Monday, August 20, 2012

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?


  1. I suppose it's wrong for me to hope that they can't force him out before the Monday deadline for putting someone else on the ballot.

    I'd begin a discussion with someone like that by forcing them to consider and address how they would like it being done to them. I'd guess that asking him how he'd like to be "non-forcibly" raped while drugged or tied up or whatever imaginary scenario he could come up with to explain his terminology.

    I've found that works quite well for getting straight men to have to face issues in gay life, if not necessarily to have them understand them.

  2. Anywhere along the way, whenever a person says "no" or "stop", the other should stop.

    If both parties are drunk, and no one says "stop", and one party cries rape after the fact, I don't know. The fault seems to me to lie in getting drunk.

    If the two are sober and penetration has already taken place and one party says "no" or "stop", the other person should stop and withdraw, and if the person does so, then the other should not claim rape.

    I think I now know why lawyers end up speaking in legalese, "the party of the first part, etc.", because I was sorely tempted to go there myself.

  3. Obviously, I haven't covered every possible scenario, only the two situations that came to mind. After all, I'm not getting paid for my time. ;-)

  4. Sherri8:24 PM

    I think you're going off into the weeds here, RMJ. The difficulty is not that Rep. Akins couldn't clearly define rape. Rep. Akins doesn't think that women who have been raped should have the choice of terminating a pregnancy that results from a rape, however it's defined. Rep. Akins thinks we women have magical parts that prevent pregnancy from happening in those cases. Why he doesn't think the use of those magical parts is also abortion is an interesting question; I'm guessing it's because he doesn't think the woman chooses to exercise those magical parts, it happens, well, magically.

  5. Sherri10:43 AM

    My problem with this discussion is that it's in pursuit of defining something to determine an exception for when a women has the right to choose an abortion. I disagree with the whole premise, of restricting abortion to cases of rape and incest, so I don't want to play the game of "what's rape" with pro-lifers.

  6. Sherri--

    I agree with you: abortion is the pregnant woman's decision, and I don't think we need to craft "exceptions" like rape or incest, because that presumes there are legitimate state interests aside from those recognized by the Supreme Court (which still hasn't limited Roe to the question of cause of the pregnancy).

    OTOH, an absolute position tends to get disqualified in public discourse, so it is sometimes necessary to meet the opposition on its own ground. I conceded nothing to abortion opponents in examining the basis for their opposition to even an exemption for rape or incest.

    And those terms raise the question: "what is rape"? President Obama says "Rape is rape," which is sound so far as it goes, but it doesn't address the question of forcible rape v. date rape. Akin, et al., want the discussion limited to "Forcible" rape. The problem is, "date rape" doesn't really expand the definition, it limits it in other, awkward ways.

    What, then, is rape? That's going to be the legitimate question people are going to ask to escape the charged poles of an already charged issue. If they don't agree that abortion should be freely available for whatever reason (as I do), they are going to want a discussion of reasonable limits and where they come from. If all they get in response is the concept of "forcible rape," then we are losing ground on both the issue of abortion, and the issue of rape.

  7. Can we narrow the discussion by focusing on consent? Both parties must consent. If the woman does not consent, then it's rape. Minors cannot give consent. Distinctions between date rape and stranger-in-the-bushes rape are distractions that should not be part of the discussion.

  8. Sherri11:37 AM

    Meeting the oppostion on its own ground has only succeeded in hollowing out the right to choose. The other side in this debate has pushed the window of discourse so far that now the birth control pill is debated as an abortifacent. My daughter faces a much more restrictive environment for getting an abortion should she choose one than I did when I was her age, just a few years after Roe.

    We've tried meeting them on their ground, and the debate hasn't gotten any less charged, and we've lost ground. No more.

  9. Distinctions between date rape and stranger-in-the-bushes rape are distractions that should not be part of the discussion.

    I agree; but then you have to say why. And decide just what "consent" is.


    On the contrary, my impression is the discussion is so polarized no one is listening to anyone else, and there are two sides screaming at each other, and a vast middle who doesn't feel they have a dog in that fight.

    My position on abortion has changed over the years due to experiences personal, political, intellectual, and spiritual. None of it happened because the opposition insisted I discuss the matter only in their terms.

    As I teach my composition students in argument, if you can't craft a rebuttal from your opponent's strongest points, if you can't take your opponent's argument seriously enough to show how wrong it is, your argument won't be very persuasive.

  10. I agree; but then you have to say why. And decide just what "consent" is.

    Well, I don't believe I will convince anyone on the other side by discussing every possible hypothetical situation or by defining or redefining consent. I must say that Obama's quote below makes a great deal of sense to me.

    “The views expressed were offensive. Rape is rape,” the president said of the Missouri Senate candidate. “And the idea that we should be parsing and qualifying and slicing what types of rape we’re talking about doesn’t make sense to the American people. And it certainly doesn’t make sense to me.”

    And I'm sorry, but your slicing and dicing does not, Rmj.

  11. I don't expect Obama to express the ideas I'm expressing here.

    But in the particular case, in the matter of the individual, this "slicing and dicing" is unavoidable, and my central contention is we all do it.

    I just ask that we be honest about it. "Rape is rape" is a fine sentiment until you are faced with the question: "But was this 'rape'?"

  12. Sherri12:10 PM


    Remember "safe, legal, and rare?" Clinton tried to meet in the middle, but it takes two to compromise. I've listened, I've tried to understand, I've tried to engage, and I'm done. I simply will not have men telling me what to do with my body any more. Period. I know that's polarizing, but when the other side just takes and never gives, at some point, you just stop.

    Too many on the pro-life side, in ways not just related to abortion, do not treat me as a person due respect and agency, simply because I am a woman. When I was younger, I was patient, because I thought that was going to change soon. Now, I'm not young, and those people have dug in their heels, and I'm not patient anymore. I'm no longer interested in engaging with them. Arguing about the size of the conference table isn't going to convince them to give me a seat at the table.

    I'm not going to argue with them. I'm not trying to persuade them. I'm simply going to fight them.

  13. That's the lawyer in you. You must pursue the course until the litigation is finished or one side wants to settle. At some point, I tend to drop out of the discussion if I believe it's going nowhere.

    "But was this 'rape'?"

    Do you wish to explore every possible hypothetical?

    I'm with Sherri.

    I'm not going to argue with them. I'm not trying to persuade them. I'm simply going to fight them.

  14. Sherri3:35 PM

    Today we argue the definition of rape, tomorrow the definition of forcible. Rep. Akin and company don't want any abortions, no exceptions. They think of women as less than, the temptress, and use the Bible as their justification. Akin has a Master of Divinity from Covenent Theological Seminary.

    I grew up around attitudes like this, and I will not tolerate them any longer.

  15. I'm not going to argue with them. I'm not trying to persuade them. I'm simply going to fight them.

    I suppose I want to have better ammunition than: "YOU'RE WRONG!!!!!!"

    Like: why they are wrong.

    Not a fan of "safe, legal, and rare," either. But I'm more persuaded by people I've met in straitened circumstances than I am by abstract arguments about "right" and "wrong." I give my full support to the right to choose. But I also understand my personal experience is not a reasoned argument, so I continue to try to make one.

    Do you wish to explore every possible hypothetical?

    I was actually thinking of an actual case (well, not a real case; I don't have a personal experience to recount). Sort of like when I was confronted with a woman who had just been told by a doctor that she should take her husband off life support, and she turned to me (almost a stranger) and asked: "What do I do?"

    Once you leave the land of hypotheticals, the answers get a lot trickier. But if you aren't ready for that, you wish you were.

    So I think I was thinking more like a seminary professor.... ;-)

  16. Sherri3:57 PM

    RMJ, when the arguments are being ignored, when the other side doesn't care about your arguments, facts, logic, or science, all you have left is to stand up and keep saying "YOU"RE WRONG!"

  17. Sherri--

    I agree, if you are only arguing with Akin and his ilk.

    I'm thinking of the people "in the middle."

  18. Sherri6:32 PM

    It's been 40 years; are they really in the middle?

  19. I'm late to this discussion, but I stand solidly with Sherri. I've been fighting this fight for 25 years now and trying to craft some argument or explanation that would appeal to the people "in the middle" just distracted us while the anti-choicers were out there screaming about "babies!" and waving around pictures of bloody aborted fetuses. They went straight for the gut--and, for all intents and purposes, they won. Almost 90% of the counties in this country do not have an abortion provider. The number of healthcare professionals who are trained to do abortions and *will* perform them is low and shrinking, thanks to the acts of terrorism to which they are subject if they do.

    You cannot argue with terrorists--and that is what the anti-choicers have become. You have to rout them.

    As for rape, we need to move toward a standard of "enthusiastic consent." Unless the people involved can explicitly state "Yes, I want to have sexual relations with you" (and specify what the limits are, if any), consent has not been given. People who are drunk or high cannot give consent. Neither can people who are asleep or underage.

    It's pretty simple, really. And I can already hear the howls of protest by men who will scream "Do I have to ask 'May I touch your breast now?'' every time I want to get intimate with a woman" And my answer is: "Yes. What's your problem with being sure that the person you're with wants you to do that? Unless, of course, you are a rapist yourself...."