I’m a bad feminist. I shall now be researched on the web and opposed wherever I do rape activism because I trivialize rape.
I know. It came as a shock to me too. But I know it must be true because a random commenter and self-proclaimed rape expert who has, you know, been looking into things since 1998 told me so.
My crime? Well, according to his post-flounce whine, I failed to answer questions he never came out and asked about what I want rape laws to look like. On a post that was about a change to how we count existing criminal reports, not about how we charge or prosecute those claims. In a comment thread that was as much an exploration of ethics as it was anything else. Apparently talking about rape at all, however, means that I had to lay out and justify my own positions.
Well, I’m going to that–despite the douchesplainer–because I think it’s an interesting topic. What do I want rape laws to look like?
Plain and simple, I want them to look like any other type of law, except maybe slightly more systematic.
I frequently compare how we treat rape with the way we treat robbery. It’s not perfectly analogous, of course. Our bodily autonomy is not exactly a thing that can be irretrievably taken from us. On the other hand, the violation is more personal than being deprived of property is. Acknowledging that those two considerations are important, I’m fairly comfortable using robbery laws as a general pattern for rape laws.
This is consistent with how I want rape counted:
This post is about how the FBI counts local rape statistics in creating national statistics. It is not about changing local laws. It isn’t about how granular various local laws are or aren’t. It isn’t about whether a local offense is named “rape” or “sexual assault” or even “unlawful penetration.” It is about counting rapes under any local law.
In fact, it is about making these federal definitions consistent between rape and other kinds of crime. The FBI calls these reports Uniform Crime Reports. The point is to see that they are–to the extent possible in a country where criminal statutes are determined at the state and local level. See the UCR definition of robbery, for example:
The FBI’s Uniform Crime Reporting (UCR) Program defines robbery as the taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear.
Does it spend several paragraphs saying what may or may not be a reasonable fear? Does it talk about hair-color phobias? No. It simply says that existing crime that falls under this definition is to be counted.
In this case, we have, yes, as I noted, a number of local definitions of what constitutes coercion. We have one overarching general legal principle, however, that coerced “consent” does not meet the requirement for legal consent. Now, we have the FBI saying that when the legal standard for consent isn’t met, the crime involved, under whatever name, is to be counted as rape.
Nothing about wanting rape treated like other crime says that some of it shouldn’t be “aggravated” (considered especially egregious due to the use of a weapon) or that there can’t be varying degrees of rape carrying different sentencing guidelines based on premeditation or that there can’t be a division between rape and other forms of sexual assault–as there is in the new FBI definition that I praised. I’m fine with all that. There are, however, one or two things I’d like to see changed.
Our current legal system codifies some ugly class prejudices. Look at how “white collar” crime that devastates thousands or millions is treated compared to small-scale theft with only one or two victims. I don’t want to see that repeated in rape law. I want to see those who use power and position to rape treated the same way those who use threats of violence are treated. The outcome to the victim is the same; the treatment of the rapist should be as well.
This is true in general. I want rape laws written with the input of those who study rapists and rape victims. What gradations we have in offenses and sentencing should be based on things like recidivism risk and impact on the victims–not on fuzzy feelings about which offenses are most immoral or which victims deserve our attention. Moral arguments stay moral only as long as they stay close to reality.
I am also unimpressed with those, like our “expert,” who suggest that anything that currently happens legally shouldn’t become illegal. If we’d followed that “logic” all along, marital rape would still be just bad form. The FBI wouldn’t be on its way to recognizing male victims. The idea that the law shouldn’t change is dumb on its face, and it ignores the fact that property rights have been commonly accepted in our society far longer than sexual autonomy rights have been. Our laws will continue to change as we internalize the idea of sexual autonomy. Laws will follow values, as they always do.
That doesn’t mean that everything bad will suddenly become illegal. Valuing informed consent does not mean someone will be considered a rapist for dyeing their hair. It may mean that we end up with “rape (or assault) by swindle” offenses, but that alone won’t make them stupid. We have theft by swindle offenses now. Somehow we manage to get along without putting people in prison for putting seat covers in the car they’re trying to sell.
Stepping out of the question of legalities for a moment, we are, as a society, generally capable of talking about ethics using the same terms that become jargon within the realm of law enforcement. Someone who buys that car with the seat covers and misses the tear in the upholstery until it’s too late is never accused of either trying to change the law or of “trivializing” the concept of robbery when they say, “I got robbed!” They are understood to be expressing an ethical opinion rather than a legal one.
It’s only when we don’t want to call something bad that we get all legalistic. Then we defend someone who treats their guns unsafely as not breaking any gun laws. Then we call people enemy combatants rather than prisoners of war. Then we point out that financial speculators who destabilize an economy are working within existing regulations. In short, talking about the law is often a way of avoiding the conversation about what kind of people we want to be. That’s not going to be tolerated for long on this blog, where I am the law.
So, while I’m happy to tell you what I want rape laws to look like, I’m going to give you very short shrift if you show up in the middle of an ethical discussion and assume that I must want everything within it to be a law. The laws themselves aren’t the only thing I want to be consistent between rape and other crimes.