by Anna Katherine Sherman

The Alabama Code Title 13A. Criminal Code § 13A-6-60 defines “forcible compulsion” with regards to rape and sexual assault cases as “physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” The problem with this definition is the phrase ‘earnest resistance’ that must be involved in order for it to be considered a sexual assault. This phrase has historically been used in our state (and, yes, the city of Tuscaloosa) to neglect victims of this crime and dismiss these cases. While most states in America have eradicated the need for physical resistance of a victim, Alabama is now the only state that has maintained this wording.

Expecting all victims to be able to fight back in this situation is unrealistic given the traumatic nature of the crime. In fact, there is a condition known as “tonic immobility” that is present in the majority (70%) of sexual assault victims, according to a study done by the Department of Clinical Science and Education at the Karolinska Institute in Stockholm, Sweden. Tonic immobility is defined as “a temporary state of motor inhibition believed to be a response to situations involving extreme fear.” Thus, studies like these indicate that victims of sexual assault do freeze up in these circumstances involuntarily because of how terrifying the experience is.

A novel case in reference to defining consent was State in the Interest of M.T.S.. In this case, the New Jersey Supreme Court found the defendant guilty even though the victim consented to kissing and did not use physical force to stop the defendant from engaging in intercourse. This means that the Court found the defendant guilty simply because the victim did not explicitly consent to penetration, which was a novel decision at the time, but is now often regarded as the accepted standard.

This precedent, however, does not apply in Alabama. In fact, Alabama’s laws do not require consent to be “freely given” or “affirmative.” Freely given consent means that the person was not convinced, manipulated, or tricked into agreement. Affirmative consent means that This means that if the same case had been presented in an Alabama court, the defendant probably would not have been found guilty because of the laws regarding sexual assault in this state.

The most apparent problem with this requirement is the victim-blaming it perpetuates. Placing the burden on the victim to establish that they earnestly resisted their attackers ignores the fact that the responsibility of this situation must be on the perpetrators of these crimes. Rather than focusing on the lack of action taken by victims of a crime, the legal system must focus on the actions of the defendant. In addition, our responsibility as a society should be to protect sexual assault survivors rather than questioning their legitimacy.

Moving forward, it is vital for the safety, security, and support of the residents of Alabama that our lawmakers re-analyze our public policies on the matter. The protection of sexual assault victims should be the first priority in these laws rather than the limitation of their ability to pursue justice. Moving forward, I think it is the duty of our state’s legislature to take responsibility for the well-being of Alabama citizens.

Recently, however, the community of Tuscaloosa has made significant developments to help sexual assault survivors. With the new implementation of the SAFE Center, anyone in the Tuscaloosa community who has experienced sexual assault may go to the center to get medical assistance from SANE-certified nurses who are specially trained on how to treat victims and handle forensic evidence in sexual assault cases. In addition, the University of Alabama’s Women and Gender Resource Center have an on-call advocate for students that provides students with emotional support and assistance through the legal process if they wish to take that route. Both of these services are available 24/7.

While I am proud of the recent progress that our community has made, we still have a long journey ahead. According to the National Sexual Violence Resource Center, 1 in 5 women will be raped at some point in their life, and 27% of female college students “have experienced some form of unwanted sexual contact.” What is even more staggering, however, is the fact that less than 10% of sexual assault victims on college campuses actually report it. In my opinion, this is no doubt due to the stigma that laws like this attribute to the victims of the crime. Often times, this process can be more traumatic for them than beneficial, which indicates that something is wrong with the way that the justice system is handling these cases.

Sexual assault on college campuses is rampant, and I believe that the first step in solving this problem is with the laws that are enforced in our state. I think that our legislators must recognize their responsibility to their constituents and amend the earnest resistance requirement for sexual assault cases. Until then, too many perpetrators will continue to get away with these crimes and victims will not get the justice they deserve.

​If you have been a victim of sexual assault, you can call 205-860-SAFE (7233) to get in touch with the Tuscaloosa SAFE Center or 800.656.HOPE (4673) to speak with the National Sexual Assault Telephone Hotline.