Why the Definition of Rape Matters

Posted by Joshua White on 02.07.2007

Maryland's Court of Special Appeals has defined "rape" in a very peculiar and disturbing way. Until you're fully confident that you want to have sex, women, I suggest you stay away from this state.


*Warning!*

The following column is intended for mature followers only. I will be discussing sex, and rape specifically. I'm just letting you all know.


Let me start this week off with a hypothetical scenario: Imagine a man and woman have just spent a wonderful night together. They go back to one of their places (or if they live together, their shared home). The romantic mood of the night has led to some frisky behavior. Eventually they end up in the bedroom. They begin to have sex. After a little while, the woman wants to stop (the reason here is of no importance). The man, not having finished yet, wants to continue. If the man acts on his desires and doesn't stop has the situation changed?

Think about it for a minute.

I'm willing to bet that most of you came to the conclusion that while the scenario started out as consensual sex, when he didn't remove himself from her body when she asked, the man was now committing rape. Why did you answer this way? Presumably you say that the man is now raping the woman (read: victim) because he no longer has her permission to be inside her body. This is usually thought of as the major factor in differentiating rape from sex.

Recently, it came to my attention that this is not how the Maryland's Court of Special Appeals seems to view the situation. According to one of Maryland's highest courts, once the man has penetrated the woman rape can no longer occur. Once the initial consent is given, the man apparently has the "right" to keep going until he is done. How can this possibly be the case?

It all hinges on how the court defines rape. The Special Appeals Court wrote in one of its decisions the following:

[T]o be sure, it was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male's interest in a woman's sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done. It was this view that the moment of penetration was the point in time, after which a woman could never be "re-flowered," that gave rise to the principle that, if a woman consents prior to penetration and withdraws consent following penetration, there is no rape.

My initial reaction to this piece is one of amazement. I was shocked that anyone with a sister, mother, wife, or daughter could ever think this. Surely the initial penetration of an act of rape is a horrible thing, but it cannot be thought that what comes after the insertion of the rapist's penis into the woman is "less consequential." It is not only the entering of the rapist that makes rape wrong, it is the staying inside the woman that makes rape wrong. To use some one's body as nothing but a sexual tool, to not respect their wishes over their own body, and to simply use the for one's own gratification is adds to the moral depravity. (In Kantian terms, the rapist is using the woman as a "means only and not an end.")

This is seen clearly when we go back and look at my initial example. If the man and woman are making love/having sex/etc. and the woman's body isn't functioning the way she'd like, the man is hurting her (either purposefully or not), or if she just changes her mind, the man has a moral obligation to stop ( i.e. pull out). If he doesn't do this, the man who at first was respecting the woman and and her desires has thrown all that away.

The laws of any state should reflect this. It is commonly believed that laws must be moral to be legitimate. This is why it is ok to oppose slavery, segregation, and laws that kept women as a lower class of citizens. For laws to be moral, the definitions that they are based on must also be moral. And the way that the Maryland Court of Special Appeals views rape is horribly immoral.

But more than just being immoral, it is a significantly outdated view of the world. The reason that the court feels that it is simply penetrations that is "consequentially" wrong is based on the woman being "deflowered." I guess the woman is "pure" ("flowered"?) and once the man is in her without her permission, all the "damage is done" in that she is now "deflowered." Reading this just made me sad. I can't believe that I live in a union who has a member state that still thinks of women in these terms. Love them or hate them, the type of thinking that leads one to think of rape being morally wrong because of the "deflowering" of the woman is exactly what intelligent, legitimate feminists are trying to eradicate.

In response to the "change of mind' certain organizations have put together "consensual sex contracts." Having read them, it's clear to me that these are not even attempting to be serious. These are sad attempts at humor to combat, and make fun of a very serious issue. (This is more obvious in the first link. I can't say with total conviction that the second link is a joke).

Sex is not the sort of thing that can be promised via a contract. (Theoretically, it could be, but it almost never is.) Once consensual sex has begun, its continuation is constantly being accepted moment to moment. This happens implicitly by not asking the other member to stop. However, if at any time one person wants to stop that person has every right (and the obligation to one's self) to make it explicit that they want to end the sex session. Sorry to be a buzz-kill but rape is always one word away.

I think that compared to almost everything else I have ever said on this site, this is one of the few with which you cannot disagree. However, if you think that I'm wrong, I would really like to hear from you. This is especially true if you're a woman.


Homework:

I realize that there has been little humor in this column. (I know that you all miss my comic stylings.) It is tough to make jokes when your column is talking about rape. But if you're looking to laugh a little after my downer-column I suggest reading the Rivett Report. Joe goes beyond his normal boringness and has a really funny segment titled "Real Black People of Genius."

Recently, I went to Google news and typed in "James Dobson." What did I see? My column was third down! You want that kind of fame? You want to be able to self-promote like me? Then come to 411 and write a Wednesday new column and let poor Marky Mark and the Funky Radulichs go back to his wife.

When you're ready to come work for 411, then you'll need to appease the never quenched desire for ass kissing that comes from Jason Easley. You need to know who this man is. Start here.

Until next time…believe nothing unless you read it here.