Monday, October 09, 2006

Busting The Regret Not Rape Myth

In many rape cases where the accused is a boyfriend or acquaintance, the defense says that the alleged rape victim is either a liar or simply expressing morning-after regret for lousy but consensual sex.

That myth of morning-after regret appeared in the comment by Sailorman in Alas, a blog: Beyond A Reasonable Doubt, The Rape/Consent Spectrum, And Restorative Justice:

So back to the example: If she knows she can break up with him and leave, and chooses not to, well, this seems to be dangerously close to a case of regret that she didn't decide to break up with him. It seems like regret more than it is seems like rape. The whole CONCEPT of force/coercion is that you have no other choice.
Sailorman equates a 15-year-old's decision not to leave immediately, despite multiple risks she'd face if she tried to go, with consent to sex. From there he concludes that her wish not to have sex was only retroactive. Therefore she couldn't have been raped and is lying if she tells anyone she was raped.

This view isn't new to Sailorman but has been the entrenched view that helped deny all but the most heinious and undeniable of rapes for centuries. It validates the rapist's reality while denying the reality of the rape victim.

What Sailorman is tapping into is that the boyfriend knew that when his girlfriend sat down in response to his apology that she was making a choice which determined his decision to not let her leave without getting sex from her. The trapdoor shut when she sat back down.

But the girl didn't know that when she sat down again or there either wouldn't have been any further resistance or she would have reacted as if she were in a room with a rapist. In nobody's reality should walking into a trap be the same as giving consent.

Rather than making the springing of that trap illegal, the believers of the regret-not-rape myth say she must have intentionally sprung the trap on herself so she wouldn't have to actually go to all the work and embarrassment of expressing desire for sex. Saying no and staying (even with promises that the no would be respected) equaled saying yes. The idea of giving in is only a sham to hide the girl's full willingness to have sex with her boyfriend.

I'll repeat it for those who didn't get it the first time: The boy knew that leaving when she stood up was her last chance because he knew what he was planning to do if she stayed. FYI: That's call premeditation, folks.

In his mind and in the minds of many observers, her sitting down (after his first attempt to get sex) absolves his criminal liability for what he was always intending to do. Get sex from his girlfriend, whether she liked it or not.

If this boy didn't have the rapist's mentality she could have stayed all night and not been pressed for sex she wouldn't freely participate in.

I've set out exactly why I consider the scenario Sailorman commented on and which I included in Is Being An Ass A Valid Rape Defense? to be real rape and not something with softer connotations.

But what factors rule out the possibility of true legal consent in a situation like this when it comes to sex the defense teams like to call consensual?

Here is Oregon's statute:

163.315 Incapacity to consent; effect of lack of resistance. (1) A person is considered incapable of consenting to a sexual act if the person is:
(a) Under 18 years of age;
(b) Mentally defective;
(c) Mentally incapacitated; or
(d) Physically helpless.

The last item (d) is the one I want to focus on since that seems to be what is disputed in scenarios like that used on Alas, which victims call what happened to them rape but others don't. Note: I'm not describing the way the law is enforced or how juries are making their judgments.

According to Oregon's statutes "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. (emphasis mine)

Is a girl or woman physically helpless if she is pinned down by her boyfriend or by her date?

In most cases the answer is yes. And that means she cannot give consent at that point. So if her date or her boyfriend got a no to sex or anything less than a clear message of consent before he has her pinned, any agreement by her while under his physical control cannot be considered consent.

I can almost hear the howls of protest from the believers of the regret-not-rape myth. I'll use an analogy to show why I'm making this seemingly outrageous claim.

Most people understand that she can't give legal consent with the blade of a knife pressing against her neck or a gun aimed at her head, but also understand why she may attempt to appease the man controlling her since not doing so could result in more pain and more danger. She is able to talk but she is physically unable to communicate her unwillingness. She may have said no, but he refused to hear it and that means she could not communicate with him.

Her inability to communicate is because he won't receive the message. Not can't. Won't.

Yet that understanding frequently evaporates when the man doesn't fit our stereotype of who a rapist is and how he selects and isolates his victims and how he makes them physically helpless. When he gains the illusion of consent he wants in order to justify his actions, he knows plenty of people will believe right along with him.

Most people still buy into the myth that a rapist is helplessly driven by the urge to rape and nothing anyone else can say or do before the rape attempt has begun will deter him in the least. That myth leads people to believe or disbelieve rape allegations based on elements of character that have nothing to do with alleged rapist's sexual beliefs and behavior.

If the general view of alleged rapists flip from absolute condemnation to mild annoyance merely by where and how the rapist isolates a potential victim and how he extracts a mockery of real consent, what intelligent rapist is going to pick the method most likely to get him sent to jail for the next 20 years?

He's going to exploit not only the girls and women he can get under his physical control through lies and trickery, he's going to exploit those who will stand up in his defense. He will use his defenders and their power as a protection against being held responsible for his actions.

Some stranger rapists adopt the strategy used by date rapists to increase their success rate and to decrease the chances that their victims will report their rapes.

Like the stranger rapist, the boyfriend/date rapist won't take no for an answer and will only be thwarted by her escape. And if she escapes from his first attempt he will use all of his social skills to convince her that her fears were irrational.

Everyone who dismisses boyfriends who don't want to take no for an answer as behaving normally contributes to girls believing their rapist/boyfriend's lies over the unreality of what they experienced.

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posted by Marcella Chester @ 12:04 AM   13 comments links to this post


At October 09, 2006 7:20 AM, Blogger Gracchi said...

I agree with you a hundred percent- if someone forces someone else to have sex and refuses to let them genuinely consent then its rape.

The problem I have is further on in the process how do you prove it? Its one person's word against another's and I don't see how you can get round that and the concomittant fact which is the presumption of innocence. That if there are two witnesses and they disagree you have to presume that the perpetrator is innocent because you can't say beyond reasonable doubt that they are guilty. I'm not saying it isn't rape, it is, but I'm wondering how you would ever get a conviction.


At October 09, 2006 8:47 AM, Blogger Marcella Chester said...


It's true that when these cases enter the criminal justice system that the 2 parties disagree. But they are often disagreeing on how to label what happened rather than on the key details that indicate whether true consent was an option.

That's why so many defense teams work to prop up the regret not rape myth. He's a nice guy, she's a reckless person. She didn't call the cops until the next day or even later.

If more cops, prosecutors and jurors start seeing the details of the interaction from a truly analytical POV rather than from the rapist's POV more rapists will be convicted of rape.

At October 09, 2006 11:48 AM, Blogger Kaethe said...

Interesting analysis. I just checked my state statutes.

I never before considered that vaginal intercourse is a distinctive act from any other sexual offense. I learned a while ago that the FBI defines rape as forcible vaginal intercourse, meaning that no man can be raped (only offended, I suppose), but I hadn't thought to wonder whether that was true of individual states as well.

How do I find the state definition of consent? It says "physically helpless" but I want to be clear how that is intended or interpreted here.

At October 09, 2006 12:18 PM, Blogger Marcella Chester said...

Kaethe, here's a link that let's you search for various rape laws within the U.S.:
Find Law

I'm not sure how to find legal precidents when it comes to the legal interpretation of rape laws.

At October 09, 2006 1:57 PM, Blogger Kaethe said...

Thanks, that's incredibly helpful.

At October 10, 2006 2:23 PM, Blogger sailorman said...

Marcella Chester said...

Kaethe, here's a link that let's you search for various rape laws within the U.S.:
Find Law

I'm not sure how to find legal precedents when it comes to the legal interpretation of rape laws.

1) state law summaries will generally explain this. You may be able to find them at your local law library. They will be called the "practice series" or "lawyer's manual" and they are essentially state-specific reference books on various subjects.

2) A good law blog.

3) The intepretation of state law comes from the state's supreme court. Almost all states have free searchable websites for supreme court decisions. They can be difficult to use and may require a lot of reading.... but they're free.

4) Ask your local prosecutor or public defender.

5) Ask a private lawyer.

6) Ask a professor at your local law school. If you can't find it anywhere, ask a professor to assign students to create an information page for credit--you may be surprised at how good it can be.

7) Ask an appropriate lobbying group.

8) Ask your state representative.

BTW, are you asking about what the law MEANS NOW? Physical helplessness probably is limited to things caused by physical issues. A court is likely to interpret this section as being aimed at the handicapped, injured, etc. I don't think it would cover your example.

Is a girl or woman physically helpless if she is pinned down by her boyfriend or by her date?

In most cases the answer is yes. And that means she cannot give consent at that point. So if her date or her boyfriend got a no to sex or anything less than a clear message of consent before he has her pinned, any agreement by her while under his physical control cannot be considered consent.

FYI, this would be clearly rape. Pinning down = physical force and as soon as the rapist uses physical force, then you dno't even have to think about things like capacity to consent: it's rape.

At October 10, 2006 2:36 PM, Blogger Holly Desimone said...

Very interesting article Marcella,
I would like to mention one thing when I was raped. I froze, that fear can make it impossible to speak, it is like you screaming inside your body! Thank you for letting me make this post on you blog.

At October 11, 2006 9:56 AM, Blogger Marcella Chester said...

Sailorman, when people understand the circumstances of the giving of so-called consent it does become clear that it was rape. Often, however, those details get overlooked and because they are the girl or woman who says she was raped isn't believed.

At October 11, 2006 9:59 AM, Blogger Marcella Chester said...

Holly, my heart goes out to you. When a man goes from seeming like a normal human being to being a rapist in nothing flat it can't be anything less than terrifying.

At October 12, 2006 1:00 PM, Blogger sailorman said...

Criminal law is often about the minor details. Rape is probably one of those crimes where the details are most important, because (in court) small details can make the difference between guilt and innocence. And I'm not only talking about the fact that an entire case can hinge on a single "yes" or "no"; it can really be an insanely detailed process in general.

You may want to consider accounting for this when/if you make a presentation of a case to an audience which may challenge it. If you understand what details are crucial, and you include them in your narrative, it will be more likely to convince a larger audience.

It often hinges on presentation.

So instead of saying (hypothetically, of course)

"She said yes. But at the time she said yes she was pinned down. She was scared. So her yes doesn't matter."


"Her boyfriend pinned her down and forced her to say yes."

Even though they say the same thing, I guarantee you that you will get less flak for #2.

At October 12, 2006 3:59 PM, Blogger Marcella Chester said...


The problem with having the change be on the part of those trying to communicate about rape (outside of the courtroom) is that a large part of the responsibility belongs to the people who are too quick to jump to the conclusion that no rape occurred and that the girl or woman who reported that she was raped is a liar.

If people refuse to believe rape victims unless the presentation is just right, they need to understand that their habit protects rapists and contributes to rape victims never telling anyone what happened to them.

The harsh or unbelieving response toward rape victims can be so traumatic that it can drive rape victims toward suicide or other dangerous behavior.

At October 13, 2006 12:50 PM, Blogger sailorman said...

Yes, this is surely true. However, i DO think you can take either tack: you can say "they shouldn't think that" if you want, but in my experience they will do so nonetheless. IOW, I think it is incumbent on folks to have some idea of how "best" to present to an often-ignorant audience.

Whether they want to make the effort and be specific/detailed/etc is up to each individual who speaks.

This is at its heart one of thoes perfect world vs. realism debates. IMO if victims are feeling suicidal then we should be teaching them how to talk so they get the response they want.

I think this is unfortunate but believe it is more realistic than hoping to change society. And FWIW I also believe that better presentation by victims would make them harder to ignore, and would therefore do a lot to change society.

At October 13, 2006 2:25 PM, Blogger Marcella Chester said...


If you want to take a different approach to busting the regret not rape myth, feel free to do so.

When it comes to those who believe harmful myths for any other reason than to excuse "good" rapists, I believe my strategies are realistic.

For the rape apologistics, twisting the wording might convince them that a particular example is an exception, but it won't change their underlying harmful attitudes. And it is those underlying attitudes that helps to keep rape alive and unwell.


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