As they try to prove their case, prosecutors must grapple with the legacy of skepticism toward women’s allegations of rape. True, lawmakers and judges may have excised the more odious barriers to proving rape allegations. But the sentiment remains: Today’s laws are direct descendants and carry the same disbelief, under a new name. In short, even in 2020, the woman’s character and behavior are on trial as much as the man’s.
Consider the rule that a woman’s testimony is worthless without external evidence. “It’s no longer the case that there’s a corroboration requirement as a formal matter,” notes Deborah Tuerkheimer, an expert on rape law at Northwestern University Pritzker School of Law and a former sex-crimes prosecutor in Manhattan. “But how often do we hear someone say, ‘Well, it’s just a he said, she said case’?” Of course the state should guard against false allegations that can ruin a man’s reputation, Tetlow says. But it’s as if “somehow, uniquely of all crimes, rape involves an extraordinary amount of false reporting,” and so a woman’s word deserves higher scrutiny. Tetlow says studies show that about 5 percent of rape allegations turn out to be false—no higher than any other crime.
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I came across this sentiment time and again when researching my Atlantic story on why so few rapes are investigated and prosecuted. Usually, the victim never sees a courtroom. Police tend to pursue only cases involving a “righteous victim”—for example, a woman raped by a stranger with a gun, in an alley, who fought back, who had a clean record, and who had no alcohol in her system. That is a “real rape,” worthy of investigation. But 80 percent of the time, the victim knows her assailant. Prosecutors avoid those cases, even if they believe the woman, anticipating that a jury will not. Central to the “he said, she said” conundrum lurks the issue of consent. How do you prove she resisted, without cuts and bruises? How do you prove the encounter wasn’t a “party rape,” in which a woman drinks too much and has sex, or a matter of “buyer’s remorse”—when a woman consents to sex and then regrets it in the light of day?
In part driven by public outcry, Harvey Weinstein’s case has, against the odds, reached the courtroom. But even here, the issue of consent, and the credibility of the women in this “he said, she said” case, has shaped the prosecutors’ decisions. Early on, for example, they centered their case on Lucia Evans, who alleges that Weinstein forced her to perform oral sex on him at his office in 2004. The district attorney suddenly and publicly dropped her, after a source told investigators that Evans had said the act was consensual—something Evans denies.
When a victim does come forward, she does so at her peril, inside the courtroom and out. Rape-shield laws theoretically prevent a defense attorney from exposing a woman’s sexual history, Tetlow says. But if the victim’s behavior “doesn’t look like the behavior of a nun, she will be attacked.” Society—part of it, at least—may have abandoned the chastity standard and accepted that women should be as free to express their sexuality as men. But in effect, the law has not caught up. At least one alleged victim told The New York Times that she opted not to come forward, because her lawyer warned her that Weinstein would hire investigators to dig through her past. Weinstein’s defense attorney, Donna Rotunno, spelled out the modern-day equivalent of the chastity requirement when she told ABC News: “If you don’t want to be a victim, don’t go to the hotel room.” According to Manning, the former sex-crimes prosecutor, the message is clear: “A woman who goes into a man’s hotel room is by definition a loose woman, and she deserves whatever happens to her.”