Re: Assorted links

1

The obvious counterargument to 1 is HIS HAIR.


Posted by: Thorn | Link to this comment | 10- 7-14 6:41 AM
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That implies blindness is prevalent in well over half the population.


Posted by: Moby Hick | Link to this comment | 10- 7-14 6:45 AM
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The Ortberg is really excellent.

And I know I'm being predictable in saying this, but her expert and correct deployment of such terms as soul, atonement, and forgiveness suggest to me that her values, which she brings powerfully and persuasively to bear here, have another origin she is not being explicit about in this essay.


Posted by: idp | Link to this comment | 10- 7-14 7:06 AM
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Her dad's a pastor.


Posted by: redfoxtailshrub | Link to this comment | 10- 7-14 7:12 AM
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Her dad is a very well know Evangelical Chrsitian minister who she talks about a lot. I don't think anyone would be surprised she knows something about religion. Though I don't know about her individual beliefs.


Posted by: hydrobatidae | Link to this comment | 10- 7-14 7:13 AM
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The Stevie Wonder thing is great. I would be interested to see the counterpart: lists of conspiracy theories that most of the population doesn't believe in or hasn't heard of, despite their being indubitably true. Iran-Contra, for example.


Posted by: ajay | Link to this comment | 10- 7-14 7:15 AM
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Andrew Lloyd Webber is deaf. Pass it on.


Posted by: Alex | Link to this comment | 10- 7-14 7:16 AM
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Deaf to Andrew Lloyd Webber!


Posted by: ajay | Link to this comment | 10- 7-14 7:19 AM
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9

That's not fair. It means he isn't even suffering with the rest of us.


Posted by: Moby Hick | Link to this comment | 10- 7-14 7:22 AM
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Seconding 3.1 Break with tradition and read the OP links, people.


Posted by: togolosh | Link to this comment | 10- 7-14 7:23 AM
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10 is right.


Posted by: Moby Hick | Link to this comment | 10- 7-14 7:29 AM
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All my links are golden, you whores.


Posted by: heebie-geebie | Link to this comment | 10- 7-14 7:33 AM
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Somewhat off-topic, I'm wondering what people think is the appropriate punishment for statutory rape.

I know someone who is in prison for a relationship with his step-daughter when she was underage. She was 16 when he first took an interest in her (super difficult time, wife cheating on him) and 17 when the consummated it. It was, as much as is possible "consensual." Obviously a 17-year-old isn't really capable of consenting to sex with someone in a parental role, and the age difference is a huge problem.

He knows that what he did is wrong, and he's in a program for sex offenders trying to find ways to prevent himself from getting into an emotional space where that kind of behavior seems ok. It's a hard one for him, because he has to listen to people who molested 7 year-olds talk about their crimes and know that he is viewed the same.

I have a hard time seeing them as the same thing myself, though I haven't shared that with him. His sentence seems a little long to me too: 18-24 years. Murderers often get parole sooner.

We all agree that he deserved to go to prison, but is that length of sentence really justified?


Posted by: Bostoniangirl | Link to this comment | 10- 7-14 7:39 AM
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They are, but this one is better argued than most.


Posted by: Moby Hick | Link to this comment | 10- 7-14 7:39 AM
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14 to 12.


Posted by: Moby Hick | Link to this comment | 10- 7-14 7:40 AM
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5: ...though I don't know about her individual beliefs.

She recently wrote an essay about that as well, which was also pretty good. Half-hearted attempts on my part to google it and retrieve the link have failed.


Posted by: real ffeJ annaH | Link to this comment | 10- 7-14 7:41 AM
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13: 18-24 sounds really extreme. I'd say 2 in minimum security would be about right.

Statutory rape is tricky. Personally I'd remove the stupid and arbitrary red line age restriction and say that over 14 and under 18 a two year or less age difference makes it OK, or at least not a felony that gets you on sex offender lists. Your acquaintance would still be in for it, but we'd get rid of some of the stupider elements of the law.


Posted by: togolosh | Link to this comment | 10- 7-14 7:55 AM
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17: It was 18-24 in medium security; that's what convicted rapists get here. He did get a college degree which is why I know him. His parents are aging fast. He had planned to go take care of them and do work on their house, but Dad might die before that, and if they sell the house, his re-entry plans will be much more complicated.


Posted by: Bostoniangirl | Link to this comment | 10- 7-14 8:00 AM
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5: Ortberg">http://the-toast.net/2014/09/23/two-monks-invent-denominations/">Ortberg on denominations.


Posted by: Minivet | Link to this comment | 10- 7-14 8:02 AM
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Here.


Posted by: Minivet | Link to this comment | 10- 7-14 8:03 AM
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13: reading the thread from the bottom up, I thought 17 referred to a sentence of 18-24 months and was thinking "hmm, harsh but not beyond the bounds of possibility". 18-24 years seems ludicrously severe for something that, while unpleasant and morally wrong, would presumably not even be regarded a crime in a different state (given that the victim was 17 years old at the time).


Posted by: ajay | Link to this comment | 10- 7-14 8:06 AM
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I like the quoted paragraph a lot and her general sentiment. That said, the essay crystallized a general (and I'm sure obvious to a lot of people already) problem with a lot of discourse on the topic for me, which is that people want the category of "rape" to be used for both a prosecutable crime and/or creator of immediate and social-death crearing social stigma (very properly!) and to describe a continuum of coercive sexual behavior by extending anywhere beyond the zone of enthusiastic consent (also properly!) Both are noble goals, but calling both "rape" means they're in conflict with each other -- of course if rape is a crime and/or the mark of unbearable social stigma there is going to be a need to strictly mark off the category from still-bad, but less immediately awful, behavior. But to the impulse to broaden the category pushes in the other direction.

To egregiously violate the analogy ban, it's a similar problem to use of the word "racism" to cover both being a (social death creating) Klan member and having unconscious structural racism. Both are bad, but there are understandable tendencies at war with each other to broaden or narrow the category, to define the core horrible crime and to sweep in all kinds of bad behavior under the concept.


Posted by: Robert Halford | Link to this comment | 10- 7-14 8:06 AM
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I'm a terrible snob. I think Ortberg is spectacular (both really funny, and very sane when she's being serious), but I find the comments section in which people loudly agree with me that she's spectacular offputting. If I didn't have highly developed skills allowing me to disregard other people's comments, I'd be looking for things to nitpick her about.

But yes, that's a very good piece. I like that she hits one of my hobbyhorses about sexual consent: that enthusiastic consent isn't confusing. If you're in a situation where confusion about your partner's consent is a real possibility, you're already doing something wrong (maybe not criminal, but very much not a good idea), and you should back off until the situation is clarified.


Posted by: LizardBreath | Link to this comment | 10- 7-14 8:06 AM
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21: It does seem very strange. I wonder if (a) 18-24 years is a nominal sentence that turns into something very different in terms of actual calendar years spent incarcerated, and (2) if 'stepfather' is treated by Massachusetts as a hugely aggravating factor for statutory rape (I do think that it should be, but again probably not nearly that much).


Posted by: LizardBreath | Link to this comment | 10- 7-14 8:10 AM
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22: There's also the complication of how to deal with sex abuse of children by other children, which I think in general often gets handled poorly and probably understood even more poorly.


Posted by: Thorn | Link to this comment | 10- 7-14 8:13 AM
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22. The magic of words. Rape and coercion are not the same, racism (or maybe the more objective race-based discrimination) and prejudice are not the same.


Posted by: lw | Link to this comment | 10- 7-14 8:13 AM
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Were you referring to our comment section, the one at Toast, or both?


Posted by: idp | Link to this comment | 10- 7-14 8:17 AM
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I'd also wonder from the length of the sentence whether the version of the story you got is entirely accurate. Alternately, did it go to trial? Anecdotally don't they try to make examples of people who won't plead?


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 10- 7-14 8:17 AM
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27: No, no, the one at Toast. When we're enthusiastic about someone, it's well considered and not syncophantic at all, because we're good like that.


Posted by: LizardBreath | Link to this comment | 10- 7-14 8:18 AM
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28: Oh, duh, I should have figured that out. Yeah, come to think, my guess for a sentence like that would be that there was a lot of evidence of coercion, and if the conviction was only for statutory rape it was as the result of a plea bargain.


Posted by: LizardBreath | Link to this comment | 10- 7-14 8:20 AM
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"Statutory rape" is kind of complicated, depending on where you are. For example, the age of consent in Pennsylvania is 16. But there's a crime called corrupting the morals of a minor -- perp over 18, minor under 18 -- which can be charged, but which isn't the same kind of strict liability offense. In Mass the age of consent is also 16, unless the victim is (a) of chaste character and (b) induced. In Maryland, it's 16 unless the perp is a person of authority. (So says wiki, anyhow).

This is not intended as legal advice. But people might refrain from throwing SR around to describe situations that haven't been charged, and are someplace where they are not familiar with the peculiarities of the laws.

I thought the Ortberg piece was terrific. I find the discussion of affirmative consent a little frustrating, though, because I think Jonathan Chait is right that if there end up being too many convictions that seem unjust in a folk sense there will be a backlash, and that I suspect that just like everything else, the identity (including race) of the perp is going to be a big part of whether a jury thinks lack of affirmative consent has been proven beyond reasonable doubt.


Posted by: CharleyCarp | Link to this comment | 10- 7-14 8:22 AM
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I think Jonathan Chait is right that if there end up being too many convictions that seem unjust in a folk sense there will be a backlash

This is a wonderful argument for never doing anything.


Posted by: Josh | Link to this comment | 10- 7-14 8:26 AM
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The "chaste character" bit is weird (it's one of these old old laws that somehow didn't come off the books even when a new law was added). But it's not as weird as the exception for psychologists (in New Mexico?). I've always assumed that's related to old treatments for hysteria, but who knows.


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 10- 7-14 8:29 AM
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It's my sense that a whole lot of the rapists already know they're in the wrong: the problem isn't that they didn't know they were in the wrong, but that they are willing to lie about it, and a jury has a hard time with reasonable doubt in a he said she said no other significant evidence situation.


Posted by: CharleyCarp | Link to this comment | 10- 7-14 8:30 AM
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24: he does get good time for working full time and going to college. That would add up to 3-4 days a month excep that they capped it at a lower number. With good time, I think it would be 17 years. He has a decent chance at parole in 2015. I've known him since 2004, and he had already been in a few years at that point.

He did plead out. It sounds like his lawyer promised him a deal, but he never got it. Of course, the story I have isn't complete. And I only heard any of it a couple of years ago. He's really ashamed of it and was afraid that our mentoring team would abandon him. His mother told none of the extended family Taft he was in prison, because she was so embarrassed.

I'm not sure what I think is right, but 18-24 still seems high to me. And he has some screwy ideas about the legal system. He's terrified that he'll be permanently psychiatrically committed, because he's a sex offender.


Posted by: Bostoniangirl | Link to this comment | 10- 7-14 8:31 AM
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I thought that Jonathan Chait piece was deeply stupid, as well as being wrong about the California law and its consequences. If there's one place where there's clear value in the "affirmative consent" standard, it's as a guideline for college discipline on sexual assault (not criminal law).


Posted by: Robert Halford | Link to this comment | 10- 7-14 8:33 AM
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which is that people want the category of "rape" to be used for both a prosecutable crime and/or creator of immediate and social-death crearing social stigma (very properly!) and to describe a continuum of coercive sexual behavior by extending anywhere beyond the zone of enthusiastic consent (also properly!)

I'm a lawyer, so I might be a hammer seeing nails here. But I think this is slightly off. I think the huge gap is between talking about rape in the context of a criminal prosecution, where you're talking about evidence, and beyond a reasonable doubt, and the rights of the defendant, and rape in terms of what actually happened in the real world.

Any time there's sexual contact between two people, and one of them did not want to participate and would have left the situation if they'd been able to, and the other one was aware of that but went ahead anyway, I'd call that rape, and not fundamentally morally different or less bad on the rapist's part than holding someone down and raping them as they kicked and screamed.

By that definition, there are going to be a whole lot of rapes that there'd be no chance at all of proving beyond a reasonable doubt in a court of law. But that doesn't make them less wrong, it just makes them less provable. If you know what happened -- you were there, or you know the people involved well enough to credit one person's version of the facts -- I don't think using the above definition makes rape less morally weighty.


Posted by: LizardBreath | Link to this comment | 10- 7-14 8:33 AM
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Further to 32: There are lots of things that "seem unjust in a folk sense" that we do anyway, *because they're the right thing*. If only I could think of an example from your personal experience, Charley...


Posted by: Josh | Link to this comment | 10- 7-14 8:34 AM
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37 crossed with 34, and agrees with it.


Posted by: LizardBreath | Link to this comment | 10- 7-14 8:34 AM
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Yeah, colleges often kick out students for behavior that is clearly wrong but wouldn't result in a jail term.


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 10- 7-14 8:37 AM
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I had a friend get kicked out for getting a 1.8 GPA.


Posted by: Moby Hick | Link to this comment | 10- 7-14 8:39 AM
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he does get good time for working full time and going to college.

Sorry, does this mean "they count every day that he's working full-time as a day spent in prison"?


Posted by: ajay | Link to this comment | 10- 7-14 8:39 AM
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37 just misses my point in a way I find very annoying. Yes I am well aware of the difference between legal categories and what is "wrong" in the real world. Using the single term "rape" to cover both "criminal rape/permanent social death" and "all behavior short of affirmative consent, including any form of sexual coercion whatsoever" will necessarily be confusing to people who are accused of "rape," who in turn will be incredibly (but understandably) defensive about policing its boundaries. That's the whole point.


Posted by: Robert Halford | Link to this comment | 10- 7-14 8:40 AM
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What's the problem with 'including any form of sexual coercion whatsoever', if we're not talking about proof? You're writing as if this is obvious, but I'm not following you.


Posted by: LizardBreath | Link to this comment | 10- 7-14 8:44 AM
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I'm way sympathetic to 36(b) but don't see how you get past 34.

You're right, of course, Josh, but the possibility of backlash does have to be part of the calculus.


Posted by: CharleyCarp | Link to this comment | 10- 7-14 8:45 AM
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Yeah, I'm really not getting 43. We're supposed to worry about the hurt feelings of people coercing other people into sex?


Posted by: Josh | Link to this comment | 10- 7-14 8:45 AM
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Halford, is the situation you state any different from the current system where survivors have to decide whether to say "rape" if it was forced sexual activity but their state only criminalizes PIV as rape and anything else is "deviate conduct" or something? (This was a big issue because the federal definition only changed in the last few years, right?)


Posted by: Thorn | Link to this comment | 10- 7-14 8:45 AM
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the possibility of backlash does have to be part of the calculus

You're going to have to do more than just assert that to convince me.


Posted by: Josh | Link to this comment | 10- 7-14 8:48 AM
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Because if you say e.g. "anyone who has ever had sex with anyone who has said 'I'm not sure this is the right thing to do' before then giving in and consenting" is a "rapist," you're accusing them of an enormously serious crime and taboo, and something that should (and does) lead them to being socially shunned. That in turn is going to lead to precisely the problem that is pointed out in the quoted excerpt from the Ortberg piece, which is that people will want to strictly define and limit the category of "real rape" from other things that, while bad, are in a fairly different moral category.


Posted by: Robert Halford | Link to this comment | 10- 7-14 8:51 AM
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40 -- I don't have a problem with a state university kicking out a student who committed sexual assault. There are problems, though, of proof, procedural due process, making the victim confront the perp, etc. In a he said she said no other significant evidence, the perp (or his representative) has to be able to cross examine the victim. This is going to be ugly, and the ugliness of it a way bigger barrier, in my opinion, than what the exact standard for the offense (criminal or folk) is.

I don't like the idea of folk convictions based on one side of the story either.


Posted by: CharleyCarp | Link to this comment | 10- 7-14 8:52 AM
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Any time there's sexual contact between two people, and one of them did not want to participate and would have left the situation if they'd been able to, and the other one was aware of that but went ahead anyway, I'd call that rape, and not fundamentally morally different or less bad on the rapist's part than holding someone down and raping them as they kicked and screamed.

I think it is worth distinguishing badgering someone until they give in from holding a knife to their throat. In any situation not involving sex we'd distinguish between the two. I see no reason not to extend that to discussions of sexual assault. Unless your point is that there isn't a qualitative boundary between the two cases - that I'd buy. They lie on a continuum of badness, but the one is much more bad than the other, IMO.


Posted by: togolosh | Link to this comment | 10- 7-14 8:53 AM
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49: I don't see how that's prohibited. Many behaviors have gone from being allowed and normal to resulting in social shunning.


Posted by: Moby Hick | Link to this comment | 10- 7-14 9:00 AM
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Prohibited s/b prohibitive.


Posted by: Moby Hick | Link to this comment | 10- 7-14 9:01 AM
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Or, put differently, this point:

Framing acts of molestation and assault as things that either do or do not count as if it were a bad call in a game of tag ("that doesn't count! I wasn't done counting to ten!") is a troubling -- and worse, ineffective -- way of discussing rape. It shifts the conversation from "how can we prevent this from happening again?" and "what would justice look like in this situation?" to "how can I make sure that what I did doesn't fall under the category of 'it counts'?"

Is indeed a problem, but it's kind of an inevitable problem when you (a) have the word "rape" meaning 'horrible crime/awful social stigma" and (b) have a category of "rape"so broad as to mean "any form of arguable sexual coercion beyond enthusiastic consent." Of course people are going to want to categorize what does or does not "count" as rape if being called a "rapist" is both definitionally a really, really unspeakably bad horrific thing that marks the perpetrator as a monster, and the category is so broad as to pick up lots of ranges of behavior.


Posted by: Robert Halford | Link to this comment | 10- 7-14 9:01 AM
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46: the more problematic backlash takes the form of "the person telling me these rules clearly has no concept of the real world and how people interact and cannot possibly expect me to follow them literally; thus I will go back to exercising my own judgement."

I should probably read the Chait piece before I try to defend it.


Posted by: jake | Link to this comment | 10- 7-14 9:01 AM
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badgering someone until they give in

This is pretty belittling, don't you think? As h-g highlighted from the Ortberg piece:

I believe that these women, these people, have a finely tuned sense for their safety, that when a woman reports having "a feeling that it would turn into an ordeal if I rejected him," she is not crazy and she knows what she is talking about.

Posted by: Blume | Link to this comment | 10- 7-14 9:04 AM
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the category is so broad as to pick up lots of ranges of behavior

But that's the very intent: to broaden what people generally conceive of as rape. If we have a two-tier standard of sexual violation, lots of (most?) rapists don't have to identify as having committed "real" rape.


Posted by: Blume | Link to this comment | 10- 7-14 9:08 AM
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55: What about the conversation surrounding issues of consent over the past 20+ years leads you to believe that what you call backlash isn't the status quo?


Posted by: Josh | Link to this comment | 10- 7-14 9:11 AM
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Because if you say e.g. "anyone who has ever had sex with anyone who has said 'I'm not sure this is the right thing to do' before then giving in and consenting" is a "rapist,"

But I'm not saying that. I'm saying that anyone who had sex with someone who didn't want to and would have left if they thought they could, and knew that that was what was going on, is a rapist.

There's a real proof problem here around 'knew what was going on', not just in terms of criminal prosecution but in terms of everyday understanding of the situation. It is possible for people to change their minds about having sex, so someone might say "I'm not sure this is the right thing to do" and then genuinely consent later. And someone might hear a partner say "I'm not sure this is the right thing to do", and then later believe that the partner had actually changed their mind, whether or not it was the case. So understanding what actually happened is going to be difficult.

But if we are satisfied that we know what's in everyone's mind (at whatever level of confidence we're happy with), once the rapist is proceeding with sex despite believing that the person they're having sex with doesn't want to and would stop and get away if they had a free choice to, regardless of whether the victim has been coerced into doing or saying something that could be construed as consent, that's rape, and it's not morally distinct from doing it with a knife to the throat.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:11 AM
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Oh good, another conversation about "real rape." As I am sure we have discussed here before, there is documentation that "all behavior short of affirmative consent, including any form of sexual coercion whatsoever" is typically done by a small population of rapists shitbags, over and over, and exactly the type of handwringing in 22 prevents us from socially shunning these serial rapists shitbags even though they richly deserve it.


Posted by: L. | Link to this comment | 10- 7-14 9:13 AM
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Of course people are going to want to categorize what does or does not "count" as rape if being called a "rapist" is both definitionally a really, really unspeakably bad horrific thing that marks the perpetrator as a monster, and the category is so broad as to pick up lots of ranges of behavior.

The bright line I'm trying to draw, is that I want anyone who says "I'm not a rapist" to have to say "I genuinely believed that the person I was having sex with wanted to be having sex with me at that time, and would have stayed and continued to participate if they'd had a free choice to leave." Obviously, people are going to lie, sometimes, and there's not all that much to be done about it. But any 'range of behavior' that doesn't include the ability to make that statement is one that I believe is definitionally a really, really unspeakably bad horrific thing that marks the perpetrator as a monster.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:15 AM
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I am just going to leave a comment here that says "yesmeansyes" so that next time we trudge over this much-beaten path I can find the thread.


Posted by: L. | Link to this comment | 10- 7-14 9:17 AM
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The excerpt in 56 is spot on. But you end up in the same place with reasonable doubt if she says she gave affirmative consent because she thought she needed to (for safety -- based on a sense rather than an explicit threat -- or some other coercive reason) and he says she said yes, and I thought that meant she'd recosidered her earlier hesitation.


Posted by: CCarp | Link to this comment | 10- 7-14 9:17 AM
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56: Sorry if it comes across that way. I was attempting to describe basically the same situation described in the quoted bit.


Posted by: togolosh | Link to this comment | 10- 7-14 9:17 AM
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I think colleges should kick students out for repeated sexual assaults even if no individual one can be proved. It's not a court of law and there's no reason why due process standards need to be what they are in a court of law. The college has a duty to protect their students from predators.


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 10- 7-14 9:18 AM
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64: Gotcha. I think the word "badgering" didn't seem to capture the ominousness of the would-be rapist's pressuring.


Posted by: Blume | Link to this comment | 10- 7-14 9:21 AM
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57 Right, I agree that's the intent. My only point is that this is going to lead precisely to people engaging in the exercise of trying to police the boundaries of what constitutes "real" rape. If one becomes a "rapist" automatically by creating a situation where (in the victim's mind) it would be a pain in the ass not to consent, and the victim then "consents" (recognizing the ambiguity in that term), it's not going to be surprising that there's going to be a lot of pushback on defining what does and does not "count" as "rape" in ways that lead to precisely the problem that Ortberg points out. The broad coverage of the term itself is a cause of the problem she describes.

I'm saying that anyone who had sex with someone who didn't want to and would have left if they thought they could, and knew that that was what was going on, is a rapist.

Maybe that's what you're saying, but the Ortberg piece seems to be describing a different situation, where the victim consents (and the perpetrator may believe, wrongly, in that consent) but does so because she thinks leaving is a gigantic pain in the ass. In the real world that seems likely to be the far more common situation.

60 -- Go fuck yourself, I'm not handwringing for anyone. Actually, I don't even know why I bother here.


Posted by: Robert Halford | Link to this comment | 10- 7-14 9:23 AM
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63: Right. It's a huge problem for reasonable doubt. But in terms of the moral weight of the rapist's behavior, if you believe he actually understood what was going on (that the victim's 'consent' was procured by fear, and that if she had an out she'd take it and get away), what he did isn't less wrong because he coerced nominal 'consent'.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:23 AM
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58: touché. but surely there is a continuum - some people will have their consciousness raised; others will check out of the proposed moral framework.

It looks like the new statute allows both participants in a sex act to be guilty of sexual assault? Isn't that a little screwy?


Posted by: jake | Link to this comment | 10- 7-14 9:24 AM
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The excerpt in 56 is spot on.

Hey!


Posted by: heebie-geebie | Link to this comment | 10- 7-14 9:27 AM
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but does so because she thinks leaving is a gigantic pain in the ass

This is bullshit, Halford. Gigantic pain in the ass makes it sound as if she's going forward with the sex because she's too lazy to cope with the (doubtful, undefined) repercussions. You're saying that sex with consent procured by threat is morally less of a problem if the threat is implicit and maybe the consequences wouldn't be that bad if the victim just had the courage to find out exactly what would happen if she did say no, and that's grotesque.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:28 AM
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69.last: No. If neither party actively consents to having sex with the other, they're not going to end up having sex. (Barring fantasy scenarios where each is separately threatened by a third party.)


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:30 AM
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The bright line I'm trying to draw, is that I want anyone who says "I'm not a rapist" to have to say "I genuinely believed that the person I was having sex with wanted to be having sex with me at that time, and would have stayed and continued to participate if they'd had a free choice to leave."

Isn't "no means no" sufficient for this?


Posted by: Cryptic ned | Link to this comment | 10- 7-14 9:31 AM
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73: No, for all the reasons around implicit threat discussed above.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:33 AM
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I don't have a problem forming a belief about what's in the head of someone I know, especially if they're willing to answer questions like 'what were you thinking?" But when it comes to forming a belief about what's in the head of someone I don't know, absent some sort of truly indicative conduct, I just don't think you can be sure enough for (a) reasonable doubt or even (b) a campaign of social ostracism.


Posted by: CCarp | Link to this comment | 10- 7-14 9:34 AM
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I'm saying that anyone who had sex with someone who didn't want to and would have left if they thought they could, and knew that that was what was going on, is a rapist.

Again, that doesn't really seem to be what's at issue here. It's not perpetrators who are actually aware of an absence of consent and are happy about it. Rather, it's perpetrators (probably unreasonably, but still) believing that they've secured "consent" through being basically coercive. That latter seems like the the more common situation, at least anecdoatally.


Posted by: Robert Halford | Link to this comment | 10- 7-14 9:35 AM
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71-- that's not what I'm saying at all, but feel free to go fuck yourself as well. I'm out of here, bye.


Posted by: Robert Halford | Link to this comment | 10- 7-14 9:36 AM
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LB, are you thinking that successful "badgering" -- used in the sense Blume thought dismissive -- should be criminalized?


Posted by: CCarp | Link to this comment | 10- 7-14 9:39 AM
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Rather, it's perpetrators (probably unreasonably, but still) believing that they've secured "consent" through being basically coercive.

There's a reason I used the words "someone who didn't want to and would have left if they thought they could" rather than "someone who didn't consent". I agree with you that there are probably perpetrators who believe that it is okay, both legally and morally, to have sex with someone if the person does anything that could be construed as consent (or, more likely, lack of non-consent), even if they also know that the person they're having sex with doesn't want to and would have left if they they thought they could. For reasons of proof, such a rapist is probably in the clear legally, but I don't think there's a thing wrong with making it abundantly clear that they are not in the clear morally, and that knowingly procuring consent through coercion (even if the coercion is only implicit) is still rape.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:41 AM
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I believe that these women, these people, have a finely tuned sense for their safety, that when a woman reports having "a feeling that it would turn into an ordeal if I rejected him," she is not crazy and she knows what she is talking about.

So she can read his mind and know he poses some sort of threat if his advances are denied. Obviously the mind-reading doesn't work the other way.


Posted by: Cryptic ned | Link to this comment | 10- 7-14 9:43 AM
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78: I think that coerced sex is already criminal; if the coercion is the kind of badgering we're talking about, the issues of proof are intractable and it's almost never going to be successfully prosecutable.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:43 AM
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And is implied coercion only sufficient when the issue is physical safety, or is any reason the affirmative consent was insincere a sufficient basis for saying that a crime has occurred?


Posted by: CCarp | Link to this comment | 10- 7-14 9:44 AM
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I'm not following you -- give me a concrete example?


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:45 AM
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"Would have left if they could" covers a lot of territory, from being drunk and exhausted, to having no place to go, to being forcibly restrained. It's not a clear phrase.


Posted by: heebie-geebie | Link to this comment | 10- 7-14 9:46 AM
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72: I've had plenty of sex where neither party explicitly asked if they should fuck and neither party expressly said yes. Am I really unique in this?


Posted by: jake | Link to this comment | 10- 7-14 9:46 AM
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It doesn't have to be super precise -- I'm not trying to put anyone in jail with it. But the three things you've listed? I'd call them all rape.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:47 AM
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Hm, I did quite a bit of skimming on the Ortberg thing because it involves reading like four other things for background and I'm not quite that into it, but...I dunno, I love The Toast but am not mad about this essay. There's an some moral certitude in it that I think people would find repellent if Mallory Ortberg didn't have a lot of banked good will.

"I don't know why I did it." Then you have not done the painful work of examining your own soul.

Oh ok, neat that the psyche is that straightforward.


Posted by: Mister Smearcase | Link to this comment | 10- 7-14 9:49 AM
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85: Active consent can be communicated non-verbally. Presumably, whatever you were doing in the moment got the message across to your partner that you wanted to be there having sex with her, and vice versa.

(Although, is completely non-verbal sex really all that common? Maybe I just talk a lot, but I can't think of when I've had sex with a new partner that didn't involve verbal communication sufficient to constitute active consent.)


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:49 AM
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One last time before I permanently get out of here: you are begging the question and actually belittling a lot of obvious sexual assault by including this proviso: "I'm saying that anyone who had sex with someone who didn't want to and would have left if they thought they could, and knew that that was what was going on, is a rapist." The whole point is that there are perpetrators who use coercion but who wrongfully believe that the person does (maybe in their heart of hearts!) want to and would not, ultimately, leave if they could. There are plenty of situations where men think precisely that this is going on, and fail to recognize the underlying coercion that produces that reaction. That is in itself a form of sexual assault, driven by sexism, that is an enormous problem, and one that the broadening the category of "rape" is desgined to address. My original point was only that it also leads to -- actually, ironically, precisely what you are doing! -- attempts to limit and define and narrow out the category of "real" rape to the most obviously morally culpable subset. But feel free to keep calling me a rape apologist (while, in fact, belittling the experiences of women who had coercive sex with a man who believed that they had consented).


Posted by: Robert Halford | Link to this comment | 10- 7-14 9:51 AM
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Then you have not done the painful work of examining your own soul.

Ouch! That hurts! Ok, I looked! Damn! Nothing there!


Posted by: peep | Link to this comment | 10- 7-14 9:51 AM
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Wait, who am I belittling?


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:52 AM
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For a moment I thought 90 was to 89.


Posted by: heebie-geebie | Link to this comment | 10- 7-14 9:53 AM
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Among others, any woman who felt coerced into having sex, but where the rapist believed that the woman wanted to be there and was enjoying it.


Posted by: Robert Halford | Link to this comment | 10- 7-14 9:53 AM
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80: You don't need to read anyone's mind to know that their future behavior is likely to be similar to their past behavior and to anticipate that provoked further they will escalate along the same path they've been on for the last half hour. That might be escalating whiny pressure or things like restraining you from leaving. In the latter case it's perfectly reasonable to have the probability of future violence as a working hypothesis, even if the would-be rapist has some internal threshold past which he will not go.


Posted by: togolosh | Link to this comment | 10- 7-14 9:54 AM
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I know I've said before that when I was in a depressive fog post-rape I got into several situations where I did sexualized things that I didn't want to do but made the decision that it was better to go along with it half-heartedly than say no and not have that matter, which I truly didn't think I could handle again. It was very inexperienced friends trying to make something happen and probably in part because it was clear I wasn't into it, nothing went particularly far, just farther than I would have wanted at that time at least. I don't in any way want to say that what they did was assault, but it's because of dynamics like this that I think having an affirmative consent standard helps at a cultural level, especially for young people.


Posted by: Thorn | Link to this comment | 10- 7-14 9:57 AM
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93: What did I say that belittled anyone in that position? That's a tragic, horrifying mistake on the (not-intentionally-a)rapist's part, and a terrible thing to happen to the victim, who would certainly have experienced it as a rape.

But if a person reasonably believed their partner wanted to be there having sex with them, I wouldn't call them a rapist.


Posted by: LizardBreath | Link to this comment | 10- 7-14 9:58 AM
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On "drunk and exhausted", I feel like I've had a hundred encounters, mostly with boyfriends but also with strangers, where I've concluded that I'll be up all night unless I acquiesce or get angry. Between sex, exhaustion, or anger, I've opted for sex (or occasionally faked passed out). These seem squarely in the not-quite-rape territory that Halford is trying to describe.


Posted by: President Exhausted | Link to this comment | 10- 7-14 9:58 AM
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I'm surprised it took until Smearcase's 87 for someone to say it. As I started out by noticing, I recognize the religious outlook lying behind her stance, and I accept and share it. But many, many people will not, perpetrators and victims alike.

And the legal wrangling implicitly assumes as much, as we're trying to identify behaviors that can be pointed to and understood, despite very different understandings. The law speaks of intent, but relies on external evidence of it.

I'm not expecting situation-independent behaviors to be identified to everyone's satisfaction. Maybe these conversations will help some people but not many.


Posted by: idp | Link to this comment | 10- 7-14 10:34 AM
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42: He has a job in the prison doing bookkeeping for the prison industries. It pays on the high end for prison salaries, something like 35 cents/hour. For working 40 hours a week continuously, he gets a day or two off his sentence. He got similar "good time" for going to college or participating in the sex offender therapy. But they maximize the amount out per month. Basically, you could get 2-3 weeks of your sentence taken off each year. So, good time is likely to result in 24 years being reduced to 23 years.


Posted by: Bostoniangirl | Link to this comment | 10- 7-14 10:42 AM
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88: isn't the point of requiring affirmative consent that non-verbal communication is easily misinterpreted, especially in the hearing what you want to hear manner?


Posted by: jake | Link to this comment | 10- 7-14 10:44 AM
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23.1 I'm a terrible snob. I think Ortberg is spectacular (both really funny, and very sane when she's being serious), but I find the comments section in which people loudly agree with me that she's spectacular offputting.

There were a few times this summer when people linked some of her writing from FB and I was underwhelmed by it and I started thinking "Ortberg isn't perfect after all! Maybe I can be in the vanguard of the anti-Ortberg backlash!", but no, pretty much every damn thing I've read by her since then is great.


Posted by: essear | Link to this comment | 10- 7-14 10:46 AM
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97: I realize there are bigger issues involved here, but I can't help but think of Madeline Kahn in Blazing Saddles when I read that.


Posted by: Moby Hick | Link to this comment | 10- 7-14 10:48 AM
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100: Depends entirely on the type of non-verbal communication. Someone taking your hand and moving it to where they want to be touched is both non-verbal and completely unambiguous.


Posted by: Josh | Link to this comment | 10- 7-14 10:52 AM
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I started thinking "Ortberg isn't perfect after all!

It's widely believed that Wm. Shakespeare was a fairly nifty dramatist, but have you ever read Pericles, Prince of Tyre? Nobody can do it all the time.


Posted by: chris y | Link to this comment | 10- 7-14 10:54 AM
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"I don't know why I did it." Then you have not done the painful work of examining your own soul.

After actually reading Ortberg's article, I hate this even more. How could you write that about something a person did as a child?


Posted by: peep | Link to this comment | 10- 7-14 10:54 AM
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103: But that's where I get to turtles-all-the-way-down stuff. If the other person doesn't want his/her hand there I suppose the immediate response is to say stop or to pull it away or whatever, but it seems like at that point one partner has already done something he/she didn't want to do, right?


Posted by: Thorn | Link to this comment | 10- 7-14 10:55 AM
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have you ever read Pericles, Prince of Tyre?

No, and as I discovered this weekend neither has Andre Braugher.


Posted by: Josh | Link to this comment | 10- 7-14 10:56 AM
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106: sure, the person whose hand is moved may not have consented to that, but the person moving the hand is pretty clearly consenting to being touched where they're moving the hand to, right? That's a pretty clear case of one party consenting to something nonverbally.


Posted by: nosflow | Link to this comment | 10- 7-14 10:57 AM
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"Turtles-All-The-Way-Down" would be a horrible name for a sex toy.


Posted by: Moby Hick | Link to this comment | 10- 7-14 10:57 AM
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And, catching up on the thread, jesus, Halford, isn't 67.last a little over the top?


Posted by: essear | Link to this comment | 10- 7-14 10:59 AM
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110: You must be new here.


Posted by: Josh | Link to this comment | 10- 7-14 10:59 AM
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Oh, I agree completely with 108 and I wasn't disagreeing with Josh either.


Posted by: Thorn | Link to this comment | 10- 7-14 11:01 AM
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110: Just another chapter in the History of the Oppression of the White Man.


Posted by: peep | Link to this comment | 10- 7-14 11:04 AM
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Discussions about the subsidence of Louisiana are often fraught.


Posted by: Moby Hick | Link to this comment | 10- 7-14 11:09 AM
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60 is a pretty bad mischaracterization of Halford's 22.


Posted by: Eggplant | Link to this comment | 10- 7-14 11:10 AM
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Dammit, that Stevie Wonder link leads into a whole rabbit hole of internet crazy that I could easily waste the whole afternoon reading.


Posted by: essear | Link to this comment | 10- 7-14 11:35 AM
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Although, is completely non-verbal sex really all that common? Maybe I just talk a lot, but I can't think of when I've had sex with a new partner that didn't involve verbal communication sufficient to constitute active consent.

The first time BOGF climbed into bed with me, no words were spoken, and in fact we'd never kissed. The only "consent" was me not jumping out of her bed (I was staying as part of a road trip) and either having an uncomfortable conversation or sleeping in my car. I wouldn't call it coercion, but nor was it enthusiastic consent, and I think that a gender-reversed version would almost certainly be called rape under these terms.

A similar situation pertained the first time we had PIV sex as well (except the road trip part). And, frankly, that was really the pattern for most of our relationship: if I could have left free and clear, without eg the fear that she'd trash my stuff, I would have done so years before I did.

To be super clear, I'm not saying I was raped; I'm saying that my situation was in precisely the kind of gray area that makes calling every instance of sex without enthusiastic consent "rape" fraught. I'm reading Ortberg, LB, and others as suggesting that there really is no legit gray area, and I don't believe it.


Posted by: JRoth | Link to this comment | 10- 7-14 11:36 AM
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Dammit, that Stevie Wonder link leads into a whole rabbit hole of internet crazy that I could easily waste the whole afternoon reading.

All my links are gold,
the hardest hue to hold.


Posted by: heebie-geebie | Link to this comment | 10- 7-14 11:37 AM
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The only "consent" was me not jumping out of her bed (I was staying as part of a road trip) and either having an uncomfortable conversation or sleeping in my car. I wouldn't call it coercion, but nor was it enthusiastic consent,

I don't want to pressure you into being explicit about who touched whom where, but I think you're creating confusion where there really isn't any. You're saying you didn't feel coerced. Did you feel as if you had the option of, e.g., going to sleep and not having sex with her? If you felt as though that was an option, but instead you had sex with her, that's all I'm asking for in terms of enthusiastic consent.


Posted by: LizardBreath | Link to this comment | 10- 7-14 11:44 AM
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100: Again, this seems to me to be confusing the moral issue with the evidentiary problem. If your partner has affirmatively communicated consent to you in any manner, verbal or nonverbal, that makes you genuinely believe they want to be there having sex with you, and it turns out you were right about that, there's no problem.


Posted by: LizardBreath | Link to this comment | 10- 7-14 11:51 AM
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The Louisiana thing freaked me out so much I had to stop reading it.


Posted by: Mister Smearcase | Link to this comment | 10- 7-14 11:56 AM
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Did you feel as if you had the option of, e.g., going to sleep and not having sex with her? If you felt as though that was an option, but instead you had sex with her, that's all I'm asking for in terms of enthusiastic consent.

That's a very, very limited understanding of "enthusiastic consent." I'm pretty sure that both of the examples described in the Ortberg piecewould meet this test for enthusiastic consent: they knew that they had the "option" of not having sex, and were not being constrained by even an implicit threat of force. And that the men involved believed at the time was wanted by the women involved. And yet they felt that they were raped. And yet I'm the one being accused of being a rape apologist.


Posted by: Robert Halford | Link to this comment | 10- 7-14 11:56 AM
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105, etc.: sounds like part of the insult she's responding to here is the flippancy of tone/attempt at writerly mystery. Regardless of whether or not it's morally necessary, or useful, I have generally torn myself apart trying to get to the bottom of why I did various things to hurt other people in order to avoid doing them again, and I think if I said "I don't know why I did it," as a conclusive statement on the matter, it would feel (to me) defensive and disingenuous.

I'll reiterate that a lot of the pain of "examining your own soul" is useless, socially and perhaps morally unproductive pain, and that glibly saying "oh, it may be painful" doesn't quite do justice to it. Also, all of existence is suffering, and this article is fine, but I still haven't quite come around to believing that Ortberg is as great as they all say.

Adverse circumstances make it seem very appealing to spend an hour composing a comment here on the problem Halford raises, but I should probably resist the temptation and go back to examining my soul yet again. It is in the vicinity of my navel, right?


Posted by: lurid keyaki | Link to this comment | 10- 7-14 11:57 AM
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and I think if I said "I don't know why I did it," as a conclusive statement on the matter, it would feel (to me) defensive and disingenuous.

Maybe, and maybe any attempt to provide an explanation might seem false too.


Posted by: peep | Link to this comment | 10- 7-14 12:02 PM
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Did you feel as if you had the option of, e.g., going to sleep and not having sex with her? If you felt as though that was an option, but instead you had sex with her, that's all I'm asking for in terms of enthusiastic consent.

I realize this is not All About Me, but I've been mulling over a lot of things lately and one of them is that I'm a pacifist to the extent that even when I'm being attacked, I don't feel that fighting back is something I'm willing to do. This isn't directly pertinent to my own rape history, but it comes up in that sort of discussion a lot I don't know if that gets me some sort of pass on "but you could have fought back!" or if people just think I'm even stupider than they would have otherwise. Not everything that is an option feels like an option and not everything that is an option fully is an option and I don't even know.


Posted by: Thorn | Link to this comment | 10- 7-14 12:03 PM
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I also think 124 is right and it's extremely unlikely anyone could toss off an essay on "this is what it means that I molested some kids when I was a kid" and have it not be something everyone in the world could and would want to pick apart. Possibly that's why she should have taken her own advice about what sort of essays are good for publication, I suppose.


Posted by: Thorn | Link to this comment | 10- 7-14 12:05 PM
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LB, aside from direct reports of sex under a consensual gray area, like the ones above, what would you accept as evidence that such a thing exists?

There's an evidentiary problem even for the individual if they're not perfectly integrated-- doing something you suspect you'l regret while you're doing it falls into this category. This is a problem for addicts, or for people attracted to partners that their reasoning minds suggest are completely unsuitable in daylight. Approaching human behavior as a coherent reasoned entity only works some of the time.

None of the above excuses clear coercion, much less rape, the college campaigns suggesting that both partners should be clear about consent are a great idea.


Posted by: lw | Link to this comment | 10- 7-14 12:06 PM
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Did you feel as if you had the option of, e.g., going to sleep and not having sex with her? If you felt as though that was an option, but instead you had sex with her, that's all I'm asking for in terms of enthusiastic consent.

I think a better term here might be "active" or "positive" consent. One might decide to have sex because one his bored, or curious, or settling for one's second or third choice in people to go home with at the party. All this suggests something less that enthusiasm to me, but the person is still clearly deciding to have sex.


Posted by: rob helpy-chalk | Link to this comment | 10- 7-14 12:07 PM
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How does seduction play into this kind of discussion?


Posted by: peep | Link to this comment | 10- 7-14 12:13 PM
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they knew that they had the "option" of not having sex, and were not being constrained by even an implicit threat of force. And that the men involved believed at the time was wanted by the women involved. And yet they felt that they were raped.

I would really contest both the first and the second sentences there. To quote Ortberg for the second time in the thread, third if you count the original post:

I believe that these women, these people, have a finely tuned sense for their safety, that when a woman reports having "a feeling that it would turn into an ordeal if I rejected him," she is not crazy and she knows what she is talking about.

I followed the links to the 'writer staying with the editor' piece, not to the 'statutory rape by the boyfriend' piece. But in the 'writer staying with the editor' piece, it was very clear that she had sex with the editor because she was afraid of what would happen if she didn't. Maybe she was unreasonably afraid, maybe it wouldn't have been that bad, but saying there was no implicit threat of force seems to me to totally misunderstand the situation.

Believing that the man involved thought she wanted it is likewise a very weird reading of the piece, to me. She had to be pressured to sleep in the same bed with him, and repeatedly said no, can we not do this? That she eventually, under sufficient pressure, stopped saying no does not seem to me likely to have made him believe that she actually wanted to have sex with him -- I think most people in his shoes, if honestly answering the question "What would she have said if you asked her at any time during the encounter 'Would you rather not have sex now'?" would have answered "She would have said that she'd rather not."


Posted by: LizardBreath | Link to this comment | 10- 7-14 12:16 PM
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So if I'm understanding correctly, Halford in 22 has a quibble about terminology. He wants to reserve the word 'rape' for a "prosecutable crime and/or creator of immediate and social-death creating social stigma," as opposed to the "continuum of coercive sexual behavior by extending anywhere beyond the zone of enthusiastic consent." With the analogy provided (Klan member vs. unconscious structural racism), he invites us to consider the possibility that the latter category, of behaviors he does not want to consider 'rape,' could include unconscious and unintentional behaviors.

Then in 89 he explicitly appeals to the idea that rape could be unintentional:

The whole point is that there are perpetrators who use coercion but who wrongfully believe that the person does (maybe in their heart of hearts!) want to and would not, ultimately, leave if they could. There are plenty of situations where men think precisely that this is going on, and fail to recognize the underlying coercion that produces that reaction. That is in itself a form of sexual assault, driven by sexism, that is an enormous problem, and one that the broadening the category of "rape" is desgined to address.

To be fair, he recognizes in 22 that unintentional rape is "still-bad", and clarifies in 89 that he considers it to be "a form of sexual assault." So I would not consider this to be rape apology, didn't say it was, and in the spirit of uncharitable-interpretation comity I invite Halford to fuck himself right back.

My point is that evidence suggests that unintentional rape is not realistic, that the situations described in 89 are likely deliberately created and/or exploited by a basically evil person for whom this is a pattern of behavior. They are wielding the situation as intentionally as another rapist wields a knife. Halford wants to reserve the word 'rapist' for people who deserve "social-death creating social stigma"; these people absolutely qualify. Good guys need not worry: as LB points out in 23.2 it is typically not hard to tell when someone doesn't really want to have sex with you. Tragic misunderstanding can be avoided by either backing off or just asking "hey are you not feeling this right now?"

Again to be fair, Halford is a lawyer and maybe he's thinking mainly in terms of legal definitions and standards of evidence. Maybe the possibility of unintentional rape is very important from a legal perspective. But he should be aware (and I don't believe he's not) that the bogus hypothetical of "unintentional rape," the idea that a rape could be all just a big misunderstanding, is trotted out over and over in conversations about rape. Like, every conversation about rape ever. And this idea gives cover to predators: it allows them to keep creating and taking advantage of coercive "gray area" situations without being ostracized. It should be nipped in the bud whenever it's mentioned. Finally, I will address the terminology: the standard needs to be changed, possibly-unintentional rape needs to be acknowledged as rape, so that decent people will take pains to avoid it and we can bust these motherfuckers who are really doing it on purpose.


Posted by: L. | Link to this comment | 10- 7-14 12:17 PM
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But JRoth is exactly saying he was afraid of what would happen if he didn't, right?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 10- 7-14 12:19 PM
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127: LB, aside from direct reports of sex under a consensual gray area, like the ones above, what would you accept as evidence that such a thing exists?

Ask a clearer question. I don't know what your personal definition of 'consensual gray area' is.

The bright line I'm suggesting is, as I've said a couple of times, whether one person would have continued with the sex if they'd had the uncoerced choice to bring it to an end and leave, and whether the other person was aware that the first did not want to be having sex.


Posted by: LizardBreath | Link to this comment | 10- 7-14 12:19 PM
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The research summarized in this link seems useful for this thread: http://yesmeansyesblog.wordpress.com/2011/03/21/mythcommunication-its-not-that-they-dont-understand-they-just-dont-like-the-answer/

It also comports with my experiences and those of my female friends, which is very different from the summary of these scenarios in 122. I'd say the odds that these guys were genuinely confused about whether these women wanted to have sex with them are vanishingly close to zero.

In general, I think this is the kind of situation where non-rapey guys are prone to underestimating just how rapey the rapey guys are. Because if you're not a terrible person, it's easier to envision being genuinely confused about the other person's consent than having sex with someone who clearly doesn't want to.

For most women, it's easier to envision because the rapey guys have at least tried to do it to you.


Posted by: Sarabeth | Link to this comment | 10- 7-14 12:21 PM
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132: I honestly can't tell, because he was vague about the details. If he was talking about staying in the relationship because he was afraid she'd trash his stuff, that sounds like an abusive relationship to me, generally. If he was participating in sex because he was specifically afraid of what she'd do if he didn't, that sounds like rape to me, but given that he affirmatively says he didn't feel sexually coerced, I'm not clear about what he was saying the situation was.


Posted by: LizardBreath | Link to this comment | 10- 7-14 12:22 PM
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There's a factual point I'm a bit confused about. The evidence is clearly quite strong that the majority of rapes are committed by serial rapists. However, my impression from some things that I'd read, is that the number of rapes not by serial offenders is not tiny. That is, my understanding (which could be wrong) is that there are two totally different problems here: 1) Serial raping predators and 2) Non-predators who nonetheless raped someone, and that although most rapes come from group 1 there are still enough group 2 ones that they're still a problem. Everything about teaching people to communicate better and education about enthusiastic consent etc. are aimed at the second problem.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 10- 7-14 12:28 PM
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136: From L.'s link, "If we could eliminate the men who rape again and again and again, a quarter of the violence against women and children would disappear."


Posted by: Eggplant | Link to this comment | 10- 7-14 12:33 PM
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136, From the link in 131:


Of the 120 rapists in the sample, 44 reported only one assault. The remaining 76 were repeat offenders. These 76 men, 63% of the rapists, committed 439 rapes or attempted rapes, an average of 5.8 each (median of 3, so there were some super-repeat offenders in this group). Just 4% of the men surveyed committed over 400 attempted or completed rapes.

So serial rapists committed 439/(439+44)=91% of the rapes.


Posted by: L. | Link to this comment | 10- 7-14 12:33 PM
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Also, the survey questions seem unlikely to catch guys who have deluded themselves about consent.


Posted by: Eggplant | Link to this comment | 10- 7-14 12:35 PM
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139 is true. Also unlikely to catch implicit-threat scenarios.


Posted by: L. | Link to this comment | 10- 7-14 12:36 PM
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Everything about teaching people to communicate better and education about enthusiastic consent etc. are aimed at the second problem.

I think that's arguably true for the "don't rape!" side of the equation, but I actually think that having clarity and communication be the social and college-required norm will make it harder for the victims of serial rapists to blame themselves as a way of excusing or minimizing what happened to them. In my experience hearing people share stories about a serial rapist, there were clear patterns of behavior and manipulation that it was easy to see when you had multiple people explaining what they'd gone through but that they'd all told themselves to be less uptight about as it was actually happening. Being able to change the dynamic and expectations to make life harder for serial rapists trying to find targets where they'll be able to get away with rape and to make it easier for their victims to recognize and respond to potential or actual rape as rape both seem like good outcomes.


Posted by: Thorn | Link to this comment | 10- 7-14 12:36 PM
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I am guessing 97 counts as
"enthusiastic consent", but it does start to stretch ordinary language in an unhelpful way: "I want to have sex with you right now more than I want to have an emotional argument about why I don't want have sex with you right now".


Posted by: Criminally Bulgur | Link to this comment | 10- 7-14 12:37 PM
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134 is a good perspective. Much like street harassers, the serial acquaintance-rapists among us go undetected by the majority of men. The best way to be reminded that they are a real problem may be to remember... you know, that one time you looked for porn? And you were looking for women who seemed to be having a good time? And you kept running across these disturbing humiliation scenarios? Who the heck fantasizes about that? A large number of men, we can assume.

I apologize for the jerky comment earlier.


Posted by: Cryptic ned | Link to this comment | 10- 7-14 12:41 PM
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L, I think you (and LB, and maybe the Ortberg piece) are just hand-waving away the abundant evidence that there are plenty of men who (wrongly, but sincerely) believe that sex consented to under what are basically coercive conditions is in fact desired by the victim. It would be nice for moral clarity if that were not the case but I don't think it is, and to believe otherwise just writes away the human capacity for self-delusion. Not every encounter, or close to it, where the victim feels that they were coerced into sex has an equal and opposite villain on the other side who knows and understands that the victim was coerced into sex. Now, this is itself partly a product of sexism, and changing these beliefs so that (mostly, but not exclusively) men are more conscious of what is going on with their partners is very important, and is a key part of why the affirmative consent movement is important. But you can't get there by just handwaving away the problem that some men (thankfully a small minority) really do believe that women who aren't into them sexually are in fact into them sexually such that their sexual advances are appropriate and desired.

As an empirical matter, I don't think that you can get to "unintentional rape just doesn't exist, at all, because everyone knows whether or not their partner wants to engage in sex" from the fact that a small minority of men seem to engage in it. You also seem to be ignoring the evidence, given even in this thread, that "consent" can be complex and ambiguous. Finally, if we are just to assume by fiat that non-intentional rape or sexual assault never, ever exists in reality, the next conclusion is that we should believe without question any allegation of rape, and should feel free to use the term "rape" and "rapist" based on any after-the-fact allegation of undesired-at-the-time sexual conduct, no matter what the form of coercion (from "badgering" to fear of a breakup to actual use of force). That's a possible position, but I don't think it's one that comports with most people's moral intuition or empirical understanding of the world. And if you try to use the word "rape" to both cover every single iteration of possible sexual coercion and impose an immediate and severe social and legal stigma, you can expect a very defensive reaction from most folks' intutions.


Posted by: Robert Halford | Link to this comment | 10- 7-14 12:42 PM
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134.1 is reminding me of a former postdoc who would repeatedly make all kinds of outrageous requests--the sort of things that would involve tens of thousands of dollars of other people's funding being spent on his behalf for dubious benefit--and seemed completely unable to comprehend that any of the usual sorts of polite dodges with which a normal person would answer such a request was actually a "No". I was never sure if he was just pretending to be dense or if he legitimately could not understand indirect responses.


Posted by: essear | Link to this comment | 10- 7-14 12:44 PM
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123.1: 97 and 117 both qualify as a gray area to me and apparently to the people answering your direct questions.

I guess that the main problem that I have is starting by considering the mindset of violent men is a shitty way to approach thinking about human behavior. I though that Ortberg's essay actually managed to avoid doing this, that she spelled out how problematic and common coercion is, without either explicitly drawing a boundary or making claims about behavior outside the scope of the problem she's talking about.


Posted by: lw | Link to this comment | 10- 7-14 12:47 PM
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Everything about teaching people to communicate better and education about enthusiastic consent etc. are aimed at the second problem.

Not exactly -- they're also about stripping social cover from the serial rapists. The writer/editor story (if you didn't click through, she stayed in his apartment, asked to sleep on the floor rather than with him, and was eventually pressured into allowing him to have sex with her. No hope of getting a conviction, but if the facts were as described I'd call it more likely than not that he intentionally coerced her into having sex with him when he knew she didn't want to) sounds compatible with his being a serial rapist, but one who was deliberately playing in the plausible deniability area.

If better communication and enthusiastic consent become a more generally socially accepted standard, it gets harder for that sort of serial rapist to function.


Posted by: LizardBreath | Link to this comment | 10- 7-14 12:47 PM
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142: For 97, seriously, no, that's not enthusiastic consent. Depending on precise details, a situation where the options were have sex or make a scene about it, I might not call it consent procured by that kind of method rape, but well over the line into "Jesus, you're a terrible, terrible person who should be ashamed of themselves."

For 117 -- honestly, I don't know what to think because JRoth has been really very unclear about what happened (not that he has any responsibility to be clear! If he doesn't want to talk about it, he shouldn't!) But he's said both that he didn't want to have sex, and that he wasn't coerced into it, at which point it's hard to figure the situation out. With full details, it might be something I'd think of as morally rape even if he didn't. Or it might be something I'd think of as sex that he genuinely consented to for reasons that don't come across in 117. But the greyness of the area there seems to be about the factual unclarity of the situation.


Posted by: LizardBreath | Link to this comment | 10- 7-14 12:54 PM
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Good to know that you're on the case separating out the rapes from the not-rapes, LB. That wasn't the best point in the Ortberg piece, or anything.


Posted by: Robert Halford | Link to this comment | 10- 7-14 12:57 PM
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He wants to reserve the word 'rape' for a "prosecutable crime and/or creator of immediate and social-death creating social stigma," as opposed to the "continuum of coercive sexual behavior by extending anywhere beyond the zone of enthusiastic consent."

"As opposed to"? "Wants to reserve"?

That said, the essay crystallized a general (and I'm sure obvious to a lot of people already) problem with a lot of discourse on the topic for me, which is that people want the category of "rape" to be used for both a prosecutable crime and/or creator of immediate and social-death crearing social stigma (very properly!) and to describe a continuum of coercive sexual behavior by extending anywhere beyond the zone of enthusiastic consent (also properly!)


Posted by: nosflow | Link to this comment | 10- 7-14 12:59 PM
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L, I think you (and LB, and maybe the Ortberg piece) are just hand-waving away the abundant evidence that there are plenty of men who (wrongly, but sincerely) believe that sex consented to under what are basically coercive conditions is in fact desired by the victim.

This is why I'm focusing on concrete questions like "Do you think the person you're having sex with would leave if you gave her the option". Someone who's deliberately creating coercive condition may believe that underneath it all, the person being coerced wants to be coerced. But they know that in the absence of the coercion, the sex wouldn't happen -- that the other person wouldn't have uncoerced sex with them -- or there wouldn't be any reason to set up the coercive conditions.

149: I'm really not understanding your point here. I'm sorry, I feel as if I should, but I'm not getting you.


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:01 PM
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I agree with Smearcase in 87. Also, Ortberg seems to read Ellen as uncharitably as possible. She knows Ellen's "I am scared to death" is "insincere" how? She accuses Ellen of "feign[ing] uncertainty about why you and your sister do not speak" on what evidence? She paraphrases Katz's "I didn't mind sleeping on the floor" as "I'd like to sleep on the floor" when they are not equivalent in connotation. She claims "Ellen thinks because she doesn't believe these men committed statutory rape, it is therefore impossible for someone else to have," but Ellen does not say that. She asks "Is two really a whirlwind?" when more than two cases prompted Ellen's essay. She quibbles that Ellen's phrase "doesn't count" is trivializing, appropriate for a game of tag but not allegations of molestation, when "count" is a standard synonym for "qualify." She claims that "the fact that Elizabeth Ellen knows very few people who have not committed emotional abuse says a great deal more about Elizabeth Ellen than it does about emotional abuse's prevalence," which is at least debatable. She protests Ellen's description of Lin as having undergone "public shunning," as a conflation with public criticism, but he has in fact been widely publicly shunned.

This is all either deliberate misreading or mere sloppiness; either way, it substantially weakens her argument, even if her thesis -- that Ellen has not helpfully contributed to "a tolerant conversation about the relative merits of passive versus active consent" -- is correct.


Posted by: Mr. F | Link to this comment | 10- 7-14 1:01 PM
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Right. What I'm trying to say, from the beginning, contra the people who have accused me as being a rape minimizer, is that (a) unintentional rape does exist and it is useful as a category to think about, not just something you can handwave away as not existing because all rapes are committed by demonic intentional rapists (b) once you define rape in these broad (but justified!) ways you're going to get people working hard at trying to define core "rape" from some other less obviously rape-ish things because the term is so stigmatizing. Which is exactly what's happened in this thread. That's all I'm trying to say. I think we'd be well placed in general to focus less on rape definitions and more on encouraging people to be conscious about positive consent, which is what I thought the (good) point of the Ortberg piece was, there's just a difficulty with doing so that comes in pretty immediately when you use the term "rape" to describe such a broad range of behavior, because people will fight hard to litigate their own quasi-coercive sexual behavior (or whatever they think is morally sort-of-OK) out of the category "rape."


Posted by: Robert Halford | Link to this comment | 10- 7-14 1:05 PM
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I was really puzzled by what Ellen's point was in bringing up her own childhood conduct in the context of the essay. I did think Ortberg's treatment of that part was maybe unfairly harsh, but the whole area confused me completely.


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:06 PM
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OK, maybe this is my problem here-- basically, when I read the comments, I start thinking about behavior that's pretty far from objectionable, and considering whether the written description covers that behavior. Possibly this is because I'm a guy, in which case my best choice is exit, since quibbling about boundaries doesn't help, or actively clouds things.

But I'm with Halford on 144.2, there's a lot of behavior that's not clearly motivated, and a maximally broad definition of a crime causes problems. I believe that most violent men do have clear motivations, certainly including the editor in the essay O is responding to.

I'll say again that your claim that there are no gray areas in motivation both disagrees with what others have said and with the way I think about people-- but I don't spend much time thinking about violence, and talking about the ambiguities is basically changing the subject, so I'm out.


Posted by: lw | Link to this comment | 10- 7-14 1:06 PM
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I still don't get the problem with the terminology. For example, people shout "murder" instead of "negligent homicide" as part of a viable and reasonable tactic to change behaviors about things like drunk driving or making buildings without rebar. The point is to stigmatize.


Posted by: Moby Hick | Link to this comment | 10- 7-14 1:07 PM
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Seriously, what is the abundant evidence that unintentional rape is a significant problem? I spend quite a bit of time thinking about this stuff professionally, and am not aware of evidence that supports this claim. It's tangential to my primary field of research, so it is definitely possible that evidence exists and I've missed it, and I am 100% seriously interested in being pointed to it if it does exist.


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:12 PM
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I'll say again that your claim that there are no gray areas in motivation both disagrees with what others have said and with the way I think about people

I don't think I've said anything like "There are no gray areas in motivation" -- it's possible that I have, but if so I misspoke. I've been trying to keep it concrete -- would the victim have not participated in the sex if given a free choice, and did the rapist know that.


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:12 PM
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To be clear: the public statements of people who have been accused of rape, after they have been accused of rape, that they only raped someone unintentionally, do not qualify as evidence. For what I assume are obvious reasons.


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:14 PM
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To be clear: the public statements of people who have been accused of rape, after they have been accused of rape, that they only raped someone unintentionally, do not qualify as evidence. For what I assume are obvious reasons.


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:14 PM
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OK, one more thing-- the question in 151 is clear, but the existence of a clear answer is unlikely for many cases where the behavior is pretty clearly not rape.

For example, people who are intensely ashamed of their own sexual feelings are unlikely to have well-formed intentions about staying in any sexual situation. In my opinion, a lot of basically normal and unobjectionable behavior is more like this than people want to think. I'm not a rape apologist, I'm basically objecting to sweeping language here. Also, I agree with Ortberg that it's socially counterproductive to focus on the boundaries of objectionable behavior.


Posted by: lw | Link to this comment | 10- 7-14 1:16 PM
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157: Surely someone has done a parallel survey of rape victims. How do the numbers match up?


Posted by: Eggplant | Link to this comment | 10- 7-14 1:17 PM
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I don't know if JRoth's BOGF was similar, but I have changed my mind about going forward and backed out of an encounter. Not getting out of bed, but some putting clothes back on involved.

And I was made to feel very bad about it, as if it were something a man didn't do, and that I was being a very bad actor. Buttons were pushed.

I suppose in a different frame of mind I might have just gone ahead to avoid conflict, but at that time I was seriously alienated and don't think I actually could have.

So this is a case where the physical asymmetry between men and women played a role it wouldn't have had the situation been reversed.


Posted by: idp | Link to this comment | 10- 7-14 1:21 PM
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157. At least the way I'm thinking about this, to include sexual behavior that's coerced includes lots of behavior that's not now considered rape, and probably shouldn't be so considered. I'm with everybody else that the editor O is writing about is clearly and likely knowingly in the wrong.


Posted by: lw | Link to this comment | 10- 7-14 1:22 PM
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157 -- I don't know, this seems like an area where survey data is unlikely to show much. Certainly the things linked so far seem completely unconvincing as evidence. They wouldn't pick up any incidents described in this thread, for example, and wouldn't even pick up the stories described in the Ortberg piece. It's also not the case that just because most rapes (not even clear if this is true) are committed by a small number of "predators" that all of those people affirmatively understand a lack of consent, or that rape committed by non "predators" is not a problem. It seems to me that most data you collect is likely to pick up on rapes as defined by the legal system in provable ways, which are going to broadly speaking equal the most obviously intentional rapes. Certainly anecdotally we've all heard stories of skeevy but delusional guys.


Posted by: Robert Halford | Link to this comment | 10- 7-14 1:25 PM
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162 - I haven't seen anything like that, possibly because checking if the numbers match up is actually really hard (controlling for differences in survey methodology and sample pools) and possibly because I haven't looked in the right places. But yes, if that exists and someone knows about it, please let me know!


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:25 PM
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162 - I haven't seen anything like that, possibly because checking if the numbers match up is actually really hard (controlling for differences in survey methodology and sample pools) and possibly because I haven't looked in the right places. But yes, if that exists and someone knows about it, please let me know!


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:25 PM
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161: but the existence of a clear answer is unlikely for many cases where the behavior is pretty clearly not rape.

I'm not seeing this. I mean, I get that there's ambivalence, and shame and all of that. But for any sexual encounter between two people, if one asked the other "I'm not sure you're into this. Do you want to stop?" the other would either say "I want to stop" or "I want to keep going". There's a clear answer. Sometimes, you'd get someone who said they wanted to keep going for bad reasons, that were going to make them unhappy, or something. But that's getting outside the area of coercion.

And again, I can imagine someone who didn't really in some way want to have the sex they were having, but knew that they had the option to bring it to a halt and leave at will. That's also not, I think, what we're talking about here.

If you think there are situations that are both clearly not rape, but where there's no clear answer to "would one party bring it to a halt and leave if they could", what kind of situation, concretely, are you thinking of?


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:25 PM
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No idea why all my comments are double posting, sorry.


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:25 PM
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Is there some kind of prize for begging the most possible questions? Do you get free questions as a result? Because I award that prize to 168. Sure, if you have affirmative consent, openly discussed, and sex proceeds in the face of an affirmative denial of consent, it's rape! Glad we got that cleared up.

I can imagine someone who didn't really in some way want to have the sex they were having, but knew that they had the option to bring it to a halt and leave at will. That's also not, I think, what we're talking about

Except for many people's comments, and in the incidents described in the Ortberg piece, this is absolutely correct.


Posted by: Robert Halford | Link to this comment | 10- 7-14 1:30 PM
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And again, I can imagine someone who didn't really in some way want to have the sex they were having, but knew that they had the option to bring it to a halt and leave at will.

This is what I'm thinking of exactly. I believe that it is common. Maybe I'm wrong, but a) I'm a guy and b) have known plenty of people who hated talking or thinking about their feelings, none of whom lived in Manhattan.


Posted by: lw | Link to this comment | 10- 7-14 1:31 PM
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164 - Ok, but the question of "does this coercion qualify as rape" is actually different from the question of "does this person know that they are coercing someone." I don't have a strong stake in exactly where the former line is drawn, as long as we can all agree that coercion is morally reprehensible whether or not it meets some legal or societal bar for rape. But I really question whether there are people walking around oblivious to the coercion they are employing.

On the level of anecdata, my read is that many of the "delusional" guys are not in fact all that delusional.


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:31 PM
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But for any sexual encounter between two people, if one asked the other "I'm not sure you're into this. Do you want to stop?" the other would either say "I want to stop" or "I want to keep going".

Huh? They could also say nothing, or say something not implicitly or explicitly answering the question.

We're really tearing at each other over small differences here, I mostly sympathize with you here and think if "unintentional rape" is in fact something that happens it should still be some kind of crime, but you are being kind of reductive.


Posted by: Minivet | Link to this comment | 10- 7-14 1:31 PM
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I think you're misunderstanding me a bit.

I'm not saying that necessarily both parties know the clear answer at every time. But for every sexual encounter, both parties have a belief about whether they could safely bring it to an end at will: Yes, no, or uncertain. And for every sexual encounter, there is a fact of the matter about what each party would do if they believed they could safely bring it to an end at will -- either they would or they wouldn't.


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:35 PM
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On the level of anecdata, my read is that many of the "delusional" guys are not in fact all that delusional.
As reflexisively defensive as I might get about the possibility of innocent cluelessness being dismissed, I can believe this is right. At the very least, willfully delusional.
166: Frustrating, because a good comparison would seem like it could clarify where there may be underreporting.


Posted by: Eggplant | Link to this comment | 10- 7-14 1:36 PM
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174 to 170.

To 171: If everyone involved in the sex believes that they could leave at will without frightening or unpleasant repercussions from the other person involved, I'm not going to worry about it as coerced sex (unless I'm completely misunderstanding you).


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:37 PM
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158: Right, but you can't prove what the rapist knew, and even if you could there's the Upton Sinclair quote about it being hard to get a man to understand something if his getting laid depends on him not understanding it.

So we attempt to expand the definition of sexual assault until it can be proven even if the rapist makes bad-faith arguments as to their state of mind at the time and if the victim is hesitant to describe what happened as an assault.

But such expansion inevitably includes a bunch of behavior that basically everyone doesn't consider sexual assault, which freaks out people who worry that they might be wrongly accused, and also freaks out people who don't want to consider themselves victims of sexual assault.

Which is... fine? Unavoidable?


Posted by: jake | Link to this comment | 10- 7-14 1:39 PM
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But for any sexual encounter between two people, if one asked the other "I'm not sure you're into this. Do you want to stop?" the other would either say "I want to stop" or "I want to keep going".

Given the "would" I'm not sure if you take yourself to be describing an ideal world or actually existing reality but given other comments I suspect it's the latter, in which case I can say is that I'd love to live in the world you imagine yourself to live in.


Posted by: nosflow | Link to this comment | 10- 7-14 1:39 PM
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Also, the claim that the parties referenced in the Ortberg piece "knew that they had the option to bring it to a halt and leave at will" is...tendentious at best. It's pretty clear to me that the woman staying on the writer dude's floor did not, in fact, feel confident that she could leave without escalating the situation into violence (and might reasonably prefer a nonviolent rape to a violent one).

I hope we are at least agreed that dudes described here are complete shitbags.


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:39 PM
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173: Huh? They could also say nothing, or say something not implicitly or explicitly answering the question.

Yes, possible. In that case, I'd think the person asking the question would be morally responsible for stopping, because lack of consent would be a very significant possibility. This doesn't seem to me to complicate the situation much.


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:40 PM
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178: Again, I'm not understanding the pushback here. I know ambivalence is a possibility. But people given mutually exclusive options that cover the whole space of possibility (things like "stay or go") do, in fact, make decisions. All I'm trying to do is describe a situation where it has been communicated to the person that they have the option to stay or go without repercussions, at which point they would inevitably make one decision or the other.


Posted by: LizardBreath | Link to this comment | 10- 7-14 1:43 PM
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I'm far away from having to look at the data regularly, but my understanding from stats and anecdotes is that a fair number of the "serial rapist" group seem in fact to be delusional about what constitutes consent and what was really wanted and so on, whether by instinct or by choice. I've been trying hard to keep my language gender-neutral because that tracks how I generally think about this, but I'll go ahead and say that I also think there are coercive guys who are honestly confused about how the narrative is supposed to play out and thus clueless about the responses they're getting in return, and it's good when those situations can be headed off before they get problematic and definitely before they turn criminal.


Posted by: Thorn | Link to this comment | 10- 7-14 1:44 PM
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177.1: I think you mean H.L. Mencken.


Posted by: Moby Hick | Link to this comment | 10- 7-14 1:44 PM
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177 - Sure, as I said earlier, I think it's understandable why non-rapey dudes take the idea of accidental rape more seriously than it warrants. But the fear that people are going to get accused of rapes that they committed accidentally is just not grounded in reality.

175 - Yeah, and it's not that there aren't socially awkward guys (and girls) out there who are going to accidentally cross boundaries sometimes. Pushing past clearly signaled signs that someone doesn't want to have sex takes more than social awkwardness, though.


Posted by: Sarabeth | Link to this comment | 10- 7-14 1:45 PM
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I don't even like suggesting restaurants to eat at, for fear of pressuring someone into a meal they wouldn't have otherwise chosen.


Posted by: Eggplant | Link to this comment | 10- 7-14 1:47 PM
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Sometimes I think only Eggplant understands me, except he probably doesn't understand me because he wouldn't want to presume.


Posted by: Thorn | Link to this comment | 10- 7-14 1:50 PM
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Eggplant is reminding me of a friend whose preferences it's absolutely impossible to determine, because he will always suggest whatever it is he thinks you want to do.

at which point they would inevitably make one decision or the other.

Well, I mean, that's what seems unclear to me. "I'm not sure what I want" is not a decision for one or the other, though obviously if you get that response you shouldn't just press on with whatever you wanted to do. I mean, the last time I asked "do you want me to stop" the answer I got was something like "yes and no".


Posted by: nosflow | Link to this comment | 10- 7-14 1:54 PM
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My mother is 187.1.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 10- 7-14 2:00 PM
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Did the person involved stop talking and refuse to say anything else? Ordinarily, that sounds to me like the first sentence in a paragraph that would then continue "I really like you, but I'm exhausted. Can we go to sleep and do this another time?" or "I'm not sure I want to have sex, can we just keep on making out?" Or something. Clarifying what the yes and the no referred to.

In the absence of verbal clarification, I'd think the sane thing to do would be to take the no as a no and await advances that would establish what the yes referred to.


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:01 PM
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I like whoever nosflow was or wasn't stopping with, who seems to have one of the best answers I've heard to that sort of thing. Um, I probably could have put gendered pronouns there. Sorry, nosflow.


Posted by: Thorn | Link to this comment | 10- 7-14 2:02 PM
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179.1-- she doesn't say she was threatened with violence, implicitly or explicitly. I think civil law metaphors are basically dumb and misleading in this area, but if it helps on the facts as described she would have had the requisite legal degree of "freedom" to which we ordinarily ascribe free choice; by that I mean she could have eg signed an enforceable contract with him and she wouldn't have had a tort claim for false imrpisonment. In that sense she was "free to go" (as was the other woman, in the statutory rape example). Instead of physical force or formal constraint, he basically harrassed and touched her enough, and she was in a mentally vulnerable enough state, that she gave in and had unwanted sex. Which is terrible! The guy is a super shitbag, and it was rape. But the story does put some pressure on syllogisms like "if you're free to leave it's not rape"; human psychology and coercion are more complicated than legalistic definitions and syllogisms, and I don't think we should limit our understanding of "rape" to a legalistic concept (though the fact that it is *also* an actual legal concept makes this hard to do, which is what I've been trying to say all along).


Posted by: Robert Halford | Link to this comment | 10- 7-14 2:04 PM
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Did the person involved stop talking and refuse to say anything else?

No, she was more forthcoming than I recorded, and appropriate actions were taken by all.


Posted by: nosflow | Link to this comment | 10- 7-14 2:07 PM
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Jeez, bike across town, shop for dinner, and pick up your kid from the bus, and your comment gets buried.

117 was to 88.last, which is why it quoted it. I feel as though LB is alternating saying "there's a clear, bright line" and moving where that line is.

The point of 117 is that there was no communication, and in the absence of communication, neither party knows anything - things are gray! I did not then, nor do I now, think that BOGF would have kicked me out of her apt (that kind of crazy came later). But to be honest, if I'd known then what I do now, I would have run screaming, because she was, in fact, capable of harmful behavior. If I were a less optimistic/more cautious/less privileged person, I could absolutely have believed that my choice was give in or get out, and getting out would have sucked. The only information that BOGF had about my mindset was that I had left her on a bed in another room and said "Goodnight" - zero evidence of interest, let alone consent.

So now this allegedly bright line is really about social norms - a presumption that I'd be up for some sexytime (to be explicit, she got in bed, rubbed against me, and grabbed my dick; I was still a virgin, so it stayed at mutual masturbation), a presumption that I, as a man 11" taller than she, was in no physical danger, a presumption that as friends in the same social circle, I wouldn't be feeling coerced so much as seduced. And none of those social norms are ones that actually protect sexual assaultees.


Posted by: JRoth | Link to this comment | 10- 7-14 2:08 PM
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In the voting-with-one's-feet sense, I'd think that a question like the one in 187.last would generally make it clear that bringing the sex to a halt was a readily available option, at which point you'd generally expect that someone who didn't want to participate would bring it to a halt.

Really, I think that 187 is hiding the ball in the hopes of drawing a foul. You know what ultimately happened after the confusing interaction you describe. I've 'known' you for long enough, albeit text-mediated and long distance, to believe that it's vanishingly unlikely that you went ahead with anything sexual in the presence of real confusion as to whether your partner wanted to get away from you. So my assumption is that you resolved the doubt somehow, or that you stopped the encounter.

But by withholding whatever happened to resolve the confusion, you're setting me up to make guesses about your behavior, which has serious potential for being offensive.

Ultimately, what did happen?


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:11 PM
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194 crossed with 192. So, she ultimately communicated a comprehensible answer to the question.


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:12 PM
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191 - at minimum, she describes the fear that "it would 'turn into an ordeal' if I rejected him" and notes that "I had nowhere else to stay, and if I upset him that I might be forced to leave." I mean, I agree that this probably doesn't meet New York State standard for rape (not a lawyer, but have been trying to figure these out lately so that our school sexual violence committee has a sense of what state law actually is; certainly, my friend the Bronx public defender who was explaining the statute to me would laugh hilariously at the prospect of someone trying to prosecute this case). But there's a real sense in which she's not "free to leave" (she is in a strange city in the middle of the night and has nowhere else to go).


Posted by: Sarabeth | Link to this comment | 10- 7-14 2:13 PM
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I thought the Ortberg piece was pretty terrible. It's the kind of paragraph-by-paragraph mockery that in the bad old days would be called a "Fisking". Sophia Katz (the one who slept on the writer's floor), was pretty unambiguously coerced, and intentionally so. The actual facts are the strongest point against Ellen, but the single quote from Katz totally fails to get across what actually happened. While maybe there's a gray area, the actual behavior of the guy was pretty well illustrated by Philadelphia's own Dennis Reynolds.


Posted by: Walt Someguy | Link to this comment | 10- 7-14 2:14 PM
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197: Hah. I can't believe it took this long for someone to link that bit.


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:15 PM
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FYI, other things that you won't be prosecuted for, at least in the Bronx, include having sex with someone who is very very drunk as long as s/he is not literally physically helpless. That was a surprise to me. Being unable to consent due to intoxication only makes it rape if you did not voluntarily consume the drugs or alcohol that got you intoxicated.


Posted by: Sarabeth | Link to this comment | 10- 7-14 2:17 PM
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and appropriate actions were taken by all.

Hurray! A happy ending!


Posted by: peep | Link to this comment | 10- 7-14 2:18 PM
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Relevant: nosflow was holding her by the hair out of a 20th floor window.


Posted by: ogged | Link to this comment | 10- 7-14 2:19 PM
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A happy ending!

Hey, it's entirely possible neb stopped.


Posted by: Josh | Link to this comment | 10- 7-14 2:19 PM
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Well, I concede that it was somewhat unfair (though I hope not actually offensive!) since yes, I do obviously have more information about this than you do (but also I don't really want to go on about it in detail because I am still seeing the other party and really I shouldn't even have brought it up), and it wasn't even that confusing in the event, but it was a case where I checked in and didn't get either of the unambiguous responses you seemed to think would naturally be easily forthcoming. I mean, I do think (as mentioned) that if you ask "do you want X" and you get the answer "yes and no", then that is functionally equivalent to stopping until a more determinate answer is reached. I am mostly confused by the impression I'm getting from you that it's basically always a simple question to answer and one will be able to give a clear-cut response easily.

(Ultimately, we stopped for a bit.)


Posted by: nosflow | Link to this comment | 10- 7-14 2:21 PM
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So, she ultimately communicated a comprehensible answer to the question.

See, this is what I'm getting worked up about. "Yes and no" is not an incomprehensible answer!


Posted by: nosflow | Link to this comment | 10- 7-14 2:22 PM
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168: ut for any sexual encounter between two people, if one asked the other "I'm not sure you're into this. Do you want to stop?" the other would either say "I want to stop" or "I want to keep going". There's a clear answer. Sometimes, you'd get someone who said they wanted to keep going for bad reasons, that were going to make them unhappy, or something. But that's getting outside the area of coercion.

See, and this is the whole point of my story. If, instead of getting into bed and rubbing against me, BOGF had come into the room and asked if I wanted to have a sexual encounter, I would have said No. But once she started, I was aroused (and therefore more inclined to say yes, for better or worse), and stopping would have been awkward (because existing friendship, because I was staying over).

In the presence of a "clearly communicated consent" standard, it wouldn't/shouldn't have happened. It happened because that wasn't the standard, and because sexual encounters can be ambiguous.

Again, not claiming it was a rape. But it is pretty much exactly congruent with the "unintentional rape" thing that supposedly doesn't [hardly] exist. And I don't believe that mine was an especially unique circumstance.


Posted by: JRoth | Link to this comment | 10- 7-14 2:29 PM
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203: The thing is, when you say that it wasn't that confusing in the event, you say that her wishes were successfully communicated to you. You asked the question, and as a result you got a useful answer. The fact that the verbal form of the answer included some waffling seems to me to be neither here nor there.

An answer that did nothing to resolve the doubt about whether the other person wanted to continue to participate in sex is certainly possible, but seems clearly to me to be an unusual and pathological case.


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:31 PM
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I am mostly confused by the impression I'm getting from you that it's basically always a simple question to answer and one will be able to give a clear-cut response easily.

I'm with LB on this one. "Yes and no" means "no". (You yourself agree with this, according to your previous sentence.)


Posted by: Josh | Link to this comment | 10- 7-14 2:32 PM
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Facts closer than I thought after all.


Posted by: idp | Link to this comment | 10- 7-14 2:33 PM
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I've 'known' you for long enough, albeit text-mediated and long distance, to believe that it's vanishingly unlikely that you went ahead with anything sexual in the presence of real confusion as to whether your partner wanted to get away from you.

I rather think you haven't. No offense intended to nosflow. But this is one of those confounding factors, right? People have different bedroom faces.


Posted by: k-sky | Link to this comment | 10- 7-14 2:34 PM
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<pedant>Actually given the way I phrased the initial question "yes and no" would mean "yes".</pedant>

But, while it means that from an operational perspective for the asker, it's not what the response actually means as far as making public the answerer's state of mind!


Posted by: nosflow | Link to this comment | 10- 7-14 2:37 PM
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209: Well, I do have that belief, whether or not it's well founded. And I have the additional, better founded belief that even if I'm completely wrong about what nosflow's capable of, that I know him well enough that he wouldn't be telling that story if the end of it was "So I had sex with her while being completely uncertain whether she wanted to."


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:37 PM
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Again, not claiming it was a rape. But it is pretty much exactly congruent with the "unintentional rape" thing that supposedly doesn't [hardly] exist.

The question to me is whether the "accidental rape" category is broad enough to merit consideration, or if it's really a chimera masking over "sexual encounters that, given an emerging standard of affirmative consent, we feel bad about in retrospect."

I understand Halford's question about distinguishing between criminal and socially unacceptable forms of sexual contact. I also understand why people are giving the answer that it's not a thing. As a heterosexual male above the age of 25, I have enough regret for my actions that I get why people would like to know which of the terrible things they did merited their imprisonment and what merely their shame.


Posted by: k-sky | Link to this comment | 10- 7-14 2:39 PM
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211: fair enough.


Posted by: k-sky | Link to this comment | 10- 7-14 2:39 PM
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207: I don't think it necessitates a no, just further clarity of some sort and certainly not a yes. I've definitely said, "Yes and no. This is great, but my back is killing me and I could handle the pain but would it work for you if we instead instead do this?" and found mutually agreeable solutions.


Posted by: Thorn | Link to this comment | 10- 7-14 2:39 PM
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214 is actually closer to the situation as it played out than concern about consent to sexual goings-on at all.


Posted by: nosflow | Link to this comment | 10- 7-14 2:41 PM
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212.2: The statute of limitations on the caterpillar ended ages ago. I'm not sure why you insist on making him feel bad still!


Posted by: Thorn | Link to this comment | 10- 7-14 2:41 PM
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193, 205: I feel like I need to respond to this. Um, while that seems like seriously wrongful behavior on her part, and it does seem like the sort of thing that would be much less likely with better social norms around affirmative consent, it also seems kind of sidewise to either the discussion of coercion or 'unintentional rape'. That is, if I'm understanding you correctly, you actually did change your mind about whether you wanted to have sex with her, and ultimately did without feeling coerced into it.

At which point while her behavior still seems wrong, it seems as if it's a different type of thing than what we're talking about.


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:41 PM
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Also, why has no one come up with a scenario on how to use nonverbal sexual messages to entrap Stevie Wonder and prove he can in fact see? I hate this blog.


Posted by: Thorn | Link to this comment | 10- 7-14 2:43 PM
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Page number 94 in this study provides scientific backing for the anecdotal evidence in 205.2.


Posted by: jake | Link to this comment | 10- 7-14 2:44 PM
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Be the change you want Stevie Wonder to see, Thorn.


Posted by: nosflow | Link to this comment | 10- 7-14 2:44 PM
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Eww, no!


Posted by: Thorn | Link to this comment | 10- 7-14 2:45 PM
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That is, if I'm understanding you correctly, you actually did change your mind about whether you wanted to have sex with her, and ultimately did without feeling coerced into it.

Doesn't that depend on how you define, "coercion?" Reading the same comments my conclusion was that JRoth did feel coerced.


Posted by: NickS | Link to this comment | 10- 7-14 2:45 PM
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210: Yeah, I was just coming back to correct that.

But what's the relevance of the answerer's state of mind?


Posted by: Josh | Link to this comment | 10- 7-14 2:45 PM
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Can someone write a bot that can assess how much agreement and disagreement there is in a thread at one time?


Posted by: k-sky | Link to this comment | 10- 7-14 2:45 PM
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222: In his first comment on the story, he said he didn't feel coerced. If he did, that's different.


Posted by: LizardBreath | Link to this comment | 10- 7-14 2:46 PM
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failing that, a bot that makes really good analogies. not the bad kind, the really good kind.


Posted by: k-sky | Link to this comment | 10- 7-14 2:47 PM
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I'm with NickS and think that "coercion" rather than "rape" is where a lot of the gray area lies. There's a lot of pressure on people to write their own histories in various ways that work for them. And so of course (not speaking for JRoth but using him as an example, I hope without giving offense) JRoth wasn't sexually assaulted in his first sexual encounter with BOGF because then he'd have to have that underlying the rest of their relationship, or else of course BOGF was pushing boundaries and not caring about what he actually wanted from the very start or whatever other narrative you want to put on it, but the reality is a lot more complicated than any narrative and the narrative arises after the reality.


Posted by: Thorn | Link to this comment | 10- 7-14 2:47 PM
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But what's the relevance of the answerer's state of mind?

To what you should do, given a particular answer? Probably not very relevant.

To what you should think of what you think LB's psychological picture is? Relevant!

Can someone write a bot that can assess how much agreement and disagreement there is in a thread at one time?

Everyone agrees with everyone about everything except whether they agree.


Posted by: nosflow | Link to this comment | 10- 7-14 2:48 PM
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Out of respect for bad memories about BOGF and because I can't get all smoky, I went to hipster bar. They will sell you a can of beer that they fill and seal right there. It's 32 ounces and they call it a crowler.


Posted by: Moby Hick | Link to this comment | 10- 7-14 2:55 PM
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"growler".


Posted by: nosflow | Link to this comment | 10- 7-14 2:56 PM
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But BOGF had zero evidence that I wasn't feeling coerced (until the point where I acquiesced). If I'd somehow heard through the grapevine that she was the kind of person who might freak out and throw me out, then I would have acted in the same way (from her POV). If I were a more paranoid person, afraid to speak up for myself, I would have acted the same way.

Her evidence for me not acquiescing under pressure/coercion really was all grounded in her self-assessment - that she wasn't the kind of person who'd freak out or kick me out, and that she wouldn't make a big deal if I'd said, "No thanks." But none of it was based on my actions before the point at which I acquiesced in a situation where my choices were limited.

And again, I responded really directly to something you earlier claimed was a bright line, and now you're hand-waving that bright line away. If she'd asked, I'd have said No. She didn't ask, and I gave in. Those two sentences equal rape in roughly half the comments of this thread, yet they (truly) didn't equal rape in my situation. That's gray!


Posted by: JRoth | Link to this comment | 10- 7-14 2:56 PM
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227 gets it exactly right. If I wanted to tell a story in which I was the victim (as opposed to someone who passively fell into a bad/abusive relationship), this incident (and 1 or 2 others from the beginning) would fit in without any change of facts. I didn't feel "coerced" because that's not my mindset - even the later parts where I had legitimate concerns about her wrecking my stuff, that was (in my mindset) more about me making excuses not to take action than about things being "abusive".

And I'm not - I hope it's clear - suggesting that people who would feel coerced or abused in the same circumstances are choosing to feel that way - when I say mindset, I mean how I'm wired, not some conscious decision not to be a victim.


Posted by: JRoth | Link to this comment | 10- 7-14 3:03 PM
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230: Nope. Moby is right. Insta-cans are called "crowlers." Do try to keep up, nosflow.


Posted by: oudemia | Link to this comment | 10- 7-14 3:05 PM
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230: It's a configuration of "can" and "growler".


Posted by: Moby Hick | Link to this comment | 10- 7-14 3:05 PM
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Fine. Whatever.


Posted by: nosflow | Link to this comment | 10- 7-14 3:07 PM
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I think k-sky's 212.3 restates the question well in a universal and not religious way. Those of us who aren't sure and those of us who are secret sharers would like to know.

"Not you, really rapey guys!" is a pretty uninformative answer.


Posted by: idp | Link to this comment | 10- 7-14 3:42 PM
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235: I report the usage without endorsement.


Posted by: Moby Hick | Link to this comment | 10- 7-14 4:00 PM
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As a heterosexual male above the age of 25, I have enough regret for my actions that I get why people would like to know which of the terrible things they did merited their imprisonment and what merely their shame.

Those of us who aren't sure and those of us who are secret sharers would like to know.

"Not you, really rapey guys!" is a pretty uninformative answer.

I've actually been trying to say that this is a question we (men, maybe women too) shouldn't be asking. I don't really like the push to claim that "rape" in a social, not legal sense, is an easy concept with a clear bright line dividing rape from non-rape that we can and should be sorting things into. (The law is different. There is a legal concept of "rape" and the law has to sort things into bright-line categories of rapists and non-rapists. That's what the law does, But we don't have to think about rape as exclusively a legalistic concept, and if we do we should look at the actual criminal law).

I think we all understand if we're not totally blind to reality that there is a category of sexual encounter that's not "core" rape but that's pretty awful, pretty coercive sex, and that the concept of coercion is not an easy one. Unwanted sex that falls in that broader umbrella probably should be called "rape," to point out its seriousnesss and its harmfulness. But in calling it "rape" the purpose shouldn't be to construct a bright-line legalistic test when you're not actually applying the law. Who cares? Fighting over whhether or not the word "rape" applies to a shitty sexual encounter, like, say, JRoth's, is bullshit and an almost automatically defensive and fraught exercise. Figuring out how to make sex actually non-coercive seems like a much better project.

I feel like the twin pushes in the thread to (a) define rape as only a problem that comes from a small number of intentionally-pain-inflicting predators and (b) a concept with a bright line rule and tests like "if you're free to leave it's not rape" are moves in the wrong direction.


Posted by: | Link to this comment | 10- 7-14 4:09 PM
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238 was me.


Posted by: Robert Halford | Link to this comment | 10- 7-14 4:10 PM
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JRoth, while I don't want to label your experiences for you, I'd say that you are describing actions that meet my understanding of sexual assault, if not rape. I had a very similar experience in college, when someone I thought of as a friend decided that it would be ok to get in bed with me while I was asleep and start making out with me to wake me up. We didn't have sex; once I woke up enough to realize what was going on, I asked him to stop and he did. But I certainly think of it as a form of sexual assault, like getting groped on the subway or something - someone who had no prior indication that I'd be interested in any sexual interactions nonetheless started touching me sexually.


Posted by: Sarabeth | Link to this comment | 10- 7-14 4:18 PM
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218: It's good to be reminded that underneath all that non-violent, takes care of unwanted kids goodie-goodie schtick, Thorn is fundamentally evil.


Posted by: peep | Link to this comment | 10- 7-14 4:20 PM
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Googling related to this thread has revealed that plots of Romance novels do not seem to be getting any more enlightened:

Can these two very different, very stubborn people actually be meant to be together? Find out if Travis and Ally can let down their defenses and surrender to a love so powerful it will rock them to the depths of their souls in Billionaire Undone, Book Six of The Billionaire's Obsession series.


Posted by: Criminally Bulgur | Link to this comment | 10- 7-14 4:40 PM
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238 is why 224.


Posted by: k-sky | Link to this comment | 10- 7-14 4:48 PM
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31: Ahem.


Posted by: knecht ruprecht | Link to this comment | 10- 7-14 5:45 PM
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"The Thousandaire's Obsession" would be a good romance novel. "Her reasonably priced jeans moved slowly over the seat of the 2006 Toyota Camry."


Posted by: Robert Halford | Link to this comment | 10- 7-14 5:50 PM
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Oh lord 245 made me laugh out loud. But then I've spent the day in 5th cir case law so I'm a bit starved for light relief.


Posted by: dairy queen | Link to this comment | 10- 7-14 5:52 PM
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On consent: There is was an app for that.


Posted by: JP Stormcrow | Link to this comment | 10- 8-14 6:00 AM
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and tests like "if you're free to leave it's not rape" are moves in the wrong direction.

I feel as though I've been terribly slow here, but I think I finally get what you were upset about, Halford.

I'm not lawyering over what I said -- if that's what you understood from my comments, I clearly need to clarify -- but the issue you raise isn't what I meant. What I meant was (1) to draw a circle around coercive sex where the victim isn't free to get away, and the rapist knows the victim wants to get away, but goes ahead anyway, and (2) to say that while there are plenty of situations within that circle where there'd be no hope of proving rape in a court of law, the conduct isn't morally a lesser offense than rape just because it's unprovable, it is rape.

I didn't intend to say that everything outside that circle is fine, or not coercive at all, or that there might not be confusing situations that it might make sense to conceptualize either as rape or as not rape depending on the circumstances and the feelings of the people involved. If that's what we're talking about as gray areas, there are certainly gray areas, and I didn't mean to say there weren't. (JRoth's story seems to fall into that category.)

But a lot of the stories that draw argument about 'gray areas', like the writer/editor story, seem to me to be an area that's not gray at all morally -- they seem to me to be about a rapist having sex with another person despite knowledge that the other person wants to get away or otherwise avoid the sex. It's a huge intractable proof problem, both because it's hard to know what someone else is thinking and because rapists actively create plausible deniability. Throughout the thread, though, what I was thinking and trying to say is that where that knowledge exists, we're not in a moral gray area.


Posted by: LizardBreath | Link to this comment | 10- 8-14 8:09 AM
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248 -- comity. I finally feel understood.


Posted by: Robert Halford | Link to this comment | 10- 8-14 8:39 AM
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Comity here as well. In a sense there are 2 gray areas, one involving people of good intention, and one involving an asshole taking advantage of the grayness to commit rape without getting into the black & white area. In the fake gray area, the bad actor almost certainly knows what he's doing, and is either going against his conscience or simply has none. And I think the experience of the victim* is pretty distinct as well: in the true gray area, the emotions during and after the fact are primarily confusion and (maybe) regret - ordinary "was that a good idea?" stuff - and in the fake gray area, the victim is feeling coerced in the event and all sorts of shitty emotions after.

There's probably some tiny sliver that's genuinely ambiguous (the victim perceives coercion that's truly absent; the bad actor knows he's not coercing, and doesn't read signals correctly), but that's the sliver so small that no one should worry about characterizing it properly.

And to draw it all back to a proper "Prevent rape by not raping people" place, teaching that the obligation of the prime mover (so to speak) is to be really cognizant of the potential partner's state - not just respecting "no", but also recognizing discomfort, ongoing reluctance, etc. Gray areas exist, but you should try to get out of them, not use them as cover to get what you want and hope it's not rape.

*that is, the person who'd prefer not to; in the truly gray area, this person isn't really a victim


Posted by: JRoth | Link to this comment | 10- 8-14 11:12 AM
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Eliot was all over this, of course, though this phone doesn't have the waste land on it. "Exploring hands encounter no defence / and make a virtue of indifference"


Posted by: nworb werdna | Link to this comment | 10- 9-14 4:35 AM
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