Okay, there’ve been some ugly threads on this topic of late, and I have no intention of simply providing another forum for the fighting. But there’s been one point, made repeatedly, that I have to challenge: several posters have reacted skeptically to any definition of rape that reaches beyond the standard conception of violent, forcible penetration. In particular, these posters–I can dig up the cites if y’all like–have played down the notion that diminished capacity (due to alcohol, say) might lead to rape by saying, “Well, what if they’re both drunk? Would they be raping each other?” Far be it for me to contest this sparkling display of rhetorical skill–every time I read this, however, I have a fairly simple thought that might cut through the bullshit regarding whether some act of less-than-perfectly-consensual sex was or was not rape:
If the person initiating sex knows or should reasonably know that his/her partner probably wouldn’t or doesn’t want to be engaging in the activity, this is rape. This should be a no-brainer. So two drunk college kids, their judgment equally impaired–not rape if the guy knew no better than the girl. A drunk college guy deliberately taking advantage of a passed-out college girl (“taking advantage” signifying, by definition, a perceived opportunity to do something they might not otherwise be able to)–how can this not be rape? Same thing goes for potential instances of relationship rape: if a husband doesn’t think his wife wants to have sex at a given moment but has sex with her anyway, this is rape.
Does this definition help clarify at all? Is it pernicious in ways that I’m not at the moment seeing?
For someone who doesn’t want to start up another fight, you use some pretty confrontational language.
My point all along has been that I don’t really care how you define rape, as long as you do so. If you want to define “rape” as any sexual act that occurs without the express consent of the U.N. Security Council, that’s fine with me. However, you need to be upfront about the precise definition you are using. That way, when you say “One in four women will be raped during their college careers!” I’ll understand what it is you’re actually saying.
Your definition is OK, as it goes. I think, however, that the grey area in the conduct you are discussing is pretty large. Sure, if someone is out cold, having sexual intercourse with them would be rape, not to mention pretty boring. However, you can be pretty far out of it but still actively “cooperating.” Do you think this ought to be rape under your definition
It also seems like your definition might let drunken guys off the hook. If his judgment is impaired he might not “know” that there was no consent, even though he would if sober.
Finally, your definition would be pretty hard to gather statistics on! So, while it might work as a philosophical definition, it might not work as a practical one for conducting studies and surveys.
Then should most men “reasonably” assume that women will have second thoughts later and accuse them of rape? Or that women will come with you into your bedroom and yet it cannot “reasonably” be assumed that there will be sexual intercourse involved?
I’m just wondering, because by those two above “reasonable” criterion, Mike Tyson is innocent of rape.
Nothing about rape can possibly be “reasonable”. It either is or it isn’t, and that’s a matter of consent, which in many cases cannot be “reasonably” determined.
The best definition of rape that I’ve heard came from the women’s center counseler at my college. She said "Rape is forcible penetration involving the sexual organs of at least one party when one is unable to resist (which includes violence, extreme incompasitation, and threats).
So if you are simply drunk but you say “yes” or are reasonably capable of resisiting, it’s not rape. But if you are incapacitated to the point that you cannot consent, or if you are held down in some way, or if you are otherwise unable to resist- it’s rape.
I think “probably wouldn’t” is problematic because whether a person would or wouldn’t can be fairly fluid. What is the standard for determining whether they probably would or wouldn’t? Is it that they wouldn’t wake up on a Sunday and want to sleep with person X?
If two people watch a romantic movie, for instance, and that puts somebody in a frame of mind they normally wouldn’t be in they might sleep with a person they would not sleep with after watching a football game.
I agree with even sven , any definition of rape must surely convey the inability to resist. The whole point is that rape is, at least from one side, a non-consenting activity which is forced upon one person at the behest of another.
Also, I think that the ‘drunken students’ scenario is always going to be a problem. To some people taking advantage of someone who’s passed out drunk is going to be every bit as bad as rape, whereas to others it’s just one of those things that happens when you’re drunk, and the fact that you’re drunk is sufficiently mitigating circumstances.
"Oh, for heaven’s sake - the kids have been impossible since they got home, Shirley called in sick and I had to cover for her at work, then when I got home my sister is on the phone kvetching about her asshole boyfriend again, I’ve done two loads of laundry and I think the brakes are going out on the car - now he wants sex!
Fine - go ahead, but don’t expect much fireworks - I have to get up in the morning."
Is this rape?
“We’ve been dating for a month, and I am afraid if I don’t he’ll dump me. I suppose we better…”
Is this rape?
“Well, I don’t really like it that way, but it is your birthday, so…”
Is this rape?
I don’t think you can ever eliminate ambiguity from the mating dance.
I don’t see how this definition includes threats. Being threatened doesn’t make you unable to resist. It might make you unwilling to resist because of the probable consequences, but unwilling and unable are two different things.
I agree with this. And let me say that I’m not proposing my definition as a legal standard; determining whether someone “reasonably should have known” that someone didn’t want to sleep with them is problematic in all but the clearest of circumstances. But at the same time, there’s a judgment call involved here that really isn’t all that hard: if the guy thinks the girl doesn’t want to have sex (read as: is in some meaningful way not consenting) and yet does it anyway, he is–as far as his own judgment and/or conscience should be concerned–effectively raping her. In this way, Shodan’s hypotheticals are inapposite–I’m not concerned with the woman’s inner monologue, but with the man’s.
I hadn’t planned on posting to this subject until I read the statement:
Under that line of thinking, people being mugged who choose to give up their money rather than get shot, are agreeing to the robbery. There are consequences, that’s true. A gun being pointed at your head tells you what those consequences might be.
In the same way, women are usually smaller than men. Being told that they will be beaten if they don’t submit is an honest threat. I know that people often say that a woman should have done some things like scream or try to fight them off, but how realistic is that? Making a loud noise could cause a punch in the face or worse. Fighting them off may not be possible.
Whoops. Christ. I posted agreement without reading carefully enough. I agree with desroscactus’s criticism of Smitty’s post. …And yet I do think sex under threat constitutes rape, whether the woman is, technically speaking, unable or unwilling. This is why we should place greater weight on whether or not the man knows or should know that the woman doesn’t want to.
As others have said, this doesn’t deal with being afraid of resisting.
I would amend to ‘unable or unwilling to resist’ myself.
I expect that some would say that this requires mind-reading on the part of the penetrating party. “How was I supposed to know she was unwilling to resist?”
I suppose that’s true to some degree… reasonable people could differ about whether the penetrating party should have known.
On the other hand, you’re either an idiot or you’re not. If you’re not an idiot, you probably should have picked up on the body language and social cues that the penetration was unwelcome-- rape.
I find this to be not only an intuitively correct criterion, but a rather workable one in practice. The “threat” factor has wiggle room, but such is life.
Why do you want to classify acts as being rape or not rape? The answer must be to punish those who commit rape. Unless you want to punish the husband in the sleepy wife/horny husband scenario the same as the man in the gun to the head scenario, it is simply not useful to call them both “rape”
Any definition must indicate a desire to treat all behavior that is covered by the definition equally. Convicition of rape equals mandatory 5-15 years of prison (or whatever the current sentancing guidelines say). Decide what behavior you want to punish, and form your definition around that.
If you think sleepy wife/horny husband is criminal, but not as criminal, then propose a new crime to fit your sensibility (2nd degree rape?) and subject it to the review of the boards. However, it is inappropriate to lump both actions into the same definition unless you are willing to punish the actors the same.
Oh, please. No means No and Yes means No, isn’t that what you’re trying to say?
That how a woman feels about her sexual misadventures after she’s sobered up enough to recall them is the standard by which she can retroactively declare her participation to be involuntary? Or was it consensual only to the extent a blood-alcohol test can prove her partner was equally schnockered? If he turned down that last Bacardi and Coke but she didn’t, their one-night-stand was actually a rape?
I don’t know what’s up with all the rape threads lately, but it’s obvious why they’re so contentious. One can’t claim they were victims of a savage assault just because they regret being a slut the next morning.
If a woman is blind and says “yes” to a night of hot sex with the Elephant Man, that doesn’t mean he raped her even if he took advantage of the fact she can’t see to evade being rejected for his looks.
It’s the mythical epidemic of remorseful women claiming rape once they sober up - that might be why the threads become contentious.
But I don’t see how drinking necessarily removes the ability to consent or resist - the burden of proof still being on the alleged victim to prove incapacitation - so even sven’s definition is still a good one.
a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.
(the definition in Tanzania)
Sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:
a) When the victim is overcome by force or fear
A) When the victim is unconscious or physically powerless; or
B) When the victim is incapable of giving consent because the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known to the offender or reasonably apparent to the offender.
I’m more interested in an ethical definition than a legal one.
Why assume this? I’d like to walk around with a clear conscience, myself. I’d like to know when the boundary of rape is crossed, so I don’t cross it, not so I can get away with it legally.