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Susan Estrich
5 Feb 2016
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No Means What?


Every once in a while, and sometimes more often than that, someone sends me a clipping that makes me check the date twice and recheck the lines that look back at me in the mirror, only to realize I have been reading the same stories and writing about them for more than 20 years. Exactly the same. How can that be?

This one comes from Houston, courtesy of Lisa Falkenberg of the Houston Chronicle, who wrote the story, and a new group called CounterQuo (as in not the status quo) that is trying to make sure people see it. It's about a teenage girl who went to a club last summer with a friend. She met a man who drove her and her friend into a wooded area and then raped her while her friend ran for help.

The victim, now a college student, testified that she tried to resist her attacker, repeatedly hitting him in the face, but he brushed it away, threatened to put her "in the bayou" and told her he had killed five people and would kill her.

The jury convicted.

The judge wondered why she was on top.

No, he didn't just wonder, he actually asked her in the sentencing phase since the defense had wisely decided to have the judge determine his sentence and not the jury.

"Sending an innocent man to prison in the name of law and order is the greatest injustice this society can do," the judge said in explaining his approach to sentencing a man who had just been convicted of violent rape.

According to Falkenberg, "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."

I wrote a book called "Real Rape" in 1986. Its argument should be obsolete.

It isn't. This case could have been the first chapter, if it hadn't been about all the times I had to convince people that I really was raped by a man who threatened to kill me with an ice pick. At least no judge ever asked me the question.

I know there are smart judges and stupid judges, just like there are smart and stupid versions of everything else in life, even things that often matter more, like doctors and politicians.


"I know these are tough questions, and I don't like to have to ask them," the judge said, according to the transcript Falkenberg reviewed. "It's just you understand that most rapes take place with the man on top so he has complete control of the female."

When the prosecutor objected to the question, the judge overruled him, saying he was allowed to consider the circumstances of the offense in determining the sentence.

The circumstances of the offense are whether she is on top? Of a man she believes has a gun, who has threatened to kill her and told her that he has killed before? As she is trying to stay alive while her friend races to get help?

The judge later acknowledged in a legal blog that he should have expressed his concerns in private. Actually, his concerns were stupid and offensive and would have been so in private, as well. The case is on appeal, so he is refusing to say anything more.

But here's the punch line: The guy didn't get away with it. After listening to the 911 tape of the screaming girls "for the sixth time," the judge sent him away for 25 years. He even said he was convinced, the judge I mean, that "no means no." That's why the rapist is appealing. That's why I'm not using the judge's name.

Some things have changed. This time, anyway, the rapist got punished by the system. Sadly, so did the victim. Again. Still.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



2 Comments | Post Comment
Rape is like a scar. It just can't be washed away from a person's psyche. It is always there and I am sad that you are stuck with this legacy of one person's cruelty. I don't know what the proper response is to such a vicious crime. For the victim, it is never enough, for the perpetrator, twenty-five years is a long time.
But who is really responsible for these crimes? Something deep down in a person's formative years predisposes them to HATE, and rape is a hate crime. No one who truly loves women, could bring themselves to hurt these flowers of humanity. It can only be a person so distorted from reality by some awful happening in their past, who could carry out such an act. And in the realization of this, we find, not one victim, but two.
More must be done to try to understand what drives people to committ this crime. Mere punishment does not give us clues to spot potential rapists and work to drive the thought of such a crime out of their mind BEFORE they do it. Understanding is the key to solving mental problems. Sadly, our system only deals with the punishment aspectof the crime. And in the process, we have made very little progress in the prevention of this crime. Something different must be done. Hate must ultimately be turned into love. Sometimes, a simple act of kindness to another human being changes the course of their life. If you live your life, giving encouragement and kindness to everyone who touches your life, you will never know what good you do, but it has to help our human condition. Some years ago, I suffered a great tragedy and a person told me. "Live each day the best way you know how and the things you can't control, will not hurt you." These days I find great peace within my heart by living by that mantra. Try it.
Love Robert
Comment: #1
Posted by: robert lipka
Wed Aug 26, 2009 6:51 PM
Well, given what has happened to you I can see why you have such an extreme view on this issue.

However, I should remind you of the nature of our judicial system -- innocent until proven guilty, guilty beyond a reasonable doubt, better to set the guilty free than to convict the innocent.

Unfortunately, rape is a terrible crime that, physically, often leaves inconclusive evidence. Also, equally unfortunately, women sometimes lie about being raped. There usually are no witnesses; its one person's word against another's.

To sum it up, I don't know how these cases can be handled much differently.

There is no way to reverse this crime. (Maybe that is why you continue to fight so much -- to actually reverse the crime? In fairness, that would be reason enough for me.) I don't have a problem with the Judge asking for more information before sentencing. Justice was served. Take solace in that.
Comment: #2
Posted by: scott365
Fri Aug 28, 2009 1:14 PM
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