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 !
(More here.)
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).
(Lots more here, plus the aforementioned acrimonious comment thread.)
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.
(ORC 2907.06, Sexual Imposition – unabridged so you can judge for yourself)
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.
Patron cat of Kittywampus (1985-2001)
This is a fantastic post. I agree with you: whilst the application of legal boundaries is extremely important, it is not the only answer. Aside from the fact that there will always be instances which fall outside of the law, most of them that fall just inside of it (like, perhaps this one) will be beyond the scope of prosecution anyway. And what I hear sometimes from friends who’ve been in these sorts of positions (like this woman’s boyfriend) is certainly not that they want the law, or a definition, to help them: it’s that they want better relationships and more open communication. The exact same thing that my teenage students used to tell me they wanted to learn from sex-ed – less of the what and how and much more of the nuances of negotiation and communication in and how these can work in respectful relationships.
Thanks for the compliment; I thought it was one of my most pedantic posts. If I were an actual lawyer, I could probably find a way to write about this that’s not so plodding. As it is, I’m just trying to work my way into the law as a layperson, and so plod I must.
Yes, there are plenty of situations where the law doesn’t apply, or a case is unprovable. Sometimes this is reason to call for reform, but often it’s a function of the complexity and messiness of human relationship.
We never get to hear how the boyfriend defined the situation. Nor do we know exactly how he feels, except that he’s still unhappy about it even months later – an indicator that something bad really did happen. My guess is that he wants his girlfriend to think hard about what happen, apologize sincerely, and promise to behave differently in the future. That might be part of why they needed a break. I may be just projecting, though, because I imagine that’s what I’d want if a male partner similarly pressured me.
I agree completely about what’s needed in sex ed. People *do* need basic info like how to use a condom. I’ve had many college students tell me their high school curriculum omitted that, or spread misinformation about condoms. Then again, I’m in the U.S. and you’re not. Imagine how much harder your job would’ve been here! But anyway, condoms should only be one starting point. People need to learn how to talk openly about sex. I’m not sure the school setting will ever be able to do this right, again especially in the U.S. with our abstinence-only whackjobs. Even under the best circumstances, you might very well have an unwilling gym teacher showing kids how to put a condom on a banana. I can imagine some sort of peer education being effective in learning to communicate about desires. Hmm, that might not be a bad model for my uni, which is going to establish a rape prevention program for first-year students.
You say pedantic, I say methodical. And for a subject so fraught with ALL CAPS impulses (in both directions) I think methodical is the only way to go.
So very, very nicely put, Sungold!
As you know I’m a bit militant about the necessity, but also the insufficiency, of the law when it comes to failing to respect someone’s decision to decline sexual overtures. And I agree with you that at least by Ohio standards what Pluralist’s friend did would be far closer to the legal definition of sexual imposition than the legal definition of rape. That said she did disregard her partner’s decision and employed leverage to extract sex when he was disinclined to have it. So so because of all that, plus the fact that he didn’t laugh it off later, as you say, yeah, she was at best an asshole.
You probably noticed I engaged heavily in the thread at Feministe, although as you also noticed a lot of people weren’t interested in engagement. One of the big things that came out of the conversation for me was the insight that we don’t take a lot of “gray area” assault seriously because we have such a gendered outlook on the methods sexual assault. Specifically, as with the perhaps less controversial matter of bullying, we have a tendency to focus on means of assault that employ stereotypical male attributes (violence, threats, physical intimidation, and intoxication) while discounting more gendered-female relational aggression, disclosure threats, exclusion, alliance building, and so on… many of which have turned up in the various comment threads as leverage women have applied to their partners either in order to get them into bed or as consequences of refusing.
The trick being that since those methods are seen as “feminine” and since they’re disregarded when women do it, they’re also disregarded when men use it. Which also happens to be where the word “gray area” can start showing up.
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One quibble that adding relational aggression to the mix would be that words like “if you’re not man enough”or “I’m starting to wonder if you’re gay,” with an expressed or implied threat that the information will be shared with friends starts to sound like clause 1 of Ohio’s sexual battery statute: “The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.” We don’t know what Pluralist’s friend said to her partner, and I’m giving her all the benefit of the doubt. As does the much better informed Pluralist in her original post. But I do know other women have raised those concerns and in homophobic or even mildly macho culture men can find those sorts of reputational threats very intimidating indeed. The point being that there’s more room to blur women’s actions against men upward without bringing in the socially-recognized tools men more classically use for coercing sex.
And to return to my previous point, men, particularly passive/aggressive “NiceGuys,” who would probably never use violence or even intoxication to coerce sex may still use those kinds of relational-aggressive methods to force sex as well. Which is why I think it’s important to press the issue — not just because women are “getting away” with it (even though very often they are) but because men are as well. And since pretty much by-definition such aggression reflects disregard for the recipient’s decision it needs to be better understood and actively discouraged.
figleaf
Hi figleaf – and thanks for your very thoughtful comment. I think one of the reasons people didn’t engage with you more in the Feministe thread (which I read from start to bitter end) is that you were NOT writing in ALL CAPS. Personally, I start to tune out for purely visual reasons when people start yelling like that, but there are some people who only react when the volume’s turned up to 11.
I’d like to suggest abandoning the term “gray area,” because – as I mentioned in my post – it is far too closely associated with the idea of “gray rape,” which has been used to delegitimize acquaintance rape. I think I know what you mean with it: the area between uncomplicated, full-fledged consent on the one hand, and criminal conduct on the other. It’s just that the word “gray” has so much baggage, I think we’d be wise to drop it.
Beyond that, I think it might make sense to try to unpack some of that in-between area, because there’s quite a wide spectrum of behavior that’s neither criminal nor ethically good. Consent can be problematic in a variety of ways, and to varying degree.
As for the law, I just spent a couple of hours rummaging around in LexisNexis and Google, and I don’t think there’s a snowball’s chance that the kind of bullying you describe would ever fall under the heading of sexual battery. § 2907.03(A)(1) reads: “The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.” Courts have mostly used this as a fallback when rape charges didn’t stick because mens rea couldn’t be adequately proven to meet the standard of “purposely,” but the defendant nonetheless appeared to have acted “knowingly.” This does feel like legal hair-splitting to me as a non-lawyer, but apparently the bar is set lower for “knowingly.” Ohio case law does specify that coercion need not entail threat of force, but coercion is only “somewhat” broader than force (State of Ohio v. Wilkins, 1980). I found one case in which the defendant apparently applied coercion by threatening to call the cops and accuse the victim with breaking and entering (Ohio v. Lenzie Taylor, 2001).
So Ohio case law has apparently held that “a person of ordinary resolution” would be able to resist the bullying that you mention. Just by way of comparison Tennessee law defines coercion with respect to sexual battery as including the threat of kidnapping, extortion, force or violence to be performed immediately or in the future.
Also, when you say that someone may “use those kinds of relational-aggressive methods to force sex,” you’re eliding force with coercion. That still leaves open the question of how ugly coercion has to be before it’s criminalized. But it’s definitely muddying the waters to use “force” and “coercion” interchageably.
Frankly, I think it’s a good thing that we are not throwing people into jail for wheedling or pestering their partner. Would you seriously want to charge people with a felony for trying to manipulate their partners verbally by suggesting they might be gay? Of course this is shitty behavior. Of course we should ethically condemn it. But if you want to define this as sexual battery, then we’d end up jailing every teenaged boy who ever convinced his girlfriend to have sex by saying, “If you loved me, you’d do it.” Of course this is reprehensible, and we need to change the culture in which that sort of manipulation is normalized. But do you want to do this through education, or by throwing people en masse into prison?
Interesting post. A couple of thoughts: First, lawyers don’t necessarily write engaging, witty stuff about law. Some do, but I think that in run-of-the-mill criminal court cases (which most cases are), good judges are concerned with seeing that each essential element of crime has/has not been fulfilled, and the result is therefore often plodding and methodical. Of course, justice that involves plodding, methodical examination of each case against the relevant facts is probably preferable to any other sort, not least because it ensures a rather uniform application of laws.
Second, there are a lot of things that laws and courts are not very well-suited to evaluating and rendering judgment about. The on-going negotiation that is an integral part of intimate relationships is pretty clearly one of those things. Given how much in our criminal justice system hangs on personal wealth (as well as physical attractiveness of the defendant — do you remember the preppie killer in the 1980s?), I’d rather leave the courts to deal with the sorts of serious crimes they are relatively better at adjudicating. The determination of whether force or threat of force was used is much more straightforward than a determination about what types of contact are “offensive” in various contexts.
As you note, certain behaviors make one an asshole, but being an asshole in most cases should not make one into a criminal. I suspect that many (if not most?) people are, at some point or other, assholes to their partners in an intimate relationship. I would like to think that most of the time people are assholes because they are immature or they haven’t learned productive strategies for navigating the difficult aspects of intimate relationships. I’ve certainly been an asshole at various times, and I’ve also been on the receiving end of asshole behavior, although both happen much less often now than when I was in my 20s (which perhaps is cause for hope). Sure, it really sucks to be on the receiving end of asshole behavior, but a court will never be in a position to offer any type of meaningful remedy or to instill either party with wisdom or grace.
If courts could instill wisdom or grace, we’d have a much different world. But they can’t, and so it’s a shame when they are put in the position of being asked to do that. Why do rich kids go to rehab and poor kids go to jail? Why do rich defendants bond out of jail for minor offenses and poor defendants plead guilty because they can’t make bond and can’t afford to sit for months in jail awaiting trial? I wonder who pleads guilty to the “crime” of simple sexual imposition for “offensive” behavior? I don’t know, but I have a couple of ideas that I’d be interested in comparing against the facts.
Oh, yes, I read some really dry stuff while I was trying to see how the law is being applied. And you’re right, dry is better than sloppy!
If you look at lists of Ohio’s sex offenders, overwhelmingly the people convicted of gross sexual imposition and sexual battery have messed with underage kids. Simple sexual imposition doesn’t show up on those lists. It is basically applied in cases where someone has been sexually groped without consent. Because additional corroborating evidence is required for conviction, it’s unlikely that it can be used for behavior that occurred in private.
I agree that assholishness generally declines over time, or at least that’s been my experience, too. All of us are guilty of treating a partner badly at one time or another. Obviously this happens in long-term relationships, too, and here again the courts can’t do much except clean up the messes when a married couple chooses to divorce. Heck, even counseling often doesn’t help once a relationship has gone south.
Rather than relying on courts to litigate “offensive” behavior, we would do better to seek “wisdom and grace” elsewhere. And that’s where ethics comes in.
Thanks so much for commenting!
Well I’m a lawyer/law teacher and I’d give your post to my students any day of the week. Very nicely done indeed. As has been noted in comments, the law is not only sometimes an ass, but the criminal law is a clumsy tool for responding to such fine-tuned difficulties as have been discussed at Feministe. In fact, I find it problemmatic that so many people turn to law to define elements of their interpersonal interactions since law, in the area of suchrelationships, has been found wanting for so long – in fact, I just don’t think it’s suited to the job, though I certainly commit myself to doing what I can to make it behave appropriately. I just want to wonder something out loud here – I haven’t thought much about it – I wonder if relatively powerless folk, and I emphasize the “relatively”, don’t resort to legalistic arguments as a way to claim authority in the discussion, since moral and ethical claims are, or have become, so difficult to substantiate and something more is wanted than “personal opinion”? In the area of sexual relations, this is certainly not a time of broad-based consensus about what is “good” and what is “bad”.
Wow, Hysperia – I didn’t know you’re trained in law, and I’m partly flabbergasted, because I always think of you as having an artistic and poetic soul. Partly I’m completely unsurprised, because you also have a highly methodical mind. Anyway, I’m glad if the post isn’t a trainwreck, because it turns up on the Google with certain search terms.
I think you’re right that people who are “relatively” disempowered may turn to the law as a defender of last resort – or maybe even of first resort – for lack of more promising strategies. Regarding feminism specifically, Catharine MacKinnon’s influence is probably a big part of this. She’s the most prominent living theorist of the dangers of sex, in my opinion. And she’s an attorney, so the law is her instrument. I’m not saying we shouldn’t use the law, only that it has fairly stark limitation, as you say.
I don’t think it’s actually so hard to substantiate ethical claims, but appealing to the law may *appear* to be easier and more clear-cut. The law may appear to be objective, though of course it will always be a reflection of values, however distorted and ungainly those values may become once they’re litigated.
I am not quite convinced that Ohio’s sexual battery law is adequately clear because it leaves “coercion” wide open. It clearly includes “force or the threat of force” but how much further does it go? When you look at who is actually convicted under it, they fall into three main groups: people who sexually messed with children; authority figures like teachers (lots of overlap with the first category); and people who were originally charged with rape and were either convicted on the lesser charge of sexual battery or plea bargained down to it. None of these bear any resemblance to Pluralist’s friend and her actions.
What a horrible, self-righteous thread that is.
I’ve been estranged from feminism lately, and that thread has made it significantly worse.
Why do so many feminists have to be so damn *self-righteous*….Christ, do they realize they sound just like the fundamentalists in their uncompromising absolutism?
And if you don’t know what “sex class” means, why are you even posting on a feminist blog? BEEP–disqualified! GO HOME!
grumbles…
Daisy, someone lately was talking about “fundamentalist feminists.” Oh – now I remember – it’s a term Laura Agustin uses in her book on migrancy and sex work. She applies it to MacKinnon et al., and I am quite sure she didn’t mean it to apply to the Feministe thread. But it’s an intriguing concept that I think applies quite well to many of those who call themselves “radical feminists” online.
While the people involved weren’t the “radfems,” we still saw some of that absolutism in the Feministe thread, for sure. And while figleaf says the ALL CAPS tone went in both directions, I can’t agree. Lots of people made statements that were partially right and partially boneheaded, and that does go for both poles of the debate. However, only one side resorted to yelling, name-calling, and shaming. At least, that’s how I read it.
I couldn’t possibly be bothered with Feministe (in general), but I’m also a lawyer and very grateful for your sharp analysis of these issues. They are important and complicated matters that deserve civil discussion. I don’t have anything more to add, just THANK YOU.
And all I can say is that I’m flattered beyond all reason that you’re now the second lawyer to say kind things about this post, which is very much the work of a layperson. So thank YOU!