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War of the Genders

A confrontational soapbox for rants and politically incorrect manifestos regarding feminism, chauvinism, dating and gender issues.

Location: Jerusalem, Israel

This isn't a dating site. If you wish to propose marriage or to beat me up, leave me a note.

Sunday, March 12, 2006

Anatomy of a Rape

This is going to get long and technical.

The Problem

I previously took two approaches to rape to their logical, albeit absurd conclusions. In one I attacked the concept of consent and rape as control or power, and in another I explored the pre-requisites for consensual sex and statutory rape.

The problem is, as a friend pointed out, is that even I didn't take these positions far enough. For example, if one argues that consent based on deception is rape, then it's only fair to conclude that if a woman slept with her husband on the assumption that he wasn't cheating on her, that she could sue him for rape.

Following the other path, if a grown woman somehow shows that she was not of a mature enough mind when she consented to sex, then what is legally stopping her from claiming she was raped?

The absurdities are endless. Which leads me to conclude that the current definitions for rape are badly defined, inconsistent and legally untenable. I am left with no alternative but to ignore the law, society and even popular usage and dictionary definitions, and find my own.

The fact that this leads to absurdities alone is not a strong logical argument. But when laws are applied inconsistently because they lack a solid definition, and real rape victims are given a hard time because they are categorized together with farcical cases of neurotic women who regret having sex, then the argument for a new definition becomes peremptory.

Physical force is not a valid definition because this would exclude drugs and hypnotism.

Using consent as the single criterion and defining it as, for example, 'to exercise reason and reach a decision unaffected by duress' quickly leads to many of the absurdities I mentioned earlier. Duress covers too much ground and any consent can all too easily be disqualified by ridiculous technicalities.

The Thomson Legal Encyclopedia defines consent as: "Consent is an act of reason and deliberation." "Consent assumes a physical power to act and a reflective, determined, and unencumbered exertion of these powers. It is an act unaffected by fraud, duress, or sometimes even mistake when these factors are not the reason for the consent." Note how fraud and even mistakes could invalidate consent, which confirms what we've been saying.

The Solution

If I were a legislator, I would suggest a more strict definition for rape. The way I see it, the following conditions must apply so that sex will not be considered rape:

1. The potential ability to make a decision based on free-will is present in both sex partners.
And: 2. Both allowed this ability to be exercised and enforced.
Or: 3. They willingly placed themselves in a position where their decision making ability could be damaged or overpowered.

Note the careful wording and that the ability to make a decision is not the same as the concept of consent. As described above, consent is an action that must be performed, and an action that is dependent on many factors which could be invalidated later (e.g. due to deception). I.e. since consent means that she must say 'yes' (even via body language or by performing what is suggested to her) and that this must be a valid 'yes', then it follows that if she didn't perform this action or if it is revealed later that the consent was dependent on invalid factors, she was raped.

The ability to make a decision and enforce it, however, is determined purely by the events leading up to the sex act and no other facts are relevant. If these abilities were present, then no matter what is revealed afterwards, they cannot be invalidated. The only criterion according to #1 is that the ability be present potentially, not that the ability was actually exercised or even used in a correct way. This is a subtle but crucial difference which allows us to create a consistent definition that doesn't lead to absurdities.

It is important to point out that all of the above relies on one important, perhaps obvious assumption: That free-will exists and is always exercisable. Without both criteria, we would be stuck with difficulties in measuring levels of duress, and flippant claims of temporary insanity (which means that their mental faculties were overpowered by any of a thousand various possible distractions). If one believes that man is a biological creature that can be easily swayed and overpowered, then he would have the impossible task of setting a standard for measuring even benign and minor pressures and their effect on individuals. According to Judaism, even if during the act he was too weak to make a correct decision and override pressures and he was therefore 'temporarily insane', the demand on him is not to let himself get to that weakened state or dangerous position in the first place.

The second rule ensures that this ability was not taken away in full. Pressure in the form of an obstacle, distraction, manipulation, pressure, etc. do not count because they only make things more difficult, not impossible.

Also note that there can be no imposed ideologies in law. If a grown woman decides she wants to be humiliated by her client, no feminist can declare her brainwashed without proving medical brain damage.

The third criterion, although obviously controversial, is logically necessary because since the key issue here is the decision making and enforcing ability, by willingly putting this ability in jeopardy she is effectively waiving her rights. I.e. if your only defense against rape is this specific ability, then when you knowingly dismiss this ability you cannot claim protection from the law. It would be the equivalent of a man putting his hand in some dangerous machinery while another man is operating it. He cannot sue the operator for inflicting damage on him even though the operator could have chosen to stop turning the wheel, because he effectively waived his rights to be protected by dismissing his own protection and choosing to take the risk.

This is known in law as Assumption of Risk (or volenti non fit injuria). In the words of the Legal Encyclopedia, this is a "defense, facts offered by a party against whom proceedings have been instituted to diminish a plaintiff's cause of action or defeat recovery to an action in negligence, which entails proving that the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it."

The encyclopedia entry then differentiates between a case where the plaintiff made a reasonable decision to proceed despite low risks and proper conduct, and cases where the plaintiff makes an unreasonable decision to proceed despite safer alternatives: "...as where, with other transportation available, the individual chooses to ride with an intoxicated driver. If this occurs, the plaintiff's conduct is a type of contributory negligence, an act or omission by the plaintiff that constitutes a deficiency in ordinary care, which concurs with the defendant's negligence to comprise the direct or proximate cause of injury."

One could argue that in the case of rape, the defendent had a choice. But this would only mean that he behaved immorally and should be punished accordingly, not that she was technically raped. The aforementioned machine operator could be punished for disregarding human life for example, but he can't be sued for damages when the plaintiff knew the risk and did it anyways.

Whether the defendant could have stopped it or not or whether he is breaking the law is irrelevant. For example, it cannot be argued that the rapist chose to assault the woman and this is all that counts. As in the example of the intoxicated driver, the driver could stop driving or refuse to take the passenger, but nevertheless, the passenger "cannot recover for injuries" by law.

I realize I'm basically using the argument of 'she was asking for it'. But I'm not defining what cases would be included in this category and I concur that some people use this statement unfairly. In addition, I am not arguing that the rapist go unpunished. Despite the fact that this is a red-hot button and that most people have violent, knee-jerk reactions to such statements, as shown, it has logical and legal validity.

The Practice

To consolidate all of these concepts, let's try to categorize several possible types of rape. Under these three rules the following would be considered rape:

- Physical force, because she was not allowed to exercise her decision.

- Overpowering drugs and hypnotism, for the same reason.

- Consent due to a threat of overpowering force, which is basically the same thing because she would not be allowed to exercise her decision even if she tried.

- Sex with minors or a mentally deficient or damaged person, because they do not have these abilities. The mental damage must be absolute, not a partial impairment.

- Sex with a captive who never had a chance to gain from undamaged points of view at any time in his restrained life. I.e. he psychologically had no ability to make a choice. For example, this includes a woman kept in captivity all her life but not a grown woman who is part of society and could have asked questions or associated herself with better people.

- A man who sneaked up on his sex partner who thought he was her husband. In this case he didn't allow her to even begin making a decision which is technically the same as force.

Under these three rules the following would not be considered rape:

- Sex based on lies and deception. Lying is not rape because although wrong information invalidates consent, it is not an impairment of the ability to decide. The person could easily decide to hold off until more information or proof is attained. The key here is that the information on which she based her decision and her ability to decide are two separate things and therefore one could not invalidate another.

- Sex based on a lack of a decision or a weak or incorrect decision. Regret, passivity or lack of proper time and resources to deliberate do not invalidate the ability to decide.

- Sex based on strong pressures and manipulations, because, as explained, the assumption is that the ability is still there even under duress.

- This even excludes a woman who is blackmailed into sex with threats of humiliation. The ability to make a decision still exists therefore although this action is immoral and criminal, technically it cannot be rape.

- Sex due to physical threats where he threatens to harm her but not to hold her down, giving her a choice between injury and rape. This may be harsh but we must be consistent.

- Sex due to patriarchal control or social pressure. The ability to make a decision is still there, they just didn't make the right one. Society may be held accountable but it isn't rape.

- Prostitution and pornography where the woman was not physically forced. Mental or economical pressures do not qualify for the reasons stated above and just because her behaviour does not satisfy feminist ideals and may even have been affected by the patriarchy, she still has the ability to choose.

- A man who was tied down and rubbed up against by the sexiest naked woman on the planet. The ability to decide is still there albeit weakened.

- Intoxication where the women chose to drink alcohol and then consented to sex whereas she wouldn't otherwise. She knew she could lose control therefore he is technically not a rapist.

- A woman going alone to Mike Tyson's apartment late at night. She knowingly took a very probable risk and could have easily gone elsewhere, therefore he cannot be sued.

Most of these examples involve duress or pressure of some kind, and some may seem like valid reasons to claim rape, but as shown, this is a slippery slope.


Barring an alternative solid definition, this seems viable to me. Although some of these judgements may seem harsh, the point here is to define rape and apply it to specific and appropriate circumstances, not to allow criminals to go unpunished. Just because something is not defined as rape, that doesn't make it moral or unpunishable.

More importantly, it allows for laws to be applied consistently and without discrimination, and it gives the real rape victims the severity they deserve. Throwing accusations of rape around the way women do nowadays and thanks to the 'rape culture', rape is turning into a joke and the real victims suffer as a result.


Blogger Yudah Toledano said...

You write: “…if a woman slept we her husband on the assumption that he wasn’t cheating on her, that she can sue him for rape”.
I don’t think this is a valid argument: in this case she “accepted sex” because he is her husband, now, you may assume that if she would have known that he is cheating she would had refuse, this is exclusively your assumption and maybe hers, but its completely irrelevant, after all she agreed to have sex with him, at that particular moment. If we don’t agree to that, then we can push the absurd even harder: she can also one day claim that if she had known that “he had stake that day she wouldn’t have sex with him”, what to you want from her life: she hate stake eaters! Therefore we have to agree that she doesn’t have to know everything about his habits, even the sexual ones! He can lie to her too; this would never constitute criteria for rape! Even according to the “commonly-accepted logic” you are trying to refute!

“…shows that she wasn’t mature enough…” nobody will arrive to this conclusion, because technically it’s impossible to define, not so say to know, when she is “mature enough”, you can’t push to absurd’s that will never be considered!

Over all I agree that most of the definition running now-days in the media or in the so called “justice-system” are absolutely arbitrary, they need to be revised bottom-up, send most of them to the trash-can, and other to the cleaners! The problem is that so many groups and organization are competing-combating or the opposite, fighting against this ideas that finally what’s come out is a non-define product, no body is happy! “Ideas” now-days are just a consumable-product like a mobile phone or a pair of shoes. A famous French psychoanalyst once said: “if you wand to lose your idea, just fight for it”! Democracy isn’t about what’s right or wrong, it’s just a balance and compromise between few power groups, nothing else! And don’t tell me you are following Kant with his universal’s ethical laws!

I find your definitions very interesting, therefore, because of de complexity I would like to ask few questions in order to check if I understood you correctly.
Am I right to conclude that according to you, a male can’t be ever considered raped by a female, including a case when she is a heavy-weight wrestler and Miss Universe on top of it bat him just a “half Woody Alain”??
Am I right to assume from your essay, that if the female decided during the intercourse that she “wants home” but he continues, that it’s no rape, and maybe not even a “violent-act” which he will have to be accountable for?

Finally, am I right to assume that for you Baron there are three different “measures”:
A. An absolutely consented act emerging from your undisputable freedom. B. An act which you didn’t or you don’t agree but still under your responsibility. C. An entirely forced act in which the one how forced it on you will be 100% accountable, so, in our topic; A Rape?

March 15, 2006 5:01 am  
Blogger Baron said...

I'll answer in two parts. First, a clarification regarding the law and consent:

I admit I am having difficulty nailing this issue but that is because every source I use for clarification seems to contradict everything else. Rape accusations are being thrown around by people in the most ridiculous contexts, feminists keep expanding the concept of rape, and legal systems seem incapable of consistency, obviously under pressure by women who want rape laws to address the fact that they were taken advantage of while at the same time attempting to remain practical.

Different countries and states differ in their definition of consent. For example, California has an approach quite similar to the one I used: "Positive cooperation in act or attitude pursuant to an exercise of free will."

Although my examples of a cheating husband, etc. are obviously absurd, in theory there is nothing in the current popular definition of rape that would logically preclude such things from happening. Whether these absurd cases are accepted as valid or not, I believe rape cases will only become more ridiculous and may even reach similar absurdities in the near future thanks to these weak and inconsistent definitions.

As even the legal encyclopedia states, consent is invalidated by deceit or duress, and rape is defined as 'lack of consent'.

In Kansas, I found a law that says that rape includes: "sexual intercourse with a victim when the victim's consent was obtained through a knowing misrepresentation made by the offender that the sexual intercourse was a medically or therapeutically necessary procedure." And another one that says "...consent was obtained through a knowing misrepresentation made by the offender that the intercourse was a legally required procedure within the scope of the offender's authority".

Which clearly proves that deceit is a valid criterion for rape and such absurdities are already creeping into the law.

The Kansas law is only one step away from a case where an employer promises a job or promotion if she would have sex with him, and this is only one step away from a case where a date says he is a rich man and she sleeps with him on the basis of this lie.

In addition. the issue of consent has become so confusing that in 1994, Antioch College in Ohio adopted a ridiculous definition based on continuous verbal communication during intimacy. The person initiating the contact must take responsibility for obtaining the other participant's verbal consent as the level of sexual intimacy increases. The rules also state that "If you have had a particular level of sexual intimacy before with someone, you must still ask each and every time."

If we have already accepted such absurdities, why not the ones I listed? Logically there is nothing stopping this from happening.

Currently, most courts practice a more viable approach and these absurd cases are inadmissible because:

a) Consent in the context of rape seems to be defined as a simple human cooperative act to have sex and not as a contractual agreement which could be technically invalidated. I.e. common sense is practiced instead of legal jargon.

b) In the absence of force, many courts place an emphasis on whether the alleged rapist may have reasonably understood that she was consenting (i.e. his intent is what counts). No matter what she says later, if it is proven that her behaviour reasonably expressed an agreement to have sex, then it isn't judged as rape.

But this approach has consistency problems of its own and has obvious difficulties defining what is a reasonable act of consent. Since the courts must judge what could be reasonably construed as consent, they would never accept 'hate for steak-eaters' as a valid reason to disqualify her consent. And yet in Arkansas, if a doctor told her that she must have sex for medical reasons and she was stupid enough to believe him, then he is a rapist despite her consent.

It's interesting to note that historically, in order to get a conviction for rape, physical resistance must be proven. But then they had to extend the law repeatedly until the definition lost all shape and form:

1. Statutory rape was defined where a minor's (or a mentally deficient person's) consent was invalidated based on her psychological inability to give 'informed consent'.

2. In some courts, if the woman was proven to have had only verbal objections, it may still be judged as rape. This was allowed in order to judge 'date rape' cases where there was no obvious force but there may have been a lack of consent or some kind of pressure involved.

3. Fear of injury was defined as lack of consent, thus including duress as a factor which invalidates consent.

Each of these brings with it a Pandora's box of difficulties: What is consent? What is duress? What is 'diminished capacity'? What is 'informed consent'? How much of each of these is enough to classify it as rape? All of which brings me back to where I started.

And these are only the legal difficulties. When it comes to society's view on rape and sexual ethics, these are even more problematic. For example, there is the famous statistic still quoted by women worldwide that one in four women get raped (Mary Koss, 1985). What they don't realize is that the study on which this number (27.5%) was based included:
a) About 15% who gave in to sex due to alcohol ("Have you had sexual intercourse when you didn't want to because a man gave you alcohol or drugs?")
b) Only 27% of these women labeled themselves as rape victims. Of the remainder, 49% said it was "miscommunication," 14% said it was a "crime but not rape," and 11% said they "don't feel victimized."
c) 42% of these raped women went to have sex with their 'rapists' a second time.

Which obviously lowers the number of real rape victims considerably. Other studies on rape include similar problems with overly permissive definitions of rape.

Koss even counted 53.7% of women as "sexual victims" because they gave in to "arguments and pressure".

Dr. Andrea Parrot from the Cornell University Coalition Advocating Rape Education says: "Any sexual intercourse without mutual desire is a form of rape. Anyone who is psychologically or physically pressured into sexual contact on any occasion is as much a victim as the person who is attacked in the streets".

Etc, etc.

March 20, 2006 12:26 am  
Blogger Baron said...

Regarding your other examples:

- Male rape: This would depend on whether an erection is voluntary or not. If voluntary, then obviously a man cannot be raped. If the man is too weak to resist, perhaps one can argue from a Jewish point of view that he shouldn't have let himself get to that situation in the first place.

But of course if there are drugs that cause an involuntary erection, this would be considered rape.

- Also, the definition depends on what consitutes rape. If forced lewd fondling or oral sex is rape then obviously men can be raped.

- Which also applies to your other example of a woman who changes her mind mid-coitus. If penetration is the only thing that counts then it's too late. If the sex motions also count then it would be considered rape if he continued despite her protests

Regarding the 'three measures': your summary sounds correct.

March 20, 2006 12:35 am  
Anonymous Anonymous said...

Ok, I was actually taking your rants somewhat seriously until this post. This one unfortunately shows that despite your attempts at sounding intelligent, there are some pieces of logic that are largely lacking. I could argue dozens of points, but the most hilarious thing you said is:

"The opposite vectors meet and join forces to create something new, each representing the yin and yang of creation, the flip sides of a coin and the basis of all spiritual power in the world we live in. Which, by the way, is why homosexual marriage is relatively a ridiculous farce."

Um. Have you ever seen a butch/femme couple? That's as yin yang as you can get. It's not just looks, it's yin and yang in personality, habits, energy, and everything else.

Silly boy.

December 09, 2008 3:41 pm  
Blogger Baron said...

First of all if you disagree with some of my logic then you can always discuss or raise your counter-points. Dismissing years of writing as 'silly' based on some points you disagree with that you don't even mention, and taking a personal, insulting, and condescending stance instead of just ignoring me, only shows me that you have taken what I said as a personal affront and therefore chose to react in this defensive way.

The one quote you chose to criticize was not in this post. I write it in Music of the Soul in which I discuss core gender differences that are much more fundamental than 'butch/femme'. If you read that post, I talk about spiritual vectors, not personality traits. A couple with very different personalities may provide a certain element of opposing/complementary personality but this is definitely not as 'yin/yang as you can get'. Yin/yang is a perfect complement, direct opposing forces which work together unhindered and combine to create a new whole. Personality differences very often involve compromise.

In addition to it not being fundamental enough, I can also argue that many (most?) gay couples are not butch/femme, and that some even switch or express this so-called personality only in bed, or in other limited ways.

A telling point would be that many lesbians argue that this butch/femme label is either inadequate, that it is politically-incorrect because it's based on the assumption that the butch/femmes are imitating traditional gender roles, or that it presents a new type of gender identity. In other words, they are saying that being butch doesn't make you male. I personally have met butch females that are still obviously feminine at their core so having a butch personality is not deep enough within this context. The question as to what identifies a butch woman as female still remains and this is what I was referring to.

December 09, 2008 5:48 pm  

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