Final Version

Introduction

Rape presents a particular problem for our justice system. The subjective elements of the crime, the frequent lack of evidence outside the testimony of the parties involved, and the stereotypes and stigma that surround it all make it and especially difficult issue. Clearly these issues arise in some degree in the adjudication of all crimes, but rape generally exaggerates all these problems, particularly in cases of acquaintance rape where evidence of significant physical force is lacking. An intermediate misdemeanour charge, which entailed education and sensitivity training instead of jail time, would be a better method than either full acquittal or a full rape conviction for dealing with acquaintance rapes that are based on a mistaken belief of consent.

Rape and the Law

Rape is Endemic and Under-Reported

Rape laws differ widely. In some states, there must have been physical force or the threat of physical force for a rape charge. Other jurisdictions hold that a lack of consent warrants a rape charge, whether or not there was physical force employed. In Canada, the victim's statement that she did not give consent is sufficient to shift the burden to the offender to prove otherwise. My contention that there is a particular problem with rape and the law is based on the disparity between the estimated number of rapes committed and the number that are reported. Clearly accurate numbers are impossible to get on this issue, but it is generally accepted that a significant percentage of rapes go unreported. The reasons for this are shame and guilt over the incident, as well as the perception that reporting the rape will be taxing and useless.

The Criminal Justice System Deals Poorly with Rape

My particular interest here is in male-female acquaintance rapes, which are much more difficult to deal with than stranger rape. In these cases, there is rarely any evidence outside the testimony of the two parties, since any evidence of rape will generally also be consistent with consensual sexual activity. This makes it easy for both parties to tell extremely divergent stories of the incident. However, an even more difficult hurdle is that the man and woman involved may have genuinely different impressions of what happened. There is therefore a subjective element to this type of rape that makes it especially ill-suited to be dealt with by a justice system that attempts to establish the objective truth by examining evidence and deciding on credibility. The jury has to pick which of the narratives to believe, both of which may be subjectively true, with the following result: either men who do not believe they did anything wrong are convicted of rape, or the claims of women who did not consent to sexual activity are dismissed.

A Possible Alternative

Gender stereotypes are the underlying problem

Traditional ideas about sex roles and the socialization of the two genders are at the heart of acquaintance rape. First there is the idea (held by both men and women) that women are supposed to display initial resistance to sexual contact, and men are supposed to act aggressively in response to this. This can result in a woman’s resistance being taken for coyness. Then there is the idea that if a woman is not consenting, she should attempt to fight off the offender physically. Firstly, men tend to be larger and stronger than women, who may as a result perceive fighting back physically to be useless. Secondly, this concept is based in a very male idea of conflict behaviour: women (for any number of biological or social reasons) are less likely than men to respond in kind to physical aggression; they are more likely to try to avoid escalating the situation. These factors add up to a situation where a man can fail to perceive a woman’s lack of consent, despite her belief that she is making it clear.

Mandatory Education to Combat the Problem

If there is a genuine mistake about consent, it is unjust to punish the rapist. This can happen under a law like Canada’s, which says that if the victim was incapable of giving consent or made any indication of lack of consent, mistake regarding consent cannot be used as a defence. However, it is also unsatisfactory to acquit the rapist, because he obviously engaged in sexual conduct that was unwelcome. Since gender-based miscommunication is the source of this problem, the logical way forward is to work towards eradicating the ideas and misconceptions that underlie it. An intermediate charge that could be used in non-forcible acquaintance rapes might provide a viable alternative. A conviction under that charge would ideally entail education and sensitivity training for the defendant. The training would focus on eradicating the traditional ideas that lead to acquaintance rape based on miscommunication. Ideally this would impress on the offender the seriousness of what occurred, and prevent a recurrence, without the stigma and severe punishment of a rape conviction. The victim would also be vindicated in some sense because the court is recognizing that what the offender did was wrong. There are a lot of potential problems with this idea. Training and education are expensive, and may meet with resistance from students who do not perceive it as necessary. The most serious risk is that juries could abuse it to excuse acquaintance rape; offenders who ignored a lack of consent in bad faith might escape punishment. It would have to be made clear that there is a high standard – the charge can only be made where there is convincing evidence that the perpetrator had a genuine, objectively reasonable, good faith belief that the victim had consented, and there is no evidence of physical force.

Conclusion

Despite these problems, I think this idea could help combat both the occurrence of acquaintance rape and the failure to report it, by providing education for offenders and deterrence for others, as well as making full acquittals in cases of date rape less likely. It could also limit the number of men who are convicted of rape unjustly. Finally, it could help to counter the shame and guilt that is associated with victims of acquaintance rape by assuring women that, even in cases where the offender is an acquaintance and physical violence was largely absent, their lack of consent will be respected by the law.

-- ClaireOSullivan - 31 Mar 2008

---

I do agree with your thesis: "Rape is a problem that our justice system is not well equipped to address." And I would like to suggest some names for the tort you propose: "Moving too fast;" "Disrespecting an acquaintance;" "Violating Title VII with a potential co-worker;" "Stealing bases."

I don't mean to disrespect the real problem: social intercourses get interpreted differently by their participants. But the fact that intercourses (sexual or otherwise) contain misunderstandings does not, by itself, justify the erection of state power and its thrusting upon one party the other's understanding. "Misunderstanding" should not be made a tort.

I think that education and therapy are more properly applied preemptively, as they currently are. Assuming that our goal is to reduce the number of relationships that end in accusations of rape, we should help EVERYONE, men and women alike, learn to send and read signals better.

-- AndrewGradman - 31 Mar 2008

Claire isn't advocating the creation of a tort. I think she's trying to find a middle ground within criminal law between the approach of Canada, which may over-criminalize such 'misunderstandings', and the approach of jurisdictions which refuse to recognize non-forcible rape at all. This doesn't preclude preemptive education, but we get plenty of that in high school and college and it's barely taken seriously, i think precisely because non-forcible rape is often chalked up to a simple misunderstanding. However, to call non-forcible rape a misunderstanding is oversimplified because in many instances the perpetrator may understand perfectly well the signals being given, but may know that that he (or she?) can pretty much get away with it. I have no idea how criminal law should deal with that problem. I think this will be a good topic to grapple with.

-- VishalA? - 01 Apr 2008

Andrew, I think that having an intermediate misdemeanor charge such as the one Claire suggests may serve as a deterrent or a self-policing mechanism (a preemptive strike, as you put it). Knowing that they may face such a charge, individuals about to engage in sexual conduct will be urged to ask themselves: “Am I absolutely sure that there is consent here?” If one party is drunk, or in some other way incapacitated, there will be incentive to refrain from sexual conduct.

As Claire said, the subjective element of sexual conduct/relations makes it difficult to address through traditional legal avenues. Perhaps we could use the law--through potential punishment/sanctions--to encourage individuals to police their own sexual behavior? Since a misdemeanor charge would possibly be easier to charge and convict on, individuals may be more likely to make sure that they aren’t engaging in date rape. Claire, I’m excited to see how this idea pans out.

-- MinaNasseri - 01 Apr 2008

Claire, i think that this is an excellent idea, and, as i mentioned to you before, it is very close to how i was originally going to frame my topic. I've since broadened my topic so as to create less overlap. But, i'm thinking i'll link your topic to mine, because it's a good example of the analysis that i think should occur more often wherever there are gender biases in the law. You get at the heart of the problem, and think outside of the box to create a solution. All in all, very good idead.

Unfortunately, and it is with great dismay that i say this, i have to at least partially agree with gradman. If you concede that the root of the problem is in socialized gender miscommunications which play a role in how both genders communicate in the bedroom, i hardly see it as fair to penalize one gender for a mistake both contribute to. I'm not sure i see any better way to do it (maybe better sex ed in HS dealing with issues like this), but it seems like blaming the individual for a mistake created by the group, if not society as a whole.

I don't know. I like the analysis. I just don't know how well tailored to the problem the solution really is.

-- OluwafemiMorohunfola - 04 Apr 2008

Thanks everyone for your feedback. I do see why it is unsatisfying to identify a one-sided solution for a problem that I've framed as two-sided. I've tried to address this in my final version; however it also seems to me that, since the problem still comes down to unwanted sexual contact being imposed on the victim, it makes more sense to put the onus on the aggressor to change their behaviour and mindset. Holding women responsible for re-framing their lack of consent (say, by fighting back physically) to make sure that the man will understand seems dangerous to me. Anyway I find this to be a very difficult issue (which was why I wanted to spend some time thinking about it by writing this paper) and I appreciate everyone's input.

-- ClaireOSullivan - 04 Apr 2008

This is a really interesting piece. This may not be the point of your paper but I got left wondering what the gender stereotypes are which lead to acquaintance rape. I don't know if you have the space or the inclination to deal with that. It could be a whole other paper though. Very interesting to read. I wonder what the male perspective on this reform would be. Maybe it's Femi's reaction that one gender should not be penalized for the miscommunication. Should women undergo some sort of therapy so withdrawn consent does not reoccur? Just an idea.

-- JulianBaez - 04 Apr 2008

Feminine timidity regarding sex isn't an inherent aspect of women that society should intervene and correct. This timidity, to the extent that it does exist, is the result of the objectification of women in society as possessions to be won. (Malfeasance versus nonfeasance). Acquaintance rape sounds like the symptom of larger gender problems in society. (Woman being prized for their sexuality and modesty (contradiction,.. right? maybe not.) while Men are prized for their conquests.

Hmmmm... heres a thought... if you could index Countries attitudes toward Sex, or rather openness, would that have an indirect relationship with acquaintance rape? Just a thought for a future empirical study. Overall, I really enjoyed your paper... I didn't have any academic (or otherwise!) experience with the subject.

-- JosephMacias - 05 Apr 2008