Monday, May 05, 2008

Defining Rape By The Harm Done To The Victim

I will be addressing Anna C's latest comment on my post "Defining Rape When Someone Is Incapable Of Giving ..." section by section.


"Someone who has a chance for a one-night stand needs to know for sure that the other person is capable of giving meaningful and legal consent and is doing so."

But my point is that in some situations it would be impossible to know for certain if someone was fully capable of consent. For example, in the example I gave in my last comment - if a new date rape drug were developed that made someone incapable of legal consent but had no obvious physical/behavioural effects, then a guy would have no way of telling whether the girl he's about to have sex with is legally consenting or not. Therefore, unless there is literally no chance that this drug has been given to her (for example she has been in the house the whole day, hasn't eaten or drunk anything and hasn't seen anyone) any sex with her, under your definition, is rape.

You are creating a false scenario with a non-existent drug as my position and then trying to disprove that false scenario. I'm beginning to doubt that you are commenting in good faith.

If a person is in a situation where it is impossible to know for certain if someone else is fully capable of consent, then there needs to be enough of a gap between initial consent and consummation so that it will be possible for both parties to know for certain that the other person is fully capable of consenting and is freely choosing to participate.

"Wanna have sex?"
"Yes."
"Meet me here tomorrow night and we'll pick up where we left off."

This simple solution is something that those willing to rape will reject because of the chance that the delay will mean they won't get the sex they want. There's a chance that the answer to the question will be no or a polite equivalent of no which is why so many "it was consensual" rapists don't ask this question. Rather than risking the loss of a sex partner they are willing to risk being a rapist.

That speaks directly to that person's character and conscious decision making. Nothing accidental here.


"If there is any possibility at all that she is impaired or not freely consenting then proceeding is rape."

There clearly would be some possibility, however slight, of non-meaningful consent in every situation, especially is this new drug became semi-widespread.

Your reliance on a drug that doesn't exist except in your imagination is troubling. But again, there is a simple solution whenever there is a possibility of non-meaningful consent. Delay sex until any hypothetical drug would have worn off. Then verify consent.


"Allowing gaps in knowledge to be a workable defense judges rapists not by the crime they committed or the harm they inflicted through their actions but judges rapists by a general opinion of that rapist's MO."

I see where you're coming from here, but you seem to be judging rape by a different standard from other crimes. In all other crimes, ignorance is a defence. For example, if someone presses a button intending to operate factory equipment, but because of a fault in the machine he couldn't have known about, he ends up killing someone, he's not guilty of murder - because he didn't know that his actions were illegal. Likewise, surely if a man has sex with someone that he doesn't know is incapable of consent (and there was no way he could have found out) then he's not guity of rape?

Why should rape have its own separate standards?
There is a 100% reliable way a man can find out whether someone is incapable of consent if that is a possibility. Wait and then verify.

Raping someone incapable of consenting is not like properly operating a piece of factory equipment that has been properly maintained and properly operated and which malfunctions in a way that could not be anticipated. The physical and emotional impact of being raped comes from a direct choice of actions by the rapist.

A closer analogy is the man who dismisses those who talk of the importance of everyone's safety and who can't be bothered to learn how to safely operate a piece of factory equipment because he wants instant results and what he wants is all he thinks about. Then he ends up killing someone with a piece of equipment that works as designed and he tries everything he can think of to shift responsibility for his actions away from himself and his disregard for the safety of others.

A failure to consider the harmful consequences of your actions is negligence not innocent ignorance.

Rape doesn't have separate standards. Criminal statutes in many other non-sex crimes don't allow ignorance as a defense. And I'm not talking about hidden laws few people are aware of. Traffic laws such as speeding don't allow ignorance as a defense.

The reason for this is that public safety is the priority. The goal is to reduce the number and severity of crashes. Allowing ignorance to be an excuse puts lives in danger.

If you choose to drive you have an obligation to ensure that you are obeying the law and not putting other people's lives in danger. Part of this is your driving, but another part is ensuring that the vehicle you drive is safe. Ignorance about the danger of driving on bald tires is not innocent ignorance but negligence.

If you drive it is your obligation to know how much space you need to keep between your car and the vehicle in front of you so that if something unexpected happens to that car's movement you won't crash into that car.

If you have sex it is your obligation to know that you are not causing someone else to be raped. The application of many sex crime laws unfortunately don't back up this obligation even when the signs of impairment are undeniable such as a girl who is gang raped while passed out. Excuses for committing this sort of crime often come back to, "If she'd yelled "stop!" I would have stopped. I just assumed she was consenting. Girls don't like to consent directly and clearly, you know."

This sort of ignorance is intentional and well thought out in order to justify rape by claiming the rapists thought they were having consensual sex.


And I think it's always very risky to judge the seriousness of a crime by its effects (in your words, the "harm they inflicted"). Surely you would agree that being distracted while driving is a lesser crime that purposefully going out to look for a person to murder? Yet in the first instance, a crash in which many people were killed might be caused by your inattention, and the murderer might only kill one person. The harful effects in this example are not always perfectly linked to the seriousness of a crime. This holds true in rape cases as well.

Are you serious? It's always very risky to judge the seriousness of a crime by its effect? Sorry, I don't believe you are doing anything except making excuses for allowing many rapists to continue with no punishment for deliberate actions which disregard the harm these rapists do to their victims as long as these rapists claim ignorance.

When one punch results in the victim having a concussion it is assault, when one punch results in the victim's death it is at least manslaughter and possibly murder. The courts absolutely view the seriousness of these 2 crimes by their effect.

Through your analogy you are again trying to position many rapists as people who have made no choices which directly resulted in someone else being raped. Instead of so-called victimless crimes you are trying to create perpetrator-free crimes.

No man or boy I've ever heard of has been walking along distracted and who just happened to bump into a girl's vagina with his penis.

Sorry, I'm not buying your accidental rape analogy.

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posted by Marcella Chester @ 11:23 AM   9 comments links to this post

9 Comments:

At May 05, 2008 12:55 PM, Anonymous Anonymous said...

Mens Rea is a BIG loophole in rape law that basically any rapist can walk through. Before DNA the excuse was "It was not me." Now DNA makes that excuse difficult, so we have the "I didn't know I was raping her" excuse. Unfortunately, this excuse makes prosecution/conviction much more difficult, even impossible, and we will hear more and more of it, especially since we are living in a world where the pornified public accepts increasing levels of sexual torture and violence as being plausibly "consensual".

We need to get rid of Mens Rea in rape law if we want actual justice instead of misogynist judges and juries deciding which victim deserves justice and which rapist deserves conviction based on their sexist/racist whims and fancies.

-Kali

 
At May 05, 2008 1:00 PM, Blogger Astraea said...

Your answers to all these questions are very impressive. Anna c's questions seemed almost reasonable at first, but clearly the attempt is simply to absolve rapists of responsibility.

Still, these are very common questions and your thoughtful answers are very good.

The car accident question is really ridiculous, since in both instances the driver will be charged with a crime. We recognize the need for people to be alert on the road, and they can be sued for negligence at the least, even if they aren't convicted of a crime. Yet so many people don't even want to put that much burden on men to make sure they are not doing something incredibly harmful.

 
At May 05, 2008 2:35 PM, Anonymous Anonymous said...

This caucasian male says any decent guy in the scenario described by Anna C in your May 2 posting would have backed off.

In college, many years ago, I did have a relationship with a woman which was physical and to an extent intimate. One day, she was my date for a wedding, an all day wedding. I was in the wedding party, she was with two other women most of the day. There was liquor served. She drank so much by the end of the festivities she was senseless.

Regardless of our previous relationship, I did realize it was just plain wrong to try to engage in physical activity with her when she was drunk and helpless. I took her home. I add, I dreaded facing her parents. Her parents blamed me for nothing. Rather they were quite grateful that their daughter's boyfriend would think primarily of keeping her safe.

So again based on real life experience this caucasian male says that a guy who would exploit a helpless woman rather than keep her safe lacks a bit of humanity and decency.

 
At May 05, 2008 2:51 PM, Anonymous Anna C said...

"You are creating a false scenario with a non-existent drug as my position and then trying to disprove that false scenario. I'm beginning to doubt that you are commenting in good faith."

I'm sorry if I have given you that impression. I promise you that I am commenting in good faith. There would be no reason to be just commenting for idle fun/trying to make fun of this issue - I do appreciate that it's a very serious one. It would hardly be the most "fun" thing to do to sit around writing long comments on someone's blog dicussing rape.

I just have a purely intellectual interest in the whole issue of how consent is defined etc. Perhaps this is the problem - this issue is obviously so filled with emotion for you because of your past experiences whereas I have never been sexually assaulted, and have only known one person who has (and that was an extremely clear-cut case as regards consent, so these issues wouldn't really be relevant to her).

It's my abstract interest that leads me to think up scenarios like the one with the non-existent (as yet) drug. That's just how I like to think - when presented with a theory (in this case, "If there is any possibility at all that she is impaired or not freely consenting then proceeding is rape") I find it useful to see how water-tight the theory is - if it holds fast when applied to unusual, hypothetical situations. This is why the Law and Order episode fascinated me - that was a very unlikely scenario (that someone would have sex with someone that they didn't know had been drugged) but which dealt with the kind of questions which would apply in more common situations.

Basically in the Law and Order scenario there were two issues:

1. the fact that she couldn't legally consent because she had been drugged

2. the fact that she was clarly vulnerable and possibly near to alcohol poisoning

You thought that even if point 1 hadn't applied, then point 2 alone would mean that he was guilty of rape. "If the girl hadn't been drugged with GHB and everything else was the same, my opinion of this boy's guilt remains the same." With my hypothetical scenario, I was trying to see whether if point 2 did not apply yet point 1 did you would still consider it rape, and to do this I created the imaginary drug.

And I'm not alone in finding thought experiements helpful (Judith Jarvis Thomson?) Do you find her "reliance on" a scenario "that doesn't exist except in [her] imagination... troubling" as well? I doubt it, since (from some of your posts on this blog) you seem pro-choice, and so would agree with her. Also, you have no strong emotional reasons (I presume) to be pro-life. This is the opposite of your attitude towards my approach - you are (obviously!) anti-rape and so naturally have an instinctive revulsion towards anything that appears to lessen the guilt of any rapist.

Anyway I hope you understand my intentions - I am quite troubled by the fact that you think I am a trouble-maker or someone who is being flippant about the issue. Thank you very much for taking the time to respond to my posts - you clearly have put a lot of thought into your answers, and I now understand the position on rape of your brand of feminism better. I take the doubt about my sincerity as an indication that you don't want to continue the discussion - I'm fine with that, I'm just grateful that you found the time to engage in discussion at all.

(And just on one final point. On the issue whether "it's always very risky to judge the seriousness of a crime by its effects" I think it does apply to rape. Imagine two women who are raped in similar situations by the same guy. The first was very fragile emotionally before and the rape competely ruins her life. She ends up killing herself because she can't face life any more. The second, though obviously still traumatised, has a very supportive family etc and manages to cope with the attack, and goes on to lead a happy, succesful life. Now nobody would deny that the effects of the rape were worse in the first case. Yet this does not affect my view on the rapist's culpability. It is his intentions - his wilful disregard of his victim's rights - that condemn him, in my opinion. These were the same for both women so he committed just as great a wrong in the second case even though his actions had a less damaging effect on her life. I'm not "making excuses for allowing many rapists to continue with no punishment", just judging the severity of someone's wrong by a more accurate and less personality and situation-dependent measure than the victim's response.

I once read about a rape victim who said that her rape had barely affected her life at all. She said that the death of her cat caused her more pain - (obviously cases like this are incredibly, incredibly rare). Using your standard (how bad the rapist's actions were should be judged by how badly she is affected) he wouldn't have done anything that bad, even compared to the person who killed her cat. Whereas using my preferred standard, he would be just as guilty, since the fact that she wan't v. badly affected doens't mean that his intentions and actions weren't despicable in raping her. So I'm not trying to absolve rapists of guilt. Please don't think I am.)

 
At May 05, 2008 4:32 PM, Blogger Marcella Chester said...

Anna C, thanks for clarifying. As for reasons to comment in bad faith, there is a huge one: the desire to favor the welfare of most rapists over the welfare of most of those who are raped.

I will address the logical flaws in your non-emotional approach which discounts the experiences of those who have been harmed. Whether you mean to or not your approach to consent contributes to putting girls and women in danger.

 
At May 06, 2008 12:06 AM, Anonymous Anonymous said...

If a person is in a situation where it is impossible to know for certain if someone else is fully capable of consent, then there needs to be enough of a gap between initial consent and consummation so that it will be possible for both parties to know for certain that the other person is fully capable of consenting and is freely choosing to participate.

"Wanna have sex?"
"Yes."
"Meet me here tomorrow night and we'll pick up where we left off."

That's hilarious. It's the most un-romantic, non-passionate view of sex I've ever encountered. What the heck is the fun in that? That turns sex into a chore! Ladies, if ya don't want to have sex at a party don't drink so much. Christ, talk about not taking responsibility, "meet me here tomorrow." Really?

 
At May 06, 2008 7:52 AM, Blogger Marcella Chester said...

Anonymous, if you aren't sure the woman you want to have sex with is capable of meaningful consent asking directly and delaying sex is a whole lot more romantic than choosing to become a rapist because you're afraid of rejection.

There's nothing romantic about rape. If you need to go to parties and wait for women to get drunk to have sex, you obviously lack the ability to have a real sexual relationship.

 
At May 06, 2008 11:52 AM, Anonymous Anonymous said...

I find it useful to see how water-tight the theory is - if it holds fast when applied to unusual, hypothetical situations. This is why the Law and Order episode fascinated me

This is one way to move the target from "beyond a reasonable doubt" to "beyond any doubt, reasonable or not". No wonder we have juries deciding that women/girls held captive in dungeons may have actually consented to their rapes in exchange for drugs. It is "hypothetically" possible. Or that a man who raped a woman did it in his sleep. It is "hypothetically" possible. Or that a rape victim with visible physical injuries was consenting to rough sex. It is "hypothetically" possible. You can dream up all kinds of hypothetical scenarios where women/girls have consented to their rapes, and this is being used to argue that consent was plausible in the most unlikely situations. That is probably also one of the objectives of the Law & Order episode. This is not a series that has its sympathies with the rape victims or with women.
-Kali

 
At May 10, 2008 7:32 AM, Blogger Natalie said...

well Anna C, I have been raped and your comments are really offensive but I know you don't mean to be :-) Let me explain what its like being raped: its like aliens have abducted you and fried part of your brain so your body does funny things, and then when they send you back to earth, they drop you in a foreign country so that NO ONE understands a word you say and look at you in horror. then one day you wake up and realise somehow you came home, but you're diferent - you can speak a new language. this is why you can't grasp the situation - you don't speak the language, and are trying to understand rape from a non-rape point of view, it just won't work. The person who says she wasn't that affected - people can stay in denial for years - it protects from the effects of trauma. If somehow you can look at it the other way round then maybe you'll get the hang of it. Keep trying I'm sure you will pick it sooner or later. x

 

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