Quick Hit: Drinking and Rape


Check out this amazing piece by The Lovely Jaclyn Friedman at Women’s eNews, “Drinking and Rape: Let’s Wise Up About It.”

and tagged . Bookmark the permalink. Both comments and trackbacks are currently closed.

104 Comments

  1. Posted March 1, 2007 at 1:52 pm | Permalink

    Michael, as I noted in the comment you reference, a lot of men take offense at the statements I made (as you did) because they’re difficult to phrase JUST RIGHT so they express the specific idea I’m communicating. I’ll try again.
    Obviously getting drunk doesn’t “make” a guy a rapist and reading my comments as saying this is overly simplistic. What I DID say is that we live in a culture that minimizes the horror of rape and in some cases even completely forgives it. This is unacceptable. It is also unacceptable that the media emphasizes burden of PREVENTING rape (falling on women, naturally) far above and over the burden of NOT RAPING (falling on the would-be rapists, almost always men).
    Obviously I am not saying every man is a rapist or wants to be a rapist or could be a rapist. I AM saying that there are a LOT of men out there who simply do not understand or appreciate what rape IS (due partly to social upbringing and in some cases to pure asshole-ishness). Thus, if we start educating men that rape is something THEY DO to unwilling women and that statistically speaking, rape is more likely to happen in certain situations, my optimistic hope is that many of these men who do not currently understand that what passes for “bad sex” is in many cases in fact rape, will be dissuaded from raping by the simple change of learning what rape IS. Thus, the problem is not that most men are “bad” or “want” to rape — it is that they do not understand, and have not taken it upon themselves to become educated about, what constitutes rape, and how they can make sure they are not doing it.
    This is the charitable view, as roymac has noted. I could, instead, take the view that the reason so many men deny rape accusations (almost none of which are likely false) is not because they are genuinely misinformed, but because they are in fact evil bastards who should burn in hell for eternity. Now, if my education proposal fails, I’ll sadly be proven wrong. But I like to give the men out there the benefit of the doubt.
    Similarly, this obviously does not refer to ALL men. The men here on feministing who regularly comment, for instance, UNDERSTAND that women’s sexual desires should be respected just as much as men’s, and that hesitancy/reluctance are as good as saying “no.” These men respect women and would never accept anything other than affirmative, enthusiastic consent. I like to think that a primary difference between these men and the other men I described, is that these men have made the effort and taken the time to listen to women’s experiences, and to learn about and respect those experiences such that they have a better understanding of what rape means. My hope is that making such education widespread will significantly reduce the number of rapes, such that the only rapists left out there (hopefully very few) are LEGITIMATELY assholes who can then be castrated and left for dead.* I like to think that your average college guy is actually, deep down, fairly decent, and with some education would understand and respect the difference between sex and rape.
    *I’m being flippant. I don’t actually advocate this as punishment. Except maybe in a few very rare cases ;)

  2. Denise
    Posted March 1, 2007 at 2:43 pm | Permalink

    Friedman is full of shit!
    She has written extensively about this rape and I wanted to research it since reading this nonsense yesterday. In all of her other articles on this “rape” she claimed she was raped because though she participated and “appeared willing” and “never said no” she was intoxicated and therefore was not of a “competent” mind. She argues she was raped because a “drunk woman can not be relied upon to give consent”.
    Now, she admits that the man who supposedly raped her was also intoxicated. First time she admitted that!! Now here’s the hard part for all of you man-hating “men are evil” feministing supporters: If the man was drunk doesn’t this mean SHE also raped him? If a woman when “intoxicated” is unable to give consent isn’t this also true of men? Or is this just ANOTHER example where your bizarre hateful ilk of feminism requires special treatment of women.
    Isn’t it interesting that on one hand you demand “equality” but then constantly argue for treatment as if women are children?
    This woman got drunk and fucked a guy and later regretted it and screamed rape. Oldest story there is…

  3. Posted March 1, 2007 at 2:53 pm | Permalink

    Denise, it’s one thing to disagree with us and call us names and make up silly stereotypes with no basis in reality.
    It is another to insult and mock someone who’s been subjected to a horrific, heinous crime.
    The first makes you a harmless and vaguely entertaining troll. The second makes you evil.
    A dark part of me wishes bad things on you, but my human side pulls me back and reminds me that you’re a simple child who apparently never learned to respect fellow human beings. And so I am sad for you, and for the awful life you must lead where you have nothing better to do with your time than to bait and ridicule women who have been deeply hurt.
    Honey… and I say this with all gentleness. Please get some therapy before you hurt yourself.

  4. EG
    Posted March 1, 2007 at 2:58 pm | Permalink

    The reason Ed is being attacked, Aaron, is he’s playing the same old song and calling it something new. What he’s saying is that women are responsible for men’s behavior, and if we would only alter our behavior, then men would stop raping us. Well, bullshit. Men are responsible for their own behavior, because they are reasoning adults–and if they’re not, if they can’t be held responsible for their own behavior as so many anti-feminists seem to imply when they go on about how women should dress, or act, or decide whom to grace with our pussies, in order to control men, then they shouldn’t be allowed out in public without a minder.
    And a pre-emptive reminder not to feed the hateful troll.

  5. EG
    Posted March 1, 2007 at 2:59 pm | Permalink

    Heh. Not pre-emptive enough! You’re really a better person than I am in so many ways, TLF. In all seriousness.

  6. Denise
    Posted March 1, 2007 at 3:03 pm | Permalink

    FAIRY:
    The woman admits she got drunk and decided to have sex with a drunk man. She says she participated willingly and never said “no” and even says she could have stopped it at any time. YET… she calls it rape because SHE was intoxicated (and it important to repeat: SHE points out that he was drunk, too!). This is not rape and the only “horrific, heinous crime” here is that she refers to it as “raped” and you support that.
    BTW, after her initial article on the “rape” the local police investigated and the local press covered the investigation. The FEMALE detective wrote in her report (according to the newspapers) that Friedman says “we were drunk, it was ill-advised sex but it wasn’t rape, except in the way that all sex between men and woman is rape”.
    Sick, stuff. Good job Fairy, thanks for taking up the usual feministing “hate all men and all men are evil and rapists” position and mantra. You just reveal yourself for what you are.
    You people are not feminists. You are man-haters and this site and your position does nothing but damage REAL feminism. You are a joke, a sad joke that serves those who try to denigrate real feminism.
    When women falsely scream “rape” they make it just that much harder for real victims and they should be criticized and prosecuted. Women like this make us less safe.

  7. Posted March 1, 2007 at 3:06 pm | Permalink

    TLF: Now you have dropped the alcohol reference completely. If you want to argue that many man have basically no problem with rape, they will not have much of a problem with alcohol too.
    And I wasn’t offended personally. To some degree I can actually identify with the rape culture remark. Movies portray women often as trophies for nice guys like ed. And, as Gavin de Becker convincingly argues, romantic courtship in movies is pretty much stalking. The guy gets rejected, doesn’t accept, does a lot of fuzz- and gets her, not a restraining order.

  8. Posted March 1, 2007 at 3:07 pm | Permalink

    Denise-
    I’m not sure what other articles you’re referencing. Can you link to them? Because I most certainly did say no, and I don’t know how I could have appeared willing, unless being actually passed out drunk in my bed qualifies as appearing willing.
    Nor did I “fuck” anyone. Let me be super clear about that. Nor did the guy who raped me in any way attempt to acquire consent.
    I don’t know why I am bothering to defend myself to you. I just want the record here to be clear on what I’m saying, I think. Some women don’t manage to say no, at least not verbally. They are no less traumatized by the experience of rape. (Some, more so.)
    And I don’t know in what way I would benefit from “screaming” rape. I’ve had quite a bit of sex over the years. Most of it has been pretty great. I like sex a lot. You can’t slut-shame me. You can try, but I just don’t have shame around it. But even when I’ve had sex that wasn’t much to write home about, or with someone I later maybe thought better of sleeping with… I just can’t imagine sex bad enough make it worthwhile for me to bring down on myself the pain that came with pressing rape charges. The friends I lost, the threats I received from both people and implicated institutions, having to relive the experience over and over again, the complete absence of any real justice. The ONLY reason to go through that process is because SOMEONE COMMITTED A HEINOUS BODILY CRIME against me, and I want to do my part in creating a world where that is not tolerated.
    Y’know, several people have said to me how “brave” it was to tell even that little bit of my story in the article, and I’ve responded, sincerely, why? I have no shame about having been raped. I have pain about it, but not an ounce of shame. The shame belongs on the rapist. And now it belongs on you, Denise, for actively working to support and uphold the culture which told him it was not only OK but good to rape me.
    Shame. Shame. Shame. Shame. Shame.

  9. Denise
    Posted March 1, 2007 at 3:10 pm | Permalink

    You told the police you were NOT raped. You seek attention and the vilification of men.
    YOU ARE BUSTED by the facts… But don’t worry, the women on here will support you: they HATE men too and also think all men are rapists. This site is proof that sickness and hate feeds on sickness and hate.

  10. EG
    Posted March 1, 2007 at 3:10 pm | Permalink

    Thank you, Jaclyn. For everything.

  11. Posted March 1, 2007 at 3:12 pm | Permalink

    Oh, and Denise — I REALLY don’t know what stories you’re referencing. I never even went to the police, knowing there was not enough physical evidence to make it worthwhile put myself through that process. The courts really hardly ever hold rapists accountable unless the rape has been VIOLENTLY PHYSCIALLY BRUTAL, to the point of approaching attempted murder. The charges I pressed were internal, on-campus charges.

  12. Posted March 1, 2007 at 3:16 pm | Permalink

    If you want to argue that many man have basically no problem with rape, they will not have much of a problem with alcohol too.
    Well, yes and no. (The alcohol reference, btw, is because women are constantly being told “don’t go out and drink! You might get raped!” So if the stats say alcohol and rape are linked, let’s explain this link to men in the hopes that SOME of them will understand that link and maybe better understand rape as a result — my optimistic contention here is that (many) men (and apparently women, too, if “Denise” is in fact a woman) see “woman gets drunk and has sex she doesn’t 100% want” not as rape, but as something else. They need to understand that it is RAPE).
    I don’t think that there are all these men out there who don’t think rape is wrong (though there certainly are some of those), but rather that they don’t understand what it is and what it entails and, on some level, WHY it’s wrong. So if they are made to understand the link between rape and alcohol, maybe, for those of them who are deep-down decent people (or at least who don’t want to be RAPISTS even if they’re willing to be jerks), they’ll be more careful about their approach in bars. Maybe not. But that’s kind of the thinking behind my comments.
    EG, oh, I don’t know about that. That dark side really does get the better of me sometimes ;)
    And, of course, don’t forget that I hate men and America and babies and families and God and shaving my legs and really just all people in general. Hehe.

  13. Seraph
    Posted March 1, 2007 at 3:17 pm | Permalink

    Any bets that “Denise” is actually “Dennis”?

  14. manda
    Posted March 1, 2007 at 3:20 pm | Permalink

    Jaclyn, Denis has created an alternet universe inside his mind. In that universe we are all evil and man-hating. That’s where you not only wrote everything she is talking about, but you actually did it.
    But just so you know, those of us in the real world actually appreciate your work and your honesty.

  15. Posted March 1, 2007 at 3:21 pm | Permalink

    Now you really become a manhater, Seraph. ;-)

  16. Seraph
    Posted March 1, 2007 at 3:24 pm | Permalink

    Michael -
    >TLF: Now you have dropped the alcohol reference completely. If you want to argue that many man have basically no problem with rape, they will not have much of a problem with alcohol too.
    Alcohol is involved in rape the same way it’s involved in *all other* violent crimes (maybe all other crimes, period) – it clouds your judgment and lowers your inhibitions. Booze may not *make* you rape any more than it makes you call up your exes at three in the morning, punch your best friend, or spew anti-semitic rants at the cops who’ve pulled you over for drunk driving, but it can make you stupid enough to think that it’s okay.

  17. Seraph
    Posted March 1, 2007 at 3:38 pm | Permalink

    >Now you really become a manhater, Seraph. ;-)
    Good point.
    Believe me, I certainly don’t *want* to acknowledge any similarity between myself and that waste of a human incarnation – the very thought makes me feel slimy – but there’s something about the writing style. I’m getting “MRA” vibes from it.

  18. roymacIII
    Posted March 1, 2007 at 3:45 pm | Permalink

    And, of course, don’t forget that I hate men and America and babies and families and God and shaving my legs and really just all people in general. Hehe.
    Me too! I’m not so sure about the sad joke accusation, though. I like to think, even at my most self-loathing/deprecating, I’m a pretty good joke. *shrug*

  19. Thomas
    Posted March 1, 2007 at 3:53 pm | Permalink

    So the rape apologists arrive.
    When a woman talks honestly about rape, there are always defenders of patriarchy to come and try to silence her. Usually they try to use the constellation of shame issues around rape and sex. But that won’t work with Jaclyn.
    So “Denise” has decided to construct a factual argument that Jaclyn admitted that it was not rape and changed her mind later, and claims that this is substantiated by some sort of published account. “She” supplies no information that would allow any of us to verify “her” claims, however. She just says that Jaclyn admitted to making it up somewhere else; an account that Jaclyn flat refutes.
    Jaclyn posts under her own name with a link to her professional website; she stands by what she says. “Denise” supplies no identifying information (which I can understand) and no information to support her assertions (which is, in my view, fatal to her credibility).
    The verdict? “Denise” is somebody with an agenda to silence feminist discourse on rape, and “she” is perfectly willing to simply make shit up, at whatever cost to the emotional welfare of rape survivors, to perpetuate the myth that women who stand up to be counted as survivors are lying.
    I have seen the enemy, and this time, it really isn’t us. It’s “Denise.”

  20. Jessica
    Posted March 1, 2007 at 3:57 pm | Permalink

    First of all, let me apologize to Jaclyn for taking so long to ban “Denise.” I haven’t been checking comments the last couple of days as I should and I feel terribly that what should have been a safe space turned into this nightmare.
    “Denise,” who has also posted as “Lisa Flaherty” and “Jennifer Dwyer,” has been a fucking nuisance asshole troll for a long time. I banned “her” IP address so hopefully that should take care of it.
    Again, Jaclyn–I’m so sorry you had to deal with this bullshit.

  21. jrav
    Posted March 1, 2007 at 4:10 pm | Permalink

    It is always amazing to me the amount of hatred you can feel emanating from a true troll’s comments, especially when the comments here have always seemed to me to generate such an interesting and, for the most part, fairly neutral conversation.
    Thanks to Jaclyn and Thomas both. Thomas, I’m printing that analogy.
    I also think that LF had a great point when she said that typically the term “rape” connotes physical brutality and that is why so many men are offended when you discuss a “rape culture.” I think it is an important distinction and one that would radically help the essentialist nature of defining rape.

  22. Jeff
    Posted March 1, 2007 at 4:52 pm | Permalink

    I don’t think that there are all these men out there who don’t think rape is wrong (though there certainly are some of those), but rather that they don’t understand what it is and what it entails and, on some level, WHY it’s wrong.

    Exactly. There are a lot of people who talk big about being tough on rape, but when you get down to it they seem to believe that if he’s not throwing punches or brandishing a weapon, and she’s not kicking and screaming, it’s not “really” rape. Or that the harm is strictly physical, so if she’s passed out and can’t feel anything it’s no big deal. Or that it’s defined solely by the rapist’s intent, and that if he didn’t think of it as rape then it must just be a “misunderstanding.”

  23. EG
    Posted March 1, 2007 at 4:55 pm | Permalink

    Yes. The paper at the university I’m at reported on a rape a few years ago, and wrote that the victim “was not injured.” That kind of attitude is pervasive (and in this case accompanied by a “humor” section of the paper in which more than one rape joke figured. Fortunately, it raised enough ire on campus that the paper had to issue an apology.).

  24. Aaron Denney
    Posted March 1, 2007 at 5:12 pm | Permalink

    Okay. You’re right. Thank you to both EG and roymacIII for spelling it out for me. Rereading (which I should have done before posting) shows that there are some things that scream “this is about me” in ed’s post, and that it is a derailment in terms of rape prevention, with a fig leaf of a claim that he has suggestions about stopping rape, which never materialize. Certainly not a productive way to start talking about things.
    I still found some initial attacks to be off the point, focused on presumptions about him, rather than actual substantive complaints that about his post not being constructive. In fact, it was almost a reverse slut-shaming. Instead of discounting a woman for wanting sex and how much sex she has, it was discounting a man for wanting sex, and how little sex he has.
    That caused me to give him more slack than was called for. That, and I think there was a seed of a worthy point near what he was saying.
    Maybe this isn’t tied directly into rape and rape prevention, but I think that a number of things overlap and reinforce in odd ways that I think there is some overlap.
    Not that we should blame women for how men act, but an example of the patriarchy reinforcing itself. There are actual women that do in fact i.e. go out and get drunk in order to get past that censor in their head saying only bad women want sex. Or ones that feel better if they feel they’ve been “tricked into/out of sex”, or they seek out assholes because they are more masculine. (Of course, assholishness is in the eye of the beholder, so maybe this last should be taken with a grain of salt. Still, I’m sure you’ve run across some times when you’ve asked yourself “why the hell is she with that asshole?”)
    These behaviors are one way of dealing with living in this patriarchical world and absorbing damaging messages about sex. And they in turn affect what men do.
    It’s not a matter of being not being rewarded for taking the high-path, but that taking the low-path is rewarded. If there are enough women out there like this, it is an effective strategy/technique for getting sex.
    Maybe this doesn’t directly deal with rape, but I can see a slippery slope down from lying to make oneself look better, to targeting drunk girls, to plying girls with drinks, and so forth, down to “rape so bad it is universally condemned”.
    Is there a way to break this reinforcement? I’m sure telling girls “don’t do that” won’t help. Providing better examples of both female and male sexuality might. Which gets back to the point about thinking about sex as a performance, rather than a commodity.

  25. Posted March 1, 2007 at 5:23 pm | Permalink

    Oh, Aaron’s comment reminded me of something I wanted to say a while back (thanks, Aaron!)
    Lying to get someone to sleep with you is, under certain circumstances, a criminal offense. For instance, if I have HIV and I lie and tell you I don’t, and then you sleep with me, I’ve committed a crime.

  26. Mina
    Posted March 1, 2007 at 6:42 pm | Permalink

    “Alcohol is involved in rape the same way it’s involved in *all other* violent crimes (maybe all other crimes, period) – it clouds your judgment and lowers your inhibitions. Booze may not *make* you rape any more than it makes you call up your exes at three in the morning,”
    …or makes you call anyone else without checking the time zone difference. My parents have friends and relatives all over the place and sometimes get well-meaning but strangely timed phone calls…

  27. subgrrl8
    Posted March 2, 2007 at 5:35 am | Permalink

    you know, it was exactly that attitude that some types of rape aren’t REAL rape that had me so fucked up about what happened to me.
    does real rape start out with a jealous fight with your boyfriend of 4 months because he got too drunk? does it perhaps include you verbally telling him you don’t want sex at all, but want to sleep over because you are too tired to drive? does it also include him trying to have sex with you anyway, and then you consent to a little cuddling/petting, but absolutely refuse penetration of any type? and does it then include him penetrating, you freezing because your mind/body goes “OMG NOT AGAIN!!”, and then him telling you when you are crying/shivering post-his-orgasm that you didn’t sey no loud enough, thus putting the blame of the encounter entirely on you?
    this shit happens. this shit is rape, even if he was my boyfriend, even if i’d had a couple drinks, even if i loved him. IT WAS REAL RAPE. ok? are we clear? because i’ve had to deal with the aftermath- the guilt he tried to force on me (“why didn’t you protest more? you should have protested more.”), the shame, the completely perplexing feelings that this was someone i LOVED and HE RAPED ME and he never ever ever has to admit it.
    well, fuck that. that was real rape. all non-consensual forms of sexual activity are RAPE. it is rape if he is drunk, and doesn’t listen to you saying you don’t want to have sex. are we clear?
    jaclyn, my heart goes out to you, but also, you are really kick-ass. i have been advocating for those same steps for some time now. clear, precise article with just the right amount of “fuck you men! if you rape, you have to deal with what you’ve done!” :)

  28. Posted March 2, 2007 at 7:13 am | Permalink

    “Not that we should blame women for how men act, but an example of the patriarchy reinforcing itself. There are actual women that do in fact i.e. go out and get drunk in order to get past that censor in their head saying only bad women want sex.”
    This is a degree thing too. Modrat drinking in order to loosen up is different from being passed out.
    But women staying in abusive relationships is to some degree their responsibility.
    @TLF:
    I didn’t mean to say lying in order to get laid is okay or something. But what I had in mind was more like lying about ones job, not being HIV positive. The basic point is that one can be an asshole without being a rapist.

  29. Jeff
    Posted March 2, 2007 at 9:39 am | Permalink

    I didn’t mean to say lying in order to get laid is okay or something. But what I had in mind was more like lying about ones job, not being HIV positive. The basic point is that one can be an asshole without being a rapist.

    I’m curious about what the argument is for why it isn’t rape, assuming that the lie is enough to change someone’s mind about whether to have sex. Can we really call “consent” based on misrepresentation consent?
    It seems to me that the only way to defend this is to say that some people’s reasons for choosing whether or not to consent to sex aren’t sufficiently worthy of respect.

  30. Posted March 2, 2007 at 11:37 am | Permalink

    I would say that lying in every culture is part of pretty much every social interaction.
    Suppose some person is unfaithful and not telling the partner. Telling the parner the truth would certainly lead to not having sex with the partner for at least some time. Is not telling and still having sex a form of rape?
    “It seems to me that the only way to defend this is to say that some people’s reasons for choosing whether or not to consent to sex aren’t sufficiently worthy of respect.”
    That doesn’t follow. Overriding the decision not to have sex with you by another person is rape, not helping to make good decision about that isn’t. One usually cannot tell whether a lie was responsible for the sex. “That tastes great!” maybe that line was a lie and lead to sex. Rape? Some forms of dishonesty are part of the usual social code and the boundaries are not that clear.

  31. bcfritts
    Posted March 2, 2007 at 11:48 am | Permalink

    Thomas wrote:
    BCFritts, the kernel of the commodity model is not the transaction — defined broadly enough, almost every interaction is also a transaction. The kernel of the model is the commodity view of sex, that it is a good or service to be exchanged for value rather than a shared experience.
    Thomas – I appreciate your clarification. I think that is right on a basic level. Sexual interaction is often a shared experience.
    What really interests me here is the idea of the trading of value. Physical assault, theft and fraud are only different in matter of degree. At issue is the fact that someone is trying take something with force or deception.
    You could have a case (which would not be rape) where there was consensual sexual relations, but each party had different reasons for the encounter. The failure to share an experience in a sexual encounter is not a necessary and sufficient condition for rape.
    While every case of rape would involve a case of non-sharing, not all cases of non-sharing would be rape.
    I think we are sort of on the same page, but our points of emphasis are different. – Brian

  32. sojourner
    Posted March 2, 2007 at 11:57 am | Permalink

    “But women staying in abusive relationships is to some degree their responsibility.�
    Ah no Michael, that’s where you’re wrong. The ONLY person responsible for abuse is the abuser. To say otherwise is to blame the victim.

  33. Thomas
    Posted March 2, 2007 at 12:10 pm | Permalink

    Brian, you wrote that there are situations where “each party had different reasons for the encounter.” This is in fact almost always true, of any interaction, but it does not alter the collaborative nature of the experience. Experience is subjective; two people do a thing together for different reasons, and each takes something slightly different from the experience. So what? It doesn’t follow from that that the experience is any less shared. I certainly was not proposing a model where all consensual sex involved a general congruence of motives and desires.

  34. Posted March 2, 2007 at 12:24 pm | Permalink

    “Ah no Michael, that’s where you’re wrong. The ONLY person responsible for abuse is the abuser. To say otherwise is to blame the victim.”
    There´s a difference between blame and responcibility. But it is absurd to think one cannot effect wether one is a victim or not.

  35. Jeff
    Posted March 2, 2007 at 12:25 pm | Permalink

    I’m really only talking about “deal-breakers” here, rather than simply any lie.
    Is it really consent if one partner is misled to believe that the other is monogamous when they’re not?

  36. Posted March 2, 2007 at 12:34 pm | Permalink

    Perfectly informed case is much more demanding than consent. Can make up be sufficiently misleading to lead a men to having sex with a woman he otherwise wouldn’t consider? If such a man claims to be raped, he deserves a hit with the big bat of common sense.
    Prostitutes who have been raped usually say that it is qualitatively completely different from not being payed out. I think this is a strong evidence that rape is different from not having perfectly informed consent.

  37. Thomas
    Posted March 2, 2007 at 1:04 pm | Permalink

    I really don’t think that rape analogizes well to a property crime (which is sort of the core of the difference between the performance and commodity model). To use the Latin, sex is not a res, a thing to be taken, bartered or sold. It is an interaction. So forcing that interaction is not like taking a thing by force; it is like commanding an interaction by force: kidnapping is the closer analog. For that reason, trying to extend the analogy so that there is a sex- equivalent for fraud, is trying to put a round peg in a square hole, IMO.
    I think the status of lying to induce someone to have sex is, as a matter of public mindset, totally indeterminate. There are big problems getting people (men and women both) to recognize what rape is; we’re not even at square one with getting recognition that lying to sex partners is wrong. I think there is not even widespread acceptance that it is wrong; and the answers one gets will depend basically on whether the speaker envisions him- or herself as the one asking or answering the question.
    For my part, I don’t lie to sex partners. I also don’t believe that anything other than disease status requires affirmative disclosure (unless one is doing BDSM, where negotiation about limits is really a necessity unless an existing relationship gives the parties a mutual basis for understanding). I don’t think one’s number of sex partners or orientation or even trans status requires affirmative disclosure: the person in the best position to know what I need to know about a sex partner is me; I should be an adult and ask what I need to know instead of expecting my partner to guess.

  38. donna darko
    Posted March 2, 2007 at 1:16 pm | Permalink

    Do you have a blog or website I can read, Thomas?

  39. Posted March 2, 2007 at 1:25 pm | Permalink

    Jeff, I’m really intrigued by your consent point. You’ve got a really great idea there — I know that, in contracts, lying to induce someone to make a promise is grounds for rescission and may constitute fraud, which opens the offending party to punitive as well as compensatory damages.
    I think it’s a valid question why lying to induce someone to agree to sex is any different? The law distinguishes between material and immaterial deception when evaluating the effect of the lie in the contract case. Why can’t we do the same for sex? “I love romantic comedies” — arguably immaterial. “I’ve been tested for STDs and I’m clean” — arguably material. “I think you’re the smartest person I’ve ever met” — arguably immaterial (“puffery”). “I want to marry you and have children with you” — arguably material.
    And so forth. I mean… it seems to me we could make this civilly actionable. And is it really so bad to structure our incentives for people not to lie for sex?

  40. Jeff
    Posted March 2, 2007 at 1:51 pm | Permalink

    Perfectly informed case is much more demanding than consent.

    Yes, it is. Consent as we understand it is “anything goes except for the few things – violence, intoxication, power relationship – that we’ve declared off limits.” Informed consent adds lying (about “material” things – that is, things that you know or should know are going to change your partner’s decision) to the list of things that are off limits.

    Can make up be sufficiently misleading to lead a men to having sex with a woman he otherwise wouldn’t consider? If such a man claims to be raped, he deserves a hit with the big bat of common sense.

    What is it with makeup always being brought up as a rebuttal to misrepresentation? Is it just Hamlet’s little misogynist rant, or something else?
    TLF, I don’t know about the practicality of making material misrepresentation legally actionable, because people will just say “I didn’t know that it was that big a deal,” and except in the really blatant cases they’ll probably get away with it. Of course, whether it’s a good idea or not, it’s probably not going to happen anytime soon.
    I’m questioning the idea of consent not so much from a legal standpoint, where protection of defendants in criminal trials applies, but from a social/moral standpoint, to get the idea out there that it’s not “anything goes,” that consent is not about tricking your partner into saying “yes.”

  41. EG
    Posted March 2, 2007 at 1:56 pm | Permalink

    “Physical assault, theft and fraud are only different in matter of degree.”
    I couldn’t disagree more–attacking someone physically is a crime against their person. Taking something from them is a crime against property (unless the thing in question is something like medication). Property doesn’t have consciousness, agency, feelings, plans, etc. People do. Much misogyny is predicated on the idea that people (women) are property, and I could not object more strongly.
    I like what you’re saying, Jeff, about informed consent, and I agree that the legal system might not be the best way to handle the issue.

  42. Posted March 2, 2007 at 2:00 pm | Permalink

    Jeff, lol — I see your point, I’m just always thinking about new ways to sue people, as this is what keeps me employed ;)
    BUT, the fact that some people would protest “I didn’t know” is irrelevant. Things like material misrepresentation have an objective, rather than subjective, standard. It would look something like this: if a reasonable person would have known that telling lie [X] would have induced plaintiff to sleep with defendant, where plaintiff otherwise would not have slept with defendant, then lie [X] was a material misrepresentation. Although, now that I re-read your comment, I think you might already be saying this. So it would just be a question of where the law decides to draw the line, and then going from there. As with any law, it would be up to people to know what’s legal and what isn’t. Common-law negligence, for instance, is almost 100 percent built on assumptions of “common sense” (it being not all that common, yuk yuk). Basically, every moment of every day we owe certain duties to every person. We don’t normally violate these duties because to do so is outside of the bounds of “common sense.” We simply know better. Maybe building similar presumptions specifically into the context of sex would help our “common sense” about sex to evolve.

  43. Thomas
    Posted March 2, 2007 at 3:04 pm | Permalink

    TLF, there are big problems with importing a “reasonable person” standard for sex. “Reasonable person”, at the pleading and summary judgment stage at least, is a person whose actions make sense to the judge. In economic transactions, reasonable is economically rational, and “material” is often measured by peer- reviewed valuation methods. But in sex, “reasonable” is whatever actions a judge thinks are reasonable, with no objective backstop or even cultural consensus. “Material” omission or misrepresentation is whatever puts a burr in the judge’s saddle — the then the trier of fact is a jury; the combined prejudices of twelve members of the community wiht the time to sit for a trial.
    Imagine explaining to a sixty-year-old conservative Catholic anti-choice judge that it was material that your partner be pro-choice. They would hold every time that the importance plaintiff placed on it was a post-hoc rationalization because nobody actually makes their decisions on that basis; even though we in fact do.
    (Not to geek among lawyers, but the problem with law-and-economics as a movement is that while in theory it accomodates the subjective utility of ideosyncratic preferences, in fact it always devolves to a “reasonable person” view, which is the ascertainable market value of anything. One of my professors taught L&Ec beginning with an example of someone who preferred burnt scrapple to filet mignon, and said that if that’s what s/he valued, that valuation ought to be respected. But it’s easier just to count dollars, and that’s how is usually devovles. That is a particularly bad problem for sex: what one person finds attractive is repellent to another, and no person or encounter is fungible with another. Hence the performance model: all performances are unique, whereas a commodity is by definition fungible, and even a unique object can be valued.)

  44. Thomas
    Posted March 2, 2007 at 3:10 pm | Permalink

    Donna, I don’t. I am an interblog creature residing in the aether of comment threads, with only the occasional guest-post somewhere. The vast chasms between the interesting things I have to say would certainly prevent me from keeping a readership entertained. ;-)
    To the extent I have a home base, it is Feministe, where I was part of Lauren’s devoted following when it was a one-woman show.

  45. Jeff
    Posted March 2, 2007 at 3:59 pm | Permalink

    TLF, one of the reasons I try to avoid looking at the issue in terms of law is that we already look at rape in an overly legalistic way, with the result that anything not prohibited is encouraged.
    Also, what Thomas said – it’s tricky to decide in a court what’s material without devolving into what *should be* material – if it really is a deal-breaker for me that my partner be left-handed, and a prospective partner knows this and consequently lies to me about their handedness, I don’t want a judge deciding that the misrepresentation is okay because my criterion isn’t reasonable enough to be respected.

  46. donna darko
    Posted March 2, 2007 at 4:17 pm | Permalink

    Me too, Thomas. Except I’m too scattered to blog post anywhere.

  47. Mina
    Posted March 2, 2007 at 6:31 pm | Permalink

    “Overriding the decision not to have sex with you by another person is rape, not helping to make good decision about that isn’t. One usually cannot tell whether a lie was responsible for the sex. ‘That tastes great!’ maybe that line was a lie and lead to sex. Rape?”
    I’ve heard some people claim that even changing your appearance is lying.
    They claim that wearing makeup over one’s blackheads, wearing a padded A-cup bra instead of one that binds breasts flat, getting plastic surgery, etc. is dishonesty. Maybe they think that looking at least average is what sends the “I deserve humane treatment” message and that this is a lie (IOW you don’t deserve humane treatment) if you didn’t get those looks naturally…

  48. Posted March 3, 2007 at 7:52 am | Permalink

    @The Law Fairy:
    “Jeff, I’m really intrigued by your consent point. You’ve got a really great idea there — I know that, in contracts, lying to induce someone to make a promise is grounds for rescission and may constitute fraud, which opens the offending party to punitive as well as compensatory damages.
    I think it’s a valid question why lying to induce someone to agree to sex is any different?”
    I think there may well be cases where it is fraud- but not rape.
    @Jeff:
    “What is it with makeup always being brought up as a rebuttal to misrepresentation? Is it just Hamlet’s little misogynist rant, or something else?”
    That´s a reductio ad absurdum. I guess you don’t kile misogynist views- but your standard would lead to the misogynistic conclusion that makeup is a way of women raping men. Why are you always ignoring my remarks that I don’t support any of these things. I´m against beating up small children, but that doesn’t make me confuse it with murder.
    Rape gives a basic, very damaging message: “I can do with your body what I want and you can’t do anything about it.” This is not the case when only lying is involved, so I would say it is usually much less damaging.
    @Thomas:
    I agre that willingness-to-pay measures are of little use in policy evaluation, but I think there are lots of ideas in law and economics worth considering.

  49. donna darko
    Posted March 3, 2007 at 2:21 pm | Permalink

    Rape is another touchy subject for feminists. Men have the rest of the world to bargain and equivocate about rape. Feminist blogs are a millionth of the discussions that go on in the world. Some of you men on feminist blogs should give women the benefit of the doubt especially on touchy subjects like rape.

  50. bcfritts
    Posted March 4, 2007 at 10:31 am | Permalink

    Thomas – I think you are pretty much dead on regarding the primary issue with Law and Economics. I think the Posners of the world have taken it too far in much of their analysis. While generally a viable model for analyzing contract and tort law, it fails dramatically when introduced wholesale into criminal law.
    One thing that I think is consistent in the posts on this issue is that the legal, moral and social spheres regarding rape are not in congruence. Evidentiary issues often make the legal sphere separate and apart from some of the other moral and social issues concerning the issue.

Feministing In Your Inbox

Sign up for our Newsletter to stay in touch with Feministing
and receive regular updates and exclusive content.

213 queries. 0.788 seconds