Sex Crimes

I was sent a link to a tequila ad by Lessie Brown who asked my opinion on it. She sent it in the context of a page I’ll link to below, because I think it deserves to be watched on its own merit first:

For Harriet has the following to say about it:

The scenario presented here is absolutely rape. No, it’s not forcible rape by a big (black or brown) man in an alley, but most rape isn’t.

Lessie said this:

I feel like we’ve on the one hand reached a place we need to be: A place where we can acknowledge that a woman can be raped even if she isn’t beaten or forced. A woman shouldn’t have to risk her life first to prevent a rape. It’s completely horrible for society to expect that. On the other hand, I worry that we’ve reached a point where we’re infantilizing women by telling them that they don’t have to take responsibility for who they have sex with and how.

(She added, and I feel bad that she felt she had to, but I would like to also say, “I hope it’s clear that I’m not trying to be a rape apologist.”)

My response? It’s funny. I chuckled. It’s indicative of a sexist culture, yes, but I also think—knowing a few pairs of twins personally—that she bears some responsibility for being able to tell the difference between her significant other and his twin.

A similar question came up during the time that allegations of Assange raping a woman in Sweden were big news (what ever happened to that?). My understanding of the situation was this: there was consensual sex between Assange and a woman; she asked him to wear a condom but he did not. In various American media outlets, this was called “rape”—which may be the closest translation of the Swedish crime he was accused of, but it is not rape in the sense we think of it in the United States. I can well imagine a spectrum of sex crimes in an enlightened country such as Sweden that includes forcible rape on one end and other sex-that-is-not-desired on the other end.

In English, we call all of this “rape”. But I think that it is a disservice to those who experience forcible rape to put them in the same camp with those who were drunk or who were never explicitly asked if they wanted to have sex. I think it is appropriate to call them all crimes but I do not think it is appropriate for the punishment to be the same.

When it comes to killing, we have many shades: first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, and justifiable homicide. Each crime has a different degree of culpability, violence, and punishment associated with it. I think it should be the same for rape. Or at the very least, suggesting this should not result in me needing to turn in my Feminist Card.

I think this ad is indicative of a culture that does not value women. I do not think it is indicative of a culture that values rape. I think it is additionally a valuable moment to have this discussion. The ad depicts coerced-sex-that-is-not-desired which—let me be clear here—is wrong. But it is a disservice to both men and women to lump it in with the kind of rape that happens as a war crime, the kind of rape that happens at gun/knife point, the kind of rape that happens at parties, or the kind of rape that happens within marriages.

We need a better vocabulary.

UPDATE: Vocabulary.

I’m currently studying for the bar and just got to the part in Criminal Law that includes sex crimes. These are general definitions, not specific to any jurisdiction, but which form the basis for the majority of jurisdictions’ rules. Be forewarned: these are archaic rules which most states have modified or deleted. Think of them as the laws of 1700s England. Here we go:

Rape is the unlawful sexual intercourse with a female against her will by force. “Unlawful” excludes the husband; men cannot be raped; consent is invalid if obtained through force but not if obtained through fraud (see Seduction below); force is sufficient if threatened; lack of consent by reason of intoxication or lack of consciousness is not a defense; resistance is not required but may be evidence of lack of consent. Rape requires intent to commit intercourse without the consent of the female; it is negated if the lack of resistance is reasonably believed to be consent.

Statutory Rape is sexual intercourse with a female under the age of consent. It is strict liability so there are no defenses.

Adultery is sexual intercourse or cohabitation with a person who is not a spouse.

Fornication is open and notorious cohabitation or sexual intercourse between unmarried persons.

Crimes Against Nature are sodomy* and bestiality. Sodomy is not defined; beastiality is “sexual intercourse with an animal by a human”.

Incest is marriage or sexual acts between persons that are too closely related.

Bigamy is the act of marrying someone while still legally married to someone else; it is a strict liability offense.

Seduction is when a man induces a woman to have sexual intercourse with him on the false promise of marriage (see Rape above); subsequent marriage may be a defense.

I guess what this tells me is that, while we may not have a great vocabulary for discussing shades of rape, we have a much better and more enlightened vocabulary than we used to.

* The outline I’m working from helpfully reminds me that it is “most improbable” to successfully prosecute for sodomy after Lawrence v. Texas].

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