Adventus

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Thursday, October 25, 2012

...is a rape is a rape

We cannot get away from this problem that rape is the only crime (AFAIK; exceptions to this rule are welcome) that requires consideration of consent.

It is also virtually the only crime that requires, in common imagination if not the court of law, violence.

Think about it.  Criminal fraud doesn't revolve around the consent of the victim.  Gullibility and naivete may be defenses to fraud in the courtroom, but they aren't defenses in the law itself.  "Fool me once, shame on you; fool me twice, shame on me" may be a commonplace saying, but it's not the law on fraud, criminal or civil.  Fraud depends on a showing that the victim was mislead, that any consent at all was the result of lies, of misrepresentations.  And criminal fraud doesn't bring acts of violence to mind.  A lot of criminal acts imply or infer violence, even if violence is not required in the law.  Criminal fraud doesn't; in fact, we think of it as the opposite of violence.  The con man is smooth, sophisticated, clever.  Violence is rough, brutal, and stupid.   Rape is violent, and when it isn't, it may not be "legitimate;" it may not be "forcible."  It may not, in other words, be rape.

Because violence negates any concept of consent.  And rape is sex without the victim's consent.  That's how we've defined it.  That's how "rape is rape."

Kidnapping, perhaps, is the crime that comes closest.  A kidnapping involves taking a person somewhere, or keeping them somewhere, against their will.  But we never speak of "legitimate" kidnapping, or "forcible" kidnapping.  If you can't leave, if the door is locked and you don't have the key, if your way is barred and the people standing there won't move, you've been kidnapped.  End of discussion.  But rape?  Well, did you want to have sex, or not?

And, more importantly, why should we believe you?

So the crime of rape is ugly twice.  The victim is victimized by her attacker; and again by the system.  And now a third time, by politics.  But about that third time, a question:  why are we even talking about this?

Because it's really not about rape.  It's about control.

Procreation requires sex, and sex outside marriage is bad (because then it isn't controlled) and women who have sex outside marriage should bear the burden of their failure to be controlled by society (which used to disapprove of sex outside marriage).

Because it's all about control.  Because rape is all about consent.  And as long as women get to decide what consensual sex is, we can't control them.

So we have to talk about "legitimate rape."

Apparently.

Rape is "just different" because it's a crime that requires deliberating the question of consent.  When I was young and in high school, the females ("girls" sounds demeaning, "women" too lofty to apply to high school students; "females" is too clinical, but I'm stuck) were reassured by law enforcement officers in assembly meetings about rape that, at least in East Texas, the law took care of women, they had nothing to fear by reporting a rape.  The assumption, of course, was that all young women were virgins and virginal, and so any sex outside marriage was non-consensual, and so the rapist would get his just desserts.

Then we decided sex outside marriage was not quite so socially condemned as once it was.  And now we seem to have decided we will make the females among us pay the price for that social change.

That's the only way I can understand it.  Because, honestly, this whole discussion about rape is a discussion about what they called in "The Matrix" trilogy a "system of control."  Rape is rape. It's a crime.  End of discussion.  I'm actually going backwards, to my very conservative East Texas upbringing, to say that.  Odd, innit?

But rape is sexual intercourse, and that's the only way to get pregnant, and now we've let the issue of reproduction revolve around the question of how the pregnancy occurred, and on that Paul Ryan is right:  it doesn't matter.  Paul Ryan is wrong, however, to conclude that pregnancy gives the state extraordinary power to force women to complete the terms of their pregnancies.  Maybe the church can do that; but the church is no longer the state.  It can compel; it cannot enforce under penalty of law.

Even the question itself is irrelevant:  abortion is okay in the case of rape or incest?  Both are criminal acts, especially assuming the incest involved statutory rape (the common assumption.  We seldom speak of this exception involving a "House of Usher" scenario).  Criminal acts aren't criminal acts until established as such in a court of law.  The rapist isn't a rapist until the judicial systems says so, and that system moves at glacial speed.  How, then, do we ever craft a legal exception to abortion allowing them to occur in the case of rape or incest (i.e., statutory rape)?

It can't be done.  You can't allow abortions in the case of rape before the crime has been determined, and no doctor would risk an abortion that might later be found to be a criminal act because there was no rape.  So this question of rape is, again, illegitimate.  It isn't even an issue.   It's barely a distraction.

It's a lie.  Because the issue isn't about the legal or even social definition of "rape."  It's about what rape is about:  it's about control.  Control through violence, or control through subterfuge ("rape drugs") or control through simple unwillingness to take "No" as "NO!"  It doesn't matter.

Rape is rape.  And it has nothing whatsoever to do with abortion.

Adding:  or, for that matter, with state assistance to the poor. 

Good grief.

6 Comments:

Blogger The Thought Criminal said...

As someone pointed out no one is asking them what would happen if their wife (daughter, mother, etc.) was raped and became pregnant. I suspect that, as with so many of those who want to make abortion illegal and very dangerous, it would be "different".

9:54 AM  
Anonymous Sherri said...

All reproductive rights are about control. Have you noticed the shift in the anti-abortion movement towards calling birth control pills and IUD abortifacents? That wasn't the case at the beginning of the anti-abortion movement.

When I was younger, I tried to come to and advocate a sensible moderate position on abortion. Then I came to realize that the side that called itself "pro-life" was not about life, but was about power and control, and I refuse to be controlled.

12:20 PM  
Blogger Rmj said...

Sherri--

Moi aussi. Although in my case, I refuse to be the one controlling, or letting someone exert control; either over my wife, or my daughter, or any other woman of my acquaintance.

Not on this.

4:03 PM  
Blogger alberich said...

We cannot get away from this problem that rape is the only crime (AFAIK; exceptions to this rule are welcome) that requires consideration of consent.

Actually, I am not so sure if that is true, especially when you consider:

It is also virtually the only crime that requires, in common imagination if not the court of law, violence.

What about, for example, stealing something. If someone steals something from your home -- even if it were an invited guest -- as the second quote indicates, nobody would say "well it wasn't really theft unless they robbed you at gunpoint". However, what does make it theft is the lack of consent.

If you are missing a piece of jewelry after a dinner party, said piece of jewelry is found in the possession of a guest and the guest claims "well, he gave me that jewelry". Whom do you believe? Whether a crime has occurred depends on whether you said "you like that necklace ... here, take it" or not. I.e. the crime depends on consent.

The question is how do we judge whether consent was given. If the guest with your jewelry can provide evidence to a court that you were in the habit of giving away jewelry to your guests at dinner parties, does that cast reasonable doubt on your accusation that this particular guest did not have consent to take your jewelry?

11:43 AM  
Blogger alberich said...

We cannot get away from this problem that rape is the only crime (AFAIK; exceptions to this rule are welcome) that requires consideration of consent.

Actually, I am not so sure if that is true, especially when you consider:

It is also virtually the only crime that requires, in common imagination if not the court of law, violence.

What about, for example, stealing something. If someone steals something from your home -- even if it were an invited guest -- as the second quote indicates, nobody would say "well it wasn't really theft unless they robbed you at gunpoint". However, what does make it theft is the lack of consent.

If you are missing a piece of jewelry after a dinner party, said piece of jewelry is found in the possession of a guest and the guest claims "well, he gave me that jewelry". Whom do you believe? Whether a crime has occurred depends on whether you said "you like that necklace ... here, take it" or not. I.e. the crime depends on consent.

The question is how do we judge whether consent was given. If the guest with your jewelry can provide evidence to a court that you were in the habit of giving away jewelry to your guests at dinner parties, does that cast reasonable doubt on your accusation that this particular guest did not have consent to take your jewelry?

11:44 AM  
Blogger Rmj said...

alberich--

Consent is an element of the crime of rape, as rape is non-consensual sex. Any theft is, by definition, non-consensual; but any sexual act is not, by definition, rape.

Statutory rape is a classic example. It is a crime to have sex with an underage child if you are an adult (the exact age difference varies from state to state). It is "statutory" because it is rape by statute; you simply can't have sexual intercourse with an underage child if you are an adult (that is the child, by law, cannot give consent).

The question of consent always arises in cases of rape. It is less present where violence is present, such as the "stranger in the bushes" scenario. But in cases of so-called "date rape", the question of whether the sex was consented to, or not, is a key issue. Hence the stereotypical "She was asking for it" because she dressed provocatively, etc.

It's seldom, if ever, an issue in a case of theft, such as dressing ostentatiously in a bad neighborhood, or driving an expensive car, wearing an expensive watch and jewelry, etc. You might have been foolish, but no one is going to say it wasn't really a theft because you wore too much jewelry, or your watch was too expensive (or your car, for that matter).

Whereas they might say it wasn't really rape because your skirt was too short, or your top revealed too much decolletage....(unlikely, I know, but the reverse never comes up as a serious defense in a mugging).

6:53 PM  

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