Are Rape Laws Reformed Enough?

Image from Pixabay

I was entering the legal profession as it attempted a sexism flush.

I became a police magistrate about the time women in policing were achieving some kind of critical mass. There were enough of them to come off street patrol and make detectives. My public service was in the People’s Republic of Austin, and while we had some major disputes about domestic violence within the criminal justice system, most of the hurdles were not placed by the police and, honestly, I cannot imagine the case I’m about to report taking place in Austin back in the late seventies.

Like Austin, Lawrence, Kansas is a university town in a generally conservative state. Good universities create a pronounced progressive bias that codes as liberal among the conservative establishmentarians. I say “progressive” because top shelf professors do not get paid to look backwards and when you must publish or perish, you must at least know the location of the cutting edge.

A 30 year old graduate student at the University of Kansas is the involuntary subject of this story. I have gleaned what I take to be the pertinent facts from articles by Katie Shepherd in the October 29 Washington Post, Katie Bernard in the September 8 Kansas City Star, and reporting by KCTV, Channel Five in Kansas City. I have linked all of them, just in case I overlooked something.

The story begins in September of 2018, as these stories often do, with way too much drinking. The student awoke in an apartment belonging to the best friend of her “on again-off again” boyfriend. She was naked, still drunk, and had no memory of how she got there.

She sent some text messages to a close woman friend. Some were sent while she was still intoxicated and some the next day. She does not remember all of them. From the reports, I can’t tell which messages were sent on what date, but I’m going to line up her texts in my best guess of chronological order:

Ummmm I fucked up…

I slept with *****

I know… like I kind of feel terrible about it

I know… maybe I should just start an antibiotic.

I know! It’s gross… he’s actually really good at sex though.

Later that same morning:

Get here fast. I’m literally about to have a breakdown.

This one was certainly sent later according to reports. Her friend had been urging her to document what happened. Concerned about what reporting a rape might do to her career, she called the police and said she did not wish to press charges but rather to document the evidence in case it happened again. This text was sent a few minutes before she met police at the hospital:

I’m pretty sure it was borderline rape and I have the bruises and statements to prove it so if you want to go there let’s do it.

As her sobriety returned, some of her memory of the night did, and she remembered waking up twice while he was in the act. The first time she just said, “No.” The second time she was able to push him off her.

After taking her statement, the police asked for her cell phone, which she handed over. They found the messages above.

The police agreed among themselves that she was lying. The subject of the investigation became false report rather than rape. They did not, of course, inform the woman, but they did proceed to interview the alleged rapist.

He admitted the intercourse but claimed it was consensual. He, too, had written some subsequent text messages:

We at sandbar man lol we got on the road and she was so fucked up I was like hell Na

A friend responded:

Lmao thank God cause she was really lolo

Then another friend responded:

She looked fucked up yo. You didn’t even look tipsy.

While the woman declined to make a criminal complaint, she did pursue her administrative remedies at the University of Kansas.

Five months later, the police called to say they needed to talk to her again. When she showed up, they put handcuffs on her and told her she was charged with making a false report.

The case caused considerable uproar in Lawrence, particularly in the university community. The prosecutor claimed some of the allegations in the media were false, but he never said which ones. He did seek a gag order from the trial judge, which was opposed by KCTV.

At some point, the Times Up Legal Defense Fund, a creation of the Me Too Movement, started helping cover her legal fees.

The case was set for trial in January, 2019, but the prosecutor blinked and dismissed the case. Still, though, he claimed it was a correctly brought case but he was dropping it for the good of the community.

This circles back to the question whether rape laws are where we want them to be.

The Supreme Court, in the wake of a number of DNA exonerations, took the death penalty off the table in most cases by holding that the death penalty could not be imposed for the rape of an adult woman with no further injury.

Rules of evidence were tweaked to severely restrict the use of a victim’s prior sexual history at trial.

Statutes were amended so that a man could be charged with rape of his wife, a message Michael Cohen had not gotten when he worked for Donald Trump and was threatening a reporter over mentioning the claim of rape in Trump’s first divorce case.

Unfounded rape allegations do happen, but I have yet to read a study that finds a percentage of all cases in double digits. The district attorney in Kansas claimed to be aware of the research on false reports but insisted this case was one.

It’s hard for me to fully evaluate the district attorney’s claim when he will not say what part of the public story those of us who attend to such things ought to disregard, so I am stuck with another memory of a legal change from the wave of rape reforms.

The problem to be addressed was that the courts were requiring physical resistance before they would convict a rapist. Substantial physical resistance, to the point where in some jurisdictions women had to risk their lives to have any hope of winning a rape prosecution.

Legislatures responded by doing away with the requirement of physical resistance entirely. Rape became much simpler:

*sexual intercourse

*without effective consent

The most common examples of ineffective consent are children — who lack the capacity to consent to sexual intercourse as a matter of law — and persons who are too intoxicated to consent.

In this instance, I see evidence of extreme intoxication coming from both sides of the case. That leads me to wonder why the prosecutor thought the intercourse was consensual? Give him the point that people get rowdy in bed and the bruises do not, alone, prove lack of consent. Still, a drunk cannot consent.

If he has evidence not in the public record that she was sober, he ought to put it in the public record. Otherwise, if you were raped in Lawrence, Kansas, would you report it?

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

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