Double Jeopardy
by Lorraine Dusky

THE STORY IS FAMILIAR. KRISTA ABSALON, a 23-year-old divorced mother of two, drank too many beers and too many shots one night in October 1991 at the Casablanca, a joint near the Canadian border in her home town of Gouverneur, NY. At some point, she passed out in the bathroom. Later, after the place had closed, five men, all of them acquaintances of hers, carried Absalon from the ladies' room to a booth, stripped her, and raped her while she slipped in and out of consciousness. She learned what had happened two weeks later because the men had been bragging about it.

Absalon filed a complaint, the D.A. brought misdemeanor charges (rape is a felony, but it was a first offense after all, and the young men's lives might be ruined, etc. - you know the drill), and the town justice, Wallace Sibley, fined them each $840.

When Absalon and women's groups cried foul, the case was reopened by the state. One of the alleged rapists, Michael Curcio, said on national television, "I don't think we should have gotten anything," and described the rape as just a "gang bang." No big deal.

No big deal either to the jury of six men and six women in nearby Canton who, at the end of March, found the first of the five men to come to trial, Mark Hartle, 29, not guilty. In return for probation, one of the men, Greg Streeter, testified against Hartle; all of them admitted having sexual intercourse with Absalon when she was dead drunk. The complainant, in other words, had corroborating evidence. It was not enough. She got drunk, she passed out, what was she doing there late at night - what did she expect?

Absalon has since moved to Syracuse. In Gouverneur, folks blame her for the bad press their town got since she brought this unwanted notoriety to it. In Gouverneur, Absalon will always be a woman scorned.

Peggy Reeves Sanday, an anthropologist at the University of Pennsylvania, knows this terrain. She has visited it before in Fraternity Gang Rape and Female Power and Male Dominance and she is an expert on "rape prone" and "rape free" societies. In A Woman Scorned: Acquaintance Rape on Trial, Sanday convincingly makes the argument that violent sex between women and men is a cultural abnormality, not a biological inevitability. In societies where sex roles are better balanced and there is very little violence, rape is rare. This is a book you want everyone who will ever serve on a rape trial to read.

Her incisive examination of acquaintance rape through the centuries shows that historically it is cultural attitudes, not the law, not justice, and certainly not a sense of right, that prevail in rape trials. Pop sociology and pop psychology dominate, she says, because popular stereotypes of sex roles allow men to keep ornery women in their place. One particularly fascinating passage reveals that when rape trials declined in Puritan times, witch trials replaced them - society had to find some way to keep uppity women in their place. The Puritans did believe women when they brought rape charges, however; it was assumed they had no reason to lie. It was not until later, when Blackstones's Commentaries on the Law became a best-seller in this country in the 1760s, that one of the most insidious comments on rape - the misguided venom of a jurist a century earlier - came into popular usage in the courts: "Rape is...an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent." In most states this statement was read to the jury in rape trials as part of their instructions up until the 1970s.

Not all jurists were unsympathetic to women's experiences in the courts. In 1868, a Justice Johnson held that a woman's past "lascivious" conduct could not be taken to mean that she was at the sexual disposal of anyone against her will. If such evidence was allowed, he argued, then so should evidence about whether or not the man was "in the habit of assaulting other females with intent to ravish... All men would see its injustice at once and exclaim against it." The judge's argument, it is worth noting, came in a dissenting opinion. The rapist got off. Too bad Judge Johnson was not officiating at the William Kennedy Smith trial instead of Judge Mary Lupo, who handed over the trial to the defense the minute she ruled against disclosing Smith's prior bad acts with other women.

Sanday makes a strong case for telling one's partner whether or not sexual advances are desirable. You have to let them know every step of the way. Although I wondered about how Antioch College's famous and much-maligned sex policy (ask first) could actually work, she convinced me that it should be taught to all school children over the age of...whenever it is they become sexually active in our violent, "rape prone" society.

Most of us who know someone who has been raped (do any of us not?) will appreciate her skewering of anti-feminists such as Camille Paglia, Katie Roiphe, and Christina Hoff Sommers and their uncanny ability to get ink in the male-dominated media such as The New York Times. All in all, A Woman Scorned is a compelling read, not only for the one in eight women who will have sex against her will sometime in her life, but for anyone interested in how far we haven't come, as the Gouverneur trial makes all too clear.

LORRAINE DUSKY is the author of the forthcoming Still Unequal: The Shameful Truth About Women and Justice in America.