Anatomy of a Rape
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.
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.
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.