On Rape

Twisty’s original post on rape said the following:

Well, what if lack of consent were the default? What if all prospective objects of dudely predation — by whom I mean all women — are a priori considered to have said “no”? What if women, in other words, were seen by the courts to abide in a persistent legal condition of keep-the-fuck-off-me?

Nine Deuce recently followed up with her own take on it, which kept the same basic premise but made the penalties more cruel and explicit:

Any defendant convicted of rape will be assumed to have proven he is incapable of responsibly exercising his sexuality in society. As such, the penalty for rape will be immediate and irreversible castration. If a weapon is used in the commission of the crime, or if the victim at any time during the crime feels that her/his life was in danger, the added penalty of life in prison without parole will attach.

While neither of them are wrong in essence, I do think that all the talk about consent (in Twisty’s case) as well as crime and punishment obscures the crucial central tenant of their arguments. Personally, I spent so much time caught up in the arguments over the legal part of Twisty’s proposal that I nearly missed the point. By the time Nine Deuce published her extension, I had figured it out, which made her post frustrating to me. The inevitable effect of mixing a theory of personal empowerment with legal codification is that people will argue to death the legal side of things and will miss the theory part completely. That behavior is rampant in the comment threads on both posts, mostly from men but also from women.

How we punish rapists is irrelevant (not in general, but to the point that Twisty was trying to make). Defining a rapist is the crux of the matter. I think that what Twisty and Nine were saying can be simply codified as:

A woman has been raped when sexual activity has occurred and she thinks she has been raped.

That’s it. That is all that needs to be said.

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4 Responses to “On Rape”

  1. Iain Hall Says:

    They are both wrong in their desire to reverse the onus of proof as this would be a retrograde step that would irrevocably undermine any notion of justice.

    The problem with any rape case is that in the majority of instances it boils down to being a “he said she said” dichotomy and that is never a strong foundation for any prosecution . there is no easy solution to the difficulty of getting a conviction in a rape case, nor would making it easier serve our societies well.
    I don’t know why you think the definition you quote is so good I think that in a legal sense it is utter crap.

  2. pload Says:

    And that is a complete swing and a miss. Saying rape represents a ‘he said she said’ problem, nails the problem with the current definition of rape. Rape is a ‘she said’ crime. Whether or not a male ‘thinks’ he committed rape is completely irrelevant. True justice is when a man does not have the right to tell a woman what he did to her body. As long as a man can say “I did not rape you” then any professions of justice are a farce.

    It is up to the courts to decide if a sexual act actually occurred. But it is up to a woman to decide if she was raped.

  3. Iain Hall Says:

    Have you actually ever had sex with anyone?
    Actually negotiated with someone to be intimate with them?
    How often do people explicitly ask “are you consenting to sex with me”?
    How often is the whole thing done without any words at all?
    My point is that each side of a negotiation may well read the situation differently.
    I strongly support the idea that “no means no” but if “no” is not expressed in words or deeds at the time and then it has not been said and consent may well have been given at the time of the act.
    However you can not seriously believe that if a woman in retrospect decides that she probably should not have consented that the previously consensual sex act magically becomes rape? because that is what you are saying here.

  4. pload Says:

    Have you actually ever had sex with anyone?

    Why yes, yes I have. Thank you for asking. Details at 11.

    Actually negotiated with someone to be intimate with them?

    Pretty much all the time. Especially when it is someone I’ve never had sex with before. I’m never opposed to flat out asking if someone is interested in having sex, and if they’re not clarifying what their boundaries are. We can go one step farther. How many times have I turned down sex with someone who is clearly not in the state of mind to make a rational decision (drunk, emotionally wounded)? Fairly frequently back in my single days. Even when said female was in bed with me. It is called exercising good judgment.

    However you can not seriously believe that if a woman in retrospect decides that she probably should not have consented that the previously consensual sex act magically becomes rape? because that is what you are saying here.

    Fear of this reflects one of two potential mindsets. Either you think women are inherently irrational or evil and will just accuse lots of men of rape. Or you can think of lots of currently legal things that men do to get sex that women might take exception to. Of course this all segues wonderfully into my next post, so thanks for setting that all up.

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