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August 22, 2012 8:00 AM The Varieties of Rape

By Mark Kleiman

Speanking of bullsh*t, here’s my current favorite sample: “All rape is real rape.”

Are there different kinds of rape? What kind of stupid question is that? Of course there are.

To be lawful, sex must take place with valid consent. It’s unlawful if one of the parties

1) Doesn’t consent

2) Can’t consent due to temporary incapacity (e.g., due to alcohol or other drugs)

3) Can’t consent due to permanent incapacity (profound cognitive impairment)

4) Can’t give valid consent because underage.

Sex under any of those circumstances is, and ought to be, forbidden. Which of them is called “rape,” with or without a modifier such as “statutory,” varies from one jurisdiction to another.

In law, we can make them the same crime: same name, same penalty, just as in some states walking through an open kitchen door in midafternoon to take an apple from an empty kitchen is “burglary,” just like smashing down the same same door at 2am to steal everything in the house.

But they’re not he same actions, and for some purposes we will want to distinguish among them: perhaps even in the degree of culpability of the offender.

Are they all “real rape”? Depends on what you mean by “real.” When Whoop Goldberg denied that Roman Polanski had committed “rape-rape,” she meant that his actions didn’t fit the pattern of a stranger grabbing a woman and taking her by force or fear, which is the original definition of the crime.

That was true; whether her implied conclusion that Polanski’s culpability was less than that of a “rape-rapist” is a different question, and I don’t come down on what I take to be Goldberg’s side of it, since giving a thirteen-old-drugs and then taking advantage of her seems to me about as bad as it gets.

Very few people doubt that sex with an eight-year-old, whether you want to call it “rape” or “child molestation,” is morally on a par with forcible rape, or that an eighteen-year-old, no matter how immature, is capable of giving valid consent. In between, most state laws recognize gradations, based both on the age of the victim and the age gap between victim and perpetrator. And of course the age eighteen - or any other number - and the rules about gradations are to some extent arbitrary. So if a forty-year-old man who molests a pre-pubescent child is a rapist, and a boy who makes it on his eighteenth birthday with his girlfriend two months younger is something less than a rapist but has still committed a sex crime, then there are indeed not only distinctions but gradations with the crime of rape and its relatives.

Another set of distinctions concerns the mental state of the offender. Whether the other party to sex consents, and whether that consent is valid, is sometimes obvious and sometimes not. When a stranger jumps out from behind the bushes and grabs someone, there’s not much doubt. When one member of a couple that has had consensual sex before engages in some degree of voluntary contact and then wants to stop, it may or may not be clear to an outsider when, or to what extent, the accused became aware that what was going on was no longer consensual. That’s especially true if both parties have voluntarily consumed intoxicants, which can interfere with cognition, decision-making, communication (sending and receiving) and memory. The case of someone who slips a Roofie into his partner’s drink is simple. The case of a couple getting so sloshed that neither has a clear memory of what happened next isn’t. Did she say “no”? Did he hear “no”? What is the standard of evidence for whether she was too drunk to give valid consent, and whether he knew or should have known that?

Finally – and this is what has gotten Rep. Akin in trouble – there’s the question of the complainant’s veracity. Again, with respect to the question of consent as opposed to the question of whether intercourse took place, this can be a matter of gradation: especially, again, when intoxicants are involved.

Of course it seems reasonable to mostly take the word of the complainant in a rape case, just as we do in a robbery case. But does anyone seriously believe that the frequency of false complaints, or complaints of ambiguous merit, is really zero?

So I’m glad we’ve gotten beyond the question of whether “no” always means “no” and that we’ve established the rule that valid consent is a precondition of lawfulness, on something like a strict-liability standard. But that doesn’t require insisting that a single word covers all the possible cases, or that the cases are never worth distinguishing, legally or morally.

[Cross-posted at The Reality-based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.
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