States Shouldn't Require Force for Rape to Count

What Women Really Think
Jan. 13 2014 4:01 PM

States Shouldn't Require Force for Rape to Count

117044865
Nonconsent, not violence, should be the standard to determine rape.

Photo by STR

The concept that "no means no" has become so firmly ingrained in the public discourse that it may surprise you to learn that in most states in the U.S., the legal definition of rape requires more than just ignoring someone's protests, but also the use of physical force or threats. As Deborah Tuerkheimer, a law professor at DePaul University, argues in the Guardian, that needs to change.

The time is right: The American Law Institute is revising the Model Penal Code for the first time in more than 50 years. If they rewrite the code to define rape as having sex with a nonconsenting person, that could then help various states to revise their own laws to make it easier to convict rapists who use methods other than overt threats of violence to commit their crimes.

Advertisement

Tuerkheimer notes that while legal wording that says "that a woman could not be raped if she did not resist her rapist" has been "softened or eliminated" in most states, the requirement that force or the threat of it be present to consider the act a rape continues to be a problem in prosecuting many sexual assaults. Most rapists are smart enough not to use physical force or even overt threats to get their way. They prefer, instead, to isolate the victim physically and allow the implication that things could get even worse for her if she fights back to subdue her. In most cases, rapists also zero in on women who have been drinking, because it makes them more vulnerable to intimidation techniques. In cases like Steubenville, Tuerkheimer explains, the victim was so drunk as to be unconscious, which means her inability to resist is taken into consideration. "Had she been less drunk, though, the prosecution would have had a far tougher time of it," Tuerkheimer argues. "The woman's non-consent, even if the jury believed her, would not have been enough to prove rape."

So what should the model legislation look like? For starters, the prosecution should not be required to prove that force or the overt threat of it was present, but instead simply be able to prove that the victim refused to have sex. Ideally, too, they would lay out "a workable definition of consent that aligns with contemporary sexual norms," Tuerkheimer writes. Women should not be assumed to be consenting to sex unless they say otherwise in blunt language, especially since research shows that most people tend to refuse to go along with activities, sexual or otherwise, with demurring language instead of blunt refusals. Instead, Tuerkheimer argues, the law should expect that people actually display "demonstrated intent to have sex." Laying there like a dead fish with tears in your eyes, hoping that he gets this over quickly so you can get away from him shouldn't be mistaken for consent. That doesn't mean that the law would require partners to draft a contract before having sex, but it would mean that a rapist would have a harder time pretending that he didn't understand what it meant when a woman repeatedly asked to go home and refused to kiss him back and wiggled away when he tried to take off her clothes, all because she broadcast her refusals politely instead of yelling "no" at him. 

How much would making these changes improve conviction rates for rape? It's hard to say, since the lack of violence in most rapes means it's easy enough for rapists to lie about consent. However, these changes could send the right message to victims and help shut down much of the second-guessing that they often go through. Instead of putting the victim on trial to determine if she fought hard enough or was sober enough for her rape to count, we can ask what's wrong with a man that would want to have sex with someone who doesn't want to have sex with him. Shifting focus from the victim's choices to the rapist's choices is bound to improve the conviction rate to some degree. 

Amanda Marcotte is a Brooklyn-based writer and DoubleX contributor. She also writes regularly for the Daily Beast, AlterNet, and USA Today. Follow her on Twitter.

TODAY IN SLATE

War Stories

The Right Target

Why Obama’s airstrikes against ISIS may be more effective than people expect.

The NFL Has No Business Punishing Players for Off-Field Conduct. Leave That to the Teams.

Meet the Allies the U.S. Won’t Admit It Needs in Its Fight Against ISIS

I Stand With Emma Watson on Women’s Rights

Even though I know I’m going to get flak for it.

Should You Recline Your Seat? Two Economists Weigh In.

Medical Examiner

How to Stop Ebola

Survivors might be immune. Let’s recruit them to care for the infected.

History

America in Africa

The tragic, misunderstood history of Liberia—and why the United States has a special obligation to help it fight the Ebola epidemic.

New GOP Claim: Hillary Clinton’s Wealth and Celebrity Are Tricks to Disguise Her Socialism

Why the Byzantine Hiring Process at Universities Drives Academics Batty

Moneybox
Sept. 23 2014 3:29 PM The Fascinating Origins of Savannah, Georgia’s Distinctive Typeface
  News & Politics
History
Sept. 23 2014 11:45 PM America in Africa The tragic, misunderstood history of Liberia—and why the United States has a special obligation to help it fight the Ebola epidemic.
  Business
Moneybox
Sept. 23 2014 2:08 PM Home Depot’s Former Lead Security Engineer Had a Legacy of Sabotage
  Life
Education
Sept. 23 2014 11:45 PM Why Your Cousin With a Ph.D. Is a Basket Case  Understanding the Byzantine hiring process that drives academics up the wall.
  Double X
The XX Factor
Sept. 23 2014 2:32 PM Politico Asks: Why Is Gabby Giffords So “Ruthless” on Gun Control?
  Slate Plus
Political Gabfest
Sept. 23 2014 3:04 PM Chicago Gabfest How to get your tickets before anyone else.
  Arts
Brow Beat
Sept. 23 2014 8:38 PM “No One in This World” Is One of Kutiman’s Best, Most Impressive Songs
  Technology
Future Tense
Sept. 23 2014 5:36 PM This Climate Change Poem Moved World Leaders to Tears Today
  Health & Science
Medical Examiner
Sept. 23 2014 11:37 PM How to Stop Ebola Could survivors safely care for the infected?
  Sports
Sports Nut
Sept. 23 2014 7:27 PM You’re Fired, Roger Goodell If the commissioner gets the ax, the NFL would still need a better justice system. What would that look like?