Letters to the Editor
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Now that "I think I should go home" has turned into rape allegations, and is applauded at that by Agent Smith, we can see what this does to young women and feminism: they flee
Redefining what constitutes rape
By: By Sara Foley
Issue date: 1/28/03 Section: Opinion
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Due to efforts of women's rights activists in the past, rape has transitioned from a shameful and silent secret to a commonly accepted courtroom case, and a crime that more women are taking a stand against. While rape is a crime that women certainly have a right to press charges for, the definition has been contorted to fit the whims of women who regret what they did.
A California Supreme Court case ruled Jan. 6 that not only do women not have to say the word "no" for the case to be considered a rape, but they can say something as vague as, "I should go home." In addition, the case expands on the idea presented in similar cases in Maryland and North Carolina that once one partner expresses discontent, they must stop immediately, even when using such ambiguous terms.
According to the court report of People v. John Z., Laura T. was the only female at a party in March of 2000, and had gone into a bedroom to talk to the defendant. The two then engaged in various acts of foreplay, acts that she admitted reciprocating and enjoying. However, during intercourse, Laura changed her mind. Unable to express this clearly, she said a few times, "I should go home." Approximately four minutes after she expressed this, her assailant got up and assisted her in finding her clothes and leaving the party, according to the Los Angeles Times.
Although it is clear that Laura may have regretted some of her actions, she did not make it clear to her partner that she did not want to have sex with him. The combination of her indefinite word choice with the fact that a few moments previously, she had been participating with her partner and enjoying it, it is understandable that it may have taken more than a moment's notice for John to comprehend that this activity was no longer consensual.
Women of all ages should know not to expect a man to be a mind reader, but by bringing the consent for sex to the point of what someone intended to say, instead of what she did say, does just that. The equivocal, "I have to go home," could be broadly interpreted in later cases, to the point where almost any utterance could be translated as a channel to charge someone with rape. While a few cases might be justified, undefined terms such as these could cause a series of unjustly accused rapists around the country. If a woman truly believes she is being raped to the point of pressing charges, she should be able to make that known to her partner, not only by her word choice, but by her actions as well. Unclear phrases, such as Laura's "I should go home," can be misinterpreted as a plea for reassurance or urgency, and was by the defendant in this case, John told Fox news.
Furthermore, it is difficult to pinpoint the moment consensual sex transforms into an attack and a partner turns into a rapist. Although in many legal cases it has been decided that a woman may retract consent at any moment during intercourse, the amount of time allotted for the partner to grasp this change of circumstances is not factored in. John ceased pursuing intercourse with Laura four minutes after her protests of needing to go home, according to the court report. The court decided that four minutes was more than a reasonable amount of time for him to stop. However, considering the circumstances and Laura's unclear language, the time it may have taken him to comprehend she was no longer enjoying the act and wanted him to stop may have been that amount of time.
The lines are difficult to draw, and little distinction can possibly be made from 30 seconds to one minute to three minutes. "Immediately stop," the term that the court used, is as indefinite as the term the plaintiff used to urge him to do so.
The definition of rape has become hazier, and additional questions have arisen due to this case. For a case to be considered a rape, a certain amount of force should be present. Persistence, not force, was the problem in this case, according to Justice Janice Rogers Brown. At this point, it can be difficult to prevent regret from turning into rape accusations and hard to discern what actual terminology communicates "No." Unfortunately, this case only further complicated the system instead of clarifying it.
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@AKA Smith
"There are degrees of drunkenness. That is why suspect drivers have to blow into the Breathalyser." --AKA Smith
Yeah, that's true. So...in the case of "gray rape" or "drunken sex," all you have to do is have both perpetrators blow a breathalyzer before they engage in any first-, second-, or third-degree sexual contact, right? Then we know scientifically who's a "victim" and who's not. (We can ignore fourth-degree sexual contact because there's no legal penalty involved.)
Thanks to the war on drunk-driving, it's been pretty well decided that you can't determine how drunk someone is through "field testing," so someone who wants to have sex with someone else who has had a drink can *NEVER* assume (for legal purposes) that the drinker's behavior is indicative of consent.
That may not be so realistic, though, in practice. There are probably more people who are "criminals" using that definition than even potential victims.
Do you think we should be looking for solutions to these kinds of issues, or just underlining our definitions and repeating, "if everyone would just act right, there'd be no problem"?
Well, duh.
The unstated legal requirement that arises under such a model is that the GUY must always act right or become a rapist. The GAL doesn't have to act right. If she gets penetrated when she's drunk, even if she's screaming "pound me big boy," she's the victim of a criminal.
According to the legal definitions, there's no _functional_ "consent test" when alcohol is involved. By definition (applying the "drunks can't consent" rule), drunken sex is non-consensual, and thus, RAPE.
And yes, if that's TRUE, then it's rape if a guy fucks a drunken woman, and it's rape if a woman fucks a drunken man. (Something about the 14th Amendment and equal legal status under the eyes of the law comes to mind.)
Personally, I think the vast majority of our intellectual posturing on the subject is a whole boatload of nonsense. Dig it--human sexuality is hecka lot more complicated than our legal definitions about it are. Everyone wants to simplify every case into a prototype which can be generalized and applied to every future case.
That's just not going to work when you're talking about human behavior surrounding SEX. It's all a bit too ingrained in our biology.
The real issue seems to be that both men and women need to be educated about the other gender's expectations better. Women need to understand that the male sex-drive is not a particularly rational phenomenon. And men need to appreciate that women's pre-mating courtship behavior is similarly not particularly rational. And I'll try to be clear here: it's not rational for a man to believe that the woman who let him into her bed wants him to fuck her. And it's not rational for a woman to get naked and fool around with a man she doesn't want to fuck without *telling him in advance* that he's not getting laid.
Obviously, there is no solution at all for the problem of the woman who cannot legally determine whether she wants to fuck a guy or not. Er...maybe therapy.
I think we'll keep muddling along with our current approach, and we'll keep arguing about who has the best ideas, but this is not a problem that can be solved by changing simple legal institutions or definitions. It'll work itself out over the course of a few hundred years, when our collective mores catch up to our levels of industrialization and ethics.