Susan Estrich: Swimming in underwear is not blameable

Summary: This is not what should happen. Of course parents should be more responsible. But there is no excuse for raping an unconscious girl ... And, no, not everyone or everything has changed.

Susan Estrich
Susan Estrich commentary
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The most unusual thing about the decision of a Quincy, Illinois, judge to throw out the conviction of an 18-year-old man who raped an unconscious 16-year-old girl is that it made its way to The New York Times. Otherwise, it would be easy to conclude that nothing has changed.
The case involved a graduation party where teenagers were drinking and swimming in their underwear. It was the latter that seemed to particularly trouble the judge and at least partially excuse the conduct of the man involved. The girl, as it turns out, had decided earlier in the evening to swim. She did not decide to have sex. According to the testimony, she told the defendant specifically that she did not want to have sex.
Then she had too much to drink and passed out.
Then the boy had sex with her anyway. She woke with a pillow over her face and him on top of her.
The judge, after a bench trial, convicted him of sexual assault.
The minimum punishment was four years in prison.
The man served five months. The judge decided that was "plenty of punishment" and threw out his own conviction.
The girl, who was in the courtroom when the judge announced his decision, was devastated. She must now recover, as so many of us used to have to do, from two victimizations: one at the hands of the man, the other at the hands of the system.
The boy gets to get on with his life, the slate wiped clean.
I'm not a fan of mandatory minimum sentences, not because I'm soft on crime, but because they effectively move all the discretion from the judge, whose decisions are the most transparent, to the prosecutor and police, who decide what to charge. Clearly, this judge wasn't either, and the mandatory minimum scheme may well have left him no other way to reduce the sentence.
But this was not a petty offense. This was rape. What is so shocking to the conscience about a four-year sentence for rape?
I'm sorry to say this, but painful experience tells me that it will take the young woman involved far longer than four years to survive this experience, even longer because of her victimization at the hands of the system.
"He made me seem like I fought for nothing and that I put my word out there for no reason," the girl told a local television station. "I immediately had to leave the courtroom and go to the bathroom. I was crying."
I don't blame her.
It is more than 40 years that I have been doing this work, and I could not begin to count how many times I have heard, and retold, this same story.
But lest we forget. Some things have changed. There was a time when no state's attorney would have prosecuted this case. A drunk girl in her underwear, passed out at a graduation party? There was a time when it would have been entirely her fault.
His name is in the paper. Hers isn't. I suppose it will be online somewhere; I don't want to look. But there was a time when her name would be in The New York Times, at least if she were two years older, the way the name of the woman who accused the Kennedy nephew of rape was in The New York Times.
There was also a time when the big story would be that the man got convicted in the first place, not that the judge ultimately threw the conviction out because the law did not allow him to reduce the sentence.
But change has only gone so far.
This is what happens, the judge said, "when we have people, adults, having parties for teenagers, and they allow coeds and female people to swim in their underwear in their swimming pool ... And, no, underwear is not the same as swimming suits."
This is not what should happen. Of course parents should be more responsible. But there is no excuse for raping an unconscious girl ... And, no, not everyone or everything has changed.
Susan Estrich can be reached at

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Opinion by Susan Estrich
Susan Estrich is an American lawyer, professor, author, political operative, and political commentator. She can be reached via
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