The Misguided Definition of Rape as 'Force'

Sometimes, saying no is as brave as a person can be. Isn't that brave enough?

** RCB **/flickr

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.

Duke, my alma mater, used to have a publication called Saturday Night in which victims of sexual assault shared their stories anonymously. My friend, now a doctor, started it after she was attacked in a bathroom stall—a women's bathroom stall, in her residence hall—when we were in college. About what happened, she wrote:

I believe he was a student. And he wasn't hiding behind a bush, he was standing in a bathroom stall. The attack was labeled by the media as an 'attempted sexual assault.' This is wrong: A sex act was committed against my will. I did not 'fight him off and escape to my room.' He left—I didn't escape. I resisted, but at no point during the attack was I in control.

Many women I've talked to have lived in silence and fear, without the support I was given after my experience. Out of fear and disbelief, they have battled with unfounded feelings of guilt and regret. Yet, these women endured and thrived, refusing to be defined by their emotional wounds.

I wish I could say the same of myself. I no longer am the person that walked into that bathroom. Perhaps my experience has made me 'stronger,' but I resent the source of that strength. I want, perhaps selfishly, to return to my old way of life. I want to sit down in the library without first scanning every face. I want my family to stop feeling helpless. I want to kiss a guy I have just met and not feel vulnerable. I want my leopard slippers back.

She had been wearing her leopard slippers, a high school graduation gift from a friend, when it happened. But now they were covered in blood from the knife her assaulter had wielded.

Another close friend of mine, at age 27, was raped and murdered by an intruder in her sleep. She survived in the hospital for several days before passing away, having been beaten so badly. Her hands were broken from fighting back. Another local woman was also raped by the same intruder, but she didn't fight back. She lived.

In 2007, a 54-year-old Montana man raped his 14-year-old student. She confided in a church group leader, and her former teacher was charged. Then she killed herself. Six years after the incident, in 2013, he was sentenced to 31 days in jail (a sentence later overturned). At the sentencing, the judge said the victim looked older than her years and was "probably as much in control of the situation as was the defendant."

In February 2014, an 18-year-old raped a 14-year-old and was sentenced to 250 hours of community service at the Dallas Rape Crisis Center and deferred adjudication, which meant the conviction would be erased from his record if he successfully completed the terms of his probation—as if he had gotten a speeding ticket or stolen a t-shirt. As for the community service, the Dallas Rape Crisis Center's response was essentially, "Thanks but no thanks." Bobbie Villareal, director of the center,  said it would be inappropriate to have him there.

When the Dallas Morning News asked the judge to clarify her decision, she told the reporter that the girl "wasn't the victim she claimed to be," citing medical records that showed the girl had prior sexual experience and had traded racy texts with her assailant before the incident. Here is how the rapist—not the girl who was raped, but the rapist—described the assault in a written statement to police:

She and I started kissing, so I started to put my hand in her pants. She said no twice before I stopped. Then we started to kiss again and & this time I took her pants off & mine as well. She kept saying "no" and "stop" but I just didn't stop. [Afterward] she said, "Oh my god why did you do this?" I couldn't even answer. I just said sorry numerous times because I couldn't believe I had did that.

During testimony, the judge asked the girl whether she cried during and after the assault. So maybe she just didn't cry enough? But she did say "no"—by everyone's version of the events, including the defendant's.

Maybe it took all the bravery in her, all of the strength she could muster, to look her own victimhood in the face and accept it. To try to save herself from that horror, she let herself become a victim.

Jed Rubenfeld suggests that is not enough. He wants that she should push back, require her rapist to show his full strength so she can accuse him later. Under Rubenfeld's preferred definition for the law, she should dehumanize herself further for it to be considered a true act of rape (because, by definition, there is no force unless there is resistance). Despite the terrible, visceral knowledge that she is unlikely to win any physical match against him, she has to try and fail. A real woman confirms her weakness by proving it.

Sometimes, saying no is as brave as a person can be. Isn't that brave enough?

These stories become tiresome to read, I imagine. They are tiresome to write. We hear them, we hate hearing them, and we hate not knowing what to do about them.

I don't know what we are supposed to do. But I think one thing is not to accept Jed Rubenfeld's definition of rape.

If a man tries to shove a banana down my throat, will I scream? I might. Will I fight back? Probably. But even in my imagination, when I fight, I know I will probably lose.