Force vs. Nonconsent: The Fight to Redefine Sexual Assault

[Content note: sexual assault]

My piece at the Daily Dot today is about efforts to legally define sexual assault.

Like all laws, the legal definitions of crimes have changed throughout history in response to social, cultural, scientific, and political forces.Sexual assault especially is a crime that depends on social consensus for its definition. After all, while killing another person isn’t always considered “murder,” most of us at least agree on what it means to kill a person. Not so with sexual assault.

Feminist activists have been fighting for decades to expand and improve that definition, from including marital rape to deemphasizing vaginal penetration as a criterion. (Yes, people without vaginas can be raped.) They have also urged state legislatures to rewrite laws so that rape does not have to be “forceful” to count. After all, what matters isn’t whether or not force was used, but whether or not consent was given.

Yale law professor Jed Rubenfeld, however, wants definitions of rape to re-emphasize force. The reason, he claims, is that using consent (or lack thereof) as the basis upon which rape is defined leaves room for all sorts of ethical quandaries.

For instance, if someone falsifies their identity in some way to convince someone to have sex with them, then that person did not technically give informed consent, and could consider the act rape even though they appeared to fully consent to it. If we criminalize non-consensual sex, how could we not also criminalize sex under false pretenses?

Rubenfeld does include the caveat that the definition of force should be broadened. He says, “I’m in favor of an expanded force requirement, an understanding that sees force in threats, in drugging, in physical restraint (holding the victim down, locking the victim up), and so on.”

But even then, many (if not most) sexual assaults do not involve any of these things. Nor should they have to in order to be considered sexual assault.

Read the rest here.

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The Law is Not on Our Side

[Content note: sexual harassment and assault]

Many brave writers have described what happened to them when they reported gender-based threats and violence to the police. Occasionally the outcome is positive, but often nothing at all happens and often something terrible happens.

Here are two recent examples I’ve read. The first is by Heina of Skepchick:

When the officer called me in, I was shaking a bit, but spoke as clearly and calmly as possible, presenting my evidence and voicing my fears. He responded with laughter.

Taken aback by his trivialization of the situation, I asked him if he could look at my evidence. I knew who the guy was, I pleaded. Couldn’t he, as an officer of the law, do something? Take the guy to task for threatening me somehow? At least take down a report so that if something happened, there was a record? He replied with an incredulous no to all my inquiries.

Out of the blue, he asked me if my picture included my face. I said no. He asked me how I expected to attract responses with a picture that didn’t include my face. Before I could respond, he answered his own question: it was a sexy picture, was it not? Feeling shamed, I was unable to speak and merely nodded.

“Don’t worry about it, then,” he chuckled. “Go home.”

What choice did I have other than to begin to gather up my things and prepare to leave? Before I could make my exit, though, he told me that he often visits women-seeking-women for the pictures, winked at me, and expressed his hope that he would see me on there sometime. Taken aback by the lechery in his tone, I half expected him to take a swat at my ass as I walked out the door.

The second example is even more jarring and painful to read, and deserves a strong trigger warning. It was a comment by EEB on a post of Jason’s, and Stephanie reprinted it with permission:

Two male detectives arrived at my house. I stammered out a request for a female detective; it was denied. (I learned later that they violated procedure by not accommodating the request.) They made me go through what happened. I was in excruciating pain and dripping blood but they didn’t want to take me to the hospital just then, and said the hospital “wasn’t ready” anyway. So I described the rape. Then they asked if I was taking any drugs. Well, just my medication. I thought it was strange that they literally spent more time asking about my mental health history and the types of medication I took, instead of the rape, but at the time, again, I was in shock, and not thinking much.

[...]Over the next few months, I submitted to multiple, horrific “interviews” that really felt like “interrogations” as time went on. I was also dealing with a serious medical condition at the time (I almost died; my intestines ruptured, but was almost certainly not a result of the rape, just bad timing). But I still believed in the system. I still didn’t want the man who raped me on the streets. I did everything they requested, answered every invasive question (the were really focused on my mental health history!), even got on the ground and acted out the rape for them, with the head detective on top of me acting out the part of the rapist. Not only was I absolutely hysterical by the time we were done, I’m positive that aggravated my PTSD for a long time after.

And after all that, I was called in for an “interview” to discuss “a new lead in your case”. They didn’t let my rape counselor in the room–again, against the law, I found out later! For about an hour (I think; my sense of time was not that great) they were no longer even pretending to be supportive. They accused me over and over of making it up. They had very flimsy “evidence” (which I won’t go into because it’s both complicated and ridiculous) but mostly it was their “instinct”.

Because I have a mental illness. Because I was hospitalized after attempting suicide. Because I “claimed” I had been sexually assaulted in the past. Because I was crazy, and he was sure I was just looking for attention. He had a bipolar ex-wife, you see, and she made his life a living hell. He told me how he understood mentally ill women, and how we need to create drama. How we’re liars, and we crave attention.

And over and over they accused me of lying. Alone in this tiny room with two large, angry men, I was doing everything I could to keep from having a panic attack. I couldn’t respond to what they were saying; again, I think I was in shock. And they threatened me with jail time, with a felony on my record, destroying my family, public humiliation (he threatened to call the papers–something he did anyway, because, quote, “the community needs to know there was no threat to public safety”). They said I would be charged with a false report, with terrorizing the public (there was a public awareness campaign initially after my attack, though I didn’t have anything to do with it. After the rape, I did everything I could to maintain anonymity, and only told two people–beyond my family and the cops–hat I was attacked. But…I did it for attention, which was why I didn’t tell anyone? I’m just sneaky like that, I guess!). Accusations, threats, anger, pounding the table, over and over and over.

The detective looked at me. His whole demeanor changed; he tried to seem kind, avuncular. “Tell me you made the whole thing up. This whole thing will disappear. Nothing will happen to you. You can leave, if you just tell me you made it up. Tell me you made it up and you’re sorry for lying, and I’ll let you leave.” I tried to hold out–but I didn’t last long. Honestly, at that point, all I wanted in the entire world was just to get out of that room. There are very few things I wouldn’t have done, if I could only leave. So I looked at him and lied. I said, “I made the whole thing up. I’m sorry.”

Through both of these examples, we see that women who are marginalized along other axes besides gender face additional injustice–cruelty, even–by law enforcement officials. Heina’s sexual orientation was used against her both by the man she reported for threats and by the cop who was supposed to be helping her. EEB’s mental illness was used as an excuse to abuse her, accuse her of lying, and ultimately coerce her into recanting her accusation despite overwhelming physical evidence that it was true.

The more intersecting marginalizations you have, the less likely you are to be treated fairly by the police. This is, sadly, nothing new at all, and it’s not limited to sexual violence (see: Trayvon Martin, stop and frisk, queer people being arrested for being queer). So why do people still insist that 1) survivors of sexual assault have a moral duty to report it to the police, 2) if the police do not prosecute a rapist, that means that no rape occurred, and 3) if a survivor chooses not to report, then they do not deserve any accommodations from their communities, and those communities must pretend that nothing ever happened?

EEB’s story, in particular, suggests that at least some false rape accusations are not actually false rape accusations. More research is urgently needed to determine how common this is, but my fear is that it is not uncommon. This story also shows how ableist ideas about mental illness–that people with mental illnesses are just “crazy” and “delusional” people who make shit up to ruin people’s lives–prevented a survivor from seeking justice and allowed a rapist to go free.

I used to be sympathetic to the idea that people should report sexual assault to the police, but I’m becoming less and less so. While I think we have an imperative to reform this system and make it work, for now, I don’t think it’s at all unreasonable for a survivor to choose not to report. If I were advising a survivor, I’m not even sure that I would feel comfortable encouraging them to do so.

And, dudes, next time you show up demanding to know why so-and-so didn’t report if they were “really raped,” I’m going to link you to this post. Remember that feeling safe around police officers is a sign of privilege, as is the belief that they will treat you fairly.