In my previous post, I argued that feminist reforms to the text of rape laws won’t, by themselves, lead to large differences in how rape is treated by the justice system. This is because the people who make the justice system happen will resist changes they believe are wrong.
There’s another limitation of the criminal justice system for addressing rape: The law requires – and should require – an offender to be proved guilty “beyond a reasonable doubt” before punishing him (or her) for any crime, including rape. This is not something I want to change.
However, a significant number of rapists are friends, boyfriends or spouses of their victims. These rapes often happen without any physical evidence to distinguish rape from consent, leaving the jury (or judge) with the task of deciding guilt or innocence based on the competing words of the accused and the complainant. If a rapist is a convincing liar, then even a very feminist jury may feel that he is not guilty “beyond a reasonable doubt,” and so will not convict.
Also, although the law has to consider rape a bright line – either an act was legally rape, or it wasn’t – in real life rape is better described as a spectrum. Consider this post by Biting Beaver, in which she describes a fifteen year old girl out on a date:
She says “No” again; he withdraws ALL affection, maybe even scooting to the end of the couch. He seems sullen and frustrated. He may even argue with her, “What’s the big deal?” he asks, “Why are you being a tease?” he says accusatorily. She begins to doubt herself and feels guilt about her actions. She apologizes to him, he kisses her again and soon he’s at her zipper once more. She flinches and sighs heavily, “I don’t know if I’m ready” she says plaintively, “What?” he asks her; “Don’t you love me?”
The girl bites her bottom lip, in a flash of anger and frustration she stands up to leave. He grabs her arm, “Oh baby, I’m sorry, I didn’t mean to make you mad” he says. She looks at him again and quickly it goes through her mind that she doesn’t really know where she’d go anyway. She lied to her parents; they think she’s over at a friend’s house. She has no car, how is she going to get anywhere? She can’t tell her parents and she doesn’t want to try to call her girlfriend who may or may not have a car. She knows that she’ll just make her boyfriend angry at her even if she DID do that. What if he kicks her out? She lied to be there and if she goes back home she’ll get in trouble for lying. In a flash she decides to sit back down.
An hour later, after more approach and retreat and more pushing his hand away, she gives in.
She goes home the next day, troubled, depressed, and unable to concentrate. She has been raped and her emotions and reactions are the same as any other rape victim, but she has no recourse.
Even many feminists, me included, would hesitate to describe the situation Biting Beaver describes as “rape” (although I wouldn’t hesitate to describe the way the boy in her example acts as disgusting, wrong, and worthy of punishment). I think this is partly because most people – including most feminists – think of rape as an either/or, black-or-white question. As Biting Beaver argues, rape is more accurately seen as the end of a spectrum. Here’s an image of the spectrum, adapted from this graphic which was created by Soopermouse.
At the black end of the spectrum is a perfect lack of consent, in which the victim lacked all agency; at the red end is fully consensual sex. In between we find cases such as the ones Biting Beaver describes, in which coercion and pressure is unfairly used to make someone “consent” to sex. Instead of asking “was this rape or not?,” the question Biting Beaver’s post brings up is “were there rape-like elements to this encounter? Were there degrees of unfair coercion and pressure?”
But our legal system is not set up to recognize a spectrum of consent; because courts and juries have a need for certainty, laws are written to create bright lines and black-and-white contrasts. The situation that Biting Beaver describes is a terrible injustice, but it’s one that the courts may not ever be able to address. But just because something can’t be addressed in a courtroom doesn’t mean that it isn’t reprehensible; nor does it mean that no injustice has been done.
Mary Koss, an academic and feminist activist who has spent her career studying rape, in recent years has been working on “restorative justice” as a means of providing justice to victims of sexual assault and rape. Here’s part of a brochure for Restore, a program Koss helped create that specializes in restorative justice for sexual offenses:
Restorative justice is not perfect justice; but in many cases restorative justice may be more useful for victims. This would include cases that the regular courts cannot prosecute, either because they’re too distant from the “perfect lack of consent” end of the spectrum, or because they’re “she said / he said” cases that are unlikely to be resolved in an adversarial justice system. It might also include cases that the regular justice system might be able to address, but without bringing as much satisfaction to the victim as restorative justice can.
Discussing restorative justice in greater detail is beyond the scope of this blog post, but interested readers can check out the Restore website for more information.