Stop blurring the line between rape and sex

‘All men are rapists and that’s all they are.’ Marilyn French

‘I claim that rape exists any time sexual intercourse occurs when it has not been initiated by the woman, out of her own genuine affection and desire.’ Robin Morgan

‘Heterosexual intercourse is the pure, formalized expression of contempt for women’s bodies.’ Andrea Dworkin

A school of 1970s and 80s feminism held that rape is a defining part of the relationship between men and women. Rape is at the back of every man’s mind, apparently, an intrinsic part of his desires. Indeed, these feminists argued that penetration was in itself an act of male domination; sex was rape even if the woman thought she was consenting.

It appears that the Dworkinite school of feminism has wound up working at the UK Home Office. The assumptions – that all men are potentially rapists, that rape is part of everyday life, that all defendants in rape cases are guilty – now form the backbone of policy documents and legal reforms.

The government last week announced new measures to ‘increase rape convictions’. Not to improve evidence gathering or social services, but to increase convictions, a demand that is normally restricted to totalitarian states. In the ensuing debate, everybody seemed to assume that nearly all defendants are guilty – they talked of ‘rapist’ and ‘victim’ not ‘defendant’ and ‘witness’ – and the question was simply how to lock more men up. Indeed, solicitor general Mike O’Brien claimed that only ‘between three per cent and nine per cent of rape claims’ were ‘vexatious’ (1). He didn’t reveal how he knows this – surely the question of guilt is for the trial to decide?

The law has now taken something like Robin Morgan’s view on board. The 2003 Sexual Offences Act makes consent ‘active, not passive’; if a woman goes along with sex but doesn’t give explicit active consent, it’s rape. Official promotion campaigns in men’s mags present rape as something that any man could stumble into on a drunken night out. Rape is presented as part of the everyday way men relate to women.

Rape convictions are indeed very low compared to other crimes. This is in part because rape is difficult to prove – there are often no witnesses, little physical evidence, and it’s a matter of his word against hers. Over the past few years the rape conviction rate has fallen further – the numbers of rape cases have shot up while successful convictions increased only marginally – but this is largely the result of the government’s redefinition of rape. More cases are reaching court that no sensible man or woman would call rape: drunken students who woke up the morning after and couldn’t remember what they had done, for example.

There was another view in 1970s feminism, which held that rape should be seen as a crime of violence. This is an argument we could do with dusting off today.

These feminists – including Germaine Greer – argued that rape had nothing to do with normal sexual attraction: it was about power and degradation, just like other physical assaults. One feminist blog, Den of the Biting Beaver (motto: ‘gnawing away at sexism and misogyny’), put this case recently: ‘Rape is not sex. Sex is not rape. We cannot allow this confusion to escalate or continue. Men rape, not because a woman is sexually attractive to them, but because he wants to get his orgasm from the degradation and control that he is wielding over his victim.’ (2)

The ‘rape is violence’ feminists were arguing against a dominant view that saw rape as a ‘crime of passion’, the idea that men raped because they saw a sexy woman and couldn’t help themselves. ‘She was wearing a short skirt, y’honour.’

Greerite feminists argued that rape should be tried like other acts of violence. Rape occurs when a man forces himself on a woman, and the woman resists. There should be no doubt that a crime is being committed: this is a question of assault, not of him neglecting to check for consent at every stage of proceedings. As the individualist feminist Wendy McElroy argued in an essay, ‘The New Mythology of Rape’: ‘Regarding consent the crucial question is, of course, “has a woman agreed to have sex?” It is not: has she been talked into it, bribed, manipulated, filled with regret, drunk too much or ingested drugs. And, in an act that rarely has an explicit “yes” attached to it, the touchstone of consent in sex has to be the presence or absence of physical force.’ (3)

As well as proof of physical force, a rape conviction requires the presence of a ‘guilty mind’. That is, the man must have intentionally committed rape, just as a person must have intended to murder in order to be convicted. The standard for this was set in a case known as Morgan, where a man invited his friends home to have sex with his wife. She would struggle, he told them, but she liked kinky sex and the struggle contributed to her pleasure. The men were convicted and their appeal later failed. But on appeal the House of Lords laid down a new standard of consent, holding that an honest, mistaken belief in consent could be a defence in rape cases.

This sensible principle has now been replaced with the notion that rape is the outcome of thoughtlessness or insensitivity. Home Office ads tell men: your belief that she consented is no defence against rape. Rape is again seen as a ‘crime of passion’, letting go when you see a sexy woman, rather than consciously and violently forcing yourself upon her.

Anti-rape ads don’t show dodgy men in dark alleys; they show attractive woman in lingerie. ‘Why is she portrayed as being sexual in a campaign designed to stop rape?’, asked Den of the Biting Beaver. One Home Office ad showed a slim female torso in white knickers that bore a no-entry sign. This is saying, lads, if you don’t check yourself you’ll end up in the dock. One young male columnist said that rape was the outcome of lads mags’ sex talk, as if a culture of Puritan restraint were the only check on rape (4).

The ‘rape is violence’ feminists also sought to demythologise rape, to take away its special stigma. A woman should no more be ashamed of being raped than a man would be ashamed of being hit over the head with a bottle. Neither act is the victims’ fault, and both victims should be able to move on and get on with their lives.

Rape is not the worst thing that can happen to a woman, argues Greer in a recent article. ‘If you allow a man to put his penis into your body because otherwise he will cut your nose off, you clearly feel that having your nose cut off is miles worse, but the asinine law does not agree with you.’ (5) She points out that rape was in the past seen as such a terrible crime because it was about tainted male honour. A raped woman would be defiled, a source of shame to fathers, husbands and brothers; the deed was done and could not be undone.

Now rape is again seen as a matter of permanent defilement. Women never get over rape, we are told; they are scarred for life. Rape cases are a law unto themselves – the woman’s name is kept secret, she is allowed to testify via a video link – set apart from other crimes. Everything reinforces the notion that this is a uniquely devastating and shameful crime.

Give me those feisty ‘rape is violence’ feminists any day. Some even called on women to learn self-defence to force off an attacker – Wendy McElroy proclaims the necessity of learning to ‘shoot lying down and to aim for the head’ (6). They sought to remove patronising patriarchal assumptions about women, and put rape on the level of other violent crimes.

(1) See In the News

(2) The danger in thinking sex is rape, Biting Beaver

(3) The New Mythology of Rape

(4) Lad culture corrupts men as much as it debases women, Alok Jha, 30 March 2006

(5) Independent on Sunday, 2 April 2006

(6) The New Mythology of Rape