Medical and legal aspects of rape and resistance.

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Medical and legal aspects of rape and resistance a

b

Gerard Mantese J.D. , Vito Mantese M.D. , Theresamarie c

d

Mantese J.D. , Joseph Mantese Ph.D. Physics , Mary L. e

Mantese M.S.W., R.N. & Christine Essique

f

a

Partner, Honigman Miller Schwartz and Cohn , 2290 First National Building, Detroit, Michigan, 48226 b

Meiners Surgery Group , St. Louis, Missouri

c

Staff attorney at UAW‐Legal Services Plan , St. Louis, Missouri

d

Electrical and Electronics Engineering Department , Physicist at General Motors Corporation Research Labs , Warren, Michigan e

Assistant patient care manager of home health care , Barnes Hospital , St. Louis, Missouri f

Law student at Wayne State University , Published online: 23 Jul 2009.

To cite this article: Gerard Mantese J.D. , Vito Mantese M.D. , Theresamarie Mantese J.D. , Joseph Mantese Ph.D. Physics , Mary L. Mantese M.S.W., R.N. & Christine Essique (1991) Medical and legal aspects of rape and resistance, Journal of Legal Medicine, 12:1, 59-84, DOI: 10.1080/01947649109510844 To link to this article: http://dx.doi.org/10.1080/01947649109510844

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The Journal of Legal Medicine, 12:59-84 Copyright © 1991 by Hemisphere Publishing Corporation


MEDICAL AND LEGAL ASPECTS OF RAPE AND RESISTANCE Gerard Mantese, J.D.* Vito Mantese, M.D.** Theresamarie Mantese, J.D.*** Joseph Mantese, Ph.D. Physics† Mary L. Mantese, M.S.W., R.N.†† Christine Essique†††

INTRODUCTION Rape is a devastating crime. In the Bible, the violation of women is described as an act of war, to be inflicted on the female population after the men have been decimated.1 In the Book of Numbers, after the Israelites defeated the Modiamites, the booty was described as including "six hundred and seventy-five thousand sheep, seventy-two thousand oxen, sixtyone thousand asses, and thirty-two thousand girls who were still virgins."2 Rape often exacts a heavy toll on victims—psychologically and physically. Yet, despite the staggering increases in the number of reported rapes in the past 10 years, relatively little attention has been devoted to studying the causes of rape or strategies for controlling it. In this sense, rape is a tolerated crime. Some groups have attempted to bring about a public awareness of the costs of both rape and the fear of rape. Public demonstrations have been organized, such as the "Take Back the Night" marches organized in April of 1989 at the University of Michigan and in October of * Partner, Honigman Miller Schwartz and Cohn in Detroit, Michigan, concentrating in commercial litigation. Address correspondence to Mr. Mantese at Honigman Miller Schwartz and Cohn, 2290 First National Building, Detroit, Michigan 48226. ** Surgeon specializing in peripheral vascular surgery, Meiners Surgery Group, St. Louis, Missouri. *** Staff attorney at UAW-Legal Services Plan, St. Louis, Missouri, concentrating in real estate and litigation. † Physicist at General Motors Corporation Research Labs, Electrical and Electronics Engineering Department, Warren, Michigan. †† Former assistant patient care manager of home health care at Barnes Hospital, St. Louis, Missouri. ††† Law student at Wayne State University, J.D. 1992 (anticipated). 1 Numbers 31:13-35 (The Family Rosary Commemorative Edition of the Catholic Bible). 2 Id. at 32-35.

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3 i


1990 at St. Louis University, and elsewhere. The name of the march refers to the fact that rape and the fear of rape have created an environment in which many women feel imprisoned by darkness—afraid to engage in such simple nighttime activities as jogging in the neighborhood or taking a walk.4 The authors propose a greater sensitivity and attention on the part of society to the problem of rape. Accordingly, this article addresses the magnitude of rape in terms of numbers of assaults, the effects of rape on victims, insensitivities of the criminal justice system, possible societal and individual responses to rape, and related issues. I. MAGNITUDE AND IMPACT OF RAPE IN THE UNITED STATES A. Magnitude of Rape Rape is generally defined as sexual intercourse with a woman, without her consent, and by the use of actual physical force or the threat of such force.5 The statistics on rape in the United States alone are alarming. It has been estimated that a rape is reported every 2-6 minutes and that one out of six women in this country will be raped at some time in their lives.6 However, the statistics vary widely because victims do not always report the attack. Rape is one of the fastest growing violent crimes reported in the United States. In 1977, there were 67,600 cases of forcible rape or attempted rape reported by the FBI.7 In 1983, the number of reported cases had increased to 78,920, and in 1987, the number was 91,100.8 In 1988, the number had increased to 92,500.9 From 1978-1987, there was a 34.8% increase in reported cases of this crime, compared to an increase in murder 3

4 5

6

7

8 9

UNIVERSITY OF MICHIGAN SEXUAL ASSAULT PREVENTION AND AWARENESS CENTER, FROM THE CEN-

TER, Vol. 2, No. 4, at 1 (Mar./Apr. 1989); SLU Students March to "Take Back The Night," St. Louis Post-Dispatch, Oct. 27, 1990, at 8A. FROM THE CENTER, supra note 3, at 1; SLU Students, supra note 3, at 8A. Chiswick, Sex Crimes, 143 BR. J. PSYCHIATRY 236 (1983). Some states include the requirement that the victim not be married to the assailant. For example, Missouri law provides: "A person commits the crime of forcible rape if he has sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion." Mo. REV. STAT. § 566.030 (Supp. 1990). As is common in other states, "sexual intercourse" is defined as "any penetration, however slight, of the female sex organ by the male sex organ, whether or not an emission results." Id. § 566.010.1(1). Hochbaum, The Evaluation and Treatment of the Sexually Assaulted Patient, 5 EMERG. MED. CLIN. N. AM. 601 (1987). UNITED STATES DEPARTMENT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES

1989,

Table Nos. 277 & 283 (109th ed. 1989). Id. UNITED STATES DEPARTMENT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES

Table No. 283 (110th ed. 1990).

1990,

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of 2.8%, an increase in robbery of 21.3%, and an increase in burglaries of 3.4% during this same period. The 34.8% increase in reported rapes was higher than for any other violent crime, except aggravated assault, which had a 49.6% increase.10 These statistics are even more alarming when it is considered that only about one out of every 5 rapes is actually reported."


B. Psychological Injury to Rape Victims Rape is generally thought to be a crime of violence motivated by aggression, not sexual impulse.12 Yet, this is not universally accepted. For example, some states have statutes that call for "chemical castration" (the reduction in a male's functional testosterone level by chemical means) to reduce the sexual cravings of the offenders.13 These statutes presume that reducing the sexual cravings in those who have attacked in the past will eliminate any further desire to rape. These statutes thereby evidence a philosophy contrary to the generally accepted principle that rape is motivated by aggression. Although society has changed its attitudes somewhat toward rape and rape victims, many segments of society still view rape as a sexual act— perhaps a result of provocation, carelessness, or at least acquiescence by the victim—and as such, avoidable. More extensive community discussion is needed before rape will be correctly considered a devastating act of aggression and violence. Until this change in attitude occurs, the victim who reports a rape frequently will be the focus of suspicion from her family and from society that she is at least in part responsible for the attack.1* Thus, society often has ambivalent feelings toward the victim, which compounds the victim's feelings of guilt, embarrassment, and alienation. This fear of stigma may be responsible for the fact that only about one fifth of all rapes are actually reported.15 The low incidence of reporting sometimes has been interpreted to mean that victims experience little psychological trauma from the attack. In fact, immediately after the assault, some victims appear unaffected and highly controlled.16 In actuality, this response may be a defense mechanism 10 11

STATISTICAL ABSTRACT, supra note 7, at Table Nos. 277 & 283. Hochbaum, supra note 6, at 602; Kilpatrick, Veronen, & Reside, Psychological Sequelae to Rape, in BEHAVIORAL MEDICINE: ASSESSMENT AND TREATMENT STRATEGIES 474 (1982).

12 13 14

Moore, A Literature Review on Sexual Abuse Research, 29 J. NURSE-MIDWIFERY 395 (1984). Hochbaum, supra note 6, at 602. Rose, "Worse than Death:" Psychodynamics of Rape Victims and the Need for Psychotherapy, 143 AM. J. PSYCHIATRY 817 (1986); E.T. SPROLES, THE EVALUATION AND MANAGEMENT OF RAPE AND

15 16

SEXUAL ABUSE: A PHYSICIAN'S GUIDE 15 (United States Department of Health and Human Services 1985). Hochbaum, supra note 6, at 602; Kilpatrick, Veronen, & Reside, supra note 11, at 474. Moore, supra note 12, at 396-97.


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by which victims cope with the psychological trauma of the attack, subsequent societal attacks on their integrity, disruption of personal relationships, and the recurrence of unresolved conflicts.17 As a result of the rape, the victim often experiences intense attacks on her psychic equilibrium, requiring the activation of defense mechanisms. These defense mechanisms generally function adequately, and with counseling, 80%-90% of victims will return to normal functioning within four to six months after the rape. However, many victims often continue to suffer severe psychological trauma from the assault.18 Intensive psychotherapy is sometimes required for the victim to deal effectively with the impact of the assault. Post-rape trauma is categorized as a posttraumatic stress disorder in the Diagnostic and Statistical Manual of Mental Disorders HI-R.19 Prominent symptoms of this disorder include intrusive thoughts, nightmares, fear/anxiety reactions, impaired interpersonal relationships, depression, and sexual dysfunction. Other symptoms may include somatic disturbances, self-blame, anger, revenge, or denial. The reaction to rape-induced trauma can be acute (immediate onset lasting for six months), chronic (lasting more than six months), or delayed (a pseudo-adjustment period followed by reemergence of symptoms months after the assault).20 There is, in fact, an initial acute reaction appearing in nearly all rape victims. This reaction includes feelings of terror, mistrust, depression, rage, and guilt. Anger and guilt usually predominate. The victim also may feel shame and self disgust. Rape also may destroy the victim's sense of autonomy over her body. Moreover, victims may experience sexual arousal during a rape, and this may engender subsequent feelings of guilt, shame, and panic about sexual identity. It is perhaps for this reason that sexual arousal is rarely reported by the victim.21 The arousal, which is usually caused by the assailant's deliberate attempt to physically stimulate the victim, can cause the victim to believe that she enjoyed the sexual assault and even wished for it to occur. This, in turn, can lead to self-blame and disgust and intense feelings of guilt. These emotions are not easily resolved and can lead to long-term problems with sexual identity and sexuality.22 In addition to sexual dysfunction, victims may experience intense 17 18 19

20 21

Rose, supra note 14, at 818. Id. AMERICAN PSYCHIATRIC ASSOCIATION. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS

247-18 (3d ed. 1987). Rose, supra note 14, at 818-22. Id. at 822; Mullen, Romans-Clarkson, Walton, & Herbison, Impact of Sexual and Physical Abuse on Women's Mental Health,

22

Mullen, et al,

1 LANCET 841 (1988).

supra note 2 1 , at 844.


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depression, anxiety, and vulnerability. The victim often will institute considerable changes in her lifestyle to overcome these feelings. For example, the victim may change jobs, purchase security devices, live with others rather than alone, and relocate her residence, even to a new geographic area. Rape victims also may make career and lifestyle decisions that lessen their contact with people, particularly men and unfamiliar persons. This activity response has been noted years following the rape.23 Further, significant problems with sleeping and eating may follow immediately.24 Chronic forms of posttraumatic stress disorder may be manifested by the same behavior that is present in the acute form. Such disorders may be present for as long as 50 years after the attack.25 In addition, phobias may develop and persist. Thus, the effects of the rape are far-reaching. Moreover, husbands and family can be adversely affected by the assault. Mistrust, anger, and sexual dysfunction may develop in a husband. This may require post-rape counseling for the husband and family members if these problems are to be resolved.26 C. Physical Injury and Pregnancy from Rape There is a high likelihood that a rape victim will be severely injured both physically and psychologically during the attack.27 A victim may also experience anxiety over the risk of contracting an infectious disease or becoming pregnant as a result of the rape. This additional anxiety in women increases the psychological impact of the rape and makes resolution of the injury more difficult and prolonged.28 The likelihood of a pregnancy following rape is unknown. It is estimated to be between two percent to four percent, the same probability of pregnancy from any one unprotected coital act.29 By contrast, the risk of contracting a sexually transmitted disease following a rape appears to be significant, estimated by some commentators to be as high as 30%.30 Post-

23 24

25 26 27

28

29

30

Rose, supra note 14, at 822; Mullen, et al, supra note 2 1 , at 844. Shearer & Herbert, Long-Term Effects of Unresolved Sexual Trauma, 36 A M . FAM. PHYSICIAN 169 (Oct. 1987). Mullen, et al., supra note 2 1 , at 844. Rose, supra note 14, at 822. Id. at 817-18; Groth, Burgess, & Holmstrom, Rape: Power, Anger and Sexuality, 134 A M . J. PSYCH. 1239 (1977); Notman & Nadelson, The Rape Victim: Psychodynamic Considerations, 133 A M . J. PSYCHIATRY 408 (1976). Forster, Pritchard, Munday, & Goldmeir, Risk of AIDS After Rape, 63 GENITOURINARY M E D . 217 (1987) (letter to the editor). Tietze, Probability of Pregnancy Resulting from a Single Unprotected Coitus, 11 FERTILITY & STERILITY 485 (1960). Forster, Pritchard, Munday, & Goldmeier, Incidence of Sexually Transmitted Diseases in Rape Victims During 1984, 62 GENITOURINARY M E D . 267 (1986).


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rape infections have been shown to include gonorrhea, chlamydial infections, trichomoniasis, and bacterial vaginosis.31 While it is not entirely clear whether the infections reported in this study were present prior to the attacks, this information is disturbing and supports the fear that victims are at significant risk of developing sexually transmitted diseases. In addition, because the Human Immunodeficiency Virus (HIV) is rapidly becoming more prevalent in the heterosexual population, all rape victims must be considered at risk for developing Acquired Immune Deficiency Syndrome (AIDS), a fatal and as yet incurable disease.32 Furthermore, rapes are becoming more violent and often include such acts as anal and oral penetration.33 These acts increase the likelihood of passing the HIV from attacker to victim. It may take up to six months to obtain seroconversion results to determine if the victim is HIV antibody positive.34 If the results are positive, the patient is then at risk for developing and dying from AIDS for the next 10 years.35 Thus, the fear of death may remain with the victim for a considerable time following a rape.36 The risk of transmitting AIDS to other sexual partners and to children will heighten the trauma to the victim and infringe on her personal relationships.37 II. INSENSITIVITIES OF THE CRIMINAL JUSTICE SYSTEM Rape victims often have expressed anguish and dissatisfaction with prosecutors' and police officers' insensitivities to the severe physical and psychological trauma experienced by the rape victim. For example, in a publicized rape prosecution in 1989 in St. Louis, Missouri, the victim expressed anger and anguish that the prosecutor had agreed to a plea bargain without discussing the matter with her and obtaining her consent. On the day of the assault, the victim, a professional counselor, had believed the assailant's story that he was cold and sick, and she agreed to drive him home. Thereafter, he forced her to drive to a deserted industrial area and raped her. He subsequently forced her to drive him home, where he sexually assaulted her again. The defendant pleaded guilty to rape and robbery charges under a 31

32

33

34 35 35 37

Id. at 267-69; Jenny, Hooten, Bowers, Copass, Krieger, Hillier, Kiviat, Corey, Stamm, & Holmes, Sexually Transmitted Diseases in Victims of Rape, Till N E W ENG. J. M E D . 713 (1990). Shearer & Herbert, supra note 2 4 , at 171-72; Friedland & Klein, Transmission of the Human Immunodeficiency Virus, 317 N E W E N G . J. M E D . 1125 (1987). Kay, Sexually Transmitted Diseases in Rape Victims, 63 GENITOURINARY M E D . 62 (1987) (letter to the editor). Phair, Human Immunodeficiency Virus Antigenemia, 2 5 8 J . A . M . A . 1218 (1987). Fourth International Conference on AIDS, A M A News, July 2 2 , 1988, at 19. The Mind of the Rapist, Newsweek, July 2 3 , 1990, at 4 6 . Id. at 52-53.


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plea agreement and received a 10-year prison sentence, although he could have received a sentence of life in prison on the rape charge. A second rape charge and charges of forcible sodomy, kidnapping, and robbery were dropped as part of the plea bargain. The victim stated that the police and prosecutors underestimated her ordeal from the beginning. For example, a police officer who interviewed her a few hours after she was freed took no notes after hearing that she had given her assailant a ride before the violence began. The victim said that the prosecutors never fully listened to the case, to its details, or to her ordeal, and this insensitivity probably contributed to their decision not to take the case to trial.38 Further, some prosecutors, police, and jurors believe that if a woman dresses in a "provocative" manner, "she deserves everything she gets." In a rape prosecution in October of 1989 in Florida, a woman who had worn a lace miniskirt with no underwear was cut up with a knife, hit with a rock, and raped twice. A jury of three men and three women acquitted the defendant on kidnapping and rape charges. In explaining the verdict, the jury foreman said: "She asked for it. The way she was dressed with that skirt, you could see everything she had. She was advertising for sex."39 Joanne Richter, director of the Sexual Assault Treatment Center in Fort Lauderdale, Florida, said the verdict could discourage rape victims from prosecuting their attackers. "No matter who you are or what you are wearing, it doesn't mean you should be a victim of sexual assault," Richter said. Somehow, the belief persists that the victim should be put on trial. It has been pointed out that there are many victims of burglary, car theft, and mugging who might be deemed careless, foolish, or even to be "asking for it." But we do not excuse the burglar, car thief, or mugger. We still believe a crime was committed.40 Women activists on college campuses where date rape is a major concern often have been frustrated by administrative insensitivity to sexual assault complaints. Students at Brown University recently expressed their dissatisfaction with the university's failure to conduct a full disciplinary hearing on any of the 22 reported incidents of rape over the last five years.41 In frustration, women on campus began listing on public bathroom walls the names of the alleged rapists, sexual assaulters, or harassers. Students said the list was meant to warn other women, not to provide outside publicity.42

38 39 40 41 42

The Cost of Fear: A Rape Is Ignored, St. Louis Post-Dispatch, Nov. 4, 1989, at 1, 9. Outcry Arises Over "Woman Asked for It" Rape Verdict, Ann Arbor News, Oct. 6, 1989, at 1A. Letter to the Editor by Bernie Klein, Ann Arbor News, Oct. 15, 1989. Students Fight Rape with Walls, Markers, St. Louis Post-Dispatch, Dec. 14, 1990, at 3A. Id.


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A very small number of states still make it costly for a rape victim to prosecute rape charges through evidentiary rules that permit the accused to introduce evidence of a rape victim's sexual history. The dubious theory underlying these anachronistic rules is that a woman who consented to sexual intercourse on a prior occasion is presumed to have consented during the instance in question. The woman is thus faced with the "second assault" by courtroom questions attacking her integrity and sexual morality. For example, Georgia criminal law permits the accused to offer evidence of a rape victim's reputation for chastity where the evidence is deemed to be so material that it will "substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence . . . ."43 Among the types of evidence that Georgia law allows, under the above standard, is "evidence of the complaining witness's marital history, mode of dress, general reputation, nonchastity, or sexual mores contrary to the community standards."44 Thus, in the case of Hamilton v. Stated the Georgia court of appeals reversed the defendant's conviction for aggravated assault because of the trial court's failure to allow introduction of this type of evidence. The majority view in the United States holds that specific evidence of a victim's prior consensual sexual activity with persons other than the defendant is inadmissible on the issue of consent.46 Under this view, such evidence is also inadmissible to impeach the victim's credibility.47 The majority view holds that such evidence is irrelevant to the issue of whether the victim consented or whether the victim is a credible witness.48 This result is often mandated by statute through "rape shield laws" designed to encour-

43

44 45

G A . CODE ANN. § 38-202.1 (Supp. 1989). See also Caldwell v. State, 276 Md. 612, 349 A.2d 623 (Md. App. 1976) ("[E]vidence which tends to show the general reputation of the prosecutrix . . . for chastity among any substantial community of persons who have had opportunity regularly and for a sufficient period of time to observe her may, in the discretion of the court, be admissible when consent is at issue . . . . " ) . G A . CODE ANN. § 38-202.1 (Supp. 1989). 185 Ga. App. 536, 365 S.E.2d 120 (1987). See also State v. Iaukea, 62 Hawaii 420, 616 P.2d 219, 220 (1980) ("Given the sexual history of the complainant in this case, which indicated some promiscuity on her part, her prior sexual conduct might well have been admissible, in the discretion of the trial court, on the specific issue of consent."). This ruling is now set forth in HAWAII R. EVID. 412.

46

65 A M . JUR. 2d Rape § 82 (1972); Modern Status of Admisslbility, in Forcible Rape Prosecution, of Complainant's Prior Sexual Acts, 94 A.L.R.3D 257, 262 (1979); Modern Status of Admissibility, in Forcible Rape Prosecution, of Complainant's General Reputation for Unchastity, 95 A . L . R . 3 D 1181 (1979); Note, If She Consented Once, She Consented Again—A Legal Fallacy in Forcible Rape Cases, 10 VAL. U . L . REV. 127 (1975).

47

65 A M . JUR. 2 D Rape § 82 (1972); Complainant's Prior Sexual Acts, supra note 46, at 262. Complainant's Prior Sexual Acts, supra note 4 6 , at 265-71.

48


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age victims of rape to report the crime and to appear as witnesses without fear of having their sexual history exposed to the public.49 A typical example of a rape shield law allows for the introduction of evidence regarding the victim's prior sexual conduct (a) only with the defendant, and only if consent is at issue, and (b) with third persons, but only for purposes other than to prove consent or lack of credibility, such as to show the source of semen or the source of the victim's physical injury.50 At least one court has held that the defendant must specifically assert that such evidence is proferred for these purposes. Thus, in State v. Gulrud,51 the accused simply claimed that evidence indicating the complaining witness had sexual intercourse with another man after the alleged assault was relevant to both the degree of assault he legally could be charged with and the extent of the victim's injuries. The defendant did not explain his contention, and the court declined to develop the argument for him, ruling that the evidence was irrelevant and inadmissible. Although the states that still permit such an irrelevant courtroom inquisition of the victim are in the minority,52 these evidentiary rules should be reevaluated and revised. It should be noted that certain positive developments have occurred in the context of evidentiary rulings made in various other rape trials throughout the country. Foremost among these rulings is the admissibility of DNA identification. In this regard, and by way of background, it should be explained that with the exception of identical twins, no two individuals have identical deoxyribonucleic acid (DNA). The areas of variation on the human DNA molecule are called "polymorphisms" and are the basis for DNA identification. In a recent Vermont case, United States v. Jakobetz,53 the federal district court ruled that evidence of DNA profiling was admissible and upheld the prosecutors' efforts to prove the identity of the assailant by comparing known sperm samples from the defendant with samples from the victim. Such favorable rulings have been countered by other legal developments that have resulted in increased trauma to rape victims. One such phenomenon involves the filing of civil litigation by the accused on the theory that the victim filed allegedly false and defamatory criminal charges. Thus, rape victims may have to cope not only with the trauma of the rape, and an often insensitive criminal system, but may have to defend against a civil suit charging defamation or malicious prosecution. At least one state has enacted legislation barring a rape defendant from 49

50

51 52 53

See State v. Gulrud, 140 Wis. 2d 7 2 1 , 412 N.W.2d 139, 142 (Wis. App. 1987) (discussion of Wisconsin's rape shield law). E.g., Wis. STAT. A N N § 972.11(2) (1985); MICH. COMP. LAWS ANN. § 750.520J (Supp. 1990); PostOccurrence Sexual Activity, 81 A.L.R.4TH 1076, 1079 (1990). 140 Wis. 2d 7 2 1 , 412 N.W.2d 139 (Wis. App. 1987). Complainant's Prior Sexual Acts, supra note 46, at 262. United States v. Jakobetz, 747 F. Supp. 250 (D. Vt. 1990).


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initiating such a civil suit until the underlying criminal proceeding has been concluded.54 Finally, and perhaps most devastating to the victim, is the fact that even after the rapist is apprehended and successfully prosecuted, some judges commit yet another assault on the rape victim's dignity by sentencing her attacker more leniently than perpetrators of other violent crimes. Thus, the victim's physical assault may be compounded by the systemic assault on her integrity during the investigation, prosecution, and, finally, the sentencing. An example of such an occurrence is noted in a 1989 Michigan case in which a state district court judge in Saulte Ste. Marie, sentenced a convicted rapist to three years probation, and ordered him to pay $975 in court costs and $200 in restitution or "compensation" to the victim. The judge refused to sentence the rapist to any jail time because he did not want to jeopardize the rapist's ambition to be a police officer, explaining that the rapist's "future was a consideration."55 The victim stated: "When I found out about the sentencing, I was just devastated," and she expressed concern that another crime might be committed.56 Sentencing of rapists must take place with a full appreciation for the magnitude of sexual assault in terms of the staggering number of offenses, and the devastating effects of rape on the victim, both physically and psychologically. Sentences should be imposed consistent with the gravity of this violent offense. III. SOCIETAL AND INDIVIDUAL RESPONSES: TREATMENT OF THE OFFENDER, PHYSICAL RESISTANCE, AND DETERRENCE The gravity of the harm caused by rape and the staggering increase in the number of reported rapes compel both societal and individual responses

54

Michigan enacted MICH. COMP. LAWS § 600.1902 in 1990. This statute also provides that the period of limitations is tolled while the criminal action is pending. 55 Lenient Sentence for Rape Angers Sault Ste. Marie, Detroit Free Press, Mar. 6 , 1989, at 1A, 12A (statements of Hon. Charles H . Stark). 56 Id. This case is still in the courts. Amidst statewide public outrage, the trial court's ruling was appealed, and the Michigan Court of Appeals reversed the probationary sentence on the ground that the trial court erroneously applied a Youthful Offender Statute t o the defendant, who was over the age of 2 0 years at the time of the rape. T h e case was remanded for sentencing before a different judge. Upon remand, the defendant's new attorneys filed a motion for a new trial on the ground that the defendant had received ineffective assistance of counsel at the first trial. This motion was granted. T h e trial court's ruling on the motion was appealed and subsequently reversed by the Michigan Court of Appeals, which remanded for sentencing. T h e defendant then filed an application for review before the Michigan Supreme Court, which denied the application in December of 1990. At the time of this writing, the defendant still had not been sentenced.

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to this problem. This section of the article first describes some of the efforts used to treat offenders. Next, certain strategies and considerations relating to physical resistance are discussed. Finally, strategies for deterrence are offered.


A. Treatment of the Offender Treatment of rapists generally has been confined to criminal punishment, such as imprisonment and fines. However, it is becoming recognized that these offenders also should be considered patients in need of some form of medical therapy.57 Behavioral modification and psychological therapy approach the ideal treatment of a rapist. Attempts can be made to alter rapists' psychodynamic functioning to prevent rapists from committing the crime again. Behavioral treatment attempts to inhibit sexually deviant behavior and to eliminate the desires that initiate this behavior. Yet, this is a difficult objective to attain because of the inherent difficulty in behavioral modification and also because of the expense of the facilities and personnel necessary to treat patients. Successful therapy would focus on eliminating those aberrant behavioral traits that lead to sexual assault. In the Surgeon General's Workshop on Violence, it was observed that this goal needed to be achieved if rape was to be eliminated or reduced.58 It also was recommended that everything possible be done to "reduce the public acceptance of violence,"59 noting that interpersonal violence is "behavior learned from various sources."60 Yet, while behavioral modification approaches the ideal treatment of rapists, an established and reliable methodology for behavioral change in the rapist does not yet exist, and the period of treatment may take years. Various behavioral treatment technologies include aversive procedures, self-control methods, and development of heterosexual relationships.61 Aversive procedures require the association of deviant sexual desires with unpleasant imagery or physical stimuli. In this way, the desires are suppressed and the subsequent behavior is eliminated. This is in direct contrast to the behavioral treatment called imaginal desensitization. In this treatment, the patient is trained to relax completely while visualizing aberrant sexual behavior, such as the patient performed in the past. The imagined event is then interrupted prior to completion while the patient is still 57 58

59 60 61

LeLievre, When Sex Becomes a Problem, 82 NURSING TIMES AND NURSING MIRROR 57 (May 1986). Cron, The Surgeon General's Workshop on Violence and Public Health: Review of the Recommendations, 101 PUB. HEALTH REP. 8 (1986). Id. Id. LeLievre, supra note 5 7 , at 57-58.


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completely relaxed.62 This method of treatment is founded on the hypothesis that the patient suffers significant anxiety when there is a desire to complete an act which, in fact, is not completed. This behavioral treatment permits the patient to eliminate the frustration involved in disconnecting the stimulus of deviant sexual desire from execution of the behavior. Self-control methods involve redirecting deviant behavior and energy into socially acceptable activities. The theory is that once the desires are recognized, the patient will remove himself from the situation and undertake other forms of activity. The development of heterosexual relationships also may be useful to prevent sexual assaults. Frustration provoked by dysfunctional heterosexual relationships may cause abnormal sexual behavior and, by reestablishing or correcting the heterosexual relationship, deviant behavior may be suppressed.63 Organic forms of treatment of deviant sexual behavior have involved mechanisms that inhibit the production and effects of testosterone, which is the hormone primarily responsible for sexual behavior in men. Organic treatments include: (1) antiandrogen and hormonal treatment; (2) surgical castration; and, (3) stereotactic neurosurgery. Although all of these mechanisms can produce a reduction in functional testosterone levels, they are not uniformly successful in suppressing sexually deviant behavior. The lack of success of these treatments demonstrates that abnormal sexual behavior is not rooted simply in hormonal variances and also demonstrates the fallacy that rape is purely related to excessive sexual impulses.64 B. Individual Resistance as an Effective Deterrent to Rape Many groups have responded to the rape crisis by promoting courses that emphasize self-defense, awareness, and other means of personal resistance. For example, the Sexual Assault Prevention and Awareness Center at the University of Michigan provides the following safety advice: I. While Walking 1. Take alternatives to walking alone: campus escorts, taxis, campus shuttles. 2. Walk briskly and confidently. If the sidewalks are dark, walk near the curb or down the middle of the street. 3. Be alert. If you suspect someone is following you, turn around confidently and check—the surprise of a hostile look or an aggressive word might well change his mind.

62

McConaghy, Blaszczynski, & Kidson, Treatment of Sex Offenders with Imaginal and/or Medroxyprogesterone,

63 64

Desensitization

77 ACTA PSYCHIATRICA SCANDINAVICA 199 (1988).

LeLievre, supra note 5 7 , at 57-58. McConaghy, Blaszczynski, & Kidson, supra note 6 2 , at 202-04; Bradford & Bourget, Aggressive

Men,

12-13 PSYCHIATR. J. UNIV. OTTAWA 169 (1987-88).

Sexually


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4. Keep keys accessible, and know the vulnerable targets of the assailant: eyes, nose, throat, stomach, kneecaps. II. In Social Situations 1. Pay attention to behavior that does not seem right: a. Someone sitting or standing too close who enjoys your discomfort. b. Power stares—looking through you or down at you. c. Someone who blocks your way. d. Someone who grabs or pushes you to get his way. e. Someone who doesn't listen or disregards what you are saying (such as "NO"). 2. Be assertive. a. If you don't feel comfortable with a friend or a date's behavior, say, "No." Be assertive: tell him to stop or leave. Get angry when someone does something to you that you don't want. b. Act immediately with some kind of negative response. (You may want to practice this by yourself or with friends.) c. Stand up for yourself—it's "ok" to be rude to someone who is sexually pressuring you, even if it hurts his feelings. After all, he's not paying attention to your feelings. 3. Be aware of your surroundings in case you need to leave quickly. 4. Let your friends know where you will be and when you will be back. 5. Be aware that rape happens in situations in which the parties know each other. Be aware that alcohol and other drugs affect judgment and the ability to communicate. III. In a Residence Hall or Apartment 1. Make sure all doors of a dormitory room or apartment have a good dead-bolt lock, chain lock, and peephole, and use them. 2. Lock your door when you are inside or when you leave, even if it is only for a few minutes. 3. Do not leave spare housekeys under a doormat or over a door frame. 4. Insist that visitors identify themselves before opening the door, and never tell a stranger or anyone you do not know well that you are alone.65

Dissemination of this type of safety advice is an important aspect of rape prevention. Yet, studies regarding the advantages or disadvantages of physical resistance by the victim against the rapist are conflicting.66 Some authorities have suggested passive behavior by the victim, giving the rapist unrestricted freedom during the attack. For example, Storaska recommends that the victim not fight or physically resist.67 The prevention of bodily assault through submission is strongly opposed by others. After examination of the results of many studies on rape 65

66

67

Various brochures distributed in 1990 by the Sexual Assault Prevention and Awareness Center at the University of Michigan included "Acquaintance Rape Prevention: What Women and Men Need to K n o w " ; "Self Protection"; and, "Walking Alone at Night." Amick & Calhoun, Resistance to Sexual Aggression: Personality, Attitudinal, and Situational Factors, 16 ARCH. SEX. BEHAV. 153 (1987); Krulewitz & Kahn, Preferences for Rape Reduction Strategies, 7 PSYCH. WOMEN Q. 301 (1983). F. STORASKA, H O W TO SAY N O TO A RAPIST AND SURVIVE (1975).


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prevention, Furby and Fischhoff concluded that there is a positive correlation between using increased force as a deterrent and successful rape prevention.68 Selkin suggested strong immediate resistance.69 Bart reported struggling and screaming to be a more significant deterrent than talking.70 And Sheppherd, Giacinti, and Tjaden reported that effective tactics to resist rape include flight, physical resistance, verbal resistance, and other intervention.71 The data from this latter study indicated that if a victim resisted, she increased her chances of successfully warding off the attack, but also increased the likelihood of physical injury. In a more recent study of 365 victims sexually assaulted in Los Angeles, it was observed that resistance reduced the probability of sexual contact.72 The combination strategy of screaming plus physical attack also has been reported to be more successful than either single strategy.73 Furby and Fischhoff further indicated that there is no convincing evidence that forceful resistance leads to increased violence to the rape victim.74 Significantly, they also cite studies indicating that the victim has a more positive attitude toward herself if she resisted in some manner during an attack. If this is true, then any program that encourages women to resist in some way during an attack likely will result not only in the prevention of a greater number of rapes, but also in an improved psychological outlook on the part of the victim following the attack.75 In light of the data suggesting that deterrence is advanced by physical resistance, greater attention must be given to promoting physical resistance by women. Accordingly, greater emphasis should be placed on self-defense techniques and on the dissemination of the safety advice described above. C. Deterrence Through Use of Defensive Devices Surprisingly, although there have been very extensive analyses of rape preventative strategies, few studies have examined the use of defensive devices as rape deterrents. Perhaps the reason for this lack of data is that defensive devices are not frequently employed, either because of the technical skill needed to use presently available devices, or the fact that these devices are not easily accessible when needed. 68

Furby & Fischhoff, Rape Self-Defense

Strategies: A Review of Their Effectiveness,

11 VICTIMO-

LOGY 1 (1986). 69 70 71

72

Selkin, Rape, 8 PSYCHOLOGY TODAY 7 0 (Jan. 1975). Bart, A Study of Women Who Both Were Raped and Avoided Rape, 37 J. S o c . ISSUES 123 (1981). Sheppard, Giacinti, & Tjaden, Rape Reduction: A Citywide Program, in SEXUAL ASSAULT 169 ( M . Walker & S. Brodsky eds. 1976). Siegel, Sorenson, Golding, Burnam, & Stein, Resistance to Sexual Assault: Who Resists and What Happens?, 79 A M . J. PUB. HEALTH 27 (1989).

73

J. M A C D O N A L D . R A P E OFFENDERS AND THEIR VICTIMS (1971).

74

Furby & Fischhoff, supra note 6 8 , at 3-4. See Selkin, supra note 6 9 , at 71-72.

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Because all women will not be able to rely on their physical resources to defend against an attack, consideration should be given to developing various innovative defensive devices. Such devices must be easily accessible at the time of the attack, simple to use, and effective, and their possession and use must be legal. Effective devices that are not easily accessible, such as mace in a purse, have been on the market for decades. Devices that are conveniently accessible at all times should be studied for possible development. One possible defensive device is a manually activated device, in the form of a ring or a bracelet, or an attachment to a purse, which can be activated by one or more fingers. In the case of a ring, the device could be worn on the index finger and could be activated by squeezing a lever on the ring body. Possibilities for further study might include the following devices. 1. Gas-Emitting Ring This device would fire a burst of mace or other chemical irritant, such as noxious gas, from an ordinary ring worn on a woman's finger. The ring could be fashioned such that a high pressure stream of irritant could be directed into an assailant's face when a side lever on the ring body is pressed. This device would be unique in that the device would not require the victim to search through her purse, but would be accessible at all times. 2. Odorizer Ring This device would release an offensive smelling fluid. The fluid could be released onto the attacker, the rape victim, or both. If offensive enough, it is possible that the attack could be thwarted. At the very least, its use would constitute some evidence of lack of consent in "date-rape" prosecutions in which consent is at issue. 3. Air Horn There exist pocket-size air horns that emit a blast of sound when pressed. This, or more advanced, technology could be incorporated into a ring or a bracelet. The sound should be piercing. The main function of the horn would be to attract the attention of others; the sound itself probably would not physically obstruct the rapist. In this regard, if the role of social activism is explored as a means of rape prevention, then the air horn could be of a specific pitch or sound that could, by law, be activated only if there were a threat of attack. The frequency (or pitch) of the warning could be designated as an emergency hailing frequency (much like when ambulances use flashing red lights). Having such a designated sound would alert others that a rape was being attempted. It is plausible that the protection


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offered to women could be increased by the participation of greater segments of society. It should be noted that studies indicate that a substantial number of sexual assaults occur in the victim's residence or in the attacker's residence, under circumstances in which the victim is acquainted with the attacker.76 Of the devices described above, the gas-emitting ring would perhaps be most useful in preventing such "date rapes" if the mace or other noxious gas were incapacitating enough to provide the woman with an opportunity to flee. Further research and investigation must be performed to develop a safe, effective, and accessible device. Research should be performed not only on the above proposals but also on other defensive devices for which technology could be available if interest were directed in this area. D. The Use of Defensive Force Generally, a person may use that amount of physical force he or she reasonably believes to be necessary to defend against the imminent use of unlawful force by another person.77 Under this principle, self-defense, including use of the type of devices described above, would be authorized under criminal law to the extent that the user of the device reasonably believed that such force was necessary to defend against a sexual assault. Self-defense is a justification defense.78 Justification defenses preclude punishment because the actor's conduct is considered right or tolerable.79 The theory of justification recognizes the social harm that has occurred, but "negate[s] the validity of normal rules of criminal liability" in light of the particular circumstances.80 It has been suggested that the primary theories underlying the right of self-defense are necessity, duress, and personal autonomy.81 Necessity is a general authorizing principle that allows an individual to do what is necessary under certain circumstances, including purposefully causing harm, in order to avoid a greater harm.82 Under the common law, duress excused an individual for criminal conduct that resulted from some type of recognized compulsion that overcame the individual's will.83 That is, given the pres76 77

Kanin, Date Rape: Unofficial Criminals and Victims, 9 VICTIMOLOGY 95 (1984). 22 C.J.S. Criminal Law § 53 (1989).

78

J. DRESSLER. UNDERSTANDING CRIMINAL LAW 191 (1987).

79

Dressier, Justifications and Excuses: A Brief Review of the Concepts and the Literature, 3 3 WAYNE L. REV. 1155, 1161 (1987). Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 COLUM. L. REV. 914, 915 (1975). Note, The Case for Liberalizing the Use of Deadly Force in Self-Defense, 6 U . PUGET SOUND L. REV. 237, 238 (1983). Id. at 239.

80

81

82 83

Id. at 242. See also W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 374-81 (1972).


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sure to which the individual was subjected, the individual acted intentionally, but was not deemed to have made a true choice to act.84 Finally, the personal autonomy principle holds that a person's unlawful acts of aggression place the individual outside the protection of the law. Even more significant to the right to use defensive force is the consideration that the victim's intimate zone of privacy and personal security have been invaded.85 The law divides the types of force that can be used in self-defense into two categories—deadly force and non-deadly, or moderate force. The type of force that can be used depends on the nature of the harm threatened. That is, use of force in self-defense, to be privileged, must be proportional to the threat that the victim reasonably believed he or she was combatting.86 Deadly force is force that is either intended or substantially likely to cause death or serious bodily injury.87 In most jurisdictions,88 it is a well-settled precept of law that "the use of deadly force in self-defense can only be justified where the defendant had a reasonable and honest belief that he was in imminent danger of death or great bodily harm."89 In addition, persons who kill in defense of their dwelling also are entitled to a determination that the killing constituted justifiable homicide.90 In State v. Wanrow,9] Yvonne Wanrow was convicted of seconddegree murder for the fatal shooting of William Wesler during what Wanrow believed was an attempted sexual assault. Wanrow claimed that the shooting was an act of self-defense. In reversing Wanrow's conviction, the Washington Supreme Court held that the application of traditional self84

85

86

87

88

Liberalizing the Use of Deadly Force, supra note 8 1 , at 2 4 3 . See also G. FLETCHER, RETHINKING CRIMINAL LAW 860-75 (1978). Liberalizing the Use of Deadly Force, supra note 8 1 , at 233. See also G . FLETCHER, supra note 84, at 860-75. Criminal Law, supra note 77. " T h e privilege of self-defense, as with most common-law justifications, is based on reasonable appearances rather than objective reality." Thus, if the victim makes a reasonable mistake of fact with regard t o the requisite conditions of the justification, the use of selfdefense would likewise be permitted. J. DRESSLER, supra note 7 8 , at 191-92. M O D E L PENAL C O D E § 3.11(1) (1985).

Homicide in self-defense is legally justifiable when the accused responds to an unprovoked attack that the accused reasonably believed would result in immediate, serious bodily injury or death. 4 0 A M . JUR. 2 D Homicide 31-139 (1968). 89 See, e.g., People v . Sizemore, 69 Mich. App. 672, 676, 245 N.W.2d 159, 162 (1976). The test for determining whether a defendant acted in lawful self-defense requires: (1) the defendant's honest belief that he or she was in danger; (2) the degree of danger was a fear of serious bodily harm or death; and, (3) the action taken by the defendant appeared at the time to be immediately necessary to defend himself or herself. People v. Amos, 163 Mich. App. 50, 414 N.W.2d 147, 150 (1987). 90 "[E]very man has a right to protect his house from invasion, and in so protecting it, he has a right to use such force as may be necessary to accomplish this end." 41 C.J.S. Homicide § 386, at 191 (1944). See generally W. LAFAVE & A . SCOTT, supra note 83, at 391-97; R. PERKINS, CRIMINAL LAW 993 (2d ed. 1969). 91 8 8 Wash. 2d 2 2 1 , 559 P.2d 548 (1977).


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defense rules in such situations resulted in prejudicial treatment of female defendants. The court found that the self-defense instructions given to the jury conveyed the idea that the standard to be applied was that applicable between two men rather than between a woman and a man, thus violating Wanrow's right to equal protection of the law. The court asserted that Wanrow was "entitled to have the jury consider actions in the light of her own perceptions of the situation."92 The court observed that women in our society "suffer from a conspicuous lack of access to training in and the means of developing those skills necessary to effectively repel a male assailant without resorting to the use of deadly weapons."93 The Wanrow decision demonstrates that the relative size, strength, and weight of the woman and her assailant are relevant considerations in self-defense. Wanrow recognized that under certain circumstances deadly force may be the only way for a woman to protect herself. Yet, the Wanrow case has been criticized because the Washington Supreme Court failed to adequately address the discriminatory nature of the current law of self-defense on a systemic level.94 That is, although it is possible to take into account the characteristics of a defendant (gender, size, or injury) in deciding what type of harm the victim reasonably feared, the law's insistence on using non-deadly force to combat the threat of a rape—no matter how egregious the consequences of a sexual assaulteffectively denies most women a right of self-defense.95 In other words, to require women to use only non-deadly force to defend against a sexual assault, would result in women having little likelihood of successfully stopping an assault. While a woman might be able to employ deadly force, she would unlikely be able to shove or punch the assailant away. Accordingly, there must be a recognition that a woman's right of reasonable self-defense must include a right to use deadly force to defend against a rape. Two possible interpretations may be derived from the Wanrow decision.96 The first is that to hold a woman to the standard of the average man in self-defense cases is to deny her equal protection of the law.97 The second interpretation is that the court's ruling was limited to the facts of the case, and the court held that to deny this defendant's right to act in accord92 93 94 95 96

97

Id. at 559. Id. at 5 5 8 . Liberalizing the Use of Deadly Force, supra note 8 1 , at 270-71. Id. See Comment, Women's Self-Defense Under Washington Low—State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977), 54 WASH. L. REV. 2 2 1 , 226-27 (1978). " N o State shall deny to any person within its jurisdiction the equal protection of the laws." U . S . CONST, amend. XIV, § 1. If similarly situated men and women are accorded dissimilar treatment, there exists a violation of the equal protection clause. Comment, supra note 9 6 , at 226 (citing Reed v. Reed, 404 U . S . 7 1 , 77 (1971)).

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ance with what was reasonable in light of her circumstances violated equal


•

98

protection. Men and women are often subject to different sets of legal expectations and standards. Legal commentators have noted that "society, through its prosecutors, juries and judges, has more readily excused a man for killing his wife's lover than a woman for killing a rapist."99 Current law does not allow women to protect themselves to the same extent that men may protect themselves.100 Case law, for example, allows the use of deadly force to prevent forcible sodomy between males,101 but has not yet generally sanctioned a woman's right to use deadly force to repel a rape.102 The law of self-defense, in its present state, often does not take women's perspectives and circumstances into account.103 The law inadequately presumes that both the woman and her assailant have equal physical capacities.104 A factor relevant to the perspective of women that often is not taken into account is the lesser likelihood that women have had training or experience in combat skills.105 The fact that women usually are of smaller build also is ignored. Yet, these factors certainly influence the reasonableness of the woman's perception of an imminent and legal threat to her life as would justify her use of deadly force. Furthermore, the use of non-deadly force may provoke the attacker to "retaliate with extreme brutality."106 In Michigan, the legislature has led the way in reform by enacting a 98

Indeed, the court stated: The impression created—that a 5 ' 4 " woman with a cast o n h e r leg and using a crutch must, under the l a w , somehow repel an assault by a 6 ' 2 " intoxicated m a n without employing weapons in h e r defense, unless the jury finds h e r determination of the degree of danger to be objectively reasonable—constitutes a separate a n d distinct misstatement of the law and, in the context of this case, violates the respondent's right to equal protection of the law. Wanrow, 5 5 9 P.2d at 558-59. 99 Schneider & Jordan, Representation of Women Who Defend Themselves in Response to Physical or Sexual Assault, 4 W O M E N ' S RIGHTS L . R E P . 149, 153 (1978). 100 Id. at 153-54. 101 See People v . Collins, 189 Cal. A p p . 2d 5 7 5 , 11 C a l . Rptr. 504 (1961); State v. Robinson, 328 S.W.2d 6 6 7 ( M o . 1959); Commonwealth v. Lawrence, 4 2 8 Pa. 188, 2 3 6 A.2d 7 6 8 (1968). 102 Schneider & Jordan, supra note 9 9 , at 154. 103 Id. 104 See Liberalizing the Use of Deadly Force, supra note 8 1 , at 250: The law of self-defense appears to b e founded o n another curious factual assumption: that aggressors and victims alike enjoy rough parity in strength. C o m m o n law rules which may have had primary application in violent confrontations between mature males may make less sense when, increasingly, victims include females, senior citizens, and children (citation omitted). It seems fair to assume that in most cases these kinds of victims will b e unable to defend themselves against any unlawful violence b y mere physical force. 105 Schneider & Jordan, supra note 9 9 , at 156. 106 Kates & Engberg, Deadly Force Self-Defense Against Rape, 15 U . C A L . DAVIS L . REV. 873, 889 (1982).


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comprehensive statute regarding rape.107 The reform statute is gender neutral108 and substitutes the label "criminal sexual conduct" (CSC) for that of "rape." One legal scholar has expressed concern that by renaming "rape," the Michigan statute only serves to obscure the issues relating to the differences between males and females.109 Because the CSC law is defined in gender neutral terms, it in effect "sweep[s] . . . [those conflicts] under the rug."110 Nevertheless, the CSC law has been hailed as a "significant and favorable change in Michigan law against sexual aggression.""1 The Modal Penal Code extends the permissible use of deadly force to "kidnapping or sexual intercourse compelled by force or threat,""2 and authorizes the use of deadly force when necessary to prevent death and serious bodily harm. In addition, the jurisdictions of California, Texas,

107

MICH. COMP. LAWS A N N . §§ 750.520a-.5201 (West Supp. 1990). T h e Criminal Sexual Conduct (CSC) law is divided into four degrees (see id. §§ 750.520b-e), distributing the sharpness of punishment according to the gravity of the defendant's conduct. F o r example, CSC in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years (see id. § 750.520b(2)) while CSC in the fourth degree is a misdemeanor punishable by imprisonment for not more than t w o years, or by a fine of not more than $500, or both (see id. § 750.520e(2)). The gravity of the defendant's conduct, in part, depends on whether there was sexual penetration or only contact—terms that are defined broadly. That is, the former term includes " a n y other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's b o d y " in addition to sexual, oral, and anal intercourse (see id. § 750.520a(l)). The latter term, sexual conduct, includes: " t h e intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification." See id. §§ 750.520a(k). Two other aspects of the C S C law are worth mentioning. First is that the requirement of resistance has been expressly eliminated (see id. § 750.520i). Second, the C S C law rejects the common-law marital rape exemption that a husband could not be convicted of raping his wife if: (1) the spouses are living apart; and (2) one of them has filed for separate maintainence or divorce (see id. § 750.5201). 108 C S C contains no reference to the male or female sex. 109 Estrich, Rape, 95 YALE L.J. 1087, 1148 (1986). 110 Id. at 1149. 111 "By focusing on the conduct of the accused, providing flexibility in punishment, and giving legal effect to a policy of giving greater trust in the accusations of the victim, C S C provides a rational scheme for criminalizing harmful sexual aggression." Note, Criminal Law—Sexual Offenses—A Critical Analysis of Michigan's Criminal Sexual Conduct Act, 23 WAYNE L . REV. 2 0 3 , 222 (1976). Michigan was one of the first states to reform its rape laws. T h e C S C law w a s of substantial value in drafting revisions of the nation's rape laws because it represented a more progressive approach than the simplistic rape and deviate sexual conduct statutes of other jurisdictions. Id. at 204 (citing Landau, Rape: The Victim as Defendant, Trial 19, 2 0 (July/Aug. 1974); Washburn, Rape Law: The Need for Reform, 5 N . M . L . REV. 2 7 9 , 308 (1975); Comment, Rape in Illinois: A Denial of Equal Protection, 8 JOHN MARSHAL J. PRAC. & PROC. 4 5 7 , 4 8 6 (1975); Note, Michigan's New Criminal Sexual Assault Law, 8 U . MICH. J. L. REF. 217 (1974)). 112

M O D E L P E N A L C O D E §§ 3.04(2)(b) (1985).


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Hawaii, New Jersey, and Missouri have codified the right to use deadly force to defend against a sexual assault."3 Yet, common law has not yet generally endorsed a woman's right to use deadly force to repel a rape. In the recent case of People v. Landrum,114 the Michigan Supreme Court reversed the court of appeals' decision, which held that a trial court in a homicide action, if properly requested, must instruct the jury that a defendant is justified in using deadly force if she reasonably believes it is necessary to repel a sexual assault involving forcible penetration as well as death or serious bodily harm.115 Although the use of deadly force always has been justifiable when necessary to prevent death or serious bodily harm, the Landrum court indicated that the privilege of self-defense may not be invoked solely to prevent rape. In People v. Landrum, the defendant, an admitted prostitute, was charged with the beating death of Henry Green Thomas, a man who solicited her services, but refused to pay. The first act of self-defense occurred when Thomas was about to have intercourse with the defendant against her will and the defendant hit him on the head with the telephone. At this instant, the defendant conceded at trial, she was not afraid Thomas would kill her. The defendant retreated and attempted to flee, but Thomas threatened to kill her and actively pursued her, refusing to let her leave. The two continued to struggle until Thomas was subdued to the point that the defendant was able to escape. The defendant asserted that Thomas was conscious and talking when she left.116 Thomas later died from injuries sustained during the struggle. Landrum was convicted of second-degree murder and sentenced from 20-40 years in prison, but the court of appeals reversed, specifically stating that the trial court erred by failing to instruct the jury on involuntary manslaughter.117 Equally important, the court held, was the trial court's

113

Specification of the right to use deadly force to defend against a sexual assault in statutory law exemplifies the legislative determination that the use of unlawful deadly force is so likely in a particular criminal act that the actor is justified in responding in kind. 114 160 Mich. App. 159, 407 N.W.2d 614 (1986), vacated, 430 Mich. 461, 420 N.W.2d 573 (1987), on remand, 171 Mich. App. 140, 429 N.W.2d 818 (1988), leave to appeal granted, 431 Mich. 906, 433 N.W.2d 74 (1988), rev'dsub nom., People v. Heflin, 434 Mich. 482, 456 N.W.2d 10 (1990). 115 Landrum, 407 N.W.2d at 617. 116 Id. at 616. 117 The court stated: Involuntary manslaughter is defined as the "killing of another without malice and unintentionally, but in so doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty." Id. (citing People v. Ryczek, 224 Mich. 106, 194 N.W. 609 (1923)).


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failure to instruct the jury that Landrum had the right to defend herself from being raped by Thomas. The court of appeals declared that "[t]he nature of sexual assault involving forced penetration is so serious that a victim is justified in using deadly force to repel the attack." The court further recognized that rape is "so often accompanied by extreme physical and emotional brutality that it carries with it the explicit or implicit threat of great bodily harm."118 The court cited as authority People v. Pond,m which held that "rape may be resisted 'unto death' "12° and noted that other jurisdictions, such as Texas, Hawaii, and New Jersey, have codified the right to use deadly force to repel a sexual assault. The court of appeals requirement that an instruction on self-defense include the use of deadly force to repel a sexual assault involving forcible penetration was consistent with the provision of the Model Penal Code121 authorizing the use of deadly force to prevent coercive sexual intercourse. The majority of the Michigan high court reversed the court of appeals.122 The court held that the trial court did not err in failing to instruct the jury, sua sponte, on involuntary manslaughter.123 The court determined that the trial court's instruction to the jury adequately presented the defendant's theory of the case, recognizing that although the trial judge must instruct the jury that "the defendant may use deadly force if threatened with impending death or bodily harm," the trial judge is not specifically required to "inform the jury that the defendant may use deadly force to repel a potential forcible rape."124 Despite the majority's acknowledgment that "[o]nly an archaic system of justice would suggest that a woman cannot use deadly force to defend herself against common-law rape,"125 its holding authorized deadly force in self-defense to repel a criminal sexual assault only when confronted with force that the person reasonably believes could result in imminent death or serious bodily harm. The court refused to equate rape with serious bodily harm for the purposes of justifiable homicide. As a rationale

118

119 120 121

122

T h e following factors were cited as favoring a rule that t h e victim may u s e deadly force t o repel a sexual assault involving forced penetration: " t h e frequency of serious injuries attendant to rape, the physical complications such as venereal disease and pregnancy, and the inherent violation of the victim." Id. at 617. 8 Mich. 150 (1860). Landrum, 4 0 7 N.W.2d at 6 1 7 . M O D E L P E N A L C O D E § 3.04(2)(b) ( 1 9 8 5 ) .

People v. Landrum, 4 3 4 Mich. 4 8 2 , 4 5 6 N.W.2d 10 (1990). 123 Id. at 2 0 . 124 Id. at 2 2 . 125 Id.


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for its holding, the court cited "the difficulties the trial judges would have in imposing such a broad rule."126 The court explained that, unlike common-law rape under Michigan's CSC law, criminal sexual conduct may be committed even when the victim never had an honest and reasonable belief that her life was in imminent danger or even threatened with serious bodily harm. As noted by Justice Levin in his dissent, this analysis is flawed because it disregards the fact that a nonconsensual sexual assault is a form of serious bodily injury that justifies the use of deadly force.127 The common-law formulation of death or serious bodily harm is not adequate in the context of sexual assault. A victim of a criminal sexual assault should not be burdened with persuading the jury that the aggressor threatened or appeared to threaten death or serious bodily harm apart from the rape. The courts' inquiry should move away from whether the aggressor presented a threat of death or serious bodily harm to a realization that, during a criminal sexual assault, the victim cannot possibly be expected to determine the aggressor's intention or the level of violence threatened and, more importantly, that rape constitutes serious bodily harm. Thus, a victim should be authorized to repel a sexual assault with force, including deadly force. E. State Regulation of Defensive Devices In addressing use of force to repel sexual assault, it is important to consider the manner in which various state laws address the carrying and use of defensive devices. In this regard, the defensive devices previously discussed in this article may run afoul of state laws128 in two respects. First, some states flatly prohibit the possession or use of mace or other gasemitting devices.129 Second, most states regulate the possession of "con126

Id. at 2 3 . " I t is the possibility of imminent infliction of that harm—not t h e possibility of imminent o r future infliction of some other 'serious bodily harm'—that entitles a woman t o use force to prevent the sexual assault." Id. at 4 2 (Levin, J . , dissenting). 128 Also of interest is a law regulating other devices in the state of Michigan. M I C H . COMP. LAWS A N N . § 750.224a (Supp. 1990) provides: " A person shall not sell, offer for sale, or possess in this state a portable device or weapon from which an electrical current, impulse, wave, or beam may b e directed, which current, impulse, wave, or beam is designed to incapacitate temporarily, injure, o r kill." 129 Interestingly, Maryland makes it a misdemeanor for a person to " w e a r o r carry any . . . chemical mace o r tear g a s device openly with the intent or purpose of injuring any person in any unlawful manner," and then provides that it is lawful to "carry such weapon as a reasonable precaution against apprehended danger . . . ." M D . A N N . C O D E art. 2 7 , §§ 36(a),(d) (1987). California permits the purchase, possession, and use of tear gas and tear gas weapons if they a r e approved by the Department of Justice and used solely for self-defense purposes; provided, h o w ever, that the person using the weapon complete a course certified by the Department of Justice in the u s e of tear gas and tear gas weapons. C A L . PENAL C O D E § 12403.7 (West Supp. 1990).

127

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cealed weapons," and the wearing of these devices may be deemed to be the possession of a "concealed weapon."130 In Michigan, for example, one statutory provision flatly forbids the manufacture, sale, and possession of certain mace devices. This statute provides as follows: A person shall not manufacture, sell, offer for sale, or possess . . . any type of device, weapon, cartridge, container, or contrivance designed for the purpose of rendering a person either temporarily or permanently disabled by the ejection, release or emission of a gas or other substance. A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or a fine of not more than $2,500.00, or both.131

Such provisions have been upheld against claims that they are unconstitutionally vague. For example, in People v. Lynch,132 the Michigan Supreme Court held that the above provision prohibiting possession of gasejecting devices clearly reached the small, hand-held, gas-ejecting weapon such as the defendant attempted to carry, and thus, the law was not unconstitutionally vague as applied to him. In a prior Michigan case, People v. Guy,m the Michigan Court of Appeals held that the law was unconstitutionally vague as written because any person who purchased a can of hairspray or deodorant could be charged with a violation. Interestingly, there is an exception to this statutory ban on gasemitting devices in favor of certain individuals or institutions to protect "large sums of money or other valuables:" A concealed weapons licensing board may issue to any bank, trust company, armored car company, railway company, express company, or other company, institution, copartnership, or individuals having in its, their, or the individual's possession large sums of money or other valuables, a license authorizing the licensee to equip the premises or vehicles under its, their, or the individual's control with gas-ejecting devices to be used solely for the purpose of protecting those premises or vehicles and the persons or property therein from criminal assaults.134

Thus, as originally drafted, this statutory scheme placed a premium on the avoidance of theft of "large sums of money or other valuables," and authorized the possession and use of such gas-emitting devices to avoid 130

See, e.g., 21 OKLA. STAT. A N N . § 1289.8 (1983); M I C H . COMP. LAWS A N N . § 7 5 0 . 2 2 7 (Supp. 1990);

5A D . C . C O D E § 22-3204 (Supp. 1990). T h e District of Columbia's statutory provision on concealed weapons applies broadly t o any dangerous weapon capable of being concealed. D . C . C O D E A N N . § 22-3204 (Supp. 1990). 131

M I C H . COMP. LAWS A N N . § 750.224 (Supp. 1990).

132

4 1 0 Mich. 3 4 3 , 301 N.W.2d 796 (1981). 84 Mich. A p p . 610, 2 7 0 N.W.2d 662 (1978).

133 134

M I C H . C O M P . LAWS A N N . § 2 8 . 4 2 6 e ( 1 9 9 0 ) .

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such theft. Yet, a similar exception to permit women to carry mace devices to protect themselves against rape did not exist. Fortunately, in Michigan, a different statute now permits the use of one type of mace device commonly sold for women's self-defense, a so-called " c s " device.135 Further, as noted above, the carrying of defensive devices in the form of a ring or bracelet might constitute the carrying of a "concealed weapon." For example, the carrying of "concealed weapons" is forbidden in Michigan: (1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person. (3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.136

Thus, as exemplified by Michigan law, state law may provide that certain gas-emitting defensive devices may be used legally, but may not be worn in the form of accessible jewelry, such as a ring or a bracelet, because of the ban on "concealed weapons." Little, if any, relevant case law

135

136

This statute, M I C H . COMP. LAWS A N N . § 750.224(d)(5)(b), relating to " c s " devices, provides as follows: (1) A s used in this section and section 224, " c s d e v i c e " means a device which is capable of carrying not m o r e than 3 5 grams o f any combination o f active a n d inert ingredients and which ejects, releases, o r emits orthochlorobenzalmalononitrile b u t which does not eject, release, o r emit any other gas o r substance which will either temporarily o r permanently disable, incapacitate, injure, o r harm a person with w h o m the gas o r substance comes in contact. (2) A person w h o uses a c s device t o eject, release, o r emit orthochlorobenzalmalononitrile at another person is guilty of a misdemeanor, punishable by imprisonment for not more than 2 years, o r a fine o f not m o r e than $ 2 , 0 0 0 . 0 0 , o r both. (5) Subsection (2) does not prohibit either of the following: (a) T h e reasonable u s e of a c s device by a law enforcement officer in the performance of the law enforcement officer's duty. (b) The reasonable use of a cs device by a person in the protection of a person or property under circumstances which would justify that person's use of physical force. (Emphasis added.) Thus, under Michigan law, the reasonable use of a cs gas device is permissible to defend against a sexual or other assault. A common form of cs device is a small, two-inch canister that attaches to a keychain and can easily be carried. Yet, as with other such devices—but unlike the proposed devices described herein—a limitation of such cs devices is that they would not always b e readily accessible when needed. M I C H . COMP. LAWS A N N . § 750.227 (Supp. 1990) (emphasis added).

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exists on whether the type of devices discussed in this article would be held to be "concealed weapons" because the defensive devices discussed herein are not currently available. It is apparent that if such devices are to be developed, changes must be made in state law to clarify that women may legally wear such ring-like defensive devices, and may use them when reasonably necessary to defend against a rape.


CONCLUSION Rape can have serious long-term psychological and social consequences, and, with the advent of AIDS, may even be deadly. Yet, despite the devastating injury that sexual assaults inflict and the staggering increase in the number of reported rapes, society has done little to devote additional resources, including time, attention, and money, to the treatment of rapists, and has failed to develop a greater sensitivity to victims. Moreover, society has done little to focus efforts on resistance and deterrence of rapes, not only through broad dissemination of strategies for avoiding rape, but also through exploration of new defensive devices, and new legal principles to clarify a woman's right to resist a rape. This article proposes enhanced efforts to deal with rape. New attitudes and new policies must be implemented in the investigation, prosecution, and sentencing phases of rape cases. Greater emphasis must be placed on behavioral treatment and on self-defense to prevent rapes. New laws, new legal principles, and new defensive devices must be considered, developed, and applied with a full appreciation of the devastating consequences of rape.

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