swan_tower | a disturbing thought

a disturbing thought

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.

Flat | Top-Level Comments Only

I definitely know a rapist or two. I know guys who have had sex with women who were drunk, or guys who were "fooling around" with girls, and didn't ask before initiating penetration. I know some girls who have behaved the same way.

Even though it's politically useful to say "rape is rape" over and over again, I don't really think it's that simple. If both partners are drunk, and in the morning one of them wakes up and feels violated and the other wakes up and recalls, blearily, that it was awesome, does that mean that the first was not raped? If one person feels raped, does that mean that the other person is automatically a rapist, regardless of the circumstances? Heck, what if *both* partners feel violated in the morning? Does that make them both rape survivors and both rapists? What about situations where someone doesn't *give* consent, but also doesn't have the guts to vocally *deny* consent? I know that it's generally helpful to consider that a bad idea - I've been to all the college sex talks - but what if neither of the partners feels violated?

The problem seems to be that on some level "rape" is the crime, and commensurate penalties for the perpetrator and support for the victim, that we attach to the feeling of "sexual violation." In very few other situations do we attach permanent labels like "rapist" to the consequences of one party's feelings. If I cut you off in traffic, no matter how mad and frustrated you are I don't have to spend the rest of my live laboring under the label "jerk" or "bad driver."

Now, this is getting complicated, because I don't really mean to compare rape to poor traffic etiquette. Sexual violation is a terrible thing that has the potential to haunt a person for a very long time. And, of course, when I say that there is complications or a gray area, I'm only talking about complicated cases. There are many extremely uncomplicated cases of rape.

The thing is, I recall a lot of weird stuff. 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, because drunk people can't give consent, and of course it's the man's fault, right? And I think about all the times that anyone has ever had a feeling that didn't match my interpretation of reality. I like to think "well, I'm way too scrupulous about acquiring consent all the time for anyone to ever accuse me of being a rapist." But then, I'm also pretty scrupulous about saying what I mean and being straightforward with my friends, and I have ex-friends.

I'm also aware that there was a lot of male privilege in that paragraph, because my concern is whether or not I'm going to be unfairly accused of a crime, not whether or not I'm going to be coerced into sex through emotional or physical violence. I'm still comfortable with my statement - being wrongly accused of a crime would really suck, and I don't think anyone would disagree with that - but I thought it was a good idea to acknowledge it.

It seems to me that we should disentangle violation and rape. Violation is a feeling that requires love and support to overcome - sometimes a lot of it. Rape is a crime with civic penalties. One person can feel violated in a situation in which there is not a clear enough case for civic penalties. One person's feelings don't necessarily reflect another person's reality. If civic authorities judge that rape has occurred, than civic penalties should be pursued. If someone feels violated, than they were violated and deserve all the support they need, regardless of the situation's "reality."

That said, the political problems are a lot denser than this, because as long as there are douche-nozzles like Todd Akin out there we are going to have a hard time getting those civic penalties and needed support to the right place. I don't think disentangling violation and rape is going to happen until we have something that more closely approximates justice.

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

If someone doesn't give consent, it is in fact rape. That is the definition. And 'the guts' is a fairly loaded, unpleasant term.

Plus, the idea that a woman's feelings don't match reality... it has a lot of unpleasant baggage. It's also worth remembering that the rate of rape reportage is so low that the chance that a woman reports the crime based on vague feelings is tiny - I've tended to go over and over things in my mind, 'did that actually happen? Did I do this? Does that really count?' when I've been molested/harassed, and I think the same is true for a lot of women.

Look, I don't want to attack you or anything, but - the idea of rape as something that happens in the rapist's mind/body as opposed to the victim's, who just gets vague feelings of violation, just has so much unpleasant baggage and is strongly tied to all this 'violent rape is rape, other kinds not so much' rubbish.

Plus, the idea that a woman's feelings don't match reality... it has a lot of unpleasant baggage. It's also worth remembering that the rate of rape reportage is so low that the chance that a woman reports the crime based on vague feelings is tiny - I've tended to go over and over things in my mind, 'did that actually happen? Did I do this? Does that really count?' when I've been molested/harassed, and I think the same is true for a lot of women.

As I understand it, that's kind of the point. The idea that a woman can feel violated, regardless of whether it was "actually rape" or not, means that that you can address the violation without having to have a solid answer for "does it really count as molestation/harassment/rape/whatever?" or "is this something that would get taken seriously if reported as a crime?".

But this also only works in a paradigm in which one considers that things in people's heads matter, deeply. If a person is suffering from PTSD, that traumatic stress is really real, regardless of what caused it. If a person is suffering from PTSD because of a sexual act, does it matter whether it was consensual or rape or something borderline? Should we require that the sex be non-consensual and be able to clearly say "you were raped" before we treat that violation and harm to the victim as real?

Edit to add: I recognize how this can come across as minimizing the rape as "feelings of violation", if you aren't coming at it from a perspective where you aren't using "feelings of violation" to mean "all the damage that happens to a person when they are raped". Which is a bit of using it as a term of art, and why I wouldn't make this point except in thoughtful conversation with lots of caveats.

Edited 2012-08-26 22:58 (UTC)

"It seems to me that we should disentangle violation and rape. [....] Rape is a crime with civic penalties."

I'm a woman and a feminist, and I agree with this. The government should stay out of my uterus -- and not try to read my mind, either. Whether a man committed a crime, should not depend on my secret thoughts and feelings at that time, if I couldn't be bothered to try to communicate them at that time.

Perhaps the definition of a 'crime' shouldn't depend on either party's intentions, but on both parties' objective actions.

"If I couldn't be bothered to try to communicate them at that time" doesn't at all match the description I've heard from rape survivors, though. That makes it sound like oh, it's such a hassle to say "please don't do this." It wasn't a hassle. They were intimidated or scared or too drunk/drugged to be clearly aware of what was happening.

The government isn't going to try to read your mind, anyway. They aren't going to come busting down the door to prosecute a guy for raping you unless you tell them you were raped. That's your decision to make. If you don't think what happened merits that kind of response, then you're 100% free to not press charges, or even tell anybody about the incident. But if you do feel like you were raped . . . well, right now we have no shortage of people who will tell you that you misunderstood what was happening, or really wanted it, or are to blame for how things went. And that's a problem.

As for intentions vs. actions, we have a lot of differences about that enshrined in our laws, not just in the case of rape. Negligent homicide and pre-meditated murder are very different things, and get prosecuted differently. But if we push the idea that "yes means yes," that can reduce the fuzziness a lot: if one of the parties involved doesn't take the action of indicating consent, then you have turned the wrong way down that particular street.

From HG.

"If I couldn't be bothered to try to communicate them at that time" was a reference to the Swedish police record in the Assange case. One of the women had a conversation with him about condom and HIV, but then dropped the subject, later telling police that she "couldn't be bothered" or "couldn't be arsed" to tell him to stop (depending on which translation of her Swedish report to the Swedish police).

A simple "No" or "No condom, no sex" could have prevented a cross-cultural tragedy.

Okay, that's one case. It does not describe the vast majority of rapes.

My understanding is that she had communicated that a number of times already. I would take couldn't be bothered/arsed to include the reasoning that there was no point, he wasn't going to pay attention anyway.

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.

Edited 2012-08-23 16:05 (UTC)

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.)

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.

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?

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.

Edited 2012-08-23 19:28 (UTC)

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."

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.

If both partners are drunk, and in the morning one of them wakes up and feels violated and the other wakes up and recalls, blearily, that it was awesome, does that mean that the first was not raped? If one person feels raped, does that mean that the other person is automatically a rapist, regardless of the circumstances? Heck, what if *both* partners feel violated in the morning? Does that make them both rape survivors and both rapists?

This is why no one should have sex while drunk, ever, period. But people are going to anyway.

I'm also aware that there was a lot of male privilege in that paragraph, because my concern is whether or not I'm going to be unfairly accused of a crime, not whether or not I'm going to be coerced into sex through emotional or physical violence.

Which is why it's easy for you to say it's not so simple. And you really should not be comfortable with your privilege.

It seems to me that we should disentangle violation and rape.

How can we distangle violation and rape? Rape is a violation, of the body and often of the mind and spirit as well. There is no distangling them from each other.

One person's feelings don't necessarily reflect another person's reality.

It's the victim's feelings that must be the basis of reality in these cases. It is the only way we will ever be able to dispel rape myths and take apart rape culture. This is, again, male privilege speaking. You really should go read

jimhines's posts on rape... he's a man who actually gets it.

It's a very, very slippery slope when one starts saying "well what about the perpetrator's feelings? Does he feel like a rapist?" How many rapists feel like rapists? How many men who take advantage of rape culture and rape myths feel like rapists? How far from this until we're back to "well look at what she was wearing, anyway, obviously he's not a rapist because the way she dressed made him feel like she wanted it, and his feelings are more important than hers"?

Edited 2012-08-23 17:25 (UTC)

How many rapists feel like rapists?

We've got an answer to that question, and it's a depressingly small number. If you ask guys whether they've ever raped a woman, they generally say "no." If you ask them whether they've ever had sex with a woman without her consent, more of them say "yes." If you ask them whether they've ever had sex with a woman in [scenario that involves her not giving consent], a lot more will say "yes."

That is true, and now that you've mentioned it, I do remember reading this, but I don't remember where. And it just bolsters my point; it has to be the victim's reality, not the rapist's, that matters in these cases, because the likelihood of the rapist saying "Oh, yeah, I raped her," is zero to zilch.

I have to ditto

lokifan that there are a lot of problems with saying "What about situations where someone doesn't *give* consent, but also doesn't have the guts to vocally *deny* consent?" If you need "guts" to do something, then you've been put into a threatening situation, and the entire thing has already taken a seriously wrong turn.

I read -- I think as a part of the gun-control debate -- something pointing out the massive shift in our attitudes toward drunk driving, as a result of concerted social campaigns. It used to be a stock figure of humour, the driver weaving back and forth across the road, narrowly avoiding pedestrians and other cars. That isn't true anymore, and it isn't true because we worked hard to make people see it differently. I think the "no means no" campaigns tried that, but I agree with those who say it would be more effective to push "yes means yes." People should engage with their partners, look for positive confirmation that they do indeed want what's happening. And then absence of refusal (which can happen for a lot of reasons, many of them bad) won't be taken as presence of consent.

Flat | Top-Level Comments Only

a disturbing thought

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject

no subject