The Delicate Dilemma of Defining Rape

Don’t Rape (Photo by Richard Potts [CC BY 2.0], via Flickr)

By Carlos Tavris (Skeptic Magazine Issue 21.1)

I have been writing this column for some time without explaining its title, “The Gadfly.” Linguistically speaking, a gadfly is a fly that bites or annoys cattle and other domestic animals, and its human counterpart is “a person who persistently annoys or provokes others with criticism, schemes, ideas, demands, requests,” and the like. The full dictionary definition would therefore make the word applicable to bullies, thugs, and Internet trolls—company I’d rather not keep! In the usage I learned and intended in this title, “provokes” is the relevant verb: A gadfly bites to wake us up, to prod us out of complacent assumptions, to make us think about what we believe.

In that meaning, I’ve been bitten often myself, so I know how it stings. When I was a young social psychologist and feminist in the 1970s, I never imagined that I would be asked to testify for the defense in a rape case. Rape laws at the time still included the “marital rape exemption,” with rape commonly defined as “an act of sexual intercourse with a female, not one’s wife, against her will and consent.” Men joked about this. “If you can’t rape your wife,” California State Sen. Bob Wilson said to a group of women in 1979, “who can you rape?”

We young feminists were furious about rape jokes, stupid rape theories (women, being naturally masochistic, want to be raped), and misogynist rape laws. Making the nation aware of the prevalence and brutality of rape was an arduous task, so it put me in a state of cognitive dissonance when a female defense attorney asked me to work with her on a case. Her client had been accused of raping a woman he had fired for incompetence.

The plaintiff had ready responses to the defense attorney’s questioning. Why did she wait a month after her dismissal to file charges against him? She was traumatized. Why didn’t she report it at the time to anyone she knew, or go to a doctor? She was ashamed. Why didn’t she have emotional or physical symptoms then or afterward? The absence of symptoms is a symptom of “rape trauma syndrome.” The defense attorney was not squeamish in questioning the plaintiff specifically about what she claimed had happened in her office. The boss had straddled her on her desk chair? But the chair had arms. He forced her out of the chair, with one arm around her neck, and dragged her to the door to lock it? But she was taller and heavier than he. While holding her with that arm around her neck, he then lifted her dress with his other hand and removed her pantyhose?

The courtroom was silent as everyone, male and female, realized what a challenge that would be with a willing woman, let alone a protesting one. The woman next to me said, “Pantyhose are nature’s chastity belt.” The defendant was acquitted.

That defense attorney taught me three important lessons:

  1. Don’t let ideology trump justice—for women who are wrongly disbelieved or for men who are wrongly accused.
  2. Don’t shy away from asking precise questions and defining your terms. And,
  3. Don’t assume that just because you are enraged about an injustice in general that you will be right about a case in particular.

The word rape, after all, is so emotionally charged, evoking not only ugly men in dark alleys but also handsome heroes “taking” the breathless damsel against her will, that it behooves us to try to clarify what “rape” is when we talk about it. The definition has changed radically; today the Justice Department and the FBI have expanded the definition of rape that existed decades ago: it is now defined as forced penetration of any orifice with any part of the body or an object. Yes, husbands can commit rape. So can women. So can a teenager with a broom handle. Prostitutes and porn stars can be and have been raped.

Understandably, therefore, when President Obama held a press conference, announcing the results of research claiming that 19% of all college women will experience actual or attempted rape, that number went viral. Nearly one in five college women! It’s an epidemic! Even a “Viewpoint” column in Journal of the American Medical Association, by two law professors who ought to have known better, mindlessly cited that number.1

The National Crime Victimization Study, a nationally representative study designed to reveal reported and unreported crimes, found that between 1995 and 2011, fewer than one percent of college women said that they had experienced attempted or completed rape.2 Then where did the 19% figure come from? In President Obama’s speech, he cited a 2007 online survey of only two universities in which the researchers had combined rape with “sexual assault”— defined as any unwanted acts such as “forced kissing,” “fondling,” and “rubbing up against you in a sexual way, even if it is over your clothes.”3 Unwanted fondling can certainly be unpleasant, but it isn’t rape.

Don't Rape (Photo by Richard Potts [CC BY 2.0], via Flickr)

Don’t Rape (Photo by Richard Potts [CC BY 2.0], via Flickr)

Emily Yoffe, a brilliant investigative journalist whose stories for Slatemade readers aware of checking whether the desk chair had arms, so to speak, exposed the exaggerated numbers through careful scrutiny.4 She looked into another widely cited prevalence number from the Sexual Victimization of College Women study done in 2000, which claimed that one in four college women will be raped. To get that high number, the researchers not only manipulated their data, they misrepresented it in a way that no reputable scientist should ever consider doing. They found that only 1.7% of the respondents reported having been raped; another 1.1% reported attempted rape. On the assumption that attempted rape is as traumatic as completed rape, the researchers combined those numbers. So now we are at 2.8%. But how did they get from 2.8% to 25%? By projecting possible future experiences. If 2.8% are victims of rape or attempted rape in a 6-month period, they reasoned, that might be about 5% in a year (even though students are off for three months in the summer). And since most students take five years to finish, let’s multiply that 5% by another five. Voilà—25% of all college women will be raped or assaulted in their college career.

Even the researchers, perhaps in a spasm of the scholarly reflex, acknowledged that asserting that one-quarter of college students “might” be raped was not based on actual evidence. Yoffe found this disclaimer in the authors’ footnotes: “These projections are suggestive. To assess accurately the victimization risk for women throughout a college career, longitudinal research following a cohort of female students across time is needed.” And if I have two car accidents in my freshman year, does that mean I’ll have ten by the time I graduate? Isn’t there a chance I might learn something from those accidents and not have another one?

This kind of statistical manipulation seems clear evidence of ideology warping data in its service—an enterprise that does not help the cause of reducing rape and other acts of violence against women (or men). On one level, numbers shouldn’t matter: Rape is ugly, it’s serious, and can have devastating consequences for its victims. But if numbers are being used to generate a national panic or to institute university policies that may cause more harm than good, then we need to assess them as dispassionately as possible—without being accused of being “rape cultured” or supporting perpetrators.

So let’s examine the recent statistical practice of combining rape with unwanted sexual acts. Should young women be encouraged to believe that a clumsy act of fondling or kissing is the same thing, emotionally or physically, as forced penetration? For people who believe that misogyny and sexual violence are widespread and entrenched, the answer is yes: 20% seems like the right number for the percentage of assault victims. Look, they say, at how commonly women are described as hos, bitches, and cunts in our culture. “Slut shaming” has become so ubiquitous that it’s a term in gender studies. The culture today encourages men to feel sexually entitled to take advantage of women who are inebriated, or otherwise unable to consent—look how casually they post videos of themselves doing just that; look at those frat guys chanting “no means yes.”

For others, 1% to 3% feels like a more accurate number, supporting their argument that claims of rape are exaggerated in a political climate that invites women to turn unpleasant or regretted sexual encounters into assault charges. The culture today, they say, encourages women to avoid taking responsibility for their part in sexual encounters. Look at the language we use when we blame men for “getting a woman drunk.” “Getting”? What is she, an empty vessel with no volition as to how much she drinks? Don’t today’s young women, cheerfully claiming their rights to power and autonomy— including the right to get drunk—see that this attitude is a modern incarnation of the old days when women were thought to be the helpless, weaker sex who needed protection from their own lascivious impulses? Protection that would be provided by men— the right gentlemanly men, of course. “Men are always trying to protect me,” the divine Mae West once said. “Can’t imagine what from.”

Our challenge is to accept what is valid in both perspectives. We can vigorously pursue the goals of justice for rape victims and fairness for accused perpetrators. We can understand that many acts of sexual assault are violent and appreciate the subtleties of sexual communication that can create mischief and misery.

The first SlutWalk in Toronto, Ontario, April 3, 2011 (Photo by Anton Bielousov (Own work: Slutwalk (Toronto, ON)) [CC BY 3.0], via Wikimedia Commons)

The first SlutWalk in Toronto, Ontario, April 3, 2011. (Photo by Anton Bielousov (Own work: Slutwalk (Toronto, ON)) [CC BY 3.0], via Wikimedia Commons)

It’s the “subtleties,” however, in the gray zone of human interaction, that cause such controversy over what can be done. The vast majority of all reports of rape—about 85%—occur between people who know each other. Some of these encounters are unambiguously coerced, but many are not. And while the goal of getting expressed consent is admirable, it’s not entirely realistic—partly because people often don’t know what they want. Sex researchers repeatedly find that people rarely say directly what they mean at the start of a sexual encounter, and they often don’t mean what they say. They find it difficult to say what they dislike because they don’t want to hurt the other person’s feelings. They may think they want intercourse and then change their minds. They may think they don’t want intercourse and change their minds. They are, in short, engaging in what social psychologist Deborah Davis calls a “dance of ambiguity.” It occurs because the intersection between consensual and nonconsensual sex is often not marked with flashing lights and traffic signals that say Slow! Stop! Yield! This is the territory of “he said/she said” and the polarized interpretations that cause such heated debate.

As sexologists know from research and clinical experience, most straight couples, even long-term couples, communicate sexual intentions—including a wish not to have sex—indirectly and ambiguously, through hints, body language, eye contact, “testing the waters,” and mind reading (which is about as accurate as…mind reading). This dance of ambiguity actually has benefits for both partners: Through vagueness and indirection, each party’s ego is protected in case the other says no. Indirection saves a lot of hurt feelings, but also causes problems: The woman really thinks the man should have known to stop, and he really thinks she gave consent.

Davis and her colleagues Guillermo Villalobos and Richard Leo have suggested that the primary reason for the many “he said/she said” reports that make the news is not that one side is lying. Rather, each partner is providing “honest false testimony” about what happened between them.5 That is, both parties believe they are telling the truth, but one or both may be wrong because of the unreliability of memory and perception, and because both are motivated to justify their actions. Because memory is reconstructive in nature, and susceptible to suggestion, and because we distort or rewrite our memories to conform to our views of ourselves, people can “remember” saying things that they only thought about or intended to say at the time. As a result, a woman might falsely remember saying things that she thought about (but did not say) to stop the situation, because she sees herself as an assertive person who would stand up for herself. A man might falsely remember what he did to verify the woman’s consent that he did not do, because he sees himself as a decent guy who would never rape a woman. She’s not necessarily lying; she’s misremembering. He’s not necessarily lying; he’s self-justifying.

By far, the most well-traveled pathway from uncomfortable sexual negotiations to honest false testimony is alcohol.6 For some women, alcohol is the solution to the sex decision: If they are inebriated, they haven’t said “yes,” and if they haven’t explicitly said “yes,” no one can call them a slut. Alcohol, of course, reduces inhibitions and makes “yes,” for both parties, more likely. But it also significantly impairs the cognitive interpretation of the other person’s behavior: men who are drunk are less likely to interpret non-consent messages accurately and women who are drunk convey less emphatic signs of refusal. And alcohol severely impairs both partners’ memory of what actually happened.

If our goal is really to reduce sexual assault of all kinds, therefore, it is not helpful to label all forms of sexual misconduct, including unwanted touches and sloppy kisses, as “rape.” We need to draw distinctions between behavior that is criminal, behavior that is stupid, and behavior that results from the dance of ambiguity. END

  1. Reingold, R.B. and L.O. Gostin. 2015. “Sexual Assaults Among University Students.” Journal of the American Medical Association, August 4.
  2. Bureau of Justice Statistics. 2013. See also Breiding, M.J., S. G. Smith, K.C. Basile, M.L. Walters, J. Chen, and M.T. Merrick. 2014. “Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization“ — National Intimate Partner and Sexual Violence Survey, United States, 2011.
  3. Krebs, C.P., C.H. Lindquist, T.D. Warner, B.S. Fisher, and S.L. Martin. 2007. “The Campus Sexual Assault (CSA) Study.” National Criminal Justice Reference Service. December.
  4. Yoffe, E. 2014. “The College Rape Overcorrection.” Slate, December 7.
  5. Davis, D. & Villalobos, J. G. (2014). Language and the Law: Illustrations from Cases of Disputed Sexual Consent. In T. Holtgraves (Ed.),Handbook of Language and Social Psychology. Oxford: Oxford University Press.
  6. Davis, D., & Loftus, E. F. (in press). “Remembering Disputed Sexual Encounters: A New Frontier for Witness Memory Research.” Journal of Criminal Law and Criminology (Invited Contribution).

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