Alison (not her real name) lived with her eight-year-old daughter in a rented farm cottage. For some weeks she had been having a relationship with one of her workmates, which she had ended. Late one evening, the workmate came to plead his case, then to argue, then to bully. Finally he forced himself upon her.
Alison knew that, if she screamed and struggled, her daughter who was fast asleep upstairs would be the only one to hear. She dreaded the thought of the child's waking up and running downstairs to find her mother being sexually assaulted. She saw herself as having no option but to get it over with as silently and quickly as possible.
That night Alison was raped. That is what rape is: intercourse with a woman against her will. Now, because of some more than usually muddled thinking on the part of legislators, men too may be raped. The old crime of forcible buggery has become male rape - as if women, too, could not be forcibly buggered.
Once upon a time we knew the difference between the orifices involved, and the possible consequences, but that was then and this is now. Judges still give far heavier sentences for attempted male rape than they do for fully consummated female rape. The new nomenclature has not produced any new thinking about the nature and gravity of sexual assault. Or the inequality of men and women before the law.
When Alison turned up for work the next day she was so pale and withdrawn that her workmates were worried. Eventually, one of them managed to find out what was wrong. To all the women, it was obvious that Alison had not consented to sex.
The men, however, seemed to think it was a storm in a teacup. He hadn't knocked her about, had he? But of course he had. She felt despoiled, used "like a spittoon" and was disgusted with herself. The wound to her self-esteem will probably never heal. The perpetrator knew that he had damaged her and was gratified. At work, he behaved as if nothing had happened. Alison gave up her job, took her daughter out of school and left the district.
Alison made no complaint to the police. If she had done, she would probably have been treated with great skill and sympathy, and the people who dealt with her would not have let themselves be seen to doubt her version of events, but there would be little that could be done in the way of redress. The fact of intercourse could be proved, provided that she had not washed since the event, as could the identity of the man involved.
Thus the whole issue would turn on the question of consent. There were no witnesses; the child slept through the whole thing. The man would say that she eventually consented; she would say that she eventually submitted. Any halfway decent lawyer could have destroyed her case in cross-examination. She would have had to relive the rape countless times, before different groups of strangers, retelling the humiliating narrative over and over again, only to see her tormentor finally triumph over her, because it was simply his word against hers. All he had to say to escape punishment was that he thought, or believed, that her silence was consent.
The law of rape is anachronistic, unworkable and should be struck down. Tinkering with it has resulted in a huge expenditure of resources and effort by police forces which have little enough of either, in return for no improvement whatsoever in women's chances of redress. The fault lies in the very concept of rape itself.
The crime of rape is not committed against the victim, but against the state; the victim is Exhibit A in the case of Regina vs the rapist. As a piece of evidence, the victim must be interrogated and tested in every possible way, because rape is considered to be so grave, second only to murder.
It is not women who have decided that rape is so heinous, but men. The only weapon that counts in rape is the penis, which is conceptualised as devastating. Yet a man can do more harm with his thumb than he can with his thin-skinned penis. But it is his penis that is to him the symbol and instrument of his potency. The notion of rape is the direct expression of male phallocentricity, which women should know better than to accept.
If you talk to raped women, they usually resent all the other insults that accompanied the rape more than the unwanted presence of a penis in the vagina. The forcing of a penis into a mouth, for example, is not rape but sexual assault, yet a victim may resent it more; likewise forcible buggery, ejaculating on to the face or breasts, and so forth. In some cases, what remains in the memory and continues to perturb years after the event are the words a rapist forced his victim to say.
If physical assault were not so terrifying to women, most rapes would never happen. 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. The punishment for cutting your nose off would be less than the punishment for rape, but then you wouldn't be suspected of having consented to having your nose cut off.
Historically, the crime of rape is not an offence against women, but an offence committed against men by other men. The man who has control of a woman, historically her father, guardian or husband, has a case against the man who makes unauthorised use of her. When the state seeks redress, it acts on behalf of the patriarchy and not on behalf of the injured woman.
If the woman has consorted with a stranger male against the wishes or without the knowledge of her male guardian, it is she who is the malefactor and must be punished with due severity; in some societies she may even be killed by the men she is considered to have betrayed. In British law courts, this historic tradition survives as the duty of counsel for the defence to build up a case to incriminate the woman in order to exonerate the man who has abused her. The prosecution is thus bound to injure the victim to some extent, sometimes more gravely than the rape itself.
A foggy recognition of this injustice has resulted in the practice of concealing the identity of rape victims, but this simply reinforces the victim's awareness of having been shamed by the offence committed against her. Some exceptional women are now insisting on prosecuting rapists openly and publicly, as an explicit denial of any notion of shame attaching to the woman who has been outraged.
In its strictest form, patriarchal morality requires that, rather than be penetrated by an unauthorised penis, a woman should fight to the death. If she survives, her male relatives may kill her, and so purge the dishonour to the whole family. Fighting to the death is the only way a woman can be effectively exonerated from the suspicion of consent; however unreasonable it may seem, anything less can be interpreted as evidence of consent.
A woman who has no injuries to display and can provide no evidence of a struggle is already in trouble when it comes to seeking redress. The vast majority of raped women never even try. Every day, men rape women who are in bed beside them, with complete impunity, because the withholding of consent cannot be proved. Rape is not an extraordinary crime committed by a few contemptible individuals; it is part of everyday life for huge numbers of women. Being raped by a stranger is like being hit by a runaway bus; your injuries eventually heal. When the person you love and respect most in the world is indifferent to whether you welcome his attentions or not, the psychological consequences are lifelong and devastating.
The history of the crime of rape also explains the obsessive concern by the authorities with the possibility of mischievous women making false accusations of rape against innocent men, dragging their names in the mud.
It is certainly true that any man publicly accused of rape will be damaged. But in a situation where only 5.6 per cent of complaints result in a conviction, the vast majority of the men named could claim they have been falsely accused. It is their victims who then have to live with the additional stigma of having been discredited.
The current situation is one of damage maximisation, from the crime to the investigation to the outcome. The suggestion that distraught women in the immediate aftermath of the event should be videotaped and the tape shown to the jury is outrageous. Few raped women now go to the police. The prospect of ordeal by video will reduce their numbers still further.
There is a solution, but it is not recognised as such by feminists or legislators. That is to abolish the crime of rape altogether, and instead to expand the law of assault to include sexual assault in varying degrees of gravity; so that, for example, mutilating assaults on children would be recognised as many times graver than penetration of a grown woman.
If we return to the case of Alison, it can be seen that what she endured is what we might call petty rape. I doubt she would have wanted her assailant to be imprisoned for years; but seeing him sentenced to 100 hours of community service might have gone a long way to making her feel better. It might even have taught him something about taking women for granted. Other aspects of the offence, such as whether it exposed the victim to the risk of pregnancy or infection, could also be taken into consideration.
There are feminists who would be outraged at the idea of downgrading the crime of rape in such a way; indeed some feminists have demanded that convicted rapists be castrated, which is to give to the penis the same exaggerated importance as men do. To increase the penalties for the unlucky few who get convicted of this very common crime, while the vast majority get off scot-free, is not the way to go. Besides, a castrated rapist will use something more dangerous than his penis next time.
In exchange for allowing the offence to be downgraded, women should demand the lessening of the burden of proof. No one could take the uncorroborated statement of a complainant as sufficient basis for depriving a man of his liberty for years. But if what is alleged is common assault with a sexual component, and carries a lighter penalty, women's testimony could safely be given more weight. And we would not all be subjected to the silliness of protracted and hugely expensive trials involving inebriated undergraduates who collapsed in bed together and woke up unable to remember exactly what transpired.
This is not the first time that a reformer has suggested the removal of the crime of rape from the statute. Some countries have already revised their criminal codes to some extent, but so far they have not gone far enough, and judges have simply treated the new offences as if they were the old ones with different names.
What we need is a full investigation of the whole panoply of sexual offences, and a repositioning of the right of all individuals, male and female, married and unmarried, gay and straight, children and adults, to sexual autonomy. Nothing less will do.
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