DePaul Journal of Women, Gender

and the Law

Volume 8 Article 2
Issue 1 The Final Issue

9-9-2019

Tonic Immobility: The Fear-Freeze Response as a Forgotten

Factor in Sexual Assault Laws
Moriah Schiewe

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Part of the Criminal Law Commons, Law and Gender Commons, and the Sexuality and the Law
Commons

Recommended Citation
Moriah Schiewe, Tonic Immobility: The Fear-Freeze Response as a Forgotten Factor in Sexual Assault
Laws, 8 DePaul J. Women, Gender & L. (2019)
Available at: https://via.library.depaul.edu/jwgl/vol8/iss1/2

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 TONIC IMMOBILITY: THE FEAR-FREEZE RESPONSE AS A FORGOTTEN
FACTOR IN SEXUAL ASSAULT LAWS

Moriah Schiewe*

Introduction

It is 2019 and sexual assault is an epidemic. Social media, red carpet events, newspapers,

magazines, and talk shows are all abuzz with stories of “the silence breakers” sharing their

harrowing accounts of sexual harassment, exploitation, and violence.1 However, in the

courtroom, the conversation remains unchanged. Ninety-nine percent of perpetrators of sexual

violence will walk free.2 Judges perpetuate gender stereotypes and unrealistic expectations of

resistance by survivors of sexual assault. Reasoning in sexual assault cases centers around the

presumed consent of silenced victims, which mirrors the predatory chants heard on Yale

University’s campus in 2011, that, when it comes to consent, “No means yes”.3

Originally, state laws defined rape as “the carnal knowledge of a woman when achieved

by force by a man other than her husband.”4 Under the legal principle of coverture, a wife lived

in submission to her husband’s authority, so, a wife had no legal right to withhold sex from her

1 Stephanie Zacharek, et. al., Time Person of the Year 2017: The Silence Breakers, Time Magazine (December 18,
2017). http://time.com/time-person-of-the-year-2017-silence-breakers/
* DePaul University College of Law, J.D. candidate 2019; University of Idaho, B.A. 2015. I dedicate this Note to
the numerous sexual assault victims, heard and unheard, who have suffered in silence due to tonic immobility. I am
one of you.
2 Alanna Vagianos, 30 Alarming Statistics That Show The Reality Of Sexual Violence In America, Huffington Post

(April 5, 2017). https://www.huffingtonpost.com/entry/sexual-assault-statistics_us_58e24c14e4b0c777f788d24f

3 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”

REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. CRIM. L. & CRIMINOLOGY
1081 (Fall 2011).
4 Alanna Vagianos, 30 Alarming Statistics That Show The Reality Of Sexual Violence In America , Huffington Post

(April 5, 2017). https://www.huffingtonpost.com/entry/sexual-assault-statistics_us_58e24c14e4b0c777f788d24f

1
husband and marital rape was perfectly legal.5 Likewise, slaves had no right to refuse their

masters’ sexual advances nor could they testify against their masters in court.6

In order to secure a rape conviction under common law, there had to be proof that the

defendant used force or threat of force.7 Force is typically defined in terms of the victim’s

resistance.8 Today, many states continue to require evidence of force in rape cases.9 Other states

follow a non-consent standard that, on its face, does not require evidence of force in situations

where the prosecutor can prove the victim did not give consent to the defendant. 10 However,

some non-consent states continue to require proof of forcible compulsion in sexual assault cases

that do not involve actual penetration, such as the molestation of a victim.11

Perhaps even more shocking are the non-consent states that appear to support convictions

where the defendant lacked affirmative consent of the victim, but in reality still require the

prosecution to prove “lack of consent” through either the use of force or lack of capacity. 12 Even

Illinois, which is one of only a few states that “supposedly” utilizes an affirmative consent

standard, continues to require the prosecution to prove lack of affirmative consent through

evidence of force.13 Alternatively, New Jersey is the only state that applies an affirmative

consent standard that not only requires consent to be both affirmative and freely given, but also

allows penetration alone to satisfy the required proof of force in rape cases.14

5 Estelle B. Freedman, Women’s long battle to define rape, THE WASHINGTON POST (August 24, 2012).
https://www.washingtonpost.com/opinions/womens-long-battle-to-define-rape/2012/08/24/aa960280-ed34-11e1-
a80b-9f898562d010_story.html?utm_term=.7464f22ec4d6
6 Id.
7 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”

REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. CRIM. L. & CRIMINOLOGY
1081 (Fall 2011).
8 Id.
9 Id. at 1083
10 Id. at 1084
11 Id.
12 Id. at 1085
13 Id.
14 State of New Jersey in the Interest of M.T.S., 129 N.J. 422 (Sup. Crt. N.J. 1992).

2
 Additionally, the prosecution, more often than not, has to prove that a victim resisted the

defendant during an attack.15 Some states explicitly require proof that the victim resisted as an

element of the crime, whereas other states use resistance of the victim to define force and non-

consent.16 Across all states, proving resistance of the victim is often a hurdle the prosecution

must overcome to secure a conviction in sexual assault cases.

Given the requirement to prove resistance, courts often digress into an analysis of

whether or not the victim made any effort to resist the defendant and, if so, whether or not that

resistance was enough to put the defendant on notice of the victim’s refusal to consent. 17 In

reality, the requirement of resistance is difficult to satisfy. For example, in State v. Alston, the

Supreme Court of North Carolina overturned a second -degree rape conviction because the Court

found that, even though the defendant engaged in intercourse against the victim’s will, the

prosecution lacked sufficient evidence of physical resistance by the victim. 18 Similarly, in

Commonwealth v. Berkowitz, the Supreme Court of Pennsylvania overturned a conviction of

forcible rape. Despite the victim’s verbal resistance of repeatedly saying “no” there was enough

evidence to prove forcible compulsion.19 The Court noted lack of consent is not equal to forcible

compulsion, because forcible compulsion requires proof that the defendant’s use or threat of

force was severe enough to prevent resistance by a reasonable person.20

The requirements to prove force and resistance in sexual assault cases has sparked much

debate in the legal community. Most of this debate is founded on the assumption that victims,

15 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”
REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L. & Criminology
1081, 1101 (Fall 2011).
16 Id. at 1102
17 See State v. Alston, 310 N.C. 399 (Sup. Crt. N.C. 1984), See also Com. v. Berkowitz, 537 Pa. 143 (Sup. Crt. Penn.

1994).
18 State v. Alston, 310 N.C. 399 (Sup. Crt. N.C. 1984).
19 Com. v. Berkowitz, 537 Pa. 143 (Sup. Crt. Penn. 1994).
20 Id.

3
when faced with the risk of harm, are able to actively respond through either fight or flight to

perpetrator’s actions. However, one piece of the puzzle that has been left out of the discussion is

tonic immobility.

Tonic immobility (“TI”) is a natural freezing response to trauma found in animals and

humans.21 There are three possible responses to trauma: fight, flight, or tonic immobility.22 When

they believe that they are able to overcome their aggressor then they will stay and fight the

aggressor.23 When a victim believes that they are capable of escaping a dangerous situation they

will often respond to an aggressor’s threat with flight. 24 However, when a victim finds

themselves in a dangerous situation in which they can neither escape nor overcome tonic

immobility is triggered.

Tonic immobility is characterized by physical immobility, muscular rigidity, and lack of

response to stimulation.25 This response renders the victim incapable of responding to their

aggressor. While the victim may physically freeze, tonic immobility does not affect the mental

awareness or cognition of the victim. Thus, “although unable to resist or flee” victims

oftentimes “are actively processing features of the event and the environment”. 26 Researchers

discovered tonic immobility is a product of evolutionary adaption that provides prey with a

plethora of benefits, such as avoidance of attacks, lower kill rates, and decreased blood loss.27

In scientific and medical communities, tonic immobility is widely associated with sexual

assault victims. This is what was originally described as “rape-induced paralysis”.28 The

21 Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault
Survivor, Clinical Psychology: Science and Practice 74-90 (February 16, 2008).
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id.

4
scientific community widely accepts the fact that many victims of sexual assault experience

some variation of tonic immobility that renders the victim incapable of moving, escaping,

fighting back, or calling out during instances of sexual assault. 29 Victims who respond to trauma

with tonic immobility are oftentimes repeat victims of sexual abuse and are at a higher risk of

developing post-traumatic stress disorders.30

Despite the overwhelming scientific research and studies linking sexual assault to

experiences of tonic immobility, states continue to require proof of victim resistance to

demonstrate the elements of force and non-consent in sexual assault cases. State laws and the

judges who interpret and apply those laws continue to hold prosecutors to a high standard of

proof based on the faulty assumption that victims are capable of actively responding to threats of

sexual assault. Research supports that tonic immobility in victims essentially renders the

prosecution incapable of proving resistance, force, and non-consent in cases of sexual assault.

Given the current research that supports the natural response of tonic immobility in victims of

sexual assault, states must reform their current sexual assault laws by incorporating TI into their

existing incapacity-to-resist-or-consent provisions, integrating a resistance exemption for cases

involving TI, and adopting a per se non-consenting provision for victims who are able to

establish an occurrence of TI in their case.

29 Id., See also Sunda Friedman TeBockhorst et. al., Tonic immobility among survivors of sexual assault,
Psychological Trauma: Theory, Research, Practice, and Policy, Vol 7(2), 171 -178 (March 2015), A.W. Coxell and
M.B. King, Adult male rape and sexual assault: prevalence, re-victimisation and tonic immobility response, Sexual
& Relationship Therapy, 372-379 (November 2010), Arturo Bados, et. al., Traumatic Events and Tonic Immobility,
The Spanish Journal of Psychology, Vol. 11, 516-521 (2008).
30 Sunda Friedman TeBockhorst et. al., Tonic immobility among survivors of sexual assault, Psychological Trauma:

Theory, Research, Practice, and Policy, Vol 7(2), 171-178 (March 2015), See also Brian R. Van Buren and Mariann
R. Weierich, Peritraumatic Tonic Immobility and Trauma -Related Symptoms in Adult Survivors of Childhood Sexual
Abuse: The Role of Posttrauma Cognitions, Journal of Child Sexual Abuse (November-December 2015).

5
 Thesis

Tonic immobility (TI) is an evolved predator defense that causes a victim to freeze when

they are faced with a real the threat of danger. Despite evidence that nearly half of all sexual

assault victims experience TI, it has been largely ignored by the legal community. Although most

states require proof of a victim’s active resistance to establish the essential elements of force and

non-consent in sexual assault cases, states should reform existing sexual assault laws by (1)

incorporating tonic immobility into their already existing incapacity to resist or consent

provisions, (2) integrating a resistance exemption, and (3) adopting a per se non-consenting

provision for victims who are able to establish an occurrence of TI in their case. These reforms

should be enacted for several reasons, first resistance requirements are rooted in faulty, archaic

notions about women as victims. Second, resistance is an impossible standard to meet in cases

where the victim experienced tonic immobility, since recent medical and scientific research

indicates that tonic immobility renders almost half of all victims of sexual assault incapable of

responding to or resisting their attacker. Next, the continual adherence to resistance as proof of

assault perpetuates a cycle of victim blaming, repeated victimization, and domination within the

legal system. Finally, tonic immobility, by its very nature, is a biological corroborator of a

victim’s non-consent to their attacker’s sexual advances.

6
 Evolution of Sexual Assault Laws

Throughout history, women have been subjected to unwanted sexual advances in the

workplace, home, and on the streets. Along with the history of victimization comes a history of

victim blaming. Women are often blamed for unwanted sexual advances and are left with little to

no legal recourse. For example, slaves and household servants were historically consid ered

responsible for their own suffering of sexual harassment and assault because they were seen by

society as inherently promiscuous.31

At common law, rape was considered the “carnal knowledge of a woman forcibly and

against her will”.32 Originally, laws against sexual assault were created for the purpose of

protecting the rights of men, not women.33 At common law, women were unable to pursue legal

recourse against their attacker in the form of a civil suit because sexual assault only gave rise to a

tortious action for damages based on an injury to a man’s property interest in the woman who

was assaulted.34 For example, a father could make a claim against his daughter’s attacker or a

husband against his wife’s attacker, but the actual victim was not entitled to damages.35

Nevertheless, women were required to satisfy an exceptionally high standard of proof in

order to secure a rape conviction against their attacker. 36 The victim was required to prove three

elements: the sex was nonconsensual, the sex was coerced by force and against her will, and that

she exercised her “utmost resistance” but was overpowered by the attacker’s physical force. 37

31 See Catharine A. MacKinnon and Reva B. Siegel, Directions in Sexual Harassment Law: A Short History of
Sexual Harassment, Yale Press 3 (2003).
32 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”

REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L. & Criminology 1081
(Fall 2011).
33 See Catharine A. MacKinnon and Reva B. Siegel, Directions in Sexual Harassment Law: A Short History of

Sexual Harassment, Yale Press 5 (2003).

34 Id.
35 Id.
36 Id. at 5.
37 Id. at 4.

7
The standard of “utmost resistance” required more than physical force on behalf of the victim.38

The stringency of this standard is well documented in New York’s 1874 decision, People v.

Dohring. In Dohring, the court denied a rape charge where a man forcibly assaulted his 14-year-

old maid after locking her in his barn.39 In deciding that the young girl’s resistance was not

enough to satisfy a finding of rape, the court reasoned:

Can the mind conceive of a woman, in the possession of her faculties and
powers, revoltingly unwilling that this deed should be done upon her, who
would not resist so hard and so long as she was able? And if a woman,
aware that it will be done unless she does resist, does not resist to the
extent of her ability on the occasion, must it not be that she is not entirely
reluctant? If consent, though not express, enters into her conduct, there is
no rape.40

Dohring is a perfect example of the long-standing interplay between the concept of rape,

resistance, and consent. The presumption was women secretly desired the unwanted advances

that men perpetrated against them. Thus, the only way to overcome this presumption was to

show the woman exercised her utmost resistance against her perpetrator. However, utmost

resistance was loosely defined as a victim striking, biting, kicking, and screaming at her

attacker.41 Seventeenth Century treatise stated utmost resistance required “some marks of

violence upon the person of the alleged ravished women.” Further the treatises noted the victim’s

“statement is greatly strengthened if the marks are found to have been present and seen by others

immediately after the commission of the offense.” 42 These types of archaic standards placed a

heavy burden of proof upon victims of sexual assault and perpetuated sexist stereotypes about

promiscuous women who “cry rape.”

38 Id.
39 People v. Dohring, 14 N.Y. 374 (1847).
40 Id. at 384.
41 Ira M. Moore, A Practical Treatise on Criminal Law and Procedure in Criminal Cases Before Justices of the

Peace and in Courts of Record in the State of Illinois 299-301 (1876).

42 Id.

8
 Current Sexual Assault Laws

Force States

The majority of states require rape victims to prove the existence of three factors to

secure a rape conviction: (1) sexual intercourse, (2) that occurred non-consensually, and (3)

involved the use of or threat of force.43 Force is often defined and argued within the context of

the victim’s resistance to a show of force by their attacker. 44 Thus, when determining the element

of force in sexual assault cases, courts consider whether the victim made an “honest” effort to

resist the attacker.45

For example, in Commonwealth of Pennsylvania v. Berkowitz, the defendant started to

undress a college student, groped her breasts, and put his penis in her mouth without her

consent.46 The defendant continued his assault by pushing the victim onto his bed, taking her

underwear off, and penetrating her.47 The victim tried to leave the room during the assault but

the defendant locked the door. The victim also testified that she repeatedly said “no” throughout

the encounter.48 However, the court refused to uphold a rape conviction and cited a lack of

evidence regarding the use of force. The court reasoned the victim had not done enough to resist

the defendant’s advances.49 The court emphasized that the defendant did not physically nor

verbally threaten the victim and the victim made little to no effort to resist him. Overall, saying

43 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”
REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L. & Criminology 1081
(Fall 2011).
44 Id.
45 Id.
46 Com. v. Berkowitz, 537 Pa. 143 (Sup. Crt. Penn. 1994).
47 Id. at 147.
48 Id.
49 Id. at 148.

9
“no” and trying to leave the room was not enough to prove resistance and the use of force

because the victim could have done more to resist the advances against her. 50

Non-Consent States

There are two types of non-consent states: true non-consent states and contradictory non-

consent states.51 True non-consent states allow some sort of sexual offense conviction without

proof of force.52 The prosecution only has to prove that the sexual act was non-consensual.53

However, only 17 out of the 28 non-consent states allow a rape conviction without proof of

force.54 The remaining 11 states only allow a sexual assault conviction without proof of force for

lesser offenses that do not involve actual penetration, but only sexual contact (such as

molestation or sexual battery).55

Contradictory non-consent states have statutory definitions that contradict the non-

consent language featured in their sexual assault laws. 56 Alabama, Alaska, Arizona, Delaware,

Iowa, Kentucky, Montana, New York, and Texas all have at least one law in which a sexual

offense appears on its face to be punishable so long as the prosecution can prove that the act was

non-consensual.57 Yet, these states’ feature statutory definitions that contradict and negate the

meaning of non-consent laws by requiring proof of force or threat of force to prove the act was in

fact non-consensual.58 This, in effect, requires proof of victim resistance. For example,

Alabama’s criminal code alludes that the prosecution can secure criminal convictions in sexual

50 Id. at 149.
51 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”
REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L. & Criminology 1081
(Fall 2011).
52 Id. at 1084.
53 Id.
54 Id.
55 Id.
56 Id.
57 Id. at 1091.
58 Id.

10
assault cases so long as they can prove that the act was non-consensual. However, lack of

consent is defined as resulting from: “Forcible compulsion or incapacity to consent, or if the

offense is sexual abuse, any circumstances, in addition to forcible compulsion or incapacity to

consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.”59

This statutory definition contradicts and functionally negates the non-consent law by still

requiring proof of incapacity or force, which is argued within the context of victim resistance.

Affirmative Consent

A few states, such as Illinois, Wisconsin, and New Jersey, have transitioned towards an

affirmative consent standard, however, each state has a different way of defining and

implementing affirmative consent. Although statutory definitions vary, affirmative consent is

typically characterized as a “freely given agreement” to engage in sexual conduct. 60 However,

Wisconsin and Illinois continue to require proof of force or threat of force to prove lack of

consent.61 The force requirement functionally negates the benefits of adopting an affirmative

consent standard.62 New Jersey is the only state that allows proof of penetration, alone, to

constitute force.63

New Jersey is the only state to allow a rape conviction when there is only evidence of

sexual intercourse and a lack of affirmative consent.64 In New Jersey, the actual act of

penetration without affirmative consent itself is allowed to be treated as proof of force. 65 Thus,

59 § 13A-6-70
60 See 720 Ill. Comp. Stat. Ann. 5/11-1.70 (West Supp. 2011) (“‘a freely given agreement to the act of sexual
penetration or sexual conduct...”); Wis. Sta t. Ann. §940.225(4) (West 2005 & Supp. 2010) (“words or overt actions
... indicating a freely given agreement”).
61 Id.
62 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”

REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L. & Criminology 1085
(Fall 2011).
63 See State of New Jersey in the Interest of M.T.S., 129 N.J. 422 (Sup. Crt. N.J. 1992).
64 Id.
65 Id.

11
the prosecution does not bear the burden of proving that the victim resisted, but rather, the

prosecution only has to prove that the victim did not give their express consent to the sexual acts

of the defendant.66

This is seen in State of New Jersey in the Interest of M.T.S. In M.T.S., the defendant went

into the young victim’s room at night, while she was asleep, and took her clothes off. The

defendant then proceeded to penetrate the victim without her consent. 67 The victim woke up to

the defendant laying on top of her while he was still penetrating her.68 The victim was terrified,

slapped the defendant, and told him to get off of her and get out of her room. 69 As a result of the

assault, she screamed and cried.70

The court found the defendant guilty of rape. 71 The court reasoned that although the plain

language of New Jersey’s statute requires some proof of force in rape cases, the element of force

can be satisfied by proving that the defendant penetrated the victim without the victim’s

affirmative consent.72 Thus, the act of non-consensual penetration is, itself, an act of force. The

prosecution must only prove that the defendant lacked the affirmative consent of the victim and

no proof of resistance is required.

Tonic Immobility as Proof of Non-consent

Tonic immobility should be treated as sufficient proof of non-consent in sexual assault

cases. TI is an evolved predator defense that the body employs when it feels threatened, like in a

situation where a predator is attacking its prey. 73 TI is a natural and involuntary response which

66 Id.
67 Id. at 1268.
68 Id.
69 Id.
70 Id.
71 Id. at 1277.
72 Id.
73 Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault

Survivor, Clinical Psychology: Science and Practice 75 (February 16, 2008).

12
cannot be controlled by the victim.74 It is triggered when a victim is faced with a threat and they

are unable to either flee or fight off their attacker. 75 By its very nature, TI would only be

triggered in sexual assault cases involving non-consent and intense fear on the part of the victim.

So, TI does not occur in cases where the victim consents to the attacker’s advances.

Therefore, TI should be treated as sufficient proof of non-consent and victims who are

able to establish an occurrence of TI during sexual assault, through expert testimony or

otherwise, be treated as per se non-consenting. At the very least, States could include TI in their

already existing incapacity to consent or resist provisions. Preferably, states could reform their

existing sexual assault laws to incorporate a resistance exemption and per se non-consenting

provision for victims who are able to establish an occurrence of TI in their case.

Proof of Resistance

At common law, victims of sexual assault were required to prove that they resisted the

defendant.76 Over the years, many states eliminated resistance as an explicit requirement of

proving sexual assault under the facade of victim-friendly reform. However, a closer

examination of current sexual assault laws reveals the active reliance on resistance as an

indicator of a victim’s non-consent and a defendant’s use of force. 77 Thus, resistance is alive and

well in today’s courtroom.

74 Id.
75 Id.
76 “At common law, the state had to prove beyond a reasonable d oubt that the woman resisted her assailant to the

utmost of her physical capacity to prove that an act of sexual intercourse was rape.” John F. Decker and Peter G.
Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT” REFORM MOVEMENT IN
AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L. & Criminology 1101 (Fall 2011) (citing
Michelle J. Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L. Rev. 953, 962).
77 Id.

13
 Resistance and Current Laws

Some states attempted to modernize their laws by lessening the standard of resistance

from common law’s strict standard of “utmost resistance” to “reasonable resistance” or simple

resistance.78 The resistance requirement can take several different forms: (1) resistance to prove

non-consent of the victim, (2) resistance to prove the defendant’s use of force, and (3) resistance

to prove that the victim put the defendant on notice of non-consent during the assault.79

For example, Louisiana requires the original common law standard of “utmost resistance”

on the part of the victim in order to secure a rape conviction. 80 Eight other states continue to

require victim resistance to prove either force or consent. 81 Seven states do not explicitly require

proof of resistance, but require proof that the victim’s will was overcome in some way by the

defendant.82 Other states appear to have eliminated resistance from their sexual assault laws, but

many of these states still incorporate proof of resistance or lack thereof into sexual assault

cases.83 Maine’s relevant statutory provision states that the victim does not have a “duty to

resist” in order to demonstrate compulsion, yet the element of force or threat of force necessary

to prove compulsion actually requires proof that the victim was unable to resist or “physically

repel”, the defendant.84 Some states even define requirements, such as consent or force, through

the victim’s resistance.85 Altogether, resistance still plays an active role in sexual assault cases.

78 Id. at 1103.
79 Id.
80 Id., See also La. Rev. Stat. Ann. §14:42(A)(1) (2007) (requiring “the victim resist the act to the utmost” for the

crime of first degree rape).

81 Alabama, Delaware, Idaho, Louisiana, Montana, Nebraska, Washington, and West Virginia continue to require

proof of resistance. John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE
“NON-CONSENT” REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L.
& Criminology 1103 (Fall 2011).
82 Id. at 1106.
83 Id. at 1108.
84 Id.at 1110. See also Me. Rev. Stat. Ann. tit. 17-A, §251(1)(E).
85 Id. at 1092,1111.

14
 The Myth of Resistance as Necessity

Resistance is not necessary to corroborate a victim’s testimony nor is it necessary to

avoid faulty claims of TI by victims. Therefore, resistance should be disregarded in today’s

courtrooms.

Some argue that proof of resistance is necessary to ensure the sexual conduct was in fact,

non-consensual. This argument dates back to older cases, such as People v. Dohring.86 This

traditional viewpoint asserts that resistance is necessary to corroborate a victim’s account of

sexual assault. The inherent assumption is that a woman’s testimony about sexual assault cannot

be trusted on its face. Instead, her words must be corroborated by signs of resistance in order to

protect an innocent man from the false testimony of a lying woman. Resistance can also help

avoid a classic “he said, she said” conflict in the courtroom.

Additionally, some proponents of more traditional rape laws, which include elements of

resistance, claim that modern reforms largely ignore the male perspective and are now too

female-centric.87 Some believe that rape law reform victimizes men by over-sexualizing them

while ignoring women’s objectification of men. 88 Others harken back to a simpler time where

fathers taught their daughters how to “properly respond” to unwanted sexual advances through

actively resisting and escaping the situation. 89 Proponents of traditional rape laws and resistance

requirements call for a rollback in recent reform because reforms lead to “he sad-she said

debacles” and criminalize men “for not being able to read a girl’s mind”. 90 Hence, proof of

resistance is necessary in sexual assault cases.

86 People v. Dohring, 14 N.Y. 374 (1847).

87 Sydney Watson, The Uncomfortable Truth About Rape, Women Against Feminism (September 12, 2017).
http://womenagainstfeminism.com/the-uncomfortable-truth-about-rape/
88 Id.
89 Kathleen Parker, Rape California -Style is a Woman’s Prerogative, Orlando Sentinel, Jan. 12, 2003.

http://articles.chicagotribune.com/2003-01-15/news/0301150309_1_conviction-boy-girls
90 Id.

15
 In reality, requiring proof of resistance not only perpetuates a cycle of victim blaming, it

is also an impossible standard to meet in cases involving tonic immobility. Tonic immobility is a

natural, involuntary, evolved predator defense mechanism that temporarily renders a victim

incapable of resisting or responding to their attacker either physically or verbally.91 Studies have

shown that between 41.7% to 52% of victims experience tonic immobility during an incident of

sexual assault.92 This means that nearly half of all sexual assaults involve victims who are

incapable of resisting their attacker. Requiring or expecting proof of victim resistance in cases

involving TI is an impossible standard to meet. Furthermore, the expectation of active victim

resistance in the form of either fight or flight perpetuates a cycle of victim blaming through

reinforcing the idea that victims who experience TI responded inappropriately to the threat of

sexual assault.

Despite the assumption that many women “cry rape”, sexual assault is one of the most

underreported crimes. However, the vast majority of sexual assaults reported are found to be

accurate and truthful.93 Further, new advances in technology, such as DNA evidence and rape

kits, help provide additional evidence to corroborate victims’ accounts and expert testimony can

be used to establish the existence of TI. Moreover, once a victim is able to establish that they

experienced TI, the occurrence of TI, by its very nature, acts as a biological corroborator that the

91 Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault
Survivor, Clinical Psychology: Science and Practice, 74-91 (February 16, 2008).
92 See Lori A. Zoellner, Translational Challenges With Tonic Immobility, Clinical Psychology: Science and Practice,

Vol. 15, pp. 98-101 (February 16 2008) (citing Heidt, J.M., Marx, B.P. &Forsyth, J.P., Tonic immobility and
childhood sexual abuse: Evaluating the sequel of rape-induced paralysis. Behavior Research and Therapy, 43, p.
1157-1171 (2005), Fuse, T., Forsyth, J.P., Marx, B.P., Gallup, G.G., & Weaver, S., Factor structure of the tonic
Immobility Scale in female survivors of sexual assault: An exploratory and confirmatory factor anal ysis, Journal of
Anxiety Disorders, Marx, B.P., Forsyth, J.P., Gallup, G.G., Fuse, T. & Lexington, J.M., Tonic Immobility as an
evolved predator defense: Implications for sexual assault survivors. Clinical Psychology: Science and Practice, 15,
74-90 (2008)).
93 National Sexual Violence Resource Center. (2011). Child sexual abuse prevention: Overview. Retrieved from

http://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_Child-sexual-abuse-prevention_0.pdf

16
victim did not consent to the attacker’s sexual advances. 94 Thus, proof of resistance is

unnecessary since the occurrence of TI itself is conclusive evidence that the victim felt

threatened by the perpetrator and their sexual conduct was non-consensual.

Resistance, Consent and Force

While many states do not explicitly require proof of resistance, most states continue to

define the necessary elements of force and consent in terms of the victim’s resistance or lack

thereof.95 State laws continue to require proof that the victim was incapable, unable, or somehow

prevented from resisting their attacker in order to establish non-consent and use of force.96

However, almost all incapacity to resist provisions focus on physical disability, involuntary

intoxication, and the defendant’s use of a weapon.97 The provisions are very restrictive in their

application and they do not account for incapacity due to other factors, such as TI. As a result,

most victims are still expected to resist or flee from their attackers during sexual assault and lack

of resistance is treated by courts as an indicator of consent or lack of force in sexual assault

cases.

Tonic Immobility

Most people are familiar with two natural responses to fear and trauma in humans: fight

or flight. However, modern psychophysiological research challenges the traditional dichotomy of

fight or flight by introducing a third possible response: the fear-freeze response. The fear-freeze

response is known as tonic immobility.98 TI is a natural freeze response that is triggered when

94 Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault
Survivor, Clinical Psychology: Science and Practice (February 16, 2 008).
95 John F. Decker and Peter G. Baroni, “NO” STILL MEANS “YES”: THE FAILURE OF THE “NON-CONSENT”

REFORM MOVEMENT IN AMERICAN RAPE AND SEXUAL ASSAULT LAW, 101 J. Crim. L. & Criminology 1110
(Fall 2011).
96 Id.
97 Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault

Survivor, Clinical Psychology: Science and Practice (February 16, 2008).

98 Id.

17
someone99 believes that they are neither capable of escaping a dangerous situation (flight

response) nor able to overcome their aggressor (fight response). 100 Instead of fleeing or fighting

their aggressor, the fearful person will respond by freezing due to tonic immobility.

Characteristics of Tonic Immobility

TI renders the victim incapable of responding or resisting their aggressor. Thus, the

victim will experience automatic physical immobility and muscular rigidity. Some victims also

experience “intermittent periods of eye closure, fixed, unfocused gaze or stare, Parkinsonian-like

tremors in the extremities, suppressed vocal behavior, analgesia,101 and waxy flexibility.”102 TI is

also characterized by unresponsiveness to painful stimulation103 and in some cases a sensation of

cold numbness.104

TI is not the same as learned helplessness. 105 TI is a natural and biological response that

cannot be overcome by the willpower of the victim.106 Additionally, it is important to note that

although the victim is rendered incapable of responding to stimuli, research suggests that TI does

not disrupt the victim’s memory or consciousness. 107 In fact, victims experiencing TI are not

only well aware of their surrounding environment, they are also actively processing information,

and remaining highly alert throughout the traumatic event.108

99 Tonic immobility was originally observed in animals. For the sake of this paper, I will refer to the effects of tonic
immobility primarily within the context of the human experience. Id.
100 Id.
101 Analgesia is defined as an “insensibility to pain without loss of consciousness”. Merriam -Webster Dictionary,

https://www.merriam-webster.com/dictionary/analgesia (April 29, 2018).

102 See Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault

Survivor, Clinical Psychology: Science and Practice 75 (February 16, 2008).

103 Id. at 75-76.
104 See Arturo Bados, et. al., Traumatic Events and Tonic Immobility, The Spanish Journal of Psychology, Vol. 11,

517 (2008).
105 See Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault

Survivor, Clinical Psychology: Science and Practice 76 (February 16, 2008).

106 Id.
107 Id.
108 Id.

18
 Tonic Immobility as an Evolved Predator Defense

TI is classified as an “evolved predator defense”. 109 Scientists believe that TI is an

evolutionary adaptive survival strategy that offers the victim a unique set of benefits. 110 For

example, TI actually serves as a natural signal of danger that warns others of approaching

danger.111 TI also functions as an effective inhibitor of aggression in predators and can actually

decrease the predator’s attack-kill response.112 Studies have also indicated that TI can lower the

victim’s blood pressure and can actually lead to a decrease in blood loss when the victim is

injured by their attacker.113 In cases involving rape, TI may help the victim avoid inducing

further rage in their attacker and help the victim avoid additional physical harm and brutality. 114

Therefore, TI acts as an effective evolutionary adaptive survival strategy that helps the victim

avoid an attack, and if they are attacked helps the victim avoid massive blood loss while

increasing their chances of survival.

Tonic Immobility in Sexual Assault Victims

Victims of sexual assault have historically reported loss of mobility and incapability of

verbally calling out during an assault.115 This response was previously known as “rape-induced

paralysis”116 and this freezing phenomenon was studied as early as the 1970s.117 In one early

study, victims of sexual assault described their experiences by saying, “I felt faint, trembling and

109 See Sunda Friedman TeBockhorst et. al., Tonic immobility among survivors of sexual assault, Psychological
Trauma: Theory, Research, Practice, and Policy, Vol 7(2), 171 (March 2015).
110 Id. at 76.
111 Id.
112 Id.
113 Id.
114 Id. at 79.
115 Id. at 78.
116 Id.
117 See Michelle J. Bovin, et. al., Does Guilt Mediate the Association Between Tonic Immobility and Posttraumatic

Stress Disorder Symptoms in Female Trauma Survivors?, Journal of Traumatic Stress, Vol. 27, 721 (December
2014).

19
cold... I went limp” and “My body went absolutely stiff”. 118 Eventually, psychologists realized

that what was being described as “rape-induced paralysis” was in fact a manifestation of TI in

humans.119 In fact, the manifestation of TI in humans was first identified and studied in victims

of sexual assault.120 However, it is worth noting that TI is not exclusively experienced in victims

of sexual assault but can also be found in people experiencing other forms of extreme trauma.121

The prevalence of TI in sexual assault victims122 is largely credited to the fact that

incidents of sexual assault incorporate elements of fear, contact, and restraint.123 Each of these

elements plays a key role in triggering the TI response in sexual assault victims.124 Women125

who experience tonic immobility during incidents of sexual assault remain mentally alert but are

118 Id., See also A.W. Burgess and L.L. Holmstrom, Coping behavior of the rape victim, American Journal of
Psychiatry 233, 416 (1976).
119 Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault

Survivor, Clinical Psychology: Science and Practice 78 (February 16, 2008).

120 See Michelle J. Bovin, et. al., Does Guilt Mediate the Association Between Tonic Immobility and Posttraumatic

Stress Disorder Symptoms in Female Trauma Survivors?, Journal of Traumatic Stress, Vol. 27, 721 (December
2014).
121 See Arturo Bados, et. al., Traumatic Events and Tonic Immobility, The Spanish Journal of Psychology, Vol. 11,

pp. 517 (2008). A study at the University of Barcelona indicates that tonic immobility may not be limited to
experiences of sexual assault. In 2008, researchers conducted a study o f students at the University of Barcelona. The
participants were primarily single (88%) female (87%) students. The questionnaire assessed the occurrence of
traumatic events in the lives of each participant and their experience with each traumatic event. Th e study indicated
that tonic immobility occurs most often when a person has a direct experience with personal trauma, rather than
receiving news of traumatic event second hand (i.e. receiving news of a violent or sudden death of a loved one). The
study also concluded that tonic immobility is not exclusively experienced in sexual assault victims but may also
occur in victims of other types of trauma. However, very limited research has been done on the occurrence of tonic
immobility in humans who experience trauma unrelated to sexual assault.
122 Recent studies have indicated high rates of TI in sexual assault victims. Studies indicate that anywhere between

41.7% to 52% of survivors have experienced TI during an incident of sexual assault. See Lori A. Zoellner,
Translational Challenges With Tonic Immobility, Clinical Psychology: Science and Practice, Vol. 15, 98-101
(February 16 2008) (citing Heidt, J.M., Marx, B.P. &Forsyth, J.P., Tonic immobility and childhood sexual abuse:
Evaluating the sequel of rape-induced paralysis. Behavior Research and Therapy, 43, 1157-1171 (2005), Fuse, T.,
Forsyth, J.P., Marx, B.P., Gallup, G.G., & Weaver, S., Factor structure of the tonic Immobility Scale in female
survivors of sexual assault: An exploratory and confirmatory factor a nalysis, Journal of Anxiety Disorders, Marx,
B.P., Forsyth, J.P., Gallup, G.G., Fuse, T. & Lexington, J.M., Tonic Immobility as an evolved predator defense:
Implications for sexual assault survivors. Clinical Psychology: Science and Practice, 15, 74-90 (2008)).
123 Id. at 79.
124 Id.
125 Although not as common, tonic immobility is also experiences in male victims of sexual assault. See A.W. Coxell

and M.B. King, Adult male rape and sexual assault: prevalence, re-victimisation and tonic immobility response,
Sexual & Relationship Therapy 372-379 (November 2010).

20
incapable of actively resisting their aggressor.126 Victims who experience TI typically have

shared symptoms and have similar experiences during and after the sexual assault. For example,

victims experience overwhelming confusion, extreme terror, eye closure or avoidance of eye

contact with the perpetrator, paralysis, an intense urge to flee, physical numbness, and vivid

memories of the sexual assault and the perpetrator’s departure.127 Following sexual assault,

victims that experienced TI often suffer from feelings of intense guilt and shame followed by an

ongoing fear of TI reoccurrence, known as “the shadow of tonic immobility”.128

As mentioned above, most victims who experience TI have extraordinarily clear, vivid,

and intense sensory memories of their sexual assault.129 Studies indicate TI actually enhances the

quality of a victim’s memory and victims who experienced TI are more likely to be haunted by

reoccurring vivid memories of the sexual assault. 130 Although victims who experience TI are

rendered incapable of resisting or responding to their attacker, their accounts of the incident

remain credible.

Moreover, since TI is an evolved predator defense, it is only triggered in victims who

perceived their attacker as a threat to their own safety. Thus, TI itself is a clear indicator that a

victim did not consent to the sexual advances of their attacker. Instead, TI acts as a biological

marker denoting a victim’s non-consent.

Cyclical Victimization and Domination

127 Sunda Friedman TeBockhorst et. al., Tonic immobility among survivors of sexual assault, Psychological Trauma:
Theory, Research, Practice, and Policy, Vol 7(2), 173 (March 2015).
128 Id. at 173-174.
129 Id. at 173.
130 Id. at 176 (citing Bovin, M.J., et. al., Tonic immobility mediates the influence of peritraumatic fear and perceived

inescapability on posttraumatic stress symptom severity among sexual assault survivors, Journal of Traumatic
Stress, 21, 402-409 (2008)).

21
 Repeat Victimization and the Blame Game

Women who experience TI during sexual assault are often characterized by repeat

victimization and are marked by society with a scarlet letter of guilt and shame. Women with a

history of prior sexual abuse and victimization have a much higher chance of experiencing TI

during an incident of sexual assault.131 One possible explanation for the higher risk of TI in

repeat victims of abuse is the past victimization has lessened the victim’s perceived ability to

fight off the attack and avoid sexual assault.132 Although not entirely understood, research

indicates that a woman’s weaker perception of her ability to overcome the attacker may affect

the defense mechanism employed by her body when she is faced with danger. 133 Another

possible explanation is the idea that repeat victims of abuse may have trouble readily recognizing

that an assailant poses a real risk or threat to their safety. 134 Whatever the reason, repeat victims

are at a higher risk of experiencing TI during sexual assault.

Additionally, sexual assault victims who experience TI have a higher risk of developing

depression, anxiety, and Posttraumatic Stress Disorder (“PTSD”).135 Although TI’s connection to

depression, anxiety, and PTSD has not been fully developed, some researchers understand the

link between these phenomenons. A recent study published in the Journal of Traumatic Stress

indicated TI’s link to higher rates of PTSD may be a byproduct of intense guilt and shame, which

131 Christine A. Gidycz, et. al., Prediction of Women’s Utilization of Resistance Strategies in Sexual Assault
Situation: A Prospective Study, Journal of Interpersonal Violence, 573, 581(February 13, 2008).
132 Id. at 573, 581.
133 Id.
134 Id. at 584.
135 See Brian P. Marx, et. al., Tonic Immobility as an Evolved Predator Defense: Implications for Sexual Assault

Survivor, Clinical Psychology: Science and Practice, p. 75 (February 16, 2008), See also Michelle J. Bovin, et. al.,
Does Guilt Mediate the Association Between Tonic Immobility and Posttraumatic Stre ss Disorder Symptoms in
Female Trauma Survivors?, Journal of Traumatic Stress, Vol. 27, 721 (December 2014), Brian R. Van Buren and
Mariann R. Weierich, Peritraumatic Tonic Immobility and Trauma-Related Symptoms in Adult Survivors of
Childhood Sexual Abuse: The Role of Posttrauma Cognitions, Journal of Child Sexual Abuse (November-December
2015).

22
is common among victims who experience TI.136 The study further indicated many victims suffer

from feelings of intense guilt and shame because they were unable to take action when faced

with the threat of sexual assault.137 Due to the lack of understanding of TI and its involuntary

nature, many victims blame themselves for inaction during the assault. 138

A recent study conducted in Sweden indicated that 70% of the female sexual assault

victims who entered an emergency clinic in Stockholm reported having experienced significant

immobility during the attack and failed to react verbally or physically.139 Their experiences

denote the occurrence of TI.140 The study also found that victims with pre-existing PTSD were

twice as likely to experience TI at the time of assault. 141 TI victims were also twice as likely to

suffer from PTSD and three times as likely to suffer from severe depression in the months

following the assault.142 The study indicated that victims who experience extreme paralysis as a

result of TI were more likely to suffer from PTSD.143 While the causal connection between

PTSD and TI is clear, the reason behind this causal connection remains undeveloped.144

It is crucial to educate people on the natural and involuntary nature of TI and its effect in

order to challenge traditional ideas of trauma-related reactions and reduce feelings of guilt,

shame, and self-blame among victims. This modern approach will help diminish symptoms of

136 Michelle J. Bovin, et. al., Does Guilt Mediate the Association Between Tonic Immobility and Posttraumatic
Stress Disorder Symptoms in Female Trauma Survivors?, Journal of Traumatic Stress, Vol. 27, 721 (December
2014).
137 Id. at 721.
138 Id. at 723.
139 See Anna Möller, et. al., Tonic immobility during sexual assault – a common reaction predicting post‐traumatic

stress disorder and severe depression, Acta Obstetricia et Gynecologica Scandinavica Vol. 96 (8) (June 7, 2017).

140 Id.
141 Id.
142 Id.
143 Id.
144 Id.

23
PTSD.145 One study even called for active efforts to validate and normalize the different ways

that people respond to trauma, including TI, noting that “education and information may be

enormously valuable contributions to post facto attributions that survivors make about their

experiences.”146

The professionals who are treating victims of sexual assault are calling for reform in the

way of education and acknowledgement of TI, but unfortunately lawmakers continue to holdfast

to the traditional dichotomy of fight and flight. Laws that require proof of resistance as an

indicator of force or non-consent reflect a traditional belief that a victim can and will respond

with either fight or flight. These legal standards impose an unrealistic expectation upon victims,

many of whom experience TI, to actively respond in one way or another to the actions of their

attacker. Yet, the law currently ignores the reality that many victims are rendered incapable of

responding at all. By upholding these laws, the legal community is not only refusing to

acknowledge decades of sound research, but also is emphasizing the cycle of re-victimization by

endorsing the idea that victims who experienced TI somehow responded inappropriately to the

threat against them. Thus, laws that reflect an expectation of fight or flight perpetuate a cycle of

ignorance and victim blaming.

Domination of Female Victims

145 Id. See also Lori A. Zoellner, Translational Challenges With Tonic Immobility, Clinical Psychology: Science and
Practice, Vol. 15, 98-99 (February 16 2008) (Another study advocating for educating people on the natural,
involuntary nature of TI in order to normalize it as trauma -related reaction, which would help mitigate against
feelings of guilt and self-blame and help treat sexual assault victims that experience TI.).
146 Sunda Friedman TeBockhorst et. al., Tonic immobility among survivors of sexual assault, Psychological Trauma:

Theory, Research, Practice, and Policy, Vol 7(2), 176 (March 2015).

24
 The vast majority of sexual assault victims are women, 147 most of whom will never see

their attacker put behind bars.148 Although there are some notable changes in sexual assault laws,

these “substantial shifts in rhetoric and rules may not bring about major improvements in

women’s lives.”149 One way to understand the gap between surface-level statutory changes, the

reality of underreporting, and ineffective prosecution of sexual assault perpetrators is through the

lens of systematic domination. Dominance theory is aimed at “uncovering how male dominance

is reproduced and how new rationales and discourses develop to justify the continuing gender

disparities.”150

Sexual assault laws were originally drafted with the goal of protecting rights of men, not

women.151 They were not intended to protect the victims themselves. As sexual assault laws

began to change to reflect a more modern view, states held onto vestiges of the traditional male-

centric approach to sexual assault cases. Despite other reforms, many states along with the

Model Penal Code continued to uphold the validity of marital rape exemptions through the 1980s

citing that the exemption was necessary to avoid an “unwanted intrusion of the penal law into the

life of the family.”152

The persistent expectation of victim resistance is another vestige of the traditional male-

centric approach to sexual assault cases. Laws that require evidence of resistance to prove force

147 Women make up 94% of all rape victims. Rennison, C. M., Rape and sexual assault: Reporting to police and
medical attention, 1992-2000 [NCJ 194530]. Retrieved from the U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics: https://www.bjs.gov/content/pub/pdf/rsarp00.pdf
148 Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Felony Defendants in Large

Urban Counties, 2009 (accessed 2013).

149 Martha Chamallas, Introduction to Feminist Legal Theory, 12 (3rd ed. 2013).
150 Id. at 13.
151 See Catharine A. MacKinnon and Reva B. Siegel, Directions in Sexual Harassment Law: A Short History of

Sexual Harassment, Yale Press 5 (2003).

152 Matthew R. Lyon, No Means No? Withdrawal of Consent During Intercourse and the Continuing Evolution of

the Definition of Rape, 95 J. Crim. L. & Criminology 282-283 (2004) (citing Model Penal Code and Commentaries,
§213.1(1) cmt. at 345 (1980).

25
or non-consent continue to place the emphasis on protecting the rights of men at the expense of

women. The need for resistance is justified by the sexist assumption that women have a tendency

to “cry rape” and accuse innocent men of sexual assault. In reality, sexual assault remains one of

the most under-reported crimes153 and false reports only represents between 2%-10% of all

reported incidents.154 Therefore, women seldom report incidents of sexual assault and when they

do their reports are almost always accurate.

Moreover, an expectation of a victim’s ability to resist when attacked perpetuates victim

blaming by labeling fight or flight as the only appropriate way for women to respond to sexual

assault. Built into the existing sexual assault laws is the age-old assumption that a victim who

does not actively resist her attacker must have consented to the sexual advances. 155 In reality,

many victims of sexual assault experience TI which renders them incapable of resisting their

attacker. Yet, the legal community has by and large ignored the existence of TI. Through the lens

of domination, it becomes clear that this ignorance is the product of a legal system that may have

put a new coat of paint on its sexual assault laws but remains male-centric at its core. In other

words, the more things change, the more they stay the same.

Conclusion

Despite the plethora of evidence indicating high rates of TI in sexual assault victims, the

legal community largely ignores this freezing phenomenon in sexual assault cases. Instead,

courts continue to adhere to traditional standards of resistance, force, and non-consent. These

153 Rennison, C. M. (2002). Rape and sexual assault: Reporting to police and medical attention, 1992 -2000 [NCJ
194530]. Retrieved from the U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics:
https://www.bjs.gov/content/pub/pdf/rsarp00.pdf
154 National Sexual Violence Resource Center, Child sexual abuse prevention: Overview (2011). Retrieved from

http://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_Child -sexual-abuse-prevention_0.pdf
155 See People v. Dohring, 14 N.Y. 374 (1847).

26
legal standards reflect centuries of male-centric sexual assault laws that are aimed at protecting

the rights of men at the expense of women. Sexual assault laws were never created for the

purpose of protecting women as victims, but instead, the laws were originally created to protect

the rights of men and men only. Though there have been incremental improvements in sexual

assault laws over the years, today’s laws continue to contribute to a systematic domination of

women through heightened standards of proof and victim blaming. The laws requiring proof of

resistance, force, and non-consent continue to be more concerned with corroborating the

accounts of sexual assault victims, most of whom are women, than they are concerned with the

actual reality of sexual assault.

One such reality is the common occurrence of Tonic Immobility in victims of sexual

assault. The prevalence and legitimacy of TI in sexual assault victims is widely accepted in the

scientific and medical communities but remains overlooked by the legal community. It is high

time that the legal community grapples with the implications of TI on current sexual assault laws

in the United States. States should embrace the reality that TI is an involuntary, natural response

to trauma that renders countless victims of sexual assault incapable of resisting or responding to

their attacker either physically or verbally. Victims who experience TI are rendered incapable of

consenting or resisting by the very fact that they feel threatened and that threat is so extreme that

their bodies respond by employing an evolved predator defense mechanism in hopes of

protecting them from apparent danger.

Thus, states should incorporate TI into their lack of capacity to consent or resist

provisions, and victims who experience TI should be treated under the law as per se non-

consenting victims of sexual assault. If a victim was consenting to their perpetrator’s sexual

27
advances, then the victim’s body would never respond with TI. Therefore, evidence of TI is a

evidence of non-consent.

28