The Playboy Defense

Rape isn't as simple as good boy vs. bad guy.

by Amy Jersild

As a social worker specializing in the treatment of sexual trauma among college students, I am always encouraged when the issue of sexual violence makes it onto the public radar. However, the trial of Jeffrey Marsalis and his recent acquittal of rape reveals a host of social assumptions about who can perpetrate the crime, and who can be its victim.

The media attention surrounding Marsalis' case is unfortunate because it perpetuates the myth that accused rapists are usually monsters, sociopaths or serial criminals. Defense counsel Kevin Hexstall's strategy of portraying Marsalis as "a playboy, not a rapist" further reinforces this idea: Apparently men who are simply out to have a good time can't possibly rape.

This attitude is problematic because it allows people to distance themselves from considering the complexities of the crime. If only sociopaths commit rape, why would anyone else bother to ponder qualities or habits they possess (youthful exuberance, frequent inebriation or a history of not recognizing others' wishes, for instance) that might make it difficult for them to respect the sexual boundaries of others?

The fact is, however, that most rapes are not committed by a stranger dwelling in an alley; they are committed by perpetrators who often know the victims they violate. These acquaintance rapes are virtually never planned; rather, they are the result of poor judgment made poorer by substance use. This sounds more like a college freshman than a career criminal.

The federal government estimates that 3 percent of college women will experience a completed or attempted rape each year; on a campus of 35,000 such as Temple, that adds up to 1,050 incidents. Nonetheless, it is extremely difficult to get men to attend rape-prevention programs. Most male coeds are not interested in hurting or violating anyone, and therefore feel absolved of assessing the strengths and deficits they bring to the negotiation of sexual relationships.

Their avoidance of rape-prevention programs is therefore understandable. Unfortunately they miss a crucial opportunity to engage in thoughtful discussions about how they, too, may be capable of (and can take steps to avoid) violating someone else's boundaries in a moment complicated by hormones, immaturity and alcohol.

In addition to the simplified way that rape was portrayed in the Marsalis trial, its outcome (no rapes; only two sexual assaults occurred) perpetuates the sense that the presence of alcohol is an adequate legal defense for the charge of rape. The public needs to be careful about accepting the implications of this: namely, that if one does not use force, one cannot rape; and that if one consents to drinking, one consents to sexual intercourse.

The Marsalis jury's request of the judge to clarify whether a person who is legally intoxicated can give consent to sex is astonishing given that this is covered in the Pennsylvania legal code defining rape: "A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant ... who is unconscious or where the person knows the complainant is unaware that the sexual intercourse is occurring." This piece of the definition says nothing about intent: One does not need to willfully drug a victim to rape them. One need merely have sex with a partner who they know to be too impaired to judge the situation for themselves.

We as a society need to be more responsible about not reducing the issue of rape to bad men versus good boys, loose women versus good girls. When young men are conditioned to assume rape is only a crime of cold intent, they remain unprepared to confront and manage their own impulses, which can be dangerously amplified by recreational alcohol use. When young women are conditioned to be on guard for a brazen criminal, they are more likely to abdicate responsibility for their own safety around the boy next door.

Amy Jersild, L.C.S.W., is assistant coordinator at Temple University's Sexual Assault Counseling and Education program.