In 2007, a 54-year-old Montana man raped his 14-year-old student. She confided in a church group leader, and her former teacher was charged. Then she killed herself. Six years after the incident, in 2013, he was sentenced to 31 days in jail (a sentence later overturned). At the sentencing, the judge said the victim looked older than her years and was "probably as much in control of the situation as was the defendant."
In February 2014, an 18-year-old raped a 14-year-old and was sentenced to 250 hours of community service at the Dallas Rape Crisis Center and deferred adjudication, which meant the conviction would be erased from his record if he successfully completed the terms of his probation—as if he had gotten a speeding ticket or stolen a t-shirt. As for the community service, the Dallas Rape Crisis Center's response was essentially, "Thanks but no thanks." Bobbie Villareal, director of the center, said it would be inappropriate to have him there.
When the Dallas Morning News asked the judge to clarify her decision, she told the reporter that the girl "wasn't the victim she claimed to be," citing medical records that showed the girl had prior sexual experience and had traded racy texts with her assailant before the incident. Here is how the rapist—not the girl who was raped, but the rapist—described the assault in a written statement to police:
She and I started kissing, so I started to put my hand in her pants. She said no twice before I stopped. Then we started to kiss again and & this time I took her pants off & mine as well. She kept saying "no" and "stop" but I just didn't stop. [Afterward] she said, "Oh my god why did you do this?" I couldn't even answer. I just said sorry numerous times because I couldn't believe I had did that.
During testimony, the judge asked the girl whether she cried during and after the assault. So maybe she just didn't cry enough? But she did say "no"—by everyone's version of the events, including the defendant's.
Maybe it took all the bravery in her, all of the strength she could muster, to look her own victimhood in the face and accept it. To try to save herself from that horror, she let herself become a victim.
Jed Rubenfeld suggests that is not enough. He wants that she should push back, require her rapist to show his full strength so she can accuse him later. Under Rubenfeld's preferred definition for the law, she should dehumanize herself further for it to be considered a true act of rape (because, by definition, there is no force unless there is resistance). Despite the terrible, visceral knowledge that she is unlikely to win any physical match against him, she has to try and fail. A real woman confirms her weakness by proving it.
Sometimes, saying no is as brave as a person can be. Isn't that brave enough?
These stories become tiresome to read, I imagine. They are tiresome to write. We hear them, we hate hearing them, and we hate not knowing what to do about them.
I don't know what we are supposed to do. But I think one thing is not to accept Jed Rubenfeld's definition of rape.
If a man tries to shove a banana down my throat, will I scream? I might. Will I fight back? Probably. But even in my imagination, when I fight, I know I will probably lose.