Real Rape

Christopher Hurtado —  April 13, 2010 — Leave a comment
Real Rape | Christopher Hurtado

Susan Estrich argues in chapter six of “Real Rape” that “simple rape is real rape” (881). Simple rape is distinguished from aggravated rape in that aggravated rape is defined as committed through conscious coercion, whereas simple rape is defined as committed by negligence.

Estrich cites British rape case, Director of Public Prosecutions v Morgan, to demonstrate significant differences between American and British definitions of rape. The British look to the man’s mental state in committing rape, while America has almost completely dismissed the intent requirement. Morgan held that if a man believes that a woman has consented to sex, he cannot be convicted of rape, no matter how unreasonable his belief (875). Estrich argues that this is problematic on many levels. She argues that by dismissing the intent requirement, women, not men, will are on trial and the woman’s sexual history is called into question. She argues further that, the “issue to be determined is not whether the man is a rapist, but whether the woman was raped,” and that acquittal “signals that the prosecution has failed to prove the woman’s sexual violation—her innocence—beyond a reasonable doubt” (877). Finally, Estrich argues that without an intent requirement, the resistance requirement is generally used and that a woman’s resistance, or lack thereof, in a rape is no clear indication of whether she consents to sex since she may feel that resistance is futile.

Estrich next addresses the negligence liability clause which is built on the premise that a man may have lacked understanding of the appropriateness of the situation and/or that the situation was ambiguous. Estrich attacks this argument by saying that whereas a truly stupid man who is unaware of his actions is rare, whereas a man who “could have done better but did not; could have paid attention, but did not; heard her refusal or saw her tears, but decided to ignore them” is much more commonplace (878). Estrich then argues that the “real significance of saying that negligence is enough. . . depend[s] on how we define what is reasonable” (878). The “no means yes” philosophy tends to invalidate simple rape, despite the fact that a reasonable man should understand that “no means no.” The standard should be “no means no,” not “no means yes.” A woman should not have to physically resist to prove that she means what she says when she says no, and any advances she makes do not necessarily give a man license to then do “whatever he might have in mind” (879). Also, a woman’s powerlessness does not imply consent.

The law should take steps toward setting a higher standard. Estrich says, “There are lines to be drawn short of the ideal” (880). Despite social and judicial norms celebrating women’s chastity and treating rape cases in this light, rape is not an issue of “chastity or unchastity, but freedom and respect” (880). Reasonable men should understand that “no means no” Rape is a serious crime, whether performed as an act of violence or not, because it is injurious. Simple rape is rape and as such it is condemnable as criminal conduct.

Christopher Hurtado

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Christopher Hurtado is President and CEO of Linguistic Solutions and Adjunct Instructor of Philosophy and Political Science at Utah Valley University. He holds a BA in Middle East Studies/Arabic and Philosophy and an MA in Nonproliferation and Terrorism Studies. He coauthored Vacation Spanish: A Survival Guide for Mexico, the Caribbean, Central & South America. He is married to children's book author and homeschool mom, Alysia Gonzalez. Together they have nine children. They are active in their church and in their community.

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