Restructuring the crime of rape

The stereotypical rape is committed by a stranger in an isolated place, without any warning, against a lone woman. The assailant hits woman, threatens her with a knife or a gun, holds her down and has sexual intercourse with her against her will. Assault and threats are separate crimes in most legal systems, and for that reason some people have questioned the need for a specific crime of rape. If assault is extended to cover sexual acts, then it would be possible to abandon the term ‘rape’ in criminal law, for this type of attack.

However, campaigners rightly emphasise that ‘rape’ includes more that that stereotypical version. It includes, for instance, cases of less overt coercion, or ambiguity about consent (‘date rape’). Most legal systems do recognise that, and define ‘rape’ as non-consensual sexual acts. I propose here an alternative criminalisation of that kind of rape. It would then be possible to abandon ‘rape’ entirely as a criminal-legal term: stereotypical violent rape would be treated as assault, and other non-consensual sex under a new category of offences.

The main political reasons to reconsider rape laws, are the prominence of rape in feminist theory and campaigns, the feminist definitions of rape, and their influence on legislation.

Most feminists insist that sex must be consensual: that is reflected in campaign slogans such as No means no!. There are some radical feminists who reject the emphasis on women’s consent: they believe that men should simply stop raping women. That ideal is rational, but it can not form the basis for criminal law. Exhortation is not law, and the law can not make patriarchy disappear either. In practice, no feminist can avoid using non-consent to define rape.

Feminist campaigns on consent, rape, and rape culture, appear to have shifted the socially accepted definition of consent. Public opinion in western countries is now more likely to see cases of consent ambiguity as rape. Although feminists are dissatisfied with progress in that respect, the police and courts are more likely to take such cases seriously.

That can be seen as a necessary corrective to earlier attitudes, when police only took rape seriously if it was in stereotypical form (unpredictable attack by a violent stranger). However, feminist theory on consent goes much further, and that is not a side-effect. Since the 1970’s feminists, mostly in the United States, have promoted radical theories of consent to sex, which reject all current sexual behaviour of men. (Some took that to its logical conclusion, and ceased to have sex with men).

The feminist norm of consent goes far beyond saying ‘yes’. It would have a radical effect on society, if it was was the norm for the criminal law.

The feminist doctrine can be described as a doctrine of perfect consent. All forms of sexual interaction between a man and a woman must be free of all explicit and implicit coercion, free of all inequality, and taken with full prior knowledge of the sex acts and their consequences. If not, then it is rape. Mere stated consent is not sufficient, that is the feminist position.

Radical feminists argue that all heterosexual sex that is not motivated by the woman’s genuine sexual attraction to, and desire for, the man should be understood, and condemned, as rape. …

It seems to me that the conception of sex as something to be engaged in between persons sexually attracted to each other can plausibly be advanced only as an ideal, and not as an account of sex to be laid down as a moral rule binding all and sundry, and justifying moral condemnation of those who do not live up to it. Those whose sexual lives fall short of it are missing out on something valuable; but they are not doing something morally wrong. Moreover, this conception is best advanced as a personal ideal, rather than an ideal that a society could hope to realise. Regrettable as it may be, the ideal society in which there is no need and no occasion for the use of sex as a means to an extrinsic purpose, and in which people have sex only out of mutual attraction, has no prospect of coming true in our world.

Igor Primorac: Radical feminism on rape. Društvena istraživanja 8.4 (42) (1999): 497-511.

The feminist ideals are far removed from the reality of most sexual encounters, and in the case of prior knowledge impossible to fulfil. Nevertheless they do realistically indicate what can go wrong with sexual encounters – “He went too far”, or “I wasn’t expecting that”, or “We were too drunk”, or “I was very naive at that age”, or “I felt I could not say no”.

Perhaps because of the doctrine of perfect consent, courts are also more likely to take a woman’s present attitude to past events, as a reliable guide to what happened at the time. The feminist idea of consent implies that consent can be retro-actively withdrawn, when a women later realises that she was not in a position to fully and freely consent – even if she did verbally agree at the time. The law has traditionally taken the view that children can not truly consent to sex, even if they say ‘yes’. The courts are now more likely to hold this true for some adults as well – for instance if a vulnerable young woman has sex, with an older man in a position of authority.

Consequently, it is not possible for a man who wants to have sex with a woman, to be certain that his actions are not illegal. Even a written consent form would be not be a guaranteed defence, not in all cases. There does not seem to be any legal procedure in western countries, by which a man can obtain permission for a sexual act with a woman, sufficient to ensure that he will not be prosecuted for that act.

The sex-card system

A system of regulated sexual permission would go some way to implementing the feminist ideal of perfect consent. I will call it a sex-card system, because it it like showing a card to your partner before sex. In practice it would be a personal account at a secure government-controlled website. Individual women would create an account, edit it, and log in as required. The level of security would be comparable to that of bank websites, preferably better.

The system would be entirely voluntary. No woman would be obliged to use it, but using it would provide legal protection. A woman would tell any prospective male sexual partner that she has an account, and the man would them be legally obliged to read its contents. That means that the woman would log in to her account and show its content to the man, or provide him with a print of its content. Failure to log in, or provide a print, would legally constitute refusal of all sexual contact.

The content of the account would be a list of conditions for sex, and failure to comply with the conditions would be a crime. It is a simple as that. The sex-card system would replace existing laws on rape, in most cases. The system would not displace the criminalisation of stereotypical rape (violent sexual assaults by strangers), nor would it displace the age of consent.

The sex-card conditions would include first of all, a list of sexual acts which are permitted. The default option would be no sex at all. Each woman could alter the conditions as she wished, or customise them for specific partners.

The sex-card would also specify the form of consent. That could be verbal consent immediately prior to sex, but the default option would be written consent, at least 24 hours prior to sex. That is primarily to avoid drunken sexual encounters, but even if both parties are sober it allows time to think, a cooling-off period. The woman could vary that period, to allow more time to think about what she wants – a week, months, or even years.

The system would also permit more stringent conditions. One is that a psychologist would assess whether the woman is intimidated by an unequal relationship with the man – a significant age difference, or lower social status, for instance. That is designed to avoid the later realisation, that her present self would not have consented to sexual encounters earlier in life. It would also be possible for the woman to specify that her potential partner be psychologically assessed, if she did not fully trust him. In both cases, the man would meet the costs.

Obviously this system would take all the spontaneity out of sex. That is what it is meant to do: many women do not want spontaneous sex. That want to be sure their boundaries are not violated, but they may be unsure of those boundaries. They don’t know exactly what their partner is going to do, or they are uneasy about their partner. They fear that something will go wrong, and under those circumstance it often does.

Many women experience sex as nothing more than abuse and rape. Many are traumatised by their sexual experiences, even if those did not include the stereotypical violent rape by a stranger.

I experienced something non consensual but decided to reframe it as something (anything!) other than rape. I decided that obviously I had let it happen and had made a series of decisions that led to this happening, and that I know myself to find sexual things pleasureable, and I wasn’t in pain after the fact…and therefore I must have wanted it. (Dworkin reference: she wanted it, they all do.) I knew this man was not particularly good for me and I would have preferred the situation to be rather diferent (um, caring whether I wanted to do this or not would have been a start) but I did not want to have been raped so I changed my self-definintion to be someone who wants sexual intercourse. I sometimes wonder if he was surprised that I called him and wanted to see him again, because even then I knew he knew he had done something not quite right. My reasons for not wanting sex must have been silly, stupid, childish, repressed…irrelevant. Because, you see, they were irrelevant to him. And he was older than little virginal me-pretending-to-be-an-adult-living-away-from-home-for-the-first-time, so he would know. I wasn’t bleeding and in pain, it must not have been that bad.

It wasn’t until I started really reading serious feminist stuff … a month or two ago that I realized that I was honest to goodness raped. Well, date raped which legitimately rapey in a way I refused to admit. I can now see the power dynamics and my naivity. And I can look back and see the small things that make it obvious now he intended to have sex with me no matter what I wanted, no way to tell what level of violence he would have used if I had been more physically resistent or had actually screamed. This incident happened MORE THAN TEN YEARS AGO. I looked back on this for TEN YEARS and made myself feel okay about it so it would NOT be rape. None the less, it was rape.

I’m now trying to untangle just how my being “okay” has effected me. I never told anyone enough about it who could have otherwise identified this as rape (if they weren’t caught by the rape culture narrative). Hell, I was seeing a psychotherapist at the time and did not tell her that I had sex for the first time that had spontaneously changed my long-standing decisions about having intercourse. I have never said no to sex since then. I have given enthusiastic consent and initiated sex far too fast in every one of my relationships since this time…because I was broken-in, yeah? Though it confirmed the messages I had already picked up from the rape culture and pornography, it thorougly skewed my attitude towards men, relationships, my own body, my sense of self-worth. I adopted a much more fatalistic view of my own power over my own life and goals. I went gradually downhill into a depressive episode (that I refused to attribute to this “sex”) and dropped out of college. Anyhow, I went through all that mostly to say, even being persuaded and being “okay” about sex afterward is not the end-all in determining if it was rape.

Comment at blog post Under Duress: Agency, Power and Consent, Part Two: “Yes”

Feminism speaks for such women, who have no reason to view sex as positive. The sex-card system, or a comparable system of legally enforced conditions, would allow them to choose the protection level they wish, even if it ‘takes all the fun out of sex’. The system is a deliberate break with the liberal tradition of ‘one law for all’ – uniform national laws intended to cover every contingency. In effect, the system allows every woman to write her own personal rape laws.

As with every form of differential protection, there is a danger that ‘less protection’ is misinterpreted as ‘permission’. There is a danger that women who don’t use the sex-card system are seen as ‘fair game’, and are subjected to more pressure from men to have sex. There are also valid reasons to avoid the scheme, since it requires participants to disclose their sexual preferences and partners to a government-controlled agency.

Nevertheless, it would be a great advance on current legislation and procedure. In cases of ‘date rape’, for instance, a woman must first convince the police and prosecutors that she unambiguously said ‘no’, and then see that assertion challenged in a court hearing, where inevitably the details of the incident are discussed. In some countries, such hearings are still public, and names of defendant and victim might be published in the media.

A sex-card system can not eliminate all ambiguity as to what happened during a sexual encounter: the only way to do that, would be to have it supervised and recorded by competent professionals. It would however drastically reduce the chance that women end up in situations which they do not control, and later regret.

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