Friday, May 02, 2008

Defining Rape When Vulnerability Created By Others

Anna C has left a new comment on your post "Violence Against Women Is A Issue About The Behavi...":

This isn't exactly on topic, but I wanted to ask you something about what you define as rape. I've been reading your blog for a while and am very interested in the issues that you discuss, and have become much more aware of the victim-blaming in our culture (I'm from England by the way).

I was watching Law and Order this afternoon, and the situation was this: a woman had been drugged with ghb at a party by a man obviously intending to rape her. He did, and she was left dishevelled and wandering around the flat. Another boy at the party was friends with the girl but wansn't in a relationship with her. He didn't know that she had been drugged and therefore was incapable of consenting. He saw her crying and looking tired - and he knew that she had been sick - so he took her into his room, meaning to try to comfort her. They chatted for a while, and then she kissed him. Then they had sex. The police later treated this as rape.

Do you think it is? Because though maybe it wasn't perfectly moral to have sex with her when she was so intoxicated that she had vomited, but it is rape? How was he to know that she didn't want sex? She never said no, she never indicated that she wanted him to stop - in fact the opposite. But on the other hand, she couldn't legally consent (though of course the second guy didn't know this). So did he rape her?

I responded in the comments with:

Yes, he raped her. When someone arrives obviously traumatized emotionally and physically as you describe then that rules out the possibility of consent. That isn't unknowable so the second rapist is no accidental rapist.

Taking a traumatized girl to his room is no innocent action. Since he didn't know what happened to her and with the known possibility that drinks get spiked with drugs, he should have called 911. Failing to do so in that situation could contribute to the death of someone who has been drugged and raped.

Even if he assumed she had consumed only alcohol, failing to call 911 is criminally negligent since girls can die of acute alcohol poisoning and timely medical intervention can save lives

She responded with:

Thanks for responding! I have a few more questions - I really appreciate your thoughts...

You said that it would be criminally negligent not to call 911 when he saw the girl in that state. But the only consequence of the alcohol he saw was the fact that she had been sick. Tons of people get that drunk on a semi-regular basis, and they are fine - surely it would be a bit extreme to call 911 every time someone was sick after drinking?

And I know it obviously wasn't a completely "innocent" action to take the girl to his room. But, looking at the situation from his point of view - since he saw her just as an upset girl, who might have had an argument with a friend - surely he isn't guilty of rape just because he had the possbility of having sex with her in the back of his mind when he tried to comfort her?

So basically, his actions (from his point of view) come down to

1. seeing a drunk, upset girl
2. she makes a move on him
3. he has sex with her

Do you really think that this can be rape? Because I think it's a bit unreasonable to expect that his mind would immediately junp to "her drink's been spiked" when he sees her looking intoxicated. She wasn't unconscious or anything - she could hold a conversation and everything.

(By the way, don't think I'm on his side - I suppose I'm paying devil's advocate here slightly - just trying to work out what I think about the situation. My instinctive reaction is to think that she definately was raped the second time, because she couldn't consent. But the second guy isn't crimanally responsible, for it wan't reasonable for him to expect to know that she couldn't. Instead, maybe the first guy - and any others who helped him prepare the date rape drug - should be tried for both rapes, since they created the situation?)

Thanks again.

I disagree with your assessment of his actions from his POV. That assessment at most matches the rationalizations and excuses he would give for his actions if he faced a criminal investigation. Someone's rationalizations which support the decisions they make are not the same thing as the situation from their perspective.

The reason this gets missed by so many people is that boys committing rape in this sort of situation -- someone else incapacitated the girl and raped her -- is common and when it comes to light because of a rape allegation or the death of a girl, many people rush to make excuses for all the rapists involved.

This gives us the "she was really raped but he isn't really a rapist" excuse. That is an impossibility because the burden to ensure she isn't about to raped when he has sex with her belongs to him. If there is any possibility at all that she is impaired or not freely consenting then proceeding is rape.

The same would be true if the genders were reversed and the drugged teen were a boy and the drugger and the victim's friend were both girls.

In the example you gave from Law and Order there were multiple indicators which the friend deliberately choose to ignore or minimize. There's nothing accidental or innocent about someone doing this.

The commonness of rape and the commonness of ignoring the safety of girls because boys want to score while girls have fewer defenses cannot be used as an excuse.

"All the other boys are raping incapacitated girls and getting away with it with no visible harm to anyone" cannot be a valid reason to let a boy like this one be viewed as anything other than a rapist.

On the drinking and drugging, not calling for help is to deliberately leave this girl's survival up to chance. Notice that all his guesswork favored taking advantage of this girl who had been drugged and raped by minimizing everything he was aware of that pointed to a previous assault and to a possible dangerous level of alcohol consumption.

When playing Russian Roulette most of the time firing one shot results in no harm to the person with a revolver pointed at them. We understand clearly in this situation that using odds to justify ignoring the possibility of death cannot be an acceptable excuse.

Using the fact that most of the time nobody dies after puking from too much alcohol or too much substances as an excuse is as dangerous as pulling the trigger on a revolver with only one bullet in it, but it is an easier action to take because the unknown poison (by the time alcohol makes you puke it has become a poison your body is trying to expel) is already in the other person's body.

This isn't a purely theoretical issue.

When I was 16 I had 2 men pour enough alcohol down me to give me alcohol poisoning and if the men who found me incoherent where I had been dumped decided to do as this boy did, I'd most likely have died that night. Instead they made the ethical and legal choice and took me immediately to the hospital where my stomach was pumped.

If either of those guys had had sex with me in that state they would have chosen to be a rapist even though I was past the point of saying no. My physical distress was real and ignoring or minimizing it into nothing detectable would have been deliberate and done for purely self-serving reasons.

There have been too many cases where boys made the decision to do as this fictional boy did and after having sex with an incapacitated girl that girl died because of alcohol poisoning or from being drugged.

Any erring must be on the side of protecting those around us. From your description: "... she was left dishevelled and wandering around the flat." it would be clear to anyone willing to see it that she was in acute physical distress.

This is the point where this girl's welfare was cast aside in favor of her acquaintance's selfish desire. Rationalization is the tool which makes unethical and illegal actions into nothing more than providing comfort. The statement: "he saw her just as an upset girl, who might have had an argument with a friend..." is a deliberate rationalization. The word "might" is critical because it indicates baseless speculation.

We have dishevelled, wandering, crying, puking and that's just what this boy knows about. Any one of these by itself should be a huge stop sign, but together they are the equivalent of flashing emergency lights.

So basically, his actions (from his point of view) come down to
1. seeing a traumatized and vulnerable girl who will likely be viewed by witnesses as being drunk, cooperative and slutty
2. deciding to move her to his room rather than getting her any professional help to ensure her safety
3. she kisses him which gives him the defense of "it was consensual" and since he knows her that defense has a greater chance of being plausible (there are no witnesses so if this claim is false nobody will be able to prove it and the victim isn't likely to be able to testify that she didn't kiss him)
4. he uses her vulnerability as a substitute for meaningful consent

That's premeditated rape.

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posted by Marcella Chester @ 1:18 PM   6 comments links to this post


At May 02, 2008 4:09 PM, Blogger JENNIFER DREW said...

I totally agree with you Marcella. This fictionalised case wherein a second male rapes a young woman and yet claims it was not rape 'just sex' is a common justification made by men who commit rape on women who are either drunk or incapacitated for whatever reason. At no stage did this fictional male character consider the young woman's welfare, instead he justified his actions by claiming he 'only had sex with her and it happened because she kissed him.' So, if a young woman kisses a man in whatever circumstances she is supposedly agreeing to being raped by him. Of course this young man and other men too rationalise their behaviour by believing what they want is identical to a young woman's. It is called excusing or justifying rape. No need to treat women as human beings who have certain rights of which one is the paramount one of sexual ownership of their bodies. No, instead if a man convinces himself 'the woman wants to be penetrated by my penis then rape cannot occur.' Convenient this male justification and rationalisation of what is and is not rape because it always excuses and justifies male sexual violence against women.

At May 03, 2008 8:52 AM, Blogger Astraea said...

Fantastic post. You raise some really good points.

Men who rape are given so many benefits of the doubt by everyone around them, usually including prosecutors and juries it is just enraging. Women and girls are expected to do all kinds of ridiculous, limiting things to avoid rape, and yet even Anna C (Who sounds like a very reasonable person - this isn't a criticism of her) has trouble with putting the burden on the man to do something as simple as ASK THE GIRL WHAT'S WRONG and not have sex with her if she's too incoherent to tell him.

At May 03, 2008 10:53 AM, Anonymous Anna C said...

Interesting post. A few more thoughts - if the girl hadn't been drugged, would your opinion of the guy's actions be the same? Because for me, I think the key issue is that she was incapable of consenting - and so by definition the sex was rape - whereas the key issue in your mind is whether he should have had sex with anyone in the state that she was, regardless of whether she was drugged or not.

You said that if "there is any possibility at all that she is impaired or not freely consenting then proceeding is rape". I wouldn't quite agree here - even though I don't know exactly how some of these date-rape drugs work, I would imagine that at least sometimes it is impossible to tell whether someone has been drugged or is simply a bit tipsy (eg if they are acting more "happily" than normal but haven't vominted or anything). Under your reasoning, does it mean that any guy who has sex with an even slightly tipsy girl is raping her? Because there is the slight, slight possiblility that she is incapable of consenting...

I don't think the idea that "she was really raped but he isn't really a rapist" is competely redundant. Let me propose another scenario. Imagine a new date-rape drug was produced. This drug renders women incapable of legal consent, yet has no obvious physical symptoms. This drug is slipped into a woman's drink at a party by a would-be rapist - however his intentions are thwarted (perhaps he has an accident and has to leave the party). She ends up having sex with another guy there - from his point of view, it just seems like a normal one-night stand - she isn't acting in a strange manner or anything.

I would consider the girl to be a rape victim - because someone had sex with her while she was incapable of consenting. Yet I wouldn't consider the second guy a rapist, because he had no way of knowing that she didn't want sex. In this case, I would hold the guy who drugged her accountable for what happened - since he took away her capacity to consent. What do you think? Would you really think that the second guy was a rapist?

(By the way, astraea, he did ask the girl what was wrong - they had a conversation. He didn't see her looking upset and then just pounce on her.)

This is such a fascinating issue - but, sadly, not just a theoretical one, as you mentioned. I'd love to hear a lawyer's perspective on this case - I know there have been several cases in the UK recently about what exactly constitutes consent.

At May 03, 2008 1:46 PM, Blogger JENNIFER DREW said...

Yes there have been a number of rape cases here in the UK in respect of consent if a woman had been drinking prior to her making a complaint she had been raped by a male. Unfortunately, the legal system here in the UK does not legally define a person as being incapable of giving consent if they are drunk or bordering on comotose. Although of course it is illegal to drink and drive if one has had too many alcholic drinks but there driving is not the same as a male raping a female when she is obviously drunk.

The rape cases involving a rape survivor who had been raped whilst she was drunk and in one case was clearly unconscious due to alcohol, in each case the rapist was acquitted. You see it is the old, old problem, unless a woman can prove with at least 50 witnesses standing alongside and witnessing her words (even then would a woman be believed because she might not mean it) she did not consent our legal system will say she did. In other words women have no autonomy, in law we are constantly in a state of consent to men penetrating our bodies unless of course we provide the male-centered and male-believable proof. Time and again the focus remains on what a woman did or did not do, we do not look at the actions of the male perpetrator. Men who commit rape do not misunderstand, rather they are predators who decide it is their right to ignore the woman's desires or wishes and instead they commit rape.

The thereotical case of a new drug rape well surely in order for a woman not to give legal consent this would mean she would appear to be 'spaced out' not able to communicate or speak in coherent sentences. Drugs used to incapacitate women are ones wherein a woman is not able to stand properly, she has little or no control over her body and she cannot resist because the drugs prevent her. Therefore in my view if a man sees a woman in this state and he goes ahead and rapes her yes it is rape because this woman could not consent or even refuse. Instead she would just be a zombie which is precisely what many rapists want. A woman who does what they want and then the rapist can claim but 'she consented' she didn't resist she fight me, there are no physical signs of violence. If a woman is drunk, is lying on the ground almost unconscious and incoherent then she is not capable of making a rational decision and if a man decides he 'will have sex with her' he is not he is masturbating into her body and effectively raping her.

At May 03, 2008 3:21 PM, Blogger Marcella Chester said...

Anna C, I've responded to your latest comment in a new post.

At October 14, 2008 4:25 PM, Anonymous Anonymous said...

(So I realize this is a TV show and this question will never be answered BUT) did anyone ask the rape victim what she thought/felt about the second incident? If she felt it was rape, or coerced sex (also rape), or doesn't remember, etc, etc, then yes, it's crystal clear to me that it is rape. If she feels OK with it, then while according to the letter of the law (depending on the wording in your state/country) it probably would fall under rape (lack of consent) but doubtful that any prosecutor would take the case.

The reaction of the victim is what is paramount. In Alzheimer's care facilities, when a patient and his/her spouse have sex, the staff judge whether or not it is OK based on the reaction of the patient.

Let's not lose the victim/survivor perspective in all this. She has already had control over her body taken from her; let's not take control over the determination of what happened to her.


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