How Feminism Hates Women

Part Two: Unwanted Sex vs. Rape

From Wikipedia:

Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions of Canada, Australia, India, Pakistan, New Zealand, England, Ireland and the United States.

Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty unless the mind be also guilty".

Okay, so let's pretend we're talking about me, and what we're talking about is me crashing my car into another vehicle, killing the driver. The act of crashing my car into his and killing him is the actus reus, and let's say that this fact is not in dispute. Once it has been established that I did indeed crash my car into another and kill the driver, an investigation will be done (I would hope!), and the attendant circumstances examined, and it will only then be determined whether I have committed a crime.

Let's say I undergo a breath test and am found to be legally impaired. In this case, I will be found to have the mens rea of recklessness--I engaged in conduct a law-abiding person would have refrained from, and that conduct resulted in a foreseeable death. I may be charged with a variety of crimes, based on my degree of inebriation and other circumstances--drunk driving causing death, vehicular manslaughter, reckless indifference homicide, etc.

Let's say I live in a jurisdiction where it's still legal to use a cell phone while driving, and I was on the phone when I crashed into him. If it can be determined I was paying more attention to my phone than the road, I will be found to have the mens rea of negligence--that is, a reasonable person would have been able to foresee the danger of my behavior and the harm it might cause. I will probably be charged with manslaughter.

Let's say I drove through an intersection where a stop sign had been stolen or knocked over by vandals. If there was a wrongdoer in this case, it was certainly not me, and I have committed no crime.

Or let's say the other driver ran the stop sign. In this case, I have also done nothing wrong, and have committed no crime.

Or let's say I drove over a nail which blew my tire, and I could not regain control of my car in time to avoid the accident. Again, I have done nothing criminal.

Let's say I saw that the other driver was my ex-husband, and I floored the gas pedal, slamming my car into his before backing up and ramming his vehicle repeatedly until the jaws of life couldn't extricate him from the mangled wreckage. Not that I would ever want to do something like that *coughcough*, but in that case I would be found to have acted purposefully and wilfully to cause my ex's death. And that, my friends, would be capital murder.

So here we have a bunch of different scenarios, all with the exact same terrible result for the victim, all of which differ in their degree of criminal culpability. Only two of these scenarios would qualify as murder, and in three I have committed no crime at all.

So here we have the crux: any situation in which one person kills another is a homicide, but not all homicides are crimes, and not all criminal homicides are considered murder. Whether a homicide is considered murder or not, depends entirely on mens rea--the "guilty mind".

I have often asserted in my arguments online that just because someone feels they have been wronged or harmed by another, this does NOT necessarily mean a crime was committed against them. And by extension, a man should never be considered to have raped a woman if he did not have the necessary mens rea--that is, if he did not actually realize he was raping her.

I am often told in response that ignorance of the law is no excuse, but ignorance of the law has very little to do with mens rea. In the case of rape, mens rea is not a question of whether someone knows that forcing an unwilling woman to have sex is rape, it is a question of whether someone is aware they are forcing an unwilling woman to have sex.

But how could a person not know they are forcing an unwilling woman? How could anyone not realize that a woman who isn't consenting is not consenting?

Well, how about if you're naked in bed, engaging in the preliminaries of sex, for which said woman seems enthusiastic, and at no point during the festivities does the woman ask you to stop? 

Early anti-rape campaigns focused on a phrase I could really get behind: "No means no." But things have morphed a little since then, into an attitude of, "Anything but an enthusiastic and oft-repeated 'yes' means no."

I have been cautioned by so many people on feminist boards about how very very important it is for a man to check in frequently with his partner, that many women simply don't have the wherewithal to say "no" if they change their minds, but that this does not mean they are consenting. That women have been known to freeze up and the first sign a man might have that he's raped her is the sound of her quietly sobbing after the fact. Oddly, I hear very little talk about how very very important it is for a woman to actually have the maturity to say "no" if, indeed, she means "no", before she climbs naked into a man's bed, however. She, apparently, has no responsibility toward her partner, to prevent him from inadvertently doing something he'd likely feel terrible about afterward. 

Considering how differently women are wont to behave during sex, it is unreasonable to expect a man to conclude that loud moaning, say, can be translated as "please stop", or that a lack of loud moaning can be translated as "please stop", or that twisting and writhing can be translated as "please stop", or that a lack of twisting and writhing can be translated as "please stop", or that a grimace can be translated as "please stop", or that the lack of a grimace can be translated as "please stop", etc.

So here we have a woman who has changed her mind, and is counting on her body's signals and her facial expressions to convey this message to her partner, who may have never engaged her in sexual activity before. Because she lacks the wherewithal to actually tell him to stop, and believes he should just...well, he should just be able to tell. The man is on top of her, arguably holding her down, but in his mind he's just holding her tightly the way his other partners liked him to do.

That the sex was, indeed unwanted, is a fact not in dispute. The feelings of the woman may include violation, trauma, fear, anger, and a deep sense of having been wronged. These feelings are in no way invalid.

However, for the crime of rape to have occurred requires both actus reus (the act of unwanted sex itself) and mens rea (some form of criminal or guilty mind or intent). For the above scenario to be rape, and a crime, the rapist would have to KNOW that he was subjecting the woman to unwanted sex. And if the first clear sign that she'd changed her mind is her quiet sobbing after the fact, well...this is unfortunate, and a terrible situation (both for the woman, who may well be traumatized, and for the man who unintentionally traumatized her) but it isn't a crime. It is NOT RAPE.

And this is one major issue I have with data on rape presented in studies like Ms. Magazine's infamous "1 in 4" survey. Because those studies conflate "unwanted sex" the actus reus that constitutes only half of a crime, with "rape", something that requires both the actus reus of unwanted sex AND mens rea. 

Claiming that 1 in 4 college women are victims of rape or attempted rape based on one-sided accounts that conform to specific sexual scenarios is analogous to publishing a report on how many capital murders occurred in the US in a given year, and including accidental homicides, manslaughters, homicides where the killer was mentally incompetent, self-defence killings, negligent homicides, and second degree murders in your tally.

The Ms. study did give mens rea a "nod", if you will, by asking respondents who'd been subjected to unwanted sex to contextualize what they believed had happened to them. A full 49% of respondents characterized what had happened as "miscommunication". This would make the unwanted sex in those cases an unfortunate, but not criminal, act. In those respondents' opinions, the perpetrators did not have the required mens rea to have committed rape, because they were unaware that the respondents were unwilling. And perhaps, being there at the time, the respondents were more in a position to assess the behavior and motivations of their "attackers" than the surveyors were.

However, the author of the study disregarded these interpretations and applied the term "rape" or "attempted rape" to every incident of unwanted sex where some degree of force was used, such as holding a woman down. And this might be reasonable, if not for the typical mechanics of sex, which often involve, well...a man holding someone whilst simultaneously being on top of them.

Ahh, you might say, but in the Ms. study, about half of the findings of rape and attempted rape involved alcohol or drugs, "administered" to the woman before sex. Here again, I have some issues. Because in the dating and hook-up scenes on campuses, there's a lot of booze consumed by women, often gleefully provided by young men hoping to grease the wheels of sex. I have some serious doubts as to whether these young men are holding women down and pouring liquor down their unwilling throats. I also have a hard time seeing scores of sober young men pressuring women to drink in the hopes that they will become incoherent and sloppy enough as to be unaware of her surroundings and unable to resist, much less participate in the anticipated sex.

So we have college parties where everyone--male or female--is drinking like mad, all looking to shed their inhibitions, have a great time and maybe hook up with someone.

And while providing a woman with enough free beer to drop a rhino may be self-serving on the part of the young men involved and in no way entitles them to sex, I can't help but think that if these women are somehow unaware that alcohol consumption lowers inhibitions (even sexual ones *gasp!*), and that consuming enormous quantities may lead them to consent to things they would never do while sober, they probably do not belong in college in the first place.

So let's explore the role of alcohol in the crime of rape. Let's be true to the criminal code and say one's own willful intoxication is no defence, and let's be totally wacky and hold both genders to an equal standard of accountability.

Young man pours young woman several beers. Young man is unabashed in his motive to get said woman buzzed enough that her judgment will be impaired and he may get lucky as a result. Said woman drinks those beers looking to get wasted, because getting wasted doesn't just feel good--it frees her up to do things that she wouldn't while sober, but that she kinda sorta wants to do sometimes and might just do if not for those pesky inhibitions.

So let's say she's drunk but coherent, and he is equally drunk but coherent, and both of them willingly engage in sex. In the morning, she rolls over and realizes she just fucked Ron Jeremy's less suave cousin, and she can hardly even remember how it happened. She's lying there, thinking, "OMG, he got me drunk on purpose so he could take advantage of me--that's RAPE!"

Well, yes it is. Sort of. If one can wrap one's head around the idea that pouring a woman a few beers is the precipitating act proving an intent to commit rape, rather than a generous application of socio-sexual lubricant. I mean, it's not like he slipped her a date-rape drug. He gave her alcohol, which she willingly drank. If his intention when pouring her those beers was to get her so wasted that her level of intoxication would "seal the deal" and guarantee sex, whether she wanted it or not, then yeah. Rape. But if his intention was to grease the wheels in the hope that she might climb onto his lap and engage in consensual sex with him, has he really done anything wrong? Because at that point, we would have to conclude that any man who buys a woman he desires a few drinks has the intent to rape, don't we? Again, it's all about mens rea--the guilty mind.

However, even if we conclude that any consensual sex while falling-down drunk is rape, we must consider the corollary of drunk driving. Charging a sober man with rape because a woman consented to have sex with him while she was drunk would be analogous to holding the sober driver at fault in a collision with a drunk driver.

And if they're both drunk? Though a legal argument may be made that she was too drunk to be capable of consent, well, so was he, wasn't he? And though a legal argument may be made that a criminal's willful intoxication is no defence for having committed a crime...if we are to keep to our completely nutty theme of holding both parties to the same standard of accountability, both parties would be rapists under the law, and both would be accessories to the other's perpetration of rape. 

This much should be clear. If intoxication vitiates consent but does not eliminate criminal culpability, then even enthusiastic, consensual drunk sex is a crime--one which two people participated in. If one's own willful intoxication is no defence...well, if she said "yes" while drunk, she participated in the commission of a crime, and is an accessory. Hell, one could argue that her consuming enough alcohol to become so drunk that her inhibitions would be lowered was an act of intent to become an accessory to rape.

Regardless of who feels more harmed by the situation, when both parties are drunk, both parties are equally culpable. Charging a traumatized woman with rape and accessory to rape would be no more unjust than charging a man with the same, even if both had the required mens rea to commit the crime of having sex while too intoxicated to consent. 

And this is where the alcohol/drug rape definition departs from reality. Because if we are to criminalize drunk sex, both parties should be charged even if both are pleased with the outcome the next morning, since consent must occur contemporaneously with the sexual acts performed--neither advance consent nor consent after-the-fact are in any way defensible legal concepts. And if one cannot legally consent to sex while drunk, then one cannot legally consent to sex while drunk. 

And if the woman was drunk and consented, and the man was NOT drunk? Her drunken "yes" still technically makes her an accessory to a criminal act. By consenting to sex while drunk, she was engaging and participating in criminal activity, and her own willful intoxication is no defence.

A crime is a crime is a crime, even if no one was harmed by it, right? And the only way to avoid criminalizing the act of ANYONE saying "yes" while drunk is to hold both genders to the same standard of accountability for their decisions while drunk. 

That is, to maintain the definition of rape as the conscious, intentional and willful forcing of sex on a clearly non-consenting person. 

And if that is the only rational definition of rape that can possibly be enforced without applying differing standards of legal culpability and differing standards of conduct on people solely based on what reproductive parts they have, then when it comes to rape as a crime, it is ALL ABOUT mens rea. In which case, incidents of unwanted sex based on a woman's consumption of alcohol/drugs or specific scenarios that do not take into account the intent of the "attacker", cannot be described as rape.

Just like a car accident can't be called murder solely because someone died, not every incident of unwanted sex can be characterized as rape. 

Yet we do this constantly. When it comes to rape and rape alone, the legal requirement of mens rea as one half of the definition of a crime is utterly ignored, by feminists, by "experts" and, increasingly, by the law--but only when it comes to women and victimhood. And why? To protect women from their own decisions, from their lack of honesty and maturity, and from the consequences of their own irresponsible behavior.

In other words, reduce them to the level of children under the law, incapable of behaving responsibly or standing by their own choices and actions--whether it is a choice to fuck while drunk or the decision to engage in sexual activity while emotionally incapable of uttering the word "no". 

How on earth can this not be seen as misogynistic?