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Danielle Hernandez

Ms. Sullivan

College Law

November 23, 2010

The Law and Rape

Rape is one the most controversial and confusing topics in U.S. law. Often rape cases are

ambiguous since there are no witnesses but the plaintiff and the defendant. Under New York

State Penal Law, rape is considered the act of sexual intercourse without consent through force

or incapacity of the victim to protest. (Sarah Lawrence College)

The general public often associates rape with a violent sexual act committed by a

stranger. In actuality, rape more often occurs between people who are well acquainted or even

dating. Fifty seven percent of rapes occur during dates and date/acquaintance rape in itself is

more common than left-handedness, alcoholism, or heart attacks. (University Police) Date rape is

a rather new issue emerging in the area of sex offense law. New York State Penal Laws do not

mention date of acquaintance rape aside from the general definitions of first degree rape, second

degree rape, third degree rape, and other acts of sexual misconduct. Date rape is generally

defined as a rape falling under one of those categories that happens to occur while on a date with

a partner, friend, or general acquaintance. It is often committed with certain “date rape drugs”

such as Rohypnol, GHB, Ketamine, and most commonly, alcohol. (YWCA) Date rape results in

the same punishment as any other type of rape. Rape in the third degree is a class E felony

(imprisonment for 1 1/2 to 4 years). In the second degree, it is a class D felony (imprisonment for

2 to 7 years). In the first degree, it is classified as a class B felony (imprisonment for 5 to 25

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years). While date rape may prove to be even more confusing than traditional rape, there is

something considered even more confusing now than date rape. Grey rape is a fairly new type of

rape which is considered to be a new form of date rape that is defined as “sex that falls

somewhere between consent and denial and is even more confusing than date rape because often

both parties are unsure of who wanted what.” This has been a topic of much discussion at the

John Jay College of Criminal Justice. (Chan)

Each state has different Rape Shield statutes. These statutes prevent the victim’s sexual

history and reputation from being used against him/her in a court of law. Although the law is in

place to prevent that information from being used, it can be used in a number of circumstances.

Under New York State Criminal Procedural Law §60.42, it can be released if it has to do with a

prior sexual history with the accused. Also, it can be used if the victim’s sexual history includes

illegal activities, such as prostitution, within the last three years. If their past sexual conduct

disproves evidence introduced claiming the victims past failure to engage in sexual activities, it

can be presented in court. Finally, when their conducts refutes claims that the accused caused

pregnancy or disease of the victim or if it is required by the court to counter outside proof offered

by the accused, it can be used. (NDAA)

The best way to avoid having to deal with the confusion of rape law is to learn how to

prevent rape in the first place. Novelist and professor, Martha McCaughey, believes that it is

important for women to learn to defend themselves if they are ever left in such a situation. She

observed, however, that most women are not knowledgeable in self-defense due to the tendency

of our society to aestheticize women’s vulnerability. (Kohen) There are many simply self-

defense tactics that a woman can use if she is in a rape scenario. Such tactics include kneeing in

the groin, slapping the ears, pressing of your thumbs into the eyes, using improvised weapons
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(such as a fork or a pen), forcing three fingers into the throat, or using the palm of your hand to

force the nose bridge into the brain. (Pence) Until these techniques are learned by the general

public, unfortunate rape cases continue to arise each day.

In 2007, a Columbia University graduate student was raped and tortured by assailant,

Robert Williams. She was able to tell the jury every detail of the rape and her memory proved to

be helpful. She was drugged, raped, scaled with boiling water, and her eyelids were slashed.

After this, he glued her lips together, forced her to cut off her hair, and threw bleach at her eyes

when she refused to gouge them out. Still, the victim tried to engage in casual conversation with

her attacker to try to remind him that she was a person and not just an object to receive his acts

of violence. He then proceeded to leave her to burn in a fire but she managed to escape. DNA

tests showed her DNA on his clothing and his on hers. In addition, a security video showed

Williams later using her ATM card to withdraw cash. Williams’ attorney declared him mentally

unfit to stand trial and so he was not cross-examined and did not present the court with an

opening statement. He was found guilty on 44 of 46 counts and faced lifetime imprisonment.

(Associated Press)

In another case, a University of Maryland graduate student was out with her friend one

night in Arlington, Virginia when the two were abducted by a former U.S. Marine, Jorge Torrez.

Torrez, age 21, forced the 23 year old woman and her friend into his SUV. He then proceeded to

drive them to the friend’s home where he bound them with electrical wires. Later, he continued

by forcing the woman into his SUV once again, driving around, and stopping to rape and

sexually abuse her. DNA evidence was found during a 4-day trial along with the victim’s student

ID card. Torrez was found guilty of the crime and the Arlington County Circuit Court jury
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pushed for five life sentences plus 168 years in prison. He has also been linked to the 2005

murder of two young girls in his Illinois hometown. (Glod)

The frequency of rapes and other sexual offences is not surprising given the current social

climate. Today’s youth seems to live in a desensitized environment. Music, the media, and video

games, have numbed their minds to violence (being the driving force in rapes) and sex. The

question that is unanswered is why people are unable to separate reality from the fictional

propaganda portrayed in the media. Most people will agree that it is easy to tell the two apart. A

majority of teenagers will spend hours in front of a TV set shooting down innocent pedestrians

and, in an instant, turn off the console and return to rational reality. It can only be said that a

handful of people would take that violent experience with them. In example, the band “My

Chemical Romance” triggered a 13 year old girl to kill her after hearing their song

“Dead” which contains just that theme. Out of their millions of fans world-wide, such an event

only occurred once and it is more than likely that the girl has another reason for her deviation

that was unrelated to the music. Movies such as Juno tend to portray sex in a very nonchalant

manner, yet it in no way seems to constitute behavior such as promiscuity and rape because it

would take something much more powerful to trigger such intense behaviors. In the end, you

truly can not blame the media. It is true that sex and violent themes appear in movies and music

so often that it is no longer unusual, that is, it is no longer unusual within the context of fiction.

Rapists are probably more pushed into their behavior through past psychological trauma or

genetics. Scientists are currently working to try to find a “rape gene” that would make certain

people predestined to be rapists and sex offenders. (Kristof)

The media can not be compared to a person’s psychological makeup but it starts to

become an issue when it creates ambiguity regarding what actually constitutes rape. Sadly,
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education again fails today’s youths and does not provide them with enough information about

rape. The media and peer pressure may cause men to justify a rape. In such a case, psychological

background or DNA would not apply because the action is incorrectly identified as “consensual

sex,” or even “rough sex.” After all, surveys show that 84% of men who committed a rape did

not define it as such (Kohen). This is also the reason that many may (perhaps unintentionally)

repeat the offense. The only other possibility when you exclude the media and genetics would be

the general birth of a new counterculture. Perhaps the factor is a rebellion against the past

generation- a sour reinvention of the 60’s.

Our generation’s lax feelings regarding respect for their bodies and the bodies of other

aren’t easily pinpointed to a major factor. No one can simply blame the media since its effects

aren’t obvious and hardly affect the multitudes. Also, you can not disregard the media because of

the confusion that it creates. It is too early on to indefinitely declare such behavior to be genetic

and even that is not likely a factor that would be able to affect an entire generation.

Controversial in every aspect, rape law is a very difficult topic to understand and debate.

There seems to be no correct way to handle a rape case since each situation is different, highly

sensitive, and only truly known by two people.

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Works Consulted

"Sexual Offenses in New York State Penal Law." Sarah Lawrence College. Sarah Lawrence

College, 2010. Web. 18 Nov 2010.

<http://www.oswego.edu/administration/police/commaware/date_rape.html>.

"Date and Acquaintance Rape." University Police. SUNY Oswego, 25 March 2009. Web. 18

Nov 2010. <http://www.oswego.edu/administration/police/commaware/date_rape.html>

"Date & Acquaintance Rape: Overview." Counseling Services. SUNY Buffalo, 15 September

2010. Web. 19 Nov 2010. <http://ub-counseling.buffalo.edu/violenceoverview.shtml>.

Kohen, Jamie. "The Guises of Rape." Harvard Law School. Harvard University, n.d. Web. 18

Nov 2010. <http://cyber.law.harvard.edu/vaw00/module4.html#casestudy>.

"Rape and Sexual Offenses State Statutes 2006." Bureau of Community & Intergovernmental

Affairs. Office of the Attorney General, 2006. Web. 18 Nov 2010.

<http://www.ag.ny.gov/bureaus/intergov_affairs/victims_rights/cv_statutes_rape.html>.

"Rape Shield Statutes." NDAA. National District Attorneys Association, July 2009. Web. 19 Nov

2010. <http://www.ndaa.org/pdf/ncpca_statutes_rapeshield_09.pdf>

Glod, Maria. "Ex-marine gets life for abduction, rape." The Crime Scene. The Washington Post,

15 October 2010. Web. 18 Nov 2010. <http://voices.washingtonpost.com/crime-

scene/arlington/ex-marine-gets-life-for-abduct.html>.

Associated Press, . "Dramatic testimony in NYC rape-torture case." MSNBC. MSNBC, 16 June

2008. Web. 18 Nov 2010. <http://www.msnbc.msn.com/id/25193363/ns/us_news-

crime_and_courts>.

Kristof, Nicholas. "Do We Have a Rape Gene?." NY Times. NY Times, 23 June 2008. Web. 19
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Nov 2010. <http://kristof.blogs.nytimes.com/2009/06/23/do-we-have-a-rape-

gene/?scp=17&sq=rape&st=cse>.

Chan, Sewell. "‘Gray Rape’: A New Form of Date Rape?." NY Times. NY Times, 15 October

2007. Web. 19 Nov 2010. <http://cityroom.blogs.nytimes.com/2007/10/15/gray-rape-a-

new-form-of-date-rape/?scp=15&sq=rape&st=nyt>.

"Date Rape." YWCA. YWCA, 2010. Web. 19 Nov 2010.

<http://www.ywca.org/site/pp.asp?c=djISI6PIKpG&b=297535>.

Pence, Ken. "Tips for Self Protection." Rate Your Risk. N.p., 1995. Web. 19 Nov 2010.

<http://www.rateyourrisk.org/selfdef/>.