Rape on Trial

I spent the better part of a month in 2022 in lower Manhattan on a wooden bench in the back of a courtroom, observing a rape trial. Early on, I’d concluded my testimony on behalf of the victim, but, emotionally invested and unable to shift my attention, I kept showing up. The plaintiff had sought psychotherapy with me in 2017 to address symptoms of anxiety and body loathing. In an initial session, I asked if she had ever experienced unwanted sexual contact. “Yes, that happened,” she told me in a forthright and detached manner. Like most victims who do not readily label their experiences as rape, she tried for years to put it behind her. That changed a few months into our work, when her assailant, a public figure, publicly condemned Harvey Weinstein. She was jolted by his hypocrisy amid the watershed #metoo movement. 

 

Many people can recall when they first heard the hashtag #metoo. On October 16, 2017, one of my sisters penned on Facebook simply: “#metoo: 35 years to life worth”—the prison term the man who raped her is serving. Statistically, one in four women is likely to be sexually assaulted. Between my three sisters and me, we have survived not only a serial rapist but child molestation by a babysitter, a group assault in a country far from home that also warranted legal wrangling and a settlement, date rapes that wouldn’t be named, and an attack from behind in broad daylight by a stranger in a baseball cap who didn’t count on blood-curdling screams. These are only the most egregious incidents—like the 63 percent of sexual violations that go unreported, most of the gropes and intrusions we’ve endured are barely acknowledged even to ourselves. In her anthology Not That Bad, Roxane Gay asks, “What is it like to live in a culture where it often seems like it is a question of when, not if, a woman will encounter some kind of sexual violence?” 

 

Many of us concede that our bodies are not fully ours to own. In therapy spaces and in private contemplation, we grapple with this basic betrayal: our bodies are exploited by consumer capitalism, by the male gaze, by conservative courts, and by medical model treatments that—among so many fundamental blind spots—aggressively misgender trans people, stigmatize fat people, and require us all to submit to normative codes of gender, health, and embodiment. This conditioning, of course, dissuades vulnerable people from calling out wrongful, even harmful, treatment. Some of us end up hypervigilant, on high alert for danger. Others might feel alienated, insecure, and mistrustful of our own bodies. 

 

Even outside social media, though, pockets of resistance inspire us in our collective unconscious. The Bolivian Mennonite women (fictionalized in Sarah Polley’s adaptation of Miriam Toews’ Women Talking) who were routinely drugged, assaulted, and bloodied violated community codes and began talking about the violence that is rape. They had been denied education and literacy, but they understood that the sexual violence posed a humanitarian crisis. It was not in their “wild female imagination”; it was not isolated, and no one asked for it. Refusing to pass complicity on to their children, they actively debated whether to do nothing, to stay and fight, or to flee. Ultimately, they could not reimagine the colony beyond a state of violence, so they piled into their buggies and left their fathers, husbands, brothers, and sons of a certain age behind. In a remote dwelling with its own rules, the female-identified Mennonite people reckoned, collective denial was no longer tenable. Rape is not the individual’s burden to carry.

 

My sisters and I knew intellectually that none of it was our fault, thanks to the groundwork laid by feminists and other women at wits’ end before us. Canaries in the coal mine, feminists of the 1960s, like my mother, named the entwined problems of domestic dependency and violence in homes. Yet their disruptive ideas about sexual freedom, affirmative consent, and reproductive rights in the public sphere were generally dismissed as shrill, man-hating views of a loud minority. It was a time when women did not have the capital to speak up without being blamed, stigmatized, and punished. 

 

I returned to that courtroom again and again after my time on the witness stand because I needed to know if anything had changed. Did the legal system reflect the inroads made by agitators before us and by the more recent movement of survivors’ collective action and truth-telling? 

 

I witnessed the awesome power of women speaking up—one after the next, victims in addition to the plaintiff provided testimony demonstrating a pattern of predatory behavior. These women created a counternarrative to the shame, self-doubt, and silence that deepen the trauma of rape.

 

But another thing happened. Strikingly, the strategies of legal defense relied on retrograde rape myths. These struck me as performance pieces, white-knuckled clutches on a bygone era of sexual domination that relied on gaslighting, victim blaming, and slut shaming. Old-fashioned and pathetic, the defense’s counterattacks presumed the jurors to be unsophisticated about misogyny, unsympathetic to psychological truth-telling, and unknowing about the complicated face of trauma. 

 

The defense team concocted a far-fetched fantasy about the victim feeling rejected, calling it rape, and seeking revenge. They demanded, why didn’t she go to the police after she was assaulted? As expert witness Dr. Lisa Rocchio testified, rape is the most underreported crime. Only 21 percent of victims report it. More than twenty women were assaulted by Weinstein before Filipino-Italian model Ambra Gutierrez first reported the crime. It was little mystery to me why women retreat to silence when, on the stand, my former patient was interrogated about every sexual encounter she’d ever had. She was instructed to reenact the body position and movements of the assault, to remember in her body what she had tried to forget. (The cruelty on display, and her uncontrollable sobbing, brought the courtroom to an early halt that day.)

 

The aggressive lashes by the enfeebled defense continued. If the plaintiff felt scared that night, the defense demanded, why didn’t she look for a weapon or kick her rapist? The defendant admitted that she had told him “no” and “stop” repeatedly; he described how she resisted his removal of her tights, pulling them up as he was yanking them down. Somehow, he interpreted this as an invitation. According to her rapist, “She did not say no in the way one means no.” He attributed her refusal to have sex to her “feeling fat,” an unsubtle body-shaming tactic. Asked during cross-examination about his initial denial that intercourse occurred, before DNA was detected on her tights, he piled on more insult with a shrug: “I guess it was not memorable.”

 

More classic victim-blaming questions followed. Why, the defense attorney pressed, didn’t she flee? Overpowered, feeling helpless during the assault, she stopped fighting and froze. This response, known as tonic immobility or rape paralysis, is an adaptive strategy of shutting down physical responsiveness to ward off attackers. It is the most common response to rape, experienced—involuntarily—by roughly 70 percent of victims. The mind of the prey, lizards and mammals alike, freezes in a state of high alarm, to dissociate from the violence that seems inevitable. “I was like a trapped animal. There was nothing for me to do,” she recalled.

 

The defense attorneys played up their mystification, asking: Why did the victim contact her assailant eleven days after the assault? Twenty-five percent of victims of acquaintance rape seek out contact with their perpetrator, sometimes electing sex, to deny the violation, to compartmentalize fear, and to restore a feeling of control. The posttraumatic response of appeasing the person who causes harm maps onto gender training for many women, who are socialized to be amenable, people pleasing, and conflict avoidant. I hoped the jurors would understand that the victim’s contact with the perpetrator had to do with a history of abandoning herself and directing anger inward, based on her low expectations about how she should be treated in the world.

 

Why, the defense questioned, had the victim held on to the unwashed semen-stained tights she wore that night? “A trophy,” the defense attorney insisted during my cross-examination. “Isn’t that right?” He was comparing the garment to the blue dress that Monica Lewinsky, a wildly misunderstood scapegoat, wore and preserved following her encounter in the Oval Office with President Clinton. The victim in this case had tucked the tights in the back of a drawer. As her therapist, I knew it was a way to emotionally compartmentalize her associations to the tights, while preserving the evidence of what happened to her. 

 

Rape does not happen on a continuum, but rape myths persist because any of us is prone to minimize rape allegations, to imagine gray areas and nuance where there are none, if the alternative is to grapple with the commingling of helplessness and badness among us. As the jurors were reminded, the defendant may be a respected talent and a rapist. He may not rape all women he befriends, he may be upstanding in some areas of his life, and he may even identify with the victim’s feeling of helplessness. Nonetheless, he twisted the story of what happened to his own benefit, claiming victimhood and referring to himself as the “underdog.” He exploited modern versions of masculinity, casting himself as a broken, confused man, “a flawed human being.” He was scared, he told the jury, showcasing his vulnerability while projecting his badness onto others: “I don’t know why women, or anyone, would lie.” His case hinged on the culture’s penchant to sympathize with men who claim they want to evolve and to blame and bully women who dare to call them out.

 

The jury found him liable on all counts and awarded the rape survivor punitive damages. Rape, the jury made clear, is immoral, malicious, and causes lasting pain and suffering. And rape myths are no longer persuasive. Instead, they reveal an outdated refusal to imagine that no really does mean no. Blaming victims, casting shade, body shaming, and relying on female silence is not a good gamble. Indeed, there are no safe victims. 

 

In my sessions with the victim years before, I had tried to offer therapeutic solace: “The worst has already happened.” With this harrowing trial and the validation of the court behind her, she’s helped pave the way for other survivors who need this sentiment to be true.

 

Walking out of the courthouse, elated by the guilty verdict, I passed the rapist with his shoulders hunched, audibly crying, embracing his adult children. I thought about how this whole trial could have been avoided. What happened to him long ago that led him to disown his vulnerability and to deposit it into the women he raped? Even after he committed rape, why couldn’t he reckon with the source of his pain, acknowledge the hurt he caused, grapple with his moral failing, and make amends? Instead, without remorse, he mounted a multimillion-dollar defense, hiding behind rape myths and legalese, while subjecting the victim to intense scrutiny and objectification in the courtroom.

 

“It seems wrong, but I feel sad for him,” I said to a journalist friend as we passed through the rotunda, beyond the metal detector. I perceived a man stripped of the emotional defenses he’d spent a lifetime building.

 

“You’re human. Empathy is not a crime. We need more of it, not less,” my friend offered. I found comfort in the emotional clarity of the Mennonite women who recognized that male aggression is fostered in toxic environments. They fled with their young children, filled with hope that their sons’ humanity, nurtured empathically, could reverse a legacy of rape.