Rape is an offence which can vary greatly in the degree of
its seriousness. Unlawful killing is split into two different offences, manslaughter and murder. In this posting I want to examine whether it might also be
beneficial to split rape into two different offences or continue to accept a
single definition. If we continue with the later course then because the
seriousness of the rape can vary greatly this variability might lead to some less
serious cases not being prosecuted. Perhaps if we allow for different types of
rape these less serious cases might become more likely to be prosecuted.
Perhaps also if we define different types of rape it might be clearer to some potential
rapists that cases which might be considered as borderline cases under a single
definition are indeed forms of rape.
I want to start my examination by considering four examples
which are all very different. These differences suggest that our concept of
rape is really an umbrella one. These examples highlight the differences involved.
The first case was used by Mike LaBossierre.
“They’d now decided — mutually, she thought — just to be
friends. When he ended up falling asleep on her bed, she changed into pyjamas
and climbed in next to him. Soon, he was putting his arm around her and taking
off her clothes. ‘I basically said, “No, I don’t want to have sex with you.”
And then he said, “OK, that’s fine” and stopped. . . . And then he started
again a few minutes later, taking off my panties, taking off his boxers. I just
kind of laid there and didn’t do anything — I had already said no. I was just
tired and wanted to go to bed. I let him finish. I pulled my panties back on
and went to sleep.” talking philosophy
My second example is that of 78 year old man who had sex
with his wife who was suffering from Alzheimer, see Hastings
Center . She didn’t resist
his advances but was incapable of giving any form of consent. My third example
is of someone who is violently raped by a stranger. My last example is that of
a paedophile having sex with an underage child.
Do these examples suggest any ways in which how different types
of rape might be defined? Firstly it might be suggested that different types of
rape might be differentiated by the amount of violence is involved. If we
accept the above suggestion then my first two examples would be considered as a
less serious type of rape and my third example a more serious type.
Unfortunately my fourth example shows any such a suggestion to be unsound.
Consider a paedophile having sex with a child who is neither forced nor
unwilling. If we accept that rape can be differentiated by whether violence is
involved then this case might be classed as a less serious type of rape. However
this seems to be a clear example of extremely serious rape. It follows that different
types of rape cannot be differentiated by the use of violence.
Next it might be suggested that different types of rape
might be differentiated not simply by the violence involved but by the actual harm
inflicted. Let us accept that not all the harm involved in rape need be
physical harm. Accepting the above would mean that my example of the paedophile
need not be considered as a less serious type of rape. Let us now consider this
suggestion using my other examples. In my third example the victim would suffer
physical harm and great psychological trauma. However the victims in my first
two examples wouldn’t suffer the same degree of harm. The student in my first
example suffered no physical harm and only believed she was raped in retrospect
and so any psychological trauma would seem to be slight whilst in my second
example we are even unable to say if any trauma took place at all. In spite of
the above I would be reluctant to accept that different types of rape might be
differentiated by the harm involved for two reasons. Firstly theft is not split
into different types based on how much the thief steals, theft is theft, and I
can see no obvious reason why rape should be different in this respect.
Secondly the old man having sex with his demented wife might not be considered
as a less serious form of rape but not an example of rape at all.
Lastly might different types of rape might be defined by
differences in the refusal of consent. In what follows I will assume that a
refusal of consent can not only be verbal but take the form of active
resistance to sexual intercourse. According to the Oxford English Dictionary
rape is,
“Typically committed by a man, of forcing another person to
have sexual intercourse with the offender against their will.”
Let us consider my first and third examples. Let us assume in
my third example that the victim fought back and maintained her refusal of
consent provided she wasn’t prevented from doing so. In my first example the
victim refused to consent but it might be questioned whether her actions
maintained that refusal. She wasn’t prevented from maintaining her refusal to
consent but didn’t do so. It might be suggested that type one rape should be
defined as one in which the victim refuses consent and that whilst undergoing sexual
intercourse maintained her refusal or is prevented from doing so. Type two rape
might be defined as one in which the victim refuses consent but whilst
undergoing sexual intercourse but fails to maintain her refusal whilst remaining
capable of doing so. This division of rape into two different types might
appear attractive because by allowing these two different types might mean some
cases of rape might be prosecuted as type two rapes which wouldn’t have been
prosecuted if we retain a unified concept of rape. However these are incomplete
definitions because they fail to deal with cases in which the possibility of
consent doesn’t exist such as in my second and fourth examples. It might be
suggested that this difficultly might be avoided if we define type one rape as
one in which the victim is unable to give valid consent or if she is able give
consent refuses to so and whilst undergoing sexual intercourse maintains her
refusal or is prevented from doing so. Initially his suggestion seems to be an
attractive for one for in most cases in which sexual intercourse taking place
without the possibility of consent are serious cases. Sex with children or
adults unable to give consent due learning difficulties are serious offences. Unfortunately
my second example gives us a reason to question adopting this approach provided
we accept that the old man having sex with his demented wife was a form of
rape. Intuitively it seems wrong to class his rape as the same type of a rape
as that of a violent rapist for whilst we might still blame the old man for his
actions we can also pity him. We would have no such pity for the violent
rapist. Perhaps then we should include cases in which consent is impossible
with type two rapes. Type two rape might now be defined as rape defined cases in
which the victim is unable give valid consent or if she is able do so refuses to
consent and her refusal of consent is not maintained whilst undergoing sexual
intercourse when it is possible for her to do so. Unfortunately my fourth
example shows the difficulties with adopting this approach. It would seem to be
wrong to put a paedophile having activity with a child in the same class of
rape as that of someone having activity with a victim who only comes to realise
that she has been raped in retrospect. At this point it might be objected that
my first example isn’t a less serious type of rape, it isn’t a type of rape at
all. Underlying my definition of both types rape is the idea that consent can sometimes
be implicit rather than explicit. It might be argued that the student in my
first example by not maintaining her refusal of consent was in practice giving
implicit consent. Perhaps if the student in question hadn’t initially refused
consent then her actions might be construed as giving implicit consent. I would
suggest that explicit and implicit consent cannot be mixed up and that an
explicit refusal of consent can only be changed by the explicit giving of
consent. Explicit consent is stronger than implicit consent. It follows the student was indeed raped. Her failure to maintain her
refusal of consent doesn’t show she wasn’t raped but I would suggest it does
show her rape was a less serious type of rape than some others. It also illustrates why the idea of type two rape could be a useful concept.
In the light of the above it seems my initial intention to
split rape into two types fails. It fails because of difficulties in
accommodating cases in which no consent is involved within either of these two types.
When I started writing this posting my intention was to show that rape should
be split into two types, the above shows that in philosophy one must always be
prepared to change one’s mind. Can anything be salvaged from the above
discussion? Perhaps if we want to prosecute an increased number of rape cases
then rapes might be split into three types. Category one rape might be defined
as one in which the victim refuses consent and whilst undergoing sexual
intercourse maintains her refusal of consent or is prevented from maintaining
her refusal. Category two rape might be defined as one in which the victim refuses
consent but whilst undergoing sexual intercourse fails to maintain her refusal
of consent whilst remaining able to do so. Category three rape might defined as
any form of sexual intercourse in which the victim is unable to consent. What
might be the consequences of adopting these three different types? One
consequence might be a greater number of prosecutions for rape. Cases such as
the student in my first example might be prosecuted whilst he might not have been
prosecuted using the current definition. Splitting rape into three types would
have an effect on sentencing. The sentencing of rapists guilty of category one
rapes would remain unchanged. The sentencing of rapists guilty of category two
rapes might be best dealt with by restorative justice. It might be objected
that restorative justice doesn’t deal with the serious of the crime. In
response I would point out restorative justice is not easy for the offender.
The offender doesn’t simply have something done to him but has to seriously
address behaviour, doing so means confronting the sort of person he is and
learning to make changes. One of the aims of restorative justice is not just to make the offender feel he has done wrong but also feel the wrongness itself. I would also point out that whilst category two rape
isn’t a trivial offence it is a much serious offence than category one and
should be considered as such. I have suggested that the severity of sentencing
for category one and two rapes should have a fairly tight domain the same isn’t
true of category three. A paedophile might attract expect a severe sentence
whilst the old man having sex with his demented wife is to be pitied and simply
needs to learn his actions were wrong.
What conclusion can be drawn from the above? Clearly
splitting rape into three different types is a messy business. However life is
sometimes a messy business and this messiness might be a price worth paying if
it leads to the prosecution of some cases which might not otherwise be
prosecuted and a clearer understanding of what it means to rape someone. Should
we do so? I’m not sure
