Does the Law Protect a Raped Drunk Woman - Essay Example

Women who are raped when voluntarily intoxicated receive scant protection from the criminal justice system”. To what extent do you agree with the above assertion? Do we need new legislation in this area? Very few movie images depicting rape come to mind that can match the violence, savagery and realism of the rape scene in the movie “The Accused” (1988). Gang-raped in a dimly-raped bar by drunken bar patrons, the chilling screams of the character played by Meryl Streep leave an indelible mark that does not easily go away. But perhaps even more haunting is the story itself, and the message it communicates. After being physically violated, she is violated once more by a system that puts her character and reputation – that of a woman who gets drunk and engages in sexual banter freely with men -- on trial. The film raises a commentary on a society and a community that makes the rape victim also the “accused” (hence, the title) and ultimately, pigeonholes women into the social roles expected of them. That precisely is what makes the crime of rape so different from other crimes in the statute books. There are complex issues of gender and power involved. To quote Baron and Strauss (1987): According to feminist theory, rape functions as a mechanism of social control in patriarchal societies (Brownmiller, 1975; Riger and Gordon, 1981). Feminist theorists argue that rape and the fear of rape enable men to assert their power over women and maintain the existing system of gender stratification (Adamec & Adamec, 1981; Barry, 1979; Brownmiller, 1975; Riger and Gordon, 1981; Russell, 1984; Sanaday, 1981). Clark and Lewis (1977) argue that rape is more likely to occur in societies where women are regarded as the sexual and reproductive possessions of men. In such societies, men sustain their power and privilege and enforce their sexual rights through threats or use of force. Baron and Strauss further went and described the four theories that underlie the crime of rape, in their paper that presents a theoretical model which integrates the four macrosociological theories of rape. They describe these four theories as follows: One theory holds that rape is a mechanism of gender inequality. A second theory attributes rape to the proliferation of pornographic materials. A third, called cultural spillover theory, maintains that cultural norms which favor violence for socially legitimate purposes tend to be generalized to other social contexts and increase the likelihood of rape. And a final theory holds that social disorganization reduces social constraints against rape. When one has a situation wherein the woman was voluntarily intoxicated immediately preceding and during the time of the rape, the complexity of the issue exponentially increases. In an online article dated December 6, 2006 and entitled “Juries blame women for drunk rape”, (Internet, 2006) it was reported that an experiment was conducted with funding from the Economic and Social Research Council, and such experiment revealed that “jurors are still blaming women if they willingly get paralytic, even if their drinks are spiked with extra alcohol.” To analyze this issue further and determine whether or not women receive scant protection from the justice system when they are found to be voluntarily intoxicated at the time of the commission of the rape, this paper will look into two cases with different outcomes. The first one is the landmark case of Ryairi Dougal, heard and decided in this jurisdiction. The second one is a case that happened in the Philippines involving a Filipina girl and a US serviceman, that landed in international news because of the severe diplomatic implications that it generated and the widespread furor it created. The case of Ryairi Dougal: “Drunken consent is still consent.” This case involved a university security guard and a drama student. The drama student had attended a party at Aberystwyth University where liquor was being served. By her account, she had two glasses of vodka and a glass of wine. She felt ill and vomited in the ladies’ toilet of the University Arts Centre. She told the jury, “My dress was in a state and I wanted to leave the centre. I then went out onto a patio for some fresh air. I was losing all focus and was feeling very dizzy." A woman then approached her, took a look at her condition, and then insisted that someone accompany her home as she was not in a state to go home alone. That person was Dougal, the university security guard and part-time student. The last thing she remembered was lying down on the corridor outside her flat. When she went to counselling a few days after because she sensed that something had happened but was not sure what, an investigation ensued. When Dougal was questioned, he stated that he had consensual sex with the drama student. That was the first time that the woman found out that she had sex. In the trial, was quoted as saying: “"If I had wanted to sleep with him I would have taken the few steps to my bedroom." However, the Court decided in favour of Dougal and the judge agreed with the prosecution when it decided to discontinue the case. The Crown Prosecutor Service stated after the case, “It was the prosecution case throughout that consent was not given. Under cross-examination I think she accepted that she could not remember refusing and it could not then be said there was no reasonable doubt.” He furthermore added, “The judge had said that more care should be taken during pre-trial case reviews before going to trial. When a review is conducted, it is conducted on the paper case. Of course, a trial is dependent on live evidence from witnesses in the evidence box and the two things do not always match up." The Dougal case is covered by the Sexual Offences Act of 2003, which states that no consent has been given if a woman has been proven to be unconscious or asleep. It moreover compels the accused to prove that he had “reasonable ground” for believing that consent had been given – as opposed to the former rule that merely requires for acquittal that he “honestly believed” consent had been given. The case of US Serviceman Daniel Smith: “Intoxication was taken advantage of by the accused” In this case, the victim (a fresh college graduate known only by the court-appointed name of “Nicole”) was drinking on November 1, 2005 with the accused and his friends at the Neptune Bar, a famous drinking place in Subic, one of the two US bases in the Philippines. By her account, she had consumed several glasses of liquor and was drunk. Several spectators saw her dancing and kissing the convict Smith, a 21-year-old US serviceman, inside the bar. She was then brought out of the bar by the convict on piggyback, looking visibly drunk, and rode a van along with three other US servicemen. “Nicole” claimed that the US serviceman had raped her at the back of the van with the three other servicemen cheering them on, “Go Smith! Go Smith”. Smith’s account of the events was that the sexual intercourse that transpired was consensual. After the sexual act, “Nicole” was unloaded to a pier on the side of a road in a state of undress. Her panties were coiled down to her legs and her appearance was clearly dishevelled. Some witnesses saw her in this condition and immediately assisted her. The Court found in favour of “Nicole” and ruled – "This court has no reason to doubt the foregoing testimonies of said witnesses…Evidence clearly showed accused Smith took advantage of the intoxication of the complainant in perpetrating the subject felony. So, even though there was no direct evidence to show that the crime of rape was committed, the circumstantial evidence shows otherwise." It went on to say that “Rape as a harrowing experience is not remembered in detail. It casts a stigma upon the victim. Rape is a grave physical violation and it subjects the woman’s honor to scorn.” The Sexual Offences Act 0f 2003 The Bill received Royal Assent in November of 2003. It introduces a more improved framework in understanding and trying sexual offences. Important measures in the act have been enumerated as follows: it seeks to clarify issues surrounding consent in rape and sexual assault cases; it gives children the greatest possible protection against sexual abuse; for the first time, it provides a specific set of offences to protect persons with a mental disorder; it tackles the commercial exploitation of people for sexual purposes through prostitution and traficking; it strengthens the protection for society from convicted sex offenders living in the community. Most important to this paper is how the Act redefined the concept of “consent”. As earlier mentioned, the accused, in order to secure an acquittal, must be able to prove that he had reasonable grounds to believe that the victim gave her consent. Prior to 2003, the Sexual Offences Act of 1956 read: ‘at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it’. Before the amendment was introduced in 2003, a controversy ensued in the case of DPP v. Morgan (1976) where the Court held that “an honest mistake that the victim was consenting could negative mens rea, even though the mistake was not reasonable.” The same set of facts would have garnered a different result under the 2003 Law, because the law now requires that the mistake be “reasonable.” Section 1(2) of the Act reads: “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps [the defendant] has taken to ascertain whether [the victim] consents.” Equally significant is Section 75 of the Act, which creates a rebuttable presumption that the victim did not consent and the defendant had mens rea under certain circumstances. These circumstances are as follows: * Violence or the threat of violence was used against the complainant or a third person, * The complainant was unlawfully detained, * The complainant was asleep or otherwise unconscious when the offence was committed, * Due to a physical disability, the complainant was unable to communicate a consent, or * The complainant had been given a substance, which was capable of causing them to be stupefied, or overpowered at the time of the attack. In an article online entitled “Men Face Jail for Rape if Women are too Drunk to Consent in Bed to Boost Convictions”, it was reported that police would be asked as a matter of routine to determine the alcohol consumption of a rape victim through blood and urine tests and “back calculations” would be used to determine the state of inebriation at the time of the incident. According to the online article, in 120 cases of sexual assault, 119 cases involved women who had been drinking. The article also discusses some repercussion of the proposed measure. “…But it would open the way to prosecutions of husbands or regular boyfriends who have sex with drunken wives or partners as well as fierce arguments over medical evidence and real levels of intoxication of alleged victims.” Clearly, these arguments are valid and must be taken into consideration when devising measures for the protection of women. Change of law must be accompanied by change in consciousness No amount of amendments to the law can introduce felt changes if they are not accompanied by a genuine change in how people think and how people perceive women and gender roles. Says Martin (1997): Understandings of rape are fused with cultural representations of sexuality and gender. For example, the connections between rape and consent/coercion in sexual relations and power/domination in non-sexual gender relations are contested issues. (MacKinnon 1987). Most rapists are men (or boys) and most victims are women (or girls), a condition that makes gender an issue in the perpetration and prevention of rape, as well as in research and theorizing about it. Given the gendered character of rape crimes, one might expect officials who process them to have a “theory” about gender and rape. This of course does not exclude arbiters, i.e., judges and juries. As human beings they do have ideological biases that, whether wittingly or unwittingly, enter into their decisions. In the Preface to a Critique of International Legal Ideology, Susan Marks defined ideology as the “ways in which meaning serves to establish and sustain relations of domination” – a definition she adopted from John Thompson. She provided five principal modes of operation often regarded as characteristic of ideology. These are legitimation, dissimulation, unification, reification and naturalization. One compelling manifestation of these modes is the law itself, that institution that governs conduct, arbitrates and adjudicates disputes, and essentially, preserves the status quo. It is uncanny how most, if not all, of the modes of operation provided for by Marks, describe and reflect the ways by which the law strives to perpetuate its own fictions in order to establish preserve the status quo and protect the existing class hegemony. For instance, legitimation has been defined in the article as “the process by which authority comes to seem valid and appropriate”. Social and political arrangements derived from that authority are made to seem rational, normal and natural derivations of culture, context and tradition such that they may not be open to question or inquiry. And then, there is dissimulation, “whereby relations of domination are obscured, masked or denied” as well as unification, “in which social relations come to appear coherent and harmonious, and cleavages are made to seem non-existent, or at any rate, irrelevant.” In a situation wherein a judge is tasked to determine the liability of a man who has sex with a woman who voluntarily got herself drunk, he is not asked to merely make a simple decision. It is not a cut-and-dried issue. A huge part of the decision is based on his value system, his paradigms, and his understanding of gender. This is essentially the theory behind Critical Legal Studies. Its is hinged on the overarching framework of Critical Studies, which seeks to dismantle hegemonic structures in society by first stripping them of their seemingly-benign coverings. Critical legal studies (CLS), a branch of Critical Studies, does away with the all-too-convenient givens of a legal system – that there is but one set of “correct” rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable (Altman, 1986). It aspires to expose the ideological content of the law obscured by layers upon layers of social conditioning by demonstrating how the large areas of legal indeterminacy provide fertile ground for the cooptation of the legal system to reinforce existing power arrangements. Even media contributes to the social conditioning. A troubling phenomenon, for example, is the eroticisation of young girls. For example, the fashion industry, a multi-billion dollar enterprise, has been portraying young girls not yet on the brink of womanhood in sexual ways. Smoky eyes on a child no more than fifteen distort notions of childhood and corrupt innocence – as do suggestive camera angles and the slightly gaping mouth. According to Conrad and Milburn (2001): Popular culture communicates a set of myths about sexuality that are so ubiquitous we hardly even notice them. These myths become so ingrained in people’s thinking – in the form of unexamined assumptions about the function of sex, how we should behave sexually, what is “normal” or “abnormal” – that we often respond automatically within the framework of these assumptions. Werner-Wilson, Fitzharris and Morrisey wrote a paper entitled “Adolescent and parent perceptions of media influence on adolescent sexuality”. According to them: The media passively reinforce gender and ethnic stereotypes (Gerbher, Gross, Morgan, & Signorielli, 1986). Passive reinforcement of gender and ethnic stereotypes was demonstrated in a content analysis of Rolling Stone magazine, a popular adolescent periodical, which examined gender and ethnic themes in issues published in the years 1968 and 1988 (Wilson, 1990). Results from the content analysis suggested that women and people from traditionally underrepresented groups were rarely the source of stories; when they were featured, they were depicted unflatteringly. The stereotypes of women in media are easily evident. In television shows for instance, who has not seen the dumb blonde, the soccer mom, the girl next door, or the corporate go getter? Must we then ignore the stereotype of the licentious Madonna, sexually liberated and liberal in her consumption of alcohol? Is it all impossible to see how this affects rape cases wherein the victim’s background is checkered and less than chaste? In sum, this paper disagrees with the notion that women who are voluntarily intoxicated receive scant protection from the legal system. The legal system is not the problem. Indeed, we welcome the developments brought about by the Sexual Offences Act of 2003. However, and this is a huge however, this is not to say that the problem has been solved. By and large, the problem is and always will be a society that continues to stereotype against women and create standards with which to judge them. Until the time comes when women are freed from these shackles, laws protecting them will not go very far. References “Definitions of Sexual Offences under the 2003 Act.” 2004-2005. Available at http://www.legalappeal.co.uk/pages/sexual_offences/definitions_of_sexual_offences_2003.php. Last visited January 14, 2007. “Drunken Consent is Still Consent.” November 24, 2005. Available at http://news.independent.co.uk/uk/legal/article328993.ece. Last visited January 14, 2007. “Juries blame women for drunk rape”. December 6, 2006. Available at http://www.metro.co.uk/news/article.html?in_article_id=28225&in_page_id=34. Last visited January 13, 2007. “Men face jail for rape if women are too drunk to consent in bed to boost convictions.” December 28, 2006. Available athttp://www.thisislondon.co.uk/news/article-23379673-details/Men+face+jail+for+rape+if+women+are+too+drunk+to+consent+in+bed+to+boost+convictions/article.do. Last visited January 14, 2007. “US Marine Found Guilty of Raping Filipina, 3 Others Acquitted.” December 4, 2006. Available at http://newsinfo.inquirer.net/topstories/topstories/view_article.php?article_id=36279. Last Visited January 14, 2007. Altman, A. (1986) Legal Realism, Critical Legal Studies and Dworkin. Philosophy and Public Affairs, vol. 15, no. 2. 217- 244. Baron, L., & Straus, M. “Four Theories of Rape: A Macrosociological Analysis.” Social Problems, Vol. 34, No. 5 (Dec., 1987), pp. 467-489 Conrad, S. & Milburn, M. Sexual Intelligence. New York: Crown Publishers. 2001. Marks, S. “Preface to a Critique of International Legal Ideology. The Riddle of All Constitutions International Law, Democracy, and the Critique of Ideology. London: Oxford University Press. 2003. Martin, P.Y. “Gender, Accounts and Rape Processing Work.” Social Problems, Vol. 44, No. 4 (Nov., 1997), pp. 464-482 Werner-Wilson, Fitzharris and Morrisey. “Adolescent and parent perceptions of media influence on adolescent sexuality”. Available at http://findarticles.com/p/articles/mi_m2248/is_154_39/ai_n6364178. 2004. Last visited January 14, 2007. Read More