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Friday, March 11, 2011

What is reasonable?

So many things have been happening recently. I apologize for my absence from this space. I intended to do some sort of big post about the new GOP War on Women, but then law school happened and I haven't been able to get to it. Thankfully, there are many very good and capable writers out there who have helped cover my behind here. Make sure to keep on your Tiger Beatdown, folks.

But other interesting things have recently happened that I am happy to say seem quite linked to my legal studies, and it would be remiss of me not to mention them. I saw this study about a week ago on about the New Hampshire Governor's Commission on Domestic and Sexual Violence. You can nab the .PDF of the report here. Some key findings:

1. Rapes don't get prosecuted in New Hampshire because of public misperceptions about what rape is.
2. The criminal justice system is ill-equipped to handle adult sexual assault (the study did not investigate children).

A note from page 2 of the report:
General perceptions of what constitute "real rape" characterize the assault as an act of violent, forceful penetration committed by a stranger during a surprise attack while brandishing a weapon. Typically a "real" victim is portrayed as a morally upright woman who was sober and fought back against her perpetrator. These myths persist even though statistics show the majority of women are assaulted by someone they know, and that physical injury is not common in most sexual assaults.

Although many people acknowledge that these generalizations are not accurate, they clearly have an impact on how sexual assault cases are handled in the criminal justice system. The further away from the "classic" perception of a victim, the less likely we are to find a positive outcome for the victim. (footnotes omitted)
One of the most prevalent concepts first-year law students wrestle with is the concept of the "reasonable person" (warning, mostly ill-informed first-year law student talk ahead). The basic idea behind the standard in things like negligence law is to decide if a particular defendant acted so far outside the realm of normal behavior, given the specifics of the situation, that society is justified in forcing the defendant to pay (in money, time, or some other way) for the repercussions of his or her actions. The goal of the doctrine is to add an objective moderating element to what a jury can and cannot find in a particular case.

An example: a defendant is sued because he puts a lit, unguarded candle on top of a big bed of dry newspapers. He doesn't intend to set anything in fire, he just isn't thinking about it much. The flame on the candle jumps to the newspapers, the newspapers immediately catch fire, and the next thing this poor dude knows, the room he's in is on fire and someone gets hurt, or a building burns down, or both. If he were slapped with a negligence lawsuit, one of the standards a jury could use to decide whether this guy should pay for all the damage the fire caused is to judge his actions against a fictitious person, a "reasonable person," who embodies the community's general mores, norms, level or intelligence, and so forth. I imagine in this case that a lot of juries would decide that most people (and therefore, probably whatever fictitious "reasonable person" they came up with) would KNOW not to put open flames near dry newspapers. Everyone knows that's a good way to start a fire - what did he think was going to happen? If the defendant here testified that he, personally, subjectively didn't know that the candle had a good chance of starting a fire, the jury could still decide that he should have known, because a reasonable person would have. My textbooks call this standard 'objective,' but I don't think that's quite right. It's not so much that the doctrine asks the jury to consider if a defendant's actions are, in any sort of studied, scientific, factual way negligent or wrong, but rather whether the defendant's actions violate the community's values, instead just his or her own. It's a way for us to set a baseline for behavior that we as a society think is ok, versus behavior that we don't.

This standard isn't used only in civil cases, either - it also comes up in a lot of criminal contexts, either explicitly or implicitly. An explicit example would be in a case of self-defense: one of the (usual) requirements for self-defense is that the defendant reasonably believed that he or she was in imminent danger. The jury has to decide not only if they believe the defendant, when he says he was subjectively scared for his life; but also whether the situation the defendant was experiencing was such that a normal, average member of the community would also think that situation was a life-or-death event. Another example: most people would probably find being attacked by a bear a frightening, terrible experience, and probably a life-or-death one as well. A normal, reasonable person, when confronted by an angry bear, might do a whole bunch of things, but he or she probably wouldn't sit quietly and sip coffee. Likewise, all the normal reactions someone might have to the bear (running away screaming, passing out, getting eaten) would be totally unreasonable if faced instead with a house cat (although with some cats, you never know...). Someone who had bear-like reactions to the cat would not be doing what "most people do," and so a jury might not find that type of activity "reasonable." Granted, most self-defense cases aren't conducted against cats, so this example is a little strained.

Here's where all this long, rambly legal explanations meet the study earlier. Even in cases where the "reasonable person" isn't necessarily a specific doctrine in use, juries will always judge defendants and plaintiffs by community standards. That's what juries are for: to bring the real world into the courtroom. What do we do, then, when we bring in all the same stereotypes, lies, and misrepresentations into the courtroom that we have outside of it? How do we fight those stereotypes in a legal setting?

The answer, according to this report, is not very well. A lot of the misperceptions about how rapes happen that exist outside the courts walk right into the court with a jury summons, and this reasonable person problem walks right in with it. A reasonable "person" might do a lot of things in any given circumstance, but how is that fictitious person different from, say, a reasonable woman? Would a jury, using contemporary community standards, assume that it was 'reasonable' for a woman to walk alone late at night? In a short skirt? If she was young and attractive? If she was drunk?

Another set of studies came out a little while ago about acceptance of casual sex between genders. Thomas has a great explanation of it over at the Yes Means Yes blog. These studies refuted the traditional, mostly male-centric view that when it comes to sex (or at least casual sex), that men 'want it' more than women do. This assumption, aside from being peddled by irritating men's rights activists for a really long time, had a tiny sliver of support from a badly done study a while back. The problem with this old study is that it gave a lot of ammo to the social stereotype that women have less sexual desire than men, and could never want casual sex or a fling with a stranger. Despite all the evidence of actual women who had actual sex with actual men, this social stereotype continues to live on. The new study basically trashes the old one, which is great, but for this stereotype to come crashing down, it needs to spread rapidly through society and get into people's community values.

This is important because it helps show, once again, the women and men are not so different as we thought. It also, once again, shows the power of social messages in determining what we believe about men and women. All the stereotypes communities hold about the appropriate roles for women, how women 'are', and how they 'should' approach sex come with jurors into a jury box. Right now, those community messages are pretty strongly anti-woman, because most of our culture is pretty strongly anti-woman. If we still believe that it's "unreasonable" for a woman to be walking alone at night, or to dress provocatively, or hell, to even be allowed to turn her partner down when she doesn't want sex, then it stands to reason that none of the women who bring rape cases with fact patterns will ever get justice.

Those of us who's job it is to educate the public and crack through those tough stereotypes - we've got to get cracking. We have science, data, and reality on our side; all we need to do now is bring that to the masses to get some justice.
Posted by Dave on 03/11 at 03:42 PM


Dave, you're the best.

One of the reasons I decided a while back to tell casual acquaintances or colleagues that I'm a survivor (when it had reason to come up) was to demystify the subject, to put a familiar face to it. If they already know and like me, respect me, believe me in general, my revelation can make quite a hole in that wall of stereotype. Yes, sometimes I get "othered" a little ('you're not a typical rape victim' stuff), but I can refute that. People don't like to live with cognitive dissonance. the more uncomfortable they are, the more they'll cling to the old opinion, no matter how wrong. But I find that when I reassure them that I believe they're good people, but misinformed, and 'come on, this is ME talking! You know me!'...well, the conversation can do a lot more good in the long run.
Posted by lisa  on  03/16  at  09:34 AM

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