Recent discussion on reddit led me back to an old comment I made in response to the assertion of another commenter in defense of feminist researchers using an overly broad definition of rape that the crime is hard to define. While I understand why a feminist might think that, as proponents of the ideology can't even fully agree on what constitutes consent, the determining factor in their various definitions for the crime, I disagree.
I contend that such a belief relies on ignoring the importance of mens rea, a vital factor which feminists strive to eliminate from the discussion. I would argue that relying on the subjective concept of sexual consent rather than the more definitive measure of intent, which can be demonstrated based on the alleged perpetrator's provable actions, makes it more difficult to determine whether or not a crime has been committed. Relying on whether proof of consent exists also places the burden of proof in a criminal case on the accused rather than on the accuser, a violation of the due process rights of the accused.
My response was to describe how rape should be defined in order to avoid confusion and minimize the incidence of false allegations resulting in conviction.
It would have to start with describing sex crime in general, defining that as the act by the perpetrator of contravening or disregarding the victim's right to refuse sexual contact.
Disregarding should be defined as ignoring an unresponsive/incapacitated state, or age or disability related inability of the victim to understand and agree to the act. This would cover incapacity due to an intoxicant, and protection of minors and the mentally disabled. It wouldn't cover drunk sex with a responsive partner, as a responsive partner is capable of refusal.
Contravening could be defined as taking any measure to enforce the perpetrator's will on an unwilling victim such that the victim no longer has the option to refuse. This would cover physical force, coercion by threat, and surreptitious use of an intoxicant to bypass the victim's will. It wouldn't cover pressure or seduction, as these means do not prevent refusal, but seek to persuade.
The term "rape" would be used when there was penetration of any orifice by either the perpetrator or the victim, or enforced oral contact with sex organs, under the conditions described in the overall refusal definition.
This would cover the actions generally considered to be sexual intercourse - oral sex, vaginal sex, and anal sex would all fall under that definition, even when the perpetrator is a female rapist forcing the victim to perform cunnilingus, where "penetration" might not be seen as an accurate description of the act.
Making the definition so specific would avoid problems caused by using an overly broad definition which relies on a subjective concept like sexual consent. It would go a long way toward reducing false allegations brought forth due to misunderstanding of the law, and provide counselors with a clear guideline for discussion of prevention - communication would be key, as it would be made clear that a potential victim has both the right and the responsibility to communicate refusal unless incapacitated or unqualified, and a potential partner becomes a perpetrator at the moment that refusal (or incapability) is ignored.
I contend that such a belief relies on ignoring the importance of mens rea, a vital factor which feminists strive to eliminate from the discussion. I would argue that relying on the subjective concept of sexual consent rather than the more definitive measure of intent, which can be demonstrated based on the alleged perpetrator's provable actions, makes it more difficult to determine whether or not a crime has been committed. Relying on whether proof of consent exists also places the burden of proof in a criminal case on the accused rather than on the accuser, a violation of the due process rights of the accused.
My response was to describe how rape should be defined in order to avoid confusion and minimize the incidence of false allegations resulting in conviction.
It would have to start with describing sex crime in general, defining that as the act by the perpetrator of contravening or disregarding the victim's right to refuse sexual contact.
Disregarding should be defined as ignoring an unresponsive/incapacitated state, or age or disability related inability of the victim to understand and agree to the act. This would cover incapacity due to an intoxicant, and protection of minors and the mentally disabled. It wouldn't cover drunk sex with a responsive partner, as a responsive partner is capable of refusal.
Contravening could be defined as taking any measure to enforce the perpetrator's will on an unwilling victim such that the victim no longer has the option to refuse. This would cover physical force, coercion by threat, and surreptitious use of an intoxicant to bypass the victim's will. It wouldn't cover pressure or seduction, as these means do not prevent refusal, but seek to persuade.
The term "rape" would be used when there was penetration of any orifice by either the perpetrator or the victim, or enforced oral contact with sex organs, under the conditions described in the overall refusal definition.
This would cover the actions generally considered to be sexual intercourse - oral sex, vaginal sex, and anal sex would all fall under that definition, even when the perpetrator is a female rapist forcing the victim to perform cunnilingus, where "penetration" might not be seen as an accurate description of the act.
Making the definition so specific would avoid problems caused by using an overly broad definition which relies on a subjective concept like sexual consent. It would go a long way toward reducing false allegations brought forth due to misunderstanding of the law, and provide counselors with a clear guideline for discussion of prevention - communication would be key, as it would be made clear that a potential victim has both the right and the responsibility to communicate refusal unless incapacitated or unqualified, and a potential partner becomes a perpetrator at the moment that refusal (or incapability) is ignored.
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