Rape laws

I came across this law review article, which I think was written at the perfect level of sophistication for someone like me.

Apparently, rape laws have not changed with the times so that for sexual intercourse to count as rape, the person who is raped must be threatened with violence and must also resist. Before, the person had to resist to a very high degree, but most states now require only a “reasonable” amount of resistance. The problem with this standard is that it ignores the fact that many people undergo a kind of traumatic paralysis when faced with sexual abuse (or other types of trauma in other situations). So, someone may not resist at all when forced into sex, but in many cases this is just more evidence that a rape has occurred, not an signal that the person being raped really wanted it to happen (otherwise, why didn’t he or she resist?).

So, one proposal that was floated was what article called the “no” model in which sex is permissible unless someone says no. Again, this is a pretty poor model because if traumatic paralysis is in play, then people who do not consent may not be able to voice an objection. And even if they are physically able, they may not for all sorts of reason, one being fear (and fear can be operative even when the person committing rape has not made any threats yet). Also notice how demeaning this model of rape is. It’s as if saying that I have a right to borrow your car unless you see me and tell me I can’t borrow it. By presuming that sex with another person is acceptable absent their objection, it licenses others to use the bodies of others.

Another model, one which I’m attracted to, would say that intercourse is illegal unless there is some AFFIRMATIVE sign that it is acceptable. Under the “no” model, sex is ok unless someone says no, but on the “yes” model, sex is presumed to be illegal unless both people say yes. Now, yes doesn’t have to be explicit or even verbal, but could communicated in a variety of ways.

Still though, the author of this article claims that even the “yes” model is inadequate, because of two shortcomings.

1) Men often perceive women to be expressing sexual interest when they are not. I’ll call this the “bias toward yes,” from the eyes of a man.

2) Sex that occurs after other sexual stimulating (non-intercourse) would not be rape because of the consent that is implied by such actions, even if one of the partners does not want to engage in intercourse.

But I confess that I don’t really understand either of these objections. As to the first, what does it matter if the man engaged in a rape perceives implicit consent where there is none? The law is supposed to specify when a rape has IN FACT occurred, not when the rapist does or does not perceive it to have taken place. So, it may be accurate to say that a particularly aggressive man perceived his unwilling partner to be consenting, but his perception will not be relevant, at the time of the trial, to determining whether his partner DID implicitly consent. Pretend the neighbor hears the woman scream “stop! stop!” but the man says that he interpreted such screams as an expression of pleasure. Surely, we want our rape laws to say that this is a case of rape, but also one of misperception on the part of the man. Thus, it seems irrelevant that men are biased toward yes.

The second objection is equally puzzling to me. The author thinks the “yes” model would let rapists off the hook because a man could move to unwelcome intercourse on the basis of heavy kissing or petting, and somehow claim that he had implicit consent. But this confuses the “yes” model for the specification of implicit consent that we choose to adopt. It’s true if we adopt a poor standard of implicit consent, such as sexual touching = consent to intercourse, then of course our rape laws will be ineffective, but using such a standard would be like saying that I consented for you to borrow my car when I let you look at my keys. As the author rightly says, sexual touching, especially in an age of sexually transmitted diseases such as AIDS and religious beliefs about what qualifies as virginity, DOES NOT constitute an implicit agreement to full blown sexual intercourse. And so, in cases where a man moves to sex on the basis of kissing, we would have to look at more facts. Heavy kissing might constitute consent, but it NEED NOT, and the facts of the case would become relevant again. For intercourse to be acceptable, there would have to be a new instance of consent, either verbal or not, that the transition to full blown intercourse was acceptable.

Anyway, this author has a different idea for how rape laws should work, but in the end, her proposal doesn’t seem that different than the “yes” model, and in any case, it seems that the “yes” model would be pretty good.


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