The Problem With Prosecuting Rape is Patriarchy - Time to Get Rid of It
Image from The Enliven Project nicely illustrates the problem.
While I don't want this blog to be all about sexual assault of men, the issue of sexual assault looms large for a lot of men who have a) been or felt assaulted and b) have had their experience discounted or disbelieved.
Also, who c) often find themselves clogging feminist survivor's forums because, frankly, it often feels like there aren't a lot of other avenues in general society for broaching the subject. To, d) the dismay and frequent exasperation of the hosts of those forums who for better or worse feel derailed.
As I said, I don't want this blog to spend too much time on sexual assault of men.* But it is a blog about the impact Patriarchy has on men. And one area where that impact looms large? Well, there's the blunt fact that the concept of "rape" and related forms of sexual assault have been so completely bound up in patriarchal understanding of women as transferrable, depreciable property that there's simply no social location, construct, or concept in which men can be the assailed rather than the assailant.
As usual it's patriarchy, not feminism, that screws male victims of sex crimes. (And just to bring the point home and to anticipate one possible objection, the extent to which some older-school feminists said only women can properly be victims is the extent to which they grew up mired in the language of patriarchy.)
Want proof the legal concept of rape is so tied up with patriarchy that we ought to throw the whole thing out and start over? David Ferguson says a California appeals court has supplied the last straw:
A California appeals court has overturned the rape conviction of a man charged with raping a sleeping woman, basing the decision on an 1872 law that does not protect unmarried women the same protections as those who are married. According to the LA Weekly blog, the court found in favor of Julio Morales, who was convicted of rape after he slipped into bed with a sleeping 18-year-old woman and initiated sex with her, pretending to be her boyfriend.
Judge Thomas A. Willhite, Jr. wrote in the court’s decision, “Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.”
The court argued, however, that the case should be retried and that the archaic law should be examined and possibly overturned. Willhite called Morales’ actions in the case “despicable,” but that the state’s law left the three judge panel with no choice.
Source: The Raw Story
First of all, pause for three deep breaths: a) the defendant was initially charged and easily convicted; the appeals court recommended a retrial rather than dismissal; the appeals court judge called the law archaic and the defendant despicable. So we're not exactly in conspiracy theory land here.
As I've harped on endlessly about, the entire foundation of "rape" law rests on the bedrock idea from English Common Law that rape is a property crime against women's custodial males: their husbands, fathers, or others the value of whom's dowries or bride prices depend on the "condition" of their property's (a.k.a. the female victim's) genitalia. In other words virtually everything about rape as a crime is based on literal, men with beards and hats, capital-P Patriarchy.
Thus the conceit, embedded in California law (and elsewhere), dug up by a particularly enterprising defense attorney, and despised by appeals court judges, that it makes a criminal sexual assault conditional on whether a woman is married or not.
You want to know why sexual assault of boys and men is disregarded? You want to know why sexual assault on unmarried non-virgins is taken so seriously? You want to know why so many jurisdictions here and around the world consider it "rape" if and only if a penis (but only a penis) penetrates a vagina (but only a vagina?) You want to know why there's so much "she must have asked for it" and so much concern that "she must have wanted it but changed her mind?" (Note: in comments feel free to add more of the plentiful outrageous examples to my partial list.)
It's because in its heart of hearts the entire concept of "rape" isn't about assault at all. It's about vandalism of some guy's unguarded property. Where the "property" can't be counted on (entirely reasonably!) to share the interests of her property "owner."
Meanwhile, here in the American 21st Century there's a whole 'nother, non-gender-bound way of addressing the various sex-related crimes against people not property. Like sex-related variations of crimes like assault, battery, kidnapping, fraud, false pretenses, impersonation, intimidation, misuse of authority, and of others wherein neither the victims nor the perpetrators sex, gender, orientation, relationship status, sobriety, attire, or consensual activity have any bearing on how or even whether charges should be made or dropped.
Because (sweet Krishna on a rye crisp!) how many other deplorable little easter eggs from the 19th Century and before are still lying around in various local, state, and national laws regarding "rape?" The whole thing's a patriarchy-soaked, gender-bound nightmare. It's bad for women. It's bad for men. It's bad for prosecutors. It's a moral fucking sinkhole for defense attorneys It's bad for respect for the law as a whole. And it's bad for society. Time to chuck it. Whatever they're called there are crimes still being committed, but what we're continuing to call them is getting in the way. We're already 13% of the way through the 21st Century. We've waited long enough to get serious about this under the law.
* So unfortunately this blog isn't the best place for that either, but see suggestion.