A discussion I couldn't have dispassionately in person
A friend started a conversation about the meaning of "Rape" and I found I could not have that discussion with them in person. I am going to have it here behind this cut (because I recognize the trigger factor and because I feel strongly about it).
The discussion started with them offering a scenario as follows:
All parties were of consenting ages. Person A went out and got drunk. While inebriated, they consensually flirted and offered sex to Person B. Person B, in this scenario happened to chaperone them and took care of them instead of taking them up on the offer because they didn't feel right about the situation. But they recognized that if they had, they would stand the chance of being charged with being a rapist and that felt unfair as well since Person A had chosen to drink to excess and had made the offer.
Laws are laid out by the courts based on prior cases and experiences. The decisions handed down by prior judges help advise the actions of current judges and offer guidelines on how to proceed with negotiating the sometimes highly complicated intricacies of interpersonal relations that cause damage. And we work through these with a jury of "peers" who are given the task based on the prior cases and the advice the judge offers them to consider.
This discussion strikes some very personal and very sensitive spots with me so I am going to simply point at the relevant court cases from the State of Massachusetts that are relevant as outlined at that website:
Comm. v. Blache , 450 Mass. 583 (2008)
In a rape case in which lack of consent due to intoxication is an issue, the prosecution must prove not only intoxication, but 1) that the intoxication rendered the complainant incapable of consent and 2) that the defendant knew or should have known that the condition rendered the complainant incapable of consenting.
Comm. v. Mountry , 463 Mass. 80 (2012)
Under the Blanche test, above, where there is evidence of the defendant's mental impairment, "not only must the Commonwealth prove that the defendant knew or reasonably should have known of the complainant's incapacitated state, but the defendant also is entitled to have the jury instructed that they may consider credible evidence of his mental incapacity, by intoxication or otherwise."
Suliveres v. Commonwealth , 449 Mass. 112 (2007)
Court held that "intercourse where consent is achieved by fraud does not constitute rape." The Commonwealth had alleged that the woman believed she was having sex with her boyfriend, when in fact it was her boyfriend's brother. This decision upheld the court's 1959 decision in Commonwealth v. Goldenberg, 338 Mass. 377, which held that "it is not rape when consent to sexual intercourse is obtained through fraud or deceit." The court called on the Legislature to amend the rape statute, G. L. c. 265, § 22, if they felt that sex through fraud should be categorized as rape.
All of which is to say that while I understand my friend's concerns with the fear of being unduly judged for being tempted by an offer, I do not believe that it would be unfair to call it rape had Person B taken Person A up on their offer. It seems to me that the courts review of the circumstances outline healthy evidence needed and put the burden of proof at an accurate level for a jury to make a reasonable decision.
That's the dispassionate conversation I was unable to have at the time.
But I cannot think clearly and dispassionately about this in my every day life. And trying to get me to see that it might be unfair to have taken Person A up on their offer is an incredible angry space for me. I had a personal experience in which a dear friend was in exactly that situation and the Person B was not as strong of character and they took advantage of her drunken state. Not only that, but then Person C, (the best friend of Person B) decided it was their turn to take advantage of their incapacity. And I found Person C in the act at the time.
And after having physically thrown them out of the space, I spent a really long and horrible night trying to figure out what the right course of action was along with Person A as they sobered up. In my case, I was 17 and the Person A was 15. And the fear that their father would find out that they were not his "good little" child anymore, their fear of repercussions from their own family, less name the social stigma associated with it, and the heartbreak of the whole situation still resonates in my 52 year old frame and I can feel the anger rise again and again as I think about it.
So I am not dispassionate about the subject and find no sympathy for the Person B in their attempts to justify what is, to me, an unfathomable action. I realize that this is a gut-punch level of reaction from me based on a personal situation which was of an nonconsenting age. And yet I still have absolutely no bone in my body that will give way now any more than I did then. And the anger of that situation burns as hard now as it did then.
I realize the repercussions of Person B's actions far too personally to be objective. It is easy to think of sex as a simply physical act between people. But it is not. There are repercussions emotionally, physically, and socially which are complicated and very serious. Consent by two people who are capable of being responsible for their answers is absolutely mandatory for me and is not even up for debate. Call me unreasonable if you will, I cannot see that it is all that complicated.
So that is a long answer in which I say "No, I do not see why there is any reason not to call it rape. Not a single one."
This entry was originally posted at https://muffyjo.dreamwidth.org/1807174.html.
The discussion started with them offering a scenario as follows:
All parties were of consenting ages. Person A went out and got drunk. While inebriated, they consensually flirted and offered sex to Person B. Person B, in this scenario happened to chaperone them and took care of them instead of taking them up on the offer because they didn't feel right about the situation. But they recognized that if they had, they would stand the chance of being charged with being a rapist and that felt unfair as well since Person A had chosen to drink to excess and had made the offer.
Laws are laid out by the courts based on prior cases and experiences. The decisions handed down by prior judges help advise the actions of current judges and offer guidelines on how to proceed with negotiating the sometimes highly complicated intricacies of interpersonal relations that cause damage. And we work through these with a jury of "peers" who are given the task based on the prior cases and the advice the judge offers them to consider.
This discussion strikes some very personal and very sensitive spots with me so I am going to simply point at the relevant court cases from the State of Massachusetts that are relevant as outlined at that website:
Comm. v. Blache , 450 Mass. 583 (2008)
In a rape case in which lack of consent due to intoxication is an issue, the prosecution must prove not only intoxication, but 1) that the intoxication rendered the complainant incapable of consent and 2) that the defendant knew or should have known that the condition rendered the complainant incapable of consenting.
Comm. v. Mountry , 463 Mass. 80 (2012)
Under the Blanche test, above, where there is evidence of the defendant's mental impairment, "not only must the Commonwealth prove that the defendant knew or reasonably should have known of the complainant's incapacitated state, but the defendant also is entitled to have the jury instructed that they may consider credible evidence of his mental incapacity, by intoxication or otherwise."
Suliveres v. Commonwealth , 449 Mass. 112 (2007)
Court held that "intercourse where consent is achieved by fraud does not constitute rape." The Commonwealth had alleged that the woman believed she was having sex with her boyfriend, when in fact it was her boyfriend's brother. This decision upheld the court's 1959 decision in Commonwealth v. Goldenberg, 338 Mass. 377, which held that "it is not rape when consent to sexual intercourse is obtained through fraud or deceit." The court called on the Legislature to amend the rape statute, G. L. c. 265, § 22, if they felt that sex through fraud should be categorized as rape.
All of which is to say that while I understand my friend's concerns with the fear of being unduly judged for being tempted by an offer, I do not believe that it would be unfair to call it rape had Person B taken Person A up on their offer. It seems to me that the courts review of the circumstances outline healthy evidence needed and put the burden of proof at an accurate level for a jury to make a reasonable decision.
That's the dispassionate conversation I was unable to have at the time.
But I cannot think clearly and dispassionately about this in my every day life. And trying to get me to see that it might be unfair to have taken Person A up on their offer is an incredible angry space for me. I had a personal experience in which a dear friend was in exactly that situation and the Person B was not as strong of character and they took advantage of her drunken state. Not only that, but then Person C, (the best friend of Person B) decided it was their turn to take advantage of their incapacity. And I found Person C in the act at the time.
And after having physically thrown them out of the space, I spent a really long and horrible night trying to figure out what the right course of action was along with Person A as they sobered up. In my case, I was 17 and the Person A was 15. And the fear that their father would find out that they were not his "good little" child anymore, their fear of repercussions from their own family, less name the social stigma associated with it, and the heartbreak of the whole situation still resonates in my 52 year old frame and I can feel the anger rise again and again as I think about it.
So I am not dispassionate about the subject and find no sympathy for the Person B in their attempts to justify what is, to me, an unfathomable action. I realize that this is a gut-punch level of reaction from me based on a personal situation which was of an nonconsenting age. And yet I still have absolutely no bone in my body that will give way now any more than I did then. And the anger of that situation burns as hard now as it did then.
I realize the repercussions of Person B's actions far too personally to be objective. It is easy to think of sex as a simply physical act between people. But it is not. There are repercussions emotionally, physically, and socially which are complicated and very serious. Consent by two people who are capable of being responsible for their answers is absolutely mandatory for me and is not even up for debate. Call me unreasonable if you will, I cannot see that it is all that complicated.
So that is a long answer in which I say "No, I do not see why there is any reason not to call it rape. Not a single one."
This entry was originally posted at https://muffyjo.dreamwidth.org/1807174.html.