The Rape Disconnect 

Thursday, Oct 23 2003

EAGLE, COLORADO — Nancy Sermak just couldn’t figure it out. If the alleged victim in the Kobe Bryant sexual-assault case didn’t want to have sex with the Los Angeles Lakers star guard, then “Why didn’t she yell no, or scream or bite him or something?” The middle-aged retiree asked this after watching a Sheriff’s detective describe the encounter during the preliminary hearing here on October 15.

Sermak isn’t the only one wondering whether what happened inside Bryant’s hotel room at the Lodge & Spa at Cordillera last June amounts to third-degree rape, a crime that could send Bryant to jail for the rest of his life. For many who have followed the case, the questions of whether and when the alleged victim said no and of what light the physical evidence casts on the encounter are secondary to that of how the 19-year-old woman could claim rape after accepting Bryant’s invitation to his hotel room, willingly lifting her dress to show him a backside tattoo and consenting to make out with him. “It just doesn’t make sense,” said Sermak.

Such puzzlement may have less to do with the still-emerging and disputed facts of the case than with an utter disconnect between what most people think of as rape and the sexual-assault laws legally defining it, which have evolved substantially over the years.

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Thanks mostly to a decades-long effort by feminists and victims-rights advocates, antiquated rape statutes that once required sexual-assault victims to physically resist their attackers have been replaced by laws that require prosecutors only to prove that sexual intercourse was not consensual and that fear of the attacker gave the victim sufficient reason not to resist.

“The laws have changed to reflect what happens in the real world,” says Nancy O’Malley, an assistant district attorney in Alameda County who has helped fashion some of those changes. The updated statutes codify the notion “that a woman needn’t risk her life by trying to fight off someone twice her size, or that she can kiss a man without being obligated to go to bed with him.”

Most recently, after Supreme Courts in six states ruled that rape can occur even when a victim agrees to sex at first but later withdraws consent during the encounter, O’Malley and others have begun drafting legislation that explicitly protects the victims of such unwanted advances. Illinois passed just such a law last summer. And California is considering a similar amendment based, in part, on a landmark California supreme court ruling in January that stated, “A withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible-rape charges if he persists.”

The judges in the “re: John Z.” date-rape case, which involved a 17-year-old girl who resisted the sexual advances of a boy named John, determined that although she said nothing when he rolled on top of her, her subsequent pleadings during sex that “I need to go home” amounted to a withdrawal of consent. Although she didn’t scream or fight off the boy, “There was nothing equivocal about her withdrawal of any initially assumed consent,” ruled the judges, who affirmed John’s conviction.

Such legal precedents notwithstanding, many potential jurors still believe otherwise. In the Bryant case, “People think she’s responsible because she went up to his room,” says Karen Steinhauser, a former Colorado prosecutor who specialized in sexual-assault cases. “I can tell them until I’m blue in the face that it doesn’t matter that she went up to his room. The laws may have changed, but societal attitudes haven’t very much.”

For example, a 2002 poll conducted by the Texas Association Against Sexual Assault found that while most respondents understood that “No means no,” 47 percent of the men and women polled believed that allowing touching under the clothes constitutes consent to sexual intercourse, and nearly a third thought that agreeing to go back to someone’s home after a date also signals consent. Even more striking: About 25 percent of respondents said a woman can’t claim she was raped if she doesn’t actively fight off the sexual advance.

Ironically, while some have worried that the county’s lily-white jury pool would undermine Bryant’s right to a fair trial, prosecutors say the people most likely to hold such old-fashioned opinions about rape are white women like Sermak. “You don’t want them on your juries,” says Mary Keenan, a district attorney in Boulder, Colorado, a veteran sexual-assault prosecutor. “Some [older women] are very well-educated and liberal, but most of them think the victims are responsible because they shouldn’t have been there in the first place.”

Not that younger people necessarily have any better understanding of the law. When Loyola Law School professor Lori Levenson reviewed the John Z. case with her students, “They couldn’t believe this was rape,” she says. “They just didn’t understand that [according to the law] ‘no’ means ‘no’ at any point.”

She and other legal experts say that, like the John Z. case, Bryant’s underscores jurors’ reluctance to convict those accused of sexual assaults that begin consensually. After a woman goes to a man’s room and agrees to kiss and hug him, “A lot of juries will say it’s too late to say no,” says Levenson. “They may classify the interaction as an encounter that went awry, but they’re not willing to label it as rape.”

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