(Note: a lot of this post, I’ve cribbed from what I wrote in the comments to a previous post).
Having watched the controversy for a few days now, the most persistent argument against the Illinois rape law (actually, just an amendment to an already existing law) is that this legislation would result in men being thrown in prison for failing to stop “instantly.” For instance, Allison at Ain’t That A Kick in the Head writes:
And Don of Anger Management (who is able to admit when he’s made a mistake – a rare and admirable trait in the blogoverse) writes:
What struck me is that both of these writers put the word “immediately” in quotes, but what is it they’re quoting? Certainly not the Illinois law in question, which says nothing about “immediately.”
In Illinois (ignoring cases where “did she consent?” isn’t an issue, such as statutory rape or an unconscious victim) it’s not legally “sexual assault” unless there’s force or a threat of force. This new law doesn’t change that; even under this revision, prosecutors still need to prove use of threats or overcoming force.
(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or
(2) when the accused has overcome the victim by use of superior strength or size, physical restraint or physical confinement.
Remember if the state can’t convince a judge or a jury that “threat of force or violence” was used, then the accused can’t be convicted of rape. The new amendment to the Illinois law doesn’t change that.
What the amendment does is make it clear that “but she consented before she changed her mind and said no” isn’t a valid defense. Other defenses – like “she’s lying!” or “I never used threat of force or force” – remain valid. And the burden of proof remains with the prosecution, not the defense. This is why Allison’s concerns that men will need “a signed contract and a stop watch” to defend themselves are misplaced..
Ampersand, thanks for the writing you’ve done on this topic. I always appreciate your commentary.
Doesn’t even consensual sex usually involve the application of a certain amount of force? The “caveat” is meaningless.
Um, Big Tex, not to inquire into your sex life, but consensual sex “usually involve[s] the application of a certain amount of force” only in the sense that, say, pushing a child in a swing involves the application of a certain amount of force.
Normally, you push just enough to make the kid move forward in the swing. If you push hard enough to make the kid lose his grip on the seat, fly forward a few feet and hit the ground, his parents might legitimately accuse you of assault.
The Illinois law doesn’t say that it requires proof of injury. It merely requires the use of force or the threat of use of force. It says nothing about injury whatsoever. The point remains valid – consensual sex requires the use of some degree of force.
Not to nitpick, but whether or not the state can convince a judge or jury that “threat of force or violence” was used, the accused can always be accused of rape. They just most likely will not be convicted.
Big Tex — what is it that you don’t understand regarding the difference between consensual/i> and non-consensual?
bean, I understand the difference between consensual and nonconsensual sex just fine. However, not all nonconsensual sex = rape. Some people here apparently believe all nonconsensual sex = rape. It doesn’t. It isn’t that simple. It’s time to recognize that and move on.
Acually yes, all nonconsensual sex does, in fact, equal rape. I’m not certain how exactly it isn’t that simple. Whether it’s codified onto law or not means nothing, though every little bit helps. But to suggest that it’s more complicated than “all nonconsensual sex = rape” is at best disingenuous.
“Some people here apparently believe all nonconsensual sex = rape. It doesn’t.” –Big Tex
Big Tex is not the only person I’ve heard espouse this particularly ignorant view over the last week–thus proving the necessity of spelling things out for some people.
I actually had a person on a message board arguing that it’s not rape if the person retracting consent doesn’t have a good reason.
Big Tex, if nonconsensual sex does not = rape, then what DOES = rape? I’m not being cute here, I honestly don’t understand how else you would define it.
I live in IDAHO, for chrissakes, and I’ve yet to come across this notion!
Is this like that time when I was about 14 and realized that “mediocre” wasn’t an alternate definition for “leading”? All my life, due to commercials saying, “consumers prefer our soft drink 2 to 1 to the *leading* brand,” and I had it in my head that “leading” was an insulting term in some contexts. Then I realized… OH! LEADING! Like the brand that is in the lead, as in, sells the most!! OH!
Is this like that? All my life, I thought rape was sex without consent, and it’s really something else, like stomping on someone’s toe?
Big Tex, trials are for sorting out grey areas. I think that’s what you’re talking about – that a woman can say no in a situation but not be clear on what she’s saying no to or not say no but behave as saying no and the guy doesn’t always interpret it correctly.
I have heard guys get very confused as to how women respond in sexual encounters. Some seem to think that when a woman objects to an increase in the intimacy and then later consents, that she was just playing games the first time out. Others get confused about her being willing to do “A” but not “B”. Or is she saying no because “C” is out of the question tonight and she just get to “D”.So they find within the word “no”, a wilderness of possibility. Add to their confusion, partners who are hesitant about asserting themselves and you have some confused men.
A dear man I know once admitted to date rape. I’ve dated him, girlfriends of mine have dated him and a close friend married him. None of us ever knew him to behave inappropriately but he tells this story. In college he was dating a girl who hadn’t dated a lot (we know her and know this to be true). They were fooling around quite a bit but hadn’t had sex. One night they got stoned and got busy. She never said “no”, she simply stopped responding at a fairly late time in the proceedings and lay there rather limply. Because she didn’t say “no” or move to stop him in anyway, he continued. She never spoke to him again and he knows why.
This is what Tex is worried about I think and he’s concerned that perhaps this law makes conviction and imprisonment for a guy like this a slamdunk.
If that’s what you have on your mind, you should relax. There are juries that hear these trials and we all know that there is ambiguity to the word “no”, that it can mean many things depending upon the context and most of us sort it out quite effectively.
I’ve had a pretty fun life and have dated lots and lots of men. The first no doesn’t always take but the second and third must and does. Most people know that intuitively even if they’ve never had reason to form the thought directly in their own heads.