The Duke rape case has finally been reduced to a blatantly false accusation, with the charges all dropped. Some are saying that now that the accuser has been exposed as a liar and the rape a fabrication, the protection of the rape shield law should end and her name be published.
That would certainly discourage trumped-up charges. But it would also have to be limited only to the most egregious of cases, ones in which the accusations of rape were utterly false and malicious from the start and could be proven to be so.
Rape law is inherently problematic. There are certain areas (usually the deeper ones of the human heart/mind/body) where the law is an especially imperfect tool, and always will be no matter how much effort is made at fine tuning. Divorce and child custody is one such area, and rape is most definitely another.
The history of rape laws makes for very sobering reading indeed, a long sordid past not only of sexual violence against women, but widespread times and places in which they were treated like chattel, punished for the “crime” of having been raped, assumed to have led men on, and discouraged from reporting a rape because of the close examination (in a very harsh light) of every aspect of their sex lives that was sure to follow.
It was centuries ago that English common law, on which our law is based, advanced to the point where the raped woman was not given a sentence (or even killed) afterwards. But more recent changes in rape laws, like so many other changes in our society, were the result of the social revolution of the 60s. The miscarriages of justice they were designed to redress were serious ones. But, as with so many changes, there was an overcorrection—or, if not an overcorrection, then a new danger entered the picture, traded for the old.
Earlier laws were designed to shield the man and protect him from what was considered the exceedingly high risk of false accusation. Under those earlier laws a woman had to think long and hard before even a bona fide accusation of rape: her previous sex life would become fair game, there needed to be corroboratory evidence of the crime, and her identity was made public with all the attendant shame this caused in a society much more inclined to consider a raped woman sullied goods or a tramp who asked for it.
The net result was that many raped women declined to prosecute, and rapists went free to rape again. The law had a particular interest in protecting the man, and it was considered in great measure the woman’s duty to protect herself.
The older rape laws were embedded in a societal structure that regulated women’s freedom in a way hard to fathom today. And yet many of these mores were still in place in my own youth, and I’m not that old. No, an unmarried woman wasn’t required to have a chaperone for any encounter with a man who wasn’t a close relative, as in an earlier century. But boys were only allowed on the ground floor of a girls’ dormitory and were confined to the public areas (at least three of the four feet owned by a couple needed to be on the floor, please, as they necked—archaic word, that—on the couches).
We girls knew the rules, and they weren’t just empty meaningless exercises. I recall being on the terrace of a fraternity house in my college days, at a party, and hearing some raised voices upstairs, one of a woman, quite drunk. A female head with long blond hair (a fellow student from my dorm whom I knew, although not very well) poked out from one of the windows on the upper floor (where we were not allowed!). She yelled some slurred words to raucous laughter. Just as quickly, her head was withdrawn, but she didn’t come down, and all of us girls knew what was going on.
Or rather, we knew and didn’t know, all at the same time. The details could be imagined, and they weren’t good. Whether the sex she was having was group or individual, technically consensual or non, we downstairs knew that she’d put herself in a highly vulnerable position.
Did we think she was to blame? At least partly—not for whatever rape might be occurring (even then I would have put that responibility squarely at the proverbial feet of the guys involved) but for sheer stupidity and reckless behavior. Everyone knew the code, even though we found the whole situation distasteful and sad, and wished it were otherwise.
And then, later on, it became otherwise. If a woman such as the one in that upstairs fraternity room had been gang-raped while drunk, she could prosecute without fear of being judged guilty herself. This was a good thing. But it led to some bad things, as many good things do, and the Duke rape case was one of them. It has gotten to the point where false accusations are too easy to make, and the consequences too light.
I’m all for female freedom. But the checks and balances of the society in which I was raised, restrictive and limiting though they undoubtedly were, kept the behavior of most of us more reasonable. In other words, we learned the art of self-protection and even something known as good judgment, all in all not bad things to learn in this imperfect world.
Because the law isn’t able to prevent all bad things from happening. It can only try to punish the perpetrator after the fact, and that doesn’t mend a broken life or repair a deep trauma.
And sometimes, it doesn’t even punish the guilty. Sometimes the law affords an opportunity to ruin the reputations of the innocent.
In this case, justice triumphed and has exonerated the lacrosse players, although not early enough to have spared them and their families terrible suffering. And perhaps it will even discourage future false accusations if this woman’s name is made public.
There’s no easy solution to these problems. We can’t go back to the days of the three feet on the floor of the public rooms of the unisex dorms, much less the duenna. All of this would be on a continuum where, somewhere down the line, we might end up with the chador and purdah. In the end, the only thing to do is to try to teach young people good judgment, and try to balance the law so that both accuser and accused are protected from the twin evils of blaming the victim and false prosecution.