Every time I think I’ve seen the limit on how screwed up this country is about sex, we retop ourselves. Case in point (via the Agitator):
On March 25, 2004, Amber and Jeremy took digital photos of themselves naked and engaged in unspecified “sexual behavior.” The two sent the photos from a computer at Amber’s house to Jeremy’s personal e-mail address. Neither teen showed the photographs to anyone else.
Court records don’t say exactly what happened next–perhaps the parents wanted to end the relationship and raised the alarm–but somehow Florida police learned about the photos.
Amber and Jeremy were arrested. Each was charged with producing, directing or promoting a photograph featuring the sexual conduct of a child. Based on the contents of his e-mail account, Jeremy was charged with an extra count of possession of child pornography.
So for that, they will for the rest of their lives be registered sex offenders. (Or maybe not – see comments.)
Amber appealed, claiming that this application of an anti-child-pornography law to her taking private photos of a perfectly legal encounter with her boyfriend violated her right to privacy (which is guaranteed in the Florida constitution). Earlier this month, a Florida Appeals Court ruled against Amber. The majority decision, written by Judge James Wolf, hinged on whether or not Amber could have had a reasonable expectation of privacy when she emailed the pictures to Jeremy’s personal email address. According to Wolf, she could not have had any such reasonable expectation of privacy, because maybe she or Jeremy would have decided to show them to other people at some point in the future, and anyway the internet can be hacked.
No, really. That was his reasoning. And that’s not even the stupid part.
Here’s the stupid part: Judge Wolf argues that the conviction must be upheld so that Amber and Jeremy can be spared trauma and smeared reputations.
Appellant was simply too young to make an intelligent decision about engaging in sexual conduct and memorializing it. Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved.
Further, if these pictures are ultimately released, future damage may be done to these minor’s careers or personal lives.
Try to grasp the jaw-dropping illogic in all its nonsensical glory:
1) Amber is “simply too young to make an intelligent decision.” But she’s not too young to be a held responsible for the crime of child pornography.
2) The state must prosecute Amber in order to protect her from psychological trauma. Because being tried and found guilty of a sex crime is obviously the least traumatic option for Amber here.
3) If the pictures were someday released, that might have hurt Amber and Jeremy’s careers or personal lives. So instead the court permanently brands them as convicted sex offenders, which in no way could potentially harm their careers and relationships in the future.
Sheesh!
(Curtsy: Julian Sanchez.)
This shit just has me seething with rage. When I describe myself as sex-positive, fighting bizarre reactionary anti-sex anti-humanity anti-empathy anti-rationality rulings like this is what I mean.
Teenagers are sexual creatures, no matter how much we as a culture want to pretend they’re not. We simultaneously sexualize them and express horror and shock at the idea that they’re actually having sex. Grown women are made to look like teenage girls for sexual titillation, but actual teenage sexuality is verboten. It’s ultra-dysfunctional. It’s schizophrenic.
Someone once said that our entire country is like Brother Justin from the HBO show Carnivale, secretly watching his sister undress, then flogging himself bloody for hours. It’s just in this case, we’re flogging these kids.
I’d also like to toss in a big thank you to all the folks who support every anti-child porn initiative/anti-sexual predator initiative that comes down the pike and ignore every one of us who warned all along that they were too broadly written and draconian and that this kind of thing would be the result.
God, these poor kids. Just imagine that in many parts of the country, they wouldn’t be allowed to be around kids their own age, live near the schools they attend, will have to register for the rest of their lives everywhere they go, will have to tell their future employers, etc. Honestly, I’m not even sure how they’ll attend school! They may have to study at home or something. Every single initiative we’ve passed over the past decade for the purposes of keeping ‘The Perverts’ away from our children now applies to two kids who were fooling around with each other (as I’m sure most of us did when we were their age). Every. Single. One.
Right now it may not actually be as much of a big deal, because when you’re 17, 18, 19, you can just explain what happened, and maybe you’ll get some understanding or sympathy . . . but what about when you’re 35, and nobody wants to listen to your explanation, because in their eyes you’re just a creepy child molester that they don’t want living near their kids? What about when you’re 50? What about when you have kids of your own? Hey, will a future ex-spouse be able to use this to take custody of the kids away?
This makes me literally physically ill.
—Myca
I suspect the subtext of the majority’s argument is the desire to make laws against teen porn enforceable. In the internet age, proving production and possession of porn may be much easier than proving distribution and sale. If the court finds that it’s legal for teenagers to film themselves engaging in sex and possessing such films, then pornographers might be able to exploit this fact to their advantage.
Prosecutor: I charge you with producing child porn.
Defendant: I’m merely a teenager recording a private moment with my teen lover.
Prosecutor: Why did you sell access to these documents?
Defendant: I didn’t. I intended them to be private. And I have no idea how all those people learned the password to my e-mail account.
Prosecutor: Why haven’t you removed the porn from your e-mail account?
Defendant: It’s not porn! It’s a private moment. And the courts have ruled that it’s perfectly legal for me to keep it in my private account. The fact that others may breach the account’s security is not my problem. Rather, it’s yours.
Prosecutor: How can a teenager like you afford a car?
Defendant: I have always relied on the kindness of strangers; is that a crime? Look, we need to hurry this up cuz I’ve got a lot of homework….
A judge may be disinclined to admit that he’s sacrificing the interests of a couple of teenagers to promote the (perceived) interest of society generally, but that’s what the decision looks like to me.
If so, then in my opinion the judge was wrong. The reason we have juries and judges is exactly to make determinations like this: “Is this witnesses claim to have not intended this for distribution credible?”
It’s better to trust that a jury will be able to distinguish between a case like Amber and Jeremy, and a case described in your dialog, than it is to decide we should punish Amber and Jeremy despite their innocence so that we’ll be better able to punish a hypothetical teen child-porn distributor in the future.
Not only that, but I also think a distinction needs to be made between ‘naked pictures featuring a 16 year old boy in a sexual situation’ and ‘naked pictures featuring a 5-year old boy in a sexual situation’. I don’t think adults should be buying/selling/etc either of them, of course, but the blanket ‘child porn’ bugs the hell out of me, because they’re very different things.
—Myca
This is also a good example of why it’s stupid and ineffective to get all worked up over how many perverts the sex offenders register lists in your neighborhood.
You don’t know how many of them are Ambers and Jeremys, or similar people, and while you’re obsessing over them and their addresses, your uncle or pastor is far more likely to be molesting your kids.
Gah.
The other part of this that really bugs me relates to something John Coffee said in The Green Mile:
Why do we insist on taking something lovely and shitting all over it? There are no guarantees that these two had some sort of fairytale ‘eternal-love’ thing going on, of course, but we’ve taken the affection they have or had for one another and turned it into a weapon to hurt them with.
That’s obscene.
Maybe the next Governor will pardon them. This asshole certainly won’t — the Bush family believes is forgiveness for me but not for thee.
I know it’s different for different states, but the sex offender registry site here lists each offender’s charges. I skimmed through it when I moved, and there were definitely a few who were charged with some approximation of being 18 and having a 17 year old girlfriend (which is maybe even stupider than this ruling). Many, if not most, were violent, coercive crimes involving breaking into homes or duping unsuspecting parents. The problem is that they’re all listed together, so unless you’ve got the time to look through all the individual records, it all looks the same. And many states don’t put the information up at all.
Now that I’ve typed all that, it obviously makes more sense to fix the sex crime laws than to reorganize the database, but at least having the charges specified would give some leniency to people in the position of these kids. Poor kids.
Thomas, Jeb Bush is no longer the governor of Florida.
Since they were both underage, they can’t be prosecuted for their act of sex, but they were prosecuted for taking pictures of that act of sex.
If the judge gets away with this, I blame the parents in that community for not taking up protests and other acts of civil disobedience.
Amp,
Where’s the info that they would be listed on the sex offender registry? Normally, someone tried and convicted as a juvenile is NOT listed as a criminal, in any form including sex offender registries, once they are 18. (That’s why “being tried as an adult” is a very severe penalty.) (My wife worked as a teacher in the JJ system at one time; a significant number of her students had been convicted as juveniles of sexual crimes, but that did not go on permanent criminal records.)
Sam,
It appears I screwed up, frankly. Thanks for catching that.
Okay, so if they’re not going to be listed on the Sex Offender registry, that’s certainly much better.
The whole case is still utter bullshit, but at least it won’t necessarily ruin the entire rest of their lives.
This is really horrid for both of them.
Still, I’m not totally comfortable with this whole response. Isn’t it just an emotional reaction because we like Amber and Jeremy? If one of them were 40 we’d want them locked up and the key thrown away. If you want photos like this to be illegal, then should it really matter if we like whoever’s involved or not when it comes to passing judgement? Deep down part of me feels the law should be impersonal and objective, and we shouldn’t want people we feel sympathy for treated in one way and people we dislike treated in another. That’s just arbitrary.
If one of them were 40, we almost certainly wouldn’t be having this discussion. None of us know Amber and Jeremy, or even know their real names, so likability doesn’t enter into it. Their ages are the relevant factor here. Consenting peers privately documenting a consensual moment is not at all the same thing as an adult exploiting a kid. Prosecuting the former under laws targeting the latter isn’t being impersonal and objective, it’s ignoring either the facts of the case, the spirit of the law, or both.
What the hell is wrong with these people? I had no idea that “child pornography” was a crime if the “child” in question is yourself, and you and your partner are the only ones who are ever (supposed to) see it.
Next thing they’ll be arresting adolescent boys for masturbating with the charge that they were committing child molestation …
“Where’s the info that they would be listed on the sex offender registry? Normally, someone tried and convicted as a juvenile is NOT listed as a criminal, in any form including sex offender registries, once they are 18. (That’s why “being tried as an adult” is a very severe penalty.) (My wife worked as a teacher in the JJ system at one time; a significant number of her students had been convicted as juveniles of sexual crimes, but that did not go on permanent criminal records.)”
I think it depends on the state’s statutes. I was doing a research paper in law school 2 or 3 years ago on juveniles who sexually offend, and I had a couple of articles on kids under 18 who were put on their states’ sex offender registry list once they turned 18.
And I agree with defenestrated–this ruling goes against the intent of the law. If there was a statutory rape law making it a crime for anyone to have sex w/someone under 18, we wouldn’t criminalize two 16 year-olds having consentual sex (or maybe this judge would). The point is that the intent of the law is to protect children from older, predatory adults. When two people who are the subject of the law it intends to protect engage in that activity, the purpose of the law is not furthered by their criminalization.
Right. What you’ve said just there is exactly the problem in every single way. Good job locating it.
The real problem here is the attitude that if we ‘really want’ X to be illegal, we need to abandon every single ounce of nuance, context, or common sense.
It’s the same attitude that’s lead to ‘zero tolerance drug policies’ that prohibit kids from consuming Tylenol at school, ‘zero tolerance sexual harassment policies’ that prohibit kindergarteners from hugging one another, and ‘the war on drugs’ keeping marijuana out of the hands of AIDS patients.
No method is too extreme, no penalty too overblown. As long as our goal is safety, we can do whatever the hell we want to whoever the hell we want. The ends are all. The means are immaterial.
—Myca
Well that’s rather the point. I don’t think anyone wants pictures like this to be illegal. This wasn’t child porn, this wasn’t a photo of a molestation, this wasn’t a photo of an act that is barred by statute. This wasn’t a case of any kind of exploitation. People engaging in a consensual sex act took photos of that act for their own personal use. Why on earth should that be illegal?
I don’t see a single reason why photos of entirely consensual, legal sexual relations kept for personal use should be illegal. Horrifying thought.
It’s the same attitude that’s lead to ‘zero tolerance drug policies’ that prohibit kids from consuming Tylenol at school, ‘zero tolerance sexual harassment policies’ that prohibit kindergarteners from hugging one another, and ‘the war on drugs’ keeping marijuana out of the hands of AIDS patients.
Or a “zero tolerance weapons policy” that threatens to get a kid who has a neckerchief slide in his backpack that’s made out of an expended shotgun shell expelled.
everything in this entry makes my frelling brain ACHE. This in just insanity. I don’t even have the wherewithal to properly address the crazy because it is so crushingly crazy. I need to lie down.
The ruling is bad. Horrible.
BUT.
But I hasten to remind folks that a big part of why we have “no discretion” policies is because discretion is commonly used in a non-neutral manner.
Take the old ederal mandatory sentencing guidelines. Were they too harsh? Yup. Did they do a lot to reduce the disparity between white and black defendants? Yup.
So, let’s imagine this with “discretion” analysis, using two hypotheticals:
1) two white kids who email each other nude pictures; and
2) a black boy and white girl (poor, no computers) who take nude polarids.
Anyone want to bet they’d be the same result? Anyone? The problem with too much discretion is that it creates inequality under the law, which is a horrible thing.
@DJ:
“And I agree with defenestrated–this ruling goes against the intent of the law. If there was a statutory rape law making it a crime for anyone to have sex w/someone under 18, we wouldn’t criminalize two 16 year-olds having consentual sex (or maybe this judge would). The point is that the intent of the law is to protect children from older, predatory adults.”
I’m not an expert on this subject, DJ, but I think in fact the “intent” of the law was to do no more, and no less, than “[make] it a crime for anyone to have sex w/ someone under 18”. Many of these laws, perhaps most of them, do not recognize the age of the offender. It follows quite literally that if two people under 18 have sex, we now have two sex offenders. I was completely thunderstruck when I first found out that such laws exist, are articulated in the bare-bones manner you describe and therefore apply to an offender regardless of age. Apparently, some states do have “Romeo and Juliet” laws, that limit the application of the statutory laws in cases such as these.
Not to defend laws such as this, but when you think about it, it seems impossible that they could be articulated any other way. Sexual offenses _are_ committed on kids under the age of 18 by other kids under the age of 18. Even without this concern, for the law to try to make exceptions based on age seems a slippery slope. When is the difference in age big enough? I’d be staggered if anyone anywhere has any feasible idea on that. To my inexpert thinking, these laws thus seem like ones which don’t need to exist; isn’t it enough that it is illegal to rape? Don’t these laws just create a class of people who can’t legally have sex? But I don’t know the genesis of them; perhaps there is some valid reason behind their existence, and even their implementation.
Something else that hasn’t been mentioned here, or at least not so explicitly, is that these suits are usually (if not always, or maybe it’s merely often – as I said, not an expert) brought by the parents of one of the teenagers. Remember that the teens are not actually adults yet; they are the wards of their parents and their parents have the power to make the decisions. While Judge Wolf is clearly extraordinarily lacking in compassion and understanding, his hands might be tied somewhat in that (I believe – someone correct me if I’m wrong) he might not legally be allowed to take the children’s testimonies into account. My point is that, the judge notwithstanding, the children are completely unable to have any control over the proceedings; but the alternative, giving them that control, would be to give children some kind of adult status, which is another thing that seems to me impossible to articulate in law; they can’t be both adults and not adults. (Though actually that is often what teenagers are.) Even if such a thing could be done in the eyes of the law, the parents would never, ever stand for it. Or there would be too many against it to ignore.
Recently I read of a case against a teenage boy on Reddit, the boy somehow had charges brought against him for owning child pornography on some yahoo account or other. The evidence was paper thin or non-existent, but the prosecutor wanted that sex offender statistic under his belt, and wouldn’t let up. The judge in that case had the sense to question the goals of the prosecutor and was instrumental in getting the charge reduced to that of showing another boy a Playboy magazine. It was completely absurd but at least he wasn’t burned with the mark of Cain.
In fact, Sparkane, in Florida it’s perfectly legal for an 18 year old and a 16 year old to have consensual sex. It’s only larger age gaps that are illegal.
In fact, it’s common for statutory rape laws to make exceptions when the people having sex are close in age to each other. I’m not sure if there are any states in which the statutory rape laws don’t include such an exemption.
That doesn’t mean that non-statutory rapes are legal if the ages are close, of course.
Re Sparkane “My point is that, the judge notwithstanding, the children are completely unable to have any control over the proceedings; but the alternative, giving them that control, would be to give children some kind of adult status, which is another thing that seems to me impossible to articulate in law; they can’t be both adults and not adults.”
That’s exactly the point of juvenile delinquency courts–children break the law but are treated differently because of their status as juveniles. We can’t hold them to the same standard as adults because their brains are not the same as adults, but we can’t ignore that they have broken the law in some way. And children do, to a certain extent, have some “control,” if you want to call it that, over the proceedings in that they are entitled to attorneys, can speak in court, etc. Granted, there are serious deficiencies with the current state of juveniles’ rights in the legal system, but to say that they are completely at the whim of the state and given any control whatsoever would put them into adult status, is inaccurate.
And I’ll echo Amp’s notation on the statutory rape laws. I’ve worked in the legal system in 3 states now, and all of the states I’ve been in have had provisions for children under 18 having sex with each other, with varying ranges of acceptable age differences. Most states also have “tender years” notations for increased punishments, for those who have sex with children presumed incapable of consenting under any circumstances (say, 8 years old).
I’d have a hard time believing that many states mandate that no one may lose their virginity before the age of 18, which would be the result if statutory rape laws were uniformly phrased in such a way that
Although, if teenage sex were outlawed, it would at least shut up a few of the purity proselytizers. ;)
I’d also add that juvenile courts tend to allow judges more discretion in deciding the best course of action to take on each case, so the judge’s hands are anything but tied. A judge can choose to throw out a case because he or she believes that the child will not be best benefitted by a criminal case, or he or she can throw the book at the kid, to teach ’em a little tough love (which tends to happen a lot when you’re dealing with school fights, graffitti, etc. in urban neighborhoods, since judges often think they’re saving kids from themselves). In every state I’ve worked, judges in delinquency courts are to balance the best interests of the child with the interests of society (translation: punishment of said child for the safety of the community). Here, the judge says he is punishing the children in their best interests, so I suppose that is a “balancing test,” but just not a very reasonable one, in my opinion.
And, on a separate note, children are frequently seen as adults in some contexts of the law, and as children in others. In one state where I worked, a child could be prosecuted as an adult for crimes at 16, even though they were considered too young to buy cigarettes, which was 18. Similarly, in that same state, at 16, they were still considered children in the eyes of the dependency court, even though they could be prosecuted in adult court for criminal offenses they were alleged to have committed. There are hundreds of inconsistencies in our laws. We have laws to protect kids under the notion that children are too young and without the necessary knowledge and life experiences to take care of themselves, so we need dependency courts and social workers to look over them. Yet somehow, if a crime is committed by someone within this same age range, they’re old enough to have known better, so they should pay the price and be locked up to the same extent as an adult would be. It still shocks me that it was only until a couple of years ago that capital punishment of people under 18 was considered cruel and unusual punishment.
In Florida, if the elder participant is under 24, then that person may legally have sexual relations with a person who is at least 16. If the elder participant is 24 or older, then the younger partner must then be at least 18.
The Florida Supreme Court has held that the primary purpose of the state’s age of consent laws is to protect minors from the sexual exploitation of adults. They ruled that the Florida Constitution’s right of privacy gives minor children the right to have consensual sexual relations with other minors.
https://www.law.fsu.edu/library/flsupct/83712/op-83712.pdf
Oh, and one more thing before I actually get back to the work I should have been doing all day, haha–
I wouldn’t be surprised if one of the mothers (probably the girl’s) reported this. That is how a lot of the grey area stat rape cases come to court (16 year old dating 19 year old type stuff); at least that’s what it’s been in my experience. But that also brings up the point that parents need to *parent* their kids. While the court can and does play parens patriae, the parent needs to do their job first instead of using the legal system as a sword. If a parent finds out their child is taking naughty pictures or having sex and that upsets them as a parent, then they should go have a chat with their kid about the birds and the bees, ground aforementioned kid for a few weeks, and then call the other kid’s parents to voice their displeasure or try and come up with some sort of mutually agreeable solution. IMO.
To clear up a few misconceptions: I don’t know what the law is in Florida, but it is now perfectly legal to list convicted juveniles on sex offender registries in many states and on the federal level. Some states moved to allow these listings before the federal government did (my state, Wisconsin, pioneered the change in law) but the federal government last year also legalized the listing of juveniles on SORs, including the new comprehensive federal SOR. Here in Wisconsin, the state SOR lists juvenile offenders the same as it does adult offenders–with photos, addresses, names, crimes, etc. The model law pioneered by Wisconsin and eventually adopted at the federal level carries (as per usual) the name of a young girl who was victimized–in this case by a juvenile male offender. I can’t recall the name of the law (Sarah’s?) but all the sex-crimes-statutes-named-after-young-girls start to blur together at some point, you know?
Furthermore, although some states have “Romeo and Juliet” clauses in their statutory rape laws to prevent prosecutions of willing, consensual sex between teen peers, many do not. Regrettably, one of those most notorious for lacking such a reasonable and compassionate exception is, again, my state of Wisconsin. Here, the AOC is 18 but the law makes a commonsensical distinction by making sex with someone over 16 but under 18 a misdemeanor; sex with someone under 16 is a felony. However, without a R&J exception, a willing 17 yo boy AND a willing 17 yo girl who have sex with each other can BOTH be prosecuted with misdemeanor sexual assault of a minor. Similarly, a willing 15 yo boy and willing 15 yo girl who have sex with each other can BOTH be prosecuted for FELONY sexual assault of a minor. To me, this is the very picture of insanity, but that’s the law here and in numerous other states. There have been a number of notorious cases here in Wisconsin of such dual prosecutions of teens for willing, consensual sexual conduct–almost always instigated by one set of angry parents (who don’t seem to realize that their own child could/will be swept up in the criminal case, too). These cases have resulted in convictions and substantial penalties–jail time, probation, SO counseling, SO registration, etc. As outrageous as this all is, what irritates me even more about it is that the boys almost always receive far harsher sentences than the girls, for exactly the same behavior–but that’s a topic for another rant at another time ;)
Then again, it appears the same thing happened here–the boy was additionally charged with possession of child pornography–a very serious felony that is increasingly harshly punished. If either of them suffers irreperable life harm from this case, it will be Jeremy, not Amber.
It’s injustice and insanity like this that will increasingly result from America’s new moral panic/mass hysteria/witch hunt about sex offenders. These laws, as Myca so eloquently pointed out in earlier comments, are seriously overbroad and black-and-white, and because of the witch hunt hysteria in this country surrounding sex offenses, prosecutors, juries, and judges seem incapable of the reasonable, fair, nuanced, and compassionate application of these laws to effect a judicious result. Add to that the increasingly punitive SOR listings and restrictions (like the nutty GA law that said SOs couldn’t live within 2000 feet of a park, school, bus stop, etc.–in effect, the state’s SOs had to leave the state or go into self-exile in some remote, unpopulated area) and you have a crazy, unsustainable system that is approaching critical mass. Hell, in many states men are listed on the SOR for indecent exposure–and some of those cases merely involved public urination! Any society that feels it’s just for a man who urinates in public to be listed as a SO on a public website for 10-20 years is a society with some serious screws loose upstairs.
Sorry to go off on a rant, but this country’s attitudes about sex and sex crimes and punishment and shaming and the like are a HUGE pet peeve of mine. True rapists and child molesters deserve serious punishment, but meanwhile we spend time and resources crushing people like the kids in this story. Ugh.
That was meant as a joke, but it’s deadly serious. Until fairly recently, masturbation, even if done in private, COULD be criminally prosecuted in many states. I remember reading accounts of teen boys who’d been prosecuted for masturbation (not public indecency–these were cases of private masturbation that were incidentally and unintentionally witnessed by someone else) in CALIFORNIA, as late as the late 1960s. I’m not making this up.
Myca, I simply adored all of your comments on this thread. Thank you, thank you! I especially loved this:
Brilliant, and very eloquently stated! **Hugs**
Two things:
To clarify my point in my first comment #31 that teen boys tend to be more harshly punished than teen girls in dual statutory rape prosecutions of consensual peer sexual activity as can and have happened in states like Wisconsin, this is usually the case even if both teens go to trial and are convicted, or if they both plead out. More commonly, however, is a situation in which both teens are arrested but then the girl is coerced into turning state’s witness against the boy for a sweetheart plea deal or even for immunity from prosecution. The already patronizing nanny state attitudes that regard all teens who engage in sexual activity as victims, even if the activity was consensual and with another teen, are thus made worse by a patriarchal attitude that regards the teen girls as always the bigger victims than teen boys, even if they were engaging in the same activity. This approach allows prosecutors to go soft on the girls or even dismiss charges against them, while twisting their arms to get them to cooperate in an effort to “throw the book” at the boys. Utterly repulsive behavior like this appears to now be SOP among prosecutors around the country. So much for the impartial application of “justice”! What a joke!
One other point about sex offender registries: Earlier commentors noted that some states list the crimes of the registered SOs so that it can be (at least in theory) easier to separate the true predatory threats (violent rapists, serial child molesters, etc) from guys who at age 19 had sex with their 17 yo girlfriends and the like. That is somewhat true, but undermined by the use of generic criminal nomenclature in some states. Here in Wisconsin, for example, there is sexual assault (1st-4th degrees) and sexual assault of a minor (of several degrees as well). We don’t use archaic, but more accurately descriptive, terms such as “child molestation” or “statutory rape.” A juvenile SO listed on the SOR will be listed as convicted of sexual assault of a minor. That could mean consensual sex with another minor of like age; it could mean the violent rape of a pre-pubescent child. Without being experts on the law, or wading through the statutes for clarification, or doing extensive research on the SO’s particular case, the average John or Jane Q. Public who encounters such a listing during a search of SOs in his/her neighborhood won’t know. S/he will simply think, “Justin down the block was convicted of sexually assaulting a child! Well, he’d better not come anywhere near MY child! I’m going to warn her to stay away from his house, and him, right now! I wonder if the other neighbors know? Maybe I should tell all of them, too.” Clearly (to me at least) this is not a fair or just situation, but what the hell do I know?
You’re absolutely right, and I think the zero-tolerance-type policies have a lot to do with how often we hear rape apologists say something like, “but we’re ruining his good name!” Cases like this one make it true that *sometimes* people who didn’t really do anything wrong are unfairly punished, which makes it easier to argue that it’s happening either in a particular case or across the board.
It’s important to distinguish between actual harm and hypothetical slippery slope harm or a semantic resemblance to something harmful (e.g. the passing similarity between kids taking headache drugs and taking drug-drugs, or private nude pictures and exploitative nude pictures), and unfortunately in many cases the law doesn’t make that distinction. I’m not sure how to propose that it would without opening up a bazillion new slippery slope hypotheticals, though.
when you think about it, it seems impossible that they could be articulated any other way. Sexual offenses _are_ committed on kids under the age of 18 by other kids under the age of 18.
Um, sexual offenses are also committed by legal adults on other legal adults: if a 29-year-old man can rape a 35-year-old woman, does that mean that sex between people of those ages should be “zero tolerance”? You are confusing sex with assault.
I think Sparkane makes a really strong point. The specific ‘sexual offense’ we’re talking about is sexual exploitation by predatory individuals – not generic assault. Adults do this to children, and it’s made illegal by these laws. But the problem is that children are also exploited by predatory children too (and it happens much more frequently than exploitation by adults, people are just loathe to admit it). And if you enact a romeo and juliet law you’re not providing children with any protection from this, which is just vile.
I have a similar problem when these provisions are justified on the basis of the ‘power’ adults have. When I was this age the people who had the most power over me were members of my peer group – who could make my life absolute hell – not random 30-year olds. If you think this behavior is wrong it seems inconsistent to want to protect kids from it when adults do it, but not when children do.
Excellent point, but that’s precisely where prosecutorial and judicial discretion come into play. It is these “gray area” cases or cases where the letter of the law might have been violated but not the spirit of the law, or where there was no actual harm done, where prosecutors and (to a lesser extent) judges have an obligation to stand up for justice and not prosecute a case if by doing so there’s a strong possibility of an even more unjust outcome. But it’s precisely in these areas of discretion that our system so frequently breaks down, and it’s these areas that have been so throroughly undermined by both legislative changes and a “tough on crime” mentality that tells prosecutors that their conviction rates are more important than seeking justice, and tells judges that staying on the bench thanks to imposing unduly harsh penalties is better than seeking justice as well.
Not true. A teen sexually exploiting another teen in a nonconsensual way could (and should) still be prosecuted, Romeo & Juliet exception or not. The R&J exception only says that teens of like age who are beneath the AOC cannot be prosecuted for willing, consensual, private sex with each other–that is, no force, no violence, no coercion, no exploitation, no intimidation, etc. If it’s an assaultive or exploitative encounter, the perp can still be prosecuted. The R&J exception isn’t some blanket “get out of jail free” card for teens who would sexually abuse or exploit other teens!
In the case that started this discussion, there was no coercion or exploitation so there was no prosecution for the sex itself, merely for the photo documentation of the sex and emailing the pics. I still don’t agree with the prosecution, but had those kids not taken pics of their intimacy, ipso facto there’d be no legal case against them.
I think we’re talking past each other – I’m not talking about “a teen sexually exploiting another teen in a nonconsensual way”. Non-consensual exploitation is illegal, I get that, R&J exemptions don’t mater. It’s illegal if you do it to adults, it’s illegal if you do it to children.
The question at issue here is consensual exploitation. Laws of the sort we’re talking about here are enacted to stop predatory adults exploiting consenting children. Exploiting nonconsenting children is already a crime. My complaint is that if you enact a R&J exemption, you’re not criminalising consensual exploitation by other children, and you’re leaving children unprotected.
I do see what Nik means (I think). It’s easy to imagine (or recall) exploitative relationships that are nonetheless not illegal. For instance, sex based on unfair emotional pressure (“if you really loved me you’d have sex with me”), or sex based on a desire for social status, would be two examples of exploitative but legally consensual sex.
But not everything that is wrong can be legislated against. Unless we outlaw sex entirely, I don’t see any way of outlawing all possible instances of exploitative sex.
Yes, we may be talking past one another. What precisely do you mean by “consensual exploitation” of a teen by another teen? If you’re referring to a teen taking nudie pics of another teen (consensually) and then distributing those pics to third parties, say via the Internet, then that distribution would be illegal EVERYWHERE for violating child porn laws, regardless of whether or not said distribution was done with the consent of the teen who was photographed. Whether or not the state has a R&J exemption clause would be irrelevant in that case. But the case we’re talking about here is where pics were taken but presumably only for the private viewing pleasure of the teens involved themselves–at least it doesn’t appear to have been proven, or even claimed, that the pics were intended to be distributed to third parties. So how exactly is that “exploitation”? If I take nude photos of my partner (with his consent) for my own private viewing pleasure, and no one else sees them or even knows they exist, am I exploiting him? Of course not. Same with these teens. If they used a webcam to record themselves having sex only to watch it privately later, with no one else involved, what’s your beef? Please don’t tell me you’re taking some ideological erotophobic stance that taking nude pics of a consenting intimate partner and then viewing those pics later in private is by its very nature exploitative. If so, that’s no definition of “exploitation” that I could support, and I think the vast majority of people would agree with me. Good grief. If you meant something else and I’ve misconstrued your post, please edify me :)
Ampersand, I respectfully disagree. The 1st scenario you outlined in your post would constitute classic date rape or acquaintance rape scenario, wouldn’t it? If consent from one partner is refused and the other partner uses threats, intimidation, coercion, or undue emotional pressure to get the nonconsenting partner to acquiesce to sex, then don’t most feminists consider that a form of rape? And it could be punished accordingly. Same with nude pics–if one partner really didn’t want to pose for nude pics for the other and made that position clear, and the other partner pressured or cajoled the unwilling partner to participate anyway, then clearly there’s an exploitative and abusive situation at hand, and the law would still be able to deal with that. But the case highlighted in this thread doesn’t appear to fall into either of those scenarios at all. Both teens were adamant that what they did was consensual and private, no one was being exploited, and the pics were not intended to be broadcast far and wide. You’d have a very hard time convincing me (or most people, for that matter) that such a scenario is on some level exploitative.
And what exactly do you mean by “sex based on a desire for social status”? Isn’t ALL sex, at least in part, whether or not we want to admit it, based on a desire for social status? I could elaborate, but I don’t wish to drag this comment out ad nauseam ;)
Thanks for your kind words, Chris!
In regards to the issue of legal-but-exploitative relationships, I see what you’re saying, Nik, but that’s the point . . . it’s legal.
The only way I can see that we would be able to outlaw legal-but-exploitative sex for underage folks is by outlawing all sex for underage folks. Similarly, the only way I can see that we would be able to outlaw legal-but-exploitative sex for legal adults is by outlawing all sex for legal adults.
Since I think both of these are ridiculous positions, I’m in favor of restricting obviously illegal sex (like rape) and sex that’s inherently exploitative (like between an adult and a teenager or child). I am not in favor of restricting consensual sexual acts between teenagers any more than I’m in favor of restricting consensual sexual acts between adults.
Let’s imagine Amy’s 15 and her boyfriend is 30. They consensually have sex. Should that be illegal? Absolutely. We want to stop predatory adults exploiting consenting children. She may well have consented, but we would worry that this isn’t in her interest and consent could have been achieved by manipulating her. All sorts of legal but unfair emotional pressures and manipulations could be brought to bear to get her to consent. We’d want to stop this.
Now let’s image Amber’s boyfriend is 15. Under a R&J exemption it would be legal for them to have consensual sex. Now the fact is that plenty of children are adept at using legal but unfair emotional pressures and manipulations to get people to consent to sex. We protect children from exploitation in this manner by adults, but R&J exemptions mean they’re not protected from other children. I worry that young girls are treated as fair game for pretty dubious behaviour, which we wouldn’t tolerate if the people who were doing it weren’t young boys. Why should we take this behavour seriously when if comes from adults, but dismiss it when the prepetrators are children?
But why? That behaviour wouldn’t be legal and we wouldn’t tolerate if it were from other people.
As an adult you’re exected to stick up for yourself (at least to some degree). Children do need protecting. Adults just aren’t as vulnerable.
Yeah, several of you touched upon the points I was trying to draw out:
What creates the right to state that someone doesn’t “know better”, once they’ve given certain consent (NOT coerced or badgered, which is another kettle of fish) to a peer?
Drawing the line at age doesn’t work, for various reasons — many of which have been brought up in this thread. More, it brings to mind a very old-fashioned way of looking at gender, in which women are assumed never to “know better”.
I’m sure many adults can name an incident in which they had sex with another adult, consensually, non-coercively, possibly many times, and regretted it later: because they hadn’t set their boundaries at the time of the sex, hadn’t known how to set their boundaries, had chosen different boundaries later, decided that something they’d thought was OK was not OK.
When I was younger, I indulged in mild sexual play with various people to whom I didn’t have much emotional connection. This was how I found out that I’m not really a fan of doing that sort of thing without a strong emotional connection. Thinking about some of those interactions makes me uncomfortable, but I was not coerced or pressured. I asked myself, at the time, if I wanted to be doing this stuff, and the answer was “I don’t know, let’s find out?”
I could still imply that the other people involved were exploiting my willingness, but it would be more accurate to say that I hadn’t reached a full awareness of what my sexual/emotional capacities were and weren’t — (which, as an aside, I only reached, and only could have reached, through exploring the areas I wasn’t sure about, so I ultimately don’t regret this experimentation.)
Please tell me again: how do you exploit someone without coercing them?
I’m not asking whether soft coercion is coercion. I’m asking how non-coercion is exploitation.
Nik, with all due respect you’re confusing and conflating different issues, and, dare I say, overthinking your point. First of all (and not to be pedantic about it), I recommend you open a dictionary and look up “exploitation”. To quote Mandy Patinkin in “The Princess Bride”: “I do not think this word means what you think it means.” The scenario you gave as an example, of the two 15 yo kids, is NOT a situation of exploitation. Badgering, cajoling, pressuring, threatening, intimidating or using other manipulative emotional means to overcome someone’s refusal to consent to sex, so that person gives in and has sex even though really not consenting in a legal, ethical, and meaningful sense, is a form of nonconsensual sex, and thus a form of sexual assault. On the other hand, if one teen consents to pose nude for pics taken by another teen on the understanding that the pics will only be viewed privately by the photographer, and the photographer then violates that trust by posting them on a public website or selling digital copies to dozens of online buyers, then we’re talking a case of exploitation. Not really the same thing.
Your analysis of the reasons behind outlawing adults having sex with underage teens even if those teens are willing also falls a bit short. It’s not just concern about “unfair emotional pressures and manipulations” as you said, but the truly threatening power and authority disparity that comes into play when considering (as you suggested) a 30 yo man having sex with a 15 yo girl. The power/authority disparity isn’t really an issue if you’re talking about teen peers, which is one of the justifications behind R&J exceptions.
Huh. It occurs to me that plenty of adults, male and female, at times use “unfair emotional pressures and manipulations” on each other in a sexual context. That sort of game isn’t exclusive to teens, it’s part and parcel of sex, period. Hell, it happens among adults and teens in non-sexual situations, too. All the time. We ARE talking about frail and complicated human beings here, aren’t we? The main issue is: Does the emotional pressure and manipulation go beyond garden variety, good-natured pleading or begging or pouting (selfish and irritating, to be sure, but not necessarily criminal) to truly coercive or threatening? If so, that’s where the law steps in.
Sigh. Here’s where I started to get a little annoyed. So I guess it’s simply inconceivable that the teen initiating sexual activity with another teen might actually be a girl? Or that the teen using “unfair emotional pressures and manipulations” in a sexual context might occasionally be a girl? Whatever. I just love it when I encounter implicit gender descriptions on feminist blogs that sound as if they could have been uttered by some refugee from the Victorian Era. Seriously, do you have any contact with teen girls? Lemme tell ya, they ain’t the blushing innocents of the 1880s, or even the 1950s for that matter. But you’re right, teen boys are by definition predators, and teen girls are by definition prey. No wonder the adult women charged with having sex with underage teen boys keep getting such ridiculously lenient punishments–clearly, being female, they’re all the actual victims of the predatory teen boys! I’d expect such an attitude from some right-wing Boss Hogg type judge in Dixie, so it’s always rather alarming to encounter similar sentiments on a progressive feminist blog! But I digress…
Essentially, Nik, you’re confusing exploitation for sexual assault, and sexual assault for annoying but legal forms of pleading; you’re assuming that only teens use and are susceptible to unfair and manipulative emotional tactics in re sexual matters; and you further assume that only boys use such tactics on girls. All of which I disagree with. On top of that, you’ve misread the intent of statutory rape laws AND of R&J exceptions to those laws. Adults who have sex with underage kids are by definition and common sense committing an abusive, exploitative act for a variety of reasons. It’s simply not the same for teen peers engaging in consensual sex, again for a variety of reasons (one big one is the mutual “experimentation” factor that cannot be used to excuse an adult having sex with a kid). Please do a little more thought on this topic.
As I said, I see the problem you’re pointing to, nik, but I don’t think that there are any solutions that don’t cause more problems than they solve.
If we just make it illegal to have sex with anyone under 18, period, we’ll be making illegal many many consensual sexual relationships, and turning both the boys and girls in those underage relationships into statutory rapists.
If the act of having sex with someone who’s underage is illegal regardless of your age then it’s going to have to be equally illegal regardless of your gender. This raises the specter of a boy and girl who love each other, who had a perfectly lovely consensual relationship, who regret nothing, who were happy together, who are now both considered criminal rapists.
Personally, I find that unacceptable.
Ooh, ooh, you know what would go a long way towards reducing exploitative sex between teens (and, probably, adults too)?
Some decent sex ed.
“No baby I’ve used a condom every time. I just don’t want to use one with you. I’ve been tested and everything.”
“Um, you can’t be tested for the one that gives me cervical cancer. Glow in the dark or ribbed?”
Chris;
(1) I am not confusing sexual assault with annoying but legal forms of pleading. I think adults should be protected against sexual assault. I think children should be protected from sexual assault AND certain behaviour that falls short of sexual assault as well. You’re assuming I share your understand of what’s okay and what isn’t: I don’t, I don’t think it’s okay for children to be exposed to everything short of sexual assault.
(2) I am not assuming that only teens use and are susceptible to unfair and manipulative emotional tactics. I do, however, think adults can be expected to look after themselves – children deserve protections that adults don’t get. An analogy might help you understand: If I say I do not think children should be sent to work in mines, that does not mean I’m ‘assuming’ that only children work in mines.
(3) I am not assuming that only boys use such tactics on girls. I just worry about it happening to girls. There is a great deal of evidence that girls get involved in sexual activity younger than boys, unlike boys don’t do so for their own enjoyment so much as for social reasons, and regret it more than boys. That’s not an implicit gender description, it’s reality. I also don’t agree that because girls aren’t ‘blushing innocents’ they don’t deserve legal protection.
I said:
Or, put another way:
When I was 17, I was having sex with a girl who was also 17.
Do you believe I should have been legally punished for this? Why?
Do you believe she should have been legally punished for this? Why?
—Myca
Nik,
In re your point #1: I get what you’re saying, but I think you’re tilting at windmills. What you propose is incredibly vague and ambiguous, subjective, and creates the mother of all slippery slopes (as if existing sexual assault law isn’t vague and ambiguous enough in some contexts!) Any actual law based on a proposal such as yours would rapidly lead to abuse and oppression by the multitudes of unenlightened people who fill police stations, DAs offices, and judicial benches. In short, your idea, while undoubtedly motivated by good intentions, is both impractical and unworkable and would open a door to major abuse, as Myca has repeatedly pointed out. Furthermore, I can’t resist the sneaking suspicion that your thoughts in this area are motivated (consciously or subconsciously) more by a squeamish sex-negative attitude than they are by a true desire to protect children from exploitation. I’m not sure what it is, I can’t put my finger on it precisely, it’s just a vibe I get from reading your posts.
In re your point #2: Children already receive plenty of protections in this society that adults don’t get. Seriously, do you have eyes and ears? Not to be flippant, but c’mon. The child-proofing of American society has been taken to an almost ridiculous degree, far more than other Western societies–and yet curiously our children still on average turn out worse than those in Western Europe, Canada, and Australia. Funny, that. Anyway, stop infantilizing teenagers. They’re hardly the innocents you make them out to be. In fact, I seem to recall junior high and high school having been a daily advanced course in how to maneuver, adapt, and survive a veritable snake pit of “unfair and manipulative emotional tactics.” Teens are hardly unaware of these things–as you yourself put it, they’re masters at using them–boys and girls.
In re your point #3: Now I’m even more annoyed than I was before. You realize that both boys and girls can be unfair to each other and manipulate each other, and yet you only worry about it happening to girls! I guess the boys are, what? Unfeeling, unthinking robots? Incapable of being hurt, used, abused? You feel that boys can only be mistreated by adults? Or that when boys are mistreated by their peers, especially girls, somehow it doesn’t affect them? It doesn’t count? And of course you trot out the references to all the vague, feeble studies over the years that haven’t really proved anything conclusively but yet that tend to reinforce age-old gender stereotypes (girls don’t have sex for their own pleasure! Nah, it’s only due to peer pressure and for social acceptance! they’re really miserable the whole time!) And am I to interpret your last sentence as calling for legal protections from sexual activity for teen girls but not for teen boys? ‘Cuz if not, that’s sure what it sounds like.
Honestly, are you for real? I’m not trying to be mean here, but to read such attitudes on what purports to be a progressive feminist blog makes my head spin in bewilderment. The attitudes you just expressed, especially those in point #3, are reactionary. I’m sorry, there’s no other way to put it. They could have come straight from the late 19th century, given the gender roles and stereotypes they directly, indirectly, or implicitly support. I’ll say this as clearly as I can: Your attitudes about teen sexuality are supportive of traditional patriarchy, plain and simple. Unfortunately, that’s all too common among many feminists: In an effort to fight patriarchal attitudes, too many feminists advance ideas that curiously end up reinforcing patriarchal attitudes. I’ve seen it time and again. It’s a pity.
To get it out off the way, what I’m about to say isn’t to suggest that there shouldn’t necessarily be laws about 17 year olds and 30 year olds, because I can easily see how that could an exploitative relationship. Past a certain point, though, we can’t necessarily assume that x age difference = y amount of coercion. In theory, a lot of this could be taken care of by simply not getting the courts involved if neither partner feels that they have been harmed or taken advantage of (meaning, why the hell did Amber/Jeremy’s parents have to call the cops instead of Jeremy/Amber’s parents?), but I agree with what Chris is saying about tilting at windmills*. It’s just not feasible to legislate personal relationships, as appealing as some scenarios make it sound.
Having said all of that, and also with the concession that I was not an entirely normal teenager, I bring this up mostly to back up this part of what Chris just said, although I agree with pretty much all of the comment:
If there isn’t an irrelevant clause here this sentence sounds like a Montel Williams show title, but when I was 18, I was having sex with a guy who was 30. Was he in the wrong? Why/not?
If we had gotten involved when we first met, when I was 17 – should he have been legally punished? Why/not? In either case, why does a few months make such a huge difference?**
What if I mention that I initiated it (definitely the sex, arguably the relationship)? Was I still being exploited? Or, as I believed then and still do, was I avoiding the sea of “unfair and manipulative emotional tactics” my own age group seemed revel in?
[to be fair to the teenage population, it was also largely a matter of circle of friends; I spent most of my time with the people I did theater with, partly because it was really time-consuming; still, while I was by far the baby of the group, I never felt or was treated like it by anyone]
‘Cause I’ll tell you what about (upstanding, non-molestery) adults: they’ve already had plenty of sex. It’s not all that mysterious anymore. They’re willing to be patient because they know that sex comes and goes, and there will always be more sex down the road. Teenagers? Not so much. Age is in so many ways a cultural construct, and it’s easy to buy into stereotypes and forget how aware we actually were at what age. Here in my mid-twenties, I’ve had partners ten or more years older than me and still felt like I was dealing with little boys; I’ve also been with people younger than me who were more self-aware and insightful than anyone I’ve met of any age; I have elderly acquaintances who are whiny brats; I have friends in the just-shy-of-20 area who unsettle me a little with their old-soul-ness.
I’m sorry, I’ve been meaning to cut down on how often I personalanecdotalize on other people’s blogs, and had planned to keep all of that out of this thread, but it started to seem more pertinent with the last few comments.
*Plus, now I have Dream the Impossible Dream stuck in my head, but that’s my own fault for being a huge nerd
**I’m also reminded of my home state’s under-18 curfew; I never quite understood how the world was supposed to become magically more dangerous at 11 pm than it had been at 10:55.
Oh, and just so everyone’s totally clear on what this has to do with gender roles, and even though I’ve probably made it clear elsewhere, I’m female.
defenestrated: Thanks for the shout out! hehe And on a side note, I have to say that your screen name is one of my favorite words in the English language. Not sure why, but it just is. I’m a history major and a huge history buff–always have been. I remember first encountering the word when reading about the Thirty Years’ War. One of the longest and most destructive wars in history started largely because of a defenestration incident. The emissary of the Catholic Holy Roman Emperor to the Protestant rebels in Bohemia must have royally pissed them off, because during one of their negotiations, they grabbed him, picked him up, and proceeded to defenestrate him through one of the castle’s windows! I guess that was the 17th century way of saying “His Majesty’s demands are unacceptable!” LOL Well, when he heard of the insult to his envoy, the Emperor decided to respond with an army, and, well, at that point the war was on. So when a young boy (oh, yes, I’m male BTW, since my name is gender non-specific) I read that story and had no idea what defenestrated meant, so I looked it up. Cool! I’ve had a weird sentimental attachment to the word ever since :)
Sorry for that OT trip down memory lane…anyway, defenestrated, I will respond to your questions by saying, NO, IMO your 30 yo boyfriend was not abusing or exploiting you and should not have faced legal consequences, even if you were 17 at the time. I definitely have a minority view in re sex crimes legislation involving teens. I hesitate to go into it, because I’ve been accused in other discussions (cyber- and real world) of being a child molester, or at least an apologist for child molesters, because of these views. (Sigh) Seriously, people in this country have some whacked out views of sex. Anyway, here they are. Keep in mind that these are structured around willing, consensual, non-abusive or exploitative, non-coercive sex (isn’t it silly that I even have to add that caveat?) Clearly, no matter the ages involved, if the sex is coerced, forced, violent, abusive, or truly exploitative (not vaguely, subjectively exploitative as “nik” would have it in his comments) then the perp should be legally punished. OK, enough preamble. Here’s my ideal statutory rape statute:
1) The legal age of consent for all sexual activity would be 16. (Really, setting it at 18 is pretty silly. If a teen is old enough to independently pilot a multi-ton hunk of steel, plastic, and rubber down highways at lethal speeds, then he/she is old enough to get/give a handjob, to use merely one example).
2) Sexual activity between someone over age 16 and someone under age 16, but POST-PUBESCENT (defined in the law reasonably, but arbitrarily, as age 12 or 13 or older) would be a misdemeanor that would be punished by no more than 1 yr in jail and/or no more than 5 yrs probation, and subject to sex offender registration that would only be in the 5-10 yr range. There would also be a Romeo & Juliet provision that would exempt from prosecution a teen age 16 or older if the age difference is 3 yrs or less. So, for example, a 16 yo kid who had sex with a 13 yo kid wouldn’t be prosecuted, but could be if the other kid was 12. An 18 yo teen wouldn’t be prosecuted for sex with a 15 yo kid, but could be if the other kid was 13, etc. (This distinction with a cutoff at puberty takes into account the serious differences between post-pubescent and pre-pubescent children, and also the differences between adults who desire sex with post-pubescent but underage teens, and those classified as true pedophiles, who desire sex with pre-pubescent children. Psychology is well aware of these differences and approaches these situations differently; it’s time the law did so as well).
3) Sex between someone 16 or older and a PRE-PUBESCENT child (again, arbitrarily defined in the law as someone younger than 12 or 13) would be a felony (child molestation), punishable by prison time, probation, and lengthy SO registration, if not for life than at least for 20-25 yrs. However, since I’m not quite comfortable with treating a 16 yo kid the same as a 46 yo adult in this context, I think it reasonable to include language in the law that mitigates any punishment for a perp who’s still under the legal age of majority (i.e. age 16-18) but who has sex with a pre-pubescent kid. The law might also want to take into account that an 11 yo kid isn’t the same as a toddler, either, but then we might be writing too much complexity into it, and something like that might better be addressed at sentencing (discretionary sentencing ranges would still apply–no mandatories!)
I mentioned that I consider this proposed law “ideal” to me. Of course, I realize that it’s imperfect and would still allow for some injustices, but I think that’s true of any law seeking to address sexual misconduct. Incidentally, this law is much closer to what you’d find in places like Canada, the Netherlands, etc. but somewhat tempered by American attitudes, so it’s hardly some shocking “attack on the children”, although most people I’ve dicussed it with have reacted that way. I attribute that mostly to lingering Puritanism and the continued insistence on infantilizing teens in this country (see nik’s comments above for an illustration).
If anyone wants to debate these points with me, fine, but please please please don’t pull the child molester card on me. It’s not only grossly inaccurate and libelous, it’s awfully tiresome.
Right, I’m right there with you, defenestrated.
I think the logic works something like this:
We all agree (hopefully) that a 30 year old having sex with a 10 year old is inherently exploitative and should be illegal whether the 10 year old ‘consents’ or not.
We all agree (hopefully) that a 30 year old having sex with another 30 year old is not inherently exploitative and should be legal as long as the partner consents.
It’s the in-between cases that don’t offer easy solutions, and if we’re going to have a cutoff, of necessity, there will be cases within a couple years of the cutoff that the law doesn’t fit. Right now, the cutoff is 18, and while I think it ought to be probably be a year or two lower, I think it’s also worth recognizing that whatever the cutoff, there will be cases that don’t fit the law.
This is part of why I think Romeo & Juliet laws are important. Without R&J laws, if we set the cutoff at 18, there will be a 19 year old woman in a perfectly healthy relationship with a 17 year old man that we’ve just made a criminal. But still, if we lower the cutoff to 16, then there will be a 17 year old boy in a perfectly healthy relationship with a 15 year old girl that we’ve just made a criminal.
Luckily, we have these laws. Most places, anyhow.
—Myca
OOPS! Forgot two important provisions of my “model” child sex abuse law:
4) Consensual, non-coercive, non-exploitative sexual activity between two underage kids (i.e. under 16) who are BOTH post-pubescent (i.e. over age 12 or 13) would be exempt from all prosecution.
5) Similar sexual activity between two underage kids (again, under 16) would be eligible for prosecution if one of two conditions were met, either: A) One kid is post-pubescent while one is pre-pubescent, AND the age difference is greater than 3 yrs; or B) both kids are pre-pubescent AND the age difference is greater than 3 yrs. If neither of those conditions are met, no prosecution. If one of them IS met, the older child could face prosecution but ONLY in juvenile court, and with no penalty, including sex offender registration, to last beyond the age of majority (18).
OK, now I think it’s complete! LOL Again, comments are welcome, unless they’re abusive, accusatory, or libelous.
Chris, I had thought that at least a couple of leaders had been thrown out of a Bohemian window over the course of history, but I could very well be mistaken. I’m not entirely sure why I like the word so much, but thanks for noticing it. I think it partly came from the ‘don’t break any rules’ part of my college orientation, where the scary police dude told us how much trouble we’d be in for what. Not only did he use the word defenestrated about twenty times during his speech, he also gave the strong impression that it wouldn’t be a huge deal if you wanted to kill your roommate, but if you threw the corpse out the dorm window, you’d be in deep shit. It kind of became a joke among my friends and ended up stuck in my head…wait, what OT tangent? :D
I think that in my home state, the age of consent was in fact 16, so as far as I know there wouldn’t have been any illegality at 17 anyway, but that wouldn’t have been the case in most places. I’m from the midwest, and the aoc wasn’t as high as 16 until some time in the seventies (Ask my aunt who ran away and got married at 14). On the other hand, there was the threat of really bad publicity for our theater company, and our mutual friend the director regretfully asked my then-bf to step out for a while. I wasn’t aware until later that neither of them had realized that I had had a birthday during the off-season, or had put ‘votes,’ and ‘buys cigarettes’ together, so they still thought I was 17, but I’m not sure it would have made a ton of difference.
Also, Chris, you mention drivers’ licenses, and – maybe this isn’t happening elsewhere, but – I know some states do want to push the driving age up to 18. Because of course bad driving isn’t about being inexperienced, it’s about the special teenage microbes that disable young brains. Sure. Blink, and you’ll find that suddenly no one can buy liquor until 25. I really hope that as I get older, I don’t give in to what appears to be a strong temptation to forget that people younger than me are actually conscious entities. So many of our stupid laws [cough, abortion restrictions, ahem] are based on the mentality that people aren’t capable of making sound decisions. Maybe if we stopped letting politicians run things, that would change ;D
On the surface, it seems like an easy solution here would be to provide a legal ‘out’ in cases where neither party feels wronged, but in the few seconds it took me to type that I already started envisioning ways it could be manipulated, so never mind. All in all, I didn’t see anything in your ideal statute that I would disagree with. You child molester, you (sorry, had to).
Finally, as long as I’ve brought it all up, dog bless my mother’s hairdresser who for seven years now has been kindly not mentioning that she – the hairdresser, not my mom – and I share an ex.
One more thing: it seems like the people who are the most keen on restricting behavior by age and taking decisions out of the hands of young people are the same people most likely to bitch about how “kids today” are spoiled and irresponsible, or bemoan the evil horrible “hookup culture” – leaving teenagers damned if they try to act like adults, and damned if they give in to the cultural forces working to keep them forever infantilized.
They’re also, in my experience, the ones most likely to advocate trying underage folks as adults.
Of course.
“When you want your basic human rights, then you’re a child, but when it’s time to punish you for the rest of your life for something you’ve done as a 16-year-old, then you’re an adult.”
For some reason, they never seem to see the conflict.
I’m gunna go to florida and protest… what the hell is this supposed to be? The most important issue here for me is the fact that their privacy was definitely violated when the police got ahold of the photos.
The ONLY way for that to have happened would have been for the to look in to the boy’s email. What RIGHT or REASON could they possibly have had to do that?
Erm, email is not considered as private messaging.
If it wasn’t 1 in the morning whenI have work tommorow I’d look this up, I may be wrong.
But that isn’t the case. Since when is having a photo of your girlfriend illegal? Should I destroy the files I have of me and my girlfriend? She’s only turning 18 in a few days.
The big problem in America right now is making sex “bad”. Violent movies are accepted easier than sexy ones… Why?
Myca and defenestrated: I couldn’t agree more with the thoughts you expressed in comments # 56 and 57. Very well said! Or, to be precise, well written ;-) It’s always fascinating but distressing to encounter people who hold intensely hypocritical, inconsistent, or contradictory attitudes like those. It’s a symptom of the muddleheaded thinking so prevalent in our culture. Sadly, most people are susceptible to that problem to at least some degree. I’ve encountered plenty of lefties, progressives, feminists, etc. over the years who were also guilty of such bad thinking habits, so it’s not merely a problem among conservatives.
defenestrated: In re your comment # 55, I have heard of some half-hearted attempts to raise the driving age to 18, but to my knowledge so far they’re not getting anywhere. But that, along with your only half-joking comment about the drinking age being upped to 25 (blink and you’ll miss it) illustrate a major problem in our culture. Or two, I guess. One is that if something can’t be made explicitly illegal (like alcohol or cigarette smoking) then moralists in government and in the culture simply keep chipping away at the right to indulge in such things in every way they can–implementing minimum legal ages and then steadily increasing them; restricting when/how/where/around whom people can indulge in such activities; restricting the purchase of “offensive” items; and on and on. It’s a way of gradually and systematically making something de facto if not de jure illegal. Hell, this country has been doing the same thing with abortion rights for many years.
The second issue is the Siamese twin of the intense pressure to infantilize teens, and that is the drive to keep lengthening and expanding childhood or adolescence. You’re right, most states used to allow people to marry at age 12 or 14. Some still do, although such marriages of course almost never happen now (and as an aside, some states have thus had the peculiar situation of allowing 12 or 14 yo teens to marry, and yet having a sexual AOC of 16 or 18. Uhm, HELLO. Duh.) But back to my original point–marriage ages have crept up steadily, as have sexual AOC, and ages when people can smoke, and drink, and drive, and be declared “independent” (age of majority), and this, and that. IMO, one can’t say that kids become adults in this society since they aren’t allowed to drink until age 21. I woudl say the de facto age of majority in the US is actually 21–easily the world’s highest. And, as you pointed out, there’s a constant pressure to keep increasing it. Of course, it’s the 21st century–people don’t need to marry as teens and start breeding right away, since most people are living past their 30s and 40s now, unlike in centuries past. Likewise, modern psychology has shown us that teens are not fully adults and still have some emotional/psychological development to undergo. So, these trends (like most things) obviously started with good intentions and made some important and valuable changes to the law. But, IMO, they’ve gone too far and have become a way for squeamish adults to control what they see as a “restive” population and to punish and restrict behavior that they don’t like. But what’s the upper limit? How can someone vote and join the military and smoke cigarettes but not drink a beer? Shouldn’t all those things be equalized at the same age? If so, which age do we pick–21? What about 24 or 25? Hell, anyone for 30? I mean it gets so silly at a certain point, and IMO this country passed the silliness threshold LONG ago.
And, finally, as I pointed out in an earlier post on this thread, our insistence on extending adolescence in this country, infantilizing our kids, and child-proofing our society to an astonishing degree (as compared to other Western societies) hasn’t really benefited our children–they’re still significantly worse off than kids in Western Europe, Canada, Australia, New Zealand, Japan, etc. Something is very wrong with how this country cares for and treats its children. Is it partly due to our tendency to implement meaningless feel-good measures that make it appear that we care and are doing something, when really we’re not?
oops. What I meant to write was: “IMO, one can’t say that kids become adults in this society at age 18 since they aren’t allowed to drink until age 21. I would say the de facto age of majority in the US is actually 21–easily the world’s highest.”
Thank you, Chris; I hope you won’t now think I’m just being polite when I say that your comment expanded on a lot of my thoughts :)
Ideally, our society would acknowledge that, if nothing else, teenagers think of themselves as adults and don’t respond well to the condescending assumption that they aren’t even close to “grown up;” but when teens screw up, we would respond in accordance with the understanding that they’re not quite grown up and should be given different consideration. Of course, we have that backwards in that we make it clear that we expect infantile behavior from young people, yet punish that behavior as though they were adults. By having adult decisions forcibly put off until they’re out of their teens, kids don’t get any experience with sound decision-making. I think that’s where I was going with the driving thing.
btw, young people = kids = teens; I just didn’t want to use the same word over and over.
And yeah, it is just silly. I studied abroad in Ireland and England (where it’s not just a stereotype that the pub is a way of life), and my peers there thought it was hi-LA-rious that my classmates at home couldn’t drink. I was already 21 when I went, but it really brought home the absurdity of that particular cutoff being after you can move out on your own, contribute to the democratic process, die for oil, etc. In general, though, I have a huge problem with the patently stupid but surprisingly pervasive notion that restricting or taboo-izing something is the way to get kids, or anyone really, not to want to do it.
There’s got to be a better word for “taboo-izing,” and it’s going to bug me all day. Anyone?
Prohibiting.
Uh, no. I mean, like, “let’s not let the kiddies hear the word scrotum or catch the odd tit flash, ’cause that will make them interested in sex.” Usually followed by weeks of hubbub over the forbidden whatever, which intrigues all the kids who probably wouldn’t have thought much of it without all the fuss.
More of a cultural “the damn-near-everything that must not speak its name” than a forcible ban. But thanks for trying to help.
Ah, sorry, misunderstood you there.
Fetishizing.
defenestrated: Nah, I didn’t think you were simply being polite. I was gratified by the virtual pat on the back :) You know what they say about great minds…hehe.
You wrote:
I hope you don’t think I’m simply being polite when I say that I adore both the ideas you expressed in this paragraph, as well as the superb style with which you expressed those ideas. Taut, concise, and memorable. I could have said much the same, but it would have taken me twice as long (I have the tendency to be long-winded, in case you haven’t noticed ;)
Do me a favor–if you haven’t already checked out the thread on the Long Beach Race Attack, please do so if you have a few minutes, and peruse my posts there, starting with #17. I like how you think and write and I value you’re opinion (even though we just virtually met yesterday!) and I’m curious to know what you think about my comments there. Take care. **Hugs**
Agreed….or your aunt, your kid’s English teacher, etc….Of course the difference is if the perpetrator is a woman she has a good chance of getting off with a slap on the wrist!
Thank you! Wow, my day has been made twice in one day, how about that? [Don’t listen to the little man in the timestamp. It’s wednesday til I go to bed.]
If we’re going to go that off-topic, sheesh, I should’ve worn my nice shoes. I intentionally stayed out of that thread – loved the post, skipped the comments – as I’m not big on commenting on the guilt or innocence of faraway people about whom I know only select bits of spin (as it seems neither are you), and because other recent race-related threads had kind of worn me out. Plus, to the extent that the conversation was about Duke – like a lot of other people around these parts of the ‘sphere, I have a hard time talking about rape calmly and concisely. And yeah ok, my posts can get longwindy anyway [too :) ], but at least on that topic I know it going in so I usually just don’t even start. The main thing, though, is that I don’t really like to open up my thoughts on the subject to the whole of the tubes; I’m usually glad to have my ideas criticized – otherwise why would I be on here? – but that’s a topic where I just take it all far too personally. Abortion’s a little the same way, but only with people I know irl; somehow I have less of a problem with some faraway troll viewing me as a machine than someone I know – maybe because we’re communicating through a machine? A very random thought.
The short version would be, I agree with your comments on the whole, and I have some small but fundamental quibbles. Which I did start to try explaining succinctly, but I’m sorry, I can’t. I’d be glad to have the longer discussion with you, but I’d prefer to take it to email. For a minute I hesitated about throwing this onto the blagoweb, but it’s the address I use for web forms (so it’s the one Amp already has, no offense Amp, and my other thought was to ask him to relay it), so whatever. It’ll be like a treasure hunt to my real email. The spelling with an ‘f’ was taken, so it’s this screen name with a ‘ph’ at hotmail.*
*If that whole thing seemed overly paranoid, you might have never been stalked.
And ok, because it’s still bugging me: the short version would be: I take the statement that a rape occurred as the evidence that the victim was raped. This doesn’t apply to cases like Duke (or the non-rape Long Beach case) where part of the question is who, but in the huge number of cases that are, as you mentioned over there, he-said-she-said about consent, the evidence of lack of consent is that the accuser doesn’t think it was consensual. Oh I want to keep going, but that’s already not very short, so if nothing else I proved my above comment ;) If I misunderstood you in that thread, then never mind, but my impression was that that specific assumption of truth was what you were describing when you talked about weakening due process.
defenestrated: Don’t worry, few people have the ability or patience to discuss rape (or any sex crime, for that matter) calmly and concisely. But it’s important to do so as best as possible. Dogma and invective on the subject do no one any good.
Perhaps given more time and space you’d flesh out your thoughts on this topic in more detail and provide some important qualifiers, but I’m taking you at your word that you said what you meant and meant what you said here. With that in mind, I must ask you: Why even bother with trials then? If the word of a rape accuser and nothing more constitutes proof enough to you that a rape actually occurred and the accused is thus guilty, isn’t a fair, impartial, public trial merely a large and unnecessary waste of time and money? Shouldn’t police simply arrest the accused rapist after the allegation is made and then escort him directly to prison to start serving his term?
If your son, brother, husband, boyfriend, or father were accused of rape, would you feel the same way? Why or why not? (Sorry, I know that’s a bit cheesy and unfair, but I’ve heard the same argument from the opposite direction SO MANY TIMES [“but what if your sister/daughter/wife/girlfriend/mother was raped; how would you feel about due process and reasonable doubt then?] that it’s made me a bit sick to my stomach. What’s fair for the goose…)
I’ve never heard any feminist, even the most hardcore, dispute that some false rape allegations are made. The only point of contention I’ve heard has been how many, or more precisely, what proportion of overall allegations are false? I’ve heard answers and estimates all over the map, but again I’ve never heard anyone with the tiniest shred of credibility state unreservedly that it never happens. Police and prosecutors (not all male, either) will say the same thing. Craig Silverman, ex-DA of Denver County who made a reputation prosecuting and imprisoning many notorious rapists, created a hubbub during the Kobe Bryant fiasco when he publicly stated that in his years making case filing decisions he was astounded at the number of false allegations that he saw–he said you’d literally have to see it to believe it. Linda Farkelstein (gee, I think that’s the spelling but I’m running out of time and have to get in the shower!) of New York City, also a former prosecutor who focused specifically on sex crimes, has said much the same thing–that of thousands of sex crime allegations in any given year in New York, a sizable percentage never happened.
If I misunderstood you, and what you really meant was that as Jane Q. Citizen, when you hear of a rape allegation or arrest you assume the truth of the charges, but that as a juror you’d be more skeptical, fair, and impartial, presume innocence, and allow due process to take its course, then I think that’s a perfectly reasonable and understandable position. If that’s not what you meant, then I must confess I find your position troubling, to put it mildly.
Lance, you couldn’t be more right. There’s a huge gender bias in the courts, especially in re sentencing. When the Debra LaFave case in Florida was polluting the media last year, I read a very informative article online about differential sentencing for male and female sex offenders. It was truly enlightening. There were many legal and psychological experts interviewed (most of them women, BTW) who came right out and basically said that female sex offenders are not taken seriously and are given a pass, but shouldn’t be. One woman psychologist who works with sex offenders was quoted as saying that the female offenders she’s worked with over the years were just as predatory as the males, just better at masking it behind a faux vulnerability for the general public. The highlight of the article, however, was a book published by a criminal justice professor from Kansas (either U of K or KSU) in which he did an exhaustive survey comparing male and female statutory rape convictions and sentencing (adults having sex with willing teens–no forcible rape, and no pedophiles who assaulted pre-pubescents) over a fairly long period (I think it was at least a decade). His results? For essentially the same crime, and controlling for other variables (such as prior criminal record), male convicts were sentenced to an average of 20 years in prison, while female convicts were sentenced to an average of 3 years in prison. That is, the men were sentenced to prison terms nearly SEVEN TIMES LONGER than those received by the women.
Of course, to hear some feminists talk, women are the ones getting a raw deal in our criminal justice system, not men! That’s almost funny. Almost, but not really.
Chris,
Moral consent does not match the definition of legal consent.
Moral consent is subjective: Deep down inside, you either consent to something or you don’t. It’s related to moral desire: you either want something or you don’t. You may do something you don’t consent to (just like you may do something you don’t want to do) but that does not change the underlying lack of consent or desire.
Legal consent is objective: You are either perceived to have consented or you are not. This is because, in essence, we don’t punish people for mistakes of consent. Simply put: if you appear to consent to me cutting your hair, you can’t get me convicted for doing so.
Lack of moral consent is a moral and legal requirement of rape. If you wanted to have sex, it wasn’t rape (certain exceptions apply).
Lack of legal consent is a legal requirement for rape. However, there are (as discussed above) situations where people HAVE NOT morally (subjectively) consented, but HAVE legally (objectively) consented.
If you define rape morally then there’s not much need for a trial: Unless the woman is lying about lack of consent, there’s nothing the defendant can do to change the outcome. No other evidence is relevant except her lack of consent. The defendant, and his actions/beliefs/statements/defenses, are immaterial.
The best way to understand moral rape is this: Imagine a woman from a hypothetical “reverse land”. Her spoken language and body language are opposites of what we interpret. In an interaction with a man, she appears to be asking for sex, and appears to be enjoying it, while in reality she is not consenting. This IS RAPE under the moral definition.
Many people here use that definition when they use the word “rape”.
If you define rape legally then you need a trial: Even though a woman DID NOT actually consent, she may have appeared to do so. Or–depending on how badly the rape law is written–even though a woman DID actually attempt to state her lack of consent, she may have failed in that attempt.
This has some obvious problems, mainly that folks can have nonconsensual sex and it doesn’t get punished. For a variety of reasons, many people here do not use this definition when they use the word “rape.”
Sailorman,
With all due respect I find your distinctions and explanations of moral vs. legal rape to be a classic example of muddled thinking. Rape, to have any true meaning at all, must be defined as forcing or coercing or intimidating or threatening someone to have sex in the explicit absence of consent (either consent was requested and refused, or was refused without being requested, or consent was never meaningfully requested at all, as in a case of a sober man having sex with an unconscious woman). Your definition of moral consent makes “rape” almost meaningless. If there’s no consent to sex, but only subjectively, or “deep down inside”, and the woman does something she really doesn’t want to do without making her lack of consent explicit in any way, then she is by default providing implicit consent, and thus can’t claim rape after the fact. And don’t go all self-righteous on my ass about “implicit consent” because we all know it happens all the time, especially in intimate relationships. I don’t think many husbands and wives or boyfriends and girlfriends start sexual activity with each other by asking “Do I have your sober, explicit, and unreserved permission to touch your genitals?” Let’s get real. They just start kissing or pawing on each other and go for it. Now, if the man kisses the woman and touches her breast and she says “No, not now, I’m really not in the mood” but he keeps going anyway, that’s one thing. But if she plays along and reciprocates all the while thinking “deep down inside” that she’s not in the mood and would rather NOT be doing what she’s doing, that’s not rape–and to claim that it is, as you seem to do, is to commit a crime against the language and against common sense. It’s in these fuzzy areas that feminists have the distressing tendency to get all dogmatic and therefore allow their thinking to fly off the rails of logic, and thus undermine their own credibility. I urge you to re-examine your thoughts in this matter.
In addition to everything I said above, you seem to be attempting to broaden the definition of rape so much, and make it so vague and ambiguous, that it could encompass almost anything, almost any sexual encounter. The problems with this approach are legion, not least of which is that it’s the mother of all slippery slopes. Again, I encourage you to rethink your position.
Of course I would look at it different as a juror (and as a relative of the accused), but then, hopefully, I would also not have the disadvantage of only knowing the ‘select bits of spin’ that we get out here in the general public. When I am at that disadvantage, though, and all I know is that she says “I was raped” and he says “she wanted it,” I take her at her word*. In a lot of cases, it’s a simple matter of motivations – who has what to gain by lying? Getting out of jail free, or voluntarily facing a traumatic public free-for-all on one’s history and character? I’d go with not getting a jail term as a far stronger motivation for lying. Once upon a time a rape accusation might have been plausibly framed as a shamefaced reaction to an ill-considered liaison, but Hester Prynne died a long time ago. And in any event, what, other than someone’s belief that she was raped, do you require in order to prove lack of consent? A signed affidavit stating in advance that the accuser would never have sex with her attacker? If so, I guess we can add ‘psychic’ to the qualities of the Platonic Rape Victim (I thought after the Duke case put ‘eyes in the back of her head’ on the list we’d get a break for a while).
I don’t disagree that some false allegations are made, but to my knowledge there’s no evidence to suggest that to be true in rape cases more often than with other crimes – I believe the number I read recently was somewhere around (I think less than) 1% of criminal allegations are false, including rapes. When someone reports her wallet being stolen, no one’s first instinct is to second-guess whether she wanted to give the thief the wallet, being such a charitable person and all. But that’s exactly the absurdity of the notion that someone would go to the police and have her sex life paraded before the courts in response to what some defense attorneys write off as “bad sex.”
Also, and I know my choice of pronouns above doesn’t necessarily back me up on this, but rape isn’t only a feminist issue; there are male rape victims too, and it’s even harder for them to get people to believe them that they were unconsenting. Given how disproportionate rape conviction (as opposed to false allegation) rates are to other crimes, though, a statement like
is seriously troubling to me. And kind of makes me wish I’d gone with my initial instinct and just not gotten into it.
*Again, non-applicable when the question is whether there was sex or who it was with. Just in the he-said-she-saids.
sailorman,
I know you already mentioned that that opens up opportunity for abuse, but it bears repeating over and over and over: Ignorance of the law is not innocence, and neither can be “humdeehumdeehummm, I can’t heeeeear you (screaming “no”)!” The first situation that comes to mind is the Savage Love column that got Pandagon in a tizzy for a while, where the boyfriend just ‘didn’t notice’ that his girlfriend was crying and begging him to stop, because he thought she was ‘just playing’ (she was tied up), even though she was losing enough blood that after he came he had to take her to the hospital. But since he perceived her as having consented, well, it’s all ok.
Clearly that’s too obvious an example (what gave it away? the blood?) to be one that would be likely to result in a not guilty verdict, but it wouldn’t be a far cry. Your idea takes it away from even he-said-she-said to he-said that she-said, or further, what he says he saw her say is the only matter of real importance. Which, actually, I guess isn’t far from the way it works now anyway.
Chris/defenestrated
Believe it or not, i was trying to AVOID a derail. Sheesh, i should learn…
I am always happy to discuss rape law as it’s a fascinating topic. But rather than derail this thread I suggest we move this discussion to my blog. Pick one of the rape threads (“An Analysis of an Oregon Rape Law” is probably a good one) and copy your post there; I’ll see your response(s) in the “new comments” section.
God, Sailorman, I love your explaination. Thank you thank you thank you.
I don’t really have a problem with the split between things that are ‘morally rape’ and things that are ‘legally rape’ except in that it leads to some incredibly frustrating confusions of communication.
For example, many people argue that rape (as a legal crime) is under-prosecuted and under-punished. I agree with this as a general statement, and I think that rape ought to carry heavier penalties than it currently does as a practical matter.
Many people also argue that rape (as a moral matter) ought to be more broadly defined than it is right now, and that (for example) a teenage boy hectoring his resistant girlfriend into sleeping with him until she gives in ought to be defined (morally) as rape. Again, as a general statement, I agree with this. Circumventing consent is (morally) rape, regardless of how you do it, *especially* when you’re dealing with someone underage.
It’s when these two definitions collide, though, that I end up hearing things like, “rapists are vile people who should be sent to prison for life,” paired with, ” . . . and anyone who’s ever harassed their partner for sex is a rapist,” and somewhere in my head I’m going, “wait a damn minute . . . anyone who’s ever harassed their partner for sex is a vile person should be sent to prison for life? I don’t think that’s right . . .”
I think that they’re both worth discussion, and I think I agree with many of the basic ideas that I hear, but without distinction between then there are implications that I find unacceptable.
—Myca
ps. Ideas insanely simplified for purposes of comparison. Please don’t nit-pick them. Assume I agree with your nit-picks. The specifics of the ideas aren’t the point, the overall confusion that results from conflating moral and legal concepts of rape is the point.
Sailorman, so was I; when will I learn about getting sucked in? It seems pointless to move it now, since we’re all referring to the comments above our own…and I don’t see anyone around trying to steer the thread back to Amber and Jeremy (poor kids), so unless anyone objects?
What I find most worrisome about placing the burden of proof on the victim’s claim of non-consent rather than on the accused’s claim of consent is that, in effect, that places the burden of not getting raped on the victim. If the accused can go into court and say “I didn’t know that she didn’t want it, she must not have been clear enough,” then rape will always be the victim’s fault for not having made enough of an impression with her refusal. Yes, consent is subjective; but a statement like
– in the context of an argument that rape victims’ accusations are not to be taken at face value – seems concerned solely with the poor hypothetical guy who didn’t think to ask “may I?,” or “are you comfortable with this?” and ignores how easy it is to simply say after the fact that you didn’t notice the resistance. [see my above, pre-caffeine, way-really-a-lot-worked-up comment about the Savage Love column. Did I mention that the girl’s friends and family bought the boyfriend’s version and tried to bully her into talking to and forgiving him? Even though they saw her in the hospital? That’s the end result of the idea that it’s up to the victim to just communicate better.]
I understand that it’s natural to want to put ourselves in the shoes of the participants in any situation we discuss, but I think that it’s especially easy for men who can’t imagine themselves ever raping anyone (and good on ya for it, don’t get me wrong) to have a harder time envisioning a scenario where the man truly isn’t concerned with whether or not his partner is consenting. That’s why I stressed above the mythical nature of the false rape accusation, so that maybe you would get that if a woman is distraught enough to call it rape, it was not a simple miscommunication.
To try to make it more personal (hey, y’all did the father/brother/uncle thing, so I get one too): I’m sure each of you knows at least one woman who has been sexually assaulted. I would be shocked if it weren’t more than one, but I guess it might not be something women share as readily with male friends. The point is, and I’m assuming that no one contests this, rape happens all the damn time. Now ask yourselves: how many men do you know who have been hauled before a jury on a false rape accusation? Anyone? More than one? Somewhere around 20-30% of the men you know? [Strangers you heard about who were acquitted don’t count, because (and I really hope we’re not going to argue this too) the lack of enough evidence to prosecute is most assuredly not evidence of innocence.]
Or maybe I’d do better to frame it like this: how many partners have you had with whom there was at least one instance where you could have communicated better about sex? Is that the kind of scenario you’re envisioning when we talk about miscommunication of consent? How many of those partners ended up going to the police and saying they were raped?
And I don’t really care what “some feminists” say (many of whom, like even the best of men, have their own blinders on because of their version of the participants’ shoes) and if it extends the definition of rape too far; what matters is what the specific victim of the specific case says, and that should not be tainted by the political views of third parties. What would be analogous, in my mind, would be if I were to take the wingnutters’ desire to control my body as proof that nobody should ever have babies; in other words, throwing those babies out with the bathwater. :)
Seriously, how hard is it to just ask first? Here’s sexual assault awareness expert Mike Domitrz:
And from the rest of the article (which was written around the time Kobe Bryant was on trial and is what I linked to above):
btw, if Amp is still checking this thread, the blockquote boxes are neato.
*all bold in this comment is mine
And btw, guys, even though I am getting worked up and this isn’t totally fun for me, it’s really nice to discuss rape law with a group that’s sort of pre-screened of the true patriotic MRA residents of rape cultureland. Not that they don’t ever pop up ’round these parts, but we seem to be in the Forgotten Thread. It rocks to be able to disagree with you guys without receiving the implicit threat that goes with an argument meant to promote the permissibility of rape. There, that was a much shorter explanation for my hesitation to stay in this thread than my rambly one last night.
I am reading, and I’m enjoying the discussion, and I’m impressed by the quality and the civility when discussing such a hard topic. I largely agree with everything Defenestrated has said, so I don’t have much to add.
But as moderator of this thread, let me say that the thread drift in this thread is fine with me. (Oh, and I’m glad you like the boxquote boxes.)
I just re-read the article I linked to and some of the others around that site, and it made me really wish that what I had bolded was:
That’s really the most important thing here. I think that part of why these conversations can get so charged is that if you take the above sentence as a given, then a lot of the arguments about implied consent start to sound like they’re essentially defending a man’s right to not be responsible for his actions. And I’m sure that’s not what you’re all intending, but honestly, we (as a society) have all been taught since birth, in a whole lot of insidious ways, that men do have that right; it never hurts to try to become aware of the ways we all unconsciously hold onto that.
Thanks for the backup, Amp, as well as the go-ahead to drift ;)
Agreed absolutely 100% yes.
First things first: I sincerely apologize for steering this thread wayyyyyyyy off topic. I did it in comment #68 with my invitation to defenestrated to check out my comments on another thread, which was a stupid mistake on my part.
I have read and re-read and re-read and re-read again Sailorman’s comment #74 where he distinguished moral from legal definitions of rape, and I still can’t fathom what he was trying to say, and that’s not because I’m being obstinate, it’s because it makes no sense. He appears to be arguing that it’s rape if a woman internally refuses consent even if she makes no external sign or manifestation of such lack of consent. It’s all, as he put it, “subjective” and “deep down inside.” In other words, no matter what she’s doing externally–even if she appears to be consenting by participating in the sex act and not giving any outward signs of disapproval or unhappiness or lack of interest or whatever–if her inner voice tells her that she doesn’t really want to be doing this, she’s being raped. “This is RAPE under the moral definition,” as he put it. This idea is so utterly ridiculous that I can’t believe I’m even spending time discussing it. Rape is not an internal, subjective state of mind independent of any externalities. Rape is an act of violent or coercive or otherwise nonconsensual sex committed by ONE person against ANOTHER person. By definition, and to fulfill the legal mens rea of the act, the rapist must be conscious and aware of the fact that he does not have consent. Sailorman’s idea of “moral rape” does not allow for that, and so it cannot be considered rape. What it is, is a woman who thinks one way (without expressing her thoughts) but does the opposite; a woman who feels one way (without sharing those feelings) but acts the other way. In other words, a woman who is not being honest, open, and explicit with her partner in a meaningful way to allow him to know that she is not consenting. This isn’t even the classic case of mixed signals–it’s sending one signal, that of consent, while privately, quietly, and internally feeling the opposite. That is NOT RAPE, and to claim that it is is simply an outrageous statement.
He compounds this muddled thinking by seeming to approve of “moral rape” being punished:
What on Earth is this supposed to mean? Moral “rape” should be punished, without need of a legal proceeding? That is, a man should be punished merely for a woman’s internal subjective frame of mind that she did not communicate to him? And how is one to tell if the woman is “lying about lack of consent” when “no other evidence is relevant except her lack of consent”? (Talk about begging the question! I’ve encountered less circular reasoning in debates with fundamentalist Christians.) He admits the possibility that she might be lying, but then says all that matters is her subjective frame of mind, her subjective belief, and her statement about that belief–in other words, all that matters is what she says. If all that matters is what she says, and nothing else, then how is one to assess the truth or falsity of her allegation? And if the only thing the defendant can do to change the outcome is show that the accuser is lying about lack of consent, how exactly is he supposed to do that if the only piece of evidence that matters is what the accuser says?!
Sailorman, the only thing that is “immaterial” in your explanation is the actual truth of the accuser’s allegation. It is not a statement that can and should be skeptically and rigorously subjected to a process of truth testing, but a dogma. What she says goes. What she says happened, happened, by definition. No questions allowed. No doubts. She’s to be believed 100% and there’s nothing, nothing, the defendant can do to challenge it. Thus, a woman’s claim that she was raped is to be treated as an infallible statement of truth (move aside, Pope!) even if in reality, she wasn’t, and even if this claim is based on nothing more than her subjective, internal, uncommunicated feelings, and even if her outward actions completely contradicted her inner feelings by communicating consent to her “rapist”.
Thanks for clearing that up! It makes so much sense, that it’s actually gone full circle to the point that it appears to make no sense at all!
Honestly, do you folks even think through your positions before throwing them on the Web? My head is pounding, I need some Tylenol :(
Chris, attacking other people’s positions is fine, but try to be a little nicer about it. The above comment adds nothing to the discussion, and is obnoxious. Thanks.
Since this is already the way-off-topic thread: Amp, sorry for never before having clicked over to the non-blog part of amptoons (political debates are like shiny objects to me, I think, I just can’t look away…wait, no, that’s trainwrecks…)
…and obviously I’ve only gotten through a fraction of the Ampersand archives – and had already added it to my comics roll by the treatment vs. prison one – but seriously, you have a comic about Nestle’s formula? How fucking cool are you?
– and hey! We’re townmates! I feel so cool by proxy!
Chris,
Nope, sorry, you are not the sole legitimate definer of the concept of rape.
If someone forces you to have sex with them will you feel that you have been raped? If you find out that someone else convinced your rapist that you had this intense fantasy of being violently raped, and you’d like them in particular to pretend to rape you, so when you screamed and begged them to stop, and fought back violently, they thought you were just playing your part, would you then decide that actually you hadn’t been raped, as your assailant hadn’t had the proper mens rea? That your refusal of consent was not properly understood?
If that happened to me, I would still consider myself to have been raped, and would feel no need whatsoever to reconstruct the experience as having not been rape.
You may think that that is an absurd hypothetical, and that obviously no court or jury would buy such a grotesque justification, but that is actually a description of a case from Britain in the 1970’s, which remained controlling case law (not sure if that is the correct term) until a few years ago. The judges decision? Not guilty, since they couldn’t commit rape without the intent to commit rape.
Let’s ignore the relationship between your position and the judge’s position, and just focus on the question of a moral definition of rape. If that happened to you, would you feel that the fact that your assailants hadn’t had legal intent meant that you hadn’t been raped? If you would still feel that rape was the term that described what was done to you, how does that square with your exclusively legalistic definition of rape.
Consider another example. Up until the past decade, many states had no legal recognition of the crime of rape if the victim was the spouse of the rapist. The basis of this non-recognition was a long moral and legal tradition that considered the act of marrying to be the critical point for consenting to sex, so once you were married, you had consented, and your consent could not be withdrawn. Let us ignore the question of whether either of us considers this to be an acceptable or appropriate definition of consent. Instead, assume that your spouse believes this to be the proper definition of consent within marriage, and so forces you to have sex against your explicit wishes. From your point of view, you have clearly withdrawn consent, but your spouse doesn’t see it that way. From their point of view, the sex was not non-consensual, as you are not capable of meaningfully refusing to consent. So would you experience that as rape, would you want it recognized by others as rape, would you want to call it rape in order to be able to convince people that this is a form of rape that the law fails to recognize?
In both those cases, your assailants aren’t aware of being rapists, aren’t aware of having violated your lack of consent. Are you comfortable saying that the women who were raped in those manners were not actually raped? Are you comfortable saying that those forms of sex should not be criminal?
Both of those forms of rape are currently legally rape in this country. Do you think that they weren’t forms of rape when they weren’t legally forms of rape? What do you call forms of rape that aren’t recognized under the law.
If you experience what happens to you as rape, then you have been raped. From the vantage point of counseling or supporting someone, that is clearly the important definition of rape (are you really going to tell someone who tells you that they were raped last night that you need to know what their assailant/partner’s feelings are before you can accept that it was really rape?). From a legal vantage point, that is not the current definition of rape, and it may be problematic as a potential legal definition of rape. From the vantage point of events that we should work to ensure never happen, however, it is also the correct definition of rape. It is more important that no one ever experience rape (even if they can’t name it) than it is that no one ever attempt to commit rape (although, in actuality, basically all cases of intentional rape will be experienced as rape, so it is necessary to get rid of intentional rape to get rid of experienced rape, but the experienced rape is what matters).
If you accidentally subject someone to experiencing sex with you as rape, then you have fucked up very badly and done huge and irreparable harm to them. It doesn’t matter whether you intentionally subjected them to that or not, you have still done harm. While a long prison sentence may not be the currently socially accepted way of ensuring that you never do anything like that again, recognizing that what you have done is rape is an important part of learning to never do that again. Recognizing what things lead to people experiencing rape is important, and those things, those acts, should be avoided.
Currently, we don’t treat the act of not bothering to be careful to avoid having your partner experience sex with you as rape as a crime. Maybe we never will. Maybe it isn’t necessary to criminalize it to do away with it. Maybe we can stigmatize being a non-criminal rapist sufficiently. Maybe not. Whether we criminalize it or not, if you cause your partner to experience sex with you as rape, then your partner has been raped, and you are the cause of it. That makes you, yes, a rapist.
I hope that I have not over-personalized this by the use of “you,” and I don’t think that I have anywhere used it to impute opinions or beliefs or actions to you personally. However, I think that it is important to look at this in a personalizing manner.
Sailorman:
When you talk about defining rape morally, you seem to be defining it in such a way that the “rapist” has not necessarily done anything blameworthy (e.g., with the woman from “reverse land,” the man has every reason to believe that she’s given consent). Is that correct?
If so, I don’t think it’s productive to use the word “rape” here, because “rape” implies a rapist, and rapists are generally understood to be bad people. This leads to people talking past each other, like you and Chris seem to be doing. When you say “rape,” he quite reasonably assumes that you want to brand someone as a rapist.
Brandon,
This seems consistent with your general preference for protecting anyone from being labeled harshly. However, it stomps all over the ability of women to define their own experiences. The experience of the woman from reverse land (or the experience of the woman in the British rape case I described in the previous post, or of a woman in the 1950s raped by her husband) is basically similar to the experience of any other woman who you would permit to label her experience as rape.
This is why you have often read people here talking about a distinction between a perpetrator centric definition of rape and a victim centric definition of rape.
Also, most cases that Sailorman would call moral rape still involve, at the very least, a failure on the part of the rapist to sufficiently check their supposed partner’s mindset, which is a serious failure. While Sailorman’s absurd reverse world example serves as a useful extreme to show the difference between a victim centric and a perpetrator centric perspective, it should not be used to talk about the potential problems with applying a victim centric definition.
I’m going to end by quoting Myca quoting defenestrated quoting Mike Domitrz:
Ampersand,
I do apologize for the last statement I made in my last post. It was bitchy and unnecessary. It was late, I was tired and very frustrated, but of course that’s no excuse.
Charles,
you’ve completely missed the point. Please go back and re-read Sailorman’s postings about “moral rape” and my responses and think through them thoroughly. The arguments you presented and examples you gave are totally irrelevant to what he and I were talking about. It’s apples and oranges, as was obvious to me even skimming through your comments. Why was it not obvious to you?
Perhaps because this discussion has been hijacked by dogma, as discussions of rape on feminist blogs are wont to do. I should have known better than to even wade into it at all. I could spend literally hours, hours, meticulously picking apart, debating, debunking, and refuting various statements made in comments starting at #76 and on to the end of this thread, but really, what would be the point? I’d just raise my blood pressure to an unacceptable level and give myself another pounding headache like I had last night, and I’d get nowhere, because evidence and rational argumentation seem to be less important to some (get that? some) folks here than reflexive dogma. I actually started a new post last night to do that very thing (and no, I’m not singling you out, defenestrated, it’s just that your comment #76 was where I left off last night). But it was getting long and unwieldy, too detailed, and I was getting too frustrated, so I eventually just shrugged my shoulders, muttered some mild, euphemistic version of “fuck it”, and deleted it all. (No, come to think of it, I did say “fuck it”!) LOL
This post will of course prompt some to think, and perhaps even state, that I’m a quitter, that I was losing the debate so I grabbed my toys and ran away, even that I’m one of those convenient bogeymen, a “true patriotic MRA resident of rape cultureland” who wants to “promote the permissibility of rape.” (Honestly, other than a handful of Neanderthal caricatures and strawmen, is there any thinking, feeling person out there, male or female, who argues that rape should be “permissible”? I defy you to find one for me. People can reasonably disagree about rape stats, false allegations, the broadness and ambiguity in so many definitions of “rape”, and the like, without advocating that rape is a good thing, or that it should be legal. Good grief.) Anyway, none of that is true. I’m not giving up because I think “Ya got me! I have no answer for that argument!” but because I think it would be pointless to continue–a waste of my time and energy. Debates with True Believers are always a mistake, no matter what form those True Believers take. I wouldn’t spend any more time debating Marxism or Catholic theology with one of the those True Believers, either.
Just a few quick things and then I’ll go:
OK, sure, but if that’s the case, why are we so upset about what happened to Amber and Jeremy (you know, the kids in Florida whose prosecution prompted this whole thread?) The law in Florida is very clear about photo or video depictions of minors engaged in sex acts, it admits to no ambiguity. Pictures of kids having sex are always illegal, no matter who took them or why, and “consent” doesn’t enter the equation. Even if the kids were ignorant of that law, tough shit, right? Their prosecution and punishment is valid. The law is the law, and ignorantia juris non excusat and all that. So what’s our beef here?
defenestrated, you seriously misconstrued what I was saying there. I won’t say you deliberately did so, but I am curious, as the context was painfully obvious. Please re-read the post. I was specifically discussing gender disparity in sentencing for equivalent crimes, with an example of statutory rape, when I made that statement. I find it hard to believe that someone as intelligent and observant as you could have missed that, lifted that statement out of context, and used it to make a point about rape conviction rates and false allegations, as if those things had been implicit in my statement. That was an unfair cheap shot and I think you know it.
So am I to interpret that to mean that you’d support ideas like the current British proposal to reverse legal presumption in rape cases, so that a rape accuser’s claim would be considered presumptively true (and thus a defendant would be presumed guilty), and a defendant would have the burden of proving his innocence with “incontrovertible evidence” that he DID obtain consent? (Please see my earlier comments in re how silly such an idea is. Like, what the hell would constitute incontrovertible evidence? A signed, dated, notarized consent form? A date-stamped videotape of the sex act? Signed affidavits from volunteer witnesses to the sex act that it was indeed consensual?) The burden of proof is on the prosecution (or, as you misleadingly put it, on the accuser) to prove two things in a rape trial: 1) That an actual rape occurred (that is, the accuser was a victim of nonconsensual sex); and 2) That the defendant was the actual rapist. If the prosecution fails in either of those tasks, the defendant should be acquitted, and rightfully so. I don’t have the space or time or energy to give a detailed explanation of why our legal system presumes innocence and puts the burden of proof on the prosecution, but suffice it to say that presumption of guilt legal principles are closely identified with totalitarian or authoritarian systems, and it corresponds to the fundamental philosophical principle that one can’t prove a negative. That is, those who claim that something happened (a rape, or other crime) and that a particular person (the defendant) was responsible are making a truth claim about reality that they must support with adequate evidence. If they can’t we have no obligation to accept what they have to say. It’s the same principle as debating the existence of God–believers have the burden of proof because they are making a positive claim–that God exists. I’m not making a contrary positive claim–that God doesn’t exist–I’m merely saying that I have no obligation to believe the claims of theists (and I don’t, BTW) unless they convincingly prove them to me.
Finally, all of you need to get past the propaganda about false rape allegations. Only 1% or less of allegations are false? Ridiculous. First of all, that’s a new one to me. All the accounts from radical feminists I’ve read over the years have put it more in the 2-3% range (still too low). So now we’re down to 1% or less, huh? Wow, give it a few years, and we’ll be down to 0.1% or 0.01% or less false. Anyone for 0.001%? Hell, why not just come out and say what you really think: False rape accusations don’t exist. Just be honest and be done with it! And really, defenestrated, I’m having a hard time reconciling your statements that:
with this:
with this:
with this:
I could spend quite a bit of time dissecting the inconsistencies, contradictions, and absurdities wrapped up in those four short statements and the ideas that lie behind them, but alas I’ve lost interest in doing so.
Police and prosecutors (not feminist rape activists with an agenda to push) will vigorously dispute the “1% or less false” claim about rape allegations. Feminist claims in this area are more dogmatic wishful thinking than hard research–the much bandied about “2% false” claim that has been The Official Position for so many years was not based on actual research, but on a statement made by a retired judge during a speech that was completely lifted out of context and distorted (whether deliberately or unintentionally). The stodgy, conservative, law-and-order, get-the-bad-guys FBI estimates the false rape allegation rate to be at least 8-10%, and there’s widely available evidence that that’s a serious understatement. Academic studies have found significantly higher rates. I don’t profess to know precisely what the false report rate is, no one can, but based on valid evidence, and not simply unsupported claims, it appears to be a hell of a lot higher than 1% or less.
It’s funny, actually, that the feminist argument that a woman who claims rape should always be believed buys into the patriarchal notions of the “moral purity” of women so much, and yet doesn’t seem to realize it (or doesn’t care)! LOL Women are incapable of lying, of being deceptive, of being manipulative, of being cruel, of desiring to hurt or damage someone, of seeking attention or sympathy, of trying to cover for an unexpected, embarrassing, and inconvenient pregnancy or some other situation, of suffering from mental illness (unless, of course, a woman is charged with murder–then the mental illness excuse is trotted out as a matter of course), of making bad choices, of seeking revenge, of being vindictive, of fighting for leverage in an ugly way in a divorce or custody proceeding, of having impure or dubious motivations, of using others to vicariously fight their battles for them, of using coercive tactics, of feigning vulnerability and weakness and victimhood for their own gain or some other motivation, and on and on and on. NOPE. Not at all. There’s never been a single woman in existence who’s ever exhibited even one of those traits or qualities, let alone more than one of them simultaneously! Women are, of course, just slightly under the angels, but pure and perfect nevertheless. So of course it makes perfect sense to absolutely and unwaveringly believe everything they have to say in all contexts.
But let me ask you this: In a classic he said/she said scenario, aren’t we talking about intimates (whether it be friends, boyfriend/girlfriend, romantic or life partners, or spouses) who are quite obviously undergoing a nasty and messy relationship crisis? One that will undoubtedly lead to them not have a relationship in the future? One that has been building and developing for some time in most cases? (Let’s face it, beautiful, ideal, loving, caring, sharing, equal, happy relationships don’t tend to cruise along all happy go lucky only to mysteriously crash into a brick wall and fall apart with a rape. In a great majority of cases, the relationship will have been rocky and tempestuous to at least some degree before a rape occurs, or before a rape allegation is made.) Given all that, and considering that a woman who makes a rape allegation does so for one reason only (she is so full of hatred and rage at the man she’s accused that she wants to see him locked in a cage for years or even decades), isn’t it reasonable and fair to treat her claims with open-minded skepticism and subject them to rigorous scrutiny?
OK, that’s it, I’m done. This post went on far longer than I wanted it to when I started it, and I could have kept going. Ugh. One last note: Don’t misinterpret anything I’ve written to mean that I dislike anyone here. That’s not the case. We simply disagree on some things in fundamental ways. I have been very frsutrated with some things I’ve read here, but that doesn’t mean I think you’re bad people or that you’re “out to get men” or anything. I think you’re good people with good intentions, I just think that in some respects they’ve led you astray. That’s all. Good day.
Chris, I’m a lawyer. I know what the definition of rape is; I know what mens rea is. Had you accepted my invitation to come over and argue on my blog (you hadn’t as of a few minutes ago) you’d have picked that up quickly. Perhaps post titles like “analysis of a rape law” and “help write a rape statute” might have tipped you off.
Sheesh.
Anyway: The point was that there is a disconnect between the subjective experiences of a woman who feels she was raped and the objective judgment of the criminal system as to whether or not she was raped.
Or to put it more accurately (and focus the discussion better):
there is a disconnect between the subjective experience of a woman who feels she was raped and the objective judgment of the criminal system as to whether or not the accused matches the legal definition of a rapist.
Note the difference? It’s not about her, it’s about him. It changes the discussion from “how did you feel?” to “what did he do?”
As you probably know, the victim doesn’t necessarily get a lot from the process. What pisses people off (and rightly so IMO) is that the legal definition of rape doesn’t really care what the woman felt, except as it happens to have produced physical actions which reflect on the “rapist status” of the accused.
The recourse to definitions of “moral rape” is IMO an attempt to push that lack into the limelight.
I don’t, personally, strict think moral rape is the best definition to use legally, I base taht opinion more on practical and constitutional issues. but I don ‘t pretend that such a disassociation is “good for victims”. I know that it is, in the end, going to hurt rape victims. I’m just not sure what to do about it in the larger legal framework, so I spend a lot of time trying to refine my position to avoid that problem.
Criminal law is, often, a zero sum game. We cannot usually grant protections to victims without a negative effect on defendants; we cannot grant protections to defendants without a negative effect on victims. (There ARE things we can do to improve the process which simply reduce error without benefiting either side: DNA testing, better investigation services; etc. But nobody tends to argue about those.)
I don’t think there’s any “natural law” regarding the appropriate amounts of type 1 and type 2 error in the legal system. Opinions on it can, and do, differ. I just think it’s important for people to understand the consequences of their actions no matter which side they’re on.
So, arguing for a straight legal definition of rape isn’t per se bad. Just be aware that such a definition is likely to result in a higher number of women who experienced being raped failing to achieve satisfaction through the criminal system. Maybe you think that’s OK: the obvious corollary benefit is that fewer men who (honestly or not) didn’t have intent to rape will not get put in jail.
And arguing for a straight moral definition of rape–or anything which is closer to a straight moral definition of rape–isn’t per se bad either. Just be aware that such a definition is likely to result in a larger number of folks who lacked what we normally think of as “criminal intent” or “intent to harm” getting found guilty. Maybe you think that’s OK: the obvious corollary benefit is that fewer women will feel like they were raped and fail to get help.
A lot of people-like me–spend time trying to figure out how to acknowledge the woman’s issues (which are major) and make the system pay attentino to them…. while simultaneously keeping the general, standard, protections which we believe should be granted to all defendants in all cases. It’s a hard line to walk.
Oh, one thing I forgot to include: When I say false rape allegations, I’m talking about allegations, not necessarily cases that have made it to trial. Common sense dictates that unquestionably most false reports never make it to trial. Either they’re recanted by the accusers, or they’re weeded out during the investigatory phase due to their obvious problems, or they fall into that vague, broad class of “unfounded” or “insufficient evidence” to proceed. Don’t get me wrong, often “insufficient evidence” means just that–it’s entirely possible, even probable, that a crime occurred but the evidence is too weak to secure a conviction in the opinion of the prosecutor’s office. However, it’s entirely likely that some false reports end up being classified as such as well. And “unfounded” is much more commonly used as a euphemism for “we don’t believe it.”
But again, that’s most false reports. I have no doubt that enough of them make it to trial to cause problems, although of course not all of them will result in convictions. Look at it this way: Our system is known to have many problems. Wrongful convictions are among those major problems. There are various estimates of how many convicted, imprisoned people (whether due to trials or plea bargains) are actually innocent–but I’ve seen some estimates as high as 10% or so. But let’s assume for the sake of argument that the criminal justice system is 99% accurate–that is, 99% of convictions in the system are sound, valid convictions–correct verdicts or pleas (personally, I think that’s giving our system too much credit, but again this is merely for argument’s sake). On any given day there are some 250,000 people (almost all men) imprisoned in the US for sex offenses (it may be higher than that now, I think that stat is several years old or so). Given our assumptions about the system, it stands to reason that at any one time there are thousands of wrongfully convicted and imprisoned people in the US prison system for sex offenses alone. Gawd forbid we apply the same analysis to the sex offender registries, that have some 650,000 people listed and growing by leaps and bounds! And that’s assuming near-perfect accuracy in an imperfect system made up of flawed human beings. What if we were to drop our accuracy estimate to 95%? Or even 90%? That’s still very high, but think about all the many thousands, even tens of thousands of injustices that would imply, among sex crimes convictions alone.
BTW, Ampersand, why am I in moderation now? I wasn’t yesterday. Is it solely due to that one small regrettable bitchy comment I made last night? That’s a bit extreme, don’t you think? I sincerely hope it’s not because I’m not “toeing the party line” so to speak. That would be unfortunate. Well, regardless, it’s your blog and your decision. Take care and be well :)
Charles:
Either you know very well that that’s not true, or you’re just not very perceptive. Either explanation contraindicates my bothering with the rest of your comment.
Sailorman,
In re your post #92: That was a much better explanation of your position (at least IMO) than you offered before. I don’t disagree with most of what you said in #92. But I still find your definitions of “moral rape” to be rather troubling. Again, if a woman is not truly consenting to sex but that lack of consent is not expressed to her partner (“rapist”) in any meaningful way, how can anyone honestly say that she was raped? If she keeps it all bottled up inside; if she thinks “I don’t really want to do this” but does not say that, push the guy away, express displeasure or lack of interest, or any other of the myriad ways to effectively communicate lack of consent, and furthermore she participates in the sex outwardly so that an independent observer (and obviously the man she’s with) would interpret her actions as those of a consenting partner (refer back to your example of the alein woman who outwardly did the exact opposite of that she really thought and felt inside), then as I said before it’s a crime against the language and common sense to say that she was raped, and it’s unfair of her to claim that she was raped. Rape cannot be divorced from its larger context and from the necessary externalities–meaning, to be a rapist the man must know that consent was either refused, never obtained in a meaningful sense, or obtained fraudulently (with drugs or excessive alcohol, for example) and yet he must then proceed anyway. Your definition of “moral rape” and the examples you gave did not meet those criteria. That’s what I was getting at with my critique of your post. If I’ve seriously misunderstood you, my apologies and please enlighten me, but having pored over your posts numerous times, I think my interpretation of what you wrote is valid. And if it is, then I vigorously disagree.
Gawd, this whole discussion has made me sooooo thankful that I’m gay. Honestly. And that’s not in any way, shape, or form meant to be a misogynistic statement, so don’t even go there. I admire and respect women, and love and adore many women. I consider women to be equals. But discussions of rape like this make it painfully obvious that men and women have a great deal of trouble understanding one another, relating to one another, and communicating with one another, especially in re sexual matters. It’s much easier in a same-sex situation or relationship. I’m not saying issues like these never arise among same-sex couples, but they do much less frequently. I sympathize with both straight women and men for the more complicated and challenging relationship dynamic they must navigate. But hey, we gays have our own major issues to deal with too, huh? LOL ;)
Chris,
I think we’re talking past each other, so I’ll let someone else respond to your latest.
Chris, did you read my comments? I’m really hung up on how you still seem to be focusing on the “thousands of wrongfully convicted” that it “stands to reason” must be in prison. Seriously, did you read my comments? Considering that we live in a world where sexual assault is a-ok if the victim is, oh say, a stripper (not a Duke-related link), or had too much to drink, or was willingly alone with the guy, or a zillion other exceptions that usually have a hell of a lot more to do with the victim’s history than the rapist’s actions – I really would like to see some evidence about all these falsely accused rapists in prison, if you have anything more substantial than “well the math sure sounds right.” How many millions of sexual assault victims have been wrongfully denied justice because it “stood to reason” that if the rapist thought the sex was wanted, then it must have been? How many of those free rapists would you suspect have raped again (damn, I can’t find the link for that one)? I just can’t shake the impression that you’re valuing the right to be selfish and oblivious over the right to not get raped.
Charles said,
I agree with most of your comments above, but – How do you accidentally rape someone? Really, what circumstances can anyone here envision where 1), one partner sees it as rape (not, deep down inside didn’t really feel like it, but truly thinks they have been raped*), and 2), the other partner innocently thought it was just happy fun sex time? I linked to Moderate Left above, and I think Jeff puts it very well in that post:
All of this internal/external cues stuff just obfuscates the sexual paradigm that the man isn’t just allowed to, but is supposed to go as far as he can until he is made to stop, and that it’s up to the woman to put him off; moreover, if she doesn’t succeed, well, he was just doing what men do and couldn’t have been expected to know better. I thought that feminists had higher opinions of men than that?
And sailorman, I’m truly confused as to what purpose the “opposite world” victim and the “moral definition” are supposed to serve. By extending rape to instances where the man couldn’t have known what the woman wanted, I think you’re (I assume unintentionally) weakening cases where he had every opportunity to but maintains he did not, and from some of the comments it sounds like that idea invites doubt towards victims who clearly didn’t consent.
Or maybe I’m just all confused because Brandon’s right and we’re all talking past each other?
*I have a really hard time even typing the phrase “thinks they have been raped,” but it seems like the possibility of that kind of delusion is the basis of several of the arguments here. Unless the accuser is mistaken and it was a different vagina that the unwanted penis went into, I just really can’t wrap my head around it.
defenestrated:
I’ll use a bit from your post to explain:
(emphasis added).
This is amusing because I’m spending a lot of time explaining a position which I, personally, disagree with. But I have run into a LOT of folks online (and there have been some pretty long threads on Alas) about this. So here goes:
the problem with your quote is this: if deep down inside she didn’t feel like it, she didn’t really consent. You either consent deep down inside or you don’t.
Therefore, morally speaking it was not consensual sex.
All nonconsensual sex is bad (a statement I agree with in general) and many people believe all nonconsensual sex is rape (a statement I agree with as applied to “moral rape”).
Furthermore, a surprisingly large number of people believe all nonconsensual sex should be punishable by law. I don’t completely agree with that part, at least without about a gazillion qualifiers i don’t have time to write here. But I DO understand that there’s a problem to be solved.
I’m actually a bit surprised nobody from that camp is posting here, but I figure it’s one of three things:
1) they didn’t notice the thread;
2) they don’t want to have the debate for the 1000th time
3) they’re laughing at their computers to see me posting their argument for them ;)
Anyway, not to post and run but I’ve gotta go get ready for some distant relative’s funeral here this weekend–nobody i knew well but lots of family stuff so i expect to be offline till monday. I’ll reply then if applicable.
defenestrated,
I’ve posted about this case before. I don’t know if you’ve seen it previously and disagree, or just haven’t seen it.
Back in college, I had two friends who were in an ongoing sexual relationship with issues. One night they agreed to spend the night together, but not have sex. The male partner S brought along a condom, and at some point mentioned this fact. The female partner E said, “I thought we agreed not to have sex,” and S said, “Well, I thought you might change your mind.” E said, “Okay,” and they had sex. E experienced this as rape. S certainly had no intent to commit rape, and sought and received active consent (which E felt was coerced, but S was unaware that E felt coerced). S did not behave perfectly, and that rape should never have happened, but it was not in anyway intentional on S’s part that his partner should experience rape. As I said, even without intent, S did something horrible, and that form of rape should be prevented from happening as much as possible, just like forms of rape in which the rapist intends to rape. That is a case that comes close to Sailorman’s opposite world example, and I think helps to show the point of the opposite world example. From E’s experiential perspective, it doesn’t matter that she gave verbal consent, she actively did not want to have sex, and experienced the sex as rape.
Are you going to say that she is wrong, that she wasn’t actually raped? Are you going to say that S, who sought and received active consent was intentionally a rapist? I would say that E was raped, and that S was accidentally a rapist.
In discussion between S and E after that night, they eventually settled on an agreed understanding of the evening in which E had been raped, but S had not committed rape. Neither of us may be happy with that formulation, but it satisfied S and E.
I’m sorry about your relative, sailorman; I’ve got a bit of that going on here myself this week (only in my case it’s made me burrow further down into the intertubes for warmth). I’m still going to go ahead and respond like you’re going to read it, though.
I entirely see your (sailorman’s) point, and I think what I’ve been seeing happen here, and more strongly in other threads, like you mentioned – and I know I’m taking these comments out of order, but on the assumption that your most recent comments were a reiteration of your above ideas – is that we start from
and go to
and then someone says
and then finally we get to
That’s what I meant about the moral rape idea opening up doubt – maybe ‘backlash’ would have been a better term. I know I’m skipping some steps, but in general it seems like resistance to the moral definition often then gets taken out on the legal definition of rape.