It’s strange to see even atheists convert hyperbole into fact in the span of just hours or days. That’s supposed to be what religious people do. When I wrote an article attacking rape apologetics in the discussion of the allegations against Michael Shermer, I was accused of engaging in rape apologetics (examples cataloged here, here, here, and here). But only by making false claims about what I wrote in my article.
This has started now to become lore. In comments on Stephanie Zvan’s recent article on the BlockBot I was weirdly even accused of “victim blaming” in an article against victim blaming that actually defends victims from being unfairly blamed (lest this not be believed, I will document the actual contents of my article below), and a scenario I explicitly described as reprehensible and as victimization and worthy of condemnation, one commenter said I described as “kinda cool” and “what a rapist would like to believe,” which is the exact opposite of the actual facts in the case, yet this version of events is then endorsed by another commenter. Meanwhile, in comments on the same article described as “what a rapist would like to believe,” I had to debate actual rape apologists (or at least folks who didn’t know that’s what they were doing). Which in context is surreal.
It’s unclear how the myth arose that something I condemned I called “kinda cool.” And perhaps the lore varies from person to person. But throughout, from what I’ve read, I have found there are some failures of fact and reasoning to address.
1. On When It’s Morally Murder Even When It’s Not Legally Murder
The first is the relation between law and legal principles, and morality and moral principles. I’ve written elsewhere on what the difference is (Sense and Goodness without God, Part V vs. Part VII). Law is not the codification of morality. But law should accord with morality (in that an ideal law, towards which all legal systems should strive, should not permit, facilitate, or promote injustice in the pursuit of its otherwise valid goals). And often it does not. In my article I discussed some examples of this in relation to rape.
Some people mistook that as saying we can ignore what the law says, even ignore fundamental principles of justice on which all just laws are based, when deciding how to reason morally. We cannot. The law represents thousands of years of accumulated real world experience in reasoning about many of the same issues moral reasoning must contend with, and as such any sound moral philosophy will have much in common with legal philosophy. The fact that they do not always do so does not change the fact that they often nevertheless do.
To ignore legal philosophy when discussing moral philosophy is like talking about how to make a sturdy building without paying attention to anything written on architecture. Surely I should not have to argue that some of the fundamental principles of justice in Western law are simply fundamental principles of justice.
2. On the Conditions That Must Be Met to Have Committed a Specific Crime
One of those fundamental principles of justice is that to hold someone accountable for a crime, two conditions must be met: mens rea (an “ill will” or “bad intention,” voiced in trials as “knowledge and intent”) and actus reus (a “bad act”). There are exceptions, called “statutory” laws (or “strict liability” laws). Although one might raise a debate over whether such laws should exist, I won’t query that here, since I didn’t write anything about statutory rape. All other crimes (like rape, every bit as much as murder, theft, or anything else) must meet both conditions. Otherwise a crime has not occurred.
That you feel it should be otherwise does not change the fact of it. And the fact of it does not constitute criminal apologetics. That our legal system requires both mens rea and actus reus in order to call someone a murderer does not mean our legal system is a system of “murder apologetics.” Nor is anyone who argues that this legal requirement is sound and just a “murder apologist.” And if I say it is unfair to call someone a murderer because they never actually killed anyone, only injured them, and that therefore they should be condemned for what they actually did instead (which is still awful), that does not make me a “murder apologist.”
3. No Actus Reus, No Crime (Whether We Like It or Not)
Surely it is a most fundamental principle of justice that you have to actually have done x to be guilty of x. In law, this is the principle of actus reus (the bad act).
If you merely might have done x or don’t know if you’ve done x, that is not the same thing as doing x. If you shoot a machinegun into a residence, you might have committed murder. It can even be said that you don’t know if you committed murder, or even showed no concern for whether you had. But it’s still not murder (if no one was killed). You actually have to commit murder to be guilty of murder. And yet such an act is still undeniably bad. That shooting a machinegun into a residence is not murder in no way means it isn’t still reprehensible and condemnable. We just call the bad thing it is something other than murder. And saying so is not “murder apologetics.”
It should be obvious that moral judgment should always be governed by the same reasoning. We should never morally condemn someone for something they never actually did. Even when we are condemning them of doing something bad–we should not condemn them for what they didn’t actually do, but only for what they actually did.
This is relevant to what is claimed about my article. Rape occurs under a number of possible conditions, one of which is coercion by threat (direct or implied). I even mentioned that fact in my article (emphasis now added):
As Ryan puts it, the law doesn’t require a victim to “become so intoxicated that she is physically unable to speak or display a lack of actual consent,” but on the other hand mere intoxication “to some degree” or intoxication that “reduce[s a woman’s] sexual inhibitions” is not sufficient to make a sexual encounter rape (some other condition would be required, such as she resisted, verbally and/or physically, and the man continued; or she was threatened; etc.).
I mentioned this again in comments:
Keeping quiet out of fear, BTW, would be a different scenario. If you felt threatened, you don’t even have to be inebriated for it to be rape even under the law (even in New Jersey).
So when it is claimed I denied this, there can be no doubt that that claim is false.
In the article itself, I described a scenario (Scenario B) from the POV of the victim (not the perpetrator), in which I left no reference to the victim feeling threatened, but to the contrary, the text explicitly describes the opposite: enthusiastic participation and excitement is the only reason given for acquiescing. There is therefore no implied threat condition in the scenario I described. If we wanted to describe a third scenario, let’s call it Scenario C, in which the woman acquiesced only (or even partly) because she felt threatened, then we’d be talking about a scenario I did not discuss.
Some of those who accuse me of rape apologetics mistakenly confuse Scenario B, which is the only scenario I said was not rape (because no threat exists in it, and it corresponds to universal legal principles of consent, as quoted from actual legal literature), with this imagined Scenario C, which I said nothing about. Yet in comments I explicitly said what I here call Scenario C would be rape (as quoted above). So anyone who thinks my Scenario B had any connection with a state of implied threat is simply not reading the article I wrote. They are criticizing some imaginary article in their head, one that I didn’t write.
This is ironic because this illustrates the actual principle I opened with here: I am being accused of doing something that in fact I did not do (even apart from interpretation: that is, just the mere fact of calling Scenario C “not” rape is something I did not do). Similarly, if we reimagine Scenario B from the perpetrator’s perspective, it is possible that Scenario B would then look indistinguishable to them from Scenario C, so that they would not know which Scenario they were in. I even specifically mentioned this being a problem. Regarding scenarios like B I wrote in the original article itself:
[T]his puts you in serious risk of committing rape. Or at the very least (if you are a caring sort of person), creating a situation in which it’s not even clear whether you are committing rape (a situation a caring person would find disturbing to find themselves in).
Again, people have accused me of not saying this. In fact, I did say it. So again, I did not do what I have been accused of.
But more importantly, that this is true does not make Scenario B rape. Scenario B is not Scenario C. That the perpetrator doesn’t know which Scenario he is in does not make what he is doing rape. Actus reus: you have to actually commit the crime to be guilty of it. If he was in Scenario C, then he was committing rape (there is a possible exception to that conclusion I’ll get to shortly). But in the thought experiment I actually composed he wasn’t in Scenario C. He was in Scenario B. What he thought or didn’t know is irrelevant to that fact.
Just like shooting a machinegun into a house: that’s reprehensible, because it could result in murder, but it is not itself the actual crime of murder. I similarly pointed out that the perpetrator going forward in Scenario B is likewise reprehensible. Hence I made no apology for it, but outright condemned it, in no uncertain terms. It just isn’t rape, in the same way that shooting a machinegun into a house isn’t murder. And that’s a fact not only under the law everywhere, it’s a fact in any sensible moral reasoning. You have to actually do the thing to be held accountable for it. That is why there is no rape in Scenario B.
But Scenario B is still immoral (in the same way shooting a machinegun into a house is), and that was in fact the entire point of my article: semantic debates about whether a particular act is “rape” all too easily elide the fact that what you call it doesn’t matter, as if somehow if it’s not rape then it’s okay. I was specifically attacking that very reasoning. Which is the exact opposite of rape apologetics, where we would find the argument “x is not rape [by this or that definition], therefore we shouldn’t condemn it.” I said the exact opposite: that even if x is not rape [by this or that definition], we should condemn it. Just as we would shooting a machinegun into a residence.
So there is no plausible case to be made that my article engaged in rape apologetics. Not only is the scenario I said was not rape not rape (the woman didn’t feel threatened and participated willingly and was well aware of what was happening), but I specifically said it’s not being rape in no way justified it, that in fact it was still reprehensible. Which is the exact opposite of the conclusion attempted in actual rape apologetics (as even the silly commenters I quoted above are aware, yet somehow thought I said exactly the opposite of what I actually did).
4. Mens Rea by Itself Is Not a Crime (Whether We Like It or Not)
While actus reus is thus required (there has to be an actual rape for it to be rape, and saying so is not “rape apologetics”), so is mens rea. Some of my critics tried again adding things onto the Scenario I described, as if I had included them (though I did not), such as assuming the perpetrator was acting out of malice and explicitly didn’t know they might be committing rape and didn’t care. Nowhere in my description of the Scenario is anything like that said. So this can only be imported by turning it into a Scenario I didn’t describe. Yet I can’t be accused of giving opinions on a Scenario I never even described.
But let’s invent that Scenario now, and call it Scenario D: everything identical to my Scenario B, except we add to it that the perpetrator intended to commit rape (or genuinely didn’t care if they committed rape). This is not my Scenario B. It’s Scenario D. But even Scenario D is not legally rape. Because intending to do x is not doing x. One can argue that D would be attempted rape (insofar as such a crime is on the books and includes circumstances like this–but even if not, then morally). But attempted rape is not actual rape. In Scenario D, mens rea exists, but not actus reus. Yet both are required for a crime to occur. In D, the perpetrator in the end didn’t actually have to commit rape. That they wanted to or didn’t care if it turned out that way makes no difference to the objective fact of the matter that, in the end, that isn’t the act they committed.
Analogously, if I shoot a machinegun into a house in the hopes of killing a specific person, I am certainly guilty of attempted murder. But if I don’t succeed, I’m not guilty of murder. Just of attempting it. And saying so does not make me a murder apologist. Likewise Scenario D and rape. Certainly Scenario D is even more contemptible and worthy of condemnation than Scenario B. But I didn’t discuss D in my article. So anyone who claims I voiced an opinion on it there is simply stating a plain falsehood.
5. Scienter Is Also a Fundamental Principle of Justice
There is a third concept that came up in comments on my article: the principle of scienter. It has to be reasonably possible for someone to know they are committing a crime, for a crime to be committed. That is not to say that they must know (that depends on the specific statute). Only that they could have (i.e. it has to be at least reasonably possible for them to have known).
For example, if every time I blog, a serial killer murders someone (and keeps this up, watching my blog, but never telling me what she’s doing), I cannot reasonably have known my blogging was causing her to do this, so I can’t be held accountable for it, as if I were a co-conspirator in those murders. It is not merely that I didn’t know, but that I couldn’t even reasonably be expected to know.
The principle of scienter often applies to the laws themselves. A law so vaguely worded that it is not possible for anyone who reads it to know whether they are complying with it can be struck by a court as invalid on the grounds that it lacks scienter. But it is also a legal defense. And as a broad principle of justice, it is obviously fundamental not just to all legal reasoning, but all moral reasoning as well. Hence I wrote in comments:
[I]f someone is indicating consent through active participation, and has indicated their ability to consent by coherently articulating spoken thoughts in general, you cannot be held responsible for being mistaken in that case. They have to voice/act on their revocation of consent for you to know it has been revoked. Since we are not telepathic, lack of scienter negates any crime otherwise (morally or legally).
However, that only pertains to rape (acting without consent). You can have the evident consent of someone and still be exploiting them or harming them. And thus one should be as concerned about that, too, and not just whether what you are doing is technically rape.
This is only the case, of course, in the context of Scenario B as I actually described it. One can remove alcohol from that Scenario and get the exact same conclusion: if you kiss someone and they kiss back and they escalate along with you enthusiastically, this constitutes consent. Once consent has thus been indicated, its revocation has to be indicated as well. Otherwise, there is no reasonable way the other party can know it was revoked. Lacking scienter, there cannot be a crime. They have no mens rea (the very “knowledge and intent” required for conviction). Unless, as I explicitly said in the original article, at some point in the process “she resisted, verbally and/or physically, and the man continued” (then it would become rape).
This does not hold, however, if (1) there is no initial demonstration of consent (if they resist from the start or do not actively participate at all, which we can call Scenario E, yet another scenario I never described nor said wasn’t rape) or (2) if there is an implied threat (Scenario C). But I did not talk about either in my article. I only discussed Scenario B (and Scenario A, which I demonstrated was rape, even without being Scenarios C or E). Obviously if the perpetrator never confirmed consent to begin with, by any means at all, then scienter doesn’t apply. Because then they can reasonably know consent hasn’t been or might not have been given. And then we have a rape scenario (Scenario E).
But that is not what happens in Scenario B as I explicitly described it. It is unjust to rewrite what I wrote in your head, from Scenario B to Scenario C or E, and then conclude that what I said of Scenario B I said of Scenario C or E, and then claim I said Scenarios C and E are not rape, when in fact all I said was that Scenario B was not rape.
And yet several people mistook me for saying Scenario C or E was not rape, for some reason I have yet to fathom. I never describe either Scenario in my article nor said either was not rape (for the record, again, both of them are rape). I only described Scenario B. In which there is no lack of initial consent, nor any feeling of being threatened (nor even an intent to rape). Scenario C is somewhere in between Scenarios A and B in severity. But the point of my article was to explore the furthest extremes of what might have happened, and show that even in the best possible case imaginable what Shermer did was condemnable (if he did anything comparable to Scenario B). Which is, again, the opposite of rape apologetics.
6. Feeling It Is So vs. It Actually Being So
It should not have to be said that the mere feeling that something has happened does not mean it has happened. If I feel that you have murdered someone, that does not in itself mean that you have murdered someone. And this would be an issue in jury instructions when evaluating a claim of implied threat in a rape case: it does have to be objectively reasonable for the victim to feel threatened for consent to have been negated and rape to have occurred.
I wrote about this in the context of battered spouses and the available claims they have for self defense when killing their abusive partners (see Free Will in American Law: From Accidental Thievery to Battered Woman Syndrome). As I noted there (again, citing and quoting the legal literature), a subjective standard can only, at best, lessen the offense (such as from murder to manslaughter); it does not create a valid claim of self defense. For that, an objective standard has to be met: any reasonable person would have to believe their life was in danger and the threat otherwise inescapable (Stand Your Ground laws negate the latter requirement).
But there are some subjective factors that can be included in that assessment. I wrote about published scientific and legal arguments (which in some cases have become law) that what is reasonable has to be measured from the perspective of the victim, who may be in circumstances different from what the jury has ever been in and thus will be unfamiliar with. But even then the total circumstances have to be such that any reasonable person in those same circumstances would have believed their life was in danger and the threat otherwise inescapable (without fear of harm). The same standard holds for a state of implied threat–not just in rape cases, but in all cases of coercion of whatever kind. And it should be obvious why this must be the case.
For example, if all I do is write an article about how cute kittens are, and you come to “feel” I have thereby planned to murder you unless you buy a kitten, I have not committed the crime of threatening you, and you cannot claim coercion in a court of law. Thus your subjective feelings do not make a crime. Those feelings have to be objectively defensible–by a reasonable person standard in a court of law–and surely any reasonable system of moral judgment must adopt the same principle. (That there are grey areas where the lines blur does not negate the distinction, any more than any other sorites paradox does for any other distinction, it just means we as a society need to decide in such cases which side to err on and when.)
Thus, if we drew up a Scenario C, it would be possible to construct it in such a way that it would not be rape. Although it might require something as absurd as my kitten blogging example, it’s at least possible. But otherwise, for an implied threat to exist in Scenario C in the manner required, it is not necessary that a perpetrator intend to be threatening (although that would certainly suffice); all that is required is that a reasonable person in their same circumstances could have discerned that their behavior was threatening (even if they weren’t intending it to be), since to then proceed anyway requires reckless disregard (which meets the conditions of mens rea, being a form of bad intention).
In the case of a killing, this might lower a charge from murder to manslaughter, or from a higher to a lower degree of murder, though still in any case a felony and thus definitely criminal (and, for analogous reasons, immoral). Most legal systems don’t gradate rape in that same fashion, but simply include “rape through reckless disregard” as the same as “rape through deliberate intent,” and then (at best) only treat the former as a lesser offense by awarding a reduced sentence. But again still a felony, and still reprehensible. And still rape.
But if there is no way any reasonable person could have known that what they were doing was threatening, then scienter is lacking, and they cannot be held accountable. How someone felt is not an objective fact of what’s happening outside their feelings. Those feelings have to have some objective basis. Otherwise actors cannot know they are committing a crime. And no mens rea, no crime. At the very least it has to be possible for the perpetrator to know they are causing those feelings (not that they could be, but that they are…because only if they actually are causing those feelings would we then have the requisite actus reus as well). They do not have to know they are doing that. But it does have to at least be possible for them to know. Otherwise it is impossible for them to have mens rea, and therefore impossible for them to be held accountable for what they didn’t even know they were doing and, more importantly, could not have known they were doing.
If saying this is rape apologetics, then all legal systems on earth, even California rape law, are systems of rape apologetics, and all lawyers and judges and legal theorists in the entire first world are rape apologists. Merely because they defend and employ a fundamental principle of justice.
7. That It’s Not Rape Does Not Excuse It
When it comes to Scenario B, at no point in my description did I even mention the victim deciding to stop the sex she was engaged in. She only started to dislike what was happening, and thought it might not have been good to continue or even to have started (in my fictional description I said [emphasis now added] “in the midst of it you start to feel it’s wrong” and “you’re ashamed and don’t think you would have done this if you’d been given a chance to think about it”). But the fictional woman in that scenario did not convert these thoughts into a decision. And she did not express that decision. That’s the Scenario I described. And that is the only Scenario I said was not rape. Not any imaginary other Scenarios people may have invented in their minds and conflated with my Scenario B.
In any reasonable court of law, consenting and participating and never saying stop (or physically indicating you want to stop or anything else like that) when you start thinking it’s wrong would mean you had not transferred your thoughts into an actual decision. And in that specific scenario (the one I actually described, not the imaginary ones that others falsely believed or claimed I described), there is no way someone who is having sex with you can telepathically know you’ve changed your mind–if you never in any way communicate that to them. That’s impossible. And you cannot be held accountable for failing to do the impossible–one of the most basic principles of justice.
Thus, merely thinking you want to stop, once you’ve consented and continue to participate, cannot convert what is happening into a rape, by any sound principle of justice. And saying that does not make me a rape apologist. It’s just a plain matter of sound law and justice.
But as I made very clear, neither does it convert what is happening into something that isn’t reprehensible. Just because it isn’t what is designated with a specific sound we utter (“rape”) under any reasonable legal standard, doesn’t mean it’s okay or to be made light of, or that harm wasn’t nevertheless done that could have been avoided–and avoided by its perpetrator (not the victim).
As I wrote from the start:
This is not rape. But it isn’t nice, either. If it wasn’t what you wanted, if you weren’t given a chance to think about it first, then it still wasn’t right. You were still taken advantage of. You were still abused and mistreated. And your happiness was still damaged and disregarded. … [The perpetrator] still took advantage of a woman and destroyed a human being’s happiness. Even if it wasn’t against the law. Even if it wasn’t sexually penetrating someone without their consent. Thus it’s being against the law or not is hardly the point. But it’s being rape or not is hardly the point, either.
…because it’s still wrong.
Rape apologetics is arguing that it wouldn’t be wrong, that the semantics of how even the most reasonable legal systems define rape can allow us to accept behavior that doesn’t conform to that exact definition (or worse, blame the victim for it). And that is the very thinking I explicitly denounced. It is not the thinking I endorsed. As the above paragraph makes quite clear, I condemned and vilified the (hypothetical) perpetrator for doing something awful. I said nothing whatever to blame the victim. I put all the blame on the perpetrator. And I certainly did not say what he did was “kinda cool.”
If we are going to invent facts to accuse people of things they didn’t write, and condemn fundamental principles of justice as rape apologetics, then we seriously need to check our logic. Because something has gone seriously wrong.
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