As long as I’ve broached the subject of “party rape and other forms of sexual assault I figure I might as well go in a little deeper, based particularly on the extensive comments in this post.
Something that infuriates a lot of right-minded people is uncomfortably large gray area between behavior most people consider acceptable and behavior most people would call rape.
In this comment Kochanie of Literate Perversions lays out one case (based on a novel.)
...I would like to present a real life example that may clarify some of the questions raised about consent and rape. The example is a discussion that took place among a group of adults, most of whom were women, whose ages ranged from 35 to 70. The subject of the discussion was the novel, As I Lay Dying by William Faulkner, or more specifically, the scene in which the drugstore employee named Skeet gives the unmarried, pregnant Dewey Dell a bogus abortifacient. Since she does not have the money to pay for the remedy, Dewey Dell pays, unwillingly, by engaging in a sexual act with Skeet.
Some members of the discussion group argued that this was clearly a case of rape. Others, like myself, asked if this was better defined as sexual harassment. If it was rape, I asked, how would it be defined by statute and what evidence would be required to legally prosecute it?
See the comment and follow-up discussion by other commenters here.
Until Kochanie raised the point about sexual harassment I would have tended to judge the situation as a form of rape, although I’d have been a little uncomfortable about some of the particulars. Even though there was no threat of violence there was still something that amounted to coercion and on the face of it that ought to be enough, again, for any right-minded person. Except, as Kochanie hints, an even semi-competent defense lawyer could drive a tractor through the gray area: “did he threaten you?” “No” “Did you agree to have sex in exchange for something?” “Yes” “Your honor, at worst my client is guilty of soliciting a prostitute.” (Whereupon blood vessels would explode in my head.)
And along comes Kochanie with a flashlight called “sexual harassment” and suddenly the circumstances clarifies. A competent defense attorney can say whatever she wishes, but even a semi-competent corporate sexual-harassment trainer will tell you within the first fifteen minutes of class that you may neither offer or withhold anything in exchange for sex. Poof! No gray area at all.
I think the biggest objection, aside from the absolutely visceral one that all unwilling sex is rape, might be that sexual harassment is not well defined either. This is certainly true at the moment. For instance even though the legal definition tends to be more strict, in the popular imagination “harassment” implies “unsuccessful” when, as in Kochanie’s example, harassment often succeeds. For another, there’s the unfortunate Supreme Court decision that it’s not legal harassment when someone of one gender to sexually harass someone of the same gender. Finally, the legal definition currently covers mainly workplace and academic settings and anything else that’s covered, if it’s covered at all, tends to be a hodgepodge of professional association guidelines that may not be consistently enforced.
But that’s just the situation today. And whereas a lot of people might have a hard time accepting legal changes that expanded sexual harassment to include more of the gray area of “grudging consent” those are the same people who have been balking at attempts to stretch definitions of rape to cover it instead. Since that consideration is a wash…
Oh! Oh yeah! I think one really really critical difference, even though it might sound like a rhetorical one, is that for better or worse people seem extraordinarily shy to admit they’ve been non-violently pressured to have sex. There are all kinds of reasons for this including cultural, psychological, and expectations that they’ll be blamed. (Consider this incredibly moving post from Shay of Shay’s Other Spot and her follow-up post explaining “One of the reasons why I never talk about this incident is because I really don’t want people to judge me based on something that had happened to me so long ago…”)
Ok, so whereas there’s a (largely unfounded and certainly unjustified) tendency to “blame the victim” for rape I’m unaware of any corresponding blame or shame associated with sexual harassment. (Yes, there are a lot of people who whine about charges of sexual harassment but the very fact that they’re whining suggests the power of the charge and shift of sympathy from perpetrator to victim. They wouldn’t be whining if harassment, even “successful” harassment, was either respected or easily dismissed.)
At any rate, since I believe “gray area” assault and “grudging consent” situations are a key incubators of “sex-negativity” for all genders I’d like to endorse Kochanie’s suggestion that sexual harassment should be expanded to match criminal sexual assault in terms of recognition and severity.
[Quick aside: Whereas FDA regulations permit pharmacists and doctors to withhold emergency contraception from a patient for reasons of conscience I wonder if Biting Beaver could bring a sexual harassment suit against the doctors who denied her a prescription after grilling her about her loose morals. —fl]
Submitted by 947 (not verified) on Tue, 2006-09-26 18:06.
*blinks*
Sorry to be blunt, figleaf, but... what rock have you been living under?
"If she hadn't worn that short skirt...!"
"What, she wore a low-cut shirt, guys are gonna look!"
"I thought she was flirting!"
"I was only joking; I thought we were friends!"
etc.
[Before I get to the rock business I hope I made it clear that I acknowledged that *as currently constituted* sexual harassment law isn't sufficiently developed, but that I feel it would be productive to develop it. Next, I totally agree that harassment still happens. (As you documented, for instance, just before the weekend.) What I hear you saying, though, which I hadn't known, is that when women hear those remarks they internalize them or otherwise agree that "it's my fault for wearing that skirt." As for the rock thing, while harassment certainly still happens around here, at least in large corporations it's known as a reliable way *not* to get promoted if it's known that you do it. Thanks, Amber. --fl]
Submitted by 947 (not verified) on Tue, 2006-09-26 20:54.
I agree that pressure for sex outside of a relationship is clearly sexual harassment. But is it sexual harassment if it occurs within a relationship, with people who have had sex before? I inadvertently opened up additional grey areas because it made me think about what happens beyond the initial hook-up. Interesting food for thought.
[Hi CC. I'm going to provide a waffle-ish sounding answer that I don't mean to be waffling at all: I don't know because I don't think the definition of sexual harassment -- the one I'm proposing -- has been sufficiently developed. But my guess is that yes, once it's as well developed as the definition of sexual assault, it will cover the gray areas in on-going relationships. (I ought to mention here that I'm not supporting inflating any old thing fit the bill, just that I think the principles f what we now call sexual harassment already cover some and could cover more. But my real goal is reducing these gray areas.) Thank you, CC. --fl]
Submitted by 947 (not verified) on Tue, 2006-09-26 23:14.
I'm catching up on these past two posts, and with my own working through my thoughts and feelings about what I went through, several things make sense as well as give me more to think about.
Several years ago, I was raped by a co-worker. A few weeks ago, I guess according to what I've been reading, I was harrassed. The similarities are the emotional shut down and 'what did I do wrong?' mentality. The differences include having my hands held behind my back while pushed up against my car, having my jeans pulled down and being 'fucked' by someone I worked with, vs. being thrust into painfully, after I'd intially agreed but then asked to stop or switch, being cussed at, and well, being 'fucked', by someone I had cared about. The feeling of my own loss of power was the same.
I completely understand why people are afraid to file charges or anything - the emotional torture sucks, and the feeling that I was in that positon in the first place sucks. At least for me it was a loss of my control and power over my body and my own sexuality that hurt the most.
Sorry to have gone on about this, but when I was able to work through (for the most part) it all, then I can see where that gray area could be.
[Hi Bella, I *have* to keep another committment right now or I'd answer this with the care you deserve. For now I'll just say that what I'm saying in this post is meant to *supplement* existing categories, not replace them. Your description of the second incident sounds like pretty unambiguous, classic date rape -- whatever the other circumstances, once you clearly say stop and he doesn't it becomes assault. It would be good to talk to someone in person. I'll be thinking about you but now people are waiting. More later, maybe by email. --fl]
[Later: Now that I'm back I still think you're describing an out of control situation where, at the *very* least, your partner isn't listening when you have something pretty important to say. Like "stop." Earlier I said it would be a good idea to talk to someone about this in person I could have been clearer: it would be a good idea to talk to several people about it. The first would be your partner when you aren't having sex just in case he's somehow unaware of how he's affecting you. The second would be to see if you can talk to a rape crisis counsellor to help a) process or reprocess your first assault, b) help you assess your reaction to the kind of sex you're having with your partner, c) determine whether he's reopening old wounds or adding new ones, and finally, to help you clarify what needs to happen next. One way or another I see how you could feel uncomfortably caught up in ambiguity I think that talking with people who know how to help you deal with it will help immensely. Thanks for stepping up, Bella. You're not alone, you're not the first or only person to be in this situation, and I promise you've got a lot of people online and in real life who care what happens to you. --fl]
Submitted by 947 (not verified) on Wed, 2006-09-27 07:30.
I agree that sexual harrassment is a good way to cover much of that "gray area"; it makes it clear that "grudging consent" is wrong, and that you don't have to have used force to have harmed another person. Another concept to cover some of the "successful sexual harrassment" territory is professional/sexual exploitation; certain relationships (psychiatrist/patient, for example) impair one's ability to freely consent. And, finally, given that a crime needs to be clearcut and provable beyond reasonable doubt, and even a civil action needs to be clear enough to be provable in court by preponderance of the evidence, it should be clear that there's going to be a gray area where what was done was wrong, even if not legally actionable in any way.
I agree that pressure for sex outside of a relationship is clearly sexual harassment. But is it sexual harassment is it occurs within a relationship, with people who have had sex before?
This is tricky, because some things are definitely harrassment outside a relationship, that aren't harrassment inside a relationship. Like, to take an example, presuming you can make sexual advances that skip all the preliminaries. If I'm at a party and some stranger grabs my ass, without any interaction where I've gotten to indicate that I'm open to having my ass grabbed, that's clearly not kosher. But my husband is another matter.
I think many people may be OK with the gentler varieties of "pressuring" (wheedling, whatever) in a relationship - something equivalent to the situation we often have where my husband wants me to watch a movie with him, and I think I'm too busy, and he gently tries to persuade me that maybe I really don't need to be too busy, but will take no for an answer. But that doesn't mean you get to use any level of pressure whatsoever, to the point where it's seriously bothering the one pressured, just because you're in a relationship. And it doesn't mean that it's OK to badger, badger, badger for some act you've never done in that relationship, and that one party is seriously uncomfortable about doing.
[First point: although we've become a very legalistic society, just because something isn't *legally* actionable doesn't mean it's not *socially* actionable. In a way this might be part of the problem with our current understanding of rape: by definition rape is always a crime perpetrated on an unwilling victim either by force or with force implied. Harassment, at least moving in the direction I think it should, can range from simple badgering (good term by the way) which might never be actionable, to blackmail which at least in some cases might already *be* actionable. The bottom line, though, is that the gray areas we keep talking about might be *unknown* but they're not at all *unknowable.* By enriching our social (as well as legal) vocabulary large swaths of ambiguity can be made unambiguous. Thank you, Lynn. --fl]
Submitted by 947 (not verified) on Wed, 2006-09-27 10:52.
I completely understand why people are afraid to file charges or anything - the emotional torture sucks, and the feeling that I was in that positon in the first place sucks. At least for me it was a loss of my control and power over my body and my own sexuality that hurt the most.
Bella, thank you for speaking about these two awful incidents and the emotional aftermath. The act of speaking and knowing that others are listening, with sympathy and without judgment, is part of the healing. I hope other men and women who visit here will learn from the examples put forth by you, Shay, and others.
Figleaf, I have two observations to share that concerning sexual harassment in the workplace.
First, in a workplace -- be it a corporation, not-for-profit organization, or academia -- policies concerning sexual harassment are not designed for the protection of the employee/victim. The policies are desiged for the protection of the corporation, organization or university in the event an employee, student, customer, or vendor files charges for sexual harassment.
Few incidents of sexual harassment in the workplace or academia are reported, and those that are reported are most likely to be settled privately, out of court. Again, the goal is not justice but to protect the shareholders' interests (or the that of the liability insurers of the board of directors) by minimizing negative publicity and legal costs. Should the employee/victim take his/her case to the EEOC, then the investigation is out of the hands of the employer -- a situation most companies seek to avoid.
Second, the following is a real world example based on my personal experience. I was in a meeting with two other women.
(1) All three were age 50 or older.
(2) All three were employed in middle or upper management positions.
(3) All three were dressed in business attire, i.e., not provacatively.
(4) All three had been sexually harassed by a male superior or a male customer of her employer.
(5) Two of the three had not reported the harassment to upper management, because the perpetrator was a memeber of upper managemment.
(6) The third woman was told by a customer that he wanted sexual favors if he awarded her firm a contract. When she reported this to her superior, his response was, "Make sure you get that contract."
(7) All three women remedied their situations by quitting their jobs and seeking employment elsewhere.
(8) All three women did not report the harassment with their employers or government agencies.
Were there three cowards in the room? Hardly. The old adage "Pick your battles carefully applies here." If a woman is responsible as a bread winner for the support of her family, she is not going to be involved in complaint that exacts a high emotional toll, will minimize her chances of oromotion and continued employment, or the chance to obtain employment elsewhere.
I am not extraordinary, Figleaf. I am an average woman and my experiences are, I expect, shared by many other woman and men.
I am not going to draw conclusions here. But I would like to suggest that you ask your readers to disclose what incidents of sexual harassment they have observed or experienced in the workplace.
Once again, thank you for using your site for this valuable discussion.
[First of all yes, I agree that institutions didn't begin to take harassment seriously until they fell liable to civil suits and that therefore their policies are designed to protect the institution first and that protection of employees follows almost as an afterthought. What hasn't changed, however, is that the principle of sexual harassment predates corporate policy. While that construction may have inadvertently been sort of hijacked by employers the principle remains. Your good insight has prompted me to believe those original principles should be recaptured and weilded. One good reason for extracting it from the clutches of employers, by the way, is that corporations generally react so drastically when an allegation is made. Redeveloping the social elements, as well as expanding the legal ones, could turn it from one big unweildy hammer into a well-stocked box of appropriate tools -- I'm thinking from tweezers to jackhammers. Thanks again for introducing the idea, Kochanie. --fl]