Author and contributing writer at The New York Times Jennifer Percy on what the Cornell case reveals about how we misunderstand survivors’ responses to sexual assault, and what it would take to deliver justice that meets their needs.
When news broke about the Cornell 7 case, author Jennifer Percy looked first at the text messages between Jane Doe and one of the men she accused of raping her.
“I just wanted to apologize for how things went down the other night,” he wrote.
“At the end of the day non [sic] of the sexual stuff was illegal and honestly I really liked being with u,” Doe replied.
Some commentators have pointed to these messages as evidence that the encounter was consensual. Percy’s research offers another explanation: Survivors do not always immediately recognize what happened to them as assault, and their responses can confound public expectations of how a victim should behave.
“We have this idea that victims respond in a very certain way, and it just so happens that the way we expect them to respond is the opposite of reality in many ways,” Percy says. “Actually coming to understand and recognize yourself as a victim is a process for many people; it doesn’t necessarily happen right away.”
In her latest book, Girls Play Dead: Acts of Self-Preservation, Percy combines scientific and legal scholarship with survivors’ accounts to examine how people respond to sexual assault—and how institutions and the public misinterpret those responses.
Her work raises a question that reaches far beyond Cornell: How can survivors find justice when the people responsible for delivering it misunderstand the ways they survive?
Percy’s book describes a number of ways survivors can respond, both during an assault and afterward. These include phenomena like “tonic immobility,” when—similar to animals playing dead to ward off their predator—survivors freeze or even become paralyzed upon being assaulted.
Survivors also frequently “friend” (as opposed to fight or flight) their attackers in an effort to placate them. “I made him chicken soup [after],” one woman recounted to Percy.
While research shows that the body responds to sexual assault in these varying ways—often without kicking or screaming “no!”—institutions and the public continue to deny women the understanding they so readily afford survivors of other crimes.
Why is it that we can understand why a hostage victim may try to befriend their kidnapper in an effort to survive, or someone being robbed would give up all of their belongings, yet, when it comes to rape, we question what the victim could have done to stop it?
As illustrated by Percy’s research, this ingrained skepticism of survivors is deeply coded into the very laws meant to protect them.
“Historically, since the 1600s, rape was originally an issue of property,” Percy says. “It was not about bodily autonomy. It was to make sure a father had his daughter’s chastity and a husband [had his] wife’s fidelity. That’s all that mattered. The woman didn’t matter.”
Indeed, according to Percy, not until the 1970s did rape laws consider the rape itself and its impact on the victim, expanding the kinds of incidents that could be considered rape and emphasizing the element of consent with phrases like “no means no.”
“But of course,” Percy says, “if most women freeze, which we know they do, you might not get to ‘no.’ Rape laws are still not understanding basics of victim behavior in any way.”
Beyond not understanding, Percy also insists that these laws (and the men in charge of them) actively make it “as hard as possible for women to get justice.”
Doe’s case is full of legal injustices, one of the most glaring being New York’s “voluntary intoxication loophole,” which makes it difficult to claim inability to consent unless you’re “totally comatose,” as attorney Ann Olivarius wrote for TIME magazine. Stipulations like this lead to the awful rationale that Doe could have prevented her own rape by simply “not drinking,” when really, rape—an act of brutal violence—can and should never be seen as warranted.
The impact of this loophole is also amplified by another legal injustice towards survivors: the inconsistencies in rape laws across states. Instead of streamlining the pathways to justice for survivors, lawmakers leave their fate up to the arbitrary place where the crime was committed, displaying a clear carelessness towards survivors.
“Are you lucky enough to be a victim in one place or another that can change an outcome?” Percy says. “That’s terrifying.”
We can never know whether Doe will ever receive justice or the healing she needs after such a traumatic event. But based on the way our institutions are positioned to approach rape, Percy questions whether the true solutions are even available.
“Many women have said that going to court is more traumatizing than the rape itself, which I think is very revealing about how our justice system handles sexual assault cases,” Percy says.
She also questions to what extent survivors even want to see their attackers go to prison; many are people in their personal lives, like family or friends.
“If a victim does want to go to court, they should be allowed to. [But] I think we need to develop other avenues for justice, storytelling and healing, which might look different for every individual—but there should be other resources.”
Oftentimes, during a rape case, the public protests the attacker’s “life being ruined” by a decision they made—an absurd stance to take, considering that amongst some of our country’s major cities, less than 4 percent of reported rapes, sexual assaults and child abuse allegations end in conviction.
Survivors are forced to choose between two extremes: sending their offender to jail (which practically guarantees retraumatization and public scrutiny) or remaining silent.
“Sometimes victims want to have the legal action, but … a lot of people don’t want their abuser to be in jail for life,” Percy says. “They want some form of legal justice. That doesn’t mean they want like a 17-year-old to be locked up for life. No one wants to see that. That’s hard also for the victim to deal with. So, why is that the option? It’s so extreme.”
At its core, the approach to rape must be “more individualized,” says Percy. “There should be conversations with victims about what they understand as justice as opposed to someone higher up, especially white men deciding what victims want.” Yet delivering justice that meets survivors’ individual needs requires a genuine effort to understand how sexual assault affects them. That work becomes harder in a country that enables—and even rewards—men who abuse women’s bodies.
Percy, like many of us, has felt both horrified by the Cornell 7 case but not entirely surprised. It’s difficult to see a case like this as an anomaly in a country whose president boasts the sexual abuse of women.
“Society has been built in [and] structured in a way that’s signaling to these young men that they have permission to do whatever they want to women’s bodies,” Percy says.
While it’s critical to understand and provide survivors with proper healing and justice, true progress would be to ensure that men don’t continue to do to so many women what was done to Doe.
“There’s going to be people with bad intentions. That’s not really the point,” Perry insists. “The point is more to create a side that doesn’t give signals to young men that this is okay. It’s a proper education for them, and setting up a justice system that gives victims what they need and to want to experience: healing and justice. These two things need to work together.”
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