But Debunking Many Myths About Rape - Like "No" Means "No," or That Consent is Required - Could Hurt Female Victims

Sex Without Consent, or When She is Drunk, Isn't Always Rape

Contact

GWU Law School

jbanzhaf@law.gwu.edu

202 994-7229 / 703 527-8418 GWU Law School202 994-7229 / 703 527-8418

End

-- WASHINGTON, D.C. (July 10, 2014): Senator Claire McCaskill's report on campus sexual assaults suggests that she thinks colleges should indoctrinate those who will decide guilt or innocence by providing them with "training" regarding so-called "rape myths"; a procedure which seems to compromise fair adjudication procedures, and may be illegal if not unconstitutional, says "radical feminist" law professor John Banzhaf.Moreover, says Banzhaf, debunking many myths about campus rapes - properly, as part of an open hearing procedure, rather than in secret indoctrination sessions, where both sides can present their evidence and arguments - may hurt rather than help women who report rapes.For example, it is widely believed that having sex with a woman without her consent always constitutes rape, but this is not true in the great majority of states which require the use of force or the threat of force, or that the women be completely helpless, for a man to be found guilty of rape.For example, in North Carolina, the home of Duke where male students have twice successfully challenged their convictions, rape does not occur when a male sexually penetrates a female without her consent if no force is used or threatened. More specifically, there first degree rape can be committed on someone over 13 only if inflicted by "force and against the will of the other person," whereas to constitute second degree rape, the defendant must have vaginal intercourse with someone who is "physically helpless."But North Carolin's narrow definition of "physically helpless" - unconscious or at least unable to resist or communicate - may not include the all-too-familiar situation of a female university student whose ability to consent has been significantly impaired by alcohol, although she can still move and speak, says Banzhaf. Since so many date rape complaints allege that sex occurred without the female student's consent, but without the use of force or the threat of force, a true “rape” may not have occurred.Similarly, students are repeatedly being told that "’no’ means ‘no’," so that any sex which occurs after a women says "no" constitutes rape. But, as noted above, in most states it is not considered rape to have sex after a woman had said "no" unless she is physically helpless (unlikely if she is able to say anything at all) or force or the threat of force by the male is proven.Moreover, a jury may well find that a woman consented to sex even if she said the word "no" where her other statements or actions contradict that single word. For example, a jury is likely to find that a women who lies naked on a bed and says seductively to her male partner "No, Mr. Schoolmaster, do not put that wonderful thing into me" has signaled consent, even though the word "no" was clearly uttered.Another apparent rape myth is that a complainant's statements about what happened in a date rape situation are likely to be true, and should be believed by those determining guilt or innocence.But a recent study showed that in over 90% of the reported sexual assault events which were serious enough to cause insurance losses, the accuser was under the influence of alcohol, and "more than 60 percent of accusers were so intoxicated that they had no clear memory of the assault."This would make it very easy for an attorney to successfully challenge her version of events, says Banzhaf. Moreover, "prior to the assault, 33% of the accusers battled mental health issues." This factor alone could be used to undermine the accuser's credibility, even if no alcohol was involved, suggests Banzhaf.In short, there are many myths about rape, which attorneys may try to refute in an open process rather than in secret, but some are more helpful to defendants than to complainants.JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.Professor of Public Interest LawGeorge Washington University Law School,FAMRI Dr. William Cahan Distinguished Professor,Fellow, World Technology Network,Founder, Action on Smoking and Health (ASH)2000 H Street, NWWashington, DC 20052, USA(202) 994-7229 // (703) 527-8418 http://banzhaf.net/ @profbanzhaf