In my last post, which discussed the racism behind the conviction of a Palestinian man, Sabbar Kashur, of “rape by deception”, I promised to address the fundamental problems of “rape by deception” in a separate post. I deferred this for two reasons: First, I wanted to address issues of racism and purity separately (insofar as possible). Second, I intend the present post to be the second in a series exploring the issues around defining rape and sexual assault. Last winter, I began this with a post on the spectrum of sexual assault and the limits of the law, in which I concluded:
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 … 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.
(The whole post is here.)
After I wrote that post, life and work intervened to keep me from tackling the problems of defective consent, but I’d like to pick it up again now that I’m off from teaching and neither of my offspring has broken any bones lately. I think it’s crucial to find ways to talk about sexual violation that both respect the integrity of people who feel violated while also ensuring that the terms “rape” and “sexual assault” aren’t used in such inflationary ways that they become meaningless.
Jill at Feministe circumscribes “rape by deception” in a way that I thought (in my little non-lawyerly way) made loads of sense. She too remembered that case where a man impersonated his brother to extract sex from his brother’s girlfriend. The Massachusetts Supreme Court ruled it wasn’t rape because no force was involved. This incident, which occurred in a dark room where the woman couldn’t recognize the man, strikes me as precisely the sort of gross violation of consent where the law can and should intervene. The facts are clear-cut, the man’s intent was obvious, and the woman had no opportunity to offer or refuse reasonably-informed consent. So I agree with Jill that there is some place in the law for “rape by deception” or “rape by fraud.” Maybe you wouldn’t categorize it as a first-degree felony, but such conduct deserves to be criminalized.
However, once you move from cases such as impersonation to cases where someone tells a garden-variety lie, you’ve just criminalized 95% of the population. (Or maybe 99.999%) I do not think it is noble that people lie and misrepresent themselves in pursuit of romance, sex, and love. But neither is it felonious. It shouldn’t even be a misdemeanor, legally speaking.
On the Feministe thread, a few people argued that since lying to a potential sexual partner undermines enthusiastic consent – or really, consent period – it should be criminalized. One commenter who’s a lawyer argued that it should be treated as a misdemeanor, since such lies are more serious than commonly-prosecuted crimes such as trespassing. I agree that lies – even glaring lies of omission – diminish consent. Where I disagree is on the proposition that the criminal justice system could offer appropriate remedies for this. (And as for the trespassers – can we stop prosecuting them too, in the absence of other crimes?)
In part, the problem is simply a matter of numbers: the prosecution of liars would give the U.S. a chance to build more prisons than schools (if we’re not already there yet). Some of the commentators at Feministe echoed Dr. Gregory House’s line: “Everyone lies.” A couple of people protested that they, personally, were always honest, but by and large, I think House is right. Consider online dating. Whether it’s OK Cupid or eHarmony or Adult Friend Finder, people misrepresent themselves. They exaggerate their height, play down their weight, puff up their job titles. They post a photo that’s a year old – or ten. Perhaps the only reservoir of honesty is on Chatroulette, where the naked dudes look pretty much exactly like themselves. ‘Cept they’re not looking to date you. I guess that, too, is refreshingly honest.
And it’s not just men who lie, exaggerate, misrepresent. Take your humble blogger, for instance. I know that when I met the man I eventually married, I didn’t say to him, “By the way, I’m still sort of messed up from my last boyfriend.” In my sexual past, I’ve misrepresented a few other things, including multiple failures to indicate clearly when I was not interested. These days, I’m not even on the market, and yet I own a couple of bras that overplay my actual assets. And that’s just me – a generally honest gal from North Dakota.
Of course, what’s at stake are lies and distortions that could be dealbreakers for a potential partner. Even there, the list is infinite. Would you rule out Republicans? Or only go for Republicans? Do you require gainful employment? Upward mobility? A yacht in the Mediterranean? Are you open to coupling with a trans person? Or would you freak out if your potential partner wasn’t cisgendered? Would you only sleep with someone with long-term potential, or would you rule out anyone seeking a relationship?
A law that criminalized garden-variety lies to potential partners would hit certain groups especially hard:
- people of color – see the “War on Drugs” for millions of precedents
- trans people, whose murder is still sometimes excused under the “trans panic defense,” and who already suffer from being branded “deceptive”
- women whose partners assumed them to be virgins (as Alara Rogers argued compellingly at Feministe)
- people with STIs, who do have a duty to disclose (in my view), but who would be discouraged from even getting tested
- pickup artists (okay, my sympathy is lukewarm, but I still don’t want to toss them in jail)
So if we don’t turn to the law, then what? And how are we to respond to the very real feelings of violation that people feel when they’ve been deceived – feeling that are not limited to women, by the way?
I don’t think it’s wrong to spread the word to one’s friends and acquaintances about someone who has told a materially important lie. Politeness often stops people from doing this. Women, especially, are also likely to be deterred by the fear that no one will believe them (which runs parallel to the fears of rape victims), and by fear of slut-shaming. But if someone has behaved like a first-class jerk, we have no obligation to protect his or her reputation. I’m lukewarm on public shaming (as apparently occurs sometimes on Facebook, for instance), but in private conversations, there’s no reason to hold back one’s experiences.
We also need to educate young people – boys and girls alike – on the importance of asserting themselves with a potential partner and asking about those potential dealbreakers before they have sex. The major roadblock here is the difficulty people have in talking about sex, period. From my students, I get the impression that this is slowly improving, certainly compared to my generation. And we need to expose kids to enthusiastic consent as an ideal. Enthusiasm is a pretty impractical legal standard, but it’s an excellent social norm.
Actually, we need to get all those messages out to those of us in our middle years and beyond, too. (It’s just easier to reach kids, since they’re often a captive audience and they’re still more malleable.)
Finally, we also need to propagate the hope that more honesty in sex and courtship will help dismantle rape culture. We’re never going to get rid of lies. We can, however, hope to increase honesty. One way to do that is to reframe sex as a duet instead of a game of conquest.
As for how we respond to the sense of violation when a person has been deceived – well, there I diverge from most of the discussants at Feministe, including Jill, who said the woman in the case ought to be able to define her experience in whatever terms ring true to her. If that means she gets to call it rape, then I disagree.
First, if every person who feels violated or just emotionally hurt can call their experience “rape,” we move into the realm of metaphor. I’ve already argued that “rape” ought not to be used that way. It diminishes the actual offense. It also leads to sloppy thinking and to an elision of the difference between the legal realm and ethics. And frankly, ethics can help in these cases, where the law simply cannot.
Second, if a person claims the label of “rape,” she or he may seek legal redress. That quest will be doomed to failure if their experience has no correlation with the legal standard of rape.
Third, the bad guy in this scenario certainly deserve to have his (or her) reputation smudged. She or he does not deserve to be called a rapist, with all the attendant emotional baggage and social harm. That stigma is nearly as damaging as being convicted in court. (And no, this isn’t “what about the menz,” because women tell plenty of sexual lies, too, and anyway this is about basic fairness.)
So what can we do to honor those who’ve been lied to? Those who’ve seen a partner climb off them, post-coitus, and run straight for the door? Those who’ve placed faith in a faithless partner, or trusted their own heart too hastily?
We need new words. Maybe some of the old ones can be repurposed. In my last post, I described the accused as a “cad.” While “asshole” works pretty well, too, it doesn’t capture the specifically sexual aspect of assholishness that “cad” does. Some of the related words – scoundrel, fraud, even creep – don’t have particuarly sexual connotations. I’m curious if any of you have any better ideas.
Perhaps we need a notion of “sexual violation” to describe situations where dishonesty significantly interfered with a partner’s ability to consent. This wouldn’t be a criminal offense. It would be an ethical category. It would give the victim a way to understand her or his experiences as real, and important, and worthy of a caring response.
And we need to offer victims of sexual violation sympathy and support, instead of slut-shaming. I’m not so sure I could do that for the woman in the Kashur case. Her sense of violation was rooted in her racism. But most men and women who fall victim to liars and manipulators in sex do deserve our support. They should get it.
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Patron cat of Kittywampus (1985-2001)
