What We Do and Don’t Know about Julian Assange, Sexual Assault, and Douchebaggery

I haven’t blogged about Julian Assange and Wikileaks because I’ve been trying to understand before I judge. I’m still not willing to offer any final judgment on the rape allegations against Assange. That’s for a Swedish court of law to do, assuming that he’s extradited and the prosecution continues to press its case.

I feel confident about three things, though. If the Guardian’s article presents a good approximation of the facts, some sort of sexual assault occurred. (I’m well aware that Assange disputes his accusers’ accounts, and he deserves a chance to rebut them in court if formal charges are brought.) Secondly, anyone who dismisses the women’s accusations out of hand is out of line – and that goes doubly for feminists, who have every reason to know better. Lastly, even if the accusations never lead to a conviction, Assange is still an insufferable egotist who treats women like crap. That’s not a crime but it does raise questions about whether the left should continue to lionize him as a hero.

As I’ve already stated, I support what Wikileaks is trying to do. But as many other feminists have already argued, we can support its mission without preemptively assuming that Julian Assange is innocent of sexual assault. We don’t have to assume he’s guilty, either. We can instead support due process for Assange (including his right to bail) while also insisting that his accusers be treated respectfully, their allegations investigated, and their privacy protected. Or as Jill at Feministe said: “Seriously, we can chew gum and walk at the same time.” Seriously!

It’s still not clear what charges will be filed against Assange. Indeed, it’s still possible that Swedish prosecutors will decide the case is too difficult to win in court and decline to press charges. In that case, Assange just might be better off in Sweden than in Britain; should the U.S. cook up a brand-new crime and try to extradite Assange, I suspect Sweden would be less likely to cooperate than would Britain, with its “special relationship” to the U.S.

* * * * *

For the sake of conjecture, let us say that events transpired as described by the Guardian. Let us, for the sake of fairness, assume that the defendant is a fictional character we’ll call Albino Aussie. This lets us run a thought experiment without prejudging the actual real-world case. We will assume for this experiment that the women’s accounts are factual. In the real world, of course, the male protagonist disputes their statements, and we don’t have his side of the story. That would matter crucially in a court of law. The intent of my little thought experiment is more modest: to ask whether the alleged actions constitute sexual assault.

[The account of Miss A.] to police, which [Albino Aussie] disputes, stated that he began stroking her leg as they drank tea, before he pulled off her clothes and snapped a necklace that she was wearing. According to her statement she “tried to put on some articles of clothing as it was going too quickly and uncomfortably but Assange ripped them off again”. Miss A told police that she didn’t want to go any further “but that it was too late to stop Assange as she had gone along with it so far”, and so she allowed him to undress her.

According to the statement, Miss A then realised he was trying to have unprotected sex with her. She told police that she had tried a number of times to reach for a condom but Assange had stopped her by holding her arms and pinning her legs. The statement records Miss A describing how Assange then released her arms and agreed to use a condom, but she told the police that at some stage Assange had “done something” with the condom that resulted in it becoming ripped, and ejaculated without withdrawing.

(Source: The Guardian)

Ripping off clothing is standard fare in romance novels. It could be good fun in an established relationship where one partner knows for sure that their partner would like to be ravished in this way. But with no discussion about desires and predilections? Albino Aussie made some major assumptions. Once Miss A. started to put her clothes back on, he had a stop signal – a flashing red light – and he chose to ignore it. (Also, Albino Aussie was a complete asshole to wreck her necklace. Not a crime, but that would have been a deal-breaker for me.)

His attempt to keep her from grabbing a condom is not sexy by any standard. It’s coercive. By itself, it doesn’t constitute sexual assault, but it could be significant if it signaled his intent and he then did “something” deliberately to break the condom, as Miss A. alleges. Criminal intent (mens rea) is a key element in sexual assault law in the United States (except for statutory rape), and it would be surprising if it were irrelevant in Sweden.

Similarly, Albino Aussie ran roughshod over the insistence of the second complainant, Miss W., that he wear a condom:

Miss W told police that though they started to have sex, Assange had not wanted to wear a condom, and she had moved away because she had not wanted unprotected sex. [Albino Aussie] had then lost interest, she said, and fallen asleep. However, during the night, they had both woken up and had sex at least once when “he agreed unwillingly to use a condom”.

Early the next morning, Miss W told police, she had gone to buy breakfast before getting back into bed and falling asleep beside Assange. She had awoken to find him having sex with her, she said, but when she asked whether he was wearing a condom he said no. “According to her statement, she said: ‘You better not have HIV’ and he answered: ‘Of course not,’ ” but “she couldn’t be bothered to tell him one more time because she had been going on about the condom all night. She had never had unprotected sex before.”

(Source: The Guardian)

Note that Miss W. never consented to sex without a condom. In fact, she was adamant that she would refuse consent to unprotected penetrative sex. Nothing changed between the evening and the morning, except that Albino Aussie chose to ignore the critical conditions on which her consent was premised.

Whether any of Albino Aussie’s actions constitute “rape” will depend on the specifics of Swedish law. But there’s every reason to understand them as sexual assault of some form, even if they don’t rise to the standard of rape. He violated the conditions of consent that Miss W. had explicitly and repeatedly stated as a categorical prerequisite to sex. He initiated sex while she was sleeping and could not possibly say no. While the Guardian doesn’t specify the exact type of sex, it’s reasonable to assume PIV since she responded that he’d better not have HIV.

In the case of Miss A., Albino Aussie violated her conditions of consent by ejaculating inside her without protection. (If he was unaware that the condom broke – which is unlike if, as Miss A. claims, he ripped it himself – Swedish law might still allow prosecution on the basis of recklessness, though again I’m speculating since there’s precious little info on Swedish law.) He also ignored her clear signal to slow down and check in with her when she began to dress herself again in the midst of their encounter – an action that obviously signals NO.

To my mind, the clearest-cut example of sexual assault here is the allegation that he had sex with a sleeping woman. She could not possibly consent. What’s more, his decision to have unprotected sex clearly violated the terms of consent that she’d insisted on all night long. No way could he reasonably assume he was giving her something she wanted. (Jill at Feministe has a great analysis of the limits and nuances of consent; she wrote it before the Guardian piece appeared, but her basic points are still relevant. Plus, she’s a real lawyer … and I’m not even a fake one.)

Again, we don’t know what happened. But the substance of the allegations amounts to much more than “sex by surprise” (whatever that might be!). The allegations definitely fall on the spectrum of sexual assault. Everything else that allegedly happened – the fact that Miss A. let her guest continue to sleep in her apartment, partied with him, didn’t contact the police for days – is immaterial, if indeed events went down as she and Miss W. described them.

The allegations are not atypical for date rape cases. As a professor and as a feminist, I hear too many stories from students that echo elements of this case: the desire to normalize things the next morning, pressure to keep the social fabric intact by keeping accusations private, fear of character assassination if one does report, reluctance to label one’s experience as rape instead of – as Miss A. called it – “the worst sex ever.” (That last point is borne out by research done by Arnie Kahn, who found that many college-aged are reluctant to call nonconsensual sex “assault” if the perpetrator is a friend or lover. See Arnie S. Kahn, “What College Women Do and Do Not Experience as Rape,” Psychology of Women Quarterly 28 (2004), 9-15.)

* * * * *

Feminists who’ve worked with college students and rape survivors should be aware of all this. And yet … Naomi Wolf is not. Or more likely, she chooses to repress what she knows, because she so fiercely wants Assange to be able to continue his work with Wikileaks. Here’s Wolf (in the HuffPo):

I see that Julian Assange is accused of having consensual sex with two women, in one case using a condom that broke.

Um, no. Compare with the accusations above. In the second instance, the allegation is that the sex was not consensual, because Miss W. had not consented to barebacking, and she had no opportunity to say yes or no while she was sleeping.

More Wolf:

I understand, from the alleged victims’ complaints to the media, that Assange is also accused of texting and tweeting in the taxi on the way to one of the women’s apartments while on a date, and, disgustingly enough, ‘reading stories about himself online’ in the cab.

Um, no. Self-centered texting is not among the allegations. I’m no expert in Swedish law, but I don’t think they’ve outlawed egotism yet. Just file this nugget away for the last part of this post (on why Assange is a douche).

Wolf expanded on her flippant HuffPo piece in an interview with Amy Goodman, which also included Jaclyn Friedman. Wolf said one thing I agree with: We do need to expect women to behave as “moral adults.” Sure. We cannot expect men to simply intuit a woman’s every wish. But Wolf didn’t stop there:

If you read these allegations, he took off Miss A’s clothes too quickly for her comfort. She tried to tell him to slow down, but then, quote, “she allowed him to undress her.” This is what the report says. The second woman says she woke to find him having sex with her. When she asked whether he was wearing a condom, he said no. Quote, “According to her statement, she said: ‘You better not have HIV.’” He answered, “Of course not.” Quote, “She couldn’t be bothered to tell him one more time because she had been going on about the condom all night. She had never had unprotected sex before.”

So, if you’re going to treat women as moral adults and if you’re going to take the issue of rape seriously, the person who’s engaging in what he thinks is consensual sex has to be told, “I don’t want this.” And again and again and again, these women did not say, “This is not consensual.” Assange was shocked when these were brought up as complaints, because he had no idea that this was not a consensual situation. Miss A kept Assange in her home for the next four days and threw a party for him.

Thing is, the women did say and signal: “I don’t want this.” At some point, both of them gave up on him getting the memo. But dang it, Assange – or “Albino Aussie,” if you will – had every opportunity to see the yellow and red cards the women were pulling. And instead of saying, “OK, being ravished is not your thing – so what would really turn you on?” he just keeps going on autopilot, ripping bodices until Miss A. gives up resistance. Instead of asking, “Should we do something else, since I only want to fuck bareback?” he waits until Miss W. is sleeping and slips it to her against her express wishes.

These women did act as moral adults. They delineated their boundaries. They tried to negotiate a satisfying, sexy experience for both partners. They said and signaled no to activities they found disturbing or unacceptable. According to their allegations, he drove a bulldozer over their moral agency.

How many times should a woman have to say no for it to count?

A final beef with Wolf: In the Democracy Now interview, she insinuates that only violent stranger rape is real rape:

In 23 years, I’ve never seen any man in any situation this ambiguous, involving this much consent, have any kind of legal process whatsoever. And all over the world, women who have been gang-raped, brutally raped, raped in alleyways, pimped, prostituted, trafficked, you know, their rapists go free.

Yeah, well, most rapists will never be convicted. But does the existence of violent stranger rape make date rape irrelevant, trivial, or harmless? Wolf and I are almost exactly the same age. It was our generation of college students that first started talking about date rape in the mid-1980s. Wolf knows that date rape is real rape. Just a few years ago Wolf accused Professor Harold Bloom groped her inner thigh back when she was an undergrad. That might not have been a case of sexual assault, but it was at least sexual harassment. No trafficking or gang-rape occurred, yet Wolf saw fit to publish the incident in New York Magazine. I’m not saying she was wrong to do so, only that she seems to have lost her compass since then. How else to explain her assertion that Assange and Miss W. were “making love”? (She said it in her Amy Goodman interview, at 5:27 – sorry, no transcript.)

It’s not just Wolf who’s twisting herself into pretzels to defend Assange. AnnaAnastasia at Shakesville directs us to Laurie Essig’s essay at The Chronicle of Higher Education. Titled “Assange, Morality, and Desire,” it’s remarkably devoid of morality. Instead, Essig – a a sociology professor at Middlebury – is channeling some combo of Norman Mailer, Philip Roth, and Harlequin romances:

One can imagine the summer air in Stockholm, ripe with possibilities, seducing Mr. Assange into  thinking it was a good idea to hop into bed with his host, known as Ms. A in the court papers, and then hopping into the bed of one of his fans, Ms. W, just a few days later.

Essig doesn’t even try to make Assange into a moral actor. He’s giddy with optimism, opportunity, and the seductive air of Stockholm. Potential entrepreneurs, take note: there’s an untapped market for bottling Swedish air and selling it to frustrated men (the Seduction Community might buy in bulk). Poor Assange was defenseless; he was seduced, perhaps even entrapped, by Swedish women who, Essig suggests, subscribe to a moral code that is wholly foreign to an Australian man.

While Essig initially concedes that Assange is charged with”having sex without a condom (without full consent of the women),” she backpedals a moment later:

And while Sweden might consider having sex without a condom against the law, most countries do not.  Perhaps more confusing is the issue of consent. Although this young woman clearly found being taken while asleep upsetting, some women would be turned on by being the object of that much desire.

This is pure disingenuity. Essig has just noted that the problem is a lack of full consent, not laws against barebacking. She damn well knows better! What’s so “confusing” about consent here? Consent to one sex act doesn’t imply consent to another. Just as consent to vaginal sex doesn’t imply consent to anal sex, consent to safer sex doesn’t imply consent to condomless sex.

As for being “taken while asleep” – in a longer-term relationship, partners might let each other know they’d welcome sleep sex. To just presume it? When it’s your first time hooking up? When your only real communication revealed your incompatible expectations vis-a-vis condoms? That’s more than just stupid and presumptuous. That’s rape.

Then again, Essig seems to consider “date rape” to be something quite distinct from “rape.” Channeling Whoopie Goldberg, Essig digs herself in even deeper in a follow-up post:

Based on what we do know, I do not think Assange is guilty of rape.  I am not sure whether he is guilty of date rape, but if he is, then the date rape is incredibly murky since no one seems to have been drugged or beaten or even particularly coerced.

So if Miss W. had taken drugs before sleeping, then Essig might entertain the possibility of “date rape”? I can only imagine how she might respond when her students report having been raped. “No roofies? No worry! Just be more careful next time … and remember, some women get off on lack of consent.”

Essig wants us to understand that sex is messy and complicated. She strikes the pose of a sophisticated libertine, a connoisseur of heterosexual behavior. Essig teaches classes on heterosexuality – but in her essay, she offers up a vision of female heterosexuality that’s cartoonish, not complex:

According to press reports, Assange held one of the women down in a sexual manner.  Yes, and many women like that.  Assange started having sex while one woman was sleeping.  Yes, that too some women like.  Because people like all sorts of things—clothes being ripped off, dirty threats whispered in their ears, even somewhat violent sexual encounters.  Not everyone likes these things, but many, many people do.  Clearly someone in Assange’s past sexual encounters thought it was a turn on or at least didn’t think it was rape.  That’s why he was doing it.  Is that gross?  Sure.  Is all sex gross when you’re not the one doing it?  Pretty much.  Is it rape if the woman doesn’t wake up and say “Stop” and “No, I don’t want that”?

Many (most?) heterosexual women will cop to some un-PC desires. Fantasies about non-consent are quite common – among hetero men as well as women. But when we go beyond fantasy, the desire to submit and be ravished is virtually always predicated on consent. Partners can ethically incorporate violent activities, even “nonconsensual” scenes, into their sex lives – if they negotiate. If they agree on a safe word. If they consent in advance, with an option to bail if the scene goes wrong. Two people who disagree on whether a condom must be used are in a whole ‘nother universe than partners who communicate their edgier desires. Essig surely ought to know all this too.

After all, Essig teaches in Women’s and Gender Studies as well as sociology.

* * * * *

Even though I think the allegations are serious and credible, I’m still not committing myself to the “Assange must be guilty camp.” I do think that if the two women set out to smear him, they would have constructed a much smoother story. Someone setting a premeditated trap would have avoided the details that Essig and Wolf find damning, such as Miss A. continuing to host Assange in her home, or Miss. W. giving him a ride the next morning. They would have continued to say no throughout the encounters. They would have called the police immediately and filed sexual assault charges, instead of just demanding Assange take an STD test. In short, they would have sought to fit the ideal of how a sexual assault victim ought to act, rather than behaving in the way that actual survivors often act – confused, trying to not to make waves socially, and unsure what to call their experience.

Does that make Assange guilty? No. I would want to hear Assange’s side before drawing any conclusions.

What we do hear from and about Assange doesn’t exactly cover him in glory, though. He comes across as a user and a sponger. Given that he now draws an income from Wikileaks, why did he keep squatting in Miss A.’s  apartment even when she moved into a friend’s place to avoid him? Why did he apparently have Miss W. pay for his train tickets to and from her home? (He told her he had no cash and feared being tracked by his credit card – a thin excuse for a guy who was easily trackable via his public speaking schedule in Sweden.) How narcissistic do you have to be to immerse yourself in online stories about yourself even as you’re trying to get laid? Why did he order Miss W. to bring him orange juice (as Essig reports)? Couldn’t he pour his own damn juice?

And why didn’t he just get the STD tests? He claimed that Miss W.’s demand for testing was “blackmail,” but it’s a pretty reasonable request, given how open he was about his predilection for barebacking. If he’d agreed, the whole matter would probably never have come to the prosecutor’s attention.

The interview Assange granted the BBC last week hints at the answers to these questions. Here are a couple of especially prime slices:

Q: You do see yourself as a martyr here.

JA: Well, you know, in a very beneficial position, if you can be martyred without dying. And we’ve had a little bit of that over the past ten days. And if this case goes on, we will have more. …

Q: But you haven’t denied having sex with those women?

JA: No, I haven’t denied that.

Q: So you did have sex with those women?

JA: I have always tried in this case and in my other dealings to be a private person and to not speak about matters that are private.

Q: This is now public. So I’m asking you the question. Did you have sex with those women?

JA: It’s a matter of public record as far as the courts are concerned but I am not going to be exposing other people’s private lives or my own more than is absolutely necessary. That is not what a gentleman does, that why I have also never criticised these women. We don’t know precisely what pressures they have been under, exactly. There are powerful interests that have incentives to promote these smears. That doesn’t mean that they got in there in the very beginning and fabricated them. …

Q: The allegation against you, the very broad allegation that’s been made over and over again in the media over recent days is that you’re some sort of sexual predator who has sex with a large number of young women, ideally without a condom, and that you do it because you can, effectively, because in some cases they’re groupies or they’re enthralled to your fame or whatever it is. Are you a sexual predator?

JA: That’s ridiculous. Of course not.

Q: How many women have you slept with?

JA: That’s a private business. Not only does a gentleman not tell, not only does a gentleman like to talk about his private life, a gentleman certainly doesn’t count.

Q: Many, without being specific?

JA: I’ve never had a problem before with women. Women have been extremely helpful and generous.

Q: Not quite the question I asked you.

JA: No, women have been extremely helpful and generous and put up with me. But…

Q: Does put up with you mean having you in their beds?

JA: Of course on occasion, I mean I’m an adult man, but women have been generous to me over many years.

(Read the full BBC interview here. Ellipses are mine except for the one in Assange’s second-to-last statement.)

Of course, a gentleman wouldn’t argue when his partner insisted on a condom. That’s what a foolhardy narcissist does.

A gentleman might not keep count of his lovers, but then again, a gentleman would keep some mad money in his pocket, so as not to mooch train fares off his lovers. A gentleman gives as well as takes. Relying on women to be “generous”? That’s what a sponger does.

Also, a gentleman doesn’t relish martyrdom. That’s a role better suited for a someone with a messiah complex.

In a profile of Assange as a dark-hatted hacker, Bruce Sterling calls him a sociopath. I don’t see proof of that. But a wannabe martyr? A cheapskate mooch? A narcissist? An exploiter of groupies? A misogynist with no understanding of women? An antifeminist who says “Sweden is the Saudi Arabia of feminism”? A jet-setting, globe-trotting, world-class douche? I think the evidence is in.

None of this makes Assange guilty of sexual assault. But it does indicate that Assange has some grave character issues. He’s too self-centered to earn my trust – too entitled and narcissistic. The Wikileaks organization would be better served with a leader driven more by public interest than by self-interest.

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Painting Pink Red

I’m not a big fan of the whole “awareness ribbon” thing, but if I had a pink ribbon, I’d be dyeing it red – a deep crimson – to express how pissed-off I am at the increasing trivialization of breast cancer. “Awareness” substitutes for the fury that ought to drive the search for effective and innovative cures and prevention. (Ditto for other cancers, too, though none of them have reached quite such dizzying heights of awareness.)

Just what is breast cancer awareness, anyway? We hear about it every year, and most of us probably think, “Early detection. Better funding for research. Support for women who are fighting the disease.” A few of us might think: “Investigating environmental causes. Asking why the incidence of breast cancer is actually rising.”

Well, we’d all be wrong. Here’s how Evelyn Lauder describes it at HuffPo (and yes, I know only I am to blame for reading HuffPo):

In 1992, I co-created the Pink Ribbon with Alexandra Penney, then editor-in-chief of SELF magazine, and in turn started The Estée Lauder Companies’ Breast Cancer Awareness Campaign. Today, the Pink Ribbon has become the ubiquitous symbol of breast health, and I’m thrilled to share that, to date, The Estée Lauder Companies has distributed more than 110 million Pink Ribbons worldwide. The 2010 Breast Cancer Awareness Campaign theme is: “Connect. Communicate. Conquer. Prevent Breast Cancer One Woman At A Time. The Pink Ribbon. Wear It. Share It.”

(More here.)

In other words: All you have to do is wear a pink ribbon! If we all just pinkified ourselves sufficiently, we’d wipe out breast cancer.

(To be fair, Estelle Lauder also donates some pretty big chunks of change to research, as is explained at the end of the HuffPo piece. But still.)

My second peeve with the Lauder campaign is that this year, they seem to be hopping on the save-the-boobies bandwagon. They’ve recruited several bloggers to pose nude, their arms shielding their nipples. All in the name of breast cancer awareness, of course. There’s a gesture at inclusiveness, with one man and one woman of color, as far as I can see, and one older woman in a three-generations shot. But that gesture is really just a slight nod. The rest of the women pictured are all conventionally sexy, white, and young enough to be winning the fight against gravity. (To be clear: I’m not dissing any of the bloggers involved, who likely went out of their comfort zone to promote a cause they care passionately about. I’m objecting to the overall impact of the campaign and the assumption that a sexy breast – and not the whole person – should become a focal point of activism.)

As I was viewing the site while sitting next to my husband on the couch, he glanced over and his eyes grew wide. “What are you looking at?” he wanted to know. To him, at least, these pictures didn’t convey any anti-cancer message.

I griped last year about the sexualization and ageism of the Save the Boobs video and the Blogger Boobie-Thon. But they were bit players compared to Estelle Lauder, which is one of the biggest forces in “think pink” marketing.

I’m no prude. I’m quite fond of boobs, myself (especially my own). But let’s be honest: Most of us who get breast cancer are no longer dewy and perky. The “passion” that the Estelle Lauder photo gallery was supposed to convey with a hand on the heart? That could be accomplished with clothes on, too. And then there’s the basic problem that it’s an outrage to make breast cancer – any cancer – sexy. Does anyone think that chemo patients feel sexier without their hair? That one’s libido won’t take a dive after a mastectomy or during the rigors of radiation and chemo? That anemia makes a gal or guy feel positively smoking hot?

People with cancer are usually still sexy to their lovers. But they often don’t feel that way themselves. No matter how good its intentions, a campaign that reduces their life-threatening disease to their lost “hotness” isn’t just sexist. It’s cruel. No amount of pink ribboning can paper over that.

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Why Mens Rea – “Guilty Mind” – Matters to Rape

In comments to my  post on “birth rape,” more than one person expressed surprise and shock that a feminist would say that intent matters in the definition of rape. This is a really complicated issue, and I’ve been reading about it on and off for nearly two years without fully understanding the nuances. I’m not a lawyer, and my (layperson’s) understanding of the issue is still evolving. I’ll be grateful for any input from people who know more about the law than I do.

With those caveats in mind, I would argue strongly that the motivations and awareness of someone who commits sexual assault do matter. Taking this position doesn’t amount to rape apologism. A perpetrator’s motivations matter for feminist reasons: as the example of “birth rape” shows, the possible remedies, penalties, and prevention strategies are different for rape than for other violations of bodily autonomy and integrity. They also matter for reasons of fairness: In the Anglo-American tradition, criminal law generally imposes different penalties depending on the moral culpability of the defendant.

First, let’s bear in mind that rape is not the same as sexual assault. Rape is one form of sexual assault – the most serious. Some states don’t use the term “rape” in their criminal code any more, preferring instead to designate various degrees of sexual assault. I’ve previously written about some of the various forms of sexual assault that the law recognizes. Having a spectrum of offenses is very important because even if a sexual assault doesn’t rise to the standard of “rape,” the law can – and in my view, should – provide additional recourse to a victim.

Generally speaking, in order to prove rape (or first degree sexual assault), the prosecution has to prove two things: that a crime occurred (or actus reas) and that the defendant committed it with a “guilty mind” (or mens rea). The principle of mens rea runs throughout our criminal code. It is especially important when it comes to the most serious crime. The most familiar example is homicide, where distinctions exist between first-degree murder (which is premeditated), second-degree murder (purposeful but not planned in advance), and quite a wide a variety of other forms of homicide and manslaughter, depending on how the killing occurred and how negligently or intentionally the killer acted. (Exact categories and definitions vary from state to state.) Without mens rea, all forms of killing would be considered equally culpable and equally blameworthy, and they’d be punished with roughly equal severity.

Mens rea is relevant to sexual assault law in most states in the U.S., though the standards vary from state to state, and they often aren’t specified very clearly. (Here’s an overview – it’s a Word file. Subsequent references to state laws rely on this chart unless otherwise noted.) Because of this fuzziness, it’s helpful to look at the American Law Institute Model Penal Code (MPC). The MPC isn’t binding on the various states, but it has been highly influential. The MPC delineates four levels of culpability, which I’d summarize as follows (exact wording is at the end of this post):

1. Purposeful: The defendant intended to commit the crime and harm a specific victim.
2. Knowing: The defendant might not have intended to harm the victim, but he/she had knowledge that such harm was certain or virtually certain.
3. Reckless: The defendant knew the odds were high that his/her actions would harm the victim.
4. Negligent: The defendant was not aware that he/she was likely to harm the victim, but he/she should have been realized it. (Note that the standards for negligence are higher for criminal cases than in civil court.)

As it turns out, state law is typically sloppy about specifying the mens rea required for a rape conviction. Often it’s just a matter of “general intent.” This leaves the door open for case law to further specify the mens rea needed to convict. On the whole, recklessness or worse is required. The MPC calls for recklessness at a minimum. (For an overview of this messy situation as of 2000, see David P. Dryden, “Redefining Rape” – full text and citation in this pdf. It runs to 163 pages, and I’m still trying to digest it.)

Here’s where things get sticky for feminists concerned with rape and other forms of sexual assault. Defendants exploit the mens rea requirement by arguing that they made an “honest mistake” and believed consent was given. This defense usually flies if the mistake is judged honest and also reasonable, though again jurisdictions vary, with some considering even unreasonable mistakes to be exculpatory.

Given that the mens rea requirement allows some rapists to game the system, shouldn’t a feminist just demand its abolition? For instance, statutory rape is typically a “strict liability” crime, which means if a defendant has sex with a very young person. In my state of Ohio, this applies when the victim is under 13, “whether or not the offender knows the age of the other person,” without any verbiage about reasonableness, recklessness, or negligence. The perpetrator can be found guilty of rape without any other consideration of his or her culpability. (In practice, though, most such cases in Ohio are prosecuted as a lesser offense, gross sexual imposition.)

However, I’m reluctant to abandon the basic principle of blameworthiness. Statutory rape is already a pretty extreme outlier. To the best of my knowledge, there’s no other equally serious crime that relies on strict liability. If we made all sexual assaults strict liability, how could we oppose the injustice of, say, a profoundly mentally retarded individual being convicted of rape and imprisoned for years on end? To me, it seems immoral to incarcerate people who are not in a position to recognize their own moral culpability. In case you don’t care for this argument: Wouldn’t juries be even less likely to convict if the law failed to distinguish degrees of blameworthiness?

Instead, I’d rather consider how we might redefine “reasonable” beliefs in consent. For instance, Catherine MacKinnon has advocated replacing a “reasonable man/person” standard with a “reasonable woman” one – an approach with both promise and problems, which I’m still weighing. Or we might introduce a category of sexual assault based on criminal negligence to ensure consent, which would carry substantially lower penalties than rape, but would offer a chance of conviction in acquaintance rape cases, which remain very difficult to prosecute. This isn’t unheard of; Ohio’s criminal code defines forcible rape as committed “purposely,” but the bar for sexual battery is only “knowingly.” Why not create a lower category of sexual assault that specifically addresses instances of recklessness and criminal negligence? I’m still thinking and learning about the possibilities, so I’m reluctant to commit to any particular legal model. (Maybe in a future post?) But given that the rules of evidence have already been changed substantially (e.g., rape shield laws) without much changing conviction rates for acquaintance rape, I think it’s crucial to consider other areas for potential reform.

Finally, I know some readers are wondering – as Melissa did in comments: Shouldn’t feminists have a definition of “rape” geared to women’s experiences? Well, only in some ways. Surely our desires for reform ought to be anchored in the experiences of victims (who, as feminists are increasingly realizing, are not always women). There are abusive situations that are currently legal, yet we may well want to see punished by law. If so, we should clarify our positions and work toward changing the law. We also need to continue criticizing the rape myths that allow juries to buy an “honest mistake” defense that’s obviously founded on misogyny. Laws need to change so that the typical defense doesn’t rely mainly on those myths. Rape myths negate women’s experiences and they prejudice juries against complainants.

On the other hand, we should not embrace a “social” or “psychological” definition of rape that’s disconnected from both the current law and the law as we’d like to see it. Rape is always irreducibly a legal category – a crime. I’m not willing to say, “Well, it’s up to every person to define for him- or herself whether an experience was rape.” In the feminist blogosphere, some folks are branding anything short of enthusiastic consent as rape. (That, too, would be another post.) Enthusiastic consent is a great cultural standard. I teach it, especially to beginning students, because I think it offers a chance to make real inroads against acquaintance rape. It is not embedded in the law, and I’m skeptical that it ever ought to be. As I’ve argued before, there are areas of sexual behavior where ethics are more appropriate than legal remedies. Frankly, just a cursory look at existing law shows that many states still retain a requirement to prove force (or the dire threat thereof), and some still require resistance.

There’s plenty of work to do. The most important reforms don’t require that we abolish “intent” – or mens rea – as a meaningful category. In fact, if we attend to mens rea, we can probably increase conviction rates, but more importantly, I think we can teach and write against rape more effectively than if we bracket out a perpetrator’s state of mind.

Appendix: Mens rea as defined by the Model Penal Code

2.02 General Requirements of Culpability.

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely.

A person acts purposely with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly.

A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

(d) Negligently.

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

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Why Marriage Equality Needs a Jaded View of History

The prospect of marriage equality raises basic questions of what marriage is, how it came to be that way, and how it’s evolving. Here’s how Judge Vaughn Walker addressed those questions in his smackdown of Proposition 8:

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

(From Perry v. Schwarzenegger, via Andrew Sullivan’s Daily Dish; the whole decision is here, in pdf format)

It’s a marvelous vision of marriage as degendered – one I’m happy to sign onto. But he harks back to a history of marriage that never existed. If we rely on a rosy view of the past, it’s gonna be harder to move into the future.

Once marriage equality is achieved as a constitutional right, then, yes, gender will no longer form “an essential part of marriage” – but we’re not there yet. We are still groaning under the yoke of history. And throughout history, at least since the dawn of agriculture and civilization, marriage has been saturated with gender inequality. Indeed, marriage was unthinkable outside of gender inequality, and one of its primary purposes was to preserve a gendered hierarchy. (I’ll leave aside racism, because “race” is a relatively modern invention; suffice it to say that membership in tribes, religions, nations, and various other in- and out-groups has never been irrelevant to marriage.)

From its outset, marriage was a thoroughly patriarchal institution. It raose along with civilization to assure men that their children were, in fact, their heirs – and not the progeny of another man. The only way to guarantee this was to control women’s sexuality. And that control spread into every facet of respectable women’s lives. (The disreputable could be prostitutes or concubines. They, too, remained subject to male power, just in a different key.)

Love, of course, was beside the point. Consider the good ole days in ancient Assyria. Men could sell their wives (and children) into slavery, or pawn them in cases of debt. Husbands could legally kill their wives under certain circumstances. A daughter’s virginity had considerable monetary worth. Men could have sex with concubines with impunity, while women who committed adultery faced the death penalty. The woman’s illicit partner risked the same fate, but don’t mistake this for gender equality; it just nailed down the principle that a respectable woman’s sexuality always belonged to a man, whether her husband or father. It also signals that not all men wielded equal power under early patriarchy. As in today’s fundamentalist Mormon sects, lower-status men could be excluded from power and possession. Patriarchy was a sweet deal for the patriarchs – the high-status, property-owning men. It sucked for everyone else.

Christianity and Islam both initially enhanced women’s status, but neither made marriage egalitarian. Christian women were allowed to choose sacred virginity over marriage, but the woman who chose to marry was still subject to her husband’s rule. Islam reduced the number of wives to four – which was an improvement over the massive harems that rich men held in the Prophet’s day. However, like Christianity, Islam proclaimed men the head of the household.

Even a century ago in the U.S., most women had little choice but to marry for economic survival. Legally and economically, most found it difficult to leave a bad marriage before the 1970s. The concept of rape within marriage was unrecognized forty years ago. Companionate marriage – the practice of marrying for love and friendship – only took firm hold in post-WWII America. The new ideal didn’t erase millennia of patriarchy, but love started to undermine the notion of the husband as head of the household. So did the nascent feminist movement of the 1960s. Both love and feminism required that a husband view his wife as his equal, not as an object.

So far, love and feminism haven’t been quite enough to revolutionize marriage. Some men – and not a few women – remain deeply invested in patriarchal arrangements. For instance, Sam Schulman at the Christian Science Monitor knows exactly what marriage is for: “protecting” women’s sexuality:

Among the many different versions of marriage in human history, very few of them have supplied the high-minded qualities [intimacy, inclusion, etc.] that the plaintiffs feel is their right. The vast majority of marriages in the past, perhaps a majority even now, were dictated by families, clans, holy men or magicians, and enforced on the bride and groom by social pressure, enforced if necessary with brutality and violence.

True, many marriages promote loving intimacy and enduring fidelity, but that’s an outcome of the relationship itself – not the raison d’etre for the institution. In primordial terms, marriage only exists at all – in all of its permutations, pleasant or barbaric – because of the nature of human heterosexuality. As a species, we need to protect female sexuality in order to assure ourselves of a future.

Marriage is a necessary defense of a woman’s sexuality and her human liberty from determined assault by men who would turn her into a slave, a concubine – something less than fully human. Human communities need to give women some additional degree of protection – through law, custom, religious decree, or sacrament – generally some combination of all three, neatly summarized by the plaintiffs, who demanded the sacred and the eternal from the state of California.

Of course, marriage’s power to protect women is far from perfect, but no human institution is. Parents, too, sometimes do awful things to their children. …

Heterosexual relationships need marriage because of inferiority: the physical inferiority of sexual defenders to sexual attackers and the moral inferiority of male sexual attackers

Marriage is not about couples or lovers – it’s about the physical and moral integrity of women. When a woman’s sexuality is involved, human communities must deal with a malign force that an individual woman and her family cannot control or protect.

Modern marriage is only the least worst version of marriage that has emerged from all this – but it is still necessary for women. What protects women, ultimately, is that marriage laws and customs confer upon her independence something extra – dignity, protection, sacredness – that others must respect. And if this quality can be bestowed upon anyone, even those not in intersexual relationships – it reduces, even dissolves its force.

(The rest of the trainwreck is here. Via Melissa McEwan of Shakesville.)

What’s another word for “protect”? Yup: C-O-N-T-R-O-L.

The rest of Schulman’s argument is simply incoherent. So women’s sexuality needs protection, and marriage will do the trick? Um … protection from what, exactly? Schulman never spells out the nature of the threat. Let’s assume it’s not mere slut-shaming but outright rape. How, precisely, can a husband protect his wife from being raped? Are husbands to accompany their wives everywhere, Uzi in hand? How do we explain rapists’ propensity for targeting both single and married women willy-nilly? Does my wedding ring function as kryptonite, cleverly disguised as bling?

As if he (and we) weren’t already hopelessly confused, Schulman also states that an individual family cannot adequately protect women from “a malign force.” How, then, is marriage supposed to protect women at all? It’s not as though the whole community encircles the houses of married ladies while throwing the single gals to the wolves.

Then there’s Schulman’s odd obsession with dignity. Why would marriage bestow dignity on women (but not men)? Could it just possibly have something to do with women being presumptively sluts if they’re not married? (That’s the point where I became pretty sure that Schulman wasn’t about to shield women from slut-shaming.) Why is my dignity as a married woman incompatible with the dignity of men and LGBT people? Aren’t they threatened by violence, too?

And sacredness, for pete’s sake! Why is this only accessible to heterosexual women? Why link sacredness to marriage, rather than that historically venerated state – motherhood – unless it’s assumed that all wives will automatically be mothers, too? (Note: I’m not arguing for motherhood as sacred. I’m just pointing out a likely elision in Schulman’s worldview.) And how do I get my chunk of sacredness, given that I only go to church on Christmas Eve?

Bizarrely, Schulman seems to be pining for old fashioned patriarchy, minus the polygamy, plus a little bit of feel-good “dignity.” That particular combination was born in the ashes of WWII and expired between 1963 and 1967. It’s not our world. As Amanda Marcotte points out at Pandagon, these days “we allow single women to live alone and they don’t slip into concubinage …”

Schulman can only picture (respectable) women as sexual victims or saints; he can’t imagine autonomous female sexuality. No word from him, either, on how patriarchal marriage has always co-existed like pigs in the mud with prostitution and/or concubinage. In fact, maintaining “respectable” women along with male sexual license logically requires prostitution.

Schulman got one thing right. Since the advent of civilization, marriage has been “enforced” by “brutality and violence.” The past forty years are a ginormous anomaly in the history of marriage. So we really can’t look for a usable history of marriage rooted in tradition. All we’ll find, instead, is a long trail of cautionary messages.

The only usable history is one that starts in the nineteenth century, tracing the evolution of marriage away from its patriarchal roots and toward equality of both partners. Linda McClain at Feminist Law Professors explains how the testimony of Nancy Cott – a renowned historian of marriage and gender roles – helped shape the Perry v. Schwarzenegger ruling:

Aided by expert testimony of historian Nancy Cott, Judge Walker carefully reviews how marriage laws used to mandate different roles for men and women and how California, like other states, has abolished all such restrictions EXCEPT the one requiring that civil marriage be the union of one man and one woman. This provides a powerful line of argument because the U.S. Supreme Court has previously struck down laws rooted in gender role stereotypes rather than ‘real’ differences between the sexes. And it has made clear (for example, in Planned Parenthood v. Casey) that coverture and other gendered rules of marriage do not reflect contemporary understandings of the federal constitution, the family, or of the rights of women and men.

Judge Walker further concludes that appeals to ‘tradition’ alone cannot justify the continued application of this different genders rule. This is a potentially powerful argument since, as his opinion points out, both bars on interracial marriage and fixed gender roles in marriage were defended at the time as central to marriage and yet were also repudiated as inconsistent with evolving understandings of marriage.

(Her whole post is here.)

Exactly. Coverture is dead; women now remain legal persons even after they marriage. (So take that, Sam Schulman!) We live in a world where gender roles are fluid in hetero marriage – where men change diapers and women frequently outearn their husbands.

Granting marriage equality indeed threatens traditional marriage. It undermines husbands’ patriarchal right to lord it over wives and children. It delegitimizes the control of women’s sexual and reproductive lives. Those changes won’t hurt my marriage one bit, but they sure pose a challenge to the guy who thinks he ought to be able to hit his wife as long as he’s the primary breadwinner.

We are not returning to some pure, unsullied history of gender equality. That history never existed. What we’re really doing is moving forward into a new era where marriage will cease to be a tool of oppression. This is a revolution.

No wonder some folks are nervous. To them, I would say: We are about to make history. Dare enough – trust enough – to relinquish control, embrace love, and see how much richer our lives will be when, as Judge Walker writes, “marriage under law is a union of equals.” Dare enough – trust enough – to help make history.

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