This week, the local rape trial that I wrote about here and here reached its end. The defendant was found not guilty. Though I wasn’t in the courtroom, the media reports on the trial make me seriously wonder if justice was served. The defense relied heavily on rape myths. Apparently the jury was convinced. For me, those rape myths raise a host of red flags. (They can also be triggering; a survivor I know felt retraumatized, seeing this case in the paper every day for two weeks.)
Rape myth #1: Consent, given once, is valid until the end of time. The defendant and accuser had had a friends-with-benefits relationship before the night in question. This relationship was dragged through the media prior to trial and then rehashed in the courtroom. Somehow the defense attorney, Robert Toy, managed to introduce their sexual history despite rape shield laws. This started in the pre-trial filings:
After meeting in Fall Quarter 2007, the pair’s friendship “culminated in a sexual relationship” in March 2008. The sexual relationship continued through the summer while the woman took classes and stayed with family near Kulchar’s home, Toy wrote.
Though prosecutors intend to show the sex was violent, Toy has said he will use the woman’s sexual history with Kulchar to prove the encounter was an intimate, consensual part of their relationship.
After meeting in Fall Quarter 2007, the pair’s friendship “culminated in a sexual relationship” in March 2008. The sexual relationship continued through the summer while the woman took classes and stayed with family near Kulchar’s home, Toy wrote.
“Biting and scratching were part of the numerous sexual acts,” Toy wrote.
(Source: The Post)
Attorney Toy continued to harp on their prior relationship in his oral arguments:
The two had a prior sexual relationship that included rough sex, he said, adding that Kulchar couldn’t have overpowered the woman because she outweighs him by 30 pounds.
(Source: The Post)
The presumption here is that once you’ve said yes, you’ve consented in perpetuity. Under this view, consent can never be revoked. This was, of course, the basis for marital rape remaining legal until feminists began to challenge the marital rape exemption in the 1970s. It was also the reasoning behind a Maryland court case in which the defendant was originally acquitted because his accuser said no only after intercourse had begun; upon appeal, Maryland’s highest court ruled that a woman could say no at any point during sex, and if her partner refused to stop, he was guilty of rape. So courts have affirmed the right to revoke consent at any time (though to my knowledge, the Supreme Court has never ruled on this, so different jurisdictions may rule differently.) In any case, there’s still a gap between the law and the beliefs of jurors, some of whom may understand consent to be irrevocable – even if it was given months ago.
Rape myth #2: You can’t rape a slut, because a slut is always panting for it. This is related to the idea that sex workers are unrapeable; a slut is basically regarded as a prostitute who’s happy to give it away for free. The defense made a point of portraying the accuser as sexually voracious:
Testimony will show, Toy told the jury, that the woman pursued Kulchar sexually, and that on a prior occasion in March 2008, the two had engaged in sex that involved scratching and biting – which left Kulchar with deep scratch marks down his back, and prompted a friend to ask him if he had been “mauled by a cougar.”
“This was rough sex that she initiated, and that she enjoyed,” Toy claimed.
(Source: The Athens News)
Here, the defense isn’t just establishing a prior sexual relationship. It’s also mobilizing cultural tropes from porn and other media. Though the accuser isn’t old enough to fit the popular definition of a “cougar” as a middle-aged woman preying on young man, the comparison to an actual feline cougar still evokes a desperate, predatory woman. And while some women actually do enjoy rough sex, porn has promoted the idea that any woman who likes sex is a slut, and that a slut loves rough sex, even or especially when she says no. Twenty years ago, before this constant messaging from porn, a defense lawyer would have a hard time making a “rough sex” argument. I worry that the ubiquity of rough sex in porn will make it increasingly hard to prosecute sexual assault cases if the defense can argue “she wanted it, and she wanted it rough,” and expect juries to find this plausible.
Rape myth #3: If the accuser knows the defendant, she’s probably just out for revenge. The defense really loved this theme:
Kulchar apologized to the woman several times on the phone because she sounded upset, he said. He had left that morning without giving the woman a hug or kiss goodbye, or inviting her to dinner with his family for his birthday, he said.
Kulchar said he wanted to set up a time to talk to her in person and he kept apologizing so he could get off the phone to study for a chemistry exam.
(Source: The Post)
And again:
Though Toy said he does not know why the woman concocted the tale, he added that it could be because Kulchar didn’t invite her to a family party later that day even though they were close friends.
“Hell hath no fury like a woman scorned,” he said.
(Source: The Post)
So there you have it. The accuser was pissed at being left out of the defendant’s birthday party, so she retaliated by bringing rape charges. Exactly! Women do this all the time! Why, I started flinging around rape charges in third grade, when I was constantly the last kid picked for the softball team! Crying rape is such a nifty, easy way to teach guys a lesson!
Isn’t it amazing how clichés and stereotypes – the “woman scorned” – can win over a jury when you don’t have an actual argument?
Rape myth #4: Acquaintance rape is really “gray rape,” which in turn is just an expression of a woman’s next-day regrets.
Kulchar’s attorney, Robert Toy, told the jury that the woman had conjured the whole story because Kulchar didn’t treat her with respect and left her alone after their night of consensual sex.
(Source: The Post)
Here the defense is playing off the idea that women only pursue sex as a way to extract emotional commitment and intimacy. This idea resonates with widely held stereotypes of women’s sexuality: that we don’t want sex for its own sake; that we use sex only as a means to an end, be it jewelry, a baby, or love. These stereotypes merge neatly with “gray rape,” the insinuations that a woman is likely to regret casual sex the morning after – and cry rape. As a term, gray rape is relatively new, but the idea goes back to Katie Roiphe’s The Morning After (1993).
Never mind that there’s a gaping hole in the gray-rape narrative: the social and emotional costs of bringing rape charges are immense. Never mind that in countless conversations with students (many of them one-on-one) the stories I hear aren’t of casual sex regretted. They are accounts of being physically beaten by an ex-boyfriend, overpowered by a trusted friend who promised to walk her home, given a drink that was drugged, or saying no and not being heard or respected.
Rape myth #5: Acquaintance rape is unprovable because it always comes down to he-said, she-said. The defense tried to boil the case down to two conflicting accounts.
He [Toy] added that the jurors have been asked to rule on a “he-said, she-said” case, where the state relied heavily on the woman’s story, which he called inconsistent and lacking corroboration.
(Source: The Post)
In fact, the case wasn’t a he-said, she-said scenario. There was the phone call (mentioned under point 3) in which the defendant repeatedly apologized to the accuser for hurting her. That call was recorded by the police with permission from the accuser.
And there was physical evidence in the form of bruises and a tear. The woman reported the assault promptly and underwent an examination by a SANE nurse, who testified that her injuries were consistent with an assault. The defense tried to undermine the significance of her injuries.
Karen Robinson, the nurse who performed the sexual assault examination, said the one-centimeter-long tear in the woman’s vaginal wall is indicative of nonconsensual sex. A tear like the woman’s is four times more common in nonconsensual sex than consensual sex, Robinson said.
But an expert for the defense, Jane Broecker, an assistant professor of obstetrics and gynecology at Ohio University’s College of Osteopathic Medicine, said that similar tears are found on women who have consensual sex at about the same frequency as in women who have had nonconsensual sex. Bruises and abrasions are more common in nonconsensual sex, she said.
Broecker cited a 2006 study from the Journal of Forensic Nursing that compared women who had engaged in consensual and nonconsensual sex.
“This study debunks the theory that has been used,” Broecker said, adding the study was the best example she had found on genital trauma during nonconsensual sex.
Robert Driscoll, chief assistant county prosecutor, asked Broecker if she had read a 1997 study in the American Journal of Obstetrics and Gynecology, which showed that it was much more common for women to have vaginal injuries after non-consensual sex than consensual sex. Broecker responded that she had requested the study from Alden Library’s annex, but had not yet received it.
Robinson said she noted discoloration on the women’s neck and right breast, but found nothing on her arms or legs.
The medical report and photos did not indicate that the discolorations were bite marks, and the discolorations could have been from a hickey,” Broecker said.
(Source: The Post)
Quick aside: I am perplexed and appalled by Dr. Broecker’s role in this case. She’s one of the partners in my gynecologists’ practice, and though I’ve never seen her, she has a reputation as a good doctor. However, as far as I know, she doesn’t have the experience in examining assault victims that a SANE nurse would have, and I cannot fathom why she’d agree to testify for the defense.
Anyway, I looked up the two studies mentioned, and while I could only access the abstract for the second one, it is clearly better powered than the one Dr. Broecker cited. The study cited by the prosecution examined 311 rape victims and 75 women who’d had consensual intercourse, while the one cited by the defense looked at only 56 and 46 in each group. (The linked abstract for the defense’s study provides almost no information; I drew these numbers from the full article, which isn’t freely available on the Web.) There may still be scientific reasons for preferring the study Dr. Broeker cited, but since she couldn’t compare the two, it’s hard to escape the impression that her testimony was slanted.
In short, Dr. Broeker’s testimony was on shaky grounds. Clinically, only the SANE nurse had examined the accuser; Dr. Broeker played no role in the exam. Scientifically, there are real disputes about how to interpret injuries. However, the gist of the literature – including the literature review in the study Dr. Broeker cited – is that while not every injury is the result of nonconsensual sex, vaginal injury plus bruising correlates quite strongly with sexual assault. In this particular case, the physical evidence appears pretty solid. The science – not so much. No wonder the defense sought to explain away the physical evidence by dredging up the accuser’s sexual history and alleging a pattern of consensual rough sex.
Rape myth #6: If a gal drinks or drugs, she had it coming to her. The defense made sure to mention that both parties smoked dope earlier in the evening before the assault.
The woman told police that she knew Kulchar when she filed the report. Toy wrote that she smoked marijuana with Kulchar before they had sex, and they “voluntarily slept together for a number of hours, quietly, in her dorm room” afterward.
(Source: The Post)
Why would the defense even bring this up, unless they were sure that it would hurt her more than him? After all, they both smoked. The defense must have been confident that only her credibility would be harmed.
Here’s how the woman told her story. Unlike the defense, it’s remarkably free of myths and stereotypes.
The woman said she invited Kulchar to her room to celebrate his birthday, adding that she agreed to kiss him at first. The woman said she asked Kulchar to leave when he made further sexual advances.
But Kulchar ignored her pleas and the two began to struggle. At one point, the woman crawled under her roommate’s desk to get away, but Kulchar overpowered her and pulled her from beneath the desk by her ankles, she said.
“I said ‘Matt, I know that you are very drunk and I know that we have slept together in the past, but I am saying ‘no’ right now,’” the woman said. “I was just trying to be the voice of reason and say, ‘It’s not too far yet … I know that I’m crying, but you haven’t done anything yet.’”
(Source: The Post)
Now, I can’t say I know enough to pronounce the verdict wrong, although the victim’s story rings true to me, especially the part where she tries to talk sense into him. It contrasts with the defense strategy, which cobbled together standard, almost boilerplate victim-blaming narratives and rape myths. This was abundantly clear in closing arguments:
Pressure from her friends, family and prosecutors compelled her to keep up the case, Toy said.
“Does that make a lot more sense than a rape and kidnapping? That things got out of hand, that maybe we as a society make women victims too often when sometimes responsibility should be had by all people?” Toy said.
Driscoll responded during his second closing that the woman’s stories did not match because she did not need to recite every single detail in different interviews with police.
He added that his job is to “do justice” and that the jury should find Kulchar guilty.
“If no doesn’t mean no, (Kulchar) gets away with whatever he wants,” Driscoll said. “If no doesn’t mean no, we live in a lawless society.”
(Source: The Post)
I’ll leave it for you to judge, dear reader. Do we, indeed, live in a lawless society?
(More coverage on the defense’s allegations is here. Further testimony from the victim is here.)