Thursday, September 22, 2016

What is Rape? Why our answer matters.

The word rape originated from the 14th Century Middle English word rapere which meant "to seize prey, abduct, or take by force."  Today rape is generally understood to refer to sex acts or sexual intercourse extracted from the victim via violence or threats of violence.  Rape is classified as a violent crime, and in the popular consciousness of America, it is one of the most severe criminal acts a human is capable of, rating just below murder.  It is a form of physical assault which is especially dehumanizing and damaging.  Whether the victim is an adult or a child, rape can have a lasting, traumatic effect on a person's psyche and those who commit rape are rightly stigmatized and severely punished in our society.

From these ancient roots, we as a society have expanded the definition of rape to include "statutory rape"--that is adult molestation of a child.  In some cases, these rapes would have fit under the old definition, since they were extracted by violence and threats of violence, but in many cases they are extracted via manipulation by a person in a position of trust (a parent, relative, teacher, spiritual leader, etc).  Since we consider children ignorant and naive in sexual matters, we believe they are so vulnerable to these manipulations that they are essentially helpless victims of the manipulative sexual predator and therefore legitimate victims of rape even if violence or violent threats were not involved.  The long-term damage of sexual molestation to a child backs up these beliefs and reinforce the stigma that the rape of a child is an especially gross violation of human decency.  Even in prisons, child molesters are viewed by other prisoners as the lowest of scum.

But we have not stopped there.  We have expanded the definition of rape to include taking sexual advantage of someone who is incapacitated by alcohol or drugs.  Since drugging someone is already termed as a type of assault, this was a good move, but as a society we have not been very strict to the definition of incapacitated.  While normally this would mean that the person was incapable of taking action to prevent or refuse the rapist, in many cases a woman is now considered incapacitated if she is drunk or has consumed any amount of alcohol.

Yes, while I have been striving to be gender neutral throughout the rest of this piece, you did just read that last sentence right.  Women are considered unable to legally consent to sex if they are intoxicated.  Women, not men.  There may or may not be legal jargon backing that discrimination between the sexes, but it is clearly a practical reality.  Take a look at this 2008 poster used by the Coastal Carolina University to advocate against date rape:
"Jake was DRUNK.  Josie was DRUNK."  But only Josie was incapable of consenting to sex.  Only Jake could be accused of rape.  There are several problems with this.

First of all, from a female perspective, this means that if a woman has a drink she essentially becomes a legal minor--too naive and immature to handle adult decisions like whether or not to have sex.  The person urged to "be responsible" and make the right decisions for her?  A man.  This is a giant leap backwards as far as equal rights for women is concerned.

Second, from a male perspective it denies that men are vulnerable to drug-based rape.  The lopsided application of this seems to imply that either (A) men cannot be incapacitated by any amount of drugs or alcohol (which is absurdly untrue) or (B) men always implicitly consent to any sexual activity with anyone simply because they are male (which is grossly offensive, sexist, and completely untrue).  Either way, this steamrolls over the real horror stories of many actual male rape victims, including four of these nineteen real stories.  More than that, it makes men who are incapacitated by drugs or alcohol "perpetrators of rape" if they are climbed on top of and held down by a woman who had a single sip of alcohol.  She's drunk, so she isn't held responsible for the sex act she just forced him through: he is, even though he spent the whole time muttering "no...no..." and flailing in a drugged stupor.  That scenario may sound like a fiction, but it is an actual reality.  Last year an Amherst student was expelled for allegedly raping a young woman when he blacked out at her place and she decided to have oral sex with him without his knowledge or consent.  Under these definitions of rape men who are raped are not only completely without protection, they can even be charged as the perpetrators of crime against their rapists.

The third and final problem is that people choose to get drunk and have consensual sexual encounters all the time.  That's not to say that rape is common, though some statistical studies (including the one that came up with the famous "one in five women" statistic) have been using it to say that ("she had sex and she was drunk: I don't care what she says about it, it was rape!").  But men and women very often consciously use alcohol or drugs to improve their moods and help them loosen up their own inhibitions when they're going out looking for consensual sex.  People of both genders commonly go to bars to meet members of the opposite gender for casual sex.  Established couples who want to have sex will often plan for it at the end of an evening that includes dinner and alcohol.  Newlyweds often drink socially at their weddings and afterwards may even ask for a bottle of champagne or wine to be sent up to the honeymoon suite.  According to our over-expanded definitions, all of these sexual encounters count as rape (of the woman, and only the woman).  But are they really?  Does a woman really lose her ability to make adult decisions about what to do with her own body when she consumes any amount alcohol?  Can a man who is passed out on the floor from alcohol or drugs really rape a woman who climbs on top of him and forces him inside her?  No, and by answering otherwise we are skewing the definition of rape.

But many in our society seem to be afraid that we have not inflated the definition of rape enough.  They have started an "affirmative consent" movement which seeks to redefine consent and lower the standards of proof in rape cases to preponderance of the evidence (which means 50% likely to be true, as opposed to the Constitutionally mandated beyond reasonable doubt, which is over 99% certainty).  According to this movement, explicit, verbal, sober, voluntary consent must be given at every stage of a sexual encounter or it becomes "rape."  The problem is that this isn't how human intimacy or even communication works.  Studies have shown that the majority of human communication in person is non-verbal.  Nowhere is this more true than in a sexual encounter, where one's mouth is usually otherwise occupied.  While bits of verbal communication happen and are helpful to finding out what a partner does and doesn't like, non-verbal communication is even more critical.  If a partner pulls away, they probably don't like something.  If they lean in and smile or become more enthusiastic in their own actions, you're probably doing something they like.  But that's not enough for affirmative consent. If you want to start passionately kissing, you must stop and ask for consent first.  If you proceed from foreplay to intercourse, you must stop and ask for permission first.  This from an article supporting affirmative consent, which tries to reassure worried readers by telling them that if they forget to ask consent in these instances they will probably be okay.  After all, "If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later."  Note: there will be no reason to report a rape later not a rape did not occur.  According to the article, not asking for explicit permission before any intimate act does count as rape...but if you're good enough and she's enthusiastic enough you can persuade her not to report you for it.  That's a wonderfully heartening message for both genders (women: if you're raped under our standards, don't report it if you like the guy--basically be a rape-enabler; men: if a woman doesn't like your performance during sex, remember she can always report you as a rapist later).  Opponents of the movement have spoken out about its absurdity as well, including a Washington Post article which points out that it basically makes everyone a rapist because everyone who's engaged in any from of intimacy has probably done it without explicitly asking for permission first (including four-year-old girls who hug their dads or brothers without asking for explicit legal consent every time).  Another article raises the valid point that affirmative consent entirely misses the point.  The more welcome the action is the more unnecessary and even offensive asking for permission can be (imagine an old married couple asking, "Can I sit with you?"  "Can I hold your hand?"  "Can I put my arm around you?").  Verbal permission is generally only needed and sought when intimacy isn't very desirable to one or both parties (prostitutes make a verbal agreement to certain activities beforehand because they're only in it for the money).

It also points out that affirmative consent is causing more problems than it's solving.  Real rapists under the first and second definitions know what they're doing is wrong; they know they don't have consent.  That's why they're using violence, drugs, or manipulation of vulnerable minors to get what they want.  The best affirmative consent can do is clear up cases where there's a miscommunication between a couple as to how far they want to go in a given sexual encounter.  But is criminalizing misunderstanding really a solution?  Is a woman really raped if she agrees to a kiss and winds up in an unplanned make-out session?  Is a woman really raped if she agrees to foreplay and dry humping with a guy but he forgets to ask for permission before they both enthusiastically engage in intercourse?  Is that really the same as a person being beaten and thrown into the bushes by a masked attacker who then proceeds to forcibly penetrate them?  No, and by saying that these things are the same our inflated definition of rape has belittled the very real physical and psychological trauma of actual rape victims.

They have also led to a huge increase in men being accused of rape when they are not rapists.  There are, of course, the men who are accused of rape because of a miscommunication.  Is a man a rapist if he thought she wanted sex when they were rolling around naked in bed engaging in enthusiastic foreplay (and she remained enthusiastic throughout), only to find out later that she regretted taking things that far?  Is that really the same as a man who grabs a little girl by the head, threatens to kill her, and shoves his penis in her mouth?  By saying it is, we are trivializing the crimes of real violent rapists, and criminalizing people who are merely doing their best to please their partner.  But the expansively and absurdly broadened definition of rape has combined with the new lowered bar for determination of guilt (only valid in informal college tribunals which can, at most, expel students and label them publicly as rapists--because any criminal court in the civilized world would be ashamed to endorse such a low standard for such a severe crime), has led to a lot of people being found guilty for rape who actually just had consensual sex.  A man was expelled from St Joe's for allegedly raping a girl who explicitly and in writing invited him over to her place for sex via text message.  One student faced disciplinary action for rape after he hooked up with a girl who was cheating on her boyfriend by being with him, and she reported him for rape to protect the relationship.  Another was reported as a rapist and expelled after a woman he'd hooked up with became concerned that the casual sex she'd just consented to would damage her reputation (citation).  Most bizarrely, a few months ago a student from CSU Pueblo was expelled as a rapist for having what he and his girlfriend (the alleged rape victim) both explicitly, repeatedly, and unceasingly have maintained was consensual sex--because one of her friends assumed it was rape when she saw the girlfriend had a hickey and reported him.  Are we really willing to stand up and say that each of these men is a violent criminal on the level with someone who puts a knife to a girl's throat and tells her not to make a sound while he pulls off her pants?  On the level of a woman who duct tapes her boyfriend to the wall and shoves a vibrator up his anus while he screams in agony for her to stop and let him go?  Are we really willing to say that these women are rape victims of the same caliber as the victims of real physical trauma?  We are really sick as a society and really committed to ignoring the plight of real rape victims so we can push our political agenda if we answer yes to these questions.

And yet, increasingly, at universities at least, we do.  Something is terribly wrong with us.

Postscript:
Someone very close to me mentioned that a lot of these measures are designed to protect victims of rape from being blamed for the rape and ensuring that real rapists can't get away with their crimes.  I will say this: rape is a real crime that definitely deserves severe punishment and no one who commits such a heinous act should get away with it, or get off lightly.  As a society, we should make certain we are doing our best to protect and assist victims and exact justice upon perpetrators, especially with severe violent crimes like rape.  We should also never blame the victim of anything.  Survivors of trauma have to deal with their own psychological backlash and dark (and totally untrue) thoughts that maybe it was their fault or that they deserved it as they struggle to make sense of the senseless brutality they have suffered.  They do not need anyone reinforcing these post-traumatic psychological injuries from the outside, and blaming a victim for being a victim is also utterly senseless.  We don't tell people who get stabbed that it's their own fault for not wearing a stab-proof vest all the time.  And while it is alright to encourage people who are at risk of violence to take preventative measures, we need to understand these are stopgap measures meant to prevent attacks by perpetrators we can't catch, not actual solutions to the problem (the solution is catching the perpetrator) and that even if someone ignores these measure it doesn't make them responsible for being the victim.  If they weren't the one perpetrating the act, then they are not responsible for it, especially if it was done to them.  Period.

We should take steps to close loopholes that allow this kind of unacceptable behavior and the unacceptable escape of rapists (via excuses like: "well, she said yes to kissing, so it doesn't matter if she was screaming, crying, and crawling out of her skin when I initiated intercourse--she never actually said no"...or via ineffective investigations, weak courts, or unconscionably light sentencing).  At the same time, we have to really think about how we do this.  We have to realize that when we set these systems up, there will be some people out there who will try to game the system by claiming victim status and making false accusations.  We have to realize that when an accusation is first received, it is only one side of the story and we do not automatically know the truth of the matter.  That is, just because we have someone who's come to us claiming to be the victim, we cannot know without investigation whether or not they are the victim.  For all we know (as the above-linked case of the rape victim expelled from Amherst illustrates), the victim is the person they are accusing.  The founders of our nation realized this when they established constitutional rights for the accused.  We should not be hasty in discarding the measures they felt necessary and denying the accused due process of law.  If we decide to do so in the name of female rape victims it will give justice to, we also have to be willing to live with the fact that it will also be used to perpetrate injustice on innocent males (some of whom may even be the ones who were actually raped).  How to balance the need to bring justice for the victim with the need to protect innocents who are falsely accused is not an easy or light question.  We should not approach it as if it is, and I certainly confess I do not have the answers.

Even so, I don't feel like I should keep silent about this.  Keeping silent about a problem just makes it impossible for any dialogue on a solution to occur.  Also, I confess I have a personal stake in this.  While I have never been accused of rape or faced criminal charges of any kind, I was falsely accused (to church leadership, which wielded significant power over our lives) of stalking and harassing a young woman in the Rock--which behavior would fall under the umbrella of sexual crime, if true, and it was compared by various leaders to rape.  I had been friends with the young woman in question and for a while before we discussed the idea of getting involved romantically, I just wanted to remain her friend thereafter, and in the end I just wanted to pursue my other friendships in peace.  But false accusations and her claim to status as a victim of my supposed wrongs were used to control me, justify measures against me, and expel me from the group.  In a sense, I am one of those falsely accused of sexual misconduct--not rape, but not more than a stone's throw away from it.  I had to live for a few years with the constant fear that she would make more serious allegations about me, or even go to the police to try to gain more power over me and further punish me for wanting to go out with her.  I had to spend some time wondering whether I should go to the police first, whether I should get a restraining order against her, whether that was even a morally justifiable thing for a Christian like me to do, even though I did feel threatened by her and the leaders who were sympathetic to her.  I am free of her now, she took no legal action against me, and in the end I'm glad that my conflict with her got me out of a subtly-toxic and overly-controlling church group...but I can't help thinking about and sympathizing with victims of false accusations who aren't so lucky.  I can't help thinking, That could have been me, and someday, that might be me.  I have to say something.  Even if I'm wrong, it's better than being silent.