Under the facts that you described, I dont really think that many intelligent people would disagree that those women were raped.

Let's take a more subtle example:

Man has hit his girlfriend frequently in the past. Assume they dont live together. Last time beating was 1 week ago. Since then, they have had consensual sex.

He is drunk and tells her "let's fuck!" She doesnt want to and tells him that she doesnt want to. He walks over and starts taking her clothes off, lays her down, and penetrates her.

Has she been raped? Does she have to say or do anything else to tell him "no"? Or does she have to say or do anything to say "yes"?


Also, consider my same hypothetical without the prior beatings. Instead, he is just bigger than she is and she knows (as all women do) that he could beat her up if he wanted to (although he never has in the past.)

Same answer?

The Happy Feminist

Hey Will --

My examples are definitely not subtle, and there isn't much room (I don't think) for disagreement. But that's my point. Despite the fact that my examples aren't subtle, I have run across MANY people, including the victims themselves, who didn't seem to think these were rapes. That's what I have found SO shocking -- the level of widespread ignorance and lack of thought regarding what constitutes a rape in even the most egregious circumstances. It may seem like I'm setting up a strawman (strawperson?) except that these were REAL cases, and I've heard similar attitudes expressed by a variety of people in these cases.

I used to think that there were no "rape myths" and no need for "rape education" until I began to understand the prevalence of the backwards attitudes about rape that are bubbling just below the surface of our culture.

Your example raises a different issue. A woman has a right to refuse sex without fighting to the death. But whether the word "no" is really an indication of "no" in the context of their relationship is another question. As a prosecutor, I would want to know a lot more about the relationship between the parties and the past conduct between them. On previous occasions had she said "no" and then wordlessly consented? Was this part of a pattern between them? Could he have honestly believed that she wanted the sex based on past conduct between them? What was her reason for not saying anything other than the initial "no" to indicate that she did not consent? Had he ever beaten her up in the past for refusing sex? I think your described situation is one in which the past conduct between the parties could raise a doubt as to whether he "knew" that she was in fact indicating "no." On the other hand, the past conduct between the parties could also establish that she knew she couldn't resist in anyway other than her initial "no" without risking a beating-- and that he knew it too.

So my response to your scenario is, "It depends." Regardless of the kind of case, if there is a prior relationship between the parties, one really needs to delve into the background to make a determination whether to prosecute. I would probably say the same thing in a theft or fraud case involving people with a prior relationship.

The Happy Feminist

By the way, just want to make clear that a person can be raped by someone with whom they had a prior consensual sexual relationship. A lot of people don't understand that, and it wasn't so long ago, that marital rape was not considered a crime.

However, I would agree that a prior consensual relationship can raise ambiguity and doubt with regard to the defendant's intent (i.e. what he knew and understood at the time of the crime -- did he know that she was indicating "no"). For non-lawyer readers. Rape shield laws do not apply to prior sex between the parties, although of course the circumstances of that prior sex would have to be relevant in order to come into evidence.


I am not sure whether I would have felt frustration or anger (probably both) upon hearing the people not understand that they had been raped.

It reminds me of the story of a elderly juror who did not want to convict the defendant of rape. He didnt believe the woman's story because she claimed to have been raped standing up and everyone knows that you cannot have sex unless you are horizonal. (I had to google sex positions to find out that he was wrong. WOW! imagine my surprise!)

He held out until two other jurors threatened to have sex standing up in the juror room.



Your second comment reminds me that rape between husband and wife used to require serious physical injury. In other words, you could beat her up a little, then rape her. You just could not beat her up a lot!

There are some perfectly good reasons for such a statute. As anyone who does divorce work knows, women could use the allegation of rape in divorce cases fairly easily. "We were in bed. I said no. He said yes and held my arms." (By the way, in Virginia, rape is a minimum 5 year crime.)

Obviously, there are also a lot of very reasons why that former statute was a bad idea as well. Namely, rape is horrible period and no means no.

The Happy Feminist

I think lawyers tend to take for granted that certain things about criminal law are obvious. I often had to explain things from a defense perspective when say a grand juror would ask, "Well, if he confessed, why are we even here?" or when a victim would ask, "Why should I have to go through having to testify etc. etc. when HE'S the one who committed the crime?"

And it does get maddening when people don't appreciate why rape is such a bad thing. On the other hand, one of the things I love about trial work is the opportunity to educate people about what the law says and why it say what it says.

As for it being easy for divorcing women to fabricate rape allegations, I dunno. I have never seen one of those cases. But it strikes me that it would also be pretty easy to brutalize one's soon-to-be-ex-wife and then yell, "Motive to Fabricate!" if she tries to make an issue of it. I do know that once a rape allegation makes it into the criminal justice system, it is scrutinized very closely.


Someone wise I knew once said that if you consent to sex when you don't feel threatened, but you still don't really want to, you're raping yourself.

I go back and forth on that one, but it is interesting.



Just wanted to say thank you for this post. Never commented here before, but I absolutely love the blog and just about everything written here (I'm also a feminist, a dog lover, a unitarian, and a law student, haha). Have to delurk for this particular topic though... thank you for talking about it and educating people. Thank you, thank you, thank you.

I'd be interested to know if you have other examples of the more tricky situations, the ones in which it IS about the right to say no without a fight to the death, as you say. That phrase is just perfect, by the way. Seems like that would be pretty difficult to prosecute, though. Hm...


First scenario: Not guilty. You yourself stated that she had sex with him because, "She wanted to gain his trust." (only later do you backtrack and say she thought he'd blow her brains out if she didn't. I usually find first reasons more truthful.) In this scenario you give not one fact that the man demanded sex with her and would not take no for an answer. Zero. And so we are asked to find a rape where there is no evidence the man demanded sex and the woman admits she did not outwardly object. What a great country. (I think your state's sex-during-kidnap-equals-rape crime is faulty. It's one of those strict liability facts-be-damned approaches to finding rape. It's a charge that actually puts into the hands of the sharp-thinking "victim" the power to rack up another offense against the defendant. Don't tell me is hasn't or couldn't happen.)

Second scenario: Guilty. No argument, but what a ditsy woman. (She needs to meet my two older sisters who would set her straight about such things.)

Third scenario: Guilty as to counts "B" and "C". Not guilty as to count "A". "Position of authority" rape is one of these new age pseudo-sex crimes developed by what Camille Paglia once called "Betty Crocker feminists", i.e., feminists with a naively optimistic Pollyannish view of reality where they see the universe as blighted by nasty men.

I'll have to give your post generally some more thought, as I don't believe any crime should need the enlightened explanation from prosecutors, police or legislators before the victim realizes they are a Victim. "Oh wow, really?!" doesn't sound to me like something a person should feel like saying after a real crime.

Good post!

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