a disturbing thought

[swan_tower]

The various blow-ups around Todd Akin's comments and the accusations against Julian Assange and all the rest of it mean that a lot of the internet is talking about rape right now. And one of the posts I just read got me thinking about the topic from an angle I've never considered before -- a deeply disturbing one.



I know that I know women who have been raped. I know that I probably know more of them than I think, because not all of them necessarily have mentioned it to me -- or to anyone. This is horrifying, but it's a kind of horror I've gotten used to, in the sense that I understand this is a real thing in my life.

Tonight, I found myself thinking that I may very well know one or more rapists, too.

I can't be sure, of course, because it's the kind of thing people bring up even less than they bring up being the victim of rape. But I may know a guy (or a woman, but that's uncommon enough that I'll go with the assumption of a guy for now) who has raped someone. Not the hold-them-at-knifepoint kind of rape, maybe, but the sort where the other party didn't consent -- which is, yes, still rape. I may know a guy who slipped roofies into a woman's drink (or a man's), or just got her too drunk to know what he was doing. I may know a guy who climbed onto a sleeping woman and fucked her against her will. I may know a guy who coerced his victim with words, who did any one of the hundred things that guys write off as "not really rape" and therefore rest secure in the knowledge that they aren't rapists.

But they are. And maybe I know a guy like that.

It's easy for me to think, when I read about those kinds of cases, that the guys in them obviously deserve condemnation. That it doesn't matter whether they're "nice guys" the rest of the time; what they did is still rape and should be called such, without prevarication. That their friends need to accept that somebody they know and like did a horrible thing, and not try to defend the guy by shifting the blame onto the victim.

Then I wonder how I would react if somebody told me one of my friends raped them. How long it would take me to move past the "but he wouldn't do that!" reaction, and listen to what the victim has to say. To believe them, at the cost of what I believed before.

I hope I could do it. I hope I could, if the situation arose, swallow questions like "are you sure?" and "but didn't you . . . ?" and other things that would hurt somebody who's already been hurt too much. I think I could do it after a while, but in the moment itself, I'm not sure if my principles would beat out my partisan bias, my loyalty to that friend. I hope they would.

I hope that, if one of you ever comes to me and says somebody I know and like did a horrible thing to you, I will be able to face the fact that there is a rapist among my friends.

Because there might be one among them right now. And that's appalling in ways I'd never really thought about before.

Comments

[maladaptive.livejournal.com]

I recall how in some states if a man and a woman are both drunk when they have sex then the man is automatically a rapist

Actually, I just took the bar so I know this, and generally if a man is drunk he can't be a rapist because rape is a specific intent crime, and drunk people can't form mens rea. So while this may be true in some states because state law can diverge from common law, they're unusual enough that it makes me raise my eyebrows. I sincerely doubt it's that cut and dried.

And the false claims of rape happen at about the same rate for false claims of other crimes, so if you're not worried about being falsely accused of robbing somebody with a gun, you probably shouldn't worry about being falsely accused of raping someone, either.

What about situations where someone doesn't *give* consent, but also doesn't have the guts to vocally *deny* consent?

The person who acted without first getting consent is a rapist. Full stop. Consent is never, ever assumed as something that must be explicitly withdrawn-- it's something that has to be given in the first place. This is also a good rule of thumb for interacting with other people! i.e., don't touch them before you have their go-ahead that you can. The idea that "she didn't say no loud enough" buys into the idea that women (generally, though men can be victims of rape too) are public property and you can do what you want with them unless otherwise specified.

[rachelmanija.livejournal.com]

Actually, I just took the bar so I know this, and generally if a man is drunk he can't be a rapist because rape is a specific intent crime, and drunk people can't form mens rea.

Wow, so if a man rapes someone while drunk, he can't be charged at all? (Let's assume in this case that the victim was not drunk.)

[maladaptive.livejournal.com]

The laws are, different by state and you can probably be convicted of something or at least have civil penalties, but for the MBE (multistate, so essentially fed common law), yeah. The question was essentially: "dude gets drunk. Girl gets drunk. Dude leads girl to a bedroom and forcefully engages in sexual intercourse her. Which crime can he be convicted of?" The options were "rape," "no crime," and two others I don't remember.

Hint: the answer wasn't "rape."

I was literally screaming in fury in my living room.

[rachelmanija.livejournal.com]

That is really depressing.

So if he murdered her, beat her, or stole her wallet while drunk, being drunk wouldn't let him off the hook for the usual charges, but it would for rape?

By that logic, is it also impossible to be commit a hate crime while drunk?

[maladaptive.livejournal.com]

If he's drunk he will still be on the hook for murder/manslaughter, IIRC. Just about each state has a different definition of murder and most of us can't remember what the degrees are for the exam and I definitely can't remember them a month after. XD (At least I remember my own state's....)

But it's the difference between intent and not-- you can still be reckless and kill someone. All being drunk does is remove the intent. Imperfect self-defense/intoxication are mitigating factors that reduce the degree, but don't erase the crime itself.

[cepetit.myopenid.com (from livejournal.com)]

Just a couple of side notes; I don't want to derail the rest of the conversation.

(1) As is usual for the MBE, this is an overstatement due to the variance in state laws. In fact, at least fifteen states technically no longer have an offence called "rape" in their statutes; there has been a steady evolution toward graded "criminal sexual assault" -- of which statutory rape is one variety, and for which intoxication is not a defense -- since the early 1980s. Further, there is usually at least a misdemeanor akin to "inappropriate touching" (and, just like in football, all it results in is the legal equivalent of a five-yard penalty... as, since it's a misdemeanor, it's not considered either a sex offense or a "crime of moral turpitude") for which intoxication is not a defense.

In short, this is another example of the overemphasis of law school on commercial law taking away from the time necessary to explore foundation topics in criminal law. But that's a rant for another time.

(2) At its core, the legal problem is not consent, which is a defense. It is the reliability and admissibility of evidence for both the state of mind and the objective conduct/context at the time "wrongful sexual conduct" took place. Admittedly, understanding this is buried very deeply in parts of the law (and practice) that are not apparent until one is a decisionmaker having to deal with the aftermath.* Remember the old saw that there's your story, my story, and the cold, hard truth? It's nowhere near that simple. Rashomon is a vast oversimplification of the problems faced by "nonparticipants" in the aftermath.

* * *

None of this is intended to excuse wrongful sexual conduct. It's not excusable. It is only to point out that in reality, evaluating things after the fact is never as simple as any forward-looking declaration concerning what behavior should conform to makes it seem.

One could argue -- with more than just "some justification" -- that law specifically, and society in general, disserves victims of wrongful sexual conduct by not providing an imprimatur of validity to the victims. The problem here, as in so many circumstances, is that punishment and aspiration are not two sides of a coin, but are instead not even in the same currency. It's silly, and more than a bit counterproductive, to expect law (or society as a whole) to fix after the fact what it couldn't prevent.

And I thus cut things off, because going any farther is going to hijack this thread. What I'd like people to take away from this is that there's a huge difference between "nobody should, and doing so is inexcusable" for anything and actually dealing with a specific instance in which there is an accusation (however well-founded and incontestible) that "x, a real person, did." And further bound up in all of this is the problematic view of consensual sexual relations in the law... and in society...

* I was, long before law school. As a commanding officer, I was forced to deal with several sexual-misconduct matters by and against my "children" over the years. After the first incident, I told the wing commander that I'd start enforcing the misguided "homosexual orientation" ground for administrative discharge for consensual thought-patterns just as soon as the Air Force effectively kept the overmacho pilots in other squadrons from preying on my "children."

[(Anonymous)]

From HG.

"And the false claims of rape happen at about the same rate for false claims of other crimes, so if you're not worried about being falsely accused of robbing somebody with a gun, you probably shouldn't worry about being falsely accused of raping someone, either."

Unless he often asks people for money, and always carries a gun.