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Souter needs more scrutiny

From the accounts I've been reading of the David Souter hearings thus far, I'm almost tempted to like the guy. Almost . . . and probably would, if I did not have an unanswered question concerning Souter that's been haunting me for some time now.

Of course, I'm concerned with privacy rights and was relieved to hear that Souter believes that the Constitution implicitly maintains a right to privacy and that he supports Griswald vs. Connecticut -- the decision that privatizes decisions between couples concerning birth control. Yet he refuses to take it a step further and address the issue of a woman's right over her own body. This means we're left to guess what Souter's stance is concerning Roe vs. Wade and the constitutionality of legalized abortion. Although I'd rather know for certain where Souter stands on this question of a woman's right to choose, I'm willing to wait for this. I feel it's much more urgent that Souter share his opinion on another fundamental right of women: that is, a woman's right to refuse intercourse.

In an Aug. 17 article entitled "Rape: She Asked for It," The Village Voice revealed that in 1988 Souter overturned a rape conviction because the woman's " `openly sexually provocative behavior' at a bar with several men indicated her `probable' willingness to have sex later with one of them." In New Hampshire, where the alleged rape occurred, there's a rape shield law which prevents testimony during a rape trial about the victim's prior sexual conduct with others. Thus, in the original trial of State vs. Colbath, the judge prohibited the defense from putting on the stand any witnesses who would describe the woman's sexual behavior with men other than Richard Colbath.

Judge Souter disagreed with this original decision. He overturned the case, calling the excluded information "crucial." He wrote, according to The Voice, that "[h]er `public displays' of provocative behavior so close to the alleged rape `could have been viewed as indicating the complainant's likely attitude at the time of the sexual activity in question. It would, in fact, understate the importance of such evidence in this case to speak of it merely as relevant.' The woman could have claimed rape `as a way to explain her injuries and excuse her undignified predicament.' "

Perhaps the most alarming part of Souter's decision is that his account of the defendant's so-called "undignified predicament" is based entirely on the account of the defendant. He nowhere mentions the complainant's plausible testimony of how the rape occurred. Which is, that she'd gone home with Colbath to talk, that once in his trailer he'd raped her, and then, Colbath's girlfriend returned home while the woman was dressing and a "confrontation" occurred.

A doctor's testimony said the victim's injuries were consistent with her story of rape. Yet Souter, in his decision, describes only one possible scenario in which no rape occurs. That the woman went to Colbath's trailer and that the two engaged in intercourse is fact. Here's how Souter explains the rest, according to The Voice: Colbath's girlfriend, suspicions aroused, returned home, kicked open the door of the trailer in a fury, and violently assaulted the woman which accounted for her injuries. It took Colbath and a third woman -- a friend of his girlfriend -- to pull the two women apart.

This scenario of the girlfriend assaulting the victim seems highly implausible, especially when one considers that the girlfriend is scarcely five feet tall, while the victim is five feet, seven inches, and Colbath -- who supposedly needed help pulling the two women apart -- is a hefty five feet, 10 inches.


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The jury for the retrial agreed with the first and found Colbath guilty. This is comforting. However, the man who found this rape victim guilty of "asking for it" has been appointed to the Supreme Court. This is anything but comforting.

I've heard a lot of people discussing the Souter nomination on campus this past week. Yet most of those I've spoken with seem unaware of this rape decision. The behavior in which the woman engaged prior to the rape -- which Souter found to be an irrevocable request for intercourse -- included the victim's flirting with several men in the bar and sitting on a man's lap (whom she said was an old friend), before leaving the bar with Colbath. If this sort of behavior legally mandates asking for rape, then this could have extreme ramifications right here at MIT.

I think it's urgent that women become aware of exactly what Souter's stance is on a woman's right to refuse sex. And I wish someone would hurry up and ask him about this. But in the meantime I've compiled a list of other questions I'd like to ask Souter, just to clear things up for women here at MIT:

First off, what exactly constitutes flirting? If I bat my eyelashes at a guy is that flirting? If some guy sees me batting my eyelashes at several guys, can he say he's seen me flirting with many men? Also, who's lap am I allowed to sit on? I assume I would be safe sitting on a family member's lap, say a father or older brother. But what if the future defendant doesn't know that the person who's lap I'm sitting on is a family member's? Can he then say he thought I was asking to be raped because he saw me sitting on the lap of several men and "flirting" with several others.

With this sort of narrow interpretation of Souter's decision, a woman would only be safe if she no longer were seen in coed crowds. But let's take a more broad interpretation of the decision. I've seen a lot of flirting at MIT parties, and it's not uncommon for a girl to sit on a guys lap even if there is no romantic interest between the two of them. Surely, there's other so-called suggestive behavior that goes on. Perhaps, as Souter says, some of the girls at these parties are asking for it. So, maybe what we need to do is to get Souter up here to an MIT party to point out who is and who is not requesting to be raped. For surely we women of MIT would not want to be forcing someone to commit the illegal act of rape, as Souter seems to feel a woman forced Colbath.

Is Souter really the sort of judge women want in the Supreme Court for the 1990s and the decades that follow?


Joanna Stone, a junior in the Department of Urban Studies and Planning, is an associate news editor of The Tech.