The Misguided Definition of Rape as 'Force'

Sometimes, saying no is as brave as a person can be. Isn't that brave enough?
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I took criminal law with Yale Law professor Jed Rubenfeld, husband of Amy Chua ("Tiger Mom"), in law school. He was a good teacher, charismatic and clear. I liked his class for the most part. But on "rape week," as it's known among his students due to his controversial, provocative discussions on the topic, he called on me to answer a hypothetical question meant to demonstrate how inconsistent rape laws can be: If someone stuffed a banana in my mouth, would that be rape? The class tittered. I answered no. He smiled, approvingly. Most states agreed with me, he said—that would not be rape.

As he went on to educate us in the inconsistencies that characterize the legal landscape regarding rape and sexual assault, he also conveyed his view of how to deal with some of these inconsistencies: by defining rape by use of force rather than by lack of consent. In other words, "no" isn't enough.

In an article published last year in the The Yale Law Journal, discussed recently in The New Republic, he reiterated that view:

The fact that sex took place while a person was saying "no" doesn't prove force. People are quite capable of voluntarily taking an action, or voluntarily participating in it, even as they say—and mean—"no."

It's incendiary, to be sure, but as a student I also found it shockingly ignorant of the female experience. It was as if he was looking into a fish tank and making suggestions about how the fish should behave without recognizing that they were swimming in water.

When I was in law school, I was obsessed with the simple fact that men are (for the most part) bigger than women. The misunderstood implications of this reality, I felt, were huge. It puts women in a position where, if they are attacked, absent a weapon and some ability to handle it, odds are they will lose. Women know this, intimately and viscerally. We see the actual physical disparity around us. We have been raised in a culture shaped around and by this power difference. Our knowledge of it—not the factual disparity itself so much as the penetrating, all-consuming awareness of it—changes who we are, how we feel, how we act, and how we respond to acts of aggression and threats of aggression.

Resist and risk becoming a victim, another statistic, a person who spends the next 10 years paying $150 to $200 a week to a therapist to parse the moment, relive it, process it, and attempt to understand the heinous ribbon of emotions it unfurled so that she can finally move on. But rationalize away the situation—decide not to say "no" in order to retain some sense of agency in the situation—and she need not become a victim. She gets to maintain her non-victim status in the world.

When I was 16, I followed a boy into the woods at a party and let him push my head down and hold it at his crotch, then pull open his pants and shove my face in. I had on a strapless white dress with ruffle trim at the top. It had yellow, green, and blue flowers the size of pencil tops. I still remember it—the dress I was wearing—because the scene is etched into my memory in a permanent, gag-producing way. Why didn't I fight him? What would it have meant if I fought back, and he didn't stop—that I had been sexually assaulted? Raped? I couldn't imagine being raped, so I wasn't.

I felt smarter than him for figuring this out. I was smarter than him. He had a beer gut at 17 and had hardly passed geometry. I, highest scorer in the school on the national math exam, was going to go on to do great things while he stayed behind, forcing gestures of love.

Later that year, I wore the same dress at a gas station, sitting in the passenger seat of my best friend's teal Honda Civic, yelling at a stranger from the open window. "Hey! Hey, guy! Will you buy us cigarettes?" I waved a 10 at him. He took it and returned with the change and the cigarettes, and when he handed them to me, he grabbed my chest, a handful of it. He kept his eyes on mine while he squeezed, then pulled his hand back casually and walked away, like it was just part of our transaction.

I remember feeling shaken but still whole, as we drove down the street that we had driven down thousands of times before. I never wanted to see that man again. I hated him. But I remained intact, headed to a party where I'm sure there was some boy I was crushing on and did want to see. It was as if, because I hadn't fallen apart, I could decide that nothing had happened, at all.

As I have grown older, I have learned that nearly every woman I know has a story or stories like these. When someone recently asked me if, when I ever have children, I would prefer a boy or a girl, I cringed at the idea of bringing a daughter into this world. Odds are that someone will violate her, and she will face the decision: react and become a victim, or don't, and remain a non-victim—which is … what? There isn't a term for a non-victim, because that's just a person. Just a person is what we want to be.

In order to avoid victimhood and maintain simple, victimless personhood, women can be extraordinarily, stunningly rational; we can rationalize away acts of violation simply because we don't want them to have been real. Perhaps if I decide it didn't happen, it didn't; perhaps if I decide it doesn't matter to me, it doesn't. But other times, victimhood is thrust upon us.

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Mary Adkins is a writer based in New York City. She edits the blog at The Life of the Law

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