Via Atrios, here is a National Review article on the law of rape.:
Pre-feminist common sense suggested that a woman who comes alone to a man’s hotel room late at night has already consented to sex with him, but on the all-or-nothing principle so dear to ideologues everywhere, feminist orthodoxy insists that the adoption of this rough-and-ready but extremely useful guide would be tantamount to saying that a woman who has slept with other men not her husband, or even who dresses provocatively has already consented to sex. And the feminist interpretation of the law is now almost uncontested in the courts. No means no — even though no one else hears it, even though everyone knows that it may mean yes — because feminists want to reserve to women the right and freedom to be indiscrete.
Three thoughts:
1) Corporate law firms at my school do a lot of on-campus recruiting, and one of the weirder aspects of the process is that they conduct one-on-one interviews in hotel rooms, often after dark. I wonder if my classmates know that they’re consenting to ravishment?
2) More seriously, there is a legitimate range of opinions about how to define consent in rape laws. The idea that “a woman who comes alone to a man’s hotel room late at night has already consented to sex with him” is way, way outside that range.
3) A very common argument against “no means no” is that “everybody knows”, and/or studies have shown, that women “say no when they really mean yes”. I don’t find this very convincing. I can buy that women say “no” when they mean “some other time” or “no, but maybe you can get me to change my mind” or “let’s talk some more, have a drink, and see what happens.” I never have, but it’s certainly plausible. I do not find it plausible that they say “no” meaning “you may now rip off my clothes and have your way with me,” and that’s the relevant question.
What a load of garbage. Think this guy ever got laid?
Criminal law should based on nice, clear, easy-to-understand standards — like “no.”
First off, I agree completely that the “no doesn’t always mean no” meme is utterly implausible in the case of a rape by a stranger or forcible rape.
But everything gets less clear to me when you’re talking about two people who are in a situation in which it’s plausible that they may want to have sex — the date rape scenario. Mix in a bit of alcohol, some immaturity, and a few crossed signals and you can have a situation where the woman doesn’t clearly convey that the “no”; the man doesn’t understand the “no”; or both. (Hell, you can even have a case where the woman says “yes” but really means “no” — something that a caring, perceptive guy might pick up on, but a clod or drunk might not.)
That has always been, for me, the problem with certain “Feminist” interpretations of rape laws — they reduce the problem to a very simple, and very inaccurate, black and white. Unfortunately, I don’t really have a solution.
von
the problem with certain “Feminist” interpretations of rape laws
BTW, so it’s clear, I put the “Feminist” in quotes b/c there’s no monolithic “Feminist” position on the subject. (Remembering my old Feminist Jurisprudence class from law school — a class in which I was the male. Pretty freakin’ sad.)
“a class in which I was the male.”
Uh, sole male. (Though I guess my first phrasing works, too, in a grunt-grunt caveman sense.)
von, re-reading his comment, forgets that he can always just go in to mt and delete the whole thing.
von, re-reading his comment, forgets that he can always just go in to mt and delete the whole thing.
Actually, I can’t. As it’s set up, I can only modify the comments to my own posts. So there it is.
Mix in a bit of alcohol, some immaturity, and a few crossed signals and you can have a situation where the woman doesn’t clearly convey that the “no”; the man doesn’t understand the “no”; or both.
The inherent problem here is that it’s difficult to hammer out a hard-and-fast principle. My experience with ‘date-rape’ has almost always skewed toward the more serious end, and the consistent element that carries from those anecdotes was a sense of entitlement. There are far, far too many men who apparently believe dinner and a movie, or whatever shape a date may take, create a presumption that sex will follow. Thus ‘mixed signals’ become far more incendiary because they’re being viewed through a prism where sex is somehow likely.
To that end I agree with you, Von, that it IS a fuzzy area. I don’t have the figures with me at present, but I recall that the majority of rapes are a) unreported and b) by someone known to the victim. If I had to speculate I would say that date-rape scenarios are proportionally less likely to be reported, simply due to social stigma. My solution for this would be to have Judges move consent standards more toward the explicit, because at least that way it starts rebutting the presumption I noted earlier.
It’s unbelievable that someone penned that in a national magazine.
“Pre-feminist common sense suggested that a woman who comes alone to a man’s hotel room late at night has already consented to sex with him”
I’m not even going to bother with a snide rejoinder or obvious extrapolation, because it’s just that ignorant.
Here’s my handy little guide to consent. If there is any remote chance whatsoever that after sex your partner will feel that she has been raped, you SHOULD NOT be having sex.
See? It’s easy.
Here’s my handy little guide to consent. If there is any remote chance whatsoever that after sex your partner will feel that she has been raped, you SHOULD NOT be having sex.
Well, I obviously agree with that. But I’m thinking more of situations in which neither party is thinking very clearly, and they don’t follow “BEST PRACTICES.”
Unfortunately, due to the obvious differences between the genders, situations where ‘neither party is thinking clearly’ really means ‘she isn’t thinking clearly’.
But I do not believe that liquor and music and a little ‘signal-crossing’ can turn a no into a yes or even into confusion. It can turn confusion into a yes, which is why college boys love that beer. But resistance is unmistakable. Overcoming resistance physically should get 0 tolerance.
We legally require that someone think a bit or have some clear-headed friends around before they start their car after they’ve been drinking. We can also legally require that they think a bit before they take someone else’s pants off.
Sidereal is dead on. If a woman going to a man’s room is a signal that he gets to call the shots for the rest of the night, the man’s invitation of the woman to the room signals he is so desperate to have her there that he doesn’t care that he doesn’t know her well enough to know what the consequences will be. So if there’s an abrogation of responsibilities, it’s mutual, and let’s not let the consequences fall all on one side.
I will say, though: there is a big difference between people arguing that behaviour is justified, and people arguing that it does not provide the basis for a felony conviction & serious sentence.
The law used to force rape victims to meet a ridiculously high burden of proof (you should read some old jury instructions if every you start pining for the “common sense” rules of the past) but that does not mean we can make an exception to “beyond a reasonable doubt”, and some of the more extreme feminist’ proposals would. I think it will be intrinsically difficult to meet that burden in some acquaintance rape cases even if the system is designed as well as possible; part of it is the nature of the crime and of jurors.
My favorite example of mixed signals: back in college, one night a women told me “don’t do that, you’ll turn me on too much.”
Sidereal, I’m sure what you’re disputing. I made this —
It can turn confusion into a yes, which is why college boys love that beer. But resistance is unmistakable. Overcoming resistance physically should get 0 tolerance.
— exact point in my original post.
I think it will be intrinsically difficult to meet that burden in some acquaintance rape cases even if the system is designed as well as possible; part of it is the nature of the crime and of jurors.
That’s an excellent point. But we still have to confront evidentiary questions (how much of the victim’s past comes in, etc.), that can color the outcome.
Well, “the man doesn’t understand the “no”” is in my model unacceptable. He has a legal burden to make every effort to listen for and understand any “no”s.
But I agree that there’s no clear lines to be drawn. It’s a tough subject, where you mix in intimate personal rights, typical adolescent biology, and vague definitions. And neither extreme of “it’s always the woman’s fault”ism (practiced by Islamofascists and readers of the National Review) or the “May I touch your hand? May I touch your nipple?” campus speech codes are satisfactory answers.
If you’re too drunk to understand the word ‘no’ then you are way to drunk for sex. I’m a man and I’ve said no and she understood it. She can say ‘no’ and that’s that, whether she ‘means’ it or not.
Well, “the man doesn’t understand the “no”” is in my model unacceptable.
If you’re too drunk to understand the word ‘no’ then you are way to drunk for sex.
All this assumes that the “no” is clear. It may not be — particularly if the women has also been drinking.
I’m not suggesting, btw, that this is a common occurrence. 95% of the time for 95% of people, “no” and “yes” are easy to distinguish, even when both parties are drunk. The tough case will be the rare case — but its not nonexistant.