Different Degrees or Different Types of Rape?

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