In the opinion of the court you are….

They had been introduced at the bar by the high school friend she had met there for drinks.   As it neared midnight she told her friend that she was ready to go and to stay if she liked when he asked if she could give him a ride home “I don’t live very far.”  They both walked out to the parking lot “I’m just giving you a ride home you know, as a friend” she told him peeking at him sideways as they drove away.   They arrived shortly after in a neighborhood she had never been to before, he asked her to come up to his place, yet she said no, “even if I wanted to I’m still married.”  A sly smile slid onto his face as he reached over and took the keys from the ignition and opened his door.  He strode around to her door, opened it, and inquired “now will you come up?”   Well now, what choice did a girl have?

Take a minute to gauge your reaction to this paragraph, what tone did it have while you were reading it? Does this sound like the prelude to a romantic night or the opening restatement, in front of a court, of events that led up to a rape?  This was the premise of Rusk v. Maryland a situation that occurred where, within the right context, the actions that led up to a rape could have been construed as prelude to an intimate, consensual, sexual encounter.

This seems to be the core problem with many things of this nature, preexisting opinions about people’s backgrounds and lifestyles changes the way we view evidence.  As it said in the case, we have no way of knowing the whether his voice held a jovial tone or a threatening one.  We cannot say that she didn’t ‘give up the proper fight’ because she had a child at home and was afraid she would never see her baby again.  Our personal opinions about the assailant and the victim in a rape case color our judgment much more than in a case involving a burglary or home invasion.  In all instances a person’s rights were violated, things were taken that are hard or impossible to replace, and yet we still delve into a rape victim’s background much more than in a robbery victim.

Take the current case of the Craigslist Rapist, 44 year-old Charles Oliver responded to ads placed on the site for sex by women that the court deemed escorts and prostitutes.  When these women would meet the defendant at his home he would become violent and threatened to kill some of them if they went to police.

The woman featured in Rusk was an example of a perfect victim, a young mother who was out drinking responsibly with a friend after their high school reunion, and was trying to work things out with her estranged husband.  There was no way she was ‘asking for it’ when she got raped.  The women in this case though are not easily defended victims.  By placing for sex on Craigslist they paint themselves a whore, a far cry away from a Madonna the prosecutors wish they had.  The problem with a scenario like this one is that there are very little protections for people that offer up their bodies but experts claim that this case has the potential to challenge the public’s view of rape.  The fact that money changed hand shouldn’t be a factor, instead the courts need to take into account that one person said no and the other didn’t stop.  Categorizing these women as sex workers though automatically puts the opinion in the minds of the judge and jury that their story may not be as credible as it is because of who they are and what they do. It is unfair to say what a rape victim should or should not have done, what they situation they should or should not have put themselves in, instead of judging the victim we need to focus on the defendant and the crime.

Remember the story at the beginning at the beginning of the blog and realize that we as a society need to be mindful of our prejudices especially when it comes to lifestyles that we may deem deviant.  Just because we don’t choose to live our life that way doesn’t mean that we should judge someone who does, treating them like less of a person. At one time or another we have all done something that someone else might consider deviant.

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12 Responses to In the opinion of the court you are….

  1. rubit91 says:

    When I read the case you mentioned in the beginning of your post, I must admit that in the beginning I wondered “how is it that she got raped? Why would she offer a stranger a ride?”. But as I continued reading and read it again, I understood the entire scenario. In many bad/negative situations, we do not know how to react especially when we have a lot to lose. Which in her case, she could’ve lost her life and the possibility of never seeing her child again. Overall, rape cases are extremely sensitive and sometimes can cause me a lot of anger. Not only because what the victim has gone through is horrific, but the fact that in many cases there’s too many “but’s’” which are against the victim and support the rapist. It should not matter what the victim does for living, who she/he is, if the rapist is someone they know, etc. What the court should focus on is the fact that a person was raped.

  2. newbieblogster13 says:

    I completely agree with you. It is a shame how society has turned its back on rape victims and contend with all the actions of the victim rather than the defendant. There are so many various reasons why a women may have to give in to their attacker’s will and it seems our system is only set onto helping those who had actually physically struggled rather than mentally struggled. Many victims fear for their lives and so they have no other choice than to submit, but that does not make it consensual sex. I also agree that people should not be judged for their life choices such as working as a prostitute. Their job is not the most reputable one but that does not make it okay for someone to be raped.

  3. theginja says:

    Well …. I am not sure what you’re saying here. We can all certainly agree that rape did in fact happen in the Rusk case, I hope this much is not in dispute. I am just not necessarily sure how to interpret the analogy with the prostitutes/sex workers. I agree that connoted feelings we place on victims due to their chosen profession should not matter. And personally, I have nothing against prostitution. But, to the point at hand, I disagree that “the fact that money changed hands shouldn’t matter”. I think this muddies the water a tremendous amount, so much so that it makes the actual “rape” hard to find. Assault? yes, absolutely. Breach of contract? Uh huh. Rape? It is iffy. The financial transaction makes all of the difference in the world!

    The DOJ defines rape as, “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex of another person, without the consent of the victim”. Abandoning all assumptions we have of the practice of prostitution, and our opinions to the moral and ethical standing of the practice … a prostitute is a service provider. In this case he/she says, ‘I will provide _______ service, for $XX amount of dollars”. Now, if that service is sexual in nature, the provider gives consent to the previously agreed upon act upon acceptance of money. Therefor taking away the key component to rape, the non-consent. Now, this doesn’t permit the client to “do as he/she wishes”. It doesn’t permit them to be violent. It doesn’t permit them to be degrading.

    Before I get slammed in here, I’m not in anyway defending the Craigslist dude. I’m just saying that in the case of prostitution, it does in fact matter, and it is in these cases that “rape law” can be found woefully lacking because there is no way to get around the ‘consent’ or ‘non-consent’ problem. It becomes a service contract at that point. (Keep in mind, contracts require: an Offer, Acceptance, mutual agreement, purpose, and both parties must be of sound mind.) pretend we are in a world where there is legal prostitution. Lets say person X gives person Y $100 to do Z task. It doesn’t matter what Z is (as long as it is legal … I know prostitution is illegal, but this is a thought experiment), If person Y takes the money, and does not do Z, its breach of contract. That is a legitimate grievance. On the other hand, if the agreed upon task is oral sex; but the client forces vaginal sex. Then that would be a breach as well and the prostitution would have a legitimate grievance (rape).

    Snap back to reality, prostitution is illegal, and we know that. And because it is illegal, its done in back alleys and shady clubs. Without explicit agreements and contracts. And probably by men and women who are coerced in the profession. But we should be able to see how muddy the waters have gotten. The prostitute literally says, “you can have sex with me for money.” Once that happens, there is consent. Not the passive kind of silent consent, or the “not fighting back” kind of consent. It is an open, active form of consent to sexual intercourse by which they initiated through active solicitation.

    To me, it sounds like money changing hands does in fact make a difference.

    • dlsimps2 says:

      While I see your point I still agree with the money changing hands statement that I put in my blog from the article. In both cases, hypothetical and reality, it is always possible to revoke a ‘contract’ for various reasons. The minute that person Y took the money on pretense of committing act Z and person X stepped outside the bounds of that contract it was null and void making the fact that money changed hands irrelevant. Person Y was now no longer in a position to revoke the contract and give back the money.

      • theginja says:

        Contracts don’t become “null and void” when one party changes their mind, and you cannot unilaterally “revoke” them. I wish they did … it would make debt easier to deal with!

        Like I said though, once the client steps outside his or her bounds, of course there is a grievance, this much is granted. But, the money at the initiation of participation is a key component, you cannot simply overlook it. That is what makes the rape charge hard to find.

        X: “She said i could have sex with her”
        Judge: “So you actively gave your consent to sexual intercourse in sound mind?”
        Y: “Yes … thats my job”
        Judge: “But, you’re saying he raped you”
        Y: “yes … he got violent and I wanted him to stop”
        Judge: “So he assaulted you?”
        Y: “no … he raped me”

        Judge: “You must see the dilemma here?”

        You see, I’m not saying rape is impossible to happen in this circumstance. I’m saying it is nearly impossible to demarcate in the legal sense … because of the money, there can only be active consent. You don’t solicit business, talk terms, exchange money and still claim non-consent. In most rape cases, this is not the case. I’ve advocated in class that the only way to make sex consensual is through active consent (un-coerced vocal affirmation). Even with this … prostitution makes it very muddy. of course, I could be crazy …

    • You are absolutely right that most prostitution would be an act of consent between adults, The unfortunate thing here that I think is being overlooked is that if a woman chooses to exercise her right to say yes to sex and consent to sex, the courts can tarnish her reputation and make it seem as though she no longer has the right to say no. The fact that a financial transaction occurred should be considered as a valid fact to the case but can NOT be the determining factor of whether or not a victim was raped.

      • dlsimps2 says:

        But even within the context of a financial contract (debt) there are repercussions to stepping outside the original bounds of the contract unless two parties agree to come together and renegotiate. If Y charged so much for act A and that money changed hands fine, but if X proceeded to force acts B C and D then that is outside the original contract with not renegotiations and, to me, voiding the original contract. You have to pay back your debt and the institution cannot charge you for borrowing 10,000 originally when you only borrowed 5,000 just as (again in my perception) act A has consent but act B, C, or D does not.

  4. haleyschryver says:

    I disagree that the woman in the Rusk v. Maryland was a “perfect victim.” Even though her case may seem a little clearer than the circumstances of the Craigslist Rapist, her situation was still rather ambiguous to the court. It does seem to most of us that she was obviously raped, but in a legal sense, she wasn’t really a “perfect victim.”

    • dlsimps2 says:

      Do you mean in the sense that she did not actively fight back? I simply meant that between the two, a woman who solicited sex online or a woman who was a wife/mother/good friend, the Rusk v. Maryland woman is a much more cut and dry defense.

  5. yesdelrinc says:

    “Categorizing these women as sex workers though automatically puts the opinion in the minds of the judge and jury that their story may not be as credible as it is because of who they are and what they do.”

    Your argument resonated with me. I find it interesting that as socialized beings we constantly project our own moral codes onto others. We categorize people as “good” and “bad,” “right” or “wrong” based on the very acts that we deem as acceptable and shameful. This seems to me as an indicator of how egotistical we are. We utilize our own willingness as a tool of measure for others to be compared to.

    You bring up a compelling point. It is unfortunate that women who are erotic entertainers or sex workers are not protected under the law. These professions are seen as a co-modification of women, where men are granted full access of the female body and are able to consume and degrade women at their every impulsion. According to popular opinion, women who are in the sex industry are seen as “un-rape-able” because of their expressive sexuality. Due to a conservative undertone, the court usually does not protect these women. These types of rape situations get even more complicated when we consider these questions: What sexual actions constitute rape? Who can be raped? Under which circumstances is it considered rape?

    These women fall in the gray areas of these important questions. We need to have a more radical understanding of sexuality and let go of the conservative, patriarchal rhetoric that continues to oppress these women.

  6. kdmflag says:

    One of the worst results of our societies outlook on sex work is the considered ambiguity between what constitutes rape and assault and what is just rough sex between client and worker. This Craigslist assailant is just the newest face in a long line of aggressive men preying on women that seem to be outside the law.

    • Although i see your point i would disagree about it being a matter of “preying” upon prostitutes. If a deranged person goes to a prostitute and she consents I.E. verbally agrees and money is exchanged she is not being preyed upon. If she freaks out because he is getting weird does that mean he broke the contract? Not necessarily. Did she specify how X deed was to be completed? Did he actively violate any part of the agreement? Frightening someone while having sex if the person already consented does not make it rape it makes it assault. If you make a deal be clear about what is expected and what is given. If it is not a breach of contract then in this case it is not rape.

      Also you said this Craigslist person is just another in a long line. I’m curious if you know of any similar instances that might be beneficial to the conversation?

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