At Feministe, a guest post by Rachel Hills (originally published at her own blog) ignited an acrimonious discussion on rape, gender, and the stereotype that women can’t rape men. Rachel’s post drew on a story that Pluralist recounted on Feministing’s community blog:
Since November by best friend has been having relationship problems. She is cis and het as is her boyfriend and they’ve been a committed and monogamous relationship for about 4 years now. The whole story is too long to recount, but as of a week ago they began a “break they need in order to stay together”.
Suffice it to say the first two days were hellish as I talked to one of the loves my life breaking down over the phone. But during one of the more lucid moments, she told me that – among a lot of alleged grievances – she had (unknowingly) forced her boyfriend into sex.
Apparently he had said things along the lines of “I’m too tired right now, let’s just go to sleep” and she had continued to proposition him thinking “welll, this will help you sleep better!” My immediate reaction was that there was no way she had coerced or pressured him into sex. After all, he should’ve just said “No really, I don’t want to do this right now” if she kept at it. It was his fault for not stopping the encounter.
And then I realised that had this been a woman in his place – not to mention my best friend – I would never have given this consideration. I was victim-blaming, basing my assumptions in tropes of male hypersexuality and female passivity. She didn’t handcuff him to a heater and force-feed him viagra . She’s a nice girl, she couldn’t have done that !
The main point of Rachel’s commentary was that yes, women can rape men, and yes, they can commit many other lesser forms of sexual violation. However, she wasn’t willing to say that Pluralist’s friend was guilty of rape:
Now, I know at least one woman who has physically forced sex upon a man who had repeatedly told her he didn’t want to have sex with her and was pretty pissed off with her afterwards – rape in no uncertain terms, if the genders were reversed. But the situation Pluralist talks about is a little less obvious than that. It’s unethical, certainly, and inconsiderate, and you shouldn’t do it, but I’d argue it’s technically not classified as sexual assault (if you disagree, please debate it in the comments).
The comments degenerated into a lot of name-calling, along with lots of valid and important arguments. Among the polarized comments (which made up the bulk of the thread), some folks were arguing that of course it’s rape and if you didn’t agree, well you must be a RAPE APOLOGIST! (Yelling with caps, the quickest way to get my old eyes to tune out!) People at the other pole said well, in an long-term, ongoing relationship, wheedling can be coercive, but it’s often a normal part of negotiating about sex. The thread at Feministing was similarly polarized.
Stepping back from the shouting for a moment, I think it’s helpful to clarify some terms. Each state defines rape and sexual assault, so for purposes of discussion I’ll draw on my own state’s laws, since I don’t know where Pluralist’s friend lives, and Ohio tends to a pretty good barometer of middle-of-the-road America.
In Ohio, “rape” is defined as follows (in the absence of statutory rape, intoxication, or other mental factors that could impair consent):
No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.
Note that this definition doesn’t define rape narrowly as penetration. So yes, under this definition, a woman can definitely rape a man. (I’m going to set aside trans issues just because I don’t know enough about how the law would be applied. However, note that the law doesn’t specify gender, so it evidently ought to apply to woman-on-woman assaults, cis-woman-on-trans-man assault, and any other imaginable combination.)
Now, back to Pluralist’s friend. At no point does Pluralist describe anything that can be described as “force or threat of force.”
But doesn’t “no mean no”? Well, Ohio law doesn’t recognize a simple “no” as adequate unless the other person uses at least “threat of force” to override it. So in Ohio, at least, the law does not categorize an act as “rape” every time there’s a lack of consent, nor even when the lack of consent has been clearly and explicitly communicated. (Other states are liable to vary on this point.) Perhaps we’d like to reform the law to include any instance where one person persists in ignoring the other’s “no!” but current law doesn’t go that far.
Instead, Ohio law defines additional crimes that fall under the rubric of “sex offenses.” Among these are sexual battery, gross sexual imposition, and sexual imposition. All of these crimes make provisions for underage victims, intoxication, mental incapacitation, and abuse of power by such authority figures as therapists, clergy, etc. I’ll set those aside here because they don’t apply to the case Pluralist raised.
Sexual battery must include an element of coercion:
(1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.
(2) The offender knows that the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired.
Part (2) might well apply to some of the experiences people described in the Feministe thread of feeling unable to say no to their partners due to prior trauma or abuse. However, it only would apply if the partner knew about the problem. The law doesn’t expect people to be mind-readers. Based on Pluralist’s account, “sexual battery” wouldn’t apply to her friend’s actions, as there’s no indication that her boyfriend wasn’t “a person of ordinary resolution.”
Gross sexual imposition (ORC 2907.05), like rape, again requires “force or threat of force,” so it too fails to match Pluralist’s friend’s actions. But what about simple sexual imposition? Now we’re getting warmer:
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.
(2) The offender knows that the other person’s, or one of the other person’s, ability to appraise the nature of or control the offender’s or touching person’s conduct is substantially impaired.
(3) The offender knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact.
(4) The other person, or one of the other persons, is thirteen years of age or older but less than sixteen years of age, whether or not the offender knows the age of such person, and the offender is at least eighteen years of age and four or more years older than such other person.
(5) The offender is a mental health professional, the other person or one of the other persons is a mental health client or patient of the offender, and the offender induces the other person who is the client or patient to submit by falsely representing to the other person who is the client or patient that the sexual contact is necessary for mental health treatment purposes.
(B) No person shall be convicted of a violation of this section solely upon the victim’s testimony unsupported by other evidence.
(C) Whoever violates this section is guilty of sexual imposition, a misdemeanor of the third degree. If the offender previously has been convicted of a violation of this section or of section 2907.02, 2907.03, 2907.04, 2907.05, or 2907.12 of the Revised Code, a violation of this section is a misdemeanor of the first degree.
It looks like Pluralist’s friend might well have violated (1), by engaging in conduct she knew to be “offfensive to the other person.” She might well have been “reckless in that regard.”
Let’s assume for the sake of argument that she was indeed reckless. I’m skeptical of definitive judgments, because we haven’t heard directly from Pluralist’s friend or her boyfriend, but let’s just take the story at face value. We now have a name for the act – sexual imposition. We have a penalty that can theoretically be imposed. In this particular case, though, it likely would be impossible to prosecute on account of (B), which requires other evidence – most likely, a third party – to substantiate the charge.
So it’s possible that a form of sexual assault occurred, but it certainly wasn’t rape. (And while state laws vary, I’d be surprised if any state in the U.S. would consider this incident rape. If you know of exceptions, please post about them in comments, and please include citations.)
Is this just legal hair-splitting? Well, no. It clarifies a basis for Rachel Hills’ position and the common-sense reaction that lots of commenters articulated at Feministe: Pluralist’s friend wronged her boyfriend and maybe that wrong rises to the level of sexual assault, but we don’t know enough to say for sure. However, it’s definitely overblown to brand Pluralist’s friend a rapist. The law draws these distinctions because very few of us – including most feminists, I’d wager – really want to imprison someone for twenty-to-life for the behavior she exhibited. In addition, calling her behavior “rape” trivializes the experiences of those who’ve actually been pressed into unwanted sexual activities by force or the threat thereof. (For the record, this is not a blanket endorsement of the law in its current form. I’m merely affirming that it’s legally and ethically appropriate to distinguish different forms of sex crimes of varying severity.)
I’d say the same, by the way, if the offender were a man and his partner a woman. This is not a gendered argument, in legal terms. I do think that sexual assault is gendered culturally, in at least two ways: 1) Women as a class suffer from a kind of “sexual terrorism” – an ongoing fear of rape – that doesn’t affect most men as a class. 2) We’ve been socialized to think that men are unrapeable because they’re supposedly always up for it. As a result, we’ve got a new rape myth: no never means no, coming from a man. However, the legal standard needs to be consistent for men and women alike, as well as for cis and trans people.
But even if Pluralist’s friend didn’t commit sexual assault, that doesn’t mean that we should condone her actions, either. At a minimum she appears to have acted manipulatively. At a minimum she behaved like an asshole. Just because there’s no legal term for “assholery” doesn’t make it okay.
Instead, stories like this show that the law is a necessary but not sufficient instrument for transforming sexual relations. We need a feminist sexual ethics as well. To that end, I teach my students about the importance of enthusiastic consent. If they take it to heart, their chances of committing a crime ought to be nil.
And yet, as the discussion at Feministe shows, there’s an area between sexual assault and enthusiastic consent. I don’t want to call it a gray area, because I don’t want to endorse the notion of “gray rape” (which is just a euphemism for defining acquaintance rape out of existence). Still, people are going to continue having sex under conditions of consent that’s defective or problematic or just lukewarm. We need to find ways to discuss this problem without either trivializing it or calling it “rape” or “assault.” In other words, we need a feminist sexual ethics that recognizes the complexity of social and sexual relations, affirms pleasure and autonomy, and emphasizes compassion and communication. “Yes means yes” is a good start, but it’s only a start.