Cover Stories Behavior: When Is It RAPE?

By NANCY GIBBS

Be careful of strangers and hurry home, says a mother to her daughter, knowing that the world is a frightful place but not wishing to swaddle a child in fear. Girls grow up scarred by caution and enter adulthood eager to shake free of their parents' worst nightmares. They still know to be wary of strangers. What they don't know is whether they have more to fear from their friends.

Most women who get raped are raped by people they already know -- like the boy in biology class, or the guy in the office down the hall, or their friend's brother. The familiarity is enough to make them let down their guard, sometimes even enough to make them wonder afterward whether they were "really raped." What people think of as "real rape" -- the assault by a monstrous stranger lurking in the shadows -- accounts for only 1 out of 5 attacks.

So the phrase "acquaintance rape" was coined to describe the rest, all the cases of forced sex between people who already knew each other, however casually. But that was too clinical for headline writers, and so the popular term is the narrower "date rape," which suggests an ugly ending to a raucous night on the town.

These are not idle distinctions. Behind the search for labels is the central mythology about rape: that rapists are always strangers, and victims are women who ask for it. The mythology is hard to dispel because the crime is so rarely exposed. The experts guess -- that's all they can do under the circumstances -- that while 1 in 4 women will be raped in her lifetime, less than 10% will report the assault, and less than 5% of the rapists will go to jail.

When a story of the crime lodges in the headlines, the myths have a way of cluttering the search for the truth. The tale of Good Friday in Palm Beach landed in the news because it involved a Kennedy, but it may end up as a watershed case, because all the mysteries and passions surrounding date rape are here to be dissected. William Kennedy Smith met a woman at a bar, invited her back home late at night and apparently had sex with her on the lawn. She says it was rape, and the police believed her story enough to charge him with the crime. Perhaps it was the bruises on her leg; or the instincts of the investigators who found her, panicked and shaking, curled up in the fetal position on a couch; or the lie-detector tests she passed.

On the other side, Smith has adamantly protested that he is a man falsely accused. His friends and family testify to his gentle nature and moral fiber and insist that he could not possibly have committed such a crime. Maybe the truth will come out in court -- but regardless of its finale, the case has shoved the debate over date rape into the minds of average men and women. Plant the topic in a conversation, and chances are it will ripen into a bitter argument or a jittery sequence of pale jokes.

Women charge that date rape is the hidden crime; men complain it is hard to prevent a crime they can't define. Women say it isn't taken seriously; men say it is a concept invented by women who like to tease but not take the consequences. Women say the date-rape debate is the first time the nation has talked frankly about sex; men say it is women's unconscious reaction to the excesses of the sexual revolution. Meanwhile, men and women argue among themselves about the "gray area" that surrounds the whole murky arena of sexual relations, and there is no consensus in sight.

In court, on campus, in conversation, the issue turns on the elasticity of the word rape, one of the few words in the language with the power to summon a shared image of a horrible crime.

At one extreme are those who argue that for the word to retain its impact, it must be strictly defined as forced sexual intercourse: a gang of thugs jumping a jogger in Central Park, a psychopath preying on old women in a housing complex, a man with an ice pick in a side street. To stretch the definition of the word risks stripping away its power. In this view, if it happened on a date, it wasn't rape. A romantic encounter is a context in which sex could occur, and so what omniscient judge will decide whether there was genuine mutual consent?

Others are willing to concede that date rape sometimes occurs, that sometimes a man goes too far on a date without a woman's consent. But this infraction, they say, is not as ghastly a crime as street rape, and it should not be taken as seriously. The New York Post, alarmed by the Willy Smith case, wrote in a recent editorial, "If the sexual encounter, forced or not, has been preceded by a series of consensual activities -- drinking, a trip to the man's home, a walk on a deserted beach at 3 in the morning -- the charge that's leveled against the alleged offender should, it seems to us, be different than the one filed against, say, the youths who raped and beat the jogger."

This attitude sparks rage among women who carry scars received at the hands of men they knew. It makes no difference if the victim shared a drink or a moonlit walk or even a passionate kiss, they protest, if the encounter ended with her being thrown to the ground and forcibly violated. Date rape is not about a misunderstanding, they say. It is not a communications problem. It is not about a woman's having regrets in the morning for a decision she made the night before. It is not about a "decision" at all. Rape is rape, and any form of forced sex -- even between neighbors, co-workers, classmates and casual friends -- is a crime.

A more extreme form of that view comes from activists who see rape as a metaphor, its definition swelling to cover any kind of oppression of women. Rape, seen in this light, can occur not only on a date but also in a marriage, not only by violent assault but also by psychological pressure. A Swarthmore College training pamphlet once explained that acquaintance rape "spans a spectrum of incidents and behaviors, ranging from crimes legally defined as rape to verbal harassment and inappropriate innuendo."

No wonder, then, that the battles become so heated. When innuendo qualifies as rape, the definitions have become so slippery that the entire subject sinks into a political swamp. The only way to capture the hard reality is to tell the story.

A 32-year-old woman was on business in Tampa last year for the Florida supreme court. Stranded at the courthouse, she accepted a lift from a lawyer involved in her project. As they chatted on the ride home, she recalls, "he was saying all the right things, so I started to trust him." She agreed to have dinner, and afterward, at her hotel door, he convinced her to let him come in to talk. "I went through the whole thing about being old-fashioned," she says. "I was a virgin until I was 21. So I told him talk was all we were going to do."

But as they sat on the couch, she found herself falling asleep. "By now, I'm comfortable with him, and I put my head on his shoulder. He's not tried anything all evening, after all." Which is when the rape came. "I woke up to find him on top of me, forcing himself on me. I didn't scream or run. All I could think about was my business contacts and what if they saw me run out of my room screaming rape.

"I thought it was my fault. I felt so filthy, I washed myself over and over in hot water. Did he rape me?, I kept asking myself. I didn't consent. But who's gonna believe me? I had a man in my hotel room after midnight." More than a year later, she still can't tell the story without a visible struggle to maintain her composure. Police referred the case to the state attorney's office in Tampa, but without more evidence it decided not to prosecute. Although her attacker has admitted that he heard her say no, maintains the woman, "he says he didn't know that I meant no. He didn't feel he'd raped me, and he even wanted to see me again."

Her story is typical in many ways. The victim herself may not be sure right away that she has been raped, that she had said no and been physically forced into having sex anyway. And the rapist commonly hears but does not heed the protest. "A date rapist will follow through no matter what the woman wants because his agenda is to get laid," says Claire Walsh, a Florida-based consultant on sexual assaults. "First comes the dinner, then a dance, then a drink, then the coercion begins." Gentle persuasion gives way to physical intimidation, with alcohol as the ubiquitous lubricant. "When that fails, force is used," she says. "Real men don't take no for an answer."

The Palm Beach case serves to remind women that if they go ahead and press charges, they can expect to go on trial along with their attacker, if not in a courtroom then in the court of public opinion. The New York Times caused an uproar on its own staff not only for publishing the victim's name but also for laying out in detail her background, her high school grades, her driving record, along with an unattributed quote from a school official about her "little wild streak." A freshman at Carleton College in Minnesota, who says she was repeatedly raped for four hours by a fellow student, claims that she was asked at an administrative hearing if she performed oral sex on dates. In 1989 a man charged with raping at knife point a woman he knew was acquitted in Florida because his victim had been wearing lace shorts and no underwear.

From a purely legal point of view, if she wants to put her attacker in jail, the survivor had better be beaten as well as raped, since bruises become a badge of credibility. She had better have reported the crime right away, before taking the hours-long shower that she craves, before burning her clothes, before curling up with the blinds down. And she would do well to be a woman of shining character. Otherwise the strict constructionist definitions of rape will prevail in court. "Juries don't have a great deal of sympathy for the victim if she's a willing participant up to the nonconsensual sexual intercourse," says Norman Kinne, a prosecutor in Dallas. "They feel that many times the victim has placed herself in the situation." Absent eyewitnesses or broken bones, a case comes down to her word against his, and the mythology of rape rarely lends her the benefit of the doubt.

She should also hope for an all-male jury, preferably composed of fathers with daughters. Prosecutors have found that women tend to be harsh judges of one another -- perhaps because to find a defendant guilty is to entertain two grim realities: that anyone might be a rapist, and that every woman could find herself a victim. It may be easier to believe, the experts muse, that at some level the victim asked for it. "But just because a woman makes a bad judgment, does that give the guy a moral right to rape her?" asks Dean Kilpatrick, director of the Crime Victim Research and Treatment Center at the Medical University of South Carolina. "The bottom line is, Why does a woman's having a drink give a man the right to rape her?"

Last week the Supreme Court waded into the debate with a 7-to-2 ruling that protects victims from being harassed on the witness stand with questions about their sexual history. The Justices, in their first decision on "rape shield laws," said an accused rapist could not present evidence about a previous sexual relationship with the victim unless he notified the court ahead of time. In her decision, Justice Sandra Day O'Connor wrote that "rape victims deserve heightened protection against surprise, harassment and unnecessary invasions of privacy."

That was welcome news to prosecutors who understand the reluctance of victims to come forward. But there are other impediments to justice as well. An internal investigation of the Oakland police department found that officers ignored a quarter of all reports of sexual assaults or attempts, though 90% actually warranted investigation. Departments are getting better at educating officers in handling rape cases, but the courts remain behind. A New York City task force on women in the courts charged that judges and lawyers were routinely less inclined to believe a woman's testimony than a man's.

The present debate over degrees of rape is nothing new: all through history, rapes have been divided between those that mattered and those that did not. For the first few thousand years, the only rape that was punished was the defiling of a virgin, and that was viewed as a property crime. A girl's virtue was a marketable asset, and so a rapist was often ordered to pay the victim's father the equivalent of her price on the marriage market. In early Babylonian and Hebrew societies, a married woman who was raped suffered the same fate as an adulteress -- death by stoning or drowning. Under William the Conqueror, the penalty for raping a virgin was castration and loss of both eyes -- unless the violated woman agreed to marry her attacker, as she was often pressured to do. "Stealing an heiress" became a perfectly conventional means of taking -- literally -- a wife.

It may be easier to prove a rape case now, but not much. Until the 1960s it was virtually impossible without an eyewitness; judges were often required to instruct jurors that "rape is a charge easily made and hard to defend against; so examine the testimony of this witness with caution." But sometimes a rape was taken very seriously, particularly if it involved a black man attacking a white woman -- a crime for which black men were often executed or lynched.

Susan Estrich, author of Real Rape, considers herself a lucky victim. This is not just because she survived an attack 17 years ago by a stranger with an ice pick, one day before her graduation from Wellesley. It's because police, and her friends, believed her. "The first thing the Boston police asked was whether it was a black guy," recalls Estrich, now a University of Southern California law professor. When she said yes and gave the details of the attack, their reaction was, "So, you were really raped." It was an instructive lesson, she says, in understanding how racism and sexism are factored into perceptions of the crime.

A new twist in society's perception came in 1975, when Susan Brownmiller published her book Against Our Will: Men, Women and Rape. In it she attacked the concept that rape was a sex crime, arguing instead that it was a crime of violence and power over women. Throughout history, she wrote, rape has played a critical function. "It is nothing more or less than a conscious process of intimidation, by which all men keep all women in a state of fear."

Out of this contention was born a set of arguments that have become politically correct wisdom on campus and in academic circles. This view holds that rape is a symbol of women's vulnerability to male institutions and attitudes. "It's sociopolitical," insists Gina Rayfield, a New Jersey psychologist. "In our culture men hold the power, politically, economically. They're socialized not to see women as equals."

This line of reasoning has led some women, especially radicalized victims, to justify flinging around the term rape as a political weapon, referring to everything from violent sexual assaults to inappropriate innuendos. Ginny, a college senior who was really raped when she was 16, suggests that false accusations of rape can serve a useful purpose. "Penetration is not the only form of violation," she explains. In her view, rape is a subjective term, one that women must use to draw attention to other, nonviolent, even nonsexual forms of oppression. "If a woman did falsely accuse a man of rape, she may have had reasons to," Ginny says. "Maybe she wasn't raped, but he clearly violated her in some way."

Catherine Comins, assistant dean of student life at Vassar, also sees some value in this loose use of "rape." She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. "To use the word carefully would be to be careful for the sake of the violator, and the survivors don't care a hoot about him." Comins argues that men who are unjustly accused can sometimes gain from the experience. "They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. 'How do I see women?' 'If I didn't violate her, could I have?' 'Do I have the potential to do to her what they say I did?' Those are good questions."

Taken to extremes, there is an ugly element of vengeance at work here. Rape , is an abuse of power. But so are false accusations of rape, and to suggest that men whose reputations are destroyed might benefit because it will make them more sensitive is an attitude that is sure to backfire on women who are seeking justice for all victims. On campuses where the issue is most inflamed, male students are outraged that their names can be scrawled on a bathroom-wall list of rapists and they have no chance to tell their side of the story.

"Rape is what you read about in the New York Post about 17 little boys raping a jogger in Central Park," says a male freshman at a liberal-arts college, who learned that he had been branded a rapist after a one-night stand with a friend. He acknowledges that they were both very drunk when she started kissing him at a party and ended up back in his room. Even through his haze, he had some qualms about sleeping with her: "I'm fighting against my hormonal instincts, and my moral instincts are saying, 'This is my friend and if I were sober, I wouldn't be doing this.' " But he went ahead anyway. "When you're drunk, and there are all sorts of ambiguity, and the woman says 'Please, please' and then she says no sometime later, even in the middle of the act, there still may very well be some kind of violation, but it's not the same thing. It's not rape. If you don't hear her say no, if she doesn't say it, if she's playing around with you -- oh, I could get squashed for saying it -- there is an element of say no, mean yes."

The morning after their encounter, he recalls, both students woke up hung over and eager to put the memory behind them. Only months later did he learn that she had told a friend that he had torn her clothing and raped her. At this point in the story, the accused man starts using the language of rape. "I felt violated," he says. "I felt like she was taking advantage of me when she was very drunk. I never heard her say 'No!,' 'Stop!,' anything." He is angry and hurt at the charges, worried that they will get around, shatter his reputation and force him to leave the small campus.

So here, of course, is the heart of the debate. If rape is sex without consent, how exactly should consent be defined and communicated, when and by whom? Those who view rape through a political lens tend to place all responsibility on men to make sure that their partners are consenting at every point of a sexual encounter. At the extreme, sexual relations come to resemble major surgery, requiring a signed consent form. Clinical psychologist Mary P. Koss of the University of Arizona in Tucson, who is a leading scholar on the issue, puts it rather bluntly: "It's the man's penis that is doing the raping, and ultimately he's responsible for where he puts it."

Historically, of course, this has never been the case, and there are some who argue that it shouldn't be -- that women too must take responsibility for their behavior, and that the whole realm of intimate encounters defies regulation from on high. Anthropologist Lionel Tiger has little patience for trendy sexual politics that make no reference to biology. Since the dawn of time, he argues, men and women have always gone to bed with different goals. In the effort to keep one's genes in the gene pool, "it is to the male advantage to fertilize as many females as possible, as quickly as possible and as efficiently as possible." For the female, however, who looks at the large investment she will have to make in the offspring, the opposite is true. Her concern is to "select" who "will provide the best set up for their offspring." So, in general, "the pressure is on the male to be aggressive and on the female to be coy."

No one defends the use of physical force, but when the coercion involved is purely psychological, it becomes hard to assign blame after the fact. Journalist Stephanie Gutmann is an ardent foe of what she calls the date-rape dogmatists. "How can you make sex completely politically correct and completely safe?" she asks. "What a horribly bland, unerotic thing that would be! Sex is, by nature, a risky endeavor, emotionally. And desire is a violent emotion. These people in the date-rape movement have erected so many rules and regulations that I don't know how people can have erotic or desire- driven sex."

Nonsense, retorts Cornell professor Andrea Parrot, co-author of Acquaintance Rape: The Hidden Crime. Seduction should not be about lies, manipulation, game playing or coercion of any kind, she says. "Too bad that people think that the only way you can have passion and excitement and sex is if there are miscommunications, and one person is forced to do something he or she doesn't want to do." The very pleasures of sexual encounters should lie in the fact of mutual comfort and consent: "You can hang from the ceiling, you can use fruit, you can go crazy and have really wonderful sensual erotic sex, if both parties are consenting."

It would be easy to accuse feminists of being too quick to classify sex as rape, but feminists are to be found on all sides of the debate, and many protest the idea that all the onus is on the man. It demeans women to suggest that they are so vulnerable to coercion or emotional manipulation that they must always be escorted by the strong arm of the law. "You can't solve society's ills by making everything a crime," says Albuquerque attorney Nancy Hollander. "That comes out of the sense of overprotection of women, and in the long run that is going to be harmful to us."

What is lost in the ideological debate over date rape is the fact that men and women, especially when they are young, and drunk, and aroused, are not very good at communicating. "In many cases," says Estrich, "the man thought it was sex, and the woman thought it was rape, and they are both telling the truth." The man may envision a celluloid seduction, in which he is being commanding, she is being coy. A woman may experience the same event as a degrading violation of her will. That some men do not believe a woman's protests is scarcely surprising in a society so drenched with messages that women have rape fantasies and a desire to be overpowered.

By the time they reach college, men and women are loaded with cultural baggage, drawn from movies, television, music videos and "bodice ripper" romance novels. Over the years they have watched Rhett sweep Scarlett up the stairs in Gone With the Wind; or Errol Flynn, who was charged twice with statutory rape, overpower a protesting heroine who then melts in his arms; or Stanley rape his sister-in-law Blanche du Bois while his wife is in the hospital giving birth to a child in A Streetcar Named Desire. Higher up the cultural food chain, young people can read of date rape in Homer or Jane Austen, watch it in Don Giovanni or Rigoletto.

The messages come early and often, and nothing in the feminist revolution has been able to counter them. A recent survey of sixth- to ninth-graders in Rhode Island found that a fourth of the boys and a sixth of the girls said it was acceptable for a man to force a woman to kiss him or have sex if he has spent money on her. A third of the children said it would not be wrong for a man to rape a woman who had had previous sexual experiences.

Certainly cases like Palm Beach, movies like The Accused and novels like Avery Corman's Prized Possessions may force young people to re-examine assumptions they have inherited. The use of new terms, like acquaintance rape and date rape, while controversial, has given men and women the vocabulary they need to express their experiences with both force and precision. This dialogue would be useful if it helps strip away some of the dogmas, old and new, surrounding the issue. Those who hope to raise society's sensitivity to the problem of date rape would do well to concede that it is not precisely the same sort of crime as street rape, that there may be very murky issues of intent and degree involved.

On the other hand, those who downplay the problem should come to realize that date rape is a crime of uniquely intimate cruelty. While the body is violated, the spirit is maimed. How long will it take, once the wounds have healed, before it is possible to share a walk on a beach, a drive home from work or an evening's conversation without always listening for a quiet alarm to start ringing deep in the back of the memory of a terrible crime?

CHART: NOT AVAILABLE

CREDIT: From a telephone poll of 500 American adults taken for TIME/CNN on May 8 by Yankelovich Clancy Shulman. Sampling error is plus or minus 4.5%. "Not sures" omitted.

CAPTION: Would you clasify the following as rape or not?

Do you believe a woman who is raped is partly to blame if:

With reporting by Sylvester Monroe/Los Angeles, Priscilla Painton and Anastasia Toufexis/New York