When is a rape a rape?

Having successfully turned Jivha’s comment thread into a flame war by making sexist comments at feminists (Well? Can you resist making sexist comments at feminists?) I will now post a serious rejoinder to Jivha.

I’ll start with the easiest part first. Jivha says

Connecting past behaviour to such a crime is not just wrong, but also unjust to the victims. It is almost as if we’re telling a rape victim, “Sorry. We’d still like to continue believing the stereotype that rapists are typically strangers…your story about your husband/boyfriend/father/teacher raping you just doesn’t sound convincing. You’ll need much more than just a bruised vagina to convince us!” [Emphasis mine]

Now perhaps Jivha has not read this part of my post?

However, it would be a an ad hominem argument if we persist in disbelieving in a claim even if there is other evidence to back it up, solely because of the credibility of the person making it

Oh no! He has actually read it and agreed with it

Ravikiran is absolutely correct when he says that the argument is “ad hominem” when and if an alleged rape victim produces “evidence” of his/her rape and is still disbelieved

And then he cleanly forgets about it a few paragraphs down the line!

No matter, happens to the best of us, especially when we testosterone-charged males seek the thrill of combat in an argument rather than think of it as a dispassionate search for the truth. We get seduced by rhetorical flourishes that sound good, but lead us into a trap. We live and learn. Today I learnt that Jivha must be very good at Maths. (Don’t make me explain the twisted logic of the last statement. I am trying to be polite)

To be fair to Jivha, that statement was rhetorical overheating. The main part of his argument does respond to my points without misrepresenting them. I was essentially claiming that when it is a question of his word against hers, it matters whether they’ve had consensual sex before. Obviously, if we are talking of husband and wife the dynamics would change a lot more.

But the argument Jivha makes is really strange. He ends up arguing that it should be possible to convict a husband for raping his wife, with no evidence at all. In fact, the husband may not be even in a position to know that he is raping his wife!

This strange result comes about because of two strange generalisations that Jivha makes. Once again, to be fair to Jivha, these sloppy generalisations are made by all feminists.

First, “had sex with the accused the previous night” goes under the general heading of past sexual history. Is Jivha saying that this is a valid generalisation to make? Are no details lost while making the generalisation?

Second, husbands and boyfriends are lumped into the general category of acquaintances or members of the family. The former group would include everyone the woman knows, including the waiter at her favourite restaurant. The latter group includes her father, brother, brother-in-law, father-in-law, etc. Is Jivha really saying that there is no need to distinguish among these?

Let’s look at Jivha’s argument.

And why should the past sexual history of a rape victim be “irrelevant” you ask. I’ll use two examples to illustrate my point:

Example A: Alley Rape – a woman is going down a dark alley in a relatively dangerous section of town and is attacked by a person and subsequently raped. Let us assume that the victims name is A and her attackers, B.

Example B: Date Rape/Acquaintence Rape/Marriage Rape – a married woman does not want to have sex with her husband one particular night but her husband still forces himself upon her. The married woman is C and her husband, D.

If we assume that it is OK and “relevant” to bring in the past sexual behaviour of a person into every rape case, C would clearly need to show much more evidence of having put up a fight(to her husband, mind you) than A. For the same reason, D would have a much more lenient hearing than B.

The link between a past event(s) or past behaviour of a person and a present case involving rape rests on an assumption that can be simply paraphrased as “If A or B had consensual sex with C or D in the past, why would it not be consensual in this case?” In short, the bar for proving rape is set higher when the accused is known to the victim!

Note the silent (and probably unthinking) generalisation from “husband” to “accused is known to the victim” But let that pass for now. Jivha finds it strange that the bar for proving rape should be set higher when the accused is the husband. Is it really so strange?

Let’s take a non-rape crime. Suppose a husband accuses his wife of stealing his expensive pen. The uncontested facts of the case are that the pen is his, and that the pen has been found in his wife’s handbag.

Can you really say with a straight face that there is no difference in the burden of proof required whether the accused were the wife or someone else? I know that I am stating the obvious, but aren’t there differences related to

  • Credibility: If someone else claims that he asked before taking the pen, the judge will require him to produce proof. If the wife claims the same, is the burden of proof on her the same? Or will the judge probably give her the benefit of doubt?
  • Possibility of misunderstanding: Need I really explain? The wife might have just assumed that she could take it, or she might have taken it meaning to tell her husband, or she might have taken it meaning to return it, or she might have asked, “can I take a pen” and husband might have just grunted, not knowing she meant that pen.
  • Severity: Is the wife taking the pen really as serious a crime as someone else taking that pen?

Frankly, even as I type this, I am feeling silly. Do I really need to state the differences between a “theft” by a wife and a theft by someone else? But feminists have been refusing to see the obvious analogy, and they manage to do that by making the silly generalisations that I talked of above. It is almost like lumping “wife” into the category of “acquaintances” and then claiming that theft by a wife is no different from theft by an acquaintance.

That and misrepresenting the counterarguments. Questioning someone’s credibility is not the same as questioning someone’s character. Then there is the usual argument: “Does marriage give the husband a right to have sex whenever he wants?” (“Does marriage give a wife the right to take her husband’s property whenever she wants?”)

Now look at what all Jivha wants to criminalise. The wife may not want to have sex on a particular day, and if the husband “forces” her, even without using violence, it would still be a crime.
For example, the following is a “rape”, according to Jivha.

Husband: (Carresses wife’s hair)
Wife: No.

Husband: Please!
Wife I told you NO!

Husband: Please Please Please Please Please!

Wife gives up, lies sullenly on the bed while the husband does it.

I am sure the husband is being extremely boorish, but you want to send him to jail for this? If you are a radical feminist who thinks that most men are dickheads, you’ll probably want to lock them all up as a precautionary measure anyway, but if you aren’t?

“But… no wife will complain to the police about such trivial things!” I hear you say. And will a husband give a police complaint about his wife stealing a pen? No?

They will, if they have a fight and they end up fighting an acrimonious divorce battle. Things that seemed really trivial when things were going well will suddenly seem like horrible crimes when relationships go wrong. If you have statutes on the book that make what is essentially the equivalent of a football foul into a criminal offence with a jail term, rest assured, someone will try to take advantage of that.

I personally know a case where the wife had some kind of phobia for sex. She had married under pressure from her parents. She wanted to make the marriage a success, and she would co-operate with the husband, but at the last minute she would say “No!”. If the husband had lost control even once, it would have been rape, as per Jivha’s definition. The case did go into divorce. (She never actually acknowledged the phobia and refused to seek help). In such cases, if the divorce turns acrimonious, given a chance do you think some people won’t misuse the law to file false cases?

Once again, don’t play definitional games with me. Don’t say “The definition of rape is.. hence technically it is a rape”. Words have connotative meanings as well as denotative ones. Rape denotes “having sex with a woman without taking her consent” It connotes “The most horrible crime that can be committed against a woman. The person who does this is an animal. The crime of rape destroys a woman’s spirit” etc. People don’t hesitate to seriously consider the death sentence for the crime of rape.

That is why radical feminists see rapes everywhere. They try take advantage of the connotative meaning of rape to make people sit up and take notice. What I mean is, they figured that “The husband raped his wife” has much more force and will evoke much more revulsion than “The husband beat his wife”. So by insisting on a ridiculously strict dictionary definition of rape they want to criminalise what normal people would consider “bad behaviour” (The woman does not even have to express her lack of consent. She just has to feel that she is being raped. I’ve heard people claiming that it is rape even if the woman feels afterwards that she has been raped)

But if they keep up with this and see a rape where others see a lover’s tiff their strategy will backfire. They will end up trivialising rape. Once people figure out what they are calling rape these days, even really serious rapes and serious violence will not get attention.

There is no reason to do this. If a man carries out violence on a woman, it should be disgusting and worthy of punishment even if he doesn’t have sex with her afterwards. Do you really want to put violence on women at par with the “non-violent rapes” I’ve described above?

(This has gone for too long, or else I’d have had something to say about the statistics Jivha uses. )
Oh and one more thing. I quite realise that as often happens, this has gone way beyond the original question. I still think that it is not ad hominem to raise questions about the credibility of the accuser. But even if I concede the point (I don’t) there are other independent arguments I am making here.

19 thoughts on “When is a rape a rape?

  1. Hmmm… but don’t you think that non-consensual sexual intercourse with the wife lowers her dignity as a human being and as such becomes an illegal act since it goes against the Article 21 of Indian constitution?

  2. Yes it does and yes, husbands shouldn’t do it. No it is not a criminal act, as Jivha has so vividly explained (follow the trackback to this post). But I think that it should be, especially if there is violence involved. But not every instance of bad behaviour should be a criminal act. We shouldn’t define crimes so broadly that a) honest mistakes get criminalised and b) there is a lot of scope for misuse.
    Between “honest misunderstanding” and “rape” there is a continuum. Somewhere in between lies “bad behaviour”. Somewhere between “bad behaviour” and “rape” I think we should draw a line beyond which actions should be illegal.

  3. Yes I did read Jivha’s impassioned post before I commented here. I agree with Jivha’s arguments about the inequity in Indian laws when it comes to protecting the wife from any form of coerced sex, be it violent or non-violent. But I also seem to agree with your views about the distinction between bad behaviour and illegal behaviour. I commented here and not on Jivha’s blog for the simple reason that I knew that Jivha’s post would be hijacked by feminists who are simply too bull-headed (is there a feminine equivalent of this?) to accept any other point of view!

  4. Something I found on the Web:

    Women rape men in AIDS fury: SOUTH Africa, where human rights groups say one in two women risks being raped, is grappling with a new twist to its biggest public health problem: women who rape men, often at gunpoint, in a deliberate attempt to infect them with AIDS.

  5. And I expected you, Jivha, to notice that I didn’t argue anything. I just posted a link to an article I found a while back.

    It would’ve been a red herring if I said, “look, women are raping men too, so marital rape isn’t such a big thing after all.”

    Good luck next time. 😉

  6. What? I’m not supposed to assume what you meant or guess as to why you were introducing a disconnected topic into the debate? You mean I should read exactly what you stated, nothing more, nothing less? How boring.

    Me: “Trusting a reader or a debater to pick up subtext or tangential context is only going to lead to further confusion.”

    Me again: “Fifth, I still maintain that a good debater will clearly state his/her point without letting ambiguity or subjectivity slip in.”

    You: “No, a rational man would take one look at the world around him, realise that there’s no way in hell that’s true, and giving me a teeny bit of credit for common sense, think, “there’s no way he could have meant that!” (I’m after all a capitalist libertarian.)”

    I’m glad that we now agree that one should not expect readers to guess or extrapolate as to what one means when s/he says something. Peace.

  7. Yelling “Rape” is the oldest trick in the book. Women have done it for centuries.
    Remember “To Kill a Mocking Bird”
    There is a memoir by an eminent judge of the US supreme court (i forget his name), he recalls some famous cases in the US and many of them were of of such genre.
    Basically False, but these false accusations can ruin reputations, careers and families.

    Hence women and particularly the so called feminists must realize their responsibility and not misuse the trust reposed in them.

  8. Sorry know it all and think you have all figured out, a man can rape his wife. He can do as much damage physically and emotionanly as the man in the dark alley, as the husband betrays a bond of trust. I was raped by my husband many times, as well as having consensual sex. He seemes to need the forced sex from time to time. Why, “Male” Dominence? His own isecurities? You tell me but I know it is as wrong as dark alley stranger rape. The last time was after a surgical procedure, sutures in the vagina, he did damage, No I did not press charges but I have a sleep disorder, PTSD, depression and I am the one who goes to therapy for the pain and hurt he caused not HIM. I would love to have battle with someone like you in a courtroom. What ever happened to wedding vows, to honor—

  9. Sorry know it all and think you have all figured out, a man can rape his wife. He can do as much damage physically and emotionanly as the man in the dark alley, as the husband betrays a bond of trust. I was raped by my husband many times, as well as having consensual sex. He seemes to need the forced sex from time to time. Why, “Male” Dominence? His own isecurities? You tell me but I know it is as wrong as dark alley stranger rape. The last time was after a surgical procedure, sutures in the vagina, he did damage, No I did not press charges but I have a sleep disorder, PTSD, depression and I am the one who goes to therapy for the pain and hurt he caused not HIM. I would love to have battle with someone like you in a courtroom. What ever happened to wedding vows, to honor—

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  12. marital rape has taken a step further to enfoece the rights of women.it’s true that it often becomes a tool to some women who r searching for excuses to divorce.But the truth is, women who r really affected need a chance to speak out too. Legal enforcement is the only way these epople can get justice.

  13. Rape, is an element of the exhibition of the animal type found in man. Hence, the definition of rape according to law may be useful to punish a wrong doers, but the human mind knows any of the sexual act when done physically or mentally, the doer knows unless insane whether his act was a rape or not? Hence, the compunction and the conscious would tear him down if not punished by law.
    V.Ramakrishnan Lawyer from Salem, Tamilnadu

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