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October 13, 2003

Rape Law & Immediacy

Someone name Barbara Amiel comes with troubling thoughts which amount to a shot across the bow of our current legal definition of rape.

Technically it's rape if the woman says no. Anytime. By my reckoning this is something of a new standard which was established by popularization of the concept of 'date rape'. The context, of course, was college - that particularly American middleclass island of hedonistic abandon where date = sex. But then again, I'm not a lawyer nor a radical feminist, and being married I don't have a dog in this fight. Nevertheless, I had a personal guideline I used in light of the idea of date rape. If she takes off my shorts, then it's on. Who knows if such a defense would stand up in court? I've never had the misfortune to come anywhere near such a charge, but I have been jokingly told 'no' by a particularly legalistically minded girlfriend.

Ameil's point is perfectly logical:

The complainant's name is now kept secret. Men can be charged on the uncorroborated say-so of a woman who voluntarily entered into a sexual situation with them and whose motives, name, background and psychiatric record cannot be questioned or disclosed.

This is sexual terrorism. Rape charges can be laid one week or 20 years later, without the judge having to instruct juries that they may draw an adverse inference from the delay. Men have only the protection of a jury's common sense - and juries have been acquitting some - but even the acquitted find their names besmirched and their jobs wrecked. Meanwhile, the Government is hellbent on cutting back the right to trial by jury.

In the past, any woman crying rape under such factual circumstances would have had to show feeble-mindedness to warrant society's protection. Going voluntarily up to a stranger's room for intercourse or its preliminaries, and expecting a man to behave as a light switch that can be turned off at will, may be technically her right, but it is both biologically and logically mad.

And although she speaks about the legal system of the UK, her point certainly resonates with me. There doesn't seem to be much appreciation in such a law for the way men actually have sex with women. That is to say the notion that a woman, once penetrated, has the right to demand an immediate withdrawl or else, violates the idea of consensual sex.

This is tricky territory, but I am inclined to believe that the law may be too much with us in the bedroom. A more common sense approach should probably take into consideration the time and place as well as the sexual history and preferences of the two. A woman certainly has the right not to be brutalized, but a man has a right not to have his ordinary sexual appetite turned against him. This should especially apply in cases where the parties know each other or the act in question takes place at their residence.

There is no question that in the main men are the initiators in sexual relations. Men hunt for women, women make themselves available. That's about as simplistic a view as possible; certainly there are many degrees of initiation and reception. The idea that a female has the right to immediate rejection should have as much moral standing as the idea that a male has the right to immediate capitulation, which is to say, little.

I believe furthermore that this equality extends beyond the act. The warming up towards consensual sex raises the level of implied consent beyond the first act. A woman who would say several days after consensual sex, "Hey, I probably shouldn't see him again." is on the same murky ground as the man who says "Hey, I probably shouldn't see her again." The reflective rejection of the validity of the act reflects poorly upon both parties. This is rather clear when the warming up takes place over weeks or months, but not so clear when it takes days or hours. Which is why it is so important to categorize the sexual history of both parties.

I am confident that there are societies in our world where puritan squeamishness is not so firmly attached to sexual relations and women do not feel their civil and social rights are so tightly bound to sex. I think we may have something to learn from them as our own short history of feminism matures along its course. A society of law is, by definition, one whose cultural values are not strong enough to be a reliable source of order. We are meddling with very basic human desires and need all the wisdom we can get.

Posted by mbowen at October 13, 2003 10:51 AM

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Comments

Posted by: howarde at October 13, 2003 11:28 PM

Posted by: Barbar at October 15, 2003 06:22 PM