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This is the second part about rape, if you haven’t already read part one, then please do so first.

Cultural Forces

Male culture is often held culpable for glorifying sexual conquests, and this is said to be a precursor to rape, or at the very least a contributing factor to rape happening. That is an incorrect or at least incomplete claim for two reasons:

1. The overwhelming majority of men pursue women without ever raping a single woman. In fact, many men would risk their own life or health by trying to save a woman if they ever witnessed a rape.
2. Female culture tends to glorify man as predator just as much, or even more, than male culture does.

So what kind of female culture am I talking about? Harlequin novels, and similar examples of romantic and erotic literature for women, often describe sex scenes that would legally be considered rape in real life. A very common theme is that the man initiates sex, and even though the woman lets him know that she is unwilling (using her voice and body language), he proceeds to have sex with her, and then she changes her mind along the way.

For example, in Laura Taylor’s romance novel Anticipation, the hero scoops up the heroine, carries her to her bed, and then takes off all his clothes. The story continues:

Leaning over her, he efficiently jerked the front of her caftan apart, sending dozens of buttons flying every which way, then stripped it off her body.

‘What do you think you are doing?’ she demanded as she glared at him.

He watched her nipples tighten into mauve nuggets that invited his mouth. ‘Easing your tension,’ he announced in a matter of fact tone, despite the heat flooding his loins and engorging his sex. He came down over her, his hips lodging between her thighs, his upper body weight braced by his arms. ‘As sexist as that probably sounds.’

She squirmed, trying to free herself, and a sound of fury burst out of her when she failed to budge him.

In this quote (obtained from Taking Sex Differences Seriously), the man strips off their clothes, and then presses his naked body against her, while she is actively resisting what he is doing. The man does not rape her but he is clearly sexually assaulting her. Later in the passage the woman changes her mind and they proceed to have sex. However, since the episode starts off with coercion, it’s doubtful whether the consent can truly be trusted.

This is literature written by women for women to achieve pleasure and arousal in the reader! And the passage above is not an isolated example; a very common theme in romance novels for women is rough sex, and sex where the woman only gives consent half-way or even after the act has ended.

Romance fiction has the largest share of the consumer book market in the US, with an estimated $1.375 billion revenue in 2007. Please don’t tell me that female culture does not do its share to glorify and help legitimize rape.

Legal Aspects

I certainly agree with the sentiment that it would be desirable to be able to put more rapists in jail, since that is where rapists belong. However, we need to apply the same legal principles in rape trials as in other trials, i.e. you are innocent until proven guilty.

No person deserves to be convicted solely based on the victims’s account of events. Word against word is too uncertain a method used on its own; we need additional evidence or testimony if we are to deprive a person of his or her freedom.

Feminists sometimes claim that a believable account of rape by a woman should be enough for a conviction, since no woman would ever go through the hassle and trauma of reporting a rape that didn’t take place. This may sound plausible, but research informs us that false rape allegations are a very real phenomenon, so we cannot simply assume that every woman who steps forward is telling the truth.

The most thorough research reports available indicate that 25 percent or more of rape allegations are false, which is much higher than for other crimes (source and source). Regardless of what the exact numbers turn out to be, we have enough information to dismiss the claim that women don’t make false rape allegations, and therefore we can never let word against word be enough to warrant a conviction in rape trials.

Another common perspective when discussing rape trials is that the woman’s sexual history should be inadmissible, since she is not the one on trial. Many countries have Rape Shield laws to ensure that women are protected from questions concerning their sexual past. As much as I empathize with the woman’s right to privacy, and the exceedingly difficult situation she is in during a rape trial, there is also another person to consider.

The accused man must be given the right to defend himself, how could he otherwise possibly prove his innocence? The woman is publicly claiming that he is a man who includes rape in his sex life, but he is not allowed to talk about known facts about her sex life in order to defend himself? That is a ludicrous double standard that has no place in a fair legal system.

Similarly, we need to accept testimony regarding previous rape claims by the woman, and previous rape allegations towards the man. All relevant facts need to be admissible in order to have a fair trial.

Is This Rape?

Let’s have a look at a range of sexual scenarios, to see if it’s rape or not. I’ll offer my own opinion and you can offer yours in the comments.

You want to have sex, and have sex. This is obviously not rape.

You don’t want to have sex, but your partner does, and you choose to have sex to keep your partner happy. As far as I’m concerned this is not even nearly rape, since there is no coercion involved.

You want to have sex, but your judgment is clouded by alcohol. This is not rape in my opinion, though some feminists claim that it’s date rape - but only if the woman is drunk. I’ve yet to hear a feminist claim that it’s date rape if a drunk man has sex with a sober woman.

You are seduced, or talked into having sex. Some extreme branches of feminism consider this to be a form of rape, but most people would just call it courtship, and I agree with the latter sentiment.

Your partner threatens to leave you if you don’t agree to have sex. This is certainly a nasty situation, and a dysfunctional relationship, but I don’t consider it to be rape. You choose yourself whether to stay in the relationship, and if you really don’t want to have sex you are free to leave.

You are intoxicated to the point that you are unconscious, and somebody has sex with you. This is rape by definition, since an unconscious person is physically incapable of consent. However, these kinds of rape cases are extremely difficult to prove, since an unconscious person doesn’t fight back, so there won’t be any physical scars to support a rape case. Teenagers of either gender need to be taught not to put themselves in such a vulnerable position. If you pass out from being drunk, then you are not taking care of your own health and safety in a good way, and it is naive to think that nothing could happen.

You are physically overpowered, or physically threatened, and thereby forced to have sex. This is 100 percent rape, whether it’s a stranger or someone you know forces you to have sex against your will.

Rape is a horrible thing. It is one of the worst boundary violations known to humankind, and the victim is often left with substantial psychological damage that can take months, years or even a lifetime to repair. If you rape someone, you deserve to go to jail for a very long time.

It is precisely because rape is such a serious offense, that we need to discuss it in a calm way, while bringing in a multitude of perspectives. And it is because we recognize the horror that is rape, that we need to have as exact a definition as possible, and not let that definition slide for ideological reasons.

Defining Rape

If you look up the word rape in various dictionaries, you’ll see that the definitions vary quite a bit. Different countries also have different legal criteria for defining what is and isn’t rape. I believe that the following criteria represent a fairly neutral and reasonable definition of rape:

• Person A acts intentionally
• Person B does not consent or is incapable of giving consent or is beneath a certain age 
• Person A does not reasonably believe that person B consents

Some people believe that all sex that is not prefaced by explicit verbal consent should be considered rape. However, legislating that all sexual consent must be explicit would basically turn the whole adult population into a bunch of rapists, men and women alike. 

Most people simply don’t have this kind of conversation before having sex:

“Would you like to have sex with me?”
“Yes, I would like to have sex with you. Would you like to have sex with me?”
“Yes, I would, so let’s get started”

What Constitutes Consent?

Most of you have probably heard the expression “a no is always a no”, or some variant of the same. Such a phrase may be useful when teaching young women and men to connect to their own will, and learn how to turn down an offer of sex in no uncertain terms. However, when discussing what constitutes rape that kind of phrase may prevent us from seeing how complicated sexual scenarios can be.

Sexual consent is far from always given using your voice. As we all know sex is usually initiated through body language, and a gradual increase in physical intimacy. Therefore, any discussion of consent must deal not only with what was and wasn’t said, but body language too.

There are at least three different categories of body language:

1. Actively participating, e.g. removing your partner’s pants or putting on a condom. Your body language is then saying that you consent.
2. Actively resisting, for example pushing the other person away or blocking your own genitals. Your body language is turning down the offer to have sex.
3. Tensing up or freezing also indicates that the person does not want to have sex.

What is being said is very easy to classify:

1. Saying no is a good indication that a person refuses to have sex
2. Saying “oh yes” or “more” very likely indicates consent and active participation

As long as the body language and what is being said are congruent, it’s usually easy to pass judgment on whether a person consented or not. For example, if you say no and also push the other person a way, you are clearly turning down the proposal to have sex, while if you spread your legs and say “take me” you are giving consent in no uncertain terms.

The tricky scenarios arise when body language and what a person says contradict each other. If you are pulling down your partner’s pants, while simultaneously saying “no, we shouldn’t be doing this, no, we can’t have sex” then what message are you really transmitting? In my opinion your body language is saying yes in such a strong way that you have consented to have sex. This simple example indicates that a no is not always a no, far from it.

Date Rape

A special category of rape that is interesting because of the media attention it has received, is date rape.

The original definition of date rape, as stated by Wikipedia, is the following:

Date rape is non-consensual sexual activity between people who are known to each other platonically or sexually.

So far so good; this is a very reasonable definition of a social phenomenon that has been shown to exist.

However, the definition of date rape has begun to slide significantly in many modern countries, and the tendency to allow any drunk woman to claim rape the next morning - even if the sex was consensual - is downright scary. Here is a quote from About.com, a well known and well respected resource, where the author of the article is addressing teenage guys:

Another area of confusion on the date rape topic is intoxication. Bottom line, if a girl is intoxicated she cannot consent to sex and you could be charged with rape. It does not matter whether you knew she was intoxicated, it doesn’t matter if you were intoxicated too, all that matters is that she was not in a state of mind to consent and therefore it is rape. If you get a girl drunk or high and then “get together” with her you have committed a sexual assault. Again, it doesn’t matter if you are drunk or high as well. Your diminished abilities do not negate your responsibilities.

In other words, men are expected to be responsible and aware at all times, even if they are wasted, while women have no responsibilities whatsoever the moment they start drinking alcohol. In my mind this kind of reasoning is very problematic, since it treats men as adults and assumes that women are like irresponsible children. In my opinion “man-as-adult” and “woman-as-child” are neither useful nor accurate lenses for describing interactions between the sexes.

If we agree with this kind of reasoning around drinking alcohol and having sex (a sexual behavior that is considered normal in many countries), then we criminalize a large portion of all men, but none of the women! Giving women the power to label any sexual activity when they are drunk as rape, means that any guy who has consensual sex with his girlfriend after sharing a bottle of wine can go to jail for years. If that’s not insane I don’t know what is.

(More about the difficult subject of rape in my next post.)