In my previous post, I argued that feminist reforms to the text of rape laws won’t, by themselves, lead to large differences in how rape is treated by the justice system. This is because the people who make the justice system happen will resist changes they believe are wrong.
There’s another limitation of the criminal justice system for addressing rape: The law requires – and should require – an offender to be proved guilty “beyond a reasonable doubt” before punishing him (or her) for any crime, including rape. This is not something I want to change.
However, a significant number of rapists are friends, boyfriends or spouses of their victims. These rapes often happen without any physical evidence to distinguish rape from consent, leaving the jury (or judge) with the task of deciding guilt or innocence based on the competing words of the accused and the complainant. If a rapist is a convincing liar, then even a very feminist jury may feel that he is not guilty “beyond a reasonable doubt,” and so will not convict.
Also, although the law has to consider rape a bright line – either an act was legally rape, or it wasn’t – in real life rape is better described as a spectrum. Consider this post by Biting Beaver, in which she describes a fifteen year old girl out on a date:
She says “No” again; he withdraws ALL affection, maybe even scooting to the end of the couch. He seems sullen and frustrated. He may even argue with her, “What’s the big deal?” he asks, “Why are you being a tease?” he says accusatorily. She begins to doubt herself and feels guilt about her actions. She apologizes to him, he kisses her again and soon he’s at her zipper once more. She flinches and sighs heavily, “I don’t know if I’m ready” she says plaintively, “What?” he asks her; “Don’t you love me?”
The girl bites her bottom lip, in a flash of anger and frustration she stands up to leave. He grabs her arm, “Oh baby, I’m sorry, I didn’t mean to make you mad” he says. She looks at him again and quickly it goes through her mind that she doesn’t really know where she’d go anyway. She lied to her parents; they think she’s over at a friend’s house. She has no car, how is she going to get anywhere? She can’t tell her parents and she doesn’t want to try to call her girlfriend who may or may not have a car. She knows that she’ll just make her boyfriend angry at her even if she DID do that. What if he kicks her out? She lied to be there and if she goes back home she’ll get in trouble for lying. In a flash she decides to sit back down.
An hour later, after more approach and retreat and more pushing his hand away, she gives in.
She goes home the next day, troubled, depressed, and unable to concentrate. She has been raped and her emotions and reactions are the same as any other rape victim, but she has no recourse.
Even many feminists, me included, would hesitate to describe the situation Biting Beaver describes as “rape” (although I wouldn’t hesitate to describe the way the boy in her example acts as disgusting, wrong, and worthy of punishment). I think this is partly because most people – including most feminists – think of rape as an either/or, black-or-white question. As Biting Beaver argues, rape is more accurately seen as the end of a spectrum. Here’s an image of the spectrum, adapted from this graphic which was created by Soopermouse.
At the black end of the spectrum is a perfect lack of consent, in which the victim lacked all agency; at the red end is fully consensual sex. In between we find cases such as the ones Biting Beaver describes, in which coercion and pressure is unfairly used to make someone “consent” to sex. Instead of asking “was this rape or not?,” the question Biting Beaver’s post brings up is “were there rape-like elements to this encounter? Were there degrees of unfair coercion and pressure?”
But our legal system is not set up to recognize a spectrum of consent; because courts and juries have a need for certainty, laws are written to create bright lines and black-and-white contrasts. The situation that Biting Beaver describes is a terrible injustice, but it’s one that the courts may not ever be able to address. But just because something can’t be addressed in a courtroom doesn’t mean that it isn’t reprehensible; nor does it mean that no injustice has been done.
Mary Koss, an academic and feminist activist who has spent her career studying rape, in recent years has been working on “restorative justice” as a means of providing justice to victims of sexual assault and rape. Here’s part of a brochure for Restore, a program Koss helped create that specializes in restorative justice for sexual offenses:
Restorative justice is not perfect justice; but in many cases restorative justice may be more useful for victims. This would include cases that the regular courts cannot prosecute, either because they’re too distant from the “perfect lack of consent” end of the spectrum, or because they’re “she said / he said” cases that are unlikely to be resolved in an adversarial justice system. It might also include cases that the regular justice system might be able to address, but without bringing as much satisfaction to the victim as restorative justice can.
Discussing restorative justice in greater detail is beyond the scope of this blog post, but interested readers can check out the Restore website for more information.
[Comments for this post are reserved for feminist and pro-feminist posters only. If you don’t think you’ll fit into Amp’s conception of “feminist and pro-feminist,” you may leave comments instead at the crosspost on Creative Destruction.]
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As it happens I’ve been writing on rape too, here. Amp, I’d appreciate your comments if you’ve got time. (read the comments before you reply; Grouch is being quite helpful in my attempt to clarify)
I fully agree with the spectrum idea. However, the “Restore” idea is a slippery slope towards trivializing of sexual assault. What kind of amends would the assaulter make? Are these in any way sufficient to discourage him from assaulting again? It sounds like those anger-management programs that wife-beaters are sent to to “sensitize” them. We can pat ourselves on the back for being so sensitive and clever, but these programs are treated as a joke by the wife-beater. If “Restore” is implemented, I strongly suspect that rape victims (even those towards the black end of the spectrum) would be pressured towards choosing “Restore” instead of the criminal justice system. They might choose it even without such pressure and the incentive to fix the criminal justice system would be even less. It’s setting up a system to let rapists off with a slap on the wrist.
In general I don’t buy into the idea that reducing punishment/sentences is a way towards getting more convictions. Quite the opposite. The more we trivialize the punishments, the more we trivialize rape. Getting more convictions will be a slow process of changing the culture. Reducing punishments is counterproductive to getting justice for rape.
Also, I don’t believe that “beyond a reasonable doubt” is an absolute entity. It is taken too far when it comes to most rape cases. In rape cases, even the most ridiculously far-fetched possiblities become grounds for “reasonable doubt”. This needs to change.
I could buy the idea of “Restore” for those acts that clearly do not meet the legal definition of rape (those acts in the middle of the spectrum), and if acts that meet the legal definition of rape are specifically excluded from being addressed through “Restore” instead of criminal prosecution.
“Even many feminists, me included, would hesitate to describe the situation Biting Beaver describes as “rape” (although I wouldn’t hesitate to describe the way the boy in her example acts as disgusting, wrong, and worthy of punishment). ”
If you wouldn’t call it rape, would you call it consensual? What do you call something that is in the middle of the spectrum? Would you call it an assault? Harrassment? What kind of punishment would you consider suitable for the boy? I could be wrong, but I am smelling something along the lines of state-funded sensitivity courses that the guy would make fun of with his friends before he goes to pressure another girl into sex.
Another element to the reality of rape is power imbalance. In BB’s example it’s the power imbalance (no way for her to safely get home on her own) which takes this situation out of the realm of relationship negotiation.
This power imbalance is one of the reasons for statutory rape laws and laws that make it a crime for pastors and mental health counselors to have sex in the midst of counseling relationships.
We’ve all heard “rape is about power” but we often leave evidence of power differences out of our analysis of rape. He or she with the most power has the most responsibility, but the law doesn’t always acknowledge that reality.
The problem I see is that for state-sponsored restorative justice to work, you have to be able to define certain conduct as illegal. If the offender’s conduct is not covered under a definition of illegal activity, then the state has no basis to make him undergo the process of restorative justice. So restorative justice can’t apply to situations like the one described by Biting Beaver which aren’t (and probably oughtn’t to be) defined as a criminal rape, even though the boy’s conduct was morally reprehensible.
And so then, we are left with applying restorative justice only to those situations that are classically defined as rape under the law. And I am not sure I am comfortable deviating from the classic crime-and-punishment model for those situations.
I see restorative justice working best in private settings like college campuses. But even then the college is going to have to have some definitions in place as to what kind of sexual misconduct would subject an offender to having to participate in restorative justice as a condition of staying in school.
I have to side with THF on this one:.
At some point, the question has to be answered in a yes/no fashion: Is it the government’s responsibility to step in, or not?
If not, then restore has some obvious problems; who will enforce it or even implement it? And if so, restore might make a nice addition to–but not substitute for–a criminal punishment.
There’s another question which I have to think about a bit more. But this runs into some legal incentive issues: will the accused’s participation in Restore be voluntary or compelled? I’m basing this analysis on my sense that an accused under Restore would simultaneously face an increased chance of “conviction” and also a reduced maximum penalty.
If the accused folks CAN self select for Restore, their incentive to do so would be higher as their “obvious criminal guilt” increases. Those are the people for whom the increased chance of conviction would represent a lesser cost and for whom the reduced penalties would represent an increased benefit. Those are ALSO the people who we actually want to be convicted and punished under the current system–we have no reason to want to reduce their jail time.
If the accused CANNOT self select but are forced into the Restore program, then it probably has to meet the reasonable doubt standard (constitutional requirement). Irrespectiveof that, it would probably selectively benefit the worst offenders (who would be likely to get punished anyway) at the cost to the least offenders (who would be least likely to get any punishment at all). I’m not sure that’s a good idea.
However, the “Restore” idea is a slippery slope towards trivializing of sexual assault.
I disagree. Because the “Restore” idea, it seems, isn’t meant to mostly deal with cases of actual assault. Rather, it’s meant to deal with cases where a man verbally pressures a woman into having sex. Not legally rape, not legally punishable at all, but still morally wrong.
At least, that’s where I see a program like “Restore” being effective. I don’t think it would be effective in outright rape cases. For one thing, you’d have to get the offender to consent to this unless it was an official state punishment (which it doesn’t seem to be). And I doubt an actual rapist would consent. A guy who pressured his girlfriend into having sex, however, might feel genuine remorse afterwards and wish to make amends.
And now, reading closer, I see that Restore is indeed meant to deal with criminal matters in addition to those cases that are morally but not legally rape. I wonder how that would work in practice.
From the Restore website (cites for these studies are on the site):
* Programs using restorative justice found that only 18 percent of Responsible Persons re-offended, compared to 27 percent for traditional justice (Umbreit, Coates, & Kalanj, 1994).
* After the conference, 81 percent completed their reparation agreements compared to 58 percent with court-ordered restitution (Umbreit & Coates, 1992).
* For Survivors, 74 percent received an apology, and feelings of distress over the crime and fear of re-victimization decreased (Umbreit, 1992).
Interesting.
As a follow up to my previous comment, note that in BB’s example the only acceptable response to the boy’s request is yes. Likely in real life situations which parallel this example the more aggressive person has taken actions or manipulated the situation to make ‘no’ difficult to impliment before asking for a yes. And doesn’t stop pursuing yes once a no is given.
That makes the intent to get sex by any and all means premeditated.
When a case is a financial scam where one person has set out to exploit someone else, we would never equate that scam with a legitimate financial transaction simply because the scammer manipulated the victim until that person signs a document.
One of the prerequisits for the successfuly operation of restorative justice programs, from everything I’ve seen, is that everyone involved, survivors, perpetrators, community, accept the legitimacy of the process. (In contrast, perpetrators don’t have to believe in the conventional criminal-justice system, because it believes in them.) A friend recently went through a restorative process in a case of vandalism; all but one of the perpetrators were quite clear on the fact that they’d done wrong.
I think that could be a problem for rape especially, because in cases somewhere away from the pure nonconsent end of the spectrum, the perpetrator isn’t going to want to admit that what they did constituted a sexual assault. If they were intoxicated, or narcissistic, or just interpersonally dumb, they might be convinced that they engaged in a perfectly consensual act. Heck, the survivor and (especially?) the survivor’s family might be under a similar impression. Breaking down that resistance could be the hardest part of the process.
The work to break down that resistance, however, may ultimately have a much wider impact than any single restorative-justice procedure.
Well, the problem is that for many people, including me, the boy is acting like a slimy asshole. But there are other “acceptable” alternatives, which is one reason why it isn’t rape in my eyes. For example:
In order for this to support your claim then you have to think “calling parents and confessing” is unacceptable And yeah, it will surely suck. She will get in trouble. But “unacceptable”? In relation to what?
This is frequently where the conversations derail, with folks on one side claiming “victim blaming” and folks on the other side yelling about “reponsibility”. That’s not my intent. I just want to note that it’s far from “obvious” either that she WAS raped, or that she was NOT raped.
When you start using terms like “only acceptable option” you are positioning yourself far from the middle ground. Is that intentional?
Thinking about BB’s story some more … I think there needs to be some way for the survivor to convey to the community/herself/perpetrator that what she underwent was not consensual, and it made her feel troubled, depressed, etc. The criminal justice system does not allow this.
So, maybe there is a place for something like Restore *provided that it is not allowed to be applied to cases that meet the legal definition of rape*. If, after such an experience, she is able to go to some group/authority and explain what happened, and they can unconditionally accept her account, and have a gathering of friends and family to which the accused is also “invited”, even if the accused’s participation is voluntary, it still allows her to communicate her experience and get comfort and support. The way it is now, there are no formal channels for her to do so, and she has to deal with it alone while the perpetrator continues to believe that what he did was OK and acceptable. And since the accused’s participation is voluntary, she shouldn’t have to meet any standards of proof in order to be able to do this. Otherwise, the whole thing is useless and may end up hurting her more than helping her.
Thank you for this. I’ve had trouble explaining the spectrum concept to people. I have had multiple sexual encounters that are in the grey area between consent and rape, and most people I talk to think that I’m just denying rape. I’m not. There really *is* a grey area, as there is in everything, just not in the place it’s been traditionally put.
“When you start using terms like “only acceptable option” you are positioning yourself far from the middle ground. Is that intentional?”
At one point giving in to demands of sex from the boss was considered as a middle ground of “acceptable”. So, big deal, she’ll lose her job. It’ll suck. She’ll get into trouble. Yes, he was an asshole. Doesn’t mean that we should take any action against him.
I think this conversation shows how much we, as a society, need to evolve in order to make non-consensual sex truely unacceptable.
I guess that, running with Kali’s idea from post #12, I’m not sure why, under this model, the accused would choose to participate in the process.
“I guess that, running with Kali’s idea from post #12, I’m not sure why, under this model, the accused would choose to participate in the process. ”
Let him not participate in the process. At least he knows that there are people out there, besides his victim, who believe that what he did was wrong. It might get him to think twice before going around boasting about his “conquest”. If it happens often enough, to him or his buddies, it might even get them to rethink their attitudes a bit. The benefit of this might be more in terms of general consciouness raising rather than providing restorative justice in any one case.
Ah, okay, in that case, it’s good shit.
I’m all for consciouness raising, I’m just not sure how to get a system to work where the accused’s participation is voluntary.
Hmm. I look at it this way:
1) Either the accused’s participation is voluntary, or it’s compelled.
2) If it’s compelled, we’ve got the criminal justice system, which only works well in a clearcut case of out-and-out, no-ambiguity rape (and not that well then, either).
3) If it’s voluntary, then there needs to be some sort of incentive for the accused . . . and I don’t think any of us really want to offer them incentives.
So yeah, in terms of community support and consciouness raising, this sounds great. In terms of a model on how to deal with ‘borderline’ cases of rape, not so much.
Well, I just finished reading the entire 46 page overview document (gotta love this work PC…) so:
Because it takes these off the table:
criminal prosecution
jail time
sex offender registry, AND
civil prosecution.
It is a nice rational choice for anyone who is obviously guilty beyond a reasonable doubt.
Basically, it’s like a plea bargain. (And just like a plea, it can even be a nice rational choice for even for someone who ISN’T necessarily guilty beyond a reasonable doubt: If you think there’s a 25% chance of a wrongful conviction, then you’d choose Restore is if was at least 4 times “less bad”. Plenty of scholars discuss the moral hazard of innocent people pleading out–it’s rare but it happens).
Interesting choice for an example. See, what we did there was to say that the “acceptable” option was for her to quit and sue under the various acts and statutes preventing sexual harassment. Then she’d get her job back, or get paid, and he’d get fire/fined/what have you.
Nobody thinks she should “suck it up” and have SEX with him. Yuck. But if she elects not to use the alternative avenues, and decides to sleep with him because she doesn’t want to deal, it’s not rape. It’s BAD, and it’s punishable under more than one law, and it’s morally reprehensible. But it’s not legally coerced.
Of course, i don’t know you that well. Every now and then i run into people online who believe that “coercion” as used in criminal law terms can include everything from payment, to suggestion of payment. To those folks, the above sex would be obviously “coerced” even though other non-sex options existed, and it would therefore be rape. Is that what you’re saying?
In order for the example in the OP to be rape, it’s gotta be forced (wasn’t) or coerced (this is what is claimed).
In order for it to be coerced, she’s gotta essentially be between a rock (sex) and a hard place. Or to look at it another way, if someone claims coercion there can’t be a reasonable way out of the whole mess.
If there IS a reasonable way to avoid either sex or other nasty consequences, it’s OK to expect her to take it, rather than having sex and bringing a rape (or Restore) suit. Again, that doesn’t mean he’s not being an asshole. It’s just that he may not be acting like a punishable asshole.
So that means if you claim the original example is rape, then the choice to piss off her parents, take a cab, make her boyfriend break up with her, walk home, or call her girlfriend all have to be unreasonable. But those are not IMO unreasonable options.
Similarly, if you claim the workplace encounter is rape, then the choice to bring suit, report him to HR, get a new job, tell the local prosecutor, etc also have to be unreasonable. Actually, these are MORE unreasonable in today’s economy and legal system that the options for the girl. But for a variety of reasons, we keep up the facade that they are reasonable alternatives.
There’s another category of people you don’t discuss; people who are in fact guilty of rape, but who might or might not be able to be convicted in court. For those rapists, participating in RESTORE is a rational choice.
On the “I’m not sure why the accused would choose to participate” question.
It seems to me that there are lots of forms of “pressure” that aren’t part of the social justice system that could push the accused into participating. I can see parents, peers, schools, etc pushing offenders (or likely offenders) to participate–for various reasons.
I agree that for court-provable cases of forcible rape, an option like RESTORE should not be available to the accused–but I can see it as a better option than a court case (where denial of guilt is critical, thus hindering attitude changes) in cases where it would be hard to prove a crime, but the appropriate community is clear that the behaviour is bad.
In other words
I was very startled to see that “normal couple sex” is described as “mostly consensual.” What exactly is up with that?
Amp: yes, of course. I erroneously didn’t list them; thanks for catching that.
Prior post posted before completion.
social justice should be criminal justice.
And the ending is,
In other words, there are means to pressure someone to participate in RESTORE that aren’t part of the legal system.
In cases in which the victim prefers RESTORE to the regular criminal justice system, why shouldn’t it be an available option? (Keep in mind that RESTORE is never used without the victim’s consent, so it’s not possible for a rapist to choose RESTORE over the victim’s objections.)
Sailorman:
My use of the term acceptable refered to what was acceptable to the boy. He wasn’t willing to accept any answer but yes. In that example he never offered to drive her home or safely let her out of the situation. People who don’t see this situation as rape or clear sexual exploitation switch all legal responsibility for the results of coercion and pressure to the victim of those efforts.
The underlying problem is this sort of willful sexual manipulation and pressure has been so normalized that many people barely notice it and certainly don’t think it’s something that should merit legal punishment unless the target is a small child. Then we call them perverts who should be locked up forever.
But many pedophiles use the same techniques as this “non-criminal” boy. The only difference is who they are targeting.
I’ll have to re-consider that. My first instinct was that (legal) social pressure and (illegal) threats would make it too likely, in many cases, for the victim’s choice of RESTORE to be a coerced choice.
Sailorman Said:
Right, right . . . I now realize I should have specified that when I said that
I was talking specifically about Biting Beaver’s example. I can absolutely see the utility here in traditional, bright-line rape cases, but in cases of social coercion and pressure, the RESTORE process would need to be a more attractive option than just ‘maintaining your innocence and probably never even being charged.’
I agree. See “he’s a slimy asshole,” above. But what do I care what’s acceptable to HIM?
I think I might agree it’s “sexual exploitation” but can you define what you mean more clearly first? I obviously don’t think it is rape.
It’s not a “switch” because SHE’S certainly not liable. It’s more an acknowledgement that “legal responsibility” is only available for extraordinarily bad behavior–not being a slimy asshole. So we may not want to prosecute someone for not offering to drive someone home, so to speak.
Well yes–but that’s because we have some understanding of the differences in agency and ability between adults, teens, and young children. I don’t think many people would disagree that it would NOT be reasonable to expect a child in that situation to do a damn thing. That’s part of what makes parenting so scary: it is damn easy to convice my kids to do a lot of things. As people age, we expect them to make more rational and correct choices. That’s why folks are more likely to say “why on earth didn’t she just leave and call a cab?” when the victim is 18 than when the victim is 6.
We also expect more self control from the accused as they age, too. It’s not just a victim issue.
Because he may feel, well, guilty. It’s not uncommon for people to feel remorse.
Think about it:
John knows he did something wrong. He thinks he raped Jane. If he apologizes or confesses, he faces criminal charges. He’d have to be a real doozy of an apologist to spontaneously do that.
But in theory he could do RESTORE and–to a degree–feel that he has done something to right his wrong.
In many respects, the criminal and civil courts act together as a strong deterrent to things like apologies and recompense. But often an apology and compensation is really what the victim wants, and it is not entirely uncomomn it is also what the accused wants to give.
Sailorman:
The question then is why those folks don’t focus on the behavior of the person behaving in a predatory manner? I rarely hear people ask, “Why on earth didn’t he just stop asking at the first indication that she didn’t want to have sex and call her a cab?”
If we expect more of girls as they grow older (get thyself out of that situation), why don’t we expect the same for boys and men?
Sailorman:
The prosecution in rapes that utilize coercion wouldn’t be for not offering to drive someone home any more than a stranger rapist is prosecuted for not offering to walk his victim home. That person is prosecuted for the choices and actions he takes which hurts someone else.
Believe me from the girl’s perspective in BB’s example, the boy is guilty of extraordinarily bad behavior, just not uncommon behavior. He harmed her and used manipulation and the situation to succeed at getting what he wanted.
I hope we’d be appalled at the idea of judging a stranger rape based on our outsiders view of the intended victim’s unused options of escape. “She could have screamed or shoved the palm of her hand into his nose. Those actions would have stopped him.”
None of those possible defenses changes the fact that the man was determined to have sex and was willing to do what was necessary to get that sex. The wishes and desires of his target didn’t matter.
In too many cases only the tactics of reaching the goal change. But with one approach we call the man a rapist and in the others we refuse to see any criminal intent or action.
Sara says (#21): I was very startled to see that “normal couple sex” is described as “mostly consensual.” What exactly is up with that?
Me too! Is it that in a normal relationship, one person is trying to finish watching Jon Stewart, and the other just wants to finish, so they get it on with the TV on? Or are we talking marital exhaustion in which one party just gets fed up with arguing and gives in all the time? Either way: Yikes.
Abyss2hope (#30) says: If we expect more of girls as they grow older (get thyself out of that situation), why don’t we expect the same for boys and men?
Here here! I hate the idea that a girl should be able to figure a way out of a tricky or compromising situation. In the middle of it all, it’s not always that simple. I once almost jumped out of a moving vehicle taking me into the middle of the country. I guess because I ended up having sex instead of risking my life that way, it wasn’t really rape.
On rest0rative justice: I’ve seen it work miracles as a trainee watching the mediation proceedings. Some guys just don’t realize the damage they cause. Seeing a woman’s unrestrained sobs from a few minutes of absolute selfishness can change a life forever.
“Interesting choice for an example. See, what we did there was to say that the “acceptable” option was for her to quit and sue under the various acts and statutes preventing sexual harassment. Then she’d get her job back, or get paid, and he’d get fire/fined/what have you.”
I was refering to the type of arguments made before sexual harrassment laws were on the books. In fact, these were the kind of arguments made to try to prevent sexual harrassment laws from getting on the books. The logic went as follows: If he jumped out of the bushes and put a gun to her head, it was rape and punishable. If she did not fear for her life and limb, it was not and should not be punishable because she always had the option of quitting her job. He may be an asshole but it wasn’t bad enough to hold him legally accountable.
Of course, now we do have laws against sexual harrassment, as we should.
“In cases in which the victim prefers RESTORE to the regular criminal justice system, why shouldn’t it be an available option? ”
Because people can be pressured to choose it, just as they can be pressured into sex. She could be told that she doesn’t stand a chance in court and could therefore choose this instead, even if there was a possibility for her to get justice in a criminal court. Instead of reforming the criminal justice system, people would be pushed towards an easy but less just option. I wouldn’t support a restore alternative to criminal prosecution in case of murder/attempted murder, and for the same reason I don’t support it in the case of criminal rape / attempted rape (regardless of how provable or unprovable it is).
How about when it is not criminal under the current law? There has to be some accountability for manipulating/coercing sex out of someone. Considering that the current law and society does not recognize this as legally actionable, I think restore may be a small step in the direction of accountability, *but only if it is applied only to those cases that absolutely cannot be prosecuted under current criminal law* (I am not refering to provability here, but to whether an alleged act meets the current legal definition of rape).
In other words, it isn’t much, but it is better than nothing. But please don’t use this to undermine whatever little is there in the area of criminal rape prosecutions (i.e. use this idea to gradually replace criminal rape prosecutions with apologies and compensation.)
It’s simple, actually as it refers to the normal run of the mill het relationship. I am sure most of us have been there, and can testify to the power imbalance of various intensities that do occur.
The majority of couples are not that perfectly sexually attuned to each other that they will want to have sex at the exact same time and place. Probability laws say otherwise, and my personal experience, which I noticed was shared with a lot of other feminists, seems to concur to this.
Of course as it is within a couple, we are pat trained to not really acknowledge it as pressure, and that in itself adds another layer of pressure.
IMHO, RESTORE seems like a good idea but I doubt that it is workable at this moment in time.
In order for it to work, Rape of any type should be perceived by the society at large as a crime. It is not. There is very little societary pressure on a rapist that would actually make him to willingly attend this type of thing.
I had assumed that the “normal couple sex” being referred to was something like this situation (quoted from Biting Beaver’s post ):
Unlike many of the previous commentors, I think Restorative Justice (RJ) is something that should be considered in more cases, not just for probably unprovable rape, but for virtually any crime. Our criminal justice system sucks. The punishments are arbitrary and rehabilitation has practically been forgotten as a consideration. Beyond that, punishing criminals may satisfy a desire for vengence, but it really does next to nothing for victims of crime.
RJ recognizes three parties affected by crimes: the victim, society as a whole, and the perpetrator. In our current system it is hoped that taking revenge on the perpetrators through incarceration or other punishments will both rehabilitate the perpetrator and sooth the pains suffered by the victim and society. However, as I said, rehabilitation is practically forgotten and just about the only efforts being made to sooth society is pushing for longer prison terms with less opportunity for parole, basically hoping to lock ’em up and throw away the key. All this has led to is the highest incarceration rate in the world (building and staffing prisons has been one of the biggest growth industries in the USA for the last couple of decades at least).
RJ attempts to help all three parties affected by a crime. If the perpetrator can be made to recognize their culpability and feel genuine remorse then there is a genuine chance for rehabilitation, thus helping the perpetrator and making society safer. Further, demonstrating that remorse through efforts to make restitution can help to alieve the pain which the victim suffered. Clearly, a successful RJ outcome would still not be as good as if the crime had never been committed, but is putting someone in prison for 5, 15, 50 years going to help anyone (except the prison industry)? RJ offers an alternative approach.
As for why should rapists in particular participate in this, how about setting up an alternative process through which victims can pursue relief. Rather than harping on “beyond a reasonable doubt”, how about offering better avenues for civil action (I have to admit I am unfamiliar with what current civil avenues are available for victims of rape). If RJ mediation is offered as an alternative to a full civil suit concerning a rape, either through the Restore program or through other similar groups, then even people who could not be convicted of rape beyond a reasonable doubt might prefer the intervention/mediation approach of RJ to the alternative of a civil suit. If rape is the only crime for which RJ is a strongly encouraged first step before pursuing a suit then perhaps there is a need for a new court or a change to civil court procedures to allow for referring cases to RJ mediation, just as there are different courts created to deal with other specific offenses. However, if the process for pursuing redress through the civil courts included an option for choosing Restore (with agreement of all parties involved), then even someone who felt they were completely innocent might agree to RJ rather than have to defend against a full civil suit. This process would have to include allowances for if the participants are disatisfied with the outcome. That is part of why the process would need to be mediated. If the victim doesn’t feel that the perpetrator’s participation in remorse and restitution is acceptable then perhaps there should be an option of pursuing further court action, basically appealing the findings of the RJ mediation, but in such a case when the defendent has shown significant efforts at reconciliation through RJ then the victim would have a harder time proving the validity of their request for addition compensation. On the other hand, if the defendant felt that the RJ negotiation was requiring unreasonable demands then there should also be a way to appeal from that perspective. Of course, the way this would be handled would be affected by the different views of different judges and venues where some would be more sympathetic to the victims and others less sympathetic. In either case, an appeal from a RJ mediation should be made fairly difficult if both parties agreed going in so that the parties involved will make a serious attempt at reaching an accord.
I was first introduced to the idea of RJ through the Peacemaking program of the Presbyterian Church (USA). If anyone is interested, there is a free brochure (I haven’t even looked at it myself, but I’ve liked their program and I found this on the PC(USA) website) available at the Presbyterian Marketplace if you search for item 7263096705. (I couldn’t figure out a direct link to the item). It is called _Restorative_Justice:_ _Toward_Nonviolence_ by the Rev. Virginia Mackey.
-JoKeR (noting sadly that today, 9/29, marks three full months since the last Hereville strip was posted)
But in our current system – which is what RESTORE should be compared to – the odds are strong that prosecutors will simply refuse to prosecute a “she said/he said” date rape case. It’s not as if, lacking the existance of RESTORE, rape victims have the power to force prosecutors to prosecute unwinnable cases. And even if they do prosecute, nothing can force judges and juries to convict. Plus, because the victim has very little agency in a standard criminal court, she can be subjected to abuses from the defense lawyers, and in general loses control.
It is true that creating a new option creates the possibility of unfair pressure to use that option. But is refusing to give victims agency and options really the best way to help them? There are ways to approach this – such as giving the people who run RESTORE the option to refuse to take a case if they think it’s not really what the victim wants – that fall short of saying that victims should not have the option of choosing RESTORE if that’s what they want.
As I argued in my previous post, no amount of reform to the criminal justice system will lead to significant improvements until society itself goes through large changes in how it (we) regard rape. And even with reform, there will still be some number of “he said/she said” cases where, due to lack of evidence and the “reasonable doubt” standard, the odds of a conviction are low.
If it’s true that victims get more satisfaction and feel more like justice has been served through RESTORE – and that is the case, at least for some rape victims – then I think that’s a very powerful argument in favor of letting rape victims decide what’s best for them. Why is the victim getting some satisfaction through RESTORE a worse alternative than a rapist being found “not guilty” and let go without any admission of responsibility – or not being tried at all? And isn’t there a value in giving the victim more, rather than fewer, choices?
As to the questions about non-consensual sex within marriages, it is hard to imagine anyone with any exposure to popular culture in the USA being unfamiliar with the stereotypical “I have a headache” response to a request for sex. I would say that anyone who thinks that such requests for deferals (whether due to headache or whatever) are always honored is rather naive. Clearly couples with healthy relationships and mutual respect and love might never cross the line (in either direction) in this regard, but I think it should be obvious that there are many couples where “No” is not always an acceptable response.
Well, in the case of a husband simply refusing to take “no” for an answer and forcing unwanted sex on an unconsenting wife, I’d say that’s full-on rape, all the way on the left end of Soopermouse’s “spectrum” illustration.
I don’t disagree with you about a husband bluntly refusing to take no for an answer and raping his wife, but I think it is easy to imagine that similar coersive tactics might be employed by husbands as by dates. “But it has been [hours|days|weeks|months|years].” “Don’t you love me any more?” etc.
JoKeR-
Yes these things that you describe happen far too often.
What Soopermouse’s illustration was also showing was the inherent power imbalance in a normal het relationship. Indeed, I have never met a married woman who, when push comes to shove, has not admitted to feeling heavy pressure to have sex with a husband.
Many women in committed relationships have heard this, “It hurts my self-esteem when you say No to me” and this, “Don’t you think I’m attractive anymore?” and this, “You know, you used to love sex before we were married”, and this, “Geesh, everything else is more important to you than me!” and many, many others.
Now, these sorts of pressures may not occur every time, or even most of the time, but they occur with far more frequency in normal het relationships than I would like to see. I have been in roomfuls of women when the conversation switched to sex and I’ve heard the entire roomful complain about how their husband, “Won’t leave me alone”, “It’s like living with an octopus!” to be perfectly honest I’ve never heard a woman speak up in a room and say, “My husband has never, ever pressured me for sex. When I say “No” he rolls over and goes to sleep or we just decide to watch a movie”.
To me the most disturbing aspect is that these sorts of coercive and manipulative actions are considered by many to be perfectly ‘normal’ and acceptable. In my mind that speaks a lot to how we, as a generalized society, still see a violation of female bodily integrity.
Anyway, I just figured I’d chime in.
“The prosecution in rapes that utilize coercion wouldn’t be for not offering to drive someone home any more than a stranger rapist is prosecuted for not offering to walk his victim home.”
This is mostly off topic, but when I studied in Bristol one of the things we were told was that taxi’s were legally obligated to give us a ride home at night even if we weren’t carrying money for the fare.
It was a while ago, so I don’t remember if this law still applied if one was male or with friends.
“In too many cases only the tactics of reaching the goal change. But with one approach we call the man a rapist and in the others we refuse to see any criminal intent or action. ”
That’s the part that I don’t get. (ok, well, I get it, but I don’t agree with it.) As someone else pointed out, there may be a difference between burglary and blackmail, but it’s not like we pretend the latter doesn’t exist.
I fully realize that defining and prosecuting such crimes opens a huge can of worms. But, as a believer in both free speech and someone who cares about children, so does child porn on the internet – especially when it comes to the question of what is virtual and what is real. The fact that it’s messy is not an excuse to ignore it – no more than than the need to prosecute the crime is a reason to ignore other rights and responsibilities. We just need to deal with it. We’ll mess up, like we always do, but it’s better to try than not.
“Nobody thinks she should “suck it up” and have SEX with him.”
Oh, of course not, she should instead take the financial risk that she may or may not be able to afford. And of course, she’s sure to win the sexual harrassment case, right? Which, needless to say will be over in jiffy – it’ll take much less time an effort than just giving into her boss a couple of times.
Seriously, I’m all for encouraging people to good citizens in more ways than just voting an paying taxes – but in what way is it obvious that not having sex with her boss is always the most reasonable choice to make in terms of personal risk analysis?
My dad was on a jury recently that convicted a man of attempted murder, but aquitted the same man of raping the very woman he tried to murder. The victim in the trial worked for the man in question (it might have been her husband who did, I can’t remember – the point is she relied on his good graces for her livelihood.) I may be misremembering, but I believe she was first generation – possibly here illegaly. Anyway, the boss managed to get her to come to his house at night through some type of coercion. I can’t remember how overt his threats were, but she apparently considered her job to be in serious jeopardy if she didn’t go. Once she got there, he raped her. I don’t remember if he tried to kill her then, or later, but it was the same night at least.
The jury felt they had enough evidence to convict for attempted murder and a few other crimes, but they did not convict for rape. Why? Because (according to several jurorists) she must have known what he wanted – asking her there at night – and well, it’s not like she didn’t have other options. Why this same logic didn’t apply to the attempted murder, I really don’t know.
grrr… sorry for all the typos
right, so, three in a row is sure to put me in moderation but –
If it’s a crime to threaten or attempt to do it, why isn’t it a worse crime to actually do it?
As I understand it, attempted extortion is different from actual extortion. Just like attempted murder is a different crime from all the different levels of murder.
So, if threatening someone’s job in order to get sexual “favors” (don’t you just love that term?) is sexuall harrassment, why is “accepting” sexual “favors” as a result of threats (overt or otherwise) still only sexual harrassment?
It may not be rape as we generally use the term, but it most definitely is not sexuall harrassment as we generally use the term, either.
(Or am I wrong that it’s still legally treated as the same thing?)
Mickle, you pointed out the problem exactly. Too often the judgment in whether something is a sex crime comes down to a judgment about the victim’s actions rather than the intentions and actions of the person determined to get sex.
So many times I hear people lament, “Where do these sexual monsters come from?” Unfortunately, many of these same people refuse to see the patterns of behavior which are only a few degrees below monsterous and instead assume that predators pop up out of nowhere and for no reason.
They don’t want to see that we as a society let predators flourish and develop until they finally do something nobody can blame the victim for.
One of the things that I think people are missing in this discussion is that the majority of cases that meet the legal definition of rape that never get prosecuted, or if they are prosecuted don’t get a conviction.
At the moment the line for ‘justice’ isn’t between coercive behaviour that does not meet the legal standard of rape and coercive behaviour that does meet the legal standard of rape. It’s between cases that meet a juries idea of what rape is, and cases that don’t.
I’m not sure of the usefulness of restorative justice, although I think any forum where women were believed, would be a vast improvement on the current system. One way I think it could be useful was if it was set up by non-state agents. For example, in the activist community that I belong acquaitance rape and coercive sex happen, and people hear about it, but nothing is done.
But actually I think the most useful thing women can do, the only action that both acts as a form of punishment and protects women – is gossip. Tell other women what we know about men, believe what women say to us, and then pass that on (obviously only if women agree). I know women who would not have been raped if gossip had travelled a little further and faster. Gossip is often derided – but frequently it is both a form of resistance and a survival mechanism.
soopermouse said: The majority of couples are not that perfectly sexually attuned to each other that they will want to have sex at the exact same time and place. … Of course as it is within a couple, we are pat trained to not really acknowledge it as pressure, and that in itself adds another layer of pressure.
and JoKeR said: I would say that anyone who thinks that such requests for deferals (whether due to headache or whatever) are always honored is rather naive. Clearly couples with healthy relationships and mutual respect and love might never cross the line (in either direction) in this regard, but I think it should be obvious that there are many couples where “No” is not always an acceptable response. and I think it is easy to imagine that similar coersive tactics might be employed by husbands as by dates. “But it has been [hours|days|weeks|months|years].” “Don’t you love me any more?” etc.
and bitingbeaver said: What Soopermouse’s illustration was also showing was the inherent power imbalance in a normal het relationship. Indeed, I have never met a married woman who, when push comes to shove, has not admitted to feeling heavy pressure to have sex with a husband….To me the most disturbing aspect is that these sorts of coercive and manipulative actions are considered by many to be perfectly ‘normal’ and acceptable. In my mind that speaks a lot to how we, as a generalized society, still see a violation of female bodily integrity.
I guess I was very naive and now am very saddened to hear that most het. relationships involve coersive sex often within a context that allows few real options for the wife (and therefore, in my books, is rape – coersive sex in a context in which escape is not a reasonable possibility).
I agree that there’s almost always going to be a difference in sex drives and even in general libidinal timing of any two people. But that’s what masturbation is for.
But the idea that women are all trained to not see it as pressure or that there’s an inherent power imbalance in het relationships is a questionable premise. Apparently it’s the case for many relationships, but I’m one married woman who has not been pressured in such a way that I didn’t feel free to say no (or didn’t say no). I’ve had requests made of me, but I’ve always felt open to go for it or go to sleep. I suppose someone could argue that I probably have been pressured but am so well trained that I wasn’t even aware of the situation. I can’t do much with that one but disagree.
It seems to me poverty plays a part in this issue. I’m financially capable to stand on my own. I don’t need him here in order to feed my kids. I can take him or leave him. And he’d be so sad if I left. So he wouldn’t dare try to pressure me into an act that’s supposed to have something to do with love and respect, warmth and tenderness. So a big part of the solution is about finding ways to make sure women can get work that pays a decent wage, and moms can find really affordable daycare and decent, affordable housing. There’s always more letters to be written.
And it’s also about the belief that this is as good as we can expect from men. I think there are a lot of guys out there that are better than that. At least enough that, for me, trying to coerse or pressure me into sex is grounds for a solid dumping. That can only happen with the belief that there’ll be someone else coming along soon enough that won’t pull that shit.
And I am very disturbed that this kind of dynamic is seen as a normal part of a het relationship. I’ll be taking this discussion into my classrooms for sure.
Sage:
In no way do I see the pervasive coerciveness in our society as being a natural (biological) reflection of hetersexual relationships. Coercion and exploitation are learned behaviors. So too is victim blaming. And I have to say that the first time I had a partner who never even got close to being coercive and who would never do anything to exploit me, everything changed.
People who are sexually coercive and exploitive may win the battle to get sex, but they lose so much more than they win and they hurt people, often those they care about most or even love.
Wrt married women’s being coerced to have sex — don’t everyone get out your flamethrowers at once, but I’m not sure this always or even usually rises to the level of rape. On many occasions I’ve said no to my husband, and on many others — knowing that it had indeed been weeks, I had said no the past three nights, whatever — I’ve said yes when I didn’t really feel like it, at least to begin with. (Once in a while the roles have been reversed, although not nearly as often.) I don’t think of this as his asserting his dominance over me or as my caving in to avoid retaliation but as one of the accommodations I make because I love him. He’s also made accommodations, realizing that he may be a night owl, but if I get up at 6 to take on the morning kid-readying chores I’m not likely to be up for much after 10 the night before.
Any time you live with someone you do things every day that you’d rather not — you do the laundry, mow the lawn, clean the cat box, go to work, schlep the kids here, there and some other place — and also things that you sometimes might enjoy but don’t happen to be in the mood for. I can’t count the number of times my husband, a much more solitary type than I, has gone with me to parties given by friends of mine that he’d just as soon have skipped. Sometimes, once he gets into the spirit of things, he even enjoys himself.
Admittedly, sex is in a different category, and I don’t mean this to sound Marabel Morganish (gag. really I don’t). I’ve said no plenty of times, and when his expectations (about anything) aren’t reasonable he hears about it. And, yes, I am financially able to up and leave, although our family situation makes it more complicated than that.
And (switching gears a bit) that story about the 15-year-old girl gives me the willies. The very instant my daughter is old enough to navigate on her own, she is getting a cell phone handed to her along with The Speech: if you ever, ever find yourself in a situation you can’t handle, even if you’re somewhere you shouldn’t be, with someone you shouldn’t be with, call any time of the day or night and we will come get you, no questions asked, and there will be no punishment.
Went to the Biting Beaver post and it scared me.
We have to have laws that make some things, and they should be somewhat “extreme”, illegal and other things, even similar things, legal. We have to separate mistakes or moments of insensitivity from criminal behavior.
You know why? Because it’d be kind of terrifying if we simply prosecuted people for being assholes. I’d certainly be in jail right now. Who wouldn’t?
You know, it’s funny, because I’ve known far more WOMEN who’ve been dissatisfied with lack of sex in their relationships than men…who say, “No matter what I do or say, he still doesn’t really want to have sex with me.” So I’d be very, very hesitant to say that a man pressuring a woman into sex is the norm for het couples.
Count me in as another married woman who has never felt pressured to have sex–I have always felt free to say no, as has my husband, when he’s too tired/stressed/whatever. I am truly shocked that that’s unusual (or considered unusual) in a long-term relationship. Bummer.
Per Lu’s post, I agree that sex can be an area of compromise sometimes, like anything else in a relationship–and that in many such circumstances, it doesn’t make sense to classify that as coercion.
*provided that it is not allowed to be applied to cases that meet the legal definition of rape*
Why not?
Plenty of victims seem to prefer it, and not as a result of manipulation (which, as Amp points out, is equally or even more prevalent in situations where RESTORE isn’t an option). There are plenty of studies showing that victims want to be able to confront their rapists in a RESTORE-like setting.
Furthermore, the recidivism rate is lower for RESTORE than for the conventional justice system. Now, that could be partially because the cases that are referred to RESTORE and completed through the program are more likely to involve “redeemable” rapists who may feel some remorse. But I doubt that explains all of it.
So, I’m open to this (though not 100% convinced). I don’t believe in harsh punishments for the sake of harsh punishments. It doesn’t help women, and it doesn’t stop rape. What stops rape and helps women is believing women who say they’ve been raped and not putting them on trial, not harshly punishing those few rapists who are found guilty beyond a reasonable doubt.
I hope no one thought I was saying that this might be the norm for het couples. I’m just saying that the spectrum presented in Amp’s post can be applied to het couples, married or not, as well as singles. I’m sure people are aware that there is spousal abuse that occurs in some marriages. That is far over at the bad end of the spectrum Amp showed. However, it is a spectrum, not a dichotamy. Anyone who thinks that only people who are ready to have a committed, respectful, loving relationship get married is fooling themselves. There are married people who are insecure or self-confident, submissive or dominating, abusive or gentle, and every variation that can be imagined. That’s all I’m saying. It may be that no one who reads Amp (and conforms to his requirement of being Feminist or pro-Feminist) has experienced the types of coersive actions being discussed here. I’m just saying that there are marriages where such actions do occur and I’m surprised that anyone would be surprised by this. Marriage doesn’t make people perfect (either perfectly good or perfectly evil). They are still people living in the same society with the same screwed up expectations and behaviors.
EL:
No, people wouldn’t be prosecuted for being assholes, they’d be prosecuted for harming someone else. People who drive drunk and injure someone could easily describe their decision to get behind the wheel as a mistake or a moment of insensitivity (“I didn’t think my driving would hurt anyone, honest”), but it’s still a crime. Why should people get a free pass when it comes to decisions that hurt other people simply because those harmful decisions and actions are sexual?
For two reasons:
1) because we think we’ve already addressed it with the “slimy asshole” comment. the “why didn’t he…?” question is usually pretty well answered by “…because he’s an asshole.”
2) Because his actions and desires, while bad, are nonetheless consistent. I am unhappy–but not surprised–that someone who really wants sex will try to have sex. I am unhappy and surprised when someone who really DOESN’T want sex has sex anyway if there are/were other options that were “less bad.”
Hmm.
Well, my tendency to view/not view his actions as rape do, actually, depend a little on the interaction between them.
I don’t agree, as some here do, taht the mere act of asking is itself unwarranted coercion. Or if it IS, then I suppose I have to recognize that I am probably coerced myself multiple times on a daily basis, and probably coerce others just as often.
I am also quite distressed at the characterisation of truthful statements as “fault coercive”. By which I mean it seems ridiculous to blame the speaker for the listener’s reaction if the speaker isn’t lying. Under that theory, even if someone DOES hurt your feelings by rejecting your advances, you are for some odd reason not “allowed” to point that out–that is ‘coercive.”
Otherwise, the interplay and exchange taht is part of most relationships disappears. Do I want to have sex with my wife, right now? maybe not. But if that hurt her feelings–and it might–she is perfectly in her rights to tell me. And if my reaction changes; if I’d rather have sex than hurt her feelings… it seems vsery, vsery, strange to classify her statement as “coercive” and the act as marital rape.
So back to the example: If she knows she can break up with him and leave, and chooses not to… well, this seems to be dangerously close to a case of regret that she didn’t decide to break up with him. It seems like regret more than it is seems like rape. The whole CONCEPT of force/coercion is that you have no other choice.
BBeaver is clear that she’s unhappy and depressed the next day. But was she at the TIME? Or did she–as people often, often, do in life–make a bad decision in the short term?
One way that people (and juries) will analyze the question of whether or not she was raped is to ask this question:
“If she didn’t want to have sex, what did she do to avoid having sex?” And if the answer is “not much” then the unsurprising followup is “why not?”
At some point, we end up assigning the moniker of “consent” to a conscious choice between two not-ideal-but-not-horrible options. that’s why we think i “consent” to work, though of course the alternative (not eating) is a por option. That’s why, if she could have (for example) decided to break up with him or let him down, or have sex, we think she’s “consented” to have sex. Obviously she would prefer a more perfect option (wouldn’t we all?) but there has to be SOME line at which we do not r=view this as ultimately coercive and worthy of criminal punishment.
Or let me put this another way: Are you implying that it is always unacceptable to try to convince anyone of anything when then have said no? Are you implying that it should be rape/fraud/assault/whatever, any time someone is requestioned, repropositioned, or re-anything, and changes their mind? Are all car salesmen guilty of theft? It seems like you’re advocating that, given your extremely wide definition of what “corcion” really is. And that doesn’t make much sense to me.
Yes. We have to draw the line somewhere. unless someone is mentally unstable, too young to think straight, etc then we think using “normal” means of trying to convince them to change their minds is probably OK. We think using physical force, or “no way out” coercion is not OK. And I personally think that is a reasonable compromise.
1) because we think we’ve already addressed it with the “slimy asshole” comment. the “why didn’t he…?” question is usually pretty well answered by “…because he’s an asshole.”
I find that to be a cop-out. So yeah, he’s an asshole. And then what? It’s so easy just to dismiss the behavior that way without ever looking at what underlies it. What Abyss2Hope is asking, I believe, is that we look at what underlies it. We always spend so much time examining the woman’s actions with a fine-toothed comb, but dismiss the man’s actions with a broad brush. BB has explained why she did what she did. You may not believe she acted in the best way, but she has already explained it. Yet there’s still a ton of examination of her actions and those of other women who might find themselves in similar situations.
But the man? The dismissal is circular. He’s an asshole for doing what he did, and he did what he did because he’s an asshole. It’s a loop that excuses him from any actual responsibility. Did he get to be an asshole in a vacuum? Is he incapable of acting like anything other than an asshole. No and no. So at what point do his actions become ripe for actual examination the way BB’s did? Why does he think it’s acceptable behavior to behave in a coercive manner? If we never actually ask those types of questions but continually put the onus on women to change our behavior, we enable the “asshole behavior.” Even if we don’t realize what we’re doing.
Except that usually it isn’t one line drawn sharply in the sand – it’s a bunch of little steps from here to there.
(I apologize in advance for any innacuraccies)
When it comes to stealing we have:
tresspassing, vandalsim, shoplifting, petty theft, grand theft, larceny, grand larceny, blackmail, extortion, burglary, embezzlement, forgery
many of which may also be prosecuted as “attempted buglary” etc., and which can include the addendum “with a deadly weapon”
but when it comes to rape, we have:
sexual harrassment, sexual assault, and rape
with conditions in the latter two for “with a deadly weapon” and “attempted”
The arguement is not that the boss who bullied his employee into letting him fuck her is guilty of the same crime as the group if guys who forcibly raped a woman – it’s that he is guilty of something more than just making a few snide remarks here and there.
I agree that in the example from Biting Beaver the question of rape is not quite as clear cut (and no one has been trying to say that it is) but I’d argue that part of what is making it hard for people to even consider that he may have done something criminaly wrong is that a) we’re assuming he’s fifteen as well and b) we are taking about as if the arguement presented is: “should we prosecute the guy who did this yesterday” and “well, obviously he’s guilty”.
In reality, we wouldn’t be prosecuting anyone for such crimes until after the public had been very well educated about the new law. Plus, this wouldn’t necessarily be a clear cut case under any law that makes “an offer [or threat] to refrain from any action which would be legal or normally allowed” in exchange for “sexual favors” an illegal act*. The boy has every legal right to make sex a condition of the relationship and (unless something is missing from the story) he never stated that sex was a condition for being driven home safely – this was simply implied from his actions.
As far as the boy’s age is concerned – that’s only a problem because we keep insisting on trying minors as adults, which is ridiculous. A 15 year old will have a much harder time understanding where that line is drawn – and keeping on the correct side – than a 30 year old. But we still need to draw the line, or else fifteen year olds still won’t know where it is when they are 30.
My first kiss was in second grade. I kissed a boy on the cheek because he wouldn’t stop bugging me. The granting of the kiss was the condition under which he silently agreed to stop. No, I don’t think that we should go around locking up seven-year olds, but only because we don’t lock up seven year-olds for assault, either.
We both thought this was ok (well, he thought it was ok – I knew it was fucked up at the time, but didn’t know what else to do) because we were taught that, unlike hitting, it was. The yard duty thought it was cute. (grrr….) It’s not , of course. In fact, it’s not only a playground version of being an asshole, it’s a playground version of what should be considered, like hitting/assault, an illegal behaviour in adults.
*and yes, this is quite different from saying “I’m not going to have sex with you until you learn to do the damn dishes yourself!” Among other things, the latter is at worst interpretation and example of using sex to “get something” while the former is an example of using bartering – or blackmail – to get sex. Which, since prostitution is illegal, I find it very funny that so many people have such a hard time entertaining the idea that even bartering for sex could be considered illegal.
Sailorman:
Interesting question in light of your agreeing that what this guy did made him an asshole. He didn’t simply requestion her, simply reproposition her or simply re-anything and she didn’t simply change her mind.
heh.
So, is every guy who asks for sex more than once an asshole? You keep talking about drawing lines, but don’t make distinctions between regular behavior and bad behavior when arguing about where the line should be drawn.
Do you think that the law cannot make a distinction between outright coercion and a little peristence? Seems to be it already does so quite often when it comes to all kinds of things – including sexual harrassment vs. workplace romance. Yeah, it’s messy at times, but even the question of self-defense vs. murder can get pretty messy.
We disagree.
In any case, I thought of a better way to phrase this:
This is a debate about subjectivity and objectivity. At its heart you are addressing the question of whether we should rely on the SUBjective standard “she says that she “couldn’t” leave, break up with him, call a friend, or call her parents”) and the OBjective standard (“we all agree that leaving, breaking up, calling a friend, or calling parents are unreasonable expectations”) when deciding who is guilty of a crime.
The magic word is “crime”. That’s what makes it so different from the SOCIAL standard of who is an asshole. When you are asking the government to put its full force and power behind a goal, generally I think we need to be sure that the government is fair: we need a set of standards that apply to EVERYONE EQUALLY and don’t solely rely on the accuser for their determination. That’s one reason, for example, why I find the whole “it’s rape if a woman says so” argument ludicrous when it comes to criminal rape, but perfectly OK when it comes to defining moral rape.
damn. gtg. more later
When we do not have any way of preventing victims from being influenced by outside forces to choose something that in the longer run only makes the situation worse for all victims (by trivializing the punishment for rape and therefore trivializing rape itself), then having more choices is actually worse than having fewer choices. And, to me it reeks too much of putting expediency ahead of principle, which tends to make things only worse in the longer run.
You cite as a reason for your position a society where rape is not taken seriously. But mainstreaming/popularization of restore would lead to taking rape even less seriously, IMHO.
BTW, would you advocate a restore option for other violent crimes like murder/attempted murder?
Or there could be some class issues. Some types of rapes are reported less and prosecuted less than others. If they are basing their recidivism rates on reported rapes, then many date rapes may not be counted, and these are probably the kind of rapes that go through Restore instead of criminal prosecutions. So, there may be some selection bias.
Personally, I think rape cases that go through Restore are more likely to be date rapes instead of the stranger in the bush types of rapes. The rapists in the former case may just be more adept at showing outwardly remorse and avoiding getting caught or reported again and again.
“So, is every guy who asks for sex more than once an asshole?”
Yes, any guy who wants to have sex with a partner who is not fully willing is an asshole.
Sailorman:
Our key difference isn’t subjectivity vs. objectivity, but is one of whose actions should be judged to determine whether a crime was committed. You are basing your judgment based solely on her actions, or rather her lack of action, instead of on his actions.
She didn’t leave when you believe she should have therefore he couldn’t have committed a crime.
She said no, he didn’t take any action to get out of the situation, but he did take action after being told no, repeatedly, to steamroll over her resistance. But let’s all but remove him from the determination about whether his actions rose to the level of criminal.
Using your method of determination the man who steals a car with the keys inside cannot be a criminal because the car’s owner failed to secure his car. Everyone knows that’s an invitation to car thieves so not only is the thief not a thief, we have to wonder why this car owner didn’t do what he should. Something must be seriously wrong with him.
BTW, would you advocate a restore option for other violent crimes like murder/attempted murder?
I might. I’d have to learn more about it first. But there’s no reason for supporting it for rape but not murder. In fact, I’d be more likely to support it for murder than for rape, to be honest.
If they are basing their recidivism rates on reported rapes, then many date rapes may not be counted, and these are probably the kind of rapes that go through Restore instead of criminal prosecutions. So, there may be some selection bias.
Based on the RESTORE site, stranger rapes (a highly uncommon type of rape) can indeed be handled through RESTORE, and are no less likely to be than date rapes. You seem to be under the impression that RESTORE is somehow short-changing the victim and giving the rapist an easier way out. I’m not at all convinced that’s the case, especially since many victims want to be able to confront their rapists in a RESTORE-like situation. They have agency in RESTORE that they don’t in a regular court of law, wherein they’re walking evidence.
Also, the “maybe they just don’t get caught when they re-offend” argument can be used against any measure of recidivism unless it’s highly qualified by reasons why you think this particular group of offenders might re-offend. It’s therefore rather useless.
Compared to the current system, or even to the current system as it would be if harsher penalties were added, I think Restore looks pretty good.
No, that’s not it. There are a lot of ways in which something gets to be an “automatic” crime. Put differently, there are crimes that focus solely on the perpetrator, and not on the interplay between perp and victim.
The reason I am focusing on her actions is because the boy’s actions don’t seem meet the “automatic crime” standard. That means the interplay is relevant. Then her actions are merely the easiest place to focus on why it wasn’t actually a rape.
Let me try a different way of explaining why her actions are relevant:
Would you still want to convict him or punish him for his behavior, if she had continued to say “no?” Imagine the exact same hypothetical–except that it ends with her leaving (feeling just as upset). What would you suggest then?
I’m guessing you wouldn’t feel he should be treated the same way (sorry if I made a bad guess). If so, it’s probably because you recognize that it’s not only his behavior that makes the whole thing relevant. It’s also her behavior and choices. His behavior, in a vacuum, is obnoxious–but not criminal on its face.
His behavior MAY BE criminal–perhaps–in a situation where the interplay between him and the girl was different. You can even argue that his behavior in this situation was criminal (though I disagree, of course). But you’ve gotta look at her side too.
Not really (see above). BTW: Oddly enough, many insurance companies won’t reimburse you for that. A rental agreement I wrote recently prohibits leaving the keys in; it’s based on a major chain’s version. Of course it’s not the owner’s fault if someone steals the car… sort of. But, well, no keys makes it a lot harder to steal.
If she leaves, having continued to say “no”, with her just as upset, but without the sex, then there is no crime to charge him with, that I am aware of. There are a lot of crimes on a spectrum of rape and coercion, and they vary with locality, so I’ve no idea that this is absolutely true, but in most places, him presurring her to have sex isn’t a crime, unless he goes ahead and has sex with her.
I think this RESTORE sounds like an excellant idea, but reading through all of this, the important thing is education. Clearly too many people still believe that anything less than penetration and a beating or being threatened with a deadly weapon are necessary for it to be rape.
Laws and juries recognize that there are many, many gradations with other crimes. Manslaughter is not the same as first degree murder, right? So, they guy who premeditates a rape is guilty of a worse crime than the guy who spontaneously rapes, right? So, instead of examing her behavior, let’s find out more about him: did he deliberately set the date up so that he has the car and she doesn’t? did he deliberately bring her to a place that was isolating? does he know there are no taxis available? did he tell his friends that tonight he’d be getting laid? did he lay in a supply of condoms?
I don’t think a few paragraphs can properly present a case with no ambiguity whatsoever. There was a time when it was perfectly okay for a husband to rape a wife. A time is coming when coerced sex by dates will be just as clearly wrong.
Absolutely agree with this. We really do need more gradations for sexual assault and harrassment so we don’t get this “either he raped her at gunpoint (black end of the spectrum) or he is just an asshole but not accountable for his behaviour”. A lot of coerced sex in situations of power differentials can come under the heading of harrassment and should be actionable. The case described by BB would come under this category and the type of questions to ask in this case are exactly of the sort that you suggest.
Sailorman, I must assume (based on comment #66) that you are focusing on her leaving or staying because that is how you are determining whether or not a rape occured in this scenario. In other words you are trying to state that consent was given or taken away at that moment. If so, you believe a very dangerous rape myth. It doesn’t matter to you that he didn’t offer to take her to her friend’s house or that she didn’t know what his reaction would be if she tried to leave.
Your position is that her paralysis in the face of his unwanted behavior equals consent.
Sorry, it doesn’t.
I don’t know where you’re getting this (from the RESTORE site?) but what I’ve heard from people who work with sexual assault victims is that the experiment with allowing victims to face their rapists was a big mistake, that facing the victims does not really generate any empathy in the rapist as was hypothesized. People who are capable of feeling empathy for their victims aren’t very likely to rape in the first place. But sociopaths are very good at *acting* like they empathize.
Instead of providing support to victims to be strong and fight for justice what RESTORE does is tell them “here is the easy way out. You’re not going to get anything from the criminal justice system. So, why not settle for an apology and find inner peace?” and what it tells perpetrators is “all you have to do is apologize and you can get away with it”.
I don’t know where you’re getting this (from the RESTORE site?)
From studies listed on the RESTORE site, as well as from my own experience working in a rape crisis center. And I’m not sure where you’re getting the evidence that facing the rapist is a “mistake.” For one thing, it’s not really 100% true that people with empathy can’t rape. But more importantly, the point of the confrontation is not inducing empathy in the rapist, but in giving the survivor the right to face him and say things to him if she so chooses.
Instead of providing support to victims to be strong and fight for justice what RESTORE does is tell them “here is the easy way out. You’re not going to get anything from the criminal justice system. So, why not settle for an apology and find inner peace?” and what it tells perpetrators is “all you have to do is apologize and you can get away with it”.
“Be strong and fight for justice”? What justice? For one thing, I’m not sure there can ever be “justice” in the “eye for an eye” sense when it comes to a crime like rape. And for another…”be strong”? So a raped woman who doesn’t want to put herself through the criminal justice system is “weak”? A woman who wants to confront her rapist face-to-fact is taking the “easy way out”? Sorry, but I don’t buy it.
And in fact, women seldom do get anything from the criminal justice system. This is a fact that must be faced. Legislating harsher penalties for rapists won’t change that. I don’t know what will, but the mere fact of harsher penalties will not. Which brings us back to Ampersand’s point that the real battle is over the culture, not the law.
People do change their minds on their own sometimes. A husband or boyfriend who asks his wife or girlfriend when she has just come home from work, but is rejected because she’s had a shitty day, is not an asshole if he asks again a little bit later when she’s had a chance to unwind.
That’s kinda more what I meant by not being an asshole.
A first date who aks more than once? Asshole who won’t be getting a second date (I hope).
Exactly. If we applied the same logic (that inaction at the time of the event in question equals consent) to sexual harrassment, it seems to me that practically no cases would have ever been won.
The real life case that inspired North Country – :p…..no way
My manager being an ass and deciding that putting his hand on my neck was the proper way to greet me – well, I only moved away and gave him a dirty look. If he had ever done it again, one could argue that my not making a formal complaint right then is the same as inaction……so even my employeers couldn’t take action against him……
And yeah, those sound like really arbitrary lines to draw as far as what constitutes action and what doesn’t – but that’s the point.
While it is the prosecution’s job to prove beyond a reasonable doubt that an alleged rapist did not have consent, it should be the legal responsibility of the person requesting sex to make sure that they have consent at the time. It should not be a legal responsibility of the victim to make sure that the other party knows if consent has been granted. It’s not like it’s my job to make sure my boss knows it’s not ok to touch vulnerable parts of my body without my express permission. It’s his job to ask like a reasonable person by a) realizing that the back of my neck is not a place he gets to touch without asking, and b) paying attention to my obvious body language – like moving away from his hand.*
Consent always needs to be active, not passive. One can’t assume that just because I’m not pushing you away that I’ve granted consent. It would be especially stupid to assume so if I’ve repeatedly said “no” beforehand.* Sexual assault will often induce a state of shock in which the victim can either do nothing or feels like she isn’t in complete control of her own actions.
(Besides, seriously, how difficult is it to ask for a clear yes?)
I didn’t stop at moving away and throwing a dirty look when my supervisor put his hand on my neck because I thought that was all that was needed, I stopped there because I was in shock that he would ever do such a thing and because I was instantly bombarded with talk of how I’m “touchy” – as if I was the one at fault.
I agree that one can ask repeatedly, eventually get a yes, and simply be and asshole and not a rapist. But that’s not what happened in BB’s story,
*the issue isn’t that she said “no” – and therefore her actions matter in the sense that she’s legally obligated to provide a clear indication of consent/non-consent, – it’s that it’s not at all reasonable of him to assume that consent has been granted if she repeatedly said “no”, but never said “yes”. It’s a question of the prosecution being able to prove beyond a reasonable doubt that it was rape: a reasonable person would have waited for a “yes” after so many “no”s. It’s not a question of if she did her “job” and made her wishes known.
Even if she finally says yes, consent is not a given when any sort of threat/coercion is involved. Some stranger rapists demand that their victims say yes, but hopefully we all understand that she didn’t truly change her mind.
Abyss,
“Even if she finally says yes, consent is not a given when any sort of threat/coercion is involved. Some stranger rapists demand that their victims say yes, but hopefully we all understand that she didn’t truly change her mind.”
Yes, of course. I wrote on that issue at some more length in my own post on my blog (you might like that post, BTW).
However, it’s also true that rape is far from a given when any sort of “yes” is involved. That’s because we think that these two things are quite different:
1) “I intend to have sex with her, like it or not.”
2) “I intend to try to convince her to have sex with me.”
Re the “paralysis” thing: Neutrality can often be viewed as consent in our society. I’m not saying that’s an especially good thing, but it is true nonetheless. The characterization of her actions as “paralysis” is adding a subtext which doesn’t exist in the original post.
Sailorman: 1) “I intend to have sex with her, like it or not.”
Where’s her “I like it” in BB’s scenario? I see no evidence that her not liking it made the slightest difference to his plans. That means that under this definition, he’s a criminal.
A2h,
I’m confused–that’s not a definition, so I don’t understand your reply….?
Perhaps we can start over by agreeing on the scenario.
1) She does, in fact, say “yes.”
2) The “classic” exhibitors of rape (violence, physical force, inability to consent, etc) are not present.
3) The reasons that she does not leave are (duplicate statements omitted):
a) she doesn’t really know where she’d go anyway.
b) She has no car, how is she going to get anywhere?
c) She doesn’t want to try to call her girlfriend who may or may not have a car.
d) She knows that she’ll just make her boyfriend angry at her even if she DID do that. What if he kicks her out?
e) She lied to be there and if she goes back home she’ll get in trouble for lying.
Are we in agreement?
And sometimes they do. So why advocate giving up even before trying? And isn’t this the same type of argument that conservatives make for school vouchers – that the public schools suck, so parents should be able to choose a different school for their children. So, we give up on the public schools and make them worse instead of improving them.
My suggestion would be to focus on *implementing* the penalties that are already on the books (which would be effective deterrents if they were implemented consistently) rather than giving up on the legal system and moving towards a system that has practically no penalties serious enough to act as deterrents, and which trivializes rape as something that can/should just be redressed with an apology or compensation.
In fact, the law is very much a part of the culture that we need to address. Restore trivializes rape, IMHO, and will take us in exactly the opposite direction that we need to go in changing the culture to take rape seriously. The effort of educating people about rape and rape myths is necessary for improving the implemention of the law against it. It’s not an either/or choice.
Have you read the works of Peggy Reeeves Sanday? Relatively rape-free cultures have severe penalties for rape which are applied consistently. The idea of an apology/compensation as being sufficient redressal for rape sounds more like a feature of the rape-prone cultures she describes (so I’m not surprised that the idea would sound good in a culture like USA).
Sailorman:
If it wasn’t a definition that makes the difference between rape and consensual sex in BB’s scenario, why did you use it?
Maybe we need a new vocabulary for rape. It seems to me that we have many different words for crimes involving money, including several for getting money from someone else by coercing them, but we only have a couple of words for crimes involving sex. (I’m not a lawyer, though, so forgive me if this is incorrect.) If we are taking rape seriously, I think we should have words to describe a number of different points on BB’s spectrum. Then the scenario described by BB would have its own specific term and we wouldn’t be discussing whether or not it was rape – we would be discussing whether or not that kind of encounter is a crime, and what kind of penalties should be applied to guilty parties.
For instance, if you substitute an iPod for sex in BB’s scenario, I think everybody would agree that the male person extorted the iPod from the female person (I can’t remember now how BB wrote it – if it was man and woman or boy and girl), and I believe the discussion would then cover the cost of an iPod and the appropriate punishment for extorting an iPod. We would not be having a discussion about who was at fault for a situation where someone coerced someone else into handing over an iPod, or whether or not it was really a gift, or how the original owner of the iPod could have avoided the extortion or responded to the initial extortion attempt.
Bottom line is, rape is stealing sex. (It’s other things, too, of course, just as other kinds of theft have multiple components, but for the sake of clarity, I’m just limiting it to one element.) If our legal system treated sex the same way it treated money, boys would be (hopefully) taught that getting to put your penis in a woman’s vagina when she is not enthusiastically cooperating is wrong the same way they are (hopefully) taught that stealing material objects and money are wrong.
I’m guessing you wouldn’t feel he should be treated the same way (sorry if I made a bad guess). If so, it’s probably because you recognize that it’s not only his behavior that makes the whole thing relevant. It’s also her behavior and choices. His behavior, in a vacuum, is obnoxious–but not criminal on its face.
OK, here’s what I think is the flaw in your reasoning. Suppose Joe Asshole puts arsenic in someone’s coffee. In scenario a, the coffee drinker has been exposed to arsenic before and built up a tolerance, so Joe Asshole’s dose doesn’t cause significant harm. In scenario b, the coffee drinker has never been exposed to arsenic and has no tolerance, so he drops dead. In a, Joe Asshole is not guilty of murder, but he is guilty of attempted murder, or endangering life or something. And in b, he’s squarely a murderer.
What does that mean when we’re talking about pressure instead of poison? Well, trying to harm someone and failing because they didn’t succumb may not be as bad as trying to harm them and succeeding, but that doesn’t mean it can’t be criminal behaviour.
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Most definitely.
I was trying to say that (even assuming the laws have changed to include coercing someone to agree to sex as rape) a jury may have a harder time determining rape – beyond a reasonable doubt – in the scenario where she says “yes” at some point than in the scenario will she doesn’t. That doesn’t mean that all scenrarios where she says “yes” at some point are hard to determine as rape, or that the fact that the jury may find it difficult to determine means that rape probably didn’t occur or that they will never arrive at a guilty verdict.
I was just trying to point out that reviewing the details of each persons actions does not indicate that the responsibility is suddenly on her to make consent/non-consent clear. Knowing what she said is important in determining if he took the necessary steps to be sure she was in agreement. If she never said yes and said no several times, the issue is pretty clear-cut. If she said no several times but said yes at some point, further review is needed. The fact that further review is needed does not mean he’s not guilty, it just means a responsible jury will take more time determining guilt beyond a reasonable doubt in the second scenario than the first.
And sometimes they do. So why advocate giving up even before trying?
I don’t advocate “giving up even before trying.” I advocate thinking differently about solutions to the rape crisis and punishment for rapists, because the way we’ve been doing it isn’t too great. And I’m not sure rape can or should be handled be handled like other crimes, given how it’s been historically minimized. We need to put extra provisions into our justice system to make sure victims get some satisfaction and rapists get some justice.
And I don’t, for the record, think an apology is sufficient punishment for a rapist! I do think it’s worth looking into RESTORE-like programs, however, because in some cases they might be helpful to the victims and might lead to discovering other avenues of justice beyond the conventional method of prison time.
This is a great dialogue.
Before Dr. Koss published the results of her national study on college acquaintance rape, therapists like myself used the Chloe Madanas ‘s intervention of having a family perpetrator in incest cases get down on his knees to beg forgiveness from the victim and to MAKE AMENDS, particularly pay for therapy, college, etc. (I can’t even remember if that’s her name, she was Jay Haley’s wife, Jay being one of the fathers of family therapy).
Restore seems to be essentially that.
I used it many times and it has been extremely therapeutic.
I’ve since done quite of bit of academic research into sexual assault and acquaintance rape. There is no question B.B. was raped. Hers was not informed consent, it was concent by coercion.
Thanks for this blog, Linda Freedman, LCSW, LMFT, PhD
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As a tennager I totally agree with the spectrum. I know someone who liked a guy and she was staying with her family and so was he. Well, one night they decided that they were going to go get this women drunck for her birthday and so they all loaded up and went. Well my friends family gave her alcohol and she said she would take it on one agreement, and that was that they would not let her do anything stupid. Well my friend and this guy she liked got drunk with her family. That night ( knowing she was drunk) my friend asked one of her family member if she could stay in there room so she would not do anything stupid. They denied her that right, so the guy began to kiss her and touch her, and she told me she was scared because she was a virgin and that he was pushing himself off on her. She told him no and he became upset and began pressuring her and she sid that she didn’t want to do anything she would regret. He said she wouldn’t so they had sex. After that her verbally bashed her and she told me she didn’t remember much of what happened because she was blacking out.
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