***TRIGGER WARNING***
This post will talk about some legal details of rape and rape cases, and is primarily focused on America.
I have been thinking recently about the ways that rape is discussed in the media, triggered by the Polanski case.
Specifically, Whoopi Goldberg's statement that it wasn't "rape-rape".
What is "rape-rape"? From her tone, I feel what she is saying is that it's a questionable sexual act, but not actually rape . Certainly something is not quite right, but it's too far to be called rape .
The details of the Polanski case are not really the issue, though. What really matters, for the purpose of this post, is how the issue is discussed. How the media and people we know view rape, and talk about it.
This is important, because these are the people who will judge rape victims, in courts of law and in their lives. They will make these judgments on the people around them and help to form others' opinions.
Rape, in most people's minds, seems to be a violent act. It cannot be "rape" unless the victim is young, female, alone (unless it's a multiple-perpetrator rape), not sexually promiscuous, sober, dressed properly (and not a sex worker, even if she is dressed properly), generally white, the perpetrator is unknown to them, and she fought as hard as she could, and never spoke to the perpetrator again. That's "real" rape.
But clearly, that isn't the only scenario in which rape is committed. Anyone can be assaulted or raped. It doesn't require age, sex, sexual preferences, experience, clothing or prior knowledge to negate what really matters: consent.
There are situations in which the victim knows his or her assailant, has previously had sexual relations with them, didn't receive any visible physical injuries, or may even try to remain friends or partners with the assailant.
These kinds of details make a difference in how the rape is committed. Some rapes are planned in advance. Some are spontaneous. Some are committed with the intent to harm and humiliate a specific victim, and some are committed just as an outlash of misogyny or hatred.
My comparison is murder. While in every murder, a person (or more than one) dies. But we have different descriptors of murder, and different legal categories. Murder in the first degree is not the same as murder in the third degree. This can help reveal some of the gray in these cases. Is a person who accidentally kills someone the same as a person who plans out an elaborate murder? Of course not. Why should other crimes against a person be different?
Not all rape cases are equal. We do appear to have differences between some rapes, with statutory rape being the most apparent in my mind. But wouldn't it be useful to have categories of rape, or at least modifications, such as "rape involving intoxicating substance" or "rape and violent assault" in order to separate the idea of "rape" being a violent assault in itself? Would this better bring the focus to the lack of consent, or would this hurt rape victims?
I don't have the strongest understanding of how the legal system works. I am not sure this would be possible, or what kinds of categories would be useful. I would never want to suggest something that would be turned against someone in court, but it seems to me that the distinctions in murder cases can help make juries more willing to convict (presumably) guilty parties. People seem to be unwilling to label someone a "rapist", because it doesn't match the idea of "rapist" that they have. Would categorizing rape cases based on specific criteria help or hurt rape victims?
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I would worry that if rape were shuffled into degrees or categories, it would encourage trivialization of certain situations that already bring so much grief and anxiety to victims. What we need to encourage, and instill in young people, is that rape and assault are wrong. Period. Regardless of circumstances. If we start a hierarchy of rape, it is insulting to survivors.
That was part of my concern. I worried that it might cause deliberation over details in order to get a lighter sentence, but I felt that it might be able to address some of the issues of how "real" rape is treated versus "gray" rape.
I did not suggest it as a "hierarchy" in order to insult survivors. I do not feel that the degrees attached to murder insult the families of murder victims. They are intended to differentiate between different situations, and I feel that rape charges might be better served this way. It was not suggested in the spirit of hurting survivors.
Of course, education about rape and assault is essential, but it can never be completely eradicated. My question was about the legal ramifications and their effect on society's perception, not about the lack of education. Clearly, that is a tool that also needs to be used, but that will not be the only tool in the arsenal during court proceedings.
I didn't think you were advocating a hierarchy of rape,I was just answering your question about how I feel about degrees of rape. I think assigning a different level of punishment would be like saying that some rapes and assaults are less traumatic than others, and I just feel definitions like that are very personal to survivors and should only be made by themselves.
"... and I just feel definitions like that are very personal to survivors and should only be made by themselves."
I completely understand this line of thinking. We do not want to minimize the experiences of one woman by identifying precisely which scenarios are deserving of greater punishment.
But, I think we need to differentiate between the legalities and the experiences themselves. Legal proceedings, unlike trauma counseling sessions, require extremely precise definitions. It is not possible to allow the victim to determine the legal definition of a crime. Legally, a crime cannot be called "rape" simply because the victim says it was rape. Allowing for loose legal definitions of the term "rape" could contribute to lack of prosecutions and failures to convict.
People do not minimize the trauma felt by the families of victims of manslaughter because it wasn't 1st degree murder (i.e. "at least it wasn't premeditated"), and I don't think they would minimize the trauma felt by a victim of a non-1st-degree rape.
As it stands now, only those rapes fitting within the stereotypical definition of "rape" are prosecuted (non-acquaintance, dark alley, violent, etc.). Most rapes that would likely fall into lesser categories are simply ignored, not prosecuted, and not convicted. This could be due to high sentences (juries seem less likely to want to throw a rapist in jail for 30-years for non-stereotypical rapes).
Differentiating criminal rape standards could be a step toward achieving justice in cases that are currently not prosecuted, just as differentiating murder standards allows for convictions on less-heinous murders. It would adjust the standard of proof, and exactly what elements of the crime are required. It would allow prosecutorial latitude in plea bargains. It would give prosecutors more options in pursuing a criminal for whom they cannot prove the highest criminal rape. It would bring to light rapists that are currently overlooked by the law and the courts.
It sounds like an idea that has some merit.
kbz
I think you captured what I was trying to get across. I think there need to be far more resources for victims of crimes, violent or not, to help them process what has happened and help them recover. While I think court proceedings should be sensitive to certain issues, it is not a therapist. But as someone pointed out, these apparently already exist, which I had no idea, even being a crisis line counselor. No one had told me.
I would wonder how useful they are in describing criminal acts, and if they could be used to help people understand the complexities of rape.
Rape, like a lot of taboo subjects, has never been analyzed in any cultural sense enough that anyone appreciates or understands nuance. The biggest grey area, I think, is intent.
Some assume that rape must purely be defined as a male who wants to have sex with a woman who has refused to give consent and who uses violence or the threat of violence to achieve what he wants. Some assume that rape is purely motivated by sadistic ends---the love of inflicting pain by the perpetrator and a simultaneous desire to control the victim. It's often tough to know where one of these interpretations begins and another ends, and which of these is a clear-cut motive because we have not yet been able to figure out how to read minds.
I agree. Consent may not always be clear to the people who are giving it. I have had more than one client say that she wasn't sure how she felt at the time, or that she gave consent... she thinks. That's not to say what happened wasn't rape, but to say that some victims exist that feel conflicted about what happened. If the person in the situation isn't completely sure, it can be difficult for outsiders to understand, as well.
While we cannot fully understand intent, just as with murder, we can make logical guesses. Did someone plan this out beforehand (premeditated, I believe it's called)? Was it spontaneous? Does that matter? I think legally, it does, but I can also understand why someone might disagree.
perhaps this is because our tendency to victim-blame leads victims to blame themselves, though, no? example:
the first two times i was sexually assaulted i didn't really understand what had happened to me as sexual assault. it was before i had been exposed to this type of discourse, and before i understood the idea that consent is the presence of yes rather than the absence of no.
so i really wondered if i had given consent. of course, i hadn't. in incident #1, i walked my date to his car, and he proceeded to pin me against it and not let me go even though i was frozen stiff in fear. finally i wriggled free. i told myself, ok, well, no biggie; he just sort of had groped me, but i mean, it's a DATE, and i walked him to his CAR so i guess he thought that's what i wanted?
and the second incident was shortly thereafter and similar.
the point i'm making is: i did NOT give consent. no way hosay. but i can see how women can talk themselves into victim blaming and convince themselves they DID give consent because they think that consent is the absence of a certain kind of no, versus the presence of yes.
Legally, there is already a hierarchy of sexual assault.
That is why there are degrees attached to sexual assault charges.
I did not know this. As I said in the post, I don't have the strongest grasp on the legal system. But thank you! That is something I need to learn more about.
Here is a link to the Alaska Criminal Code, specifically crimes against a person:
http://touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter41.htm
Section 410 links to Sexual Assault in the First Degree... simply put it is sexual penetration.
S.A. in the Second is basically sexual contact.
Starting at Section 434 you get to the Sexual Assaults against a Minor (S.A.M.) which makes a distinction between the age of the victim, suspect, and the age gaps between the two in addition to the sexual contact when designating the degree of assault.
But yeah, if you want to increase your knowledge, spend some time looking at the laws of your own state, and then compare them to the laws of another... or find a site that aggregates the info for ya.
True. And it depends what state you are prosecuting under.
For example, to prosecute one sexual assault I've experienced in Pennsylvania, where it occurred, I would be bringing charges for Aggravated Indecent Assault, a class 2 Felony. If it had happened in say...Massachusetts, I would be bringing charges for Rape, a class 1 Felony. Ridiculous. I think there should be a nationalized definition, but I understand why many disagree.
yeah, each state defines rape and sexual assault differently, but they all have degrees.
first degree rape is the most serious, and carries the most serious penalties. then it proceeds down, often to 4th and 5th degrees.
then, there is usually also a sexual assault crime, from 1st to 4th or 5th degree, the key difference from rape often being lack of penetrative sexual contact.
It definitely makes sense to have different degrees of legal rape and sexual assault, depending on the action. and statutory rape shouldn't even be in the same league, and is often a wrongheaded law that is used to target someone a prosecutor doesnt like, such as a young male of color.
Thank you, as well! I did not know this at all. I wonder if there would be a way for this to be discussed in a larger sphere. I think the average American can probably guess the difference between a first and third degree murder (and manslaughter), but I don't think most people would know about the degrees of sexual assault.
This is very useful information. I will be doing more research on this.
One thing that really irks me about sexual assault laws is that still--STILL--in several states, including California, marital rape is defined and prosecuted differently than any other rape. Some states still have different sentences (read: more lenient) for spousal rape.
bad
Given two scenarios, one in which the victim freezes up and does not say "no", and one in which the the victim says no firmly and clearly multiple times, but does not physically resist her assailant, do we feel that the two perpetrators deserve equal punishment? Do we feel that they deserve equal punishment to a perpetrator who drugged his victim with intent?
In Canada, penetration is irrelevant legally and there is no crime of "rape" per se and the law is written in a gender neutral manner.
What you have is degrees of sexual assault that become more serious depending on the nature of the coercion or physical force used.
At present, there are three offences:
(a) sexual assault; (b) sexual assault with a weapon, threats to a third party, or
causing bodily harm; and (c) aggravated sexual assault.
While the onus remains on the accused to prove consent, the law in Canada allows an accused to be found not guilty by reason of an honest but mistaken belief that there was consent.
Some argue for the Scottish approach where it is sufficient to show that the accused ought to have known there was no consent and by statute offers no defense where:
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or willful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known
to the accused at the time, to ascertain that the complainant was consenting.
We do categorize sexual assaults based on several factors. We do this for nearly every criminal offense in the US. If you look up "sexual assault" in your state's criminal code, you'll see an example of this (although it's sort of legal-ese).
Most sexual assault cases never see the inside of a courtroom. The majority of criminal cases, like the Polanski case, are resolved through plea bargains.
The intricacies of these cases aren't so difficult to explain or understand. I would love to have more fundamental explanations of the criminal justice process on feministing... maybe a "sexual assault from beginning to end" primer would be a good beginning!
That would be awesome. I imagine that it would be helpful to many people on here, as well. I've seen many posts from survivors or allies of survivors, wanting to know how to help, and knowing the legal process might be a good step along the way.
Even though different areas have different laws, maybe a way to find those laws for your state could point people in the right direction.