When is rape really rape?

This is just getting worse, and yes, we're going to have to have a discussion about when "rape" is "rape," and when it isn't.

But we don't have to have it right now.

Why?  Because Rep. Akin is now saying his mistake was in his terminology:

“I was talking about ‘forcible rape’ and it was absolutely the wrong word,” Akin said.

That term has a history, too.

“Forcible rape” is a term included in H.R. 3, the controversial House abortion bill Akin, Rep. Paul Ryan (R-WI) and other social conservatives co-sponsored in 2011. “Forcible rape” was dropped from that bill after it caused a similar uproar.

But beyond that, we're into the quagmire of definition; and if there's one thing ideologues and especially conservatives don't seem to like, it's the problem of definition (except when they can use it).  Not that too many others are crazy about the topic, especially when its applied to a subject like rape.

"Rape is rape," declares President Obama, and who would disagree with him?  That is, as long as we're talking about stranger-in-the-bushes attacks that lead to non-consensual sexual intercourse.   It's the consent that's the issue in rape, be it a criminal or merely a social charge (and there is a difference).  I draw this from an essay I taught once, which unfortunately I no longer have access to.  It was a question of definition, and the essay, in a very objective way, went all the way from stranger-in-the-bushes rape ("Forcible rape," I presume Rep. Akin means) to morning after regrets rape.  I wish I had all its carefully documented examples before me, because each was an actual case, not a thought-experiment; and it highlights the problem of establishing consent.  The issue is not just "No means No," but when can "no" be said?

The details of that sound niggling and legalistic, but it's a legitimate question. Just as sodomy can mean anything put in a vagina that isn't a penis (which covers digits, oral sex, even dildoes), rape isn't necessarily the stranger-in-the-bushes.  And so you get rather silly terms like "date rape," as if rape is always a matter of strangers, and non-consensual sex with someone you know is, well, not as bad.  You see, immediately, that "rape is rape" is a convenient attitude to take, but it's only rape if there was no consent.  Did the woman consent while drunk?  Well, if all she feels is regret that the guy wasn't as cute in the morning as he was the night before (the female version of "coyote ugly" is all I'm getting at), is it rape?  If she says so; but if she doesn't?  If she'd rather forget the whole affair and reconsider her attitude toward large amounts of alcohol in short periods of time, is there a question of rape involved?

I think some might still think so; and the argument could get rather interesting.  But it's a question of consent, and if the alcohol affects her ability to consent, but the woman who had sex under the influence doesn't feel her consent was impaired, is it rape?  She may think she was stupid, but was she raped?  Only if someone can convince her she didn't consent.  Well, maybe if they were convinced she didn't even though she's not convinced, it might still be rape, eh?

We start to slide into the arena of statutory rape, now, where the law decides when you are old enough to consent, and when you are too young to consent.  Never get away from that issue, do we?  So when can consent be withdrawn?  When you're kissing?  When he takes your top off?  When you're naked and he's ready to enter?  Just before ejaculation?  Just after?  The morning after?

I do not ask to mock the issue; I ask because this is the issue.  In the essay I mentioned, the case I remember most clearly was of two college friends, male and female, who got drunk and slept together.  Later than even the next morning, she regretted it as a blot on their friendship, and her friends agreed with her it was not only a mistake, but that it was rape. Why?  Because the next day, or even a few days after, she withdrew her consent.  Obviously this wouldn't hold up in a court of law, but it did make the male friend a pariah on campus, at least among those who sympathized with the woman.  Was he legally a rapist?  No, but the campus society, or enough of it to make life miserable for him, said he was anyway.

Were they wrong?   Either way you answer, you have to draw a line on the issue of consent, and it becomes rather like Zeno's paradox about Achilles and the tortoise.  Wherever you draw the line, why can't you draw it later?  When do you pass the point of no return, and why?  Penetration?  Ejaculation?  Fingers?  Tongues?  Hand down the jeans?  At which point is it too late to say "No!," and why?  There has to be a point, otherwise rape really is only "forcible rape."

If we want to avoid the stranger-in-the-bushes=rape and nothing else scenario, we have to have a reason why.  Agreeing to take off your clothes, then deciding it's not such a good idea anyway, is a pretty easy case of withdrawal of consent.  You don't want consent to be agreeing to have a drink, or wearing a short skirt or a low-cut blouse.  Consent has to be given or withdrawn much later than that.  How late, then?

There is a legal answer, but I'm not interested in it (and too often it depends on the jury and the lawyers).  I'm interested in the "social" answer, the "what is acceptable to the social norm" answer.  Set aside circumstances like going to a room together; set aside anything that can lead to the "she was asking for it" conclusion.  We won't accept that; we will only accept a clear withdrawal of consent to have sexual intercourse.

But when is it too late to do that?

Addendum:  Part of the reason I wrote this post is because of arguments like this:

Let's stop differentiating between different types of rape as if they were different flavors at an ice cream shop. Politicians need to get over the pervasive fear that adopting a zero-tolerance attitude towards rape means that people will be able to disingenuously "cry rape" if they're having a bad day. That's not going to happen. You know what's way more dangerous? Allowing legislators like Akin to make declarative statements that are unarguably false. If you don't know how basic biology works, you shouldn't be able to hold a government position that gives you real power over the bodies of millions of women.

 I actually agree with the first sentence:  rape is rape, as the President said. I despise the term "date rape," especially because it makes "forcible rape" a more legitimate term (and the latter should not be legitimate at all).   The problem is:  what is "rape"?  The next two sentences in that paragraph are actually undercut by something cited earlier in the same post:

 The term [date rape] entered the national consciousness in 1985, when Ms. Magazine published a three-year federally-funded study by psychologist Mary P. Koss on date rape on college campuses. The study found that one in four college women were victims of rape or attempted rape, and that only one in four women had experienced sexual assault that met the legal definition of rape at the time. In the piece, Koss encouraged women to reconsider their past experiences and ask themselves if they had actually consented, even if the person in question was a friend.

Which is back to the points I raised earlier: when can consent be withdrawn, and whose consent really matters, and when does it matter?  Can we persuade women that the consent they thought they gave wasn't really consent after all?  Probably not in a way that would satisfy a court of law, but in the social sense:  when is sexual intercourse rape, and when is sexual intercourse just a bad idea?  When is consent a social matter, and when is it purely private?  That's another problem, because we want sex to be a purely private concern, but on the other hand, even questions of consent involve social discourse.  Is consent, then, a purely private matter?  Or is it something to be determined in consultation with others?  It's a matter of another line, another "when" in the mix:  the concept of valid consent has to be agreed upon by the society at large, but it also has to be determined by the individual in the situation.  But who gets priority, and when?

True, the issue in such an extreme case won't lead to anything politicians can do anything about, because no court of law is going to allow a rape charge based on a withdrawal of consent long after the event.  And, yes, legislators like Akin are idiots.  On the other hand. HB 3, the law Akin and Ryan co-sponsored in 2010 to, in part, redefine rape in federal law, didn't get very far despite Akin's ignorance.  The problem is not really Akin's ignorance of basic biology:  it's his ignorance of basic legal definitions.  If the definition of rape stops turning on the issue of consent, we stop talking about rape; in social contexts, or legal contexts.  At one extreme that becomes the alleged feminist position from several decades back that all sex = rape.  At the other extreme, only the most violent sexual assault can be considered rape.*

We really need to keep the conversation somewhere in between those poles, and we really need good reasons to do so.

One more thing:

The "forcible rape" language in HB 3 was added to that bill in "an effort on the part of the sponsors to prevent the opening of a very broad loophole for federally funded abortions for any teenager." That is from the Congressional testimony of Richard Doerflinger, on behalf of the US Conference of Catholic Bishops.  Why were they worried about this?  Because teenagers, i.e., girls under the age of consent, are protected by statutory rape laws.  The law presumes they cannot give consent, and so any pregnancy of a teenager is, technically, the result of rape.  If there is an exception in federal funding for rape victims, then all pregnant teenagers are entitled to a federally funded abortion. Voila!

The only way to prevent that was to add language to federal law requiring the rape to be "forcible."  At least, that was the idea.  (Planned Parenthood and other groups denied they had ever thought of this, and to date, they've never used this "loophole."  And, yes, this idea predates the 2010 attempt to write it into law.  And nobody wanted to talk about it then, either.)  The law is dead; the idea of "forcible" rape lives on.

Definitions matter.

*An example of the interesting problem here is the mention in the blog post of "marital rape."  When does the wife consent just to make the husband happy, and when does she get forced into sex she'd really rather not have?  Does marital rape require a showing of violence, that is, must it be "forcible rape" in order to be rape?  Or can it simply be "He was going to be impossible to live with if I didn't"?   The issue comes up often: what kind of consent is "true" consent?  It's the question Mary Koss was asking.

If we are going to raise these issues, or if they are going to be raised, we need to deal with them.  And frankly, this points up the weakness of the "exception for rape and incest" in the abortion argument.  Do we really want to argue that a married woman must prove "marital rape" in order to get an abortion?  Must she prove violence to decide she can't have another child? I've met these people; these are real-life decisions, and I'm blowed if I can figure out how many other people are justified in being involved in that decision.   Is there any kind of legitimate state interest involved there?