Is this rape?
 

This is likely to get some angry responses, and I mean no disrespect to anyone who has been through some form of sexual assault/abuse. I have not been sexually assaulted myself and cannot begin to imagine what you've gone through. If you are going to find this triggering then look away.

When someone is asking for help about something horrible that happened to them, it's not the best place for a debate. But I often see posts like this in the rape and abuse section and usually I don't say anything. I thought I'd bring it here.

The question: Can it really be considered 'rape' if someone freezes and can't say anything/ is scared and goes along with it?

The typical scenarios:

"I was with a guy I know and he put his hand on my leg. I was so shocked I didn't do anything. I froze. I was just preying it would be over."

"I was with a friend and he asked me if I wanted to have sex. I said no, but he told me I'd like it. I told him no again, but he kept asking. Eventually I just gave in and said yes."

"Me and my ex were hanging out when he started kissing me. I was scared of what would happen if I tried to leave so I just went along with it."


Now, don't get me wrong, I'm not saying being in any one of those situations wouldn't be awful. It's just that everyone seems to agree that those cases are rape, and it's worrying that a guys life could be destroyed because basically he couldn't read someone's mind.

A lot of the 'afraid to leave' stuff seems to be irrational (I'm sure I'd be irrational in that situation too, don't get me wrong). It's not that the guy has a knife, a history of violence, is trying to physically restrain her or anything like that, she just doesn't try and kind of assumes.

I wonder how these situations would play out if the genders were reversed. They would probably be laughed off the forum.

Obviously the variables are going to change in each situation, but I'm specifically talking about scenarios that
a) don't involve a weapon
b) he hasn't made a threat to harm her
c) she hasn't said 'no' or 'stop'
d) she hasn't tried to leave and
e) she hasn't tried to push him off of her or physically stop him from touching her.

I think my personal opinion is pretty clear: Of course I don't.
But I'd like to hear what everyone thinks.

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This can't be generalised in my opinion... not really. There might be an edge of aggression the guy's voice... or he might be someone with a certain reputation amongst others that makes him somehow more intimidating to probably turn down I imagine. Also different people will simply define rape differently. Can't really say if something trully is rape or not... so to judge I think of there being a scale of 1-10. Applying that to your 3 examples:

First: 2 - putting ur hand on someone else's leg isn't rape, it just isn't, but it's itrusive and if the guy wasn't able to read the body language then he's pretty simple minded, but if he could read the body language and didn't care, well... that's what made me give it 2 instead of 1... but there's no sex going there really at all.
Second: 4 - it's kind of harrassing. She gave over in the end, said yes, but she didn't want to do it and did tell him that earlier. This could maybe even be a 5. And given that the guy is apparently her friend too... it's not somethin you'd expect, not by my definition of a someone who calls themselves a friend. Again, there are different types of friends... so this could go on and on.
Third: 2 - like the 1st example, nothing was said by the girl, you can't blame the guy for that. Although given he was her boyfriend he should have been able to judge in a situation like that if she wanted to go ahead.

All those examples are with guys "they knew". If it was a total stranger that approached it would get a higher score.

Yea... giving it scores is kinda primitive still, but otherwise I'd be here for hours debating this. If it is or isn't rape is not a yes/no answer. How the girl percieved it is not the only thing it should be determined by, especially if she didn't communicate it (for whatever reasons). I'm more inclined to judge if it was rape based on what the guy's intentions were and how far he was prepared to go to get what he wanted. Of course that can only be judged by his actions.

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It doesn't make it any less shitty, but no, it's not rape.

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None of those scenarios are rape.

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It could be considered rape (or at least sexual assault) if the alleged victim was unable to give consent by legal definition (age difference, for example). But if both parties involved are of legal age and at a mental state that would allow for them to understand what was happening, or at least give them the ability to say "No", then lack of refusal is, in some ways, implied consent.

Where this gets kind of fuzzy is if the so-called perpetrator tells the so-called victim that he/she should accept it/go along with it if and when it happens again, at risk of injury or other threats.

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I know this has already pretty much been said but let me throw my two cents in as well.

I see where you're going with this but that fear has to come from somewhere. If I get invited around to your house and then don't leave, I can hardly call it a kidnapping. Maybe I was afraid to escape, but why? If you had tried to stop me from leaving or threatened me, then it's reasonable to assume my life may be in danger. If however I just sit there and assume for no good reason that if I tried to leave you would harm me, without even attempting to leave, then is it your fault? No.

I'm not saying that being so scared you can't say anything wouldn't be a terrible, awful thing to go through. I imagine if someone took the time to see how their partner was and if they were okay then this might be avoided, but there is a difference between being inconsiderate and being a rapist.

I can see why going through something like this would be just as bad as rape, so I'm not saying this to question someone's pain. The point is: who can be blamed? Who should be punished? Surely no one can be blamed, especially if you made no indication you wanted to stop or leave. Doesn't mean it's not a terrible experience and awful misunderstanding, but unless the guy is psychic it's not his fault he didn't hear you think stop.



I didn't want to be explicit but all the scenarios would lead to sex/rape, sorry if that was unclear. It's funny, the second scenario is the one I'd least call rape, but has twice been mentioned as the worst. Surely if we consider talking/convincing/begging someone into/for sex rape, then every boyfriend and husband in the history of time is a rapist.

To have someone (at a party, for example) saying "please, please, come on, you'll enjoy it." and then for the person to finally think "Alright, let's get it over with"... to me that is nothing at all like rape. If you just did it because he convinced you, or you changed your mind, then it isn't rape. If you were scared and thought you had to, then again, was there a reasonable threat there, or did you assume without even trying to leave?

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No consensual indications were given by the girl, then again, no indications she was not liking it was given. I suppose it's one where you could argue it to be rape but it seems like it's not.

Possibly rape because the girl was "forced" into consenting. I say possibly because the fact she said yes before any physical interaction was forced upon her seems like it was consensual. It seems more like pestering and an inability on her part to forcefully make her statement known. She said "no" and that should have deterred him but the fact it didn't means she should have used force as it was clear saying "no" alone wasn't working.

This seems like the first one where there's too much fear to oppose the actions. I don't consider this one rape either and the fact they were together previously does suggest their previous encounters (assuming they had sex previously) were consensual.

Agreed. Cognitive processing of the context and reactions from the partner could be argued as a sign she opposed but especially for the last one where she willingly gives in, it seems difficult for him to know she refused. For the first one, he would have seen her fear and could have stopped, she gave no indication nor attempt to say "no". I suppose her freezing reaction could be taken as a sign she refused.

It seems very paranoid on the female's part when they freeze up because no threat was presented yet they perceive it as a threat. For the last one, she didn't perceive the sex to be threatening but his reaction to her refusal as possibly threatening. In that one, I suppose she experienced some form of abuse from him previously to know he may be inclined to be threatening, although her mental processing seems like Murphy's Law.

Usually they are laughed off. I'm finishing up a course in criminology and one of the textbooks has long interviews with criminals, some of whom were incarcerated for sex crimes such as rape and domestic violence. According to them, they sometimes admitted to engaging in domestic violence however, they also mentioned how it was done to them quite frequently yet they received no sympathy or proper legal attempts. Studies have shown females and males engage in about the same overall amount of violence yet society disagrees and has a skewed idea that women are the helpless damsels in distress while the guy is the big bad wolf in all scenarios.

I suppose it'd be difficult for the partner to know she was refusing, especially in the last of the three where she goes along with it without him harassing or pestering her.

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Silence is not consent and that does work both ways. If a girl tried to force herself on a guy and he didn't agree to it, then technically that'd be rape. There's a rule here at my University, ask first. If a girl, or guy, is really silent, ask if it's okay.Don't just assume that it is.

Although, those three scenarios were not rape. The first could be considered rape if it included any form sexual intercourse but touching is assault not rape. I do have to say this though. As someone who was sexually assaulted by the same man for months, it's terrifying. Especially if the person is stronger or bigger than you. Saying no is grand, but some women and men feel that saying no will cause more harm to them than staying silent. (I include men in this because men do get raped, by other men and by women. One of my best friends was.)

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If there is no resistance nor opposition in any way and the person goes through with it, how should one know the person was/wasn't consenting? If the person freezes up, as in the first example but doesn't oppose anything, how would the guy know whether she's not consenting or is consenting but is very nervous?

It's also part of the law and your university obeys the law. In the third example, assuming the guy asked and she went along with it, he doesn't have any sure way of knowing she's doing it out of fear and isn't consenting.

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Also, to commit a crime, you have to be in a "criminal state of mind", which essentially means you must be knowlingly commiting a crime, which is why insanity is a defense, if his intent was "I'm going to have sex with her", it's not rape, if it's "She won't let me, so I'll make her", it's rape. In none lof these examples did she say no, and silence, IS consent.

Also, for anyone who does read my posts, you will know I consider rape the most heinious crime, so I'm not trying to argue in favour of it. You all, or most of you, know that I think rapists should be executed through tortorous methods, such as beating, gassing, or burning. I hate rape, and there is NO excuse for it!

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Mens rea and actus reus. I agree with what you said, I think it is one of the most heinous crimes.

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Silence is not saying no. It's very different. Body language can say no, but body language can also say yes or that you're okay with the guy taking the lead. Unless a man or woman says no or makes it extremely clear that they don't want this to happen with their body language, how on earth is a guy to know that they don't want it to happen? Men are not mind readers. In a situation where a woman 'froze up' and felt unable to say no, then of course I have complete sympathy for her, but I have an equal amount of sympathy for the (innocent) guy and would condemn anyone who felt it was justifiable to ruin his life over something he could not have foreseen.

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I can see what you're getting at, but I would say that the first would only actually qualify as not being a mens rea for rape if it was "I'm going to have sex with her if she wants it as well". As it currently stands, it could be interpreted as "I'm going to have sex with her whether she likes it or not" - it isn't specifically said, and the second is definitely more clear-cut in that respect, but if you combine the first with the actus reus of carrying on regardless of consent then that still meets the legal threshold. It is all down to interpretation but then all law is based on interpretation at the end of the day. Also as Rachel points out silence is not consent (although case law has not been able to determine whether consent must therefore be express or can be implied), but it is more of a situational issue. I would agree with the broader point you are making however.

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I do feel very worried for society if convincing someone to have sex is considered rape now. It's like charging a salesmen with theft because he talked you into buying a $10,000 car.

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Are they? Persuading you to partake in a certain action.

You can say no and remove yourself from the situation in both cases. If you stay in the situation and then get persuaded, actually okay yes I will have sex, you can't then go and call rape! That's absurd.You said yes, therefore the guy will assume (quite rightly) that you want to have sex.

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See, this seems ridiculous to me. If someone, say, at a party, is constantly saying "Come on, please have sex with me... please? Please please please? You'll like it, come on..." and you keep saying no, then eventually, you think, why not, and agree to have sex with him... how is that rape?

You say that talking someone into buying a car and talking someone into sex are different concepts, but your evidence for that confuses me. You say that unless you're held at gunpoint, being persuaded into buying a car is unlikely to present fear. But unless you're being held at gunpoint, why would someone trying to talk you into sex cause such fear?

I mean yeah, if the person is pushing you around, threatening you, locking the doors, trying to stop you from leaving etc, then that's quite different. There has to be a reason that you're so frightened you have sex with him, rather than just assuming that if you left he'd rape/murder/kidnap you.

But if someone simply just tries to 'convince' you to have sex, and your course of action is to rip off your clothes and get into bed with him, rather than leave the room, it makes you pretty pathetic and weak minded to call it rape afterwards.

Legally, I doubt this would classify as rape, no matter what rape councillors say. I can't imagine arresting a guy for having sex with a girl, even though she said yes, even though she 'responded', even though she didn't try to physically stop him what so ever, and being charged with rape because he asked six times before she finally said yes.

If this really is considered rape I'm pretty sure more than 85% of boyfriends and husbands could be considered rapists.

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Are they?
What pressure exactly are they experiencing?
Why can't they leave, move away from the guy, ask the guy to leave, change the subject? We have already said it's different if they are being violent towards you, or have locked the doors to prevent you from leaving.

As a girl who has been that girl "no" and then persuaded yes, on a one night stand basis, when very very drunk, I really think it's bullshit to try and say that this is rape or anything like it.

How many times do you think that happens? "No I don't want to" "No" and then eventually "yes" -- a lot, especially on a one night stand kind of basis. And it's so, so not rape. There is no reason for a girl to feel pressured. If the guy manages to change their mind through for example, maybe turning them on or reassuring them or anything else.. it's NOT rape. Persuasion is not taking advantage.

And on that note, taking advantage is in no way rape either.

Re: Is this rape?
 

I was in agreement with you until this point, because without further clarification that could be quite a dangerous statement. "Taking advantage" covers all manner of situations, ranging from someone having had a few too many to drink and lost some of their inhibition to someone being unconscious (I have read case reports where that has happened, scarily). The former wouldn't on its own be rape unless it could be demonstrated consent was not given and the man proceeded anyway, but the latter would be rape as consent cannot be given. Indeed, the SOA 2003 picks this out as an instance where consent is presumed to be absent unless there is very strong evidence to the contrary. I understand what you're trying to say, it's just perhaps something which should be phrased very carefully in the context of the offence.

Re: Is this rape?
 

Sorry - wasn't clear

I meant for eg.
someone has split up with their fiance that morning, you have sex with them - taking advantage yes, rape no
someones mother died last night, you have sex with them - taking advantage yes, rape no
someone is upset/vulnerable for other similar reasons - take advantage yes, rape no

Not being unconscious. Or too high/drunk to consent.

Re: Is this rape?
 

Yeah, I figured that was what you meant - it's just one of those where people could get the wrong end of the stick with predictably bad results. That and I'm pedantic which you know anyway. :p

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Okay... regardless, no one would ever be charged for convincing someone to have sex because thankfully our society isn't that far gone yet. People get touchy when you start comparing things to rape or sex because it's starts the whole 'women are property' thing, and of course I don't think I'm property or that anyone has the right to rape me.

However changing my mind doesn't constitute rape and I know this because I'm not so weak minded that my response to being asked a few times to have sex would be to agree rather than to leave the room. As I've said before... if you are so scared that you feel you should just 'give in' rather than attempting to leave, there NEEDS to be a reason for you to feel like that. If it's just that you think:

'Wow, this guy keeps asking a lot. Even though he hasn't touched me/tried to block me from leaving/threatened me, it might escalate to that if I get head for the door. I guess I should just give in rather than risk being raped'.

Then sorry, you're being irrational. It's completely ridiculous to just 'go with it' because you assume, for no logical reason what so ever, that a guy who has made no attempt to harm you will rape you if you try to leave.

Sorry but how can I exargerrate and take out of context my own examples?

1) You don't know that someone is agreeing out of pressure. I know you'll go off at me again for using a car example but to just stick with it for a second (while acknowleging that women are not property and blah blah blah) I might show you a new car. First you might think you don't need a car and refuse to buy it. But maybe I'll tell you about it's cool features and you'll begin to think it actually looks pretty good. But you know you shouldn't, you're saving up your money. So you say no again. Then I'll tell you that it's actually a pretty reliable car and you start to think how much fun you'd have in it. So you think, why not just once, this time? It's not like you go around buying cars all the time. Yes, I know, another car analogy. But my point isn't that women are like cars, it's that people can be persuaded into different things without doing it because they are stressed out and feel intimidated. And you're right, no means no. No doesn't mean 'try and convince someone to say yes', but this brings me to my next point.

2) Being a jerk doesn't equal being a law breaker. 'Taking advantage' in the sense you're talking about (emotional advantage) is pretty much a dick move but it's not illegal. Nobody is saying that these people are angels, and, on that, I'm certainly not saying that being in one of these situations isn't somehow less traumatic because it's not legally rape. I'm just saying that. It's not legally rape.





I just wanted to add that when I posted this, I considered making the sexes ambiguous and saying something like 'So if a person has sex with another person in this way, is it rape'? Because obviously, men get raped, by other men and women even. But the thing is I've never seen anyone act this way over a man's story.

To all the people calling the 'pressure' thing rape, I want to know what you'd say if a man said this to you:

"I was sitting with this girl at a party and she kept asking me for sex. I said no heaps of times, I've got a girlfriend, but she kept saying please. She didn't touch me, or try to stop me from leaving, or threaten me in any way. But I was scared and assumed she would anyway if I tried to leave, so I gave in and had sex with her. Is this rape?"

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No, that's not what I meant. There doesn't have to be a rational reason why you don't want to have sex with someone- there needs to be a rational reason why you think that leaving the room would result in physical harm.

If you say yes and there is no force or threat involved, it is not rape, it's sex.


Ooo, wikipedia. *prepares to be dazzled*

It seems we are reading different things. First of all, it says 'the absence of consent', which means,as you said 'I read this as you can have sex without physically saying YES, but the absence of objection does not automatically mean yes' . This is absolutely true, such as in the cases of having sex with someone so drunk they can't say yes. But then you go on to give another example 'no, no, no, no, okay fine'- There is no 'absence of consent' there, the person clearly said 'okay fine', indicating that they have changed their minds from the original no, so your whole argument goes out the window.

Persuasion is not forcible compulsion. Forcible compulsion is like me saying 'say yes or I'll punch you in the face' or 'agree to this or I'll kill your family'. 'Pleeeeaseee Emma I'm really horny. Come on, it'll be worth it. Don't you wanna have fun?' isn't forcible compulsion.