MARY NEMETH February 17 1992



MARY NEMETH February 17 1992




The ground has shifted, the dialogue is new. The words “rape” and “sexual harassment” have come out of the closet. For the first time, men and women in office corridors, nightclubs and classrooms are talking openly about the difference between date rape and consensual sex, about when dirty jokes are inappropriate and when no means no. Old myths are evaporating: a rapist is not only a hooded stranger in a dark alley, but could be a husband or friend; lascivious leers could constitute sexual harassment. Last week, people across North America were rivetted by the details of heavyweight

boxer Mike Tyson’s rape trial in Indianapolis— by testimony about deep vaginal injuries and images of fans cheering the beleaguered fighter on his way to and from court. And as in other celebrated cases before it, the public, along with the jury, faced the critical question of whose word to believe: his or hers.

All too often, women’s-rights activists argue, the jury believes the man. “Whenever a woman lodges a grievance, she’s seen as either a whiner or a hysteric,” said Susan Faludi, author of Backlash: The Undeclared War Against American Women. “Every effort is made to discredit and invalidate her position.”

She met him in a Vancouver bar. He was a friend of a friend. They arranged to go out for dinner, but dropped by her apartment first. There, says the woman, who asked to remain anonymous, it happened. “I said no and pushed him away. He thought, ‘I’m going for it, ’and he went for it. And by then it was too late. I couldn Y get away. It just all happened so fast and I was scared to death. ’’Later, she says, fear turned to anger and she decided to press sexualassault charges. “Everybody I knew said, ‘Don’t put yourself through this hell. ’ But I said I don’t care, I didn Y do anything wrong. And this guy has to pay. ” A year later, a judge acquitted the man of sexual assault, saying that his accuser may have given him the impression that she was consenting to sex. “I could not believe what I was hearing, ’’she says.

Still, more and more women are coming forward. In 1988, police across Canada received 29,111 reports of sexual assault (almost all brought by women), a dramatic increase from 13,851 in 1983. And women’s growing militancy on the issue of date rape, as well as on sexual harassment, has alarmed many men. “The political momentum has swung to the other side of the gender gap,” says an article about sexual harassment in this month’s Playboy, the magazine that is the very bastion of swinging-singles thinking. “We live in a time of sexual inquisition.” Other men express fears that a misunderstood gesture or a vengeful woman could land them in court. And although victims’ advocates maintain that women rarely lay false claims, when a man is unjustly accused the results can be devastating.

Those issues have created a chill between the sexes. “Some women are almost gunning for you,” said a 27year-old high-school teacher from Toronto who wished to remain anonymous. “They say that you’re involved in the victimization of women just by virtue of being a man.” Rob Allen, a 25-yearold musician who was playing at the Back Street bar in Calgary last week, said that although “Thursdays and Fridays are still meat-market nights,” more women are cautious about the men they meet. “It is the same for men,” he said. “If they have friends who have been threatened with charges, or they read what happens with people like Tyson, they change their habits.” Said Ron Blair, 26, who was at the Ship and Anchor pub along Calgary’s Electric Avenue bar strip: “The publicity about date rape certainly makes you think about the repercussions from going home with someone.”

For a female student at the University of Windsor, the repercussions were traumatic. She spoke in a quavering voice last week about a November day when she returned some notes to a fellow

student. She said that he

asked her into his apartment

to watch TV, then began talking about his feelings for her—even though he knew she had a new boyfriend. Said the 21-year-old: “I was starting to think of what to say, to make excuses to get out of there, when he forced himself on me.” She said that after fleeing, “I was in shock—I didn’t tell anyone.” By the time she went to a hospital three days later, there was no physical evidence of the assault.

“I decided not to press charges because it was my word against his,” she said. “Nobody was around.”

When allegations of sexual assault or harassment are levelled, the credibility of both the accuser and accused is on the line. Usually, neither emerges unscathed. Even after the U.S. Senate voted 52 to 48 last October to confirm Clarence Thomas to the Supreme Court, his critics argued that a cloud of suspicion would continue to hang over him. And University of Oklahoma law professor Anita Hill, who told a Senate panel that Thomas pressed her for dates and used lewd language about bestiality and rape to intimidate her, was portrayed by Thomas supporters as either a liar or an unbalanced, spumed woman. Said Hill in a TV interview last week: “I was publicly vilified.”

In the months following the televised inquiry, which reached 20 million homes, Howard Levitt, a Toronto lawyer who specializes in wrongful-dismissal suits, said that his firm has fielded a growing number of sexual harassment complaints. Women “feel less stigmatized” about coming forward, Levitt said. “People are understanding for the first time that you don’t have to be raped for it to be sexual harassment; it can just be a poisoned work atmosphere, jokes and comments, comeons and nude pictures and men talking to each other about their exploits.”

But some men express concern that sexual harassment is poorly defined, and that actions they consider innocent may get them in trouble. “Some men are feeling fairly threatened,” said Jon Shapiro, 45, an adviser to the Sexual

Harassment Policy Office at the University of British Columbia. “I’ll have men say, ‘Give me a fist of things I shouldn’t say or do.’ ” He added: “I tell them to be sensitive, to use a little discretion. But some see that as an infringement, an imposition—and it bugs a lot of men.” Israel Balter, a lawyer at Levitt’s firm, maintains that while many womens’ claims are legitimate, some who lay sexual harassment complaints “have no basis for doing so—their allegations are malicious or frivolous.” Those cases, he says, can be “a device for extortion because men are afraid of spouses, of exposure, of a reputation that will be difficult to salvage once the allegation is levelled.”

The situation is equally complex in daterape cases. In December, during the televised rape trial of William Kennedy Smith in Palm Beach, Fla., millions of viewers watched his accuser, her face hidden, give seven hours of emotional testimony as the defence sought repeatedly to point out inconsistencies in her account. A week after Smith’s acquittal, his accuser, 30-year-old Patricia Bowman, identified herself by name in a TV interview. Bowman said that she came forward to urge victims to press charges despite the ordeal of a trial. She added: “I’m terrified that potential victims who have seen my case will not report because of what’s happened to me.”

In fact, many women—experts’ estimates range from 60 to 90 per cent of all sexualassault victims—fail to report the crime to police. Some say that they do not think that they will be believed. Others express wariness of the criminal-justice system or fear of their assailants. Those fears have been particularly prevalent in small, isolated communities,

small, communities, counsellors say. “Years ago, people felt threatened to even bring someone to court,” said Rita Arey, community counsellor for the Métis association in Aklavik, a remote Arctic settlement of 900 people. “Everyone knows everyone. The offender’s family or the whole community would look down on you.” But encouraged by trained counsellors, Arey said, “more of these cases are being reported now.”

An 18-year-old woman at the University College of Cape Breton in Sydney, N.S., says that she did not want to press charges after three male students allegedly gang-raped her on Sept. 21. “I was afraid to,” she wrote to Maclean ’s last week in response to written questions. “I wanted to forget about it.” But the parent of another student reported the allegations to the local RCMP, who then questioned the woman. Four days after the alleged

WOMEN SPEAKING OUT Reports of sexual assaults increase In Canada* 1983 1988 Canada 13,851 29,111 Newfoundland 262 869 Prince Edward Island 51 118 Nova Scotia 360 896 New Brunswick 232 870 Quebec 2,090 3,778 Ontario 4,773 9,769 Manitoba 836 1,746 Saskatchewan 565 1,046 Alberta 1,930 3,484 British Columbia 2,544 6,140 Yukon 51 86 Northwest Territories 157 309 ‘More than 90 per cent of assaults are against women. Experts estimate that more than half of all sexual assaults in Canada still go unreported.

assault, police charged the woman with mischief, saying that she had made unsubstantiated charges.

In October, after a Nova Scotia Crown prosecutor decided that there was not enough evidence to proceed with the mischief charge, the woman laid an official complaint with the RCMP in Ottawa. In a statement, she singled out one Sydney RCMP officer who, she claimed, “used words like ‘baloney’ and ‘bull’ when I tried to explain what happened.” Added the woman: “He threatened to humiliate me further if I did not co-operate by changing my story.” The RCMP has since reopened its investigation of the alleged assault and launched an internal inquiry into police handling of the case. But the woman says that she wishes the case had never been opened. “I was mistreated,” she said. “I regret the fact that the investigation ever took place.”

When a sexual assault goes to trial, there are rarely any witnesses, and often no medical evidence. The credibility of the accuser becomes a critical factor. In 1989, a circuit court jury in Florida acquitted 26-year-old Steven Lord of abducting a 22-year-old woman at knife point and repeatedly raping her. The jury based its finding partly on the fact that she was wearing a lace miniskirt without underwear. In explaining the decision of the three-man, three-woman jury, foreman Roy Diamond said: “We felt she asked for it for the way she was dressed.”

In Canada, jurors are prohibited by law from discussing their deliberations, but Toronto assistant Crown attorney Mary-Ellen Hurman said that some jurors seem to hold similar views. As a result, she and other prosecutors are increasingly using experts on sexual assault to dispel rape myths. “Particularly when there’s not a lot of medical evidence, where it is a one-on-one situation,” she said, “we do try now to call on expert evidence just to explain

that it’s not unusual for a woman not to report for a while, that rapes do happen between people who know each other.” Date rape, she added, is “harder for us to prove because some people, including victims, don’t even believe it’s rape because rape is portrayed in movies as being a stranger off the street.”

It was late on a Saturday night in January. After an evening on the town, a Toronto man invited a 27-year-old woman to his apartment.

She said that she trusted him—after all, he was a friend of her best friend’s boyfriend. “We kissed,” the woman recalled. But when she told him that she did not want to go any further, he carried her to the bedroom anyway, she said. “The next thing you know, we’re in the bed. I would say stop and he would not listen to me, he was stronger than me, he was holding my hands.” Eventually, she said, he forcibly penetrated her. “When it was happening, I was just in shock,” she added.

“After that, I stayed. Don’t ask me why. It’s hard to explain. I was scared. I kept on trying to cope with it by convincing myself that this didn’t really happen, this is OK.” Later, he drove her home.

Afterwards, the man acted as if nothing had happened, but the woman said that she felt embarrassed and confused. “You doubt yourself,” she said. “You feel that you did something to cause it—why did you get yourself into this situation?” The woman said that she will talk to a lawyer this week, although a rapecrisis counsellor told her that if she plans to lay charges, she should be prepared to lose. “I don’t know if I’m going to go any further,” she said, “but I know he’ll do it again and that’s what really makes me sick.”

Even women assaulted by strangers sometimes find that their actions are called into question. Cathy Mong, now 41 and a reporter with the Dayton Daily News in Ohio, was living in Richmond, Ind., in March, 1980, when a man broke in through her back door shortly after 1 a.m. and raped her. Three weeks later, she recognized the man carrying paint cans near her house, followed

him home and reported him to police. After two hung juries, she said, he was eventually convicted, served several years in jail—but was ultimately set free after the Indiana Supreme Court overturned the verdict on a technicality.

Mong, who has agreed to be identified publicly as a rape victim for the first time—“it has to come from the victim, in her own time, and I guess it’s time for me”—said last week that the local police who questioned her after the assault implied that she had somehow invited it. Said Mong: “I remember I had my curtains

open in my bathroom and a policeman said, ‘Do you take showers in this bathroom?

Why aren’t your curtains closed?’ He also wanted to know what kind of pyjamas I wore. Hey, I had my blue jeans and sweatshirt on when he broke in.” Added Mong:

“The implication was that you never know when there’s a man outside, and if he sees what he wants he’ll come in and rape you—that women are just so appealing that the man can’t help himself.”

In August, when the Su-

preme Court of Canada

struck down the so-called rape-shield law, women’s-rights activists protested. Without the law, they said, defence lawyers would be allowed to subject some accusers to detailed questioning about their sexual histories, undermining their credibility with some jurors and discouraging victims

from coming forward. In response, Justice Minister Kim Campbell introduced new legislation in December that includes strict guidelines on when judges can admit evidence of past sexual history and, for the first time, defines consent as “the voluntary agreement of the complainant to engage in sexual activity.” The bill also defines certain situations where consent does not occur. Among them: when the victim has a change of mind or is drunk or otherwise incapable of giving consent. The Commons has given it first reading—the step that opens the way to full

parliamentary debate—and it is expected to become law in the fall.

That legislation, however, has drawn an angry response from men’s-rights advocates. Ross Virgin, president of Woodbridge, Ont.based In Search of Justice, argued that if a woman is not capable of giving consent while drunk, an accused rapist should be able to use intoxication as a defence. “It’s absolutely outrageous,” said Virgin. “It’s a clear case of sexual discrimination.” And he argued that

“no does not always mean no—sometimes it does mean maybe, sometimes it means later.” Confusion about what constitutes consent, Virgin claimed, is part of the reason that innocent men are accused of sexual assault.

But an acquittal can rarely reverse the harm done to an unjustly accused man. Toronto criminal lawyer Ross Byrne said that he has defended 13 clients accused of date rape in the past year—and won acquittals for all but one of them. Nothing, he said, has such a dramatic effect on a client as being arrested for sexual assault. “They are treated differently from the

moment they are picked up,” he said, and they face grave dangers from other prisoners. “I’ve had clients beaten while they were in the holding cell before they were even arraigned,” he said. “One fellow had to go to hospital after he had a bucket of urine dumped on him, his jaw shat-

tered and his ribs kicked in.” Problems continue even after acquittal. In one case, Byrne said, the man’s family stopped speaking to him, while in another, a young man quit high school because he said that he could not face his peers.

In 1989, said Henry Novak, his wife of 21 years accused him of sexual assault. And the 47-year-old Toronto electrician said that it took two years, and $30,000 in legal fees, to win an acquittal. Now, he and his wife are

separated and have filed for divorce. But Novak expresses bitterness at a system that he says unjustly treated him as a criminal. “You’re guilty the moment someone dials 911 and points a finger at you,” he said last week. “You can tell by the way the police handle you, handcuff you, throw you in jail. The judge kept putting me down. They all sided with her.” Novak, who was bom in Israel and moved to Canada in 1967, argues that his adopted country’s laws are stacked against men. “The way things are going,” he said, gesturing at the other male customers in a brightly ht fast-food

restaurant in downtown Toronto, “every man who has sex today is committing a crime—it’s getting out of hand.”

One of Canada’s highestprofile sexual-assault cases is still in the courts. Robert VanOostrom, a 23-year-old Queen’s University chemical engineering student who graduated last spring, was charged in October, 1990, with sexually assaulting three female students between 1987 and 1989. VanOostrom testified during a two-week trial in Kingston, Ont., that the sex was con-

sensual. On Dec. 13, Justice Alan Campbell acquitted VanOostrom on all the charges. The Ontario Court general division judge added in his ruling that two of the complainants “had motive to fabricate and did fabricate on the matter of consent.”

But the not guilty verdict did not end VanOostrom’s 14-month ordeal. When he emerged from the Kingston courthouse after his acquittal, a mob of about 70 women shouted “guilty” and rocked and pounded his car as he tried to drive away. VanOostrom has since left the city where he grew up, but graffiti proclaiming “Stop rape, stop Rob” is still spray-painted regularly on his family’s house and throughout the neighborhood.

Last month, the Ontario attorney general’s office announced that the Crown will VanOostrom’s

tal. Like so many date-rape and sexual harassment cases, the issues are complex, the emotions raw. And whatever the outcome, a profoundly disturbing event has already occurred—either three women were sexually assaulted, or a man was unjustly accused.