On Display: Clothing, Breasts, and Power »« Dangerous Creatures

U.S. Rape Counts About to Increase

The FBI, responsible for aggregating U.S. crime statistics, is finally about to update its nearly century-old definition of rape:

Activists have been pushing for a new definition for years, but the issue went into high gear in February, after Representative Chris Smith (R-New Jersey) attempted to make women who hadn’t been raped “forcibly” pay for their abortions out of pocket.  The proposed new definition is far more to the advocates’ liking, and far closer to reality: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

This is a vast improvement over the current definition: “Forcible rape, as defined in the FBI’s Uniform Crime Reporting (UCR) Program, is the carnal knowledge of a female forcibly and against her will.” This changes the definition to unpack the euphemistically vague “carnal knowledge,” allows for coercion or incapacity instead of simple force, and puts the emphasis on consent rather than a requirement to say, “No.”

Most importantly, this definition no longer excludes men, though it still has problems in this respect. Men can be coerced too, and the emphasis on receptive penetration excludes that. Because this definition is used primarily for statistical purposes, and this type of rape appears to represent a very small percentage of rape victims, this oversight likely won’t affect the final numbers. However, the last thing we really want to do is tell a rape victim he doesn’t count. Also, as Rep. Smith demonstrated, this national definition of rape is used for purposes of moral authority as well.

Still, as much as I want that addition, I’d like to see the proposed improvements go into effect as soon as possible. I want the real numbers of what is being reported to police. (State laws have been updated much more recently than the FBI definition. As a result, the FBI doesn’t directly count the numbers from several places.) I want people to be able to compare reporting sites and find those anomalous cities that may be artificially lowering their rape statistics.

Most of all, though, I want us, as a nation, to stop telling anyone that their rape doesn’t count.

Comments

  1. D. C. Sessions says

    “Sexual contact including but not limited to <enumeration> without the informed consent of all parties.”

    Please recall that although it may be vanishingly rare, “rape” also applies to situations where neither of the principals consent. I’m thinking, to pick just one situation, of two minors being coerced into performing for watchers.

  2. Anonymous says

    Wow, thanks for writing this.  Sadly, from personal experience (on the receiving end) I’m very aware of the difference between “saying no” which I didn’t do, and “not consenting” which was definitely how I felt at the time.

    Being male, I think it’s pretty tough to fight the “of course you want it” social stereotype.

    Of course I don’t want to minimize the huge difference between that kind of experience and being physically coerced or threatened, so I still wonder if we should really be using the same word for all these things, but it’s still valuable to me to have my experience validated in some way.

  3. scenario says

    I agree this is a much better definition. Without consent covers a lot of situation that against her will does not, i.e. the victim passed out.

    I’m just curious, what is the definition of coercion? I’ve read people who said it was coercion if a person asked their partner for sex twice in a three day period. I believe that coercion must have a higher threshold than just rude behavior.

  4. leftwingfox says

    @scenario #4:

    Coercion is any attempt too remove an individual’s autonomy from the decision. Explicit or implied threats, harassment, or bribes, attempted intoxication, incapacitation, captivity. I’m probably missing a few.

    As to your “Twice in three days”, I could see contexts where that would be harassment or implied threat/bribe (i.e. coming from a superior or stranger, as opposed to a partner, or pushing established boundaries previously set in the relationship).

    This is why “enthusiastic consent” is a much better model for a sexual relationship. Much less ambiguous. Much more respectful. Much more fun.

  5. Clarence says

    “Coercion is any attempt too remove an individual’s autonomy from the decision. Explicit or implied threats, harassment, or bribes, attempted intoxication, incapacitation, captivity. I’m probably missing a few. ”

    So, let’s see. If someone is in a relationship, and they have not had any sex in say, 2 weeks, and they decide that if their sexual needs will not be met in some way they will leave the relationship and they make this known – this is rape?

    You might want to rethink your definition of coercion.

  6. D. C. Sessions says

    You might want to rethink your definition of coercion.

    If mathematics cannot set up a system which is both complete and consistent, you’d best give up on creating a moral/legal one which is.

  7. says

    Clarence, if the only thing threatened in that scenario is the relationship, no, it’s probably not rape. At that point, it’s not much of a threat. Go already.

    If, say, someone’s financial security relies on being in that relationship, however, that is a rather different situation, with a real threat. Are you suggesting that “Have sex with me or starve” shouldn’t be considered rape?

  8. julian says

    If, say, someone’s financial security relies on being in that relationship, however, that is a rather different situation, with a real threat. Are you suggesting that “Have sex with me or starve” shouldn’t be considered rape?

    Reading this really drives home just how abusive relationships here in the West were (and are around the world) when women had no options. Stay with this man, let him do whatever he wants to you or you can starve (or be stoned.)

    Not much of an option.

    I have a question, supposing your scenario were taking place here in the US, would you expect there to be a history of emotional and physical abuse involved? The demand does not sound like something that two even incredibly frustrated with each other partners would say.

  9. Clarence says

    “Have sex with me or starve”?

    This – to put it bluntly- isn’t even possible in the US.
    So no, I don’t recognize “financial coercion” as rape. And yes, I’m going to defend it not being rape. Keep up with this crap, and you’ll reduce the seriousness of rape.

  10. julian says

    This – to put it bluntly- isn’t even possible in the US.

    What does that have to do with anything? Supposing I held an empty gun to your hand and said “Give me your wallet!” is the coercion minimized because I can’t go through with my threat?

  11. Clarence says

    Julian:

    If I knew the gun was empty?!! How is that a threat?!

    Seriously, show me a situation where a woman is in a situation in the US (that is not illegal!) in which she would have to have sex or starve. Heck, show me an example where a man would be in that situation.

  12. Kiwi Sauce says

    Clarence @10

    Yes that threat is still possible in western countries, where an abused partner hands over all their income to the abusive partner.

  13. julian says

    If I knew the gun was empty?!!

    Ok, I see I didn’t make my point very well.

    Whether someone has the ability to carry out a threat is irrelevant to the power they have over a certain individual. Look at emotional abuse cases where a partner conditions another to be entirely obedient and fearful of them even if the partner is capable of ‘fighting back.’

    Or did they all consent to being abused?

  14. Clarence says

    Julian:

    Attempting to bring power differentials into the definition of rape is problematic in and of itself. An additional complication is that power (of all forms) IS often dependent on the ability or perceived ability to carry out a threat.

    I’m afraid what I’m saying to you is that financial coercion is not a serious threat to life or limb in the US except for some people in the area of healthcare. Thus, I cannot say that someone who is “coerced” into having sex because they don’t want to lose their gold card has been raped.

    Of course that sort of ignores the fact that “coercion” is often in the eye of the beholder in the first place. I’m mostly down with the new FBI definition of rape, I’m not anxious to expand it.

  15. B-Lar says

    “So, let’s see. If someone is in a relationship, and they have not had any sex in say, 2 weeks, and they decide that if their sexual needs will not be met in some way they will leave the relationship and they make this known – this is rape?”

    Clarence, If their sexual needs are not being met by their partner then it is neither parties fault. The relationship is not fullfilling to both parties, so the relationship should end or be redefined. If your hypothetical person decides that their desire for sex outweighs their partners desire to not have sex and issues the ultimatum with the intent not of resolving the issue, but of “getting some sex” then they are using coercion and are entering the mindset of rapist. This person can be male or female.

    This is not really feasible to legislate for however, so theres not much to talk about legally here. The legal side and the social conscience side of the issue will never truly match up.

  16. says

    Attempting to bring power differentials into the definition of rape is problematic in and of itself.

    Actually, that’s exactly what rape is about. You’re just having a discussion about which power differentials “count.”

  17. says

    I’d be happy to explain, Clarence, but I’m not sure what you’re having trouble with. How would even the old definition of rape not include a power differential?

  18. Clarence says

    The old definition of rape included FORCE or the threat of force. It also (and for the most part still does, even today legally) include the concept of “mens rea” that is the “intent” to commit a crime.

    Allowing consent to be overturned due to “coercion” when it is awkwardly defined as most on here seem to want it is a much looser standard and in some cases I think TOO loose.

  19. julian says

    Allowing consent to be overturned due to “coercion” when it is awkwardly defined as most on here seem to want it is a much looser standard and in some cases I think TOO loose.

    Ok.

    How do you consent to something you have little to no say in? Or, better yet, why should ‘consent’ gained through intimidation, harassment and threats count as consent?

  20. D. C. Sessions says

    Are you suggesting that “Have sex with me or starve” shouldn’t be considered rape?

    Stephanie, this time it’s you I’m going to caution about trying to create neat bright lines in a situation as messy as human relations. There simply won’t ever be an unambiguous definition that covers all cases without producing clearly wrong answers. We can’t do it in mathematics, for crying out loud! Humans are messy.

    The example above is, in effect, saying that economics is out of the question — and I don’t see a stopping point short of “everything is rape unless all that’s involved is mutual sexual/emotional satisfaction.” Which, IMHO, covers so many examples of clearly mutually beneficial relationships that I can’t gag it down.

    I am, personally, not comfortable with an equivalence between:
    * You are starving. I tell you I’ll pay you to spend a day at hard labor.
    * You are starving. I tell you I’ll pay you to blow me.

    But I’m also not comfortable calling the second case “rape” despite the fact that it involves a seriously asymmetrical negotiation.

    Maybe we need some more categories of “objectionable sexual relationships that aren’t precisely rape.” I don’t know — but I don’t trust simple answers, either, outside of fairly bright lines like “consent.” (Do recall that I do a fair bit of emergency medicine and “consent” isn’t all that clear there either.)

  21. julian says

    @D.C. Sessions

    If two acts can cause similar damage and are wrong for basically the same reasons, why’s it objectionable to put them in the same category?

    In ‘you’re starving…blow me’ someone’s well being is being held ransom for sexual favors. In ‘I’ve got a knife…blow me’ someone’s well being is being held ransom for sexual favors. I don’t see why it’s wrong to put them under the same header.

    (Although, like I’ve said, new to this so I’m likely missing a lot whenever I comment.)

  22. D. C. Sessions says

    And so you object to offering someone a job because they really, really need it? I’m not denying the asymmetry in the two negotiating positions; I’m observing that we’re projecting our cultural bias against sex work onto that situation.

    Which may be, in some absolute sense, valid. Or it may just be a projection of our baggage from a culture that’s seriously disfunctional about sex. Precisely because I can’t sort out my own biases on the matter, I’m inclined to distrust the answers that seem right to me.

  23. rwahrens says

    D.C.,

    It sounds as of you are assuming that the “victim” in the above example is a sex worker.

    “I’m observing that we’re projecting our cultural bias against sex work onto that situation.”

    I think the idea that a women (or a man) placed into the position of giving a blow job (or any sex act) or giving up the prospect of financial assistance is troubling, to say the least. In either case, the threat of harm (whether actual with a knife or financial by withholding money) is a similar attempt at coercion. The difference is merely one of degree.

    Put this case into the scenario of an office, where a worker is placed into the position of having to have sex with the boss or get fired. In this day and age, the least that boss has coming to him is a charge of sexual harassment, and in some jurisdictions may also face rape charges.

    Coercion is coercion, and the amount and degree of violence is relative to the victim and the situation, but the potential harm is just as serious regardless.

    Either situation is wrong and begs some form of correction against the perpetrator.

  24. Clarence says

    I don’t know about anyone else here, but I only consider it coercion when your life or limb or someone elses life or limb is threatened and you thus have no other choice than to comply. Rape IS about taking away choice. There’s no guarantee in life that all your choices will be flowers and unicorns and rainbows, sometimes you just have to choose the best of a bad situation. It’s the REMOVAL of choice that makes it rape.

    That doesn’t mean that the boss in the SH example above doesn’t deserve to be punished for SH , it does mean I consider it unjust to charge him or her as a rapist as he or she had no power to absolutely bar one’s choice. There are lots of types of sexual acts that fall under the terms “sexual assault” or “sexual harrasment” that I don’t and the law doesn’t consider rape. There are even some skeevy things (such as having sex with an intoxicated woman or man -not a passed out drunk one, not one with a single drink in her or his system- when you are not drunk yourself) that I don’t feel should be considered rape.
    We don’t allow drunk drivers to claim they shouldn’t be held responsible due to consumption of alcohol for their poor decision to get in a car, I don’t see why we should want to allow drunken people an exception to cry “rape” for sex they had with someone they can’t stand when they wake up in the morning.

    This stuff gets complicated, but the fact is the consequences of being convicted of rape justly or unjustly are devastating, and yet most people aren’t in favor of lessening the punishments.

  25. D. C. Sessions says

    It sounds as of you are assuming that the “victim” in the above example is a sex worker.

    No, just being offered a temporary job as one. I was explicitly comparing the offer to a similar offer for manual labor. If the former is coercion, so is the latter — no? [1]

    Bottom line: the ethical issues aren’t all bright-line clear, and they get muddied by cultural baggage which makes it hard for us to sort out what’s principled and what’s projection.

    [1] Well, maybe yes and maybe no. You can argue that sexual “services” are fundamentally different from others such as digging trenches. And given the emotional valence sex has, that may be an important distinction. But in that case, you’re going to have to work out the specifics of how that alters otherwise normal rules for common transactions.

  26. Clarence says

    Julian:
    “Ok.

    How do you consent to something you have little to no say in? Or, better yet, why should ‘consent’ gained through intimidation, harassment and threats count as consent?”

    Let’s think this small paragraph through. First, if you have “no say”, you aren’t consenting. It’s when you have an unequal bargaining position where me and you are , at least somewhat, disagreeing. People are rarely in a perfectly equal bargaining position is one thing I would say to you.
    Now for the second part: I would think one would have to define terms again. For one, what is “intimidation”? I can be intimidated simply because I see a big apathetic man nearby (I’m 5’8 and not particularly athletic). He doesn’t have to do anything or be any kind of bad person or asshole – his very presence can be intimidating. So let’s try to apply this to rape law. Perhaps we could assume that anytime the partners have a significant difference of height or weight or musculature there is intimidation (even if unintentional) involved? Where would that lead? I doubt anywhere good, or fair.
    And if you mean active intimidation -well, what’s the difference between “active intimidation” (such as a deliberate glare or invasion of personal space) and a “threat”? Then there is “harassment”. That too, is often dicey, and would be difficult to define in any unambiguous terms.

    Rape is a serious crime. It’s not a misdemeanor level crime. It’s not something you go before a Judge and she gives you 20 hours of community service and a referral to a counselor for. It’s something that one SHOULD have some pretty clear brightline rules about. “No means no”. Don’t have sex with a passed out woman or man.Don’t use physical force. Don’t make threats of physical force. That sort of thing. Making the definition of rape dependent on a bunch of ambiguous words and concepts totally cheapens the word “rape”. I know if I’m on some jury, I am not convicting someone of rape due to some nebulous concept of harassment, which, as I’ve found from years of reading opinions and working in various offices is something that is often in the eye of the beholder.

  27. Clarence says

    OMG. LOL.
    I meant “athletic” not apathetic. LOL! That was a pathetic sentence. I wish I had remembered to “preview” first.

  28. rwahrens says

    D.C.,

    I’d agree IF we were talking about a sex worker. Then the two situations would be identical, assuming the labor offer was being made to someone with those skills and abilities, and not forced on someone with say, a physical disability.

    But the very fact of sex being involved, yes, that carries with it some baggage, not the least of which is the fact that our society is now beginning to consider situations of unequal power to be an unacceptable kind of coersion.

    Is that serious enough to be called rape?

    Let’s ask the ladies, I don’t feel qualified to give a definitive answer to that one, but my own feeling is that it is damn close, and even if not, it sure as hell warrants a separate classification of its own.

    I only know that if it were to happen to me, I’d be hard put to call it anything else. Coercion is, regardless of Clarence’s definition, a situation where one is forced to make a choice between two unpalatable outcomes, either of which is not something you would normally consent to. It is the very nature of what it is that makes it bad.

    If I am given a choice between something bad and something good, obviously, I can give informed consent if I choose the bad thing, as I am giving up a choice that I would have not objected to.

    But to be “given” a choice between two things, both of which are harmful to me in some way and both of which I would not normally consent to, then choice has been taken from me, as I am being told that one of the two “choices” are going to happen to me regardless!

    One can argue semantics and one can argue matters of degree, but it is undeniable that in this kind of situation, the choice between giving consent and withholding it is really no choice at all, so your “consent” is being forced just as if a knife were being held to your throat! The fact that the alternative may be financial instead of physical is of no matter – it is still doing some form of violence to you.

    It’s just that for one, you don’t bleed.

  29. says

    Clarence, if you take off your clothes just because some tall, athletic guy is standing next to you, no, I’m not going to say you’ve been raped. That’s not how it actually works, though, is it? Get honest about what we’re talking about (i.e., consent), or go away. Right now, you’re just sleazing up the place.

    D. C., there will always be odd situations. There are with any kind of criminal law. Property issues within a family or romantic relationship can be particularly fraught, for example. However, we don’t try to account for every possibility when writing the laws. We do what we can and work out the rest through the criminal justice system.

    And when you’re thinking about analogies to sex work, you’re going to want to keep in mind that there is still a big difference between “Do this, and I can make something good happen for you” and “Do this, or I will make something bad happen to you.”

  30. D. C. Sessions says

    And when you’re thinking about analogies to sex work, you’re going to want to keep in mind that there is still a big difference between “Do this, and I can make something good happen for you” and “Do this, or I will make something bad happen to you.”

    Absolutely. Which is why I phrased it in terms of someone who had a pre-existing need: starvation. Potential employer offers something that the person wants (money, food) in return for something that the employer wants: (labor, sex)

    Yes, the cases can be distinguished. But I don’t trust myself to adequately account for my own history in trying to make them.

    By the way: “having to choose the lesser evil” is a really, really bad definition of “coercion.” Example: eat less, exercise more, be fat. Where is the coercion?

  31. D. C. Sessions says

    I think rwahrens covered the distinction between coercion and the lesser of two evils pretty well.

    I didn’t read it that way:

    Coercion is, regardless of Clarence’s definition, a situation where one is forced to make a choice between two unpalatable outcomes, either of which is not something you would normally consent to. It is the very nature of what it is that makes it bad.

    I just can’t buy “none of the available alternatives are ones I like” as “coercion.” The world just doesn’t work that way — says /me, who is dealing rather more than I like with medical situations where none of the alternatives are “happily ever after,” but aren’t anyone’s evildoing either. Similarly to several unemployed people I know who have the choice between doing without income or taking otherwise undesirable jobs — who is coercing them?

  32. says

    The relevant portion:

    But to be “given” a choice between two things, both of which are harmful to me in some way and both of which I would not normally consent to, then choice has been taken from me, as I am being told that one of the two “choices” are going to happen to me regardless!

    It’s the word “given” that is critical. The difference between coercion and the lesser of two evils is the creation of that unpalatable choice. Contrary to Clarence’s little wide-eyed scenario, when we’re talking rape, we’re talking about an “unpalatable choice” that is created by the rapist.

  33. rwahrens says

    “…a situation where one is forced to make a choice…”

    Look, don’t be dense. That obviously means where SOMEONE is forcing that choice upon you in order to make you do something you otherwise wouldn’t do, such as consent to sex with that person, or not struggle when being raped. Something THEY want to DO to you, but they want at least your acquiescence, if not active cooperation.

    Not a situation where one is being presented with unpalatable life choices about dying of cancer now or in six months.

    This conversation is about rape, and that is most definitely someone’s evil-doing!

  34. says

    It’s not that “none of the available alternatives are ones I like”. It’s that one party manipulated the situation so none of the palatable alternatives are available, or they’re making the one palatable alternative contingent on a very unpalatable action.

  35. Clarence says

    Stephanie Zvan:
    If you have an argument, you can make it.
    If you want to try to debate me on consent (which you really can’t discuss without discussion of such things as coercion, what sexual standard you want to hold people to and etc.)I’m fully capable and ready to have that discussion.
    If instead you want to deal with threats and ad homs, that’s fine too. I’m not about to “pollute” your blog with questions and discourse you do not want. But I would rather think that preaching to the choir would be boring, esp. on “free thought” blogs.

  36. says

    I think she did wage an argument, Clarence. In fact, she eviscerated it as being intentionally dishonest about the actual issues with your example. She pointed out that consent doesn’t work that way, because it doesn’t. It simply doesn’t.

    That she also, at the same time, said you’re sleazing up the place with your intellectually mendacious arguments does not equate to an ad hominem. Learn what constitutes an ad hominem before using the term again.

    I’d love to see what “threat” she made. Was it “go away”? Are you really threatened by someone telling you to go away if you don’t want to argue a topic honestly?

    Kudos, also, for the “zomg I’m not free to think stupid things on freethought blogs!” gambit. You’re perfectly free to think them. You will get rightly smacked down using words (e.g. other people’s “free thought”), until you prove too trollish for reasonable discourse. At which point you’ll likely get punted. Discussing adult situations with other adults requires a certain level of maturity and if you can’t exhibit that level of maturity, you’ll get excluded from the discourse.

  37. Clarence says

    Jason:
    You have used the word “mendacious” to describe my argument. Could you please point out a section of my argument that fits that description? “consent doesn’t work that way because it just doesn’t”? You call THIS an argument and talk to me about “adult” argumentation? The irony is hilarious.

    Let me put it to you and her quite bluntly. I believe I know more about the laws, memes, and history of rape than both you and she put together. I believe I am the expert here on this subject. So far, rather than prove me wrong, you have resulted to ad hom attacks. This doesn’t show anything good about either your intentions or your intelligence. Put up (show me with a reasoned argument where my questions or assumptions are wrong) or shut up. Or prepare to be ignored. I’d probably prefer talking to Stephanie anyway as she seems the more intelligent of the two of you.

  38. julian says

    Similarly to several unemployed people I know who have the choice between doing without income or taking otherwise undesirable jobs — who is coercing them?

    I’m not sure I understand.

    In the given scenario an individual is desperate for food and chooses to go out and find work, even if that work is unpalatable.

    In the rape scenario someone is being approached for sex and their desperation is being used by the approacher to remind them if they don’t play along they’ll starve.

    To me those are two very different situations.

    Now I agree there’s nothing wrong with sex work and I agree there’s nothing wrong with offering someone a job but I don’t see how you can work around using someone’s desperation to pressure them into ‘agree’ isn’t coercion.

  39. says

    Perhaps we could assume that anytime the partners have a significant difference of height or weight or musculature there is intimidation (even if unintentional) involved? Where would that lead? I doubt anywhere good, or fair.

    That’s, frankly said, nonsense.
    In most heterosexual relationship the man is physical capable of hurting and raping the woman. I’m not small, I have a lot of body mass (to put it politely), I also have a lot of strength, especially in my arms. But I know that unless I managed to kick him in the balls by luck, my husband would be able to overpower and rape me.
    That doesn’t mean that he intimidates me with his physical presence. It doesn’t mean that I’m afraid to say “no” to his sexual advances.
    And do you know why’s that?
    Because I’m very sure that he accepts no and that my consent and pleasure are of utmost importance to him.
    It’s commonly called a relationship.
    If, in a relationship, one partner wields a much greater power, be it economical or physical than the other one, it is the responsibility of the stronger one to pay extra attention to the weaker one’s wishes and desires, making sure the weaker one doesn’t consent out of fear. That is, of course, a moral guideline, not a legal one.

    Regarding the “sex or starve” scenario
    German legal definition includes “Ausnutzung einer Notlage, in der das Opfer dem Täter schutzlos ausgeliefert ist” (making use of a state of emergency in which the victim is at the mercy of the perpetrator without protection).
    Which mean that there are several factors to consider in the scenario:
    state of emergency: that is obvious, I think
    at the mercy of the other person and without protection depends, and I think that’s where the rubber hits the road: is this the only person to give you food? Is there somewhere else you can go instead and mow the lawn?
    To bring up another hypothetical scenario:
    If you’re hanging over a cliff, and your hands are getting sweaty, and somebody comes along and offers you help but only if you give them all your money, is that person a robber?

  40. D. C. Sessions says

    It’s that one party manipulated the situation so none of the palatable alternatives are available, or they’re making the one palatable alternative contingent on a very unpalatable action.

    Thank you, Jason. I agree: the reprehensible part is the intentional creation of the situation, not the choices offered in response to it.

  41. says

    Clarence, we’re having a discussion, with or without you. The parts that are happening without you are coming to a productive understanding of coercion because we aren’t, unlike you, talking about weird hypotheticals that no one is calling rape.

    You’re welcome to join the conversation if you can be honest about what we’re talking about. If you can’t–if you’re unable, for example, to deal with the general recognition that rape can be a form of sexual harassment without ceasing to be rape–then you can take your “expertise” elsewhere. You’re not displaying it anyway.

    I am curious, though. What exactly is your background in rape that you assume you must know more than someone who’s been studying the literature since college, has done original research in the field, and has been writing about it for more than two years?

  42. rwahrens says

    D.C., I’d have to say that I think the most reprehensible part is the INTENT to commit rape. The setting up of the situation is merely part of carrying it out, and is no more or less reprehensible than the particulars of the choices offered, which are obviously as undesirable as the rapist can come up with to fit his twisted desires!

    Let’s not forget that rape is NOT a sexual act as such, but is, in actuality, an act of violence. It matters not whether the particular situation is date rape where a woman is confronted with a situation that, on the surface, lacks a threat of actual physical violence or if she is confronted by a man with a gun – it is still an act of violence intended to prove the rapist’s power over her, and it is ALWAYS a situation where her consent is not a consideration.

    Which is why sexual harassment where a women (or a man) is forced to have sex or get fired is still, in my opinion, still rape. The power differential is such that the power of giving consent is removed from the equation – the victim cannot “consent” to the act freely, because of the dire consequences involved in a refusal, similar to being threatened with a gun or a knife. It is simply a matter of degree. The choice is till removed by the rapist, since he has set the situation up specifically to force the victim into not struggling against the rape.

    The intent of the rape is not sex, but to prove and demonstrate the rapist’s power over the victim.

  43. says

    Clarence, Giliell answered your proffered scenario quite nicely, and I don’t need to rehash that territory. The question of coercion is not one regarding merely being physically intimidated by the person involved, otherwise nobody could be rightly said to enthusiastically consent to sex with someone of greater physical stature. You’re building strawpeople. You’re looking for borderline cases that might get you off for getting off. Which makes me, like Stephanie, wonder as to your background that you believe you have more understanding about the legalities of rape than either of us.

    Coercion is about removal of choices, control of the situation, so consent is given no matter how grudgingly because the alternatives look more harmful. And while I agree with rwharens that intent is necessary, I think proving intent is not always possible — in fact, seldom possible. Where it is, rape is relatively easy to prove. Where it isn’t, or where a person is merely taking advantage of the situation, it can be significantly more difficult to bring that rapist to justice.

    And again, please read about ad hominem attacks, because you don’t understand what they are. Also, you are an idiot.

  44. D. C. Sessions says

    Let’s not forget that rape is NOT a sexual act as such, but is, in actuality, an act of violence.

    You can define rape that way, or you can define rape (as above) as a question of consent. If you want both definitions to apply, you’re making a factual assertion that the two sets are identical — which is not in evidence.

    Proving intent is particularly difficult, and defining rape as an act of violence is exactly the problem that Stephanie cites to begin with.

    The digression (and I confess to having contributed) into the question of consent in the presence of asymmetrical bargaining postures is marginal, and more interesting in the abstract than in any practical application. I happen to find Talmudic discussions of marginal issues enlightening, but I will apologize to Our Gracious Hostess for indulging myself in them at the expense of focus in a more general discussion.

  45. rwahrens says

    D.C.,

    You need to go read up on rape. Regardless of the amount of real physical violence used by the rapist, RAPE IS A VIOLENT ACT. When examined psychologically, rapists always come down to a psychological need for violence and using it to prove their power over the victim. Rape is NOT a sexual act, but is an act of violence against the victim, even if it is “merely” psychological instead of physical – the violence is as real to the victim in either case, and there is NEVER consent to rape.

    The legal difficulties come in where the defense attempts to use consent as a defense in cases where there are no witnesses to prove that lack of consent. But the actuality of rape is that there is never consent, and its intent by the rapist is that of violence and power, not sex.

    Jason is right, proving intent, and thus rape, is not always possible in borderline cases, since our system still allows the defense to attack the victim. But the reality is that consent is never an option in rape.

  46. says

    D. C. and rwahrens, I don’t have time to unpack this right now, but you’re both off a bit. Yes, it is important to understand rape as both an issue of consent and an issue of violence, but that is because not all rapes or rapists are exactly alike. There is quite a bit of violent feeling toward their victims in the minds of rapists in general. However, at the same time, there are a number of ways that rapists use to self-justify their behavior (make them not the bad guys) that revolve around the issue of consent. In short, it’s not that simple.

  47. Clarence says

    I’m not sure what conversation any of you are having because none of your terms are defined either legally or philosophically. I’ve already pointed out problems with the definition of coercion used by Stephanie. No one has successfully refuted those problems. We have people bringing up the example of “grudging consent”, which is an interesting term in and of itself.

    As for my expertise in this matter, Stephanie, I’ve been doing research on my own since 1998, both legal and empirical. It is the legal aspect I’m worried about here.

  48. says

    We’ve already refined the definition of coercion Stephanie used to the point where it works for this conversation, Clarence. Your attempt to muddy the term has resulted in several sub-conversations emerging amongst the adults which has moved the conversation forward. Kindly catch up, or stay out of the conversation.

  49. Clarence says

    I want to apologize to Stephanie.
    It was leftwingfox who originally made a problematic definition of coercion way back at the beginning of the thread. I’ve been piled on so much by “adults”, that I got the posts mixed up. For that I apologize.

    But you haven’t really resolved the issue.
    “Creation of an unpalatable choice”…. I trust I don’t have to go into the problems with this? Seriously, when all you can do is replace one ambiguous term with another, I hardly think I’m the “wide-eyed” one here.

    this level of argumentation is not helpful.
    Basically with such definitions of the components of “rape” , rape becomes in the eye of the beholder.
    I call that madness.

  50. Joshua says

    Clarence,
    Isn’t “rape is in the eye of the beholder” exactly the point here?

    There are the obvious situations involving physical violence.

    There are the obvious situations involving clearly stated consent.

    And then there’s a lot of stuff in between. This definition is going to put a lot more of the activity in that region into the category of “rape”. You can say that we should have a different term for it, but if the outcome is that kids are taught to give and get clear consent before they have intercourse, I’m certainly not opposed to the idea. I certainly wouldn’t call it “madness” to say that non-consensual sex is a form of rape, even if one person thinks the other wants it. Dealing with that type of date-rape situation is exactly the point of this changing definition!

  51. says

    Yet leftwingfox’s definition is generally aligned with those pesky legal definitions. Like this one:

    Coercion generally means to impose one’s will on another by means of force or threats. Coercion may be accomplished through physical or psychological means. It may occur in a variety of contexts, such as unfair trade practices, which prohibits coercion to sell insurance in most states.

    Definitions vary by state and federal laws. For example, one state defines coercion as a crime when a person compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will cause physical injury to a person or cause damage to property.

    Or this one:

    1. Constrain or restrain by physical force or the threat of such force. See also duress and undue influence.

    2. The improper use of economic power to alter, shape, or otherwise control the actions of another.

    So much for that vaunted expertise, Clarence. Do you have anything to actually add to this conversation, or are you perpetually stuck at “Ur doin it rong!!!1!”?

  52. says

    Sorry, that was in direct response to this:

    But you haven’t really resolved the issue.
    “Creation of an unpalatable choice”…. I trust I don’t have to go into the problems with this? Seriously, when all you can do is replace one ambiguous term with another, I hardly think I’m the “wide-eyed” one here.

  53. Alukonis, metal ninja says

    Okay how about this Clarence.

    We have a husband and wife. The wife has no job and is just a homemaker. The husband owns all the property and has all the income, and controls all the bank accounts except for an “allowance” he gives his wife for her weekly shopping. Thanks to a pre-nup, she gets nothing if there is a divorce.

    “Have sex with me whenever I want it or I’ll kick you out and you can be homeless.”

    Rape y/n? She’s not going to DIE if she’s homeless; after all, plenty of homeless people are alive. She doesn’t HAVE to put up with this, it’s possible that she could find some minimum wage job somewhere, eventually, although it’s damnably difficult for homeless people to get jobs in the first place. He’s not threatening to beat her up or anything. Yet I think this is pretty obviously coercion. Do you disagree?

    (Since you had so much issue with the “starving” scenario)

  54. rwahrens says

    We have people bringing up the example of “grudging consent”, which is an interesting term in and of itself.

    Yes, it IS an interesting term, especially since you brought it up yourself, and nobody else used it in this conversation!

    Clarence, in spite of your attempts to “apologize” to our hostess, you are getting perilously close to trolling.

  55. Clarence says

    We have a husband and wife. The wife has no job and is just a homemaker. The husband owns all the property and has all the income, and controls all the bank accounts except for an “allowance” he gives his wife for her weekly shopping. Thanks to a pre-nup, she gets nothing if there is a divorce.

    “Have sex with me whenever I want it or I’ll kick you out and you can be homeless.”

    How can he legally kick her out and how can he not be in violation of a “marital rape” statute?

    I could just see the call to the cops now – “Would you remove my wife from my home? She won’t have sex with me!”.

    Sorry, but your scenerio isn’t legal.

  56. Clarence says

    Gee, Stephanie, do I have to point out that by your own links information definitions vary by state and by the area of law.
    We are talking rape law, after all (and actually proposed rape law based on proposed changes to rape statistics) and I dare say that standards of coercion are a bit lower for some of the civil crimes than the criminal ones.

    Or didn’t you know this? I specifically told you I am interested in legal definitions of these terms like “coercion” and “consent” (or more to the point PROPOSED legal definitions of these terms) so I can figure out what elements make up the crime of rape in your opinion.Given the way you fail to clarify those terms in your posts here, I’d certainly be wary of any “rape statistics” produced by you.

    I consider rape a heinous crime to which consent is impossible because one is not given a crappy choice, one is given no choice due to force or threats of force. Pretty much everything else that has been spoken about in this thread could pretty easily fall or be placed into the general sexual assault or harassment categories that most states have as part of their laws without having to be classified as rapes.

  57. rwahrens says

    Sorry, but your scenerio isn’t legal.

    Neither is rape!

    Seriously, any guy with that kind of mentality would find it trivial to engineer a scenario where his wife would be “wrong”, and with no mention of sex or sexual coercion, be able to obtain a divorce.

    Of course, this scenario is fraught with complications, including such things as where it would need to be to avoid such little annoyances (to him) of having to provide an income for his destitute wife after the divorce, etc.

    The point here is that rape ALWAYS involves coercion. Period, end of story. It is all about having and demonstrating power over the victim. Sometimes, part of the demonstration is the successful avoidance of consequences through a clever manipulation of circumstances to muddy the waters of any prosecution sufficiently to avoid a conviction.

    That said, this post is about widening the reporting of rape to include more numbers to better understand the national problem of rape, and the new definition that allows that to happen.

    I think we’ve gotten a bit off track.

  58. Alukonis, metal ninja says

    Well Clarence, at least you admitted that scenario was marital rape, which was KIND OF THE POINT. So you agree to THAT coercion being rape. Excellent, progress is made!

    Now you seem rather fixated on “force,” which is what the original definition included. What constitutes force? Does getting person A really drunk so they don’t realize what’s happening to them (a blackout situation, for example) and having sex with them while person B is totally sober constitute rape? Person B isn’t holding A down while A screams and struggles, but neither is A in a mental state to give consent. Similarly, what if A has been drugged? What if A is mentally disabled? Can you concede that those situations are also rape? Because that’s the sort of situation the expanded FBI definition is designed to now include.

  59. Clarence says

    Alukonis:

    I have already mentioned “unconscious rape” farther up the thread. The reason that is rape is that one can’t make a choice when one is unconscious, not because force was used. However, that is a single exception, and , note the important point: one couldn’t make a choice. Same with force or threats thereof. One has no choice, so it’s rape. Rapists literally don’t care whether their victims choose or not.

    Before I go any farther I want to reiterate that I DO support the proposed changes in the statistical definition of rape that were presented to the FBI recently. In the future, I’d even go along with another clause adding “envelopment” as a feature of rape. But I draw the line apparently WELL ahead of many of the people on this thread who apparently think it would be easy peasy and fair to adopt “yes means yes” as not only a societal standard for good sex (which I can support) but a legal standard without
    A. Defining their terms for things such as consent and coercions which DO make up parts of the legal definition of rape
    B. Thinking through about just what they are asking jurors to do given that I’m sure that no one here wants to lessen penalties on “rapists”, and yes, those quotes are deliberate. When I can’t figure out what the elements of the crime are, it’s going to be hard for me to convict some gal or guy for that crime. There are lots of things I consider skeevy and would never do myself, but that doesn’t mean I feel they should be punished the same way we punish rapists when we convict them.

    Now maybe I’ve misunderstood something. But that’s pretty easy to do when fully half the posts to me consist of either calling me stupid or a troll or implying I support all forms of sexual coercion just because I don’t wish to classify some things like that as rapes.

  60. D. C. Sessions says

    Coercion generally means to impose one’s will on another by means of force or threats.

    Coercion is one way that consent can be invalidated. Another is deception — lack of sufficient knowledge. That’s why we often qualify “consent” with “informed.”

    An obvious exception to the “informed” qualifier would be STD status. And, no, condoms don’t moot the question (think scabies, to pick an example, or HPV prior to cunnilingus.)

    Others that we take for granted include “competence.” Which is where minors come in, or for that matter someone temporarily incapacitated by drugs, disease, accident, etc.

    And, yes, there is a point where the disparity of negotiating power shades over into “exploitation.” This falls outside of Jason’s “creating a situation” and into the German reference: even if I had no part in creating someone’s desperate situation (out of water in the Arizona desert, for instance) there are limits to what I can demand in return for rendering aid (e.g. title to your car.) US law (IANAL) generally treats this as the “unconscionable terms” exception to contracts — which are, basically, formalizations of consent.

    Another, by the way, is “illegal.” Which in the USA would make invalidate consent to engage in sex for pay, aka prostitution [1]. That’s a thorny subject for many of us for a lot of reasons that aren’t really germane to this topic.

    Anyway, for all of the reasons stated, “consent” is a pretty strong requirement and requiring it is much stronger than the older approach of, essentially, saying that sex is OK with only narrow exceptions such as “violence sufficient to show the injuries to the jury.”

    [1] For some reason this is rarely prosecuted as rape — I wonder why [/sarcasm].

  61. Clarence says

    D.C. Sessions:

    Fascinating.

    So if I haven’t been tested (or it’s not time to test so I don’t know, or hell, I’m ignorant of STD stuff) and I’m asked if I’m clean and I in good faith say “yes”, and it turns out “no”, then I’ve committed rape?

    Just clarifying. I’m trying to see if you want to add the elements in your post @1:55 to rape law? I will say that if so we suddenly need to build jail cells for millions if not tens of millions of more men and women.

  62. rwahrens says

    …and I in good faith say “yes”, and it turns out “no”, then I’ve committed rape?

    There’s where intent comes in, but I think in some jurisdictions it would fall under the terms of assault, not rape.

    So your lack of knowledge about your condition would constitute a lack of intent to assault. Only if the Prosecution could prove you had prior knowledge of your positive status (were that true) could they prove intent.

  63. Clarence says

    rwahrens:

    And I can be sympathetic towards making this kind of sex against the law. Indeed, if IRRC some people have been prosecuted for not telling their sexual partners they had AIDS. Although I am not in favor of adding this kind of thing to rape law.

    After all, where does it end? What if I tell someone I make 50 k a year and they have sex with me. Later they find out I only make 40 k a year, and they get proof (it’s a thought experiment so don’t worry about how, heck, maybe I’d admit it on the witness stand) that I knowingly deceived this person. Am I a rapist? Traditionally such situations are “buyer beware”. I’m all in favor of keeping them that way. While I’d be a big jerk if I lied egregiously to get sex, the fact is the other person is still making a choice to take me at my word. Then there’s lies of omission… it just gets to be one big mess, and literally every one of us here has probably at least unwittingly “deceived” a sexual partner. I certainly wouldn’t say a girl raped me if she had blonde hair but was wearing black hair coloring at the time we had sex. But I could make a case using these kind of rules. Maybe I only find brunettes sexy and want nothing to do with those icky blondes, but hey, I was deceived…

  64. rwahrens says

    Geez, where the hell did THAT come from?

    Personally, I’d say assault is just about where it should be, or maybe attempted murder, since HIV is often fatal. I don’t think anybody was actively proposing that the crime of omitting one’s HIV status to a potential partner would actually constitute rape.

    Again, this is losing sight of the fact that rape is an act of empowerment to the rapist. If we do want to get into the discussion of just what differentiates rape from say, fraud or assault, then yes, we can have that discussion, but it is a diversion from what this post was about, and as Stephanie says, it does trivialize the issue the way you are using it.

    I’d listen to our kind hostess, she has the power to ban you to the dungeon!

  65. Clarence says

    Stephanie:
    You haven’t yet made an argument in terms of either legal definitions of coercion or consent as applied to rape though I have repeatedly asked you, and you are trivializing rape by refusing to do so.

    Since you can’t be bothered to defend your points, I will take it that you don’t have any, and I will gladly leave you to your bullying and your choir. I will also research you on the web and make sure that I oppose any rape activism you do as I consider you dangerous not only to people falsely accused of rape (which will be much more because you haven’t yet given any standards to meet to avoid a charge) but also to the crime of rape itself which will inevitably start to carry lesser penalties because you will have trivialized it to such an extent that it wlll be next to impossible to get convictions in courts of law.

    I wish I could say it had been fun, or heck, informative in terms of rape laws or statistics, but you are neither. It has been enlightening, however, and I have discovered you are nothing but an ideologue. Don’t worry, I won’t be back.

  66. says

    Clarence, learn to count. Nowhere remotely near half of these 70 comments is bashing you. Your martyr complex is showing.

    And considering all you have is a set of border cases that might nearly invalidate a particular conception of rape, if only you tilt your head just so and squint really hard, I fully stand by my earlier assertion that you’re arguing dishonestly.

    Seriously, making your consent contingent on the person’s hair color, then when you find out they’ve lied claiming you’ve been raped? You’re just looking for ways to make a mockery of this conversation. Informed enthusiastic consent should be the standard, and there are separate laws for not disclosing your STD status (from reckless endangerment to murder, depending on the place and circumstances). This is why each violation is tried not by some textbook definition that clearly delineates exactly what counts and what doesn’t, but on each case’s merits, because if you delineate everything “just so”, people who want to rape will come along and look for the loopholes that let them do just that without being arrested for it. The non-disclosure of STD status doesn’t need to be explicitly delineated for the purposes of “informed consent”, because it’s something that people would clearly not consent to subjecting themselves to, for personal safety reasons. Your reductionist example of hair color is simply abhorrent.

  67. rwahrens says

    Heh, at this point, Clarence has revealed himself to be a troll. He’s just another dolt who comes in, touting himself as some kind of “expert”, who then spouts obvious BS and then stalks off, insulted when we don’t bow and scrape to his “expertise”!

    Good-bye, Clarence, and good riddance, we won’t miss you.

  68. says

    Don’t worry, I won’t be back.

    However will this conversation continue without your mendacity input!? Fetch my pearls, that I might clutch them!

    So anyway. Wiki has a pretty good explanation of “informed consent” as a legal term of art. To wit:

    An informed consent can be said to have been given based upon a clear appreciation and understanding of the facts, implications, and future consequences of an action. In order to give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts at the time consent is given. Impairments to reasoning and judgment which may make it impossible for someone to give informed consent include such factors as basic intellectual or emotional immaturity, high levels of stress such as PTSD or as severe mental retardation, severe mental illness, intoxication, severe sleep deprivation, Alzheimer’s disease, or being in a coma.

  69. says

    Clarence, I had a deadline to meet. It is now met.

    This post is about how the FBI counts local rape statistics in creating national statistics. It is not about changing local laws. It isn’t about how granular various local laws are or aren’t. It isn’t about whether a local offense is named “rape” or “sexual assault” or even “unlawful penetration.” It is about counting rapes under any local law.

    In fact, it is about making these federal definitions consistent between rape and other kinds of crime. The FBI calls these reports Uniform Crime Reports. The point is to see that they are–to the extent possible in a country where criminal statutes are determined at the state and local level. See the UCR definition of robbery, for example:

    The FBI’s Uniform Crime Reporting (UCR) Program defines robbery as the taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear.

    Does it spend several paragraphs saying what may or may not be a reasonable fear? Does it talk about hair-color phobias? No. It simply says that existing crime that falls under this definition is to be counted.

    In this case, we have, yes, as I noted, a number of local definitions of what constitutes coercion. We have one overarching general legal principle, however, that coerced “consent” does not meet the requirement for legal consent. Now, we have the FBI saying that when the legal standard for consent isn’t met, the crime involved, under whatever name, is to be counted as rape. This determination goes on a form, by the way, that has nothing to do with the local charges filed (or not).

    You, on the other hand, are substituting your own preference that physical safety must be involved before there is any kind of coercion. Not only does that contradict many local laws (in which you’re such an expert, although you haven’t cited a single one), but it has no support from the research on rape outcomes (in which you’re also some kind of expert). Trauma experienced by rape victims is not dependent on whether force or the threat of force was used to obtain their compliance. Your personal preferences are irrelevant.

    Also, you’re dead wrong that spouses can’t kick one another out of the house. It generally involves an order from a superior court judge as part of a divorce proceeding, but not only can it be done, you can get a sheriff to do it for you.

    Did I miss anything that wasn’t “Ooh! Eek! Slippery slope!” or unfounded assertions about what the people in this thread want to see enacted into law?

  70. Luna_the_cat says

    Also, you’re dead wrong that spouses can’t kick one another out of the house.

    In many neighbourhoods, all it takes is the person strongarming his (or her, for that matter) spouse out the door and then fetching his gun and telling her he’ll shoot her if she tries to come back in. Legal? No, of course it isn’t. BUT IT STILL HAPPENS. And in some places (especially rural ones) there may be no way for the person who was kicked out to contact police at the time, or the police may simply not take him/her seriously (a friend of mine went through some horrendous experiences in Arizona; but her husband was friends with the local sheriff, and had convinced the police that she was mentally unstable and her story not to be trusted).

    So, yeah; is “give me a blowjob or you can spend the night outside [no blanket or jacket, 40 degrees]” coercive rape? I would personally say that it is, actually.

  71. Alukonis, metal ninja says

    Ohai Clarence-

    I didn’t say “unconscious”.

    I said “blackout.”

    Possibly you have never been blackout drunk. I have! Now, there is actually a biochemical explanation for what constitutes a blackout. Basically, it has to do with competing sugar and alcohol metabolism. But long story short, someone who is blackout drunk is still walking around, apparently conscious, and yet the next day will no remember what happened.

    If you need a chemical breakdown of why this is, I will be happy to provide.

    Anyway, my point was, these are NOT repeat not situations where the person is unconscious. These are situations where the person is under the influence of an intoxicant (alcohol, cocaine, methamphetamine, whatever) OR (as I posted in comment #64) mentally disabled, and thus unable to render complete informed consent.

    To be fair, the mentally disabled qualification is quite tricky. I do not want to be mistaken as implying that mentally disabled individuals have no sex drive. However, an extra level of scrupulousness is required in such situations. Once again, enthusiastic consent (yes means yes) is the best way to judge whether such sexual activity is consensual.

    It is MY responsibility to not be a rapist. The End. I must always ask my partner if they like what I’m doing, if they want more, if this is awesome for them. My gender, and the gender of my partner, is irrelevant. Legality always will depend upon the specific case brought to court – that’s why we have judges. But if I want to avoid being a rapist, I must always ask my partner if they enjoy what I’m doing, and make sure that my partner is in no way coerced into pretending to enjoy what I’m doing to them.

    This is something all reasonable people should strive for – full and willing participation of their sexual partner.

    PS – this is why BDSM relationships have safe words, if you are into that sort of thing.

  72. Pteryxx says

    Somewhat on-topic: I came across a video about rape in Native reservations (it’s ridiculously epidemic and there’s almost no enforcement) and it mentions that major crimes on reservations fall under the jurisdiction of the FBI. I hope this means that the FBI’s updated rape definitions might improve the dismal reporting and investigation of rapes on reservations.

    Less on-topic, the video was interesting if difficult to watch, touching on topics such as inadequate enforcement, harassment of survivors, pointless protection orders, toxic masculinity and many perpetrators having been victims as children, all in a single community.

    (article with embedded video, 45 minute Vanguard episode: link)

  73. scenario says

    I agree that the change in wording is good. The old definition left out too many cases that were clearly rape.

    I asked in an earlier post what was the definition of coercion. There are many cases where it is obvious,like have sex with me or your fired. But within relationships it can be much more murky.

    Some of the people have used the term enthusiastic consent. This is a good objective to strive for but I don’t think its realistic in a long term relationship. Partner A asks partner B for sex. Partner B isn’t really interested but knows that it has been several weeks since they had sex and partner B loves Partner A so he/she willingly but not eagerly has sex. Almost no one would consider that rape but it’s not enthusiastic consent.

    Jason in post 75 gave a good definition of informed consent. I think that definition is good because it is not totally vague but is flexible enough to take in a lot of different situations.

    Blackout drunk is an interesting situation. If A is blackout drunk and makes a pass at B, who has very little experience dealing with people who are drunk and really didn’t understand how drunk A actually was, and they have sex, is it rape? I don’t believe so. But if B was feeding alcohol to A intentionally so B could take advantage of A later, yes I believe it would be rape.

    Without a good definition of coercion there are bound to be situations where one person feels coerced when the other party had no intentions of coercing them. Spouse A asks spouse B for sex. Spouse B says no. Spouse A starts crying. Spouse B feels guilty so agrees to have sex. Was spouse B coerced? If yes, was spouse B raped? I don’t believe that most people would look at it as rape, but in some situations, it could quite reasonably be considered coercion.

    I have seen posts on other blogs where people have said that if someone asks someone else for sex more than once it is coercion and therefore rape. I believe that coercion implies some sort of harm. Begging for sex repeatedly is a good reason to dump him or her but I don’t think it is coercion. Repeatedly demanding sex could easily be considered coercion, even without threats.

  74. wat says

    Alukonis

    What do you think about scenarios where both persons are intoxicated? I’m of the opinion that ANY level of intoxication on the part of one person makes sexual activity with that person unethical, and beyond some well-chosen arbitrary-but-practical point(think along the lines of DUI BAC laws) constitutes a clear case of rape, because the person is essentially diminished as a moral agent. But what about when both individuals are intoxicated? I sort of “feel” that intoxication doesn’t diminish the capacity to be responsible for offenses, but does remove one’s ability to consent to anything, from sex to business deals. I think most of us would laugh at someone who tried to defend running someone over while drunk by saying that they were incapacitated. Most of us would probably also consider a business contract signed by a drunk person to be void, right? Certainly unethical, at least. I can’t really say precisely why, or where the actual distinction lies.

    I hope I’m not breaking any of the local mores by posting this stuff. Like DC said earlier, I have a perverse interest in quibbling over details at the hazy edges.

  75. rwahrens says

    wat,

    Actually, I think that scenario is an interesting one. Obviously, like you noted, if one person is incapacitated by alcohol, we would consider them to be unable to consent, but if they BOTH are drunk?

    Damn good question, and I don’t really have a clue how to deal with that one! (Though I’d bet someone could come up with some interesting side notes about it… like if two people are blackout drunk, have sex and the girl does NOT get pregnant, did it count? Would it matter?)

  76. says

    I have repeatedly asked you, and you are trivializing rape by refusing to do so.

    Bingo!

    Since you can’t be bothered to defend your points, I will take it that you don’t have any,

    Double Bingo!!!

    I will also research you on the web and make sure that I oppose any rape activism you do as I consider you dangerous

    Triple bingo!!!! OMG!

    It has been enlightening, however, and I have discovered you are nothing but an ideologue.

    Quadrooplebingo!!!11!!

    Don’t worry, I won’t be back.

    Yes he will.

  77. says

    Greg @85: Dude, how’d you get four lines on your MRA Bingo card already?

    rwahrens and wat: I would guess it would depend entirely on whether or not one or the other legitimately felt violated by the act, and whether or not one or the other instigated the drunkenness. I’m sure the problematic legalities of both parties being blackout drunk and having sex would be hairy and difficult to prosecute, but certainly not difficult to imagine. It would depend on intent, with all the inherent difficulties to prove that any other rape case would have.

  78. says

    And if neither partner is capable of informed consent, and both are blackout drunk, they might wake up together and say, “did we do it last night?” / “Uh… I don’t remember.” / “Me neither.” At which point, I’m not sure either could really be rationally upset at the other. Embarrassed, sure. And I think in those circumstances, one of them accusing the other of rape would be devaluing the word rape, because if neither partner was capable of informed consent, both were raped by those standards.

    This is completely ignoring the fact that when you’re blackout drunk, it’s difficult to get an erection, so if “blackout drunk” sex happens, it’s far more likely that only one of you (and far more likely the girl) was actually that drunk. Alcohol’s a blood-thinner and a numbing agent. You need blood for an erection, and sensitivity to signal your body that you should have one.

  79. Alukonis, metal ninja says

    Well I was trying to make the situation relatively clear by saying one person has full mental faculties and the other does not. In cases of mutual blackout? Personally I would hope that both parties had friends around to dissuade them, because that can really be a dangerous situation, but things like that are why we have JUDGES. If either party does feel raped, they should be able to bring it before a court of law. That’s why we have a legal system. Just because both parties are intoxicated does not mean there isn’t a power dynamic present, or that the only result is maybe some embarrassment. Pregnancy is hardly the only possible consequence of unprotected sex, especially if the sex is between two males or two females!

    And Jason, please try to remember that the new expanded definition doesn’t need an erect penis for there to be rape, and that the victim does not have to be biologically female. That is kind of the point here, after all.

  80. says

    I thought the hypothetical was about two people having sex in a blackout state, so I assumed it meant penile intercourse. You’re right though, they aren’t necessarily man/woman, and they aren’t necessarily restricted to penile intercourse.

  81. says

    THERE’S a great point — we don’t just charge someone with drunk driving if while drunk-driving they hit and kill someone. We also charge them with vehicular manslaughter. So if someone is inebriated and crosses the line where they can’t tell what’s enthusiastic consent (per Stephanie’s link in 90) or not, then when they assume it’s enthusiastic consent when it’s decidedly not, they’re just as guilty of rape no matter how drunk they were. Just as the drunk driver is just as guilty of vehicular manslaughter no matter how drunk they were — the drunkenness aggravates the severity of the crime.

    The chief concerns when both are blackout drunk, then, are whether one of them feels violated, and whether the evidence would allow for a conviction. Their drunkenness would confound the judge’s adjudication of whether it was rape, but if it was found to be rape, I would suggest the drunkenness aggravates the crime’s severity just like drunk driving.

  82. scenario says

    Thank you Stephanie for the link. I did read the link when it was first posted and I read it just now and for the most part I agree with it. I know I’m not looking at typical cases. I’m looking at a few cases at the margins because cases at the margins are the one that people talk about and remember so they have a disproportionate impact on how people view rape. Bringing up someone on rape charges is already too difficult because people are concerned with irrelevant things like what she was wearing etc. We don’t need to cause any more problems with badly written laws.

    I apologize if I offended. I just can’t stand polly anna mentality that if everyone was nice the world would be perfect. The enthusiastic consent idea is one of those things that sounds too good too be true and would never work in the real world. A little toned down version might be practical.

    In Stephanie’s previous thread she said “There is no reason to ever have to turn consent into a guessing game, unless you have a partner who refuses to communicate or whom you don’t fully trust.” Lack of communication is one of the leading causes of divorce. It is very common. If people who have been married for 20 years have trouble communicating, why is it surprising that people who have known each other for a few days have problems communicating?

    Of the cases at the margin, drunken consent is one of the most difficult to me. The most common cases one person is really drunk and the other sober or near sober. This is clear cut. Don’t do it, it is rape. There is no problem with communication. If she can barely complete a sentence, she is clearly communicating, I am not capable of consenting.

    The most difficult cases to me is when the drunk person is the aggressor. Person A is drunk and Person B is sober. Can Person A coerce Person B into having sex with them and then accuse Person B of rape because he or she was drunk? Does it matter what sex person A and Person B are?

    I agree with the original post about the change in the
    FBI’s definition. It will include many crimes that should be included without adding a significant number of cases that shouldn’t. Most of the posts on this thread are off topic but how many posts on a thread with almost 100 posts are?

  83. says

    scenario, rape is part of the real world. It happens, in fact, with a great deal of frequency in the real world. If you think you have a way to change that fact without changing the real world, more power to you. Go do it.

    In fact, you can do the same thing with all your extreme hypotheticals that no rapist or rape victim actually deals with. Go find one of those cases. Once you have, however many years down the road that may be, watch the court case. Then come back and report the outcome.

  84. wat says

    So if someone is inebriated and crosses the line where they can’t tell what’s enthusiastic consent (per Stephanie’s link in 90) or not, then when they assume it’s enthusiastic consent when it’s decidedly not, they’re just as guilty of rape no matter how drunk they were. Just as the drunk driver is just as guilty of vehicular manslaughter no matter how drunk they were — the drunkenness aggravates the severity of the crime.

    I think this pretty neatly nails down where the distinction I couldn’t find earlier is. My line of thinking is that a person choosing to become inebriated is responsible for any harm they do in that state because they are responsible for considering their own possible behavioral outcomes, and for obvious reasons I don’t want to go over because it is guaranteed to attract morons, people cannot be responsible for considering possible harms to themselves on the basis that being inebriated makes them more vulnerable or less able to act as a moral agent.

    I want to also point out that I don’t think that the involvement of a penis is relevant in determining if something is rape, and I do actually go as far as saying that any sex at all with a person who is even slightly drunk is not acceptable, blackout or not. And, I’m really interested in marginal stuff not because of it’s direct applicability to the issue at hand, but because it can illustrate more general ethical principles applicable to other types of offenses, which is why I stripped out the offense specific language above.

  85. scenario says

    I read this blog because it is very intelligently written. I agree with most of the things the author says. I also agree that the borderline cases I write about rarely make it to trial. Which is how it should be. Too many cases that are indisputably rape are not brought to justice, which is wrong.

    Yes we need to change the real world. Show people the rampant sexism in the world that promotes rape. Pie in the sky solutions don’t help. On the other hand,many of the changes that Stephanie suggests are good practical suggestions.

    A lot of men are afraid of changes in the rape laws because they don’t know where the limits are. They really should know because the vast majority of cases are not even close to the edge. I’ve heard married men say that they’re glad they’re married because if they were single they would have to have a signed affidavit every time they had sex. Many people have to have very clearly defined limits. Vagueness terrifies them. You have to look at the borderline cases to set the limits. Yes it shouldn’t be that way. Take a look at some of the political candidates. There are a lot of afraid, irrational people out there who have to know exactly where the limits are.

    The only hypothetical case I mentioned in my last post was what if a really drunk person was sexually aggressive. How does the fact that the person who was incapable of consenting is the aggressor affect a potential case? Somewhat unusual, yes. Extreme hypothetical, I’m not so sure.

    One real world example of a borderline case dealing with consent happened in Georgia. I saw it on 60 minutes a few years ago. An 18 year old man had sex with a girl who was slightly more than two years younger than he was. She initiated the sex. It was recorded. As I recall, neither was drunk or incapacitated. He is now serving a 10 year sentence in prison. The law has been changed since then and what they did is no longer a crime.

    I call this a borderline case because the law was set up to protect children from older adults who would take advantage of them. A two year difference in age is not enough to assume there was an imbalance of power in the situation and the younger of the two clearly initiated the sexual act. These are the type cases that show up on TV. The borderline cases. Many people get their opinions on crime because of the unusual borderline cases, not on the more typical cases i.e. the CSI effect.

  86. Alukonis, metal ninja says

    In the instance of borderline cases, well, it’s borderline. Again, that’s why we have judges. That’s why, no matter how clear-cut we try to make laws, it does come down to evaluating the PARTICULAR circumstances of a PARTICULAR case.

    But again, the whole “signed affidavit” thing? That’s bullshit. Look, if I want to have sex with someone, I need to be able to tell the difference between “No! Don’t! Stop!” and “No, don’t stop!” Once again, it is MY responsibility to NOT be a rapist. The best way to do this is to keep asking if my partner likes what I’m doing.

    Once you get into borderline scenarios, such as statutory rape when the parties involved don’t have a problem but the parents do, or when both parties are intoxicated, etc., this requires arbitration. Again, that is why we have judges. But I think that if we train people, especially young people, to always seek out an enthusiastic “YES”, then we will go a long ways toward avoiding rape, including inadvertent rape.

    And yes, I do think that there should be a variation in charges, in similar ways to homicide (e.g. manslaughter, first degree, second degree, etc.) but FIRST, before that happens, we (as a society) need to take sexual assault and rape seriously. We must eliminate victim blaming and take cases on their merits, disregarding what past histories may be present (e.g. just because I consented to sex with someone last week doesn’t mean I consented to sex with them this week).

    AND again, this is striving for an ideal. Because ideals are what we, as humans, SHOULD strive for. We may never attain perfection, but that doesn’t mean we shouldn’t try and get as close as we can!

    Surely, there are borderline cases. And just as surely, there are people, who don’t want to be rapists, but inadvertently cross lines with their sexual partners. The best solution to this is education about how to discern whether their partners really want what they’re doing. The safest bet, if you DO NOT want to violate your partner, is to always, continually, ask.

    Once again, however, there is a different case going on with BDSM which requires safe words and sober conversations about limits beforehand.

    I’m trying to be comprehensive here, if I have erred, please feel free to correct me!

  87. julian says

    These are the type cases that show up on TV. The borderline cases.

    And that’s a huge problem. Instead basing our views on what the reality is the vast majority of cases we end up holding up that rare case and use it to dismiss all other cases.

    (I get most people deny doing this. I don’t believe them. We all do it with just about everything.)

  88. scenario says

    My basic complaint is not about anything said on this blog but on how rape is viewed in society and how this affects the prosecution of rapists. Yes the signed affidavit statement is stupid, but I hear it fairly often. Would a person with this fairly common viewpoint make a good juror?

    As a society, we need to take rape more seriously, but it can be difficult when one side is saying that date rape doesn’t exist, its just women who changed their minds and the other side says that if a woman has two drinks and is legally drunk and decides to have sex with someone, she was raped. Middle of the road, intelligent viewpoints, like most of the views in this blog are getting drowned out by the extremes. The extremes on both sides are taking over and this is bad for justice.

    There are an awful lot of people who really have no idea what consent and rape really are.

    If you think I’m off the wall, go look at the comments section on any widely publicized rape case, like the Duke case. Within hours there were hundreds of posts that said why bother having a trial they must be guilty, just throw them in jail and there were hundreds of posts saying that the woman was a stripper so she must be lying. Would it be good for society to have any of these people on juries?

    Why do I focus on borderline cases, because that is where the discussions always end up, and borderline cases are the ones most likely to be widely discussed in the media.

    An enthusiastic yes is a good thing to shoot for, especially in a new relationship. In more established relationships it is more problematic to set this as a standard. I would be really nice if all people communicated openly so this wouldn’t be an issue, but bad communication is common. Someone asks his or her partner repeatedly and all they get is an incoherent grunt. What should they assume? I’d go with do nothing but that can lead to more and more distance between the partners.

    Some people assume that subtle body language should be enough and get angry when their partner asks them with words what they want because it breaks the mood. If you know that asking him or her what they want will be likely to make them angry because they assume that you should be able to read their subtle clues, sometimes you end up guessing. Once the pattern is set, it can continue with new partners. Communication issues cause problems and sometimes lead to rape.

  89. Pteryxx says

    So fix the communication issues. Talk, ask, listen, confirm. If someone in a relationship can’t make their wishes known because they’re afraid of the other person, they’ve got deeper issues than the specifics of rape laws.

  90. says

    As a society, we need to take rape more seriously, but it can be difficult when one side is saying that date rape doesn’t exist, its just women who changed their minds and the other side says that if a woman has two drinks and is legally drunk and decides to have sex with someone, she was raped.

    I wouldn’t agree with “after 2 drinks it’s rape”, but it’s complicated.
    The thing is: communicate.
    If we’re talking about casual sex, one should always err on the side of safety. If there’s the slightest doubt that then other one might not be able to give informed consent anymore, stop.
    If the other one is still interested in some casual sex when they’re sober tomorrow, all the better. If they’re not, be glad it didn’t happen.
    If you think that maybe the alcohol is talking and not you, stop. And that goes for both of them.
    Things are differnt in long-standing relationships, that are built on mutual trust and consent.

  91. says

    What Pteryxx said. Also, I refer you, once again, to the post “Consent Is Hard.” The issue is simple. Your continual raising of those questions asked by people who would like to convince us that this is difficult is not helping anyone. Also, the next time you bring up something like this:

    the other side says that if a woman has two drinks and is legally drunk and decides to have sex with someone, she was raped

    you need to provide a citation. No straw feminists are going to be sacrificed to your “middle of the road, intelligent” viewpoint here.

  92. says

    And scenario has gone into moderation. His response was to give me an outdated Wikipedia link and quotes on the Duke rape case, meaning it was either copied from somewhere else without being checked out, or he keeps it around for some reason.

    Then he linked to an academic commentary and quoted this (partial) paragraph:

    Rape is defined by law as “the act of sexual intercourse without consent which occurs by force or by inability to consent.” When a woman is under the influence of alcohol or drugs, she is incapable of consent.

    Then he gave this quote:

    @uberbatman I disagree. Depending on the state, the fact that she was impaired by the alcohol would render her unable to give consent. It is rape, but I don’t think she has enough evidence to successfully take it to court.

    Without noting that it was in response to a question:

    He wanted to have sex, I didn’t really want to. I never said yes or no. He started kissing me, then carried me to my bed. He started taking off my clothes and went down on me. He took off his pants and was about to enter me without a condom. I told him absolutely not, get a condom on first. He resisted for like 5 minutes, promising he would pull out. I wouldn’t budge though, so he went to his car to get a condom. While he was gone, I got dressed and went to sit on my couch since I didn’t want to have sex. He came back and was a bit annoyed that I was dressed, so he took me back to my room, undressed me again, took off his pants and put the condom on. He was on top for about five minutes, then he turned me around because he wanted to do a different position. He started thrusting, and then that’s when I blacked out… I can recall very little past this point.

    The next thing I remember, I was still on all fours (or on my stomach, not sure which), and I heard him say, “See, I told you I would pull out.” I was so angry… but sadly I was too wasted to do anything. I just threw up and passed out instead.

    [...]

    Was it date rape? And if I took this to court, would I have a solid case?

    In both links, a lack of consent was clearly stipulated before anyone got to talking about alcohol. All he focuses on, however, is that someone said something that could be quote-mined. Which he so helpfully does, along with more concern about the possibility of being quote-mined.

    I’m not interested in hosting the bullshit.

  93. Al says

    The problem I still see lingering with this new definition is that it still excludes men from being the victims of rape if they are the penetrating party. Rape (at least to me) is the act of having sex with someone without their consent or against their will. The definition here still seem to preclude men from being victims of certain types of rape . For instance, women forcing a man to penetrate her vagina against his will is not considered to be rape of that man because he is the penetrating party, I don’t see any clause for rape by envelopment.

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