Posts have appeared recently at both Abyss2Hope and SAFER on a rape trial in which the most egregious rape apologism was committed not by a defense attorney, who can and probably should be expected to engage in such behavior, but the judge. Even worse, the judge interrogated the victim not during the course of the trial itself, but during sentencing — after the defendant had already been convicted of rape by a jury of his peers:
Although the jury already had found Escobar guilty of aggravated sexual assault, Fine went on to challenge the victim’s version of events, doubting her truthfulness on details from her vague time line to the method in which her clothing was removed. Near the end, Fine remarked that “sending an innocent man to prison in the name of law and order is the greatest injustice this society can do.”
Obviously Judge Fine’s overall questioning was rooted in his own ingrained misogyny and disrespect for rape victims. But it’s his specific reason for distrusting this victim’s story that is particularly interesting, widespread, and in need of further discussion: he didn’t like the sexual position that was used throughout the rape.
What shocked the victim most was when the judge questioned whether she was really raped since he found it “odd” that was she was on top of Escobar during the assault. The judge required the victim to recount, in detail, her position during the rape and explain how Escobar, who maintained the sex was consensual, was able to force himself on her.
“I know these are tough questions and I don’t like to have to ask them,” the judge told the victim, according to a July 31 transcript, released late last week. “It’s just you understand that most rapes take place with the man on top so he has complete control of the female.”
The question drew an objection from Prosecutor Ed McClees, who questioned the relevance in a tense exchange. The judge argued the law allowed him to consider facts and circumstances of the offense to determine the appropriate punishment.
What Judge Fine did is absolutely, 100% inexcusable. As a man in such an important and powerful position, he should be well and high above rape myths. We should be able to expect that he not stoop to the level of online comments (be kind to yourself; don’t go read them) when it comes to the idea that X situation makes rape impossible. And this is especially so when the victim had undoubtedly already explained the circumstances of the rape based on the very structure of a rape trial.
For those who are interested, the explanation is as follows:
The victim testified that she repeatedly fought her attacker, but that he wasn’t fazed by the blows to his face and was able to force himself on her. All the while, she said, Escobar threatened to put her “in the bayou,” claiming to have killed five people already and saying he’d do the same to her with a knife she believed he had in his pocket.
And so what we have here is a woman who actually physically fought back, and had her life threatened. And still, that lack of consent wasn’t seen as good enough for the judge.
What this line of questioning by Judge Fine betrays is an understanding of rape as only possible in a situation where non-consensual sex is achieved through brute force. Indeed, as he says, when a rapist “has complete control of the female.” In other words, he sees rape not for its correct definition as sex enacted on another person without their consent, but as sex obtained through brutal physical force despite the victim’s best attempts to physically fight off her attacker.
This definition of rape is old fashioned, and it is misogynistic. It assumes that a woman’s autonomy and right to make decisions about her own body counts for absolutely nothing unless she is willing, even in the face of fear, threats, and other violence, to persistently and consistently back up her will with as much physical force as she can muster. And it’s a view that is exceedingly common.
It is in fact true that the position the attacker used during his rape is not the most common one used. I, however, personally suspect that his choice in this regard was about humiliating his victim further. It’s not exactly unheard of for a rapist to degrade his victim by forcing her to vocalize “enjoyment” of the rape — something that usually brings additional trauma with it. Using a position that is not regularly associated with rape, but with consensual sex in which the female partner is an active participant, I believe was intended to create the illusion that the victim “wanted it,” likely distressing her even further in the process.
Again: rape is sexual activity committed without the meaningful, enthusiastic consent of one of the parties involved. It is entirely that simple. A victim complying with her attacker out of shock or in an attempt to minimize harm is not consenting. Consent is a willful “yes.” Compliance is agreeing to stop saying “no.”
And on that note, I’d like to close with a thank you that should not be necessary, but in our current climate is sadly deserved. First, to the writer at the Houston Chronicle, who took the time to publicly and loudly denounce the judge’s actions, stating “Coercion comes in many forms. By gunpoint or perceived threat. From a stranger, or a boyfriend. And in various positions.” And most of all, to the jury in this case, for convicting a dangerous rapist in a world where compliance is so regularly mistaken for consent. Thank you for making the right call, and in doing so helping to break down that myth just a little bit more.