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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.

Still.

"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 www.creators.com.