault is the only crime I know of where victims are presumed to consent and actually have to resist physically, risking serious injury or even death, to establish their lack of consent. It’s true. It’s still a man’s world, and our laws do more to protect a man who is careless with his wallet than to protect a young woman who trusts the wrong people.
This is an especially important concept for teenagers in intimate situations. The girl may be thinking “the answer is no until I say yes” while the boy may be thinking “the answer is yes until she says no.” I firmly believe that “No means NO!” but at the same time, I’ve seen cases where a girl initially said no and after some pleading or promises from the boy consented to kiss. He goes a little further, she says no and he talks her into a little more. At some point she may really say, “NO!” and mean it, but it’s very hard to convince a jury that she both said and meant, “NO!” when she’s said yes to anything. ANYTHING—from dinner to a movie to dancing or even just one drink.

Imagine a young man is walking down the street in a relatively safe neighborhood just after dark. He’s approached by an acquaintance, and the two men chat briefly. Suddenly and without warning, the acquaintance punches him in the stomach and tries to take his wallet. A neighbor sees what happens, asks if he’s ok and offers to call the police.

Now imagine a young woman is walking down the street in that same relatively safe neighborhood just after dark. She’s approached by the same male acquaintance, and the two chat briefly. Suddenly and without warning, he grabs, her kisses her and shoves his hand down her pants. A neighbor sees what happens, yells for them to “take it inside” and threatens to call the police.

Even if the woman reports the sexual assault immediately, the jury is going to want to know what she was doing out after dark, what she was wearing, and whether she “wanted it,” things that would matter very little or not at all with regard to the young man in the robbery attempt. They would never believe a defendant who says that his victim wanted to be punched in the stomach and robbed, but many would believe a defendant who says that the woman wanted it, but then experienced “buyer’s remorse” once she knew the neighbor saw her.

A Man’s Presumed Innocence

On top of the woman’s presumed consent, the man is presumed innocent. Our legal system is founded on the premise that it’s better for 100 guilty men to go free than for one innocent man to be wrongly convicted. Every reasonable doubt, every piece of missing evidence, every unexplained question must be resolved in favor of the accused. The accused has the right to remain silent and no negative inference is permitted.
After everyone else has testified, the defendant can take the stand and make up any plausible story he can think of based upon what the jury heard. Even if he’s a convicted criminal or has sexually assaulted someone before, the jury probably isn’t going to get to know that information. It’s too prejudicial; the jury might think that he did it this time just because he’s done it before.

The victim must take the stand, confront her assailant face-to-face, identify him and tell a courtroom full of people exactly what he did while he and his atto
ey listen and interrupt with objections anytime they like. Then his atto
ey has the opportunity to ask leading questions on cross examination…questions like: You know the defendant from your neighborhood, don’t you? You’ve attended some of the same parties and have a number of mutual friends, don’t you? You were out walking alone after dark, weren’t you? And you stopped to talk to my client, didn’t you? You knew him and thought he was a nice guy, didn’t you? In fact, even on the night in question, you were fine until the neighbor yelled at you both to take it inside, weren’t you?
Consent vs. Force

Most women who are raped actually know their attacker, and the question at issue is not who did it or whether or not there was a sexual act, but whether the woman consented or the man used force. In Indiana, where I practice, if a woman can legally consent (i.e., she’s old enough, has sufficient mental capacity, has not been given a date rape drug and is otherwise awake and aware), then every crime of sexual assault requires the state to prove beyond a reasonable doubt that the man use physical force or the threat of force.
Consider the scenario above. The young woman’s attacker used the element of surprise more than the element of force. She might not have been able to say anything while he had his mouth over hers, and he may have stopped when she pushed him away, especially if a neighbor had called out. She didn’t consent, but she couldn’t say, “NO!” or “Stop!” until he’d actually done it, unless she anticipated what he was going to do. Without clear, physical force compelling her to submit to the touching, there simply may not be enough to prove a sexual assault beyond a reasonable doubt in Indiana.

In fact, there are three equally valid responses to such a surprise attack: fight, flight and frozen fright. Two out of the three make it almost impossible to prosecute the above case. Frozen fright looks and sounds like consent. Flight undermines the element of force—all she had to do was walk away. The only reaction that clearly demonstrates a lack of consent is the one that is likely to provoke an even greater level of force by the perpetrator.
Even in cases where the woman fights her attacker off, reports the crime immediately and physical injuries are documented, defendants often claim that the victim consented to “rough sex.” Or they’ll apologize for the size of their large male member or for being an inexperienced lover, saying they never meant to hurt her or didn’t realize in the throws of passion that she was experiencing pain rather than pleasure.
Persuading twelve people—male and female, young and old—to agree beyond a reasonable doubt in an acquaintance rape case is a formidable task. It’s no wonder victims often feel that the system has failed them.