Rape
Consent, Not Foreplay Fibs, Should Define Rape
By Wendy Murphy
WeNews contributing editor
Monday, August 23, 2010
Rape is subject to various legal definitions around the world. Wendy Murphy says a Massachusetts Supreme Court requires too much evidence of physical force and argues for two categories of rape: with and without force.
Gray Area Too Vast
Yes, this crime would enable the prosecution of twins who rape their brothers' girlfriends and fake doctors. But it might extend to men who pose as rock stars or otherwise inflate their resumes in a ruse to get women into bed. The gray area was too vast.
At the same time, the "rape by fraud" proposal wouldn't cover the types of behavior that really should be criminalized, such as when a mentally ill woman is subjected to unwanted sex by a predator looking to take advantage of a vulnerable person. (Right now it's a crime if the victim has retardation, but not if she suffers from a delusional disorder.) Or when a therapist takes advantage of a trust relationship and convinces a patient to have sex. These abuses are never prosecuted because physical force isn't necessary to coerce the victim's consent.
What we really need is a law that simply allows for the prosecution of rape without force. Period. If force is used, we'll call it rape with force.
We already have exactly these types of laws in place for crimes against our property.
If you take my stuff without my consent, it's called larceny. If you also use force, it's called robbery.
But if you take my bodily integrity without my consent, it's not a crime at all, unless you also use force. Crazy, right?
The U.S. Supreme Court has defined rape as the most severe insult to the self, short of murder; worse than any crime against property. Yet the law protects stuff better than it protects women's bodies.
No Perfect Way
There's no perfect way to pass laws that make people respect each other.
But rape without force is a good choice. It covers the fake doctor cases and much more, but doesn't make a felony out of an occasional foreplay fib.
It's a subtle distinction but one that matters, because the focus is not on whether the offender's actions provided a substitute for the element of force, but rather, whether the victim's choice was "knowing" and "voluntary."
This doesn't forbid fantasy foreplay but does require that my decision be the product of free will. It means I can choose to have sex with you if you pretend to be a cowboy, if you pretend to beat me with whips and chains and even if you pretend to belong to a certain religion--so long as I know you're pretending.
But if you know I wouldn't have sex with you (condom-free) if you have AIDS or if you really hit me with chains or if you know my religion forbids sex in certain circumstances, and you lie about any of it, you've interfered with my "knowing" consent and committed the crime of rape "without force" because it was done without my freely given consent.
Wendy Murphy is adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She's a former sex crimes prosecutor and author of "And Justice For Some." An impact litigator who specializes in violence against women, Wendy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.
Would you like to Comment but not sure how? Visit our help page at http://www.womensenews.org/help-making-comments-womens-enews-stories.
For more information:
Israel releases Arab man convicted of 'rape by deception' from house arrest:
http://www.guardian.co.uk/world/2010/aug/04/saber-kushour-rape-deception-release
RELATED STORIES
Submitted by sjmos (2 years ago)
Men lie to get laid. How is this news? This sure as hell is NOT rape.
Submitted by Rose4Justice (2 years ago)
Rape was not taken seriously by judges and lawyers until the early 90s when a few rape victims began groups and proposed legislation in California. These activists began educating judicial officers by informing them that rape is a crime, but it was an uphill battle. At the time, I had a talk radio show, Issues of the Day,and I interviewed women who had been raped. I learned that a key issue for victims of rape is admitting to anyone that they'd been raped because they felt embarrassed and humiliated by the interrogation and medical exam as well as testifying on a witness stand. As an author of a powerful newly released book, "Fight Back Legal Abuse," which includes 25 years of research, I touch on many serious issues that women encounter in the courts, such as, gender bias, which has been a serious problem for rape victims when testifying in court. Many male judges and lawyers didn't think of rape as a crime, even though, rape can be a violent crime, as well.
Submitted by Amy_Beth (2 years ago)
"Rape: the unlawful compelling of a woman through physical force or duress to have sexual intercourse." (Dictionary.com)
Duress = compulsion by coercion.
It really isn't far-fetched at all to call what the Palestinian man did rape. All of you seem to have an extremely narrow-minded view of what constitutes "rape" and I think this article is great because it attempts to expand our view of this crime. Limiting "rape" to simply a man penetrating a woman against her will is very dangerous because we end up having cases like Wendy Murphy mentioned -- the twins story?? Ridiculous.
I think for the safety of EVERYONE, it is crucial to expand our definition of rape to include coercion and deception. How can any of you defend a man blatantly lying to a woman to get her into bed? She may have consented, but she only consented because she was lied to.
Submitted by Dianne (2 years ago)
This is rubbish
Submitted by Pietro (2 years ago)
After having read the full story of the Israeli case I think it's clear the Palestinian man is not guilty of rape under any definition. The accuser assumed he was Jewish, but he never explicitly stated his religious or ethnic background as such. It is beyond the court's scope to speculate what he may have wanted the woman to believe.
However, in the case of the Massachusetts twin, he had no doubt his brother's girlfriend would mistake his identity and took advantage of that certainty.
Rape can definitely occur without force, even without deception. From a medical standpoint, I can only imagine the broad grey area that exists with women of varying cognitive deficits. Where does one draw the line?
Submitted by Dianne (2 years ago)
A Jewish woman has consented to sex, she performs an act of love with a man she later finds out the man is a Palestinian and crys rape. I have a serious problem with this issue, if anyone believs this man should be in jail you need to rethink your morals.This is the problem with the womans movement and why I roll my eyes when I hear rubbish like this.I thought my husband was Italian when I first dated him, turned out he was Portugues, if I divorce him maybe I will have him charged with rapeing me for over twenty years. Give me a break with this garbage shame on Wedy Murphy for this article
.jpg)
| REPRINT FAQS | Copyright © 2013 Women's eNews Inc. All rights reserved. |
Submitted by RangerBoyADC (2 years ago)
I am a man, i made this account to specifically address something that has bothered me in the past. What happened to these women is horrible, and i personally think all rapists should be imprisoned for life with no parole option, or just executed, i have no tolerance for rape. However many people forget that men can be raped too, and in many cases its because he has been lied to by a woman. I am in the military, and this has personally happened to me, met a woman, took her home only to find out she is married, and she told me when i asked her that she wasnt. Personally i think that would fall under that category, was i pissed yes, and i told her how disgusted i was by her. But i just feel like too many people feel rape is a crime conducted ONLY by men, i agree that it is mostly commited by men, but women are capable of the same act, especially in the respect of rape, by lying.