Some General Principles Regarding Rape
Dictionaries (e.g., Dictionary.com, Merriam-Webster, Oxford) indicate that the term has had several meanings, each from distinct etymological origins. One such meaning, in focus here, stems from the Latin word rapere, meaning to seize, carry off by force, or plunder. “Rape” is still sometimes used in those senses. Primarily, however, the dictionaries indicate that rape involves sexual intercourse in either of two contexts. One such context is called statutory rape because rape is deemed to have occurred as a matter of statute law, regardless of consent, when it involves a child below the legal age of consent. In the U.S., that age is 16 in about two-thirds of states and either 17 or 18 in the remainder. In other countries, the age of consent reportedly ranges from 12 in Angola to 21 in Bahrain.
Aside from statutory rape, those dictionary definitions also identify rape as occurring when coercion or physical force is used to compel an adult to engage in sexual intercourse. That appears to be the most common meaning of the term.
That definition has been refined in recent years, in ways not necessarily reflected in dictionaries. For instance, the U.S. Federal Bureau of Investigation (FBI, 2013) no longer limits rape to instances involving vaginal penetration. In the new FBI definition, rape occurs whenever there is any nonconsensual penetration of any person’s vagina or anus by “any body part or object” and also includes nonconsensual “oral penetration by a sex organ of another person.” Consent is deemed not to exist where the victim is incapable of giving consent due to “temporary or permanent mental or physical incapacity.” A New York Times article, commenting on that FBI change, notes that this last phrase includes the inability to consent due to being drugged or very drunk. Others add the conditions of being asleep or unconscious.
Some other agencies and jurisdictions vary from that FBI update. For example, RapeCrisis.com indicates that, in Texas, rape can also occur when Person A causes nonconsensual contact or penetration, by Person B’s sex organ, with the mouth, anus, or sexual organ of Person A or Person C.
Such behaviors constitute rape when committed “intentionally or knowingly” as distinct from accidentally or without awareness. As another example, a Stanford webpage indicates that, in California, there can be an inability to consent (due to e.g., physical or mental disorder or disability, drugging, unconsciousness), sufficient to support a finding of rape, only if the perpetrator should reasonably have been aware of such inability. According to that webpage, California also finds an absence of consent when the victim was “not aware . . . that the act occurred or of the essential characteristics of the act due to the perpetrator’s fraud in fact.” An example of such fraud could arise where the perpetrator falsely presented him/herself as the victim’s legal spouse.
The Rape, Abuse & Incest National Network (RAINN) states that one need not remember an assault for it to be considered rape. RAINN also indicates that, where the alleged victim was conscious but intoxicated, the key question is whether s/he consented to have sex, and that the precise means of answering this question varies from state to state.
There appear to be some widely accepted rules on what counts as duress or physical force sufficient to compel intercourse and thus support a charge of rape. The Stanford webpage defines duress, for these purposes, as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted.” Such coercion can include threats, by the perpetrator, to retaliate in the future or to use his/her legal authority to arrest or incarcerate the victim or a third party. RAINN further indicates that neither physical nor vocal resistance may be required in circumstances where one is legitimately afraid for life or safety, or where one makes a defensible judgment that such resistance would result in serious physical injury (see also Adkins, 2014).
Introduction to Rape Controversies
Rapes can be committed by men or women against men or women. Stemple and Meyer (2014) have recently contended that sexual victimization of men is much higher than normally understood, in some regards approaching the rates at which women are victimized. It is not presently clear how that contention will fare in scholarly debate. At present, in this post and elsewhere, it is typically assumed that rape is predominantly a crime in which a man forces a woman to engage in specific forms of sexual conduct against her will.
Because rape is generally viewed as a serious crime, debates and prosecutions involving rape accusations tend to feature strong feelings on both sides. Such feelings are held, not only by those who have been placed directly at risk by the physical event or by the criminal proceeding, but also by others who feel threatened or concerned about the particular case or about its effects upon other men and women. In addition, few if any other crimes draw such sharp lines between such large sections of the population.
In such a setting, it can be difficult to conduct a disinterested analysis, and to be perceived by all parties as conducting a disinterested analysis. A complete lack of prejudgment as to all aspects of the situation may be feasible and plausible in certain abstract pursuits; such objectivity is unlikely but perhaps not impossible in this context. In other words, most of us, discussing most rape-related topics, are likely to find it difficult to see some aspects of an opposing view.
Examples of the kinds of biases or concerns that may shape one’s judgment in a rape context include tendencies to empathize most deeply with people who are most like oneself (e.g., fellow males or females), to be most concerned about people who seem to be like oneself or one’s loved ones (e.g., “my son or daughter could be in this situation”), and to guard against abuses by types of people with whom one does not sympathize (e.g., persons who may be perceived as rapists or as false accusers). It is not clear to what extent a reader can enhance his/her objectivity by remaining aware of such personal preoccupations.
Virtually all possible aspects of alleged rape situations have been disputed, over the centuries, in countless legal cases. Some such disputes are factual. For instance, there may be disagreement as to what someone said or did. Other disputes have to do with the conclusions drawn. For example, given that Person A committed act X, should we conclude that consent was present or not present? In most if not all jurisdictions, there will be an established history of such disputes, establishing legal precedent to guide judges and juries in reaching conclusions on the facts of a case.
Degrees of Rape
As common sense and the foregoing discussion may suggest, not all rapes are alike in the kind or intensity of force or coercion used, or in the consequences for victims. A search leads to a variety of webpages distinguishing various degrees of the crime of rape. For instance, Nolo.com says,
In some states, first degree rape may consist of rape accompanied by severe physical injuries. First degree rape carries a harsher punishment than second degree rape, which may involve no physical injuries beyond the rape itself.
There are other possibilities. For example, WomensLaw.org indicates that, in New York, related crimes range from sexual misconduct, sexual abuse, and forcible touching (misdemeanors) to three degrees of rape (felonies), with distinctions among the latter apparently entailing questions of ability to consent. (For a much longer list of New York sex crimes, see RAINN.) Another site indicates that Iowa recognizes three degrees of sexual abuse, which (in that state’s criminal law) apparently includes rape among other things.
Penalties for such crimes vary. That Iowa page says that first degree sexual abuse, causing serious injury, carries a sentence of mandatory life imprisonment without parole, while third degree sexual abuse (e.g., sex against the victim’s will) carries a minimum of a $1,000 fine without imprisonment. Similarly, in California, one attorney’s webpage says that penalties vary from probation without imprisonment to 13 years in prison, depending in part upon the degrees of force and injury.
Rape Cases and Scenarios
The following stories, some real and some hypothetical, may illustrate the great variety of possibilities within the crime of rape.
(1) Nolo offers two rape scenarios. In the first one, a man breaks into a woman’s apartment, threatens her with a knife, hits her, but does consent to use a condom while having sex with her. Conclusion: rape; the woman’s suggestion of a condom does not indicate consent, but rather is merely an attempt to reduce harm. In the second scenario, after a man and a woman have dinner together, the man suggests that they go back to his office. The woman has heard that the man is violent. She fears he may hurt her physically or damage her career. To avoid this risk, she goes back to his office and has sex with him. Conclusion: no rape; he threatened nothing; she consented.
(2) On August 11, 2012, according to the New York Times, two Steubenville High School (Ohio) football players — black players, apparently — engaged in sexual activity with a 16-year-old girl who was too drunk to resist them. Wikipedia and NPR indicate that the sexual activity in question consisted of putting fingers into her vagina. A CNN report said that defense attorneys attempted to explore the victim’s history but were largely prevented by the judge, since “Ohio, like most states, has a rape shield law that limits the amount of information of an alleged victim’s past that can be explored in court.” Evidence presented at trial was not entirely consistent: witnesses “testified the girl appeared to be drunk, stumbling and slurring words. But on cross-examination some said she seemed able to walk and answer questions.” Conclusion: no consent; convicted of rape on grounds of digital (i.e., finger) penetration, which Ohio law apparently prohibits. Some accounts suggest local sympathy for the destruction of these athletes’ careers. The Times article reports that certain ranking school personnel were indicted as well. I did not investigate the question of whether those indictments were responses to reported threats by Anonymous to expose adults who had not been indicted.
(3) Cook and Hodo (2013, pp. 1-7) tell the story of fast-food worker Ron Varga (5’8″, 130 lbs.) and his brutalization by Theresa and Diane. In pretrial questioning, several female jurors had indicated that they “did not believe rape of a male could be possible or proved” (p. 1). Apparently the evidence overcame their hesitation. In addition to being forced to wear a dog chain, Ron was scarred by burns for violating rules laid down by the two women. The behavior that got them convicted of first-degree rape was the act of ramming a rake handle up his anus, apparently on multiple occasions.
(4) In an experimental study, Kahan (2010) presented a representative American sample of 1,500 adults with the facts of an actual legal case involving two college sophomores, “Lucy” and “Dave,” centered around the feminist contention that, in sex, “no” always means “no.” Lucy had previously asked Dave his penis size, possibly including an occasion when, intoxicated, she laid down on his bed. She had been drinking on the afternoon of the alleged rape. She went to Dave’s room, to see if her boyfriend was there. Nobody answered when she knocked. Standing there, she wrote a note to her boyfriend in which she said, “I’m drunk.” (At trial, she said she was not intoxicated; she was just joking.) Then she tried Dave’s door. It was unlocked. She went in. Dave was lying on his bed with a pillow over his head. He invited her to hang out for a while. She agreed. The two soon began kissing. Dave undid his pants and tried to put his penis in her mouth. She did not physically resist but, by her testimony, did repeatedly say, “No, I gotta go, let me go” in a “scolding” manner. Ten or fifteen seconds later, they got up. Dave locked the door in a way that would prevent outsiders from coming in but would not prevent insiders from going out. Dave then put her on the bed, not with a shove but also not in a slow, romantic manner. Dave removed her sweatpants and underwear. She repeatedly said, in her words, “‘no, no’ to him softly in a moaning kind of way because it was just so scary.” Intercourse followed. She did not scream. She left, met her boyfriend, and began crying. The boyfriend called the police. Dave’s testimony was that Lucy was a passionate participant. He agreed that she said no, but that she did so in a passionate moan. In response to this scenario, Kahan’s research participants varied widely in their reactions. One interesting finding: at one extreme, only 45% of female participants aged 60+ who evinced a commitment to hierarchical forms of authority and social organization felt that Dave should be found guilty of rape, while 77% of female participants age 30 or less who preferred egalitarian rather than hierarchical social arrangements felt he was guilty. (Males in those subgroups reached similar conclusions, but not to the same extent as those female extremes.) Kahan concluded that, while the results of the study were compatible with feminist views in some regards, “[D]isagreements over the significance of ‘no’ cannot be attributed [merely] to a conflict between opposing male and female ‘points of view'” (p. 794). Kahan also found that participants tended to disregard the legal definitions they were supposed to apply, and instead relied upon their own sense of what counts as rape.
[I]n 2013 a student “was in her room with a guy with whom she’d been hooking up for three months”:
“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”
Six weeks later, the woman reported that she had been raped.
Philadelphia went on to say that the school counselor to whom she originally reported the story was incredulous that “such a good guy” would be involved in anything like that, and said she must be mistaken. Several months later, she reported the story to the dean, but apparently nothing happened. Both students graduated. A comment appended to the Philadelphia story by “Lisa S” (apparently the student in question) claimed that there was “a lot more to my particular experience” than the published story reports, that “we don’t feel like our experiences are valid even if we do feel scared, powerless, and traumatized,” and that “rape and assault look different for everyone.”
(6) According to Wikipedia, in spring 2006, a black woman accused three white members of the lacrosse team at Duke University of rape. The players were suspended for two games, after which the remainder of the team’s season was canceled. Their coach was forced to resign; subsequently, he received threatening emails and hate calls and was the frequent victim of vandalism. There was a New Black Panthers protest. After more than a year of investigation, charges were finally dropped due to the complete lack of evidence and the incoherence of the accuser’s story. North Carolina’s attorney general described the prosecutor responsible for this case as a “rogue.” Ethics charges were filed against him on grounds of fraud and deceit. He went on to become the first prosecutor in the history of the state of North Carolina to be disbarred for trial conduct. Multiple lawsuits were filed.
Needless to say, many more examples could be added, each developing additional aspects of the topic of rape.
The word “rape” is shorthand for an important and multifaceted category of crimes oriented around a core concept of sex compelled against the victim’s will, most commonly involving male perpetrators and female victims. These crimes can be violent or nonviolent, can be initiated by male or female adults or minors, and can involve a variety of physical acts. Intentions and perspectives related to such acts can vary considerably among accused perpetrators, alleged victims, and bystanders. Accusations of rape, true or false, can be inflammatory with or without reason, on behalf of alleged victims and also on behalf of alleged perpetrators. Perhaps more than any other type of crime, rape is a political and emotional minefield that has often resisted attempts at evenhanded and just treatment.