The varieties of rape

No, every case of sex without valid consent is not the same as every other case.

Speaking of bullsh*t, here’s my current favorite sample: “All rape is real rape.”

Are there different kinds of rape? What kind of stupid question is that? Of course there are.

To be lawful, sex must take place with valid consent. It’s unlawful if one of the parties

1) Doesn’t consent
2) Can’t consent due to temporary incapacity (e.g., due to alcohol or other drugs)
3) Can’t consent due to permanent incapacity (profound cognitive impairment)
4) Can’t give valid consent because underage.

Sex under any of those circumstances is, and ought to be, forbidden. Which of them is called “rape,” with or without a modifier such as “statutory,” varies from one jurisdiction to another.

In law, we can make them the same crime: same name, same penalty, just as in some states walking through an open kitchen door in midafternoon to take an apple from an empty kitchen is “burglary,” just like smashing down the same same door at 2am to steal everything in the house.

But they’re not he same actions, and for some purposes we will want to distinguish among them: perhaps even in the degree of culpability of the offender.

Are they all “real rape”? Depends on what you mean by “real.” When Whoop Goldberg denied that Roman Polanski had committed “rape-rape,” she meant that his actions didn’t fit the pattern of a stranger grabbing a woman and taking her by force or fear, which is the original definition of the crime.

That was true; whether her implied conclusion that Polanski’s culpability was less than that of a “rape-rapist” is a different question, and I don’t come down on what I take to be Goldberg’s side of it, since giving a thirteen-old-drugs and then taking advantage of her seems to me about as bad as it gets.

Very few people doubt that sex with an eight-year-old, whether you want to call it “rape” or “child molestation,” is morally on a par with forcible rape, or that an eighteen-year-old, no matter how immature, is capable of giving valid consent. In between, most state laws recognize gradations, based both on the age of the victim and the age gap between victim and perpetrator. And of course the age eighteen – or any other number – and the rules about gradations are to some extent arbitrary. So if a forty-year-old man who molests a pre-pubescent child is a rapist, and a boy who makes it on his eighteenth birthday with his girlfriend two months younger is something less than a rapist but has still committed a sex crime, then there are indeed not only distinctions but gradations with the crime of rape and its relatives.

Another set of distinctions concerns the mental state of the offender. Whether the other party to sex consents, and whether that consent is valid, is sometimes obvious and sometimes not. When a stranger jumps out from behind the bushes and grabs someone, there’s not much doubt. When one member of a couple that has had consensual sex before engages in some degree of voluntary contact and then wants to stop, it may or may not be clear to an outsider when, or to what extent, the accused became aware that what was going on was no longer consensual. That’s especially true if both parties have voluntarily consumed intoxicants, which can interfere with cognition, decision-making, communication (sending and receiving) and memory. The case of someone who slips a Roofie into his partner’s drink is simple. The case of a couple getting so sloshed that neither has a clear memory of what happened next isn’t. Did she say “no”? Did he hear “no”? What is the standard of evidence for whether she was too drunk to give valid consent, and whether he knew or should have known that?

Finally – and this is what has gotten Rep. Akin in trouble – there’s the question of the complainant’s veracity. Again, with respect to the question of consent as opposed to the question of whether intercourse took place, this can be a matter of gradation: especially, again, when intoxicants are involved.

Of course it seems reasonable to mostly take the word of the complainant in a rape case, just as we do in a robbery case. But does anyone seriously believe that the frequency of false complaints, or complaints of ambiguous merit, is really zero?

So I’m glad we’ve gotten beyond the question of whether “no” always means “no” and that we’ve established the rule that valid consent is a precondition of lawfulness, on something like a strict-liability standard. But that doesn’t require insisting that a single word covers all the possible cases, or that the cases are never worth distinguishing, legally or morally.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

43 thoughts on “The varieties of rape”

  1. Mark, you must be feeling lonely today? ; >

    Anyhoo, I mostly agree, but I would just note that I think people who say this kind of thing are really just saying that what is called “date” rape is in fact rape. That is to say, everything that’s not guy-jumping-out-of-bushes. So we should be fair and note that the people they’re arguing with are full on Neanderthal. A lot of the subtleties get lost.

    Having said that, I think it is nice that you put stuff like this on the web, since I think there are many people who still need to read it. Drinking too much is probably about 90% of it. Which is why I can’t figure out why the military hasn’t cracked the case yet.

    Other thing is, people defend Polanski because they want to seem cool. If they just heard the story and didn’t know who it was, no one would condone it.

  2. Great post above Mark…

    If two people get wasted on alcohol, then have sex (quite common), and the other party says no consent was involved afterward, the other says yes there was, it puts law enforcement in a bind for sure. If both parties agree with the first two facts, but not the last…

    Frank

  3. I agree with you. Does this also mean that a person who is statutorily raped should therefore not have access to abortion services?

    1. Hell, no! I’m mostly with Todd Akin: whether a woman has access to abortion services, including the money to pay for them if need be, should have nothing to do with the conditions of conception. The only disagreement – which we could no doubt work out over a beer – is that Akin says “never” and I say “always.”

      1. Since Akin is from MO, that beer with Akin would be Busch?

        And can you be specific as to where you are having this beer? I want to make an investment in the local distributor. The amount of suds to induce Akin to see reason should push my IRA into the Rmoney range.

      2. LOL – I think it’s going to take more than one beer to get that never and always to meet somewhere in the middle. 🙂

  4. Well and cogently argued, but I’m afraid I have to spoil the party somewhat because I think that in the present context it somewhat misses the boat. Akin invoked a widely-held belief among antiabortion activists in magical spermicidal properties exercised by the reproductive tracts of women who have *truly* been raped, and it has the obvious corollary that pregnancy is prima facie and dispositive proof that whatever happened to cause it was not truly rape of any species. Obama was responding to that absurdity, and in the context of a political campaign. His point was to align himself with the idea that there really is a thing called rape. In the process I think, based on the snips I saw, that he misinterpreted what Akin had said, thinking it was about a distinction between true assertions of rape and false ones.

    Anyway, I agree that the “rape is rape” statement isn’t a very good way to approach the issue (or the political opportunity it presented). But since your basic point seems to be that life is full of complicated situations that resist easy binary distinctions, and that context makes the bulk of the difference, I think the context of Obama’s remark itself matters too.

    1. Yes, but in the end “Rape is rape” fits a bumper sticker. The delusional fundamentalists understand that much; too often reasonable people do not.

    2. Yes, the physiological notion these Republican throwbacks are spewing about the “female rape shutdown mechanism” was introduced to Western culture during the same period of time when Trial by Ordeal was the jurisprudence of the realm!

      To harbor such tripe for centuries speaks poorly to their own personal (family) heritage of intellectual curiosity. To hold such an illbegotten “notion” in the early 21st century, and to espouse it on the campaign trail, gives me pause regarding the permeation of misogyny in our liberty-minded society!

      Me thinks a vote for the Republican brand is a vote for the War Against Women!

      1. There was a study done in Hungary after World War 2, where they found that Hungarian women raped by Soviet soldiers were rather unlikely to become pregnant afterwards; the claim Akin made is probably based on this. (Apparently, anti-abortion activists pass this one around.) More recently, women in Bosnia and Hercegovina who were raped during the recent war were less likely to become pregnant if they were repeatedly raped. http://hrcak.srce.hr/file/2904 (pdf) In both cases, there are confounding factors – Hungarian women in 1945 were likely suffering malnutrition; in Bosnia and Hercegovina, women raped more than once were also far more likely to have been victims of other sorts of abuse which could cause miscarriages and/or prevent pregnancy. (This may also have been a factor in the Soviet conquest of Hungary.)

        So while the idea may be old, it has some modern support for it, if one doesn’t look too deeply into the sources.

        1. “So while the idea may be old, it has some modern support for it, if one doesn’t look too deeply into the sources.”

          IOW, it’s approved by the McArdle School of ‘Research’.

    1. College professors sometimes have trouble appreciating the value of conversations that don’t take the form of one-hour monologues. Whoopi Goldberg (as I think you recognize) was attempting to minimize a grotesque crime. One way to respond to Goldberg would be to note that there are potential subtleties to these situations, but that approach inevitably leads you into the weeds because, at blog length, it’s very difficult to deal with those subtleties.

      Take this, for instance:

      she meant that his actions didn’t fit the pattern of a stranger grabbing a woman and taking her by force or fear, which is the original definition of the crime.

      You’re trying to place Goldberg in context, but by stopping short and not further explaining the historical context, the statement fails to explain Goldberg’s offense. This is the sort of thinking – the sort of “subtlety” – that has opened the door for Americans to be more sympathetic toward medieval ideas about due process and cruel punishment. “It’s not that simple,” says that sophisticate.

      A better response to Goldberg is “Rape is rape,” just as in another context, “Torture is torture.” These statements may lack something in subtlety, but they are suitable for a less-than-seminar-length conversation. Moreover, they are clear and accurate.

      1. Whoopi Goldberg also said, on national television, that people who opt out of full body scanners at the airport and insist on an “enhanced patdown” (or what I call sexual assault) are terrorists. So you may not want to listen to her very much.

  5. Consent is regularly a point of contention in criminal trials; typically “he” will say it was consensual and “she” will say otherwise. When the defendant is a prominent professional athlete the public often hopes for an acquittal, with an unspoken assumption that of course any woman would like to have sex with a atar athlete.

    At trail, it may boil down to her testifying, “I kept begging him, DON’T!! STOP!!” and he will say, “She kept begging me, DON’T STOP!!” The jury has to decide whom to believe.

    But the woman may also decline to testify; see http://therocky.com/news/2007/mar/15/expert-victims-path-rockier-than-celebrities/ for details of one such sorry circus.

  6. Off-topic, I know, but “It’s not loneliness, it’s Amtrak” should really be Amtrak’s new slogan.

    1. Yes, exactly. Mark is enjoying Internet access while contemplating beautiful passing scenery, avoiding traffic hassle,* and meeting delightful fellow Americans. (Who can forget the classic scene in which Frank Sinatra gets picked up by … I believe it was Eva Marie Saint?) And probably some tourists too!

      But, warning: sometimes they run out of food!!! If it’s a long trip, bring extra.

      *Sometimes you have to pull over for freight trains, depending. This is because Americans are too stupid and too cheap to endow a real rail system. I know it’s not perfect, but I heart Amtrak. All real Americans do. So there.

      1. I think you’re thinking of Janet Leigh in The Manchurian Candidate. “Maryland’s a beautiful state.” Eva Marie Saint had a go at Cary Grant on a train in North by Northwest.

        1. Yes, I was thinking of Janet Leigh! HOW did I get them mixed up?? That is an amazing scene. What a strange conversation.

  7. I think a big reason so many people are talking past each other on this is that the law is discrete but morality is continuous. Relatively minor differences in the facts of a situation can determine whether the elements of the crime of rape have been met, and therefore whether a crime has taken place. A discussion about the law, then, has very high stakes because it’s the difference between being guilty of a serious violent felony and being innocent.

    However, morally, these small differences are trivial. Some men actually have to hold their victim down and force themselves against their struggle. Others are physically imposing enough that they can make the threat of violence understood without having actually deploy it, or even to voice it. Both kinds of men are rapists, and a woman will feel raped whichever she encountered. If you can manage to rape someone just with implicit threats, you haven’t broken the law, but once you reach the point of having to parse the meaning of the statutes, you’re a despicable human being who has grievously harmed another, regardless of which side of the law you’re on.

    1. once you reach the point of having to parse the meaning of the statutes, you’re a despicable human being who has grievously harmed another

      Not necessarily.

      For example, I have (more than once) had several drinks with my wife before having sex (which we were both intending to do before we started drinking.) If “you can’t consent if you’re too drunk to drive” were actually the law, that would be a crime.

      1. I would have to agree that the BAC threshold for inability to consent to sex is higher than for the inability to drive safely, but the latter level might induce one to forgo contraception or to give consent more freely than one otherwise would (i.e., beer goggles). But you have to be pretty drunk to be unable to consent. Were there any question of my partner being in that state, I’d want to make sure she got to bed safely, not try to have sex with her. But that’s just me.

      2. But if you were intending to before you started drinking, then everyone’s on the same page, right?

    2. “If you can manage to rape someone just with implicit threats, you haven’t broken the law,…” I am not so sure that is the law, in fact. Though I suppose it varies greatly by state. More likely, a prosecutor might not want to invest the resources. But depending on the facts, I could totally see a jury with women on it going for the gusto. (Or course, that may just be in my dreams.)

      But, on your larger point that people should hold themselves to a much higher standard than just the letter of the law, I say this: Yes, yes, YES!!!! (with the accompanying fake orgasm sounds … you know, just to show appreciation. ; > )

      1. “But depending on the facts, I could totally see a jury with women on it going for the gusto. (Or course, that may just be in my dreams.)”

        IIRC, female jurors are more likely to acquit, precisely because most rapes are not ‘attacker in an alley with a knife’, which bothers many women.

        Fathers of daughters are the ones most likely to convict.

  8. A Cristian-conservative friend once opined, “Morality is not relative.”
    I replied, “Everything is relative.”
    Seems like that is pretty much the Conservative/Liberal divide in a nut shell. Conservatives seem to think that God wouldn’t let bad things happen to good people so, let the devil take the hindmost because they must deserve it. Liberals think it is our dicey job to keep bad things from happening to good people because the wolf is always at the door.

    1. I think that Anomalous is being fair to Republicans, but not conservatives. Many conservatives know the problem of theodicy, and wrestle with it. Of course, most conservatives today inhabit the rightward flanks of the Democratic Party.

      1. Ebenezer- Sorry if I get tangled up in all these labels. Shorthand tags obviously don’t do justice to the complexity of the real humans in the world. I generalize at my peril and take the knocks I get for the relative sin of it. But ya gotta put a foot down someplace.

    2. Point out to the friend that in the first chapter of Exodus, the Egyptian midwives disobey the order of Pharaoh to kill all the male children of the Hebrew women, and they lie to him about the labor and delivery circumstances of the same women. The Lord sees what they are doing and rewards them for their lies and deceptions. If the morality of truth telling is not relative, why did the Lord not smite them?

    3. I’ll disagree. I think morality is absolute. What it is not is simple, and people confuse one for the other. The problem is that moral absolutes conflict with each other and in the real world we have to weigh competing moral claims against each other.

      The thing is, those who rant about the evils of “moral relativism,” by which they mean acknowledging nuance in moral arguments, know this perfectly well. The entire concept of self-defense is an exercise in choosing between moral imperatives. It is wrong to kill someone. Full stop. However, there are situations in which not allowing one person to kill another person leads to a greater wrong, and so we agree that the killing is acceptable.

      Note that it is not just conservatives that fall into the trap of thinking that morality is simple. A lot of commenters here, as well as a couple of front page posters, have made this error in the abortion debates of the last few days. Their argument is that anyone who thinks that abortion is wrong and should be illegal, but that there should be an exception made for victims of rape and incest, is a hypocrite who is unwilling to acknowledge the hole in their position. Bullshit. It is perfectly possible to argue that it is wrong to kill a fetus, but that forcing a rape/incest victim to carry to term constitutes a greater wrong. I disagree with this set of people, in that I don’t think that abortion should be outlawed at all, but there is nothing logically wrong with their argument. It is no more fallacious than any other argument that admits competing moral claims.

      1. J. Michael- We seem to be in agreement on substance of morality. competing moral claims is the act of weighing one moral imperative RELATIVE to another. That to me is moral relativity. Moral decissions are always made in the context of the situation.

  9. Wait, you say your problem is with “All rape is real rape,” but then you go on to argue against to idea that all rape is the same. No one seems to be arguing that all rape is the same. The idea that all rape is real rape doesn’t imply that all forms of rape are the same or equally offensive.

  10. Yes, of course, the context of conditions (age, sobriety, use of weapon, etc.) really matter when it comes to the criminal disposition of the culpability of individual perpetrator in the scenarios that collectively fall under the umbrella we call sex offenses — but Akin wasn’t trying to parse the subtlety of these situations for purposes of dealing with the perpetrator, but of dealing with the victim. He was reminding us that if it were up to him, any subtlety in the surrounding circumstances would be resolved in favor of concluding that whatever happened, it could not “legitimately” be called “rape.” “Rape is rape” is not just a pithy response, but an accurate one. That I or you might consider it an abomination that a woman’s access to abortion services is dependent on being the victim of a crime in the first place introduces a factor that is, for many people, alas, not pertinent to the discussion.

  11. Some of these subtleties caused Canada to delete ‘rape’ as an offence from the Criminal Code and extend ‘sexual assault’ to all cases, from a grope on the subway to jumping out from behind the bushes with a knife and having sex. So – the prosecution does not have to prove penetration or other physical elements. Sentences on conviction range from minor to heavy, depending on the circumstances.

    But consent is still inevitably an issue in many cases. A hard case that went to the Supreme Court recently involved a couple that agreed as part of ‘sex play’ that the man could suffocate the woman till she lost consciousness. Then: could she consent to sex? Was consent to the first part necesssarily consent to the second? It’s an extreme example of the problems caused to the law of intent by drunkenness – when is it a defence to be drunk and when is it an aggravating factor, and when (as in San Chevre’s example) is it just part of the surrounding friendly circumstances?

    In Canada, fortunately, one has the right to abortion without regard to the circumstances of conception. Access to abortion services in practice is not equal across the country, but where it is available, it is publicly funded as part of the health care system.

    1. Many U.S. jurisdictions no longer use the term rape, but call the whole category “sexual offense” and then classify it as a first, second, or third degree felony or even misdemeanor by the nature of the accompanying circumstances. The result is to make it a whole lot clearer as to what conduct qualifies for what penalties, but it also highlights that the distinctions being pushed by Akin and Ryan between “forcible” and other kinds of rape could be virtually meaningless in many jursidictions.

      I also would like to point out that if rape victims (along with every other woman who needs it!) had better access to emergency contraception, that is, without needing to secure medical intervention, the incidence of all unintended pregnancy, including those that result from rape, would be less of a public health issue for women. So the next time the issue of emergency contraception availability comes up, remember that some of the people who might have the most pressing need for it are rape victims. Trying to control every aspect of female sexuality in an effort to make sure those who had a good time are suitably punished racks up a lot of victims and inflicts a lot of pain.

      1. And while I am on my soapbox, I would also point out that if a woman is taking some of the forms of contraception that are being actively fought as “abortifacients” she is much more likely to be protected from pregnancy in the event of a sexual assault. A woman with an IUD will almost never get pregnant as a result of rape, but myths and false claims surrounding the IUD make it a far less prevalent form of contraception in the U.S. than in Europe.

  12. I don’t like to admit to agreeing with Akin about anything, but it should be obvious that if abortion were banned except for a rape exception then there would be a whole new class of non-rape which is called rape. It’s not a problem for me, because I am pro choice, but what happens if abortion is banned with a rape exception and a woman who is 2 month pregnant says the pregnancy is the result of rape by a masked stranger which event she didn’t bother to mention to anyone ?

    Under current law the problem with a false claims of rape victimization is that an innocent is accused of a crime. We can handle this by requiring proof beyond reasonable doubt. With the rape excepted ban on abortion, well I don’t see any new problem with false claims of rape, but I can see why Akin does and why he expects them to be common.

    He can avoid a dilemma by believing that women’s reproductive systems shut down when they are actually raped (as opposed to a month or so before they falsely claim they were raped). That excludes him from the reality based community, but the extremely numerous people who think a ban on abortions with an exception for cases of rape would be easily implementable aren’t reality based either.

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