Abstract
Whereas homicide laws scale charges by intent, sexual assault laws do not. This essay considers how updating our legal and cultural vocabulary around sexual violation could benefit both survivors and offenders.
In the wake of the #MeToo movement, lawmakers in some U.S. states, including Indiana, have updated their sexual assault laws. Above, the Indiana Statehouse in Indianapolis.
iStockPhoto // Ward DeWitt.
As attention to the #MeToo movement increased in 2017, so did social focus on the problem of sexual assault. These wide-reaching social conversations in the United States and many other countries prompted renewed analysis of sexual assault, both culturally and legally. In the wake of this social conversation, a number of U.S. states, including Indiana and Maryland, as well as several countries, including France, updated their laws to be more conscientious about sexual consent. This type of legal action and attention is not new; anti-rape activism has long been a foundational element of feminist movements, with early efforts seeking to reduce the penalties for rape in hopes of raising conviction rates, as well as challenging simplistic cultural understandings of traditional “rape.” Whereas traditional rape was conceived as a physically violent crime involving vaginal intercourse committed by a man against a woman, feminist challenges in the 1970s sought cultural and legal recognition for a more expansive understanding of “sexual assault,” which included coercion, manipulation, and many forms of sexual contact. (To this day, the legal construction of “sexual assault” is often indistinguishable from “rape,” although the terms seem to carry different connotations in popular culture and discourse.) More recent activism has sought to criminalize marital rape, as well as to legally and culturally canonize the idea that nonconsensual sex is illegal—period.
Many Americans are surprised and appalled to learn they live in states where nonconsensual sex is not technically illegal (nonconsensual sex is not technically illegal in many European jurisdictions, either). While many states and a few countries have updated their sexual assault laws to legally and symbolically enshrine the idea that “no means no”—a political rallying cry that has been translated to many languages, emphasizing the idea that nonconsensual sex without weapons or obvious physical violence is still rape—many still have not.
This growing chasm between laws and fundamental cultural norms and values seems to have contributed to increasing social unease and uncertainty around sex, consent, and dating among many young people. Contrary to media portrayals that show young people engaging in rampant casual sex at very young ages, in real life, adolescents and young adults are having less sex, with fewer people, and at older ages than recent generations—and qualitative research indicates that many express discomfort and uncertainty around expectations about appropriate behavior in sexual and dating contexts. Neither individuals nor culture nor the law seems very consistent or clear about what contemporary sexual norms are or should be.
This disconnect between culture, laws, and norms of behavior persists in part because rape was legally and socially constructed hundreds of years before the advent of modern dating cultures, where young men and women now expect to be allowed to socialize in sexually charged environments without chaperones. Even the feminist legal updates in the 1970s had only begun to scratch the surface of a cultural shift where coed college dormitories became increasingly normal and where both young men and women came to expect to have sex with multiple partners before marriage. In contemporary heterosexual dating cultures, it is generally assumed that women, as well as men, want and enjoy sex—but the view that men want it a lot more than women persists. That baseline assumption supports an ongoing heterosexual norm that men pursue sex with women and women acquiesce (or not) to men’s pursuits. However, the same cultural dating scripts also discourage men and women from actually talking about sex and their sexual desires, while encouraging the use of intoxicants when engaging in sexual activity. The combination of these factors creates a dangerous space of opportunity for nonconsensual sex. That is, as men mostly pursue sex without talking about it—and women are mostly pursued—women are inevitably much more likely to be the victims of sexual violation, especially when both parties are intoxicated. Moreover, as young people have come to expect much more freedom in their unchaperoned mixed-gender socialization, it’s likely that the opportunities for such violations have also increased.
Somewhat to the surprise of their authors, recent accounts of sexual behavior on college campuses don’t support the idea that all of these violations are perpetrated by criminally heartless and callous young men. Instead, many of the men described in these accounts seem devastated to learn that their sexual advances were unwelcome. Their experiences should encourage us to have more thoughtful social conversations about the way we want to construct our legal and social understanding of sexual assault. As it stands, sexual assault is the only major criminal law where the mens rea of the accused is treated as basically irrelevant. Mens rea, which means “guilty mind” in Latin, refers to criminal intent. As a legal concept, in many contexts, it distinguishes a crime from an accident. Did someone set out to hurt another person? If the answer is no, then we typically treat the event as an unfortunate accident, and if the answer is yes, then we are more inclined to treat the event as a crime.
intentionality informs criminality
Generally speaking, American law recognizes four degrees of criminality: (1) intentionally, which means a person sets out to commit a criminal act deliberately, (2) knowingly, which means a person knows that a crime will be the result of their actions, even if committing the crime was not their goal, (3) recklessly, which means that a person did not intend to hurt someone but the potential harmful consequences were obvious, and (4) negligently, which is functionally “criminally stupid” behavior. Although homicide charges have a relatively sophisticated acknowledgment of these categories, sexual assault charges do not. (Even U.S. states such as Arizona that include language to the effect that the defendant “knowingly” had sex with a woman against her will still do not scale sexual assault offenses according to intentionality.) Since our criminal justice system treats murder and rape as the two most serious violent offenses that individuals can commit against other individuals, it seems strange that we approach them so differently.
This difference emerged in large part because the historical social and legal construction of the crime of rape was a product of cultural time: Marriage used to be the only legally and culturally approved context for sex, meaning that marriage was functionally a literal license for sex. (Sex work remained a legal and cultural gray zone for sexual consent and often provided the only semi-socially acceptable outlet for nonmarital sex.) Outside of marriage, women were assured few protections and faced extreme social stigma for pregnancy and childbearing, which was a likely consequence of sexual intercourse in an era with few birth control options. As a result, both culture and the law assumed that women would often say “no” to sex that they “actually wanted” because they had so few reasons to say “yes”; and since “all women would say ‘no,’” the only ones society viewed as deserving of collective sympathy in the event of unwanted nonmarital sex were those who literally put up a fight. Physical violence thus became the measure for proving both the victim’s state of mind—to prove the strength of her dedication to not having sex—and that of the defendant—to prove that he knowingly and intentionally violated her consent. In short, proof of violence became the substitute for proof of the defendant’s mens rea in sexual assault crimes.
Although the contemporary cultural understanding of sexual assault has expanded far beyond its original framework of physical violence, our conceptualization of offenders’ motives and actions has barely changed, culturally or legally. Qualitative research supports the position that what we currently label as “sexual assault” and “rape” exists along a spectrum of criminality. That is, some people commit rapes intentionally (“I set out to rape someone”); some people commit rapes knowingly (“I was callous toward her consent, pleasure, and enthusiasm”); some people commit rapes recklessly (“There was abundant evidence that he didn’t consent, but I really thought he didn’t mean it when he said ‘no’”); and many people commit rapes negligently (“Well, she never said ‘no,’ so I thought that was good enough”). Indeed, interviews with prosecutors suggest that one of the problems with trying to charge and convict offenders is that many serious sexual assaults do not conform well enough to the structure of current laws or to jurors’ limited understanding of the crime.
Scaling sexual assault by intentionality helps clarify why many people find “stealthing” (where a man begins having consensual intercourse with someone using a condom and then removes it partway through without obtaining further consent) so repugnant. Even though it is rarely explicitly illegal and we often struggle to articulate why this behavior is so offensive beyond the potential physical risks to the other person, the simple answer lies in its blatant intentionality: These men intentionally and knowingly set out to violate someone’s consent. While that behavior does not conform to any conventionally understood cultural or legal ideas of “rape” per se, it definitely constitutes an intentional and blatant sexual violation, and as such, might arguably be understood as more morally offensive than negligent unwanted sexual intercourse.
In contrast to the notoriety garnered by stealthing, the aforementioned qualitative studies of college students’ sexual behavior indicate that consent in many real-world encounters is often much less clear than we might imagine. While social programs tend to imagine unambiguous situations of sexual nonconsent, with one infamous public health campaign proposing that refusing sex should be as “simple” as refusing tea, a depressingly high percentage of nonconsensual sexual encounters occur in contexts where both people were intoxicated and no one ever said “no.” As so often happens when social institutions fail to helpfully guide and regulate behavior, even something as basic as the contemporary cultural construction of consent in both practice and philosophy remains fuzzy. We have been operating with simultaneous and completely contradictory social norms that imply “all sex is consensual unless someone objects” and “all sex is rape unless someone consents.” These contradictory cultural norms are conspicuously represented in our legal landscape, in which a plane trip from California, where the law ostensibly demands clear consent for sex to be legal, to New York, where rape still means the use of physical coercion to force nonconsensual intercourse, lands in an entirely different legal context of sexual consent.
expanding our cultural and legal vocabulary
The cultural implications of this failure to develop a more nuanced understanding of sexual assault are potentially devastating, both for victims and for the accused. Imagine if we branded everyone who accidentally killed someone with their car while running a red light a “murderer.” That is a title which, in classical sociological terms, is a “master status,” meaning it takes over a person’s life. Culturally, we usually have the compassion to understand that most of us who drive cars have run red lights in our lives, and it is difficult to imagine a prosecutor successfully convicting such a driver of “first degree homicide”—meaning intentional murder—in front of a jury of their peers. But we have been applying the label “rapist” (which also is a master status) to many young men who have not committed their crimes with intent, nor even with knowledge. In both formal courtrooms and informal courts of public opinion, having a more nuanced cultural and legal vocabulary to understand rape would help us better unpack the actions of violators and survivors.
This distinction between intentional and unintentional sexual violations also has enormous implications for targeting interventions. If we assume that most sexual assault victims experience violations at the hands of men who deliberately set out to rape them (intentionally) or who wanted sex at any cost (knowingly), our interventions will look very different than if we assume that most sexual assault victims experience violations from men who didn’t know what they were doing or didn’t know any better. Medical anthropologist Jennifer Hirsch and sociologist Shamus Khan’s book Sexual Citizens presents data showing that one of the most effective ways to prevent sexual assault in college is to send high school students to sex education programs where they’re taught to say “no” to sex, which strongly suggests that a significant proportion of college sexual violations are unintentional.
While the experiences and support needs of the survivors of, say, rape by soldiers in a war-torn country and the aforementioned college student whose date never asked for or received a “yes” to sex might be similar, the social mechanisms for preventing these violations and managing the violators should be entirely different. Indeed, a growing body of evidence suggests that many survivors are severely traumatized by unwanted sexual experiences where they never said “no” or tried to stop the other person, even when the consequences of doing so probably would have been small by the survivor’s own calculation. These survivors are negatively affected not only by nonconsensual sex. They are also affected by their feelings of guilt for “not having spoken up,” and then they are negatively affected again when they recount their stories and experiences to significant others who respond without compassion, telling them “they weren’t really raped.” The impact of these social responses is significant as research suggests that the sympathetic response of others is often a major factor in whether sexual assault becomes encoded as a clinically traumatic experience or simply a very bad memory.
As so often happens when social institutions fail to helpfully guide and regulate behavior, even something as basic as the contemporary cultural construction of consent in both practice and philosophy remains fuzzy. We have been operating with simultaneous and completely contradictory social norms that imply “all sex is consensual unless someone objects” and “all sex is rape unless someone consents.” These contradictory cultural norms are conspicuously represented in our legal landscape.
If we updated our legal and cultural vocabulary around sexual violation, we would have more sophisticated ways to productively help both survivors and offenders. Rather than having unhelpful and often literally traumatizing conversations that withdraw legitimacy, sympathy, and social support from survivors based on the observation that an unwanted sexual encounter where someone never said “no” probably does not meet a legal standard for “sexual assault,” we could instead have better informed and nuanced conversations about how a person can be genuinely victimized without someone else being guilty of intentionally hurting them.
We must remember that in practice, the current legal construction has often created an unfortunate burden of proof for victims, who find themselves called to show their own mental state at the time of the crime, rather than the more usual burden of proof for defendants.
should we treat rape differently than murder?
Many of us might hesitate to advocate for the overhaul of laws about sexual assault, worried about the implications of directly or indirectly facilitating a carceral criminal justice system. However, we should remember that overhauling laws can also mean overhauling penalties (as the earliest feminist anti-rape legal activism sought to remove the death penalty from U.S. rape convictions) and changing the overall idea of punishment. We also might worry about tacitly condoning the racial injustices of the U.S. justice system through such advocacy; however, I would encourage concerned readers to look for twenty-first-century statistics on racist enforcement of violent crime statutes in general, and rape in particular, as these statistics are far less clear-cut than might be expected. Moreover, the need for these cultural and legal revisions is relevant in other countries, even those with less punitive criminal justice systems, as well.
Others might hesitate to support this type of sexual assault legal overhaul for fear that it could empower defendants (usually men) at the expense of victims (usually women). This fear is understandable, but we must remember that in practice, the current legal construction has often created an unfortunate burden of proof for victims, who find themselves called to show their own mental state at the time of the crime, rather than the more usual burden of proof for defendants. As the legal scholar Kari Hong imagines in an article defending the need for greater attention to mens rea in U.S. rape laws, such reforms might fruitfully switch focus from irrelevant questions about what the victim was wearing to far more pertinent ones like how the defendant behaved toward the victim before, during, and after their encounter. Creating a more focused social and legal conversation about what the defendant believed and intended concerning consent, rather than trying to treat all nonconsensual sex as the same, could go a long way toward creating more compassionate and reasonable responses to both victims and offenders.
Regardless of whether we ultimately decide to change the law or our cultural perspective on the role of intentionality in committing sexual assault, the fact that we treat rape so differently than we treat all other violent crimes is sociologically significant. One is hard-pressed to find American legal scholarship defending the present construction of rape, although there is a pervasive sense in contemporary legal circles that these laws need to be changed somehow. Indeed, arguments about how exactly to change these laws have reportedly stalled out the American Legal Association’s attempts to update its recommendations for criminal law writing in general. Tracing out the complicated history of how rape laws emerged and understanding their implications for the present and the future can help us make more informed choices if we decide to keep our present social and legal construction. If we choose not to change the law, it should be a conscious decision, informed by rational discourse about the pros and cons of its construction, rather than a passive acceptance of its exceptionalism.