Monday, December 6, 2010

Rape, Defined

FYI, if you’ve been directed here by a person on a feminist blog as a means of explaining that what you’re saying is wrong, irrelevant, or hateful…please, try to read the following without reflexive defensiveness.  Getting shit wrong doesn’t make you a horrible person, it just makes you imperfect…like everyone else.

[Trigger warning:  Clinical and somewhat graphic discussions of rape to follow.]

As feminists we talk about rape often.  It and similar crimes are part of the web of oppression that remind many of us every single day that we are less – less valued, less autonomous – less.  Talking about rape, particularly the rape of women and girls, almost always leads to the same derails.  So this is the beginning of a series of non-posts on derailing conversations about rape.

By far the most prevalent derail in any discussion of rape is the intentional or unintentional misunderstanding of what definition of rape is being or should be used.  Whether it’s the media determining that something wasn’t rape or a person denying that a victim’s experience was rape, people regularly fail to understand what is meant by rape.

Rape is a word that draws its meaning from context.

So what definitions of rape are used and how can you tell the difference?  Typically we discuss rape from three perspectives:  (a) legal, (b) ethical, and (c) empathetic.  The first addresses the liability a person faces for certain acts.  The second addresses what a person “ought” or “should” do.  The third provides a way for someone to connect emotionally with another person and, in some cases, engage in a part of the healing process.

Rape and the Law

If we're discussing the legal merits of a case there is a very specific, usually statutory definition.  If statutory, the law may provide for different degrees of culpability depending on the intention of the defendant, the level of threatened or actual physical violence, the parties involved, the type of sexual act involved, etc.

Outside of a discussion of the legal merits of a case or the institutional oppression inherent in our definitions of rape (for example the notion under some statutes that men cannot be the victims of rape), these legal definitions have no place in a discussion of rape.  Let me say that again, for emphasis, do not pull out a statute to define rape unless you are talking about the statute itself or the merits of criminal case.

Why?  To do so is to conflate liability with reality.  The law does not determine whether something occurred.  It doesn't determine whether your house was robbed or your car stolen.  It doesn't determine whether the perpetrator committed a crime, whether the defendant robbed or stole.  Instead, it determines whether a particular defendant is to be held criminally or civilly liable for the crime.  A jury’s determination that the defendant is not guilty, does not magically restore your xbox to your entertainment center or your car to the driveway.



A lot of people have difficulty with is differentiating between discussions of ethics and discussions of law.  I suppose your ethical system may be merely to not do things that are illegal, but a great many people believe that there are ethical restraints our actions that are not necessarily incorporated in law.  For example, observing an abandoned baby in a rubbish pile and doing nothing.  In most cases this behavior would not be actionable under law, but many people would consider it unethical.

The ethical discussions of rape typically revolve around a model of consent.*  Rape occurs when one person engages in a sexual act without the affirmative consent of another participant.  Thus, a person should not engage in a sexual act with another without obtaining affirmative consent.  In my view this model contains two key premises.  First, a person should not act to harm another person.  Second, that other people have the agency to determine what causes harm to themselves.  Since people are not omniscient or psychic, the best way we can know another’s subjective thoughts is to inquire and trust that person’s assertions.  Thus, to prevent harm a person must seek and rely on consent.

Notice this consent model is neutral as to the act involved.  You shouldn't punch someone in the nose, perform a tonsillectomy on another person or insert an object in to another person's vagina, mouth, or rectum without their consent.**

Some feminists use a model of enthusiastic consent.  There are varying definitions of enthusiastic consent, but essentially the idea is that you should only engage in sex activity with someone who has a sexual desire to engage in that activity with you.  Under this model, an ethical person would seek to understand the sexual desires of the other person, and seek to fulfill those sexual desires rather than merely relying on a perhaps reluctant “yes.”

While I understand the rationale for enthusiastic consent, the model may deny the agency of people who are asexual, some sex workers, and others.  As a result, I prefer a simple affirmative consent model.  Essentially, a person must affirmatively consent to sexual acts.  Negative consent, i.e. not saying no, is inadequate.

Whatever your ethical model is, the purpose of the model is to determine how a person should act.  Said differently, an ethical definition of rape is only relevant when trying to determine the ethical nature of a sexual act.  In this way, the ethical definition of rape, like the legal definition of rape is focused on the experience and understanding of the actor.  Did the actor ask for and receive affirmative consent prior to engaging in a sexual act?  The experience of the victim of rape is not central or even considered beyond the actor’s interpretation of the victim’s actions. 

Ethical systems like the consent model described above seek to protect victims of rape by requiring ethical people to value the judgments of others.  Nevertheless, even when a person acts ethically under the model of affirmative consent the other party may be the victim of rape.  For example, if a person withdraws consent but for some reason is unable to communicate that withdrawal.  Obviously, these situations form extraordinary exceptions, but they highlight an important principal:  Ethical definitions of rape do not define whether someone is the victim of rape.  Instead, the ethical definition only indicates whether the actor committed rape.  To understand whether a person is the victim of rape we need to look at the next section.



If the question you are seeking to answer is was this person raped, I urge you to stop.

Please.  Stop.

Before you go any further ask yourself why it is important to know whether this person was raped.  Are you seeking to hold someone liable for rape?  If so, then this question is not relevant to you.  Look instead at the legal definition for liability.  Are you seeking to hold someone morally or ethically responsible for rape?  If so, then this question is not relevant to you.  Look instead at the ethical definitions of rape.  Are you seeking to impose your conception of rape onto this other person?  If so, please stop.  For the reasons I will shortly explain, that rationale is both wrong and hurtful.  So, please don’t do it.  Are you seeking to connect with another human, to understand the world from their perspective and perhaps help them heal from a harmful experience?  If so, you probably have no need for me to explain anything, but I’ll discuss empathy after I address knowledge.

Language is one of those funny things.  It is in large part a social construction.  You and I and the rest of the English speakers on earth have determined that the object over there next to the table is a chair.  We call it a chair.  We understand it to be a chair in fact and in concept.  But socially constructed meaning is not the only meaning.  My psychological experience of chairs also provides a definition of chairs, a meaning unique to me.  For me the word chair conjures up the dining chairs in my parent’s house when I was small.  Brown, hard, uncomfortable, too smooth to exert leverage and climb on, too tall for my legs, but too short to reach anything on the table.  So while you and I may agree that a comfy leather side chair meets the socially constructed definition of chair, we likely have different psychological experiences that similarly define our internal understanding of chairs.  Both the socially constructed and the psychological meanings are true, they are just describing the same concept from different perspectives.  If I choose to share with you, my psychological understanding of chairs, I’m probably not trying to convince you must alter your psychological understanding of chairs or even our socially constructed understanding of chairs.  Instead, I’m just trying to share part of who I am.

Rape is understood much the same ways.  We have a social construction of rape based in part on the legal and ethical definitions discussed above.  But different people have different psychological experiences of rape.  And it is these psychological experiences that define rape from the perspective of the person who experienced it.  Such a definition cannot be socially constructed, it is necessarily experiential.

So to return to the point, if you want to know whether someone experienced rape, the only question is whether they say they experienced rape.***  Their experience is not socially constructed.  So please, do not try to shape someone’s experience into your understanding of rape.  We can shape ethics, we shape the law, we can shape society…but we should not ever tell people what they did not or should not feel.

Instead, we should use empathy.  Empathy requires hearing someone else's suffering with your mouth shut and your heart open.  It is connecting with another human being.  It is an emotional conversation, not an intellectual one.

Moreover, the self is, in part socially constructed.**** Rape can destabilize a person’s sense of self particularly in relation to others and particularly in a society that compounds the damage done by rape.  Reconstructing that social bond, is a social obligation.  The obligation to hear, to listen, to empathize, to accept, to embrace the victim as a valued member of society.

In short, I’m trying to convince you of three things (1) that rape from the perspective of the victim is defined experientially, (2) that such definitions are not an attack on our socially constructed, or personal construction of meaning, and (3) that victims of rape need us to hear them and respect their understanding of what they experienced.

If after all of that you still cannot help but want to argue with a person’s self-definition of rape, I urge you to stop and walk away.  Perhaps you cannot for what ever reason empathize or sympathize, but please do not compound the harm someone has experienced by making them feel as if yet another person does not value them.

FYI 2 - Comments are moderated.  This isn't really a blog, so I'll get to the comments when I can and it likely won't be immediately.

* There are other models of course.  But this is the most prevalent and my favorite.
** Acting without another person’s consent is sometimes justifiable in cases of necessity, but such justifications are rarely related to rape except in the case of medical rape.
*** I urge anyone who struggles with this directive to go read Cara’s “On Birth Rape, Definitions, and Language Policing.”  It is a brilliant and empathic examination of the language policing that occurs around the word “rape” and why such efforts are so vile.
****Susan Brison makes this argument regarding the socially constructed self and inspired my thoughts on this issue, but her work is not necessarily reflective of the totality of this line of thinking.  Brison, Susan, “Outliving Oneself:  Trauma, Memory and Personal Identity” in Feminists Rethink the Self (1997).

9 comments:

  1. This is just awesome. Thank you.

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  2. Interesting post. However, I'd like to hear your thoughts about something that occurred to me when reading.

    Consider the hypothetical situation where:
    (1) No rape could reasonably be judged to have occurred by any statutory definition of rape (legal perspective)
    (2) Affirmative (or even enthusiastic) consent was given (ethical perspective)
    (3) The person nonetheless pronounces that they were raped (empathetic perspective).

    You reinforce the value of trying to understand and help the person who feels they have been raped. But in the course of stating this, you neglect to mention that the other party (the "accused") also may warrant understanding and empathy -- especially given (in this hypothetical case) their lack of moral or ethical responsibility. If one person considers that they've been raped, it must be the case from the other party's perspective that they've been labeled a rapist.

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  3. Nope, all of that is based on your false assumption that all rapes require a rapist. They don't. As I demonstrated with the unable to communicate the withdrawal of consent example.

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  4. Thanks for the reply to my comment Kristen. Actually though, I'm not suggesting that all rapes require a rapist. What I'm suggesting instead is that the pronouncement of rape can make the other party *feel* that they've been *labeled* a rapist (which they may or may not have been explicitly), and that the person who perceives this labeling may also deserve significant empathy.

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  5. I'm not sure why you think any of the above means that you can empathize with other people.

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  6. Hi Kristen. Thanks again for your reply. I admit, however, to not fully understanding it; in your comment, is "you" referring to me? I certainly claim no special ability to empathize.... In any case, in agreeing with you that it is a worthy goal to "seek to connect with another human, to understand the world from their perspective and perhaps help them heal from a harmful experience?", would you also agree that (for the aforementioned hypothetical case where there is no moral/ethical responsibility), that the non-raped person's perspective is worthy of some consideration and (perhaps) empathy?

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  7. Sure. Everyone deserves empathy. I'm not sure why you think anything in OP means that empathy is limited to people who feel raped.

    You seem to be implying that we can't use an empathetic perspective to define rape because in doing so we harm third parties. If that is your point, I think you misunderstand the purpose of the empathetic perspective.

    Empathy isn't about fairness or truth, its about understanding one person's point of view.

    To use a non-rape related example that clarifies this for me, my mother engages in emotionally abusive behavior. When I try to stop her by pointing out that the things she doing are hurtful to me (sharing my perspective on her actions) it hurts her feelings. She then calls her friends to tell them what an ungrateful, horrible, abusive child she has (sharing her perspective on my actions).

    An objective third party in this situation could empathize with me when I say my mother is abusive and with my mother when she says I'm abusive.

    Empathizing with one person doesn't preclude empathizing with another.

    Yes, sometimes our perspectives will cause other people harm, but that doesn't mean that those perspectives are invalid or unworthy of empathy.

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  8. Thanks again Kristen for your perspective. I think your analogy is very interesting.

    To continue that analogy, I suspect some people might feel increased empathy for you or your mother depending on whom they thought actually was the more abused. Perhaps this is the unfortunate situation where the ethical perspective affects the empathetic perspective.... It is hard to not make ethical judgments.

    One more point: In some situations (although certainly not all, and maybe not most), it might be most constructive all around to not only empathize, but also to encourage empathy. Using your analogy with your mother, wouldn't it be ideal if you could empathize with your mother, and vice versa?

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  9. "To continue that analogy, I suspect some people might feel increased empathy for you or your mother depending on whom they thought actually was the more abused."

    That's not empathy. That's acceptance based on judgment which is entirely contrary to empathy.

    "Using your analogy with your mother, wouldn't it be ideal if you could empathize with your mother, and vice versa?"

    One of problems with psychological trauma, regardless of the cause of that trauma, is that it often makes it difficult if not impossible for the victim to look outside zirself in that specific context. Its hard to see the big picture when someone is beating you or killing your parents. As long as the trauma exists its unreasonable to expect a victim to understand another person;s perspective.

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