The Rape of Andrea Dworkin That U.S. Criminal Justice Could Not Have Successfully Prosecuted

By Nick Levinson

Andrea Dworkin was raped. However, this was doubted by various people. Although the rape and some of the responses to it were some years ago, the consideration here is of how her case would have fared in a criminal trial in the United States. No conviction on any charge akin to rape would have resulted. This is a sketch about why.

Some of what follows depends on timing. For example, a statement she had made that could make prosecution difficult may not have been made until well after the rape. For much of what follows, some laws were revised in the late 20^th century to make some rape prosecutions less difficult. I have not tested for chronology. But I think that there’s still plenty against a finding of guilt.

Assume, for the sake of argument, that the rape was in the U.S. Assume no confessions. Apparently, there were no eyewitnesses to the rape besides those who did it and she to whom it was done (and she was unconscious). Assume no one heard anyone brag about doing it. Assume the prosecutor, besides receiving a law degree after graduating in the top of her law school class, had received a Ph.D. in feminist studies from a top school and knew Andrea Dworkin’s work well. Even if all defendants had been identified and arrested and the police and prosecution were solidly prepared, acquittals on all rape counts would have been the outcome. (Nonconsensually administering drugs to her might have resulted in conviction, because the issues affecting a rape charge are different.) Most prosecutors would not even have tried rape charges, except to bluff for a guilty plea in lieu of trial and then only if the defendants would not have held out for a trial.

Defense strategy would have destroyed the case in the eyes of the jury. Juries tend to be superproportionately readers of tabloids rather than of spreadsheets, superproportionately civil service workers, used to being told at work what to do with limited discretion and many of whom are paid their full job pay in lieu of rather meager jury pay, and, possibly, superproportionately retired, as other potential jurors are more likely to seek reasons for not being jurors and attorneys tend to prefer some kinds of jurors over others. These proportionalities tend to influence how juries perceive and evaluate cases.

Impeachment of her testimony would have been permitted by the judge and would have been potent. A jury would have found enough doubt to decline to convict at all. What follows would conceivably not have occurred, but is highly likely.

She has already testified as a complainant in another case, in front of a grand jury. She wrote about it. She was repeatedly asked by jurors whether she used drugs, meaning illegal drugs. She answered by discussing the sexual assault of which she had complained. She focused on the central issue. She never answered about her drug use, if any. At a grand jury proceeding, no judge is present as such. Had she answered that way at trial, the judge would have ordered her to answer about drug use and, if she failed to do so, could have judged her as being in contempt of court and subject to imprisonment by the same judge just for that, while her rapists would not have been (at least on that ground). But if she now denied drug use, her previous refusal to answer would have been introduced as proof that she was hiding drug use and the jury would have been allowed to interpret her prior nonanswer as unrebutted evidence of illegal drug use. That would have impeached her testimony on everything she experienced about the rape.

She would have been described as a radical feminist, a term she had publicly used to describe herself, so that if she had denied it on the witness stand (an unlikely event) her testimony would have been impeached. She would have been asked if she was the author of a whole book called “Intercourse”, the title itself inflammatory to most juries. To emphasize the offensiveness to jurors, the defense lawyer could have asked if by “intercourse” she meant social interactions in public, such as brief chats with strangers about the weather. It would have come out that she wrote a book about sexual intercourse. To many jurors, that would sound like a book of pornography, a dirty book not fit for a family home. She would not have been allowed to deny it, even though the denial would have been correct. She would not have been a defendant, only the complaining witness, therefore she would not have been allowed to defend against an accusation or criticism. The defense could bring an expert witness on English literature who would agree with the defense, but probably that would be unnecessary, as the jury would have heard enough just from the lawyer’s reading of the text, and once someone is persuaded lawyers don’t want to risk unpersuading them. If the defense did put an expert on the witness stand, the prosecution would not be likely to have their own expert.

She would have been asked if she wrote that she is against all intercourse. She would have denied it. She would have been truthful. However, at that point, the lawyer would promptly have read a passage, perhaps one paragraph, which has been interpreted or misinterpreted by various people as opposition to all intercourse. She almost certainly would have insisted on being clear about what she wrote; but the judge would have told her to refrain from speaking except to answer the questions, and impeachment is not followed by a question meant to unimpeach.

If she had already called for a right of violence against rapists, including death, and I think she already had, and since she was already skilled in one of the martial arts and had violently defended herself at least twice in the past, once to prevent a suspected attempt at abduction into a van and the other against a group that was apparently preparing to push her over a balcony ledge to a floor below, she would have been asked why she didn’t defend herself against the rape. She would have answered that she was unconscious and couldn’t defend herself, but that would have required the jury to believe that she was unconscious and that a rape occurred during her unconsciousness. Her claim was that her unconsciousness at that time was induced by a drug she did not intend to take. She found that one drink “didn’t taste right” and she “didn’t finish it.” There may not have been a toxicology test. If the defense could have challenged her on unconsciousness having been due to ingestion of a drug, then she could look like a willing participant in sex. Since she was already married, the rape would have looked to a jury like her being a willing participant in extramarital sex and therefore that she was lying to cover it up. That could have led to her being sued by her rapists or to her being punished by a court for having knowingly and intentionally falsely reported about an alleged rape to the police and perjuring herself as a witness.

Alternative to a police report and hospital records immediately after the rape are her statements to other people in the immediate aftermath. Some of those statements were published. Either side can call as witnesses those people, to find out what was said and determine if there is a discrepancy in what the current complainant said then vs. at trial. Among those people are her husband and Gloria Steinem. I’m not certain, but I think putting her husband up as a witness to help the complainant’s credibility would estop her from claiming spousal privilege against his testifying on her reaction that he might have disbelieved her (he later said that he did not disbelieve her but sought other explanations for what was known to have happened to her). The appearance that he may have doubted her could be presented to the jury to undermine her credibility.

For a higher likelihood of conviction, the complainant should come across to the jury as admiring men, especially her husband but generally most men, except for the brute/s who raped her. Man-hating, when generalized, is a problem for most people. Whether she hated men does not matter if the jury’s perception is that she had for years, did on the day of the rape (or sex or neither depending on perspective), and still does at the time of trial. A defense lawyer will bring this out unless a judge doesn’t allow it, but, as it goes to the questions of the complainant’s credibility and doubt about the defendants’ guilt, a judge may let the attorney raise the issue. The attorney may ask her if she wrote a book that was titled Men Possessing Women. Since she’s not permitted to speak except to answer questions and since the prosecutor may not have a chance to ask her anything about it, the jury may not find out that the full or real title is Pornography: Men Possessing Women and, even if the jury does find out, many people object to pornography because they view it as evil women being sexually wanton and tempting married men to leave their wives. To help the jury misunderstand the book in that way, she can be ordered to read to the jury a specific paragraph that is sexually explicit (unless I misremember, there is a paragraph that she wrote to make clear what is in an example of pornography that is objectionable, but the book supplies context she may be forbidden to read to the jury). If, somehow, she fails to read it, the defense attorney can do so, with any pauses and inflections chosen by the defense attorney. That would likely prejudice the jury against her.

She saw a psychiatrist, to help her recover. That’s fine, even for a jury, but the recommendation came from Gloria Steinem. She’s a mainstream feminist, but still a feminist, and a defense lawyer may say so in order to imply that the whole rape claim is sheer exaggeration or fabrication, two feminists’ plot against all men. If Gloria Steinem is not allowed to testify and probably even if she is, she would not be allowed to defend herself against that claim.

If the indictments had been only for rape and not, e.g., for aiding and abetting, defense counsel might have been allowed to demand that no charge less than rape be in the instructions to the jury, thus leaving an all-or-nothing verdict for each defendant, permitting no lesser included offense as a jury compromise. If the jury thinks of compromising by convicting one defendant and not the other, that could be difficult. Unless there’s evidence differentiating the two defendants, and since she was unconscious she probably couldn’t offer differentiating evidence about them, if there’s doubt on one the same doubt should apply to both. If the verdict is split when the evidence does not support it, I don’t know if any court has said that such a split would require acquittals for both. At any rate, inside the jury room the lack of differentiation might be persuasive of jurors to acquit both.

Rape, in some people’s views, is a rare event that is committed principally by strangers in dark alleys grabbing passers-by with no history of nonmarital sex. The public has a harder time treating some other rapes as rapes. Defense attorneys will exploit that difference.

Other defenses common in rape cases could be brought up. Rapists are likely to claim either that the event, however characterized by anyone, did not occur or that, if it did occur, it was consensual and if she was drugged that she consented to the drug and the drug was not mentally so disabling as to void her consent or deny her ability to withdraw her consent had she wished to at any time. The possibility of such defenses is no less in this case, but she never mentioned what drug might have been in her drink, so she likely never knew. Research into drugs of choice among rapists generally is probably not admissible evidence, even from expert witnesses, if there is no evidence of what drug exposure she had at the time.

Attractiveness may be relevant. She had been relatively thin in her early adulthood and, by general medical standards, obese or overweight late in her life, but I don’t know if she was obese or overweight at the time of the rape. Some men claim that rape is unlikely to be against women who are not attractive to men, and that’s likely true to a degre, although a stark claim that a heavy woman would not have been raped is probably contradicted by social science.

The defense need not be exhaustive about available defenses for an acquittal to follow. Prosecutors know this and are less likely to bring the case in the first place. Even prosecutors who bring cases in order to educate the general public which contributes to jury pools and who are willing to lose some of the cases early on in the hope that the public education will eventually help with future jury trials have to take a chance that educating the public will have that effect and, meanwhile, may find judges running out of patience, the judicial impatience possibly compromising other cases the prosecutor might bring on any charges against any defendants, so even a prosecutor seeing a larger principle may not be able to afford to apply it.

If, as a witness testifying, she was weepingly upset, a jury would likely want to protect her and help her; and the strongest way available to the jury for doing so would be to convict the rapists. But she was not principally a woman preserving her feminine vulnerability and thus looking for protection in the arms of men. She was a woman who wanted society to overhaul its tolerance for rape, and, if society was not going to change without her help, she was going to help society. She was doing that by justifying and building on the anger that many women bring in response to being raped. It’s likely that in her testimony her anger would have been evident. But people who observe someone’s anger, even indirectly, especially an anger that challenges their own perceptions or beliefs, tend to be repelled by the anger. If some of those people are jurors on the case, they can’t question her to get an explanation of her display of anger. What they can do is dissociate from her emotion and the main way for them to do so is to decide that the defendants may have been misunderstood (because raped women are upset but not so angry that jurors are alienated and so jurors decide that maybe no one knows what really happened) and acquit them.

Complicated cases can be prosecuted. This is merely a complicated rape case. Juries, if cases are well-presented, will convict even in complicated cases. But complicated cases are expensive. Prosecutors, or if not prosecutors then their supervisors, have to watch budgets. Maybe it’s better to prosecute two ordinary rape cases than one complicated rape case. The prosecutor could be doing twice as much justice. One could argue that a government should prosecute all of them. But that would require opening a lot more courtrooms and prison cells and hiring a lot more judges. There’s a reason that, by one estimate, only about one in thirty cases (not just of rape) go all the way to trial, the rest usually getting settled or bargained or dropped. Taxpayers are not willing to foot the bills for much more justice. The bills would not be small.

As a side point, for the foreign police to take Andrea Dworkin’s complaint would have raised an issue about followup, namely whether a short-term visitor from a far-away nation who has not much other reason to return on an expensive trip would ever appear for court proceedings, especially if they stretch over many days and if there are long adjournments (those being likely in the defense’s interest to secure), because, even if the police believed that the rape happened and did not know who she was, they might have thought she, like many women worldwide, would be too ashamed of having been raped ever to appear again. Police do have a strategy for catching criminals who prey on visitors who may not return for trials, but that involves decoys who look like travelers but actually are locally resident udercover or plain-clothed police officers who therefore are easily available for trials, and decoys may be hardly effectual for a potential rape. If particular individuals are already suspected, catching them on any criminal grounds inducing similar sentences may work, but if they then were targeted for investigation for possible other crimes, that’s expensive and therefore may not be done. The rape of her, like rapes of many others, was facilitated by a drug; whether mere possession of the drug could be the basis of criminal cases enough to make a dent in rape is something to explore. But these are issues separate from how juries work.

The system we have, at least in the U.S., is weak where victims don’t fit popular stereotypes of victims. Typically, that means being upset and afraid due to loss of control, meaning that self-control, anger, and agency in personally redressing a rape are perceived by jurors as contradictory to victimhood. Without victimhood, in the popular mind there must not have been a crime. In a case of rape, the lack of victimhood may be enough to support the doubt that precludes a conviction. It is why divorce lawyers representing women often seek to present their clients as entirely supportive of the institution of marriage, perhaps still wearing their wedding rings, and who blame only the one husband for his failures, not all possible husbands. It may be why Valerie Solanas, a female who turned herself in to a police officer, was charged with much less and got a sentence much lighter than an attempted murder or assassination would seem to warrant; her target, Andy Warhol, was someone whom a jury would likely find incredibly weird (through his public social association with the avant-garde cultural milieu) and too pro-pornography (from a movie he made) to gain much sympathy for his plight inflicted by a woman he had already known and, at least arguably, had mistreated.

Only a rare woman ever plans to be raped such that she organizes her life to make a prosecution successful. She plans not to be raped. She plans on a rapist being caught and punished. But she does not consider the finer pounts of how a prosecution will proceed in some future year, that being what police and prosecutors do. For Andrea Dworkin, planning for those finer points would have meant not going on the record with her views of relationships between the genders, meaning not doing her core work. She would not have published her books and no one would have read them. The same would be true of most women. A singer whose success as a performer requires looking attractive and who then is raped is unlikely to have planned for a prosecution in which her on-stage attractiveness is presented to try to exonerate the defendant, and therefore not become a singer on a stage. A feminist, being inherently a critic of men’s role in society, especially if she’s publicly known for those views, will generally fare worse in front of a jury, to the defendant’s benefit. The jury system is weak.

It’s also weak where women are so ashamed that they never tell anyone and blame themselves for something they could not control. If, perhaps, years later, a woman reveals the rape for the first time and wants a case brought, the failure contemporaneously to have told anyone will be held against her and the rapist will be exonerated as not having raped her. She may then be penalized.

We need to consider whether the jury system as practiced at least in the U.S. is adequate to convict when the survivors don’t present enough with which juries sympathize. Sympathy may not a sufficient proxy for facts establishing criminality, even where circumstantiality is, in principle, sufficient and necessary for justice. The jury system needs reform. And maybe such cases should be judged by a judge at the complainant’s option.