What is rape?

[AuntiePinko]

Dear Auntie Pinko,

What is rape? I don’t mean the legal definition or the physical mechanics, I mean the intent. I believe that no woman should be forced to have sex against her will and that doing so is rape, but in the wake of the Duke Lacrosse team scandals I have to wonder if there is some kind of “gray area?” And what about women who use accusations of rape for revenge or to excuse their own behavior? Surely that creates a reasonable doubt?

I don’t believe that sex workers should be raped any more than any other woman, but isn’t it one of the occupational hazards?

Lorne
Fort Collins, CO


Dear Lorne,

It grieves me very much that I am still having to have this conversation with well-intentioned people after more than forty years of the modern struggle to establish equity for women in law, economics, and culture. And we’ve made so much progress in so many areas that it seems even more tragic that such questions can be serious considerations in addressing this particularly destructive form of criminal violence.

If you go into a store and pay for a half-gallon of milk, is it excusable for you to grab a pint of cream without paying? Isn’t that one of the occupational hazards of being a storekeeper?

If you volunteer to man the dunk tank at the Cancer Fund carnival, is it alright for me to climb the ladder and throw a punch at you? Or waylay you in the parking lot when your shift is over and dump a barrel of freezing water on you?

If she says no, it’s rape. Even if she says no after meeting you at the front door of her apartment in a low-cut negligee, offering you a drink, mentioning that her roommate is in Cleveland for a week, and necking with you until your erection makes your head hurt and your eyes cross. Even if she gets up and dances across the room flinging the negligee in your lap and twirling a pair of sparkly gold pasties. If, after all that, she says “no,” it’s rape. And if you don’t listen, you’re a rapist, just as much as if you’d waylaid a strange woman in a parking lot and held a knife to her throat.

Can Auntie be any clearer about this? Six words, one syllable each: “If she says no, it’s rape.”

Her bad manners, bad judgment, malicious intent, or folly notwithstanding, carrying forward with any sexual activity after she says “no” to that activity is a criminal act on your part. (Not to mention bad judgment. What are you doing hanging out with a woman who would stoop to such vile and irresponsible —but not criminal— behavior?)

It’s rape if she says no, even if she just got through “putting out” willingly for sixteen of your friends. It’s rape if she says no, even if she’s got nine illegitimate children by nine different fathers, a terminal meth habit and a criminal record as long as your arm. (And again, what are you doing hanging out with her, if that’s the case?)

Do women abuse rape accusations? Yes, it does happen, although far more rarely than wishful-thinking male criminals and deluded parents would like to admit. Knowingly making a false criminal accusation, especially for your own gain or the purposes of extortion, is a crime and should be prosecuted as a crime. But the fact that it occasionally happens in no way constitutes a presumptive “reasonable doubt” in a case of rape.

“Reasonable doubt” is a legal phenomenon with very precise (though complex) definition, and can be assumed only on the basis of specific evidence in a specific case. “Reasonable doubt” may exist if a witness claims that an accused rapist was having dinner with them at Denny’s at the time the accuser said the rape was taking place. The judge would, in such a case, give the jury instructions as to what would constitute ‘reasonable’ based on their estimation of the credibility of the witness, the credibility of conflicting witnesses, the weight of contradictory evidence, etc.

In other words, the fact that some women, in some cases, have made criminal false accusations, is not a reason for assuming that any particular woman is making a false accusation in any particular case. Nor should it ever be advanced as a presumption. Rape is a serious crime and accusations of rape should always be taken seriously.

Does it sometimes come down to “he said/she said?” Yes, of course. For all the fantasy TV shows about forensic science, a great many serious crimes cannot be proved on the basis of incontrovertible physical evidence. In such cases it can come down to “he said/she said.” But in such cases, nothing about a woman’s sexual experience, sexual behavior, appearance, clothing choices, etc. constitutes the slightest evidence of her credibility or lack thereof.

Even if she’s had wild sex with two hundred horny frat boys, that proves nothing about her truthfulness regarding the circumstances of sexual intercourse with the two hundred and first. Now, if you can prove that she has lied about serious matters in the past, and has solid tangible benefits to gain from making a false accusation, you may have reasonable doubt. But what she was wearing or who she’d had sex with an hour before the rape are utterly irrelevant.

I’m sorry if I seem to be belaboring the point, Lorne. But it’s apparently a point that needs a lot of reiteration, since a lot of people aren’t getting it yet. Thanks for offering Auntie Pinko one more opportunity!

[fleabert]

1. you don't post often Auntie, but when you do...

damn, it's good.

thank you.

[Warpy]

2. Thanks, Auntie, this is a good 'un

Why some males think any smile is an invitation to sex is beyond me, as is the attitude that a $4 dinner from a fast food joint pays for the privilege of using another person's body to masturbate into whether she likes it or not.

Men are funny creatures and some of them have the most bizarre sense of entitlement where the bodies of other human beings are concerned. Thanks for putting it more delicately than I ever can.

[DURHAM D]

3. Good post AP - it is also rape if the victim does not have the

capacity to say "yes". In other words, if she is drunk or drugged (perhaps roofied)she can not respond either way.

[RaleighNCDUer]

21. I was about to say the same thing --

if she says 'no' or if she cannot say 'no'. And, for that matter, if she is so incapacitated that, even saying yes, the yes has no validity.

[aikoaiko]

4. Like it but a victim doesn't have to say no in order for s/he to be raped.

I know this opens the conversation a little too much, but saying "no" is not actually a requirement for rape to have occurred.

But still I get the point.

[serryjw]

10. It makes it much more difficult

to prove when concentual sex is in question.No end everything. Woman are in adult clubs making a living. That doesn't mean because they are wearing almost nothing that men can do anything. When "NO" is stated it makes the accusations easier to prove rape...and BTW it should also be true for men. ANY sexual contact against someones will should be rape.

[femmedem]

20. You're right!

Sometimes the woman doesn't say anything, because from the get-go the rapist uses force or the threat of force. I wouldn't want a woman--or man--to get skewered in court because she or he didn't say anything.

And of course children don't have to say no for it to be rape, either.

[Che_Nuevara]

27. In Mass., for example,

you cannot legally consent to sex if you have a BAC of over .01

[aikoaiko]

28. Wow, .01....thats a bit extreme, but I don't live there.

Thats for the MASS citizens to decide -- not me. Of course, I know I had sex with people where I was way over 0.01 BAC in the state of MASS. Landsdown street was freaky in the 90s.

[DELUSIONAL]

5. Well put -- thanks for posting.

[Marnieworld]

6. It's an honor to be able to reply to your post

I always read every "Ask Auntie" article and I have always marveled at your depth of knowledge, passion and eloquence. Once again you hit it way out of the park. Excellent. Excellent. Excellent. :yourock: :applause:

[Sinti]

7. Thank you for your absolute clarity.

This "only good girls dressed from neck to ankle can get raped" mentality that a few have is really painful.

Additionally, if the woman is conscious the man will *usually* know he's committing a rape, whether or not she iterates the word "no" or not, unless he's extremely inebriated or similar.


Sorry for the distasteful specificity, but there is the issue of natural lubrication, and general enjoyment or lack there of, etc.

[BIgJohn83]

8. Thanks for the post...

this sort of thing needs to be at the front of everyone's mind. Clearly, no means no.

[varkam]

9. Great post

But doesn't this undermine the point slightly?:

Now, if you can prove that she has lied about serious matters in the past, and has solid tangible benefits to gain from making a false accusation, you may have reasonable doubt.

I agree that establishing whether nor not someone is generally truthful is important in cases where the only evidence is eyewitness testimony (or, he said / she said). But isn't that a bit subjective? Defense Attys are exceptional at character assassination - especially the good ones. It's not as though "proof" of past prevarications is something of epistemic certainty; you only have to convince the 12 men and women that comprise the jury that the accuser is a pathological liar.

It's a tricky point, and I'm not really sure what the right path to take is. In any event, excellent post. Plenty of good points there.

Edit for HTML tags

[Name removed]

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[TheWraith]

13. Thanks for being grossly insulting.

I, for one, am rather tired of the snide insinuations that all men are rapists.

[hraka]

38. That's not what she said

Until you've been held down, possibly beaten, called names, and been violated, don't presume to be so trite.

[unblock]

12. great post as to the morals, but regarding "reasonable doubt":

i'm totally with you regarding the proposition that "no" means whatever sexual activity there might have been up to that point comes to a screeching halt. for normal people, "no" is a huge turn-off. personally i lose all interest if my partner has lost hers, e.g., due to the phone ringing, the wrong song coming on the radio, or whatever. i just don't understand the mindset of people who would want to proceed with an unwilling partner.

but regarding your specific legal point that "reasonable doubt" can be assumed only on the basis of specific evidence, i have to disagree. the prosecution in a criminal case has an affirmative burden to prove its case beyond reasonable doubt. there need not be any evidence at all to suggest reasonable doubt, and in fact, the defense need not even say a single word, introduce a single piece of evidence, or call a single witness.

some might go as far as to say that reasonable doubt is EXACTLY what exists in the absence of specific evidence, but that is a topic best suited for first-year law students.

unfortunately, this key element of the presumption of innocence often lets rapists get away with it, as you rightly point out, there often isn't a wealth of evidence. but it's part of the trade-off for having a legal system that supposedly has some controls on the government's ability to imprison whomever they please.

[bemildred]

14. Yeah, the one thing I didn't agree with.

Jailing the innocent is a bad idea too, and it is the business of a jury to decide what is a basis for reasonable doubt, and evidence from the past life of the accuser, in whatever form, is certainly relevant, especially in the absence of something more concrete. One would certainly allow the past life of the accused to be discussed.

Nevertheless, the point that it is not relevant how many persons have been boinked before refusing the accused, or similar excuses, does seem correct.

[unblock]

16. i think we're on the same page.

in the presence of complete information, if the victim has demonstrably objected to (further) sexual activity, then it doesn't matter that she's just had sex with the rest of the fraternity, or whatever. say, for instance, that there was a video that clearly showed her stating "i'm done, not more sex." the morals are clear and the jury verdict should be as well.

however, there is never complete information, and as such, previous history, especially the events leading up to the alleged rape, are certainly "relevant" in the legal sense that the jury should hear the evidence presented so that they can determine who is telling the truth and exactly what happened.

[SlipperySlope]

15. Wow - WTF?

WTF?

[IowaGuy]

17. It can be rape under other circumstances..

i.e...if a woman has been incapacitated by drugs, give a rupy...I would call that rape.
If it is a child, and an adult does it, sometimes in some cases even if a child does it, it should be considered rape.

There can be more to it than just saying "no".

[undergroundpanther]

18. Women need

Anti rape devices that willspeak NO very clearly even when they can't use thier voices or struggle..Maybe something sharp that an attacker cannot remove,something worn designed to cut his offending dick OFF if he puts it where it is not wanted. Only then will some 'bullying' males start to realize what CONSENT really IS.
Rape will stop happening when it is too costly for the rapist to even try it.

[Che_Nuevara]

26. Indeed.

We should also all set up bombs with tickers attached to our hearts, so that if someone shoots someone else, the victim explodes, killing the attacker. </sarcasm>

(Wasn't there a sci-fi show or something where they really did that?)

But seriously, things like that have actually been done. In Vietnam in the 70's, for instance. But I don't recall cutting off rapists' penises as being acceptable punishment under the 'cruel and unusual' statute any more than cutting off thieves' hands.

[Lindacooks]

19. Fabulous. Perfect. Right on! Couldn't be better! THANK YOU!!!

eom

[Burning Water]

22. If she say no,it's rape.

If she says no, it’s rape. Even if she says no after meeting you at the front door of her apartment in a low-cut negligee, offering you a drink, mentioning that her roommate is in Cleveland for a week, and necking with you until your erection makes your head hurt and your eyes cross. Even if she gets up and dances across the room flinging the negligee in your lap and twirling a pair of sparkly gold pasties. If, after all that, she says “no,” it’s rape. And if you don’t listen, you’re a rapist, just as much as if you’d waylaid a strange woman in a parking lot and held a knife to her throat.

Yes, if she says no, it's rape. But if she's admittedly done all that, and it's a case of "she said, he said", there is reasonable doubt that she actually said "no" before the act. And afterwards, it isn't rape.

If I were a juror, I would never vote to convict, for any crime, on the unsupported word of one person, male or female. Maintaining the presumption of innocence for the accused is of prime importance in our system of justice. Even in cases of rape.

[TechBear_Seattle]

23. Two points I think need to be made

1. Auntie, you say that, "If she says No, it is rape." That allows for the absence of refusal to be implied consent, ie "Since she hasn't said no, it is not rape." I strongly disagree. Rather, I believe that "if she does not say Yes, it is rape." Until there is affirmative consent, there is no consent.

2. Most of the discussion about rape has to do with a male perpetrator and a female victim. I can certainly understand why that is: the vast majority of rapes involve a male perpetrator and a female victim. But it is important not to forget that while that is the situation in the vast majority of rape cases, it is not the situation in all rape cases. Male perpetrators do select male victims, and there are female perpetrators who victimize both males and females. And before people start screaming at me, know that I am a male who is also a rape survivor. It does happen, and I think it is important for us to not forget that.

[PatGund]

42. You're not the only one

Rape *can* happen to men as well. And it is *just* as devistating as when it happens to a woman. Add to that a belief it doesn't happen to men, a lack of support or counseling options, and a "big boys don't cry" mindset, and it can cause major, major, major problems.

And before anyone screams that I don't know what the hell I'm talking about, I know far better than I hope anyone, male or female, would ever have to know.

No, I am not a rape victim. That gives my attackers too much power over me. I am a rape survivor

[Heywood J]

24. Perhaps someone should

send this to Michael Savage, along with a copy of the various legal definitions of rape, in light of his recent comments... Do we have addresses or fax and phone numbers for him?

[MrBlueSky]

25. Serious stuff... but....

Dear Auntie Pinko,

Thanks for shining a well-deserved spotlight on rape. If your column causes even one rape victim (who was previously silent) to speak out, then your writing is a success in my book.

We can argue semantics... but abuses abound on all sides. In Illinois, a woman can consent to sex and rescind it weeks or months later and then it magically becomes rape.

In Alaska, there exists anecdotal evidence of women raping men.

In 1992 Arizona, the Arizona Republic noted that the Phoenix police estimated that up to 15% or more of rape reports are made by manipulative women who are trying to seek revenge on a man for whatever reason.

Rape is serious, no doubt. But we also need to have clarity.

On COPS TV show, a woman accused a police officer of attempting to rape her. Unfortunately for her, the cop car had a videotape of everything that transpired. And the cops showed her that she lied.

She said she accused him of attempted rape because she was "mad at him."

Auntie Pinko, do you expect all of us men to walk around with video cameras just to prove our innocence simply because the law easily favors victims???? Do you think it reasonable?

In 1988, I was falsely accused of attempted rape by a college girl. When I asked her why she did it, she tried to extort money from me. She was later found to have... erm... how do I put this nicely... LESS THAN full credibility and she was expelled from college. In the view of the college community, I was exonerated... BUT IT TOOK MONTHS TO CLEAR MY NAME.

I don't EVER want any man to be exposed to that hell that I went through. And I worry that your writing may also cause another innocent man to be wrongfully accused.

[TechBear_Seattle]

30. "there exists anecdotal evidence of women raping men"

If the man says no, it is rape. If the man is unconscious, incapacitated, drugged or otherwise unable to give consent, it is rape. There is nothing anecdotal about it.

And to forestall the cries of "If he didn't want sex, he wouldn't have had an erection": sexual physiology is a tricky thing. The nerves and muscles that control "preparedness" for sex -- erections and the production of lubricant in a male, engorgement of the labia and clitoris and the production of lubricant in a woman -- are closely tied to the "fight or flight" response. In other words, fear and the perception of danger produce a physiological response very similar to sexual arousal. This is a well documented field of study, routinely used in court to counter the "She was aroused and so it wan't rape" defense, and something that applies equally well to men.

[MrBlueSky]

32. That is a good point TechBear_Seattle

I only used the word "anecdotal" simply because, at the time I was living there, no formal research study (to my knowledge) had been completed.

So, the Anchorage Daily News only reported what the caseworkers, police and prosecutors were telling them.

This may have changed. The report I described was from the late 1980's.

[CTyankee]

36. But I know of one instance when a woman was raped after

intercourse, to which she had consented, began. The man started to get rough, she asked him to stop. He just got rougher with her until he was finished. Later, when she went to her dr. he asked "Who did this to you?"

This happened to a good friend of mine back in the 70s. I would consider this to be sexual assault.

[bloom]

33. It sounds like at least some of your info if from freeper sites.

Because it sounds like bullshit. Like women recinding consent after the fact. If you're going to post nonsense - you should at least post links.



Some rape stats (women raping men, etc) ...


From Wed. April 19th: http://bitingbeaver.blogspot.com/


300 / 452,000 (total number of rapes committed over five years - Between 1993 and 1997) = .0006637, or 0.06637% (percentage of all rapes in which women rape adult men).

[JetCityLiberal]

29. This is excellent Auntie Pinko

well said. :thumbsup:

[Exiled in America]

31. First sane thread I've read on DU around this subject in a long while.

[NMMNG]

34. Excellent!

Beautiful argument A.P. :applause:

[Rich Hunt]

35. how hard is it to understand?

Personally, I think these people know damn well what rape is. They probably have a hidden agenda when they argue otherwise - they're trying to let themselves off the hook - in their minds.

[Jade Fox]

37. Agree....

they feel guilty.

Many, many het men have bullied, manipulated, and otherwise coerced woman into sex at one time or another. That's not rape, but it shares something with rape: Having sex with a woman who does not particularly want to be having sex with you. I think much of the eagerness on the part of men to believe in false rape claims comes out of guilt about some of their own sexual behavior.

[hraka]

39. Thank you, Auntie

I don't know if you read the replies but, as a survivor of rape (twice) and attempted rape (once) - all 3 times I was in situations I shouldn't have been in but I said no and never wanted sex to start - thank you, thank you, and again, thank you. The messages posted run the gamut of reactions, from confusion to indignation to understanding to appreciation, proof that we've got a long way to go before women are truly respected as equals in society.

Can a husband rape his wife? Yes
Can a prostitute be raped? Yes
Does rape have to include sexual intercourse? No
Can a man be raped? Yes
Is it the victims fault? No
Is rape sexual? No (It is an act of violence, not sex.)

Wake up people!!

[North-Going Zax]

40. [link] I can't believe the willingness of some people

to believe that "No" doesn't really mean NO:
http://www.poalo.com/forum/viewtopic.php?t=13564

Why is this?

[thomasak2806]

41. One minor objection.

Dear Antie Pinko:

While I have no qualms about "No means no", or that
behavior is no substitute for consent, there seems to me to be
a gap between legal relevance and the consequences of risky
behavior.  For example, if I walked down a street in East LA
buck naked waving hundred dollar bills and screaming,
"But daddy, I don't want to sing in the
synagogue..." would it still be a crime if I was beaten
and robbed? Certainly.  Would the local constabulary have much
sympathy for me?  Probably not.  While the assault and robbery
would be crimes in any case, where I was and what I was doing
at the time would be part of the explanation of why it
happened on that particular day and in that particular place.

While this is not a legal excuse, people understandably take
behavior into account.  The conflict then, lies in the
difference between legality and reality:  Two subject which
are rarely, if ever, in agreement.
TK