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If I Wrote Rape Laws

I’m a bad feminist. I shall now be researched on the web and opposed wherever I do rape activism because I trivialize rape.

I know. It came as a shock to me too. But I know it must be true because a random commenter and self-proclaimed rape expert who has, you know, been looking into things since 1998 told me so.

My crime? Well, according to his post-flounce whine, I failed to answer questions he never came out and asked about what I want rape laws to look like. On a post that was about a change to how we count existing criminal reports, not about how we charge or prosecute those claims. In a comment thread that was as much an exploration of ethics as it was anything else. Apparently talking about rape at all, however, means that I had to lay out and justify my own positions.

Well, I’m going to that–despite the douchesplainer–because I think it’s an interesting topic. What do I want rape laws to look like?

Plain and simple, I want them to look like any other type of law, except maybe slightly more systematic.

I frequently compare how we treat rape with the way we treat robbery. It’s not perfectly analogous, of course. Our bodily autonomy is not exactly a thing that can be irretrievably taken from us.  On the other hand, the violation is more personal than being deprived of property is. Acknowledging that those two considerations are important, I’m fairly comfortable using robbery laws as a general pattern for rape laws.

This is consistent with how I want rape counted:

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.

Nothing about wanting rape treated like other crime says that some of it shouldn’t be “aggravated” (considered especially egregious due to the use of a weapon) or that there can’t be varying degrees of rape carrying different sentencing guidelines based on premeditation or that there can’t be a division between rape and other forms of sexual assault–as there is in the new FBI definition that I praised. I’m fine with all that. There are, however, one or two things I’d like to see changed.

Our current legal system codifies some ugly class prejudices. Look at how “white collar” crime that devastates thousands or millions is treated compared to small-scale theft with only one or two victims. I don’t want to see that repeated in rape law. I want to see those who use power and position to rape treated the same way those who use threats of violence are treated. The outcome to the victim is the same; the treatment of the rapist should be as well.

This is true in general. I want rape laws written with the input of those who study rapists and rape victims. What gradations we have in offenses and sentencing should be based on things like recidivism risk and impact on the victims–not on fuzzy feelings about which offenses are most immoral or which victims deserve our attention. Moral arguments stay moral only as long as they stay close to reality.

I am also unimpressed with those, like our “expert,” who suggest that anything that currently happens legally shouldn’t become illegal. If we’d followed that “logic” all along, marital rape would still be just bad form. The FBI wouldn’t be on its way to recognizing male victims. The idea that the law shouldn’t change is dumb on its face, and it ignores the fact that property rights have been commonly accepted in our society far longer than sexual autonomy rights have been. Our laws will continue to change as we internalize the idea of sexual autonomy. Laws will follow values, as they always do.

That doesn’t mean that everything bad will suddenly become illegal. Valuing informed consent does not mean someone will be considered a rapist for dyeing their hair. It may mean that we end up with “rape (or assault) by swindle” offenses, but that alone won’t make them stupid. We have theft by swindle offenses now. Somehow we manage to get along without putting people in prison for putting seat covers in the car they’re trying to sell.

Stepping out of the question of legalities for a moment, we are, as a society, generally capable of talking about ethics using the same terms that become jargon within the realm of law enforcement. Someone who buys that car with the seat covers and misses the tear in the upholstery until it’s too late is never accused of either trying to change the law or of “trivializing” the concept of robbery when they say, “I got robbed!” They are understood to be expressing an ethical opinion rather than a legal one.

It’s only when we don’t want to call something bad that we get all legalistic. Then we defend someone who treats their guns unsafely as not breaking any gun laws. Then we call people enemy combatants rather than prisoners of war. Then we point out that financial speculators who destabilize an economy are working within existing regulations. In short, talking about the law is often a way of avoiding the conversation about what kind of people we want to be. That’s not going to be tolerated for long on this blog, where I am the law.

So, while I’m happy to tell you what I want rape laws to look like, I’m going to give you very short shrift if you show up in the middle of an ethical discussion and assume that I must want everything within it to be a law. The laws themselves aren’t the only thing I want to be consistent between rape and other crimes.

Comments

  1. The Ys says

    I’d be fine with that, especially if it meant that the defence couldn’t put the victim on trial for showing some skin, or going outside of his/her own home…or, Megatron forbid, having a drink.

    “So, you knowingly walked down the street after 9 PM on a Saturday night. You know that’s prime time for pickpockets to be out in the crowds, right? But you walked down the street after leaving that bar anyway. What were you thinking in having that bulge show off where you carry your wallet? You must have wanted the pickpockets to pay attention to you. If you didn’t want them to take your wallet, why didn’t you protect it better?”

    Because we do that all the time, amirite?

  2. ema says

    I frequently compare how we treat rape with the way we treat robbery.

    I’m curious, why robbery rather than assault?

  3. dave cortesi says

    ditto ema, except TIL from Wikipedia that “assault” is not the actual attack. That’s battery, defined as “the use of force against another, resulting in harmful or offensive contact.” Much more relevant than robbery.

  4. John-Henry Beck says

    I wondered that same thing about battery, as it would be more analogous. At least, I would generally consider rape as a type of battery. This isn’t the “good ol’ days” when rape was a property crime against a father or husband…
    But for this post, robbery does seem close enough for the point. Our laws in general could be more consistent and better designed based on good evidence.

  5. says

    The Ys, absolutely. Consistent enforcement is a must as well.

    Good question on assault/battery. The simplest answer is that because the assault in rape is sexual in nature, it has a cultural significance that simple violence doesn’t have. See how we do things like rate movies to understand the varying weights we grant sex and violence.

    That means that there are effects of rape that are independent of the severity of the violence involved. I don’t want to suggest that we should equate sex and property, but robbery comes closest to rape in having multiple independent considerations. So if we want laws that can handle the multiple considerations inherent in rape, robbery is a better model.

  6. Kiwi Sauce says

    I think the analogy with robbery is a particularly good one in the situation where the robbed person is the only eyewitness, so there is an absence of forensic evidence – which can happen in rape, e.g. when prosecuting historic cases.

    As well as The Ys excellent point about “consent”/”leading them on”, we also don’t turn on the robbery victim and accuse them of lying about the robbery. Because basically, you know, men don’t lie about robbery unlike those untrustworthy women who lie about rape don’tchaknow.

  7. maureen.brian says

    Excellent stuff! Just ignore the idiot who is sending me “potential rape apologist” signals and I only read one of his posts. Worrying, that.

  8. says

    Yes, robbery is a good example.
    And usually, if my purse is later found in somebody else’s pocket, nobody claims that I made a gift and now regret…

    The “rape by swindle” is one of the pet-peeves rape apologists have. They claim things like dying your hair would count as rape, or lying about your wage would count as rape and all such nonsense. Real cases already exist, (I can go digging if you want), like that of a man who posed as a woman’s husband.
    They will also cry out loud about laws like in Sweden where not putting on a condom against her will counts as rape.
    How do they fucking fail to understand that if I evaluate the risks/benefits of having sex with a man, and that the risk of a breaking condom would be acceptable, and therefore consent to having that sex it does not mean that I also consented to sex without a condom.
    Those are different thing.
    Consent to one form of sex doesn’t mean consent to any other form of sex.
    And that I can revoke my consent at any time and for any reason without giving him 10 seconds to finish.
    Those aren’t trivial issues, or issues that water down the definition of rape.

  9. Nepenthe says

    Giliell @8

    I can revoke my consent at any time and for any reason without giving him 10 seconds to finish

    Not according to most US state criminal codes. This loophole is why, according to New York State, I was never raped.

  10. says

    I think the analogy with robbery is good, but I would also include an analogy with burglary as a parallel to the victim being unconscious or incapacitated.

  11. King of New Hampshire says

    I agreed with the robbery analogy, but I have to admit, I like the battery, too. Unfortunately, battery is also a crime with all sorts of strings attached. I do not mean to compare simple assault to rape, but some parts are similar: the use of physical force to gain perceived power, the cultivation of fear, and the taboo of reporting the crime. As a healthy male, I need to be seriously injured before the police would even take a report. If I were still a teenager, I even risk being arrested for “taking part in” the illegal activity. Again, not nearly as bad as rape, as I’ve gotten my ass kicked more than once and have no serious mental issues from it. But I think there are similarities that are worth exploring.

  12. The Ys says

    Because basically, you know, men don’t lie about robbery unlike those untrustworthy women who lie about rape don’tchaknow.

    After a few scathing rows on that subject, I looked it up.

    The incidence of false rape reports is between 2-6%. Which is pretty much the same as that of false reports on every other type of crime…except that false rape reports make the news. False burglary, assault, etc. reports rarely make the news, and generally only when someone powerful or famous is involved.

    I’m all for consistency. It’s about time that this crime started being treated seriously again.

  13. scenario says

    I can understand why someone is afraid to change laws. When laws are changed, there are frequently unintended consequences. The example of someone being charge for rape because they changed their hair color is crazy. But how many situations do you read about on FTB that seem just as crazy but are true?

    IMHO, rape by force or threat of force is easy to judge. Rape of someone who is incapable of making a decision, such as passed out drunk, is easy to judge. Rape by coercion is not quite as easy until the word coercion is defined.

    People want to have a clear idea of where the line is. An non-rape example from my own life. When I was in my early twenties a woman where I worked accused me of harassing her because I said good morning to her every morning. The accusation never went anywhere because other people backed me up that I said good morning to everybody. For the rest of the time I worked there, I was afraid to talk to anyone because I wasn’t sure what was appropriate and what wasn’t.

    A few years the rape law in one state changed so that a woman did not give up her right to say no just because she started to have sex with someone. When some guys heard about the change they thought, what if I don’t hear her right away because I’m distracted. Could I go to jail? The way the judged talked, it sounded like if a guy took 1/2 a second to process what she said before he stopped, he could go to jail. After a few years and a few cases go by, its clear that the cases involve A-holes who basically say I don’t care what you want, I’m not stopping till I’m done. The law makes more sense now and most people have no problem with it. If anything, there aren’t enough cases.

    When I heard the word coercion the first thing I thought about was a feminist website I was reading a few months ago where a bunch of comments basically said that a man has the right to ask for sex once. If his partner refuses, he has to wait until she asks him. If he asks her twice it was coercion and therefore rape. If the word coercion is not properly defined and this idea is widespread, there are going to be a lot of men and women charged with rape.

    I agree with most of what you said but I also understand why people fear change.

  14. says

    scenario, as I pointed out in the original comment thread, in which you participated, there are existing legal definitions of coercion. If people want to be afraid of making rape law consistent with other law because they can’t be bothered to find out what coercion means under the law, they can do that. It leaves me with absolutely no obligation to feel any sympathy for their “plight,” however.

    I’m also not under any obligation to deal kindly with the idea that a woman accusing you of harassment is any more the fault of harassment rules than any other stupid coworker trick is the fault of reasonable HR rules–or more common. It’s an irrelevancy.

  15. says

    nephente

    Not according to most US state criminal codes. This loophole is why, according to New York State, I was never raped.

    I know about those fucked up laws, and I imagine that even with the law on your side it would be even harder to bring such a case to court, with rape culture and all of “but she wanted it”.
    Having a good law and getting convictions are two very different things.
    I’d say that German laws are pretty good, including pretty much all forms of sexual assault, but it’s not as if we were getting more convictions, because the threashold is very high.
    Many cases end with “acquited for lack of evidence”, which basically means that although the judges believe the victim, and think that the accused did it, they have no legal means to convict them.

  16. leftwingfox says

    For whatever it’s worth, I apologies for whatever part I played in igniting that little firestorm. It’s pretty obvious that Clarence would likely have been set off by…well, anything.

    But… yikes. Sorry!

  17. says

    No worries. Based on his behavior elsewhere online, he’s peddling a line in “You’re doing it wrong.” Doesn’t much matter what “it” is or whether it’s actually there.