Consider this part of the Feminism Friday series.
I suppose disease-prevention does benefit men, but so does pregnancy-prevention. There’s a reason men are terrified of getting a woman pregnant. It isn’t like disease-prevention is a man-only concern or sexual fetish. The problem here may have something to do with gender, in fact it’d be easy to convince me it does, but the relationship Marcotte describes here doesn’t really make any sense. This seems like far more of an issue with everyone’s pleasure and choices than women’s in particular. Of course, that makes perfect sense: many of the religious don’t like recreational sex, and they’re angry when men and women alike have it.
I dare say that I never argued that men don’t see the benefit of preventing pregnancy; many do. But Mike’s main problem here is assuming that people’s behaviors and beliefs about sex stem from a rational perspective, which is statistically impossible. If people behaved rationally about sex, our unwanted pregnancy rate would be a fraction of what it is now. Even if you assume, as many sexists do, that only men can be counted on for rational decision-making, that shouldn’t matter, because no man anywhere who didn’t want a baby right now would have sex with a woman without either a condom or verifying to his satisfaction that she can’t get pregnant. Clearly, that’s not happening.
I’d argue that to understand sexual decision-making, you’re better off using a George Lakoff-style framing analysis. (Rest of post is a tip-off that I’m reading his latest book.) I’d say the two major metaphorical frames about sex would be the conservative-sexist one and the liberal-feminist one. The conservative-sexist metaphorical framework of sex is Sex As Conquest. In this frame, women’s bodies are objects and sex is about the struggle to conquer the pussy. Sometimes the struggle over the pussy is between men (ex: jokes about fathers guarding their daughters’ bodies from young male interlopers) and sometimes women themselves are tasked with defending the pussy from sex. If sexual intercourse happens, by definition, the man who gets to fuck the woman has won and the defender (father or woman herself) has lost. Sex happens when women surrender, in this model.
The liberal-feminist view of sex is that it’s not a war or a game, but more of a mutual collaboration, less like a battle and more like playing music. In this model, to be a sexual person is to be a musician and sex is playing your instrument. Sometimes you play by yourself, sometimes you get with others and jam, and sometimes you actually have a band that you have a long-term relationship with. There aren’t winners and losers, but there can be good and bad sex, just like there can be good and bad music. The collaboration model of sex explains why acceptance of homosexuality and kinkiness are generally liberal views. It makes no more sense to call homosexuality immoral than it does to posit that rock is more moral than jazz; it’s all a matter of taste. Homosexuality creates a lot of grief to those who have a fairly strict conservative view of sex because you can’t even tell who’s supposed to be the offense and the defense. It’s simply outside of their model, and it creates cognitive dissonance, which often makes the person suffering it want to wipe out the source of the dissonance.
These separate models of what sex is explain why threads about rape turn into hellholes pretty quickly—sexists and feminists aren’t even speaking the same language, in a sense. The conservative-sexist model of rape is the same one used to define a foul in basketball. Basically, when sexual intercourse happens, the man team has scored a point against the woman team. Each team is allowed some strategies and disallowed others. In basketball, you’re supposed to snatch the ball from the other team, but you can’t cross certain lines or you’ll get a foul. This explains why rape trolls are so eager to find out what the “rules” are, i.e. when they are permitted to force sex. (”Is it rape if she’s drunk? What if she says yes and changes her mind? Is it okay to bully someone into it, so long as you don’t actually hold her down and force her? Are guilt trips okay?, etc.”) If there’s some ambiguity when the referee calls a foul, your teammates (other men) are supposed to clamor to your defense, regardless of whether or not you actually fouled. If the foul is called, then the woman team scores a point (or a free throw in basketball, but you get the idea). The idea that it’s wrong to have sex with someone unless she really, really wants to do it makes about as much sense as saying that you should only be allowed to get the ball in basketball if the defense hands it to you.
On the liberal side, in contrast, the very idea that getting someone to play in your band or jam session who is reluctant or openly hostile makes no sense, thus the idea of “winning” in sex by getting a reluctant woman to submit is repulsive to feminists, period. Trying to figure out the rules of when coercion is acceptable and when it’s not makes no more sense than asking if it’s okay to make someone play in your band by holding their kids hostage, threatening to fire them, locking the doors so they can’t leave or simply laying a guilt trip on them. You can vaguely understand the desperation sometimes, if no one will ever play with you, but in the end, it makes no sense. Even if you can force someone to go through the motions, odds are the results are going to suck because they don’t even want to be there. Music is supposed to be fun, so if it’s not fun, it negates the entire point. Same with sex.
All of that goes a long way to explaining phenomenon like banning the word “rape” from a rape trial and allowing the word “sex”. In the sexist view of sex, the distinction between rape and sex is one of degree. To feminists, the difference is of kind—if it’s rape, it’s not really sex, since sex is a collaborative effort and rape is a violent assault.
If you look at these two models of sexuality, it becomes easier to see why the Trojan ad is so offensive to sexists. To start with, men and women weigh the condom vs. no condom choice a bit differently, for somewhat inescapable biological reasons. If you put the considerations into a point scale, it might look like this:
| Considerations | Men | Women |
| Preventing pregnancy | 8 | 10 |
| Avoiding disease | 5 | 5* |
| Improving sensation | 6 | 2 |
From the mutual collaboration point of view, each person individually rates “preventing pregnancy” above “improving sensation”, therefore the choice to use a condom every time is an easy one to make. But if you view sex as a game or a battle where one person wins and another loses, then the decision-making process is a lot different. The point of a game is not to maximize your own score so much as to score more points than your opponent. So what should rationally be a decision made in the mutually collaborative frame becomes instead framed as a battle of the wills all too often.
Viewed from this perspective, it’s easy to see why the Trojan ad offended sexists. The ad argues—metaphorically, of course—that the superior approach to sex is the liberal-feminist mutual collaboration view. And it doesn’t push this argument subtly, either, but instead puts forward the notion that the man who approaches sex as a mutual thing instead of a conquest is superior to other men in the way humans are superior to pigs.
*Yes, I’m aware there’s a lot of differences that are probably unique from person to person, but overall, men and women both have enough interest in disease prevention that you can assume equality for argument’s sake here.
95 Responses to “On pigs, basketball, frames, and music”
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Great post Amanda.
I think you mean “unless” instead of “only. Otherwise I love the basketball/band metaphor.
Unless, thanks. I’ll fix it.
This is the best post I have ever seen about this topic. Here’s what it makes me wonder: is there any hope at getting those who view sex as a contest/ game/war to understand it in a different way?
Well, according to Lakoff and I agree with this, most of us function with both metaphorical frameworks, and will switch off depending on which one they’re hearing right now. If you simply frame your arguments within your frame, you’ll win. You’ll never avoid the handful of rape trolls who try to change every productive discussion of sexuality of “can I rape if she does this or can I rape if she does that?”, because they’re trying to reframe sex as a battle. But insist on arguing on your terms.
It gets ugly. I went to TPMCafe once when guys were getting into the legalistic talk about when they get to rape and started reframing it in my terms—who wants sex with someone unwilling? How hard up are you that you have to beg? Is it really that hard for you to find someone who’s eager for your cock? That’s how reframing works. They flipped out, but once you start arguing from the collaborative frame, it’s pretty hard to deny that the “is it rape if she’s drunk? if she changes her mind halfway through? if she says no but gives in anyway?” makes you sound like you’re such an insufferable prick that no one wants to play with you.
Indeed. It really is uncanny how well the ideological conflict between conservative and liberal camps maps onto the difference between zero-sum and nonzero-sum thinking, respectively, on every issue.
And as a both a musician and a huge basketball fan, I have to second Caren’s approval of your metaphors. Very apt.
I’ve had similar arguments with allegedly pro-choice men who keep offering hypotheticals where their wishes about the pregnancy should prevail. But only under these particular, unlikely circumstances! But they’re pro-choice, it is totally the woman’s decision, except, what if in this one, strictly defined case? And they will get progressively more ridiculous and angry as the argument goes on. What if she really wanted to have a baby, but then went into a depressive spiral and changed her mind? And I knew she’d be mad at me afterwards if I “let” her get one, instead of somehow stopping her, just until she’d stopped being crazy and depressed and, and, and…you get the idea. It’s like they need that one hypothetical in which they can impose their will upon a woman, while still being able to claim they’re pro-choice, just like the rape apologists need that one situation in which it’s OK to go ahead and force a woman to have sex, without admitting it’s goddamn rape.
Well, now, Amanda, you’ve gone and insulted pigs. But you’re right. The basketball analogy is perfect.
“…when guys were getting into the legalistic talk about when they get to rape and started reframing it in my terms—who wants sex with someone unwilling? How hard up are you that you have to beg? Is it really that hard for you to find someone who’s eager for your cock?”
I remember one evening asking Charlie “what makes a man rape”- a very vaguely phrased question on my part, and admittedly lazily put. He looked at me in utter shock and answered, “How the hell would I know??? Just because I have a dick I would KNOW???”
Thanks for putting into words what I’ve been trying to for about 3 years now.
Speaking as a collaborative person, I really can’t understand the competitive nature. I just can’t. It really is like a foreign language to me.
Great post Amanda!
I just wish you had gotten a mention of Billo and pigs in the same sentence. It does all fit nicely together doesn’t it.
http://orestia.blogspot.com/2007/06/of-pigs-condoms-and-oreilly.html
[…] Amanda Marcotte is out of the gate early this week with this fabulous post: On pigs, basketball, frames, and music I’d say the two major metaphorical frames about sex would be the conservative-sexist one and the liberal-feminist one. The conservative-sexist metaphorical framework of sex is Sex As Conquest. In this frame, women’s bodies are objects and sex is about the struggle to conquer the pussy. Sometimes the struggle over the pussy is between men (ex: jokes about fathers guarding their daughters’ bodies from young male interlopers) and sometimes women themselves are tasked with defending the pussy from sex. If sexual intercourse happens, by definition, the man who gets to fuck the woman has won and the defender (father or woman herself) has lost. Sex happens when women surrender, in this model. […]
And don’t forget that there are losing-at-the-end-of-the-game strategies designed specifically around intentional fouling because what is gained is “worth the penalty.” Some men will cross that line even when they know it’s rape simply to score the point.
An apt metaphor indeed.
I’m going to add my voice to the chorus praising the analogies.
It also makes a weird kind of sense, considering how girls tend to play versus how boys tend to play. While exceptions abound, researchers has frequently noted that girls play tends to focus on the cooperation and making sure everyone’s happy. Boys are more likely play games that have clear winners and place as much importance on debating the rules as they do on playing the actual game.
The thing is, both are needed. This is why I get so annoyed that discussions about rape pretty much always default to legal definitions of rape. We need the legal definitions and the clear “yes” or “no” when it comes to the justice system, but when it comes to cultural narratives, the cooperation framework is the healthier one.
Excellent point about differing between the legal and non-legal definitions of rape. I’d say that one reason the law can be so frustrating is because there’s no extra-legal cultural changes to exert pressure. Specifically, juries are not really hip to the idea that coercing sex is wrong, thus even legally defined rapes become “not guilty” verdicts, because the jury doesn’t see why send a “good” boy to jail for what amounts to a foul call in basketball. Without cultural discourse indicating that rape is morally repugnant, we will continue to have these problems. And to convey why it’s morally repugnant, we need to use our frames.
Well done, thanks.
[…] It’s hard to be upset about getting taken down a notch when it’s a well-read and much-respected blogger doing the takedown, even if I do find her initial tone a little condescending. For now, I’m going to link more or less without comment. Basically there’s a lot of interesting stuff in there and some good ideas, and I agree with the vast majority of what she’s saying…but I’m still not able to bridge the gap between “we don’t like people having recreational sex” and “we love for men to enjoy sex, but women suck and we don’t respect their decisions.” All in all I’d call it a productive discussion. (But I won’t promise not to come back to it.) High fives for everybody. […]
Hey, thanks for the link. This is an interesting post — I still think your initial interpretation was a pretty big stretch, but I like what you’re saying here. The basketball metaphor is particularly sharp.
High fives for everybody. (Well, except maybe me.)
And, yeah, the “no using the word rape in your testimony” thing is disgusting and awful.
Well, the ruling makes sense in that using the word “rape” in a trial is prejudicial, because it implies that rape occurred. The prosecution has to prove every element in the rape charge, and if they start saying that the defendant raped the complaining witness (because you can’t use “victim,” either, since they have to establish that the criminal conduct happened), then that sort of short-circuits the whole burden the prosecution has.
Same thing with murder — no judge is going to let witnesses in a murder trial testify that the defendant “murdered” anyone. Killed, yes. But there’s a number of other things that have to be proven before anyone can conclude that the defendant murdered anyone.
But just because the witness can’t say “he raped me,” doesn’t mean that she can’t testify as to what happened. She just can’t use a word that draws a legal conclusion (though I understand the prosecution can argue that that’s what happened in opening statements and summation).
As for allowing “sex,” as uncomfortable as that makes me for the reasons you stated above, someone at LGM pointed out that the defense is going to be that there was sex, but it was consensual. And since they don’t have to actually prove anything (and since “sex” as a term doesn’t say anything about the crime itself), it makes sense that they have that term available.
That makes some sense. But…
The thing is that “killed” is a fine substitute for murder.
Sex is in no way a substitute for rape.
Someone else (Steve H) on that selfsame LGM thread said that it would be great if the complainant could say “he fucked me” while she was on the stand. It doesn’t seem to be prejudicial, but it doesn’t necessarily imply consent either.
But, that’s not really an option since people inside a courtroom have never heard such coarse language before, and we wouldn’t want to expose their virgin ears to anything like that.
A) does this actually happen?
B) for reasons other than hearsay? Granted I’m not an expert, but I’ve never heard of anyone telling a witness they can’t say they’ve been mugged or assaulted non-sexually.
C) if the issue is the word as a legal term, shouldn’t “sexually violated” and the like etc. be ok? (The bits that I’ve read suggest this may not be the case.)
D) Is saying “rape” really the same as saying “murder” if “murder:kill::rape:[?]” leaves us with a blank? Because “sexually violated” isn’t the same kind of synonym to rape as kill is to murder.
And according the link Amanda gave, it is the attorneys who can’t say “rape” - as well as the victim They also can’t say “sexual assault,” “rape kit,” and “victim” - which is what makes me wonder if “sexually violated” was allowed.
All of which, as someone pointed out at Shakesville, raises the question of her right to accuse and how in the hell the jury is supposed to know what the defendant is being accused of.
(Are opening and closing statements never subject to rules? That wouldn’t make sense, because it would give attorney’s an easy way around other rules like no mentioning prior arrests, etc.)
The thing is that “killed� is a fine substitute for murder.
Actually, it’s not. “Murder” means something, specifically killing plus premeditation and possibly malice. Killing without intent is usually some flavor of manslaughter.
Rape is sexual contact without consent. It’s the “without consent” part that’s assumed in the word “rape,” and which is problematic for a criminal defendant — just like the premeditation element in murder. Because you usually get a defense that runs along the lines of, “Yeah, we had sex, but she wanted it.” If you get a murder defendant who admits that they killed the victim (and victim is okay there, because dead is dead), you’ll get a defense such as “and then the gun went off” or “it was self-defense.”
“….but it doesn’t necessarily imply consent either.”
The problem with “fucked me” and will all these rules is that, when the cultural narrative is that “fucked me” is pretty much synonymous with “had sex with me” when a women says it - because supposedly women never want to have sex the same way that men do, so consent is never really an issue unless extreme violence is involved - then there really isn’t anything other than the word “rape” that says “sex without consent.”
While I don’t think that the justice system should fix everything culture is doing wrong, it seems that it should take culture into account when creating special rules, rather than pretending that they are making decisions in a vacuum. In fact, I rather thought that was part of the point of special rules, to accommodate the fact that we are all flawed.
Wonderful post. I think this really gets at the heart of one of conservatism’s main hang-ups. Everything is a competition. From school to job to family, it’s all about keeping up with the Joneses. If your best friend lost his virginity at 16, you feel inadequate because you were 23 at the time. Your colleague scored the Baxter account, and you’re still pushing paper like a knave. If Jenny’s husband just bought a new car, my husband had better buy one, too, if we don’t want to be shamed out of existence.
Framing every worthwhile pursuit in life as a chance to step on other people to get yours is just asking to feel inadequate for the rest of your life. There will always be someone better than you. . .at everything, and competition is ultimately a culturally destructive endeavor. (How many times have you heard even pro-free-market wingnuts crying crocodile tears over the fact that their candidates are spending more time clamoring for position among themselves than trying to work together?)
I think the point here is about the very interpretation of the word “sex.” If you use the stated argument, the term “non-consenual sex,” is oxymoronic because sex, by definition, is a consensual agreement. Non-consensual sex IS rape, so to use the word “sex” in a courtroom brings to mind a collaborative effort, when the plaintiff is arguing the complete opposite.
Killed/murder isn’t a good analogy for not being able to call rape “rape.” “Killed” still makes it clear that what happened wasn’t natural or voluntary.
It’s more like trying a murder trial but only being able to say the victim “died” without saying they were “killed” “shot” “stabbed” or anything else that is an attack.
You can’t say that this defendant is a murderer (or a rapist) before conviction - you can say that the victim was killed or murdered, and that the victim is, indeed a victim, not someone who just happened to wind up with a knife in their back.
If someone says they were raped, then “rape” is what happened - that shouldn’t be a question, any more than when someone is robbed, their claim that they were robbed gets questioned. Or any more than if someone wound up with a knife between their shoulder blades, the claim that they were killed gets questioned. The only question might be whether this defendant is the one who did the rape, barring circumstances as unusual as those that would make one question that someone who’s wallet was stolen was actually robbed, as opposed to giving the wallet and contents as a gift, and then regretting it.
“If you get a murder defendant who admits that they killed the victim (and victim is okay there, because dead is dead), you’ll get a defense such as “and then the gun went offâ€? or “it was self-defense.â€?”
But what you are talking about is just legal definitions. In life, people generally don’t distinguish between burglary and theft, but they do mean different things legally. So the accuser can say things like “stole” without getting into legal hot water, but the effect on the jury is pretty much the same as saying whatever legal term is appropriate.
The problem is that we don’t another term for rape. So, pretty much, rape victims are screwed because rape has never been an important enough crime for the English language* to have developed as many useful synonyms for it as they have for murder/killing/slaughter/execute/slay/assassinate/massacre/etc.
“Sexual assault” was tossed out (presumably because that’s a legally defined crime, too) so “assault” doesn’t work.
“Ravish” implies seduction.
“Plunder” is inaccurate and cartoonish.
“Spoil” is silly and implies there’s now something wrong with her.
And while they could just be trying to play the media, I would think that if she and her attorneys could say “sexually violated” - which isn’t perfect, but better than “sex” - then the attorneys would have done so - and said so. Since it was my impression that “rape kit” is also a legal term, I have my doubts that the prosecution was able to say “sexually violated” and the like.
It’s not that I don’t see the logic of the argument that saying “rape” assumes guilt, it’s that how don’t see how it has the intended effect of serving justice.
That, and I was always under the impression that the accuser could call it whatever he or she believed to be true; I wasn’t aware that I needed to prove that I had been robbed before I testified using whatever specific legal term applies in my case. I’m a little confused as to how anything gets clearly stated in court if thats true. I mean, isn’t that the point, that I’m accusing the defendant of committing that specific legally defined crime? How am I supposed to accuse him/her of it if I don’t say it?
*plus, the fact that we kill animals for food, but don’t go around raping them. one would hope, anyway.
oooh….I bow down to your awesomeness.
I am so not worthy.
But what you are talking about is just legal definitions.
Well, yeah. That’s kind of the point when we’re talking about a court ruling excluding evidence.
Did you bother to read the rest of what I wrote, or were you just in the mood to be snarky?
Great post! As a sex education facilitator, I may borrow this one - usually I used the baseball game vs. pizza metaphors.
My only suggestion might be adapting your names slightly. In Moral Politics, Lakoff specifically points out that the strict father model is deliberately gendered and the nurturant parent is not.
I would suggest a similar structure here - rather than conservative sexist I would suggest male-conqueror. The conservative sexist content arises from the underlying metaphor which is the metaphor of conquest. in the male conqueror model, the female plays defense against an invading force which uses a variety of techniques to break down the walls. It’s an elaborate metaphor that formed the basis of a Medieval book called the Romance of the Rose. For the male, a variety of strategies and tactics are required to circumvent the female’s defenses; same for the female who is resisting the male’s advances. This model is deliberately gendered and deliberately heterosexual.
Rather than liberal feminist which I would argue is the outcome of the underlying values, I would suggest “partner cooperation.” LIke Lakoff’s models these apply gender to the first and a non-gendered to the second. In the case of partner cooperation, the outcome is liberal and feminist in content but the underlying values are about a cooperative model of sexuality - successful cooperation requires communication, meaningful consent, respects mutual pleasure and expects mutuality. Those values and behaviors apply equally to men and women and require a deliberate equality of partners.
Can’t she just use the descriptor “penetrated” to get around the collaborative connotations of “sex”?
Penetrated is a word with nasty hard consonants and a plosive that be just spat out. It’s a good strong word with no fluffiness. “Penetrated my vagina against my will”. How would the judge rule against that?
Also: “Forensic examination” instead of “rape kit”?
It’s more like trying a murder trial but only being able to say the victim “died� without saying they were “killed� “shot� “stabbed� or anything else that is an attack.
The prosecution has to prove each step with admissible evidence without jumping ahead to the end. This is true for all crimes. You need a killing to get a murder conviction (and you do have to establish that the victim was killed, and how, versus just saying that the victim was killed), but you also have to prove intent and/or premeditation. You can’t just assume it and start saying that the defendant murdered the victim.
For illegal entry, you have to show that the defendant didn’t have a right to be on the premises, knew they didn’t have a right or even a good-faith belief that they had a right, and entered the premises. Burglary requires that the prosecution establish that the defendant did all that and took something that wasn’t his besides. If any of those things are missing, there’s no conviction. Merely asserting that the defendant burgled the premises isn’t enough, nor is it allowable.
Again, there’s no reason the prosecution and the witnesses can’t establish that there was unconsensual sexual contact (which, IIRC, in this case consisted of the victim waking up to find the defendant grinding away at her without her consent). It just has to be done step by step, without jumping to the end.
This is one of those things that people get really outraged about if they’re using common definitions and if they aren’t familiar with criminal procedure.
This is probably my favorite Pandagon post ever. Seriously, hats off.
I have one random and askew question. Is it possible to take off the gender modifiers for the conservative-sexist & liberal-feminist point of view? Because I know sexual assault occurs female on male, male on male, and female on female, and yours only offers the perspective as if it existed solely male on female. Thanks!
Did you bother to read the rest of what I wrote, or were you just in the mood to be snarky?
I have to wonder if you read anything I wrote, given your dismissal of it as “just legal definitions.”
Which, again, this is for purposes of a trial. It doesn’t mean she wasn’t raped, it doesn’t mean that we can’t talk about rape, it just means that in order for the defendant to get a fair trial, the judge has ruled that certain argumentative (argumentative here = asserting the ultimate outcome and bypassing the necessary establishing steps in between) statements are inadmissible.
It doesn’t mean the prosecution’s hands are completely tied, not at all. They just have to work around the limitations. Which, if they’re any good at all, they will.
[…] On pigs, basketball, frames, and music It makes no more sense to call homosexuality immoral than it does to posit that rock is more moral than jazz; it?s all a matter of taste. Homosexuality creates a lot of grief to those who have a fairly strict conservative view of sex … […]
Mickle, were you aware that zuzu is a lawyer?
Would knowing that help you understand why she’s getting “legal” here?…
Can’t she just use the descriptor “penetrated� to get around the collaborative connotations of “sex�?
She can, and I don’t see why she doesn’t. The words “sex” and “intercourse” are not required, as far as I can figure out from the news article linked from Dahlia Lithwick’s article. She can’t say “he raped me,” but she can certainly use other words to describe what happened that don’t have connotations of consent.
The prosecutors did try to get the judge to block the use of those words as well, but the judge denied that motion. Probably because the defense is going to be that there was consensual sex, and defendants are allowed some leeway with mounting a defense.
I comment very, very infrequently, but I just wanted to say thank you for this post. I’ve run across an unusual number of ‘is it OK to rape when _____?” discussions lately, most significantly the old “well, it’s not rape if you keep pressuring her until she says yes” argument. I couldn’t really vocalize why I thought that was a stupid argument to be having, but this post sums it up more eloquently than I could possibly manage.
Every time a topic like this occurs, it totally shocks me how many people there are who seem to want to be able to have sex with someone who doesn’t want to. Quite frankly, most of the people I know are of the opinion that the only way to take someone to bed is with their enthusiastic consent, and I kind of thought that more people shared this opinion. It really depresses me to see that’s not the case.
Neocon douchebags hate the Trojan ad because they don’t want people, especially women, taking control of their sex lives. To me, opposing condom use is rape.
And Amanda, et. al. I love the analogies. Most men do place improtance on debating the rules in life as well as sport. Which brings me back to one of the best posts of the year (and possibly your best ever in the short time that I’ve been here) when the banned Foo troll turned what was a good thread about rape prevention into a hellhole:
Great analogy, as everyone else has been saying. But this model extends beyond discussions of rape and into most feminist issues (and, for that matter, equal-rights issues in general). Anti-feminists are working in the competitive frame wherein one side has to “win” and one side has to “lose,” so of course any perceived gain for women must mean a loss for men. Feminists are working in the cooperative frame and assume that everyone benefits from greater freedom and equality.
Like I said, this type of framing pops up in other equal-rights movements as well (i.e., if gays get married, it’ll somehow take points away from straight marriages), but it seems to be especially dominant in discussions of sex and gender. The idea of a “war of the sexes” is deeply ingrained in society, so the battle/game analogy an easy frame to call up.
I hate basketball.
An ostensibly non-contacy sport where people’s arms arms are broken.
Feh.
Great post, Amanda.
ZUZU, I hope that IF (praise be to the Bar goddesses) I become an attorney [at my advanced middle age] I will be as savvy as you.
(As I have just returned from a CrimPro class where we discussed Wardlow and Robinette).
{much apologies for typos and illogic - studying, 6.25 hours of class today, and chardonnay}
See!!! WTF is “contacy”???? Duh - “contact.” Etc.
‘Nite, all.
Gah.
Every time a topic like this occurs, it totally shocks me how many people there are who seem to want to be able to have sex with someone who doesn’t want to.
In the battle/game frame, it might actually be preferable. Having sex with an enthusiastic, eager woman is like playing basketball against someone who keeps handing you the ball. There’s so little challenge it hardly feels like winning, and anyway she’s not playing by the right rules. Wheedling, coercing, and doing everything short of physically forcing a reluctant woman into sex, on the other hand, is a much more impressive victory. No, the sex won’t be very pleasurable, but you’ll know you’ve WON!
Plus, of course, a lot of people just have such low self-esteem about their sexuality that they assume anyone who doesn’t want to have sex with them must be fantastic and way out of their league, therefore worth “conquering” at any cost, and anyone who does want to have sex with them must be messed up somehow.
Yes. So obviously, yes.
Were you all confused as to the difference between pointing out that she is just talking about the legal definition versus “getting all legal?”
As I understand it, the argument is that you can’t use the legal term because it presumes guilt, so instead you have to use synonyms. But only talking about what the legal definition of a word is ignores the fact that there are no adequate synonyms for some everyday words that have been co-opted as legal terms. “penetrated” =/= “rape” Unlike telling the victim of an attempted murder to not use the word “murder,” the judge has effectively banned about the only two terms that are used by laypersons to describe the crime in question. And “sexual assault” is mostly by used only by laypeople if they write for newspapers or if the assault is something less than rape. Ergo, everyone’s testimony is likely to be confusing. And that’s before we get to the prosecutors not being able to name the crime they are accusing the defendant of. (If this last isn’t true, the Slate article needs correcting.)
Since the logic behind worrying about the legal definition is that using it to mean the layman’s definition will result in confusion and the impression that one is making a legal judgement, it doesn’t work to ignore the fact that banning both “rape” and sexual assault” makes the process more confusing as well.
More importantly, since “rape” is not a legal term in Nebraska (not according to this site anyway) and the legal definition of “victim” in Nebraska includes the term “alleged” I really don’t see how the argument that the legal definition is the most important (for whatever reason) even applies in this case.
And “duh” that smart lawyers should be able to get around this - but you’d think even not so smart lawyers would be able to get a conviction when the rape is taped and the victim is clearly passed out. Needless to say, we all know this isn’t always so. Thus my caring about what judges do, not just how smart lawyers are.
Zuzu:
See, that’s where I differ. I don’t believe we’re talking only about courts and evidence in this case. I am talking about just another goddamn example of the patriarchy getting to frame everything for women. Mickle is right. If a raped woman can’t say “A man raped me,” then there is no such thing as rape — in the vernacular and in a court of law, apparently. And maybe “killed” and “murdered” are a bad example of interchangeable words, but I think you’re deliberately missing Mickle’s point. Forget the law and the rules of evidence for a moment. The point is: women are not permittted to frame their lives in their terms. Period.
My only suggestion might be adapting your names slightly. In Moral Politics, Lakoff specifically points out that the strict father model is deliberately gendered and the nurturant parent is not.
Yeah, I know. But I disagree with him on that. I think that he clings to the family metaphor a tad too strongly sometimes. I don’t think the left thinks of the nation as a family as much as the right does. More importantly, I think the “nurturant parent” thing is a misguided attempt to avoid the feminine taint of using the terms patriarchal/feminist, even though that’s exactly what he means. I know that he’s trying to avoiding making feminism sound matriarchal when it’s actually egalitarian, but it falls flat.
Good point on the conqueror frame, but I wanted to avoid it, because it erases the fact that men are often cast in the defensive position. When we’re talking adults and rape, most of the time, sexists pretend that it’s a man vs. woman game, but for a lot of them, the preferable competition would eliminate women completely and it would be constant strife between men who want to fuck the woman-object and her male protectors.
The “partner cooperation” one falls short. In your Lakoff-esque attempt to escape the feminine taint of the word “feminist”, you kind of wiped out what’s really important about my musician metaphor, which is that it escapes the mandatory monogamist and heterosexist view that sex only properly happens in partnerships. You can play by yourself, you can have a jam session, and if it pleases you, you can have that have that monogamist, long-term relationship.
That said, I get that as an educator, you have to dance around male privilege and be careful to understand that while women can live with pronouns and phrases that don’t include us, men flip out. You can call a group of women “you guys”, but don’t call a group of men “you gals”, etc. So in order to get through, you have to dance around language that could make men freak out. So I get that. But I’m uneasy pretending that the cooperative model isn’t gendered female in our culture when it really is. There’s nothing wrong with being female, so I don’t see why we have to be so freaked out about that fact.
Is it possible to take off the gender modifiers for the conservative-sexist & liberal-feminist point of view? Because I know sexual assault occurs female on male, male on male, and female on female, and yours only offers the perspective as if it existed solely male on female.
We’re talking about the discourse about rape, not the actual instances of it. So, no. Rape trolls don’t flood posts about male-on-male rape and start asking when it’s allowable to perform it. I’m much more interested in describing the world as-is, not how I wish it would be. If it was how I wish it would be, there would be no rape in my fantasy world, so why have a discussion to begin with?
Forget the law and the rules of evidence for a moment.
Not for this case, hattie.
This woman is being prevented from saying “rape” and “sexual assault” in court, for this trial. She’s using those words in the interview with the Nebraska paper linked from the Lithwick column, so she’s certainly able to use them in discourse. She just can’t use them in her testimony.
And what I’m trying to get across is that panicking about an evidentiary ruling that applies only in one trial (and doesn’t prevent the witness from describing exactly what happened to her in some other way) is kind of pointless. Because we *have* to consider the law and the rules of evidence *for the purposes of a trial.* Rape shield laws are also evidentiary rules.
Now, if she’d been prevented from using those words outside of court, then we’d have a huge issue.
I recommend clicking through to the interview for some background, since it raises a number of questions about why this is coming up now. This is a retrial; the first trial resulted in a hung jury. She couldn’t use “rape” or “sexual assault” in the first trial either. But is that what made the difference for the jury? I’d like to know whether the prosecutors polled the jury about this. After all, rape cases with facts like this (IIRC, they left a bar together, she blacked out, then she woke up to find him on top of her) have a notoriously low conviction rate regardless of evidentiary restrictions.
Also, a slight correction: apparently, there is no longer a crime named “rape” in Nebraska; the charge is “sexual assault” of whatever degree. But “rape” is considered a prejudicial enough term that it’s excluded.
The prosecution has to show this. The victim (or their family) isn’t made to avoid saying that the victim was killed, they only can’t say that the defendant did the killing.
And while you can’t assume that the defendant murdered the victim, the victim’s perspective on the situation - that he/she was murdered - isn’t generally questioned. No one puts up a serious argument that they volunteered to be stabbed in the back.
In every crime except rape, the victim’s perspective of the crime - that they were beaten, or robbed, or stabbed, etc. isn’t routinely questioned. You ask “did this person kill the victim” not “was this victim killed” in all but the most unusual situations. No one asks whether the wallet the mugger took was given to the mugger as a gift. When the owner says the trespasser didn’t have permission to be on the property, and that the trespasser had been told to leave, no one tears into the entire past land use of the owner, looking at every invited guest the owner has entertained.
The female narrative of a sexual encounter is being treated as unreliable, in the way that say, a man’s narrative of a property transfer, isn’t. He may have given money as a gift in the past, but when he says the money was stolen in this situation, he is treated as giving a reliable account.
She is accusing him of rape. To have to do so without saying the word rape is nonsense. There isn’t an alternative that actually lets her say what her accusation is. And without the accusation being clear, the jury can’t accurately decide whether the defendant committed the act he is actually accused of. If the woman doesn’t call a sexual encounter rape, it isn’t rape. Forcing her to not call her rape “rape” makes the jury question whether she even thinks that what happened was rape, as opposed to consensual sex.
You’re missing my point, Zuzu. I said, “forget it for a minute.”
That means: okay, not talking about law and rules of evidence (all conjured and written by men), it’s just the same old story: the deck is stacked against women from the time we are born. Period. You can explain and explain and explain how it’s really great that legally, this woman cannot say “He raped me,” and it will do nothing to erase my bitterness about patriarchy.
And what Ursula L said.
The ruling in this case doesn’t cover statements made outside of court. It only covers statements made in court, as part of testimony. I don’t know why that’s not getting through here.
Did I ask you to forget about patriarchy? I’m just trying to explain why this isn’t something that requires rending of garments and gnashing of teeth about discourse in society at large. It’s a court ruling, that applies to testimony given during a trial.
I don’t know how many other ways I can say this: the victim is not prevented from describing what happened to her, step by step, in her testimony. She’s not required to use the word “sex” or the word “intercourse” to describe what happened. She’s not prohibited from telling a newspaper reporter that “he raped me.”
She just can’t use a word in court that draws an ultimate legal conclusion about what happened, because that’s the jury’s job.
And it makes no sense to prohibit use of the word because it might prejudice the jury’s decision and then tell the jury why it’s prohibited.
Courts operate by certain rules, and this ruling makes sense when you consider those rules. I’m sure the defendant is annoyed that he can’t bring in evidence of the victim’s past sexual behavior, but he has certain rules to follow as well. You may disagree with those rules, or dismiss them as written by men, but these are the rules that pertain in this court. Ignoring them or wishing them away or saying “but, forget about the rules for a minute” isn’t going to change the fact that courts have rules, and that you may not like those rules, but they have a certain purpose.
Keep in mind, the defendant has certain rights. We may believe the victim that she was raped, and that this is the guy who did it, but under the Constitution, the prosecution still has to prove beyond a reasonable doubt every single element of the charge using admissible evidence in order to get a conviction of this guy and satisfy the Constitutional requirements to make the conviction stick.
And, I’m done here.
First of all, as the article states, there is a trend outlawing the word “victim” in rape trials - and pretty much just in rape trials. So I don’t see how anyone is “panicking” here. We are arguing about something which we have good reason to believe may be used as precedence in later trials.
Secondly, your main explanation for why this ruling would make sense also makes it sound like the same logic would apply to no less than every rape trial. You seem to be defending it as so normal that’s it’s usually unremarked upon. So again, hardly panicking.
Well, but “prejudicial” is a much more biased idea than “everyday words that double as legal terms” isn’t it? And much more open to scrutiny and interpretation than bans on the legal term for “murder” during murder trials. Certainly everything we’ve all been saying about clarity of witness testimony applies doubly if we don’t even have to deal with any confusion regarding legal terms vs. layman’s definitions.
And this still doesn’t address the inconsistency in the fact that “victim” is apparently considered prejudicial despite the legal definition, and yet the reasoning for banning “sexual assault” and “sexual assault kit” is that this is court, so legal definitions must prevail.
Perhaps because none of us were ever confused on that point so you are arguing against strawpeople?
Why the fuck don’t you just come out at call us all hysterical?
And rules are never meant to be debated? Or is it only lawyers that are given the privilege of understanding why these rules are fair (or not)?
Once again, “rape” is not a legal conclusion in this case and the idea that it is “prejudicial” is hardly obvious. (Which, would be, after all, why your previous examples did not assert that “kill” and the like usually prejudicial - they suggested quite the opposite, in fact.) However, “victim” is legal term, and the context in which one presumes it would be used during trial would have been entirely correct - legally. And yet both were banned - along with other the terms that do draw a legal conclusions. But yes, we are all overreacting when we voice our suspicions that something is rotten in the state of Nebraska.
The same ruling applied during the first trial of this very same case, yet we’re only hearing about it now. So, yes, fairly normal.
No, because “prejudicial” also has a legal definition. I don’t know what the precise definition is in Nebraska, but here’s Federal Rule of Evidence 403:
“Victim” is considered prejudicial because it assumes that a crime happened, and the fact that a crime happened (that there was sex without consent) needs to be established through admissible evidence. Even in a murder case — which is where you get coroners testifying that the injuries observed “were consistent with” (not “caused by”) blunt force trauma or stab wounds or what have you.
Rape shield laws exist because the victim’s prior sexual history is considered prejudicial in that it will unfairly prejudice the jury, as well as being irrelevant. Hearsay evidence is excluded because it’s unreliable unless it falls within an exception. Evidence of propensity to commit a crime is excluded because it’s prejudicial, unreliable
The defense in a rape case is either going to be, “I didn’t do anything,” or “We had sex, but she said yes.” This is a case of the latter. So the key issue is consent. If you start telling the jury that the victim is a victim, they’re going to assume that there was no consent, and that’s not allowable because the prosecution has to prove that there was no consent.
Again: it’s all about not rushing to the end, and instead laying the foundation.
What I think may have happened in this case the first time out was that the exclusionary ruling came down and the prosecutors didn’t spend a whole lot of time prepping the witness, either due to lack of resources or lack of confidence in getting a conviction. If they polled the jury after they hung and the jury said, “Well, she said they had sex, so we couldn’t decide if that meant she consented,” then their tack the next time is to either get the words “sex” and “intercourse banned as well (which they tried, but it didn’t work), or prep the witness better so she can tell her story without using the banned words but conveying the idea that the sexual contact was unwanted and unconsensual.
Why the fuck don’t you just come out at call us all hysterical?
Who pissed in your cornflakes this morning?
And you had the nerve to chide me for snarkiness.
I don’t think I have seen a more eloquent characterization of the differences in the conservative and progessive mindset with regard to sex.
Outstanding post all around.
“And while you can’t assume that the defendant murdered the victim, the victim’s perspective on the situation - that he/she was murdered - isn’t generally questioned. No one puts up a serious argument that they volunteered to be stabbed in the back.
In every crime except rape, the victim’s perspective of the crime - that they were beaten, or robbed, or stabbed, etc. isn’t routinely questioned. You ask “did this person kill the victimâ€? not “was this victim killedâ€? in all but the most unusual situations. No one asks whether the wallet the mugger took was given to the mugger as a gift. “
Rape is treated differently from other crimes because rape IS a different kind of crime, the chief difference between murder and rape being that having sexual contact with someone is not in and of itself a crime, whereas lethal violence is. The facts of the event in a murder case are that person A was killed, and the question at hand is whether person B was responsible, and if so, whether that killing was a murder or negligent homicide or involuntary manslaughter or so on.
In a rape case, the fact of the event is not who was involved, as it is in a murder case. Though both prosecution and defense take the time to verify it to have a sound legal judgement, it is pretty much assumed at the start that person A and person B had sexual contact. In a murder case, there is no doubt that a crime was committed, and the only question is by whom. In a rape case, the first and most important question is whether or not a crime was even committed in the first place. That is a qualitative difference between the two, which makes the murder/rape analogy a poor one.
And when the question at hand is WHETHER there was a crime or not, it is not fair to use language which presupposes the existence of the crime.
If there is a case where it is beyond question that a woman was raped, and the question is rather of WHICH guy at the party was committing the rape (perhaps it was too dark to see her assailant’s face), then the murder analogy would be apt, and in that case I would imagine it WOULD be allowable to say “I was raped.”
-MH
Great post.
I don’t think Zuzu is being snarky. I think the judge should have gone the other way, and basically I think he got steamrolled by the defense; but the judge does have an obligation to tell the jury that the witness can testify to what happened, not to the legal conclusion.
So, Zuzu’s right about the inquiry that the judge has to undertake: by saying “rape,” is she giving a legal conclusion? That’s the right question. I think he blew it in answering it the way he did, and frankly when I first read the story I was outraged, but I do think that inquiry is the right one to undertake.
Here’s why I think the judge should have ruled differently:
(1) I think the statute being charged is “sexual assault,” not “rape.” The judge could instruct the jury that the word “rape,” is not a legal conclusion, and that they should consider it in its common sense, as her characterization of what happened, but that they had to consider all the evidence to decide whether what happened met all the elements for the crime that the defendant was charged with.
(2) Basically the same “curative instruction” could work even if the statute was called “Rape.” He can remind the jurors that that’s her account, and they are the finders of fact, and that it is their job to determine if the elements of the offense are satisfied beyond a reasonable doubt.
(3) The elements in question are (a) did penetration occur; and (b) did she consent. By saying it was rape, she is really just answering these two questions in a compound way. That wouldn’t be the case where there were some statutory element (like her age) that was assumed within the word “rape” but that she was silent on in her testimony. By the same token, if a woman in a statutory rape case is both testifying that (a) I was underage; and (b) the defendant sexually penetrated me at that time, then she’s made out the factual predicate, and her saying she was “molested” is really just repeating those two things in a compound form.
Anyway, the prosecutor has the option of prepping her to do something just as effective, which is to give a very detailed and clinical account of what happened. Done right, she can convey her nonconsent with every sentence, and the testimony would be more powerful that the banned word anyway — it might go like this (Trigger warning):
P: at some time after that, did you wake up?
W: yes.
P: at what time?
W: I don’t know for sure. Maybe eight o’clock.
P: What if anything was happening then?
W: He was on top of me.
P: the defendant?
W: The defendant.
P: On top of you how?
W: With his chest on mine, basically pinning me with his weight.
P: Was he doing anything else?
W: He was sticking his penis in me.
P: In your vagina, as in, penetrating you?
W: Yes. He was pinning me down and penetrating me.
P: Did you feel that, or see it, or something else?
W: I felt it. It hurt I … wasn’t … ummmm… prepared.
P: Were you dry, as in, your vagina wasn’t lubricated?
W: Yeah. I was dry. So it hurt.
P: Do you know how he got his penis in you?
W: Well, no. I was asleep when he started. I mean, it hurt, so I think I probably woke up right away …
DC: Objection …
P: But you don’t know?
No. I was asleep. When I woke up, he had his penis in me, and it hurt, and his chest was pinning me down.
P: Did you want him doing that?
W: No. I told him to get the hell off …
P: … that was my next question. You said to stop?
W: Yes. I said get off of me. I said it loudly.
P: Did he hear you?
DC: Objection …
P: Withdrawn. Did he acknowledge that statement in any way?
W: He looked at me and shusshed me.
P: Like, “Shhhhh”?
W: yeah. He heard what I said and he said “Shhhh.”
DC: Objection, judge she can’t testify to his thoughts, she doesn’t know if he heard what she said.
J: Sustained.
P: He reacted to what you said?
W: Yes. He looked right at me, and when I told him to get off of me, he said “shhhh.”
P: Did you try to push him off of you?
W: Yeah, but he had me pinned with his weight.
great post!!!
That’s why it is treated different from murder. But why is the concept of consent in rape treated differently from the concept of consent in theft?
It isn’t crime in and of itself to receive someone else’s property - people can and do often give gifts. The difference between theft and gift is consent, just as the difference between rape and freely shared sex is consent.
But the theft victim doesn’t have their lack of consent questioned in the way that a rape victim has her lack of consent questioned.
There is no more reason to question a rape victim’s account of consent then there is to question a theft victim’s. Yet the question is there, every single time, when a woman says she was raped.
When property is stolen, you’re a victim of theft, even before the thief is found and convicted. Victimhood is defined based on the victim reporting the crime, not on the defendant being found and convicted. If the defendant in a theft case is acquitted, no one claims that the victim wasn’t robbed - at most it shows that they didn’t find the right person, not that the crime didn’t happen at all.
When someone says “I was robbed” the question “Was he robbed” is considered to be answered, barring evidence to the contrary. The same should be true for rape.
By the way, though I disagree with the ruling, I think judges are increasingly getting talked into doing just this. Because there’s a good way to deal with the testimony without the word “rape,” I think prosecutors back down from that fight. But Zuzu’s assertion that this is unremarkable in criminal trials now, while it probably varies a lot by jurisdiction, is also probably accurate in a lot of places — especially those there the word “rape” is the name of a criminal offense.
One doesn’t have to be a “sexist” to be offended by an ad depicting one gender as pigs. This last Trojans ad is nothing more than another “buy our product and become more beautiful/desireable/etc” commercial. It may even be worse than the Pepsi ads which depict an adolescent man as repulsive to a woman until they offer the woman a Pepsi.
The adversarial vs collaborative analogy on sex is thought provoking, although I would dispute the point totals that you used at the end. I don’t think quantifying sex in that way is really accurate, no matter what mindset the man and woman have.
Perhaps it’s more accurate to say that when it comes to dating and sex, there is the “traditional track” and the “progressive track” to go about it, and depending on one’s gender, there are advantages and disadvantages to following either track. For example, the traditional track states that men should pay for dinners and dates (advantage women, disadvantage men). Traditional also states that women are expected to provide sex after a certain amount of time and money is spent (advantage men, disadvantage women). Since people will try to maximize their own advantages and minimize their disadvantage, they will pick and choose traditional or progressive based on when it’s convenient - and there is where much conflict and hypocrisy can be found.
Look, I see your point, zuzu. It really comes back to what my general point was, which is that unless we change the culture, this shit will continue happening. A jury in their right minds would hear, “And he had sex with me even though I was saying no,” and realize that’s rape. We need to change the culture or the legal system won’t follow. The entire issue wouldn’t be so upsetting if we didn’t realize that people will seek any excuse to reclassify rape as consensual sex—if we knew as a general rule that people did in fact realize that raping someone and forcing someone to have sex against her will were the same thing, the issue of prejudicial words wouldn’t be such a big deal.
Our job is to get our frame out there so that more reasonable juries are out there and this doesn’t become such a huge issue.
In every crime except rape, the victim’s perspective of the crime - that they were beaten, or robbed, or stabbed, etc. isn’t routinely questioned. - Ursula L
Although, in those other cases, except for the robbery claim, the victim’s perspective of the crime is backed up by physical evidence, which may not be present in the case of rape — i.e. there may be evidence of penetration, but how do you tell whether it was rape or sex? if there was evidence of forced penetration, then it’s likely rape, but just because there is no evidence of force doesn’t mean force wasn’t used? but just because someone claims force was used, doesn’t mean it wasn’t used …
In the case of the robbery accusation, as you point out, the defendent could very well say “the accuser just gave me the money”. But oftentimes this defense is not enough to plant a reasonable doubt in a very coherent story by the prosecution about what happens. As an alternate, I was not privy to the juror’s deliberation, I did see the same thing occur in a lewd and lascivious conduct with a minor trial — the accusor said her breasts and genetals were touched, the defendent denied this — but his explanation for what happened did not plant a reasonable doubt in the minds of the jury because his explanation for the events simply didn’t add up. Could a robber really be able to counter evidence of a robbery with “she just gave me the money”?
In any case, the distinguishing feature of rape is that the issue is not whether the action was done, but whether consent occured. And it is oftentimes hard to distinguish, on the basis of available evidence, whether the action was consentual or not. When a person is stabbed or beaten or what not, the victim’s perspective is not questioned because of the evidence that the stabbing, beating or whatever occured — and barring a good reason why the defendent had to do what he did in self-defense, or what not — the victim’s perspective (modulo mis-identification) is not at issue. OTOH, if she claims the sex was consentual and he says she sat on top of him when he had a stray erection whilst sleeping and woke up inside her — how do we know whom to believe? Unlike a stabbing, which is a crime unless it’s justified … penetration is not a crime: what makes the crime is the consent, about which you often only have one person’s word against another person’s … which is why the very presumption of innocence often means presuming the victim’s perspective is wrong in a way which it doesn’t so mean in other crimes.
Unless you want to get rid of the presumption of innocence, which I should hope we all wish to keep, such questions of perspective do become “routine”, eh?
Amanda, absolutely. Better outcomes, in trials and in the culture, will require a less rape-supportive culture. Juries that will believe a woman when she says she was raped can only come from a society that will believe a woman when she says she was raped.
You’re absolutely right we need to change the culture. And as I said above somewhere, I suspect what happened was that in the first trial, this same ruling was in place and the victim used the word “sex” to describe what happened because she wasn’t prepped or questioned properly by the prosecution. And the jury, because of their frame of reference, heard “sex” and split on whether that meant consent or not. But is that the result of the ruling, or a result of poor preparation, or a result of such ingrained juror bias due to cultural factors that she could have been screaming on the stand that he raped her and they’d *still* split on the issue?
IOW, it seems like focusing on this ruling alone, without considering all those other factors (and not that I think you don’t; this post does a good job of explaining the kinds of frames jurors bring into the courtroom with them) is not very helpful. And I’ve seen a lot of people getting freaked out about the implications of this ruling without really considering that it, yes, is a court and yes, the ruling follows a certain logic. That doesn’t mean you can’t debate the logic, that doesn’t mean you can’t criticize, but you can’t just discard it because you wish things would be another way.
Incidentally, I’m not at all agreeing with the ruling, merely explaining why it’s not unusual, or anything from left field, and why it makes sense given the way trials, particularly criminal trials, run. Because it sounds like a horrible, unfair thing doesn’t mean it necessarily is.
Hence, the “slut”. And if she’s the one going after a guy, well, the whole order of the universe collapses.
But the theft victim doesn’t have their lack of consent questioned in the way that a rape victim has her lack of consent questioned. - Ursula L
In a trial, there is always the presumption that the defendent is innocent, which means the accuser must somehow be mistaken — about who committed the crime or even whether the crime occured. Now, as to the latter point, there must be an alternate explanation as to what happened. And the question is whether that alternate explanation, after the defense presents its case, produces a reasonable doubt as to the accusations made by the prosecution. So, if the defense is to successfully claim “there’s another explanation for what happened”, the question is whether that alternate explanation is reasonable.
To put it in Bayesian terms, there is a question of the prior believability of the alternate explanation: we treat theft and rape victims differently because, knowing what the alternate explanations will be (it was, respectively, a gift, consentual sex), we already have a prior judgment about how likely a gift to a random person on the street is vs. having sex with someone yet met in a bar is. We are a money-grubing society — who would believe a person who claims that the accusor just gave the defendent a wad of cash?
However, let us assume that people do realize that the default position for a woman is not consent (which realization is sadly lacking … actually, it would be interesting to know: would people believe a woman didn’t consent but it was rape if the defendent was ugly verses if the defendent was teh hawt? … i.e. “he must have raped her, his story that she consented is unreasonable as why would she consent to have sex with him” vs. “yeah, I’d hit it … so I’ll believe she consented … but he does sound like a jerk-wad, so I’ll believe she has some serious issues with having consented, so maybe she’s convinced herself she didn’t consent”) — certainly to say the default position is something along the lines of our default position of “nobody would just give away a diamond ring or a wad of cash” vis-a-vis theft — “no woman would just ‘give away’ sex … a guy has to court her, woo her, etc., first” and view any claim of consent from the guy with suspicion as he’s producing no evidence of a courtship, is actually rather sexist, is it not?
So, while certainly the difference in believability of the “alternate explanation” of “it was consentual” between theft and rape may reflect sexist assumptions regarding the believability of women or the idea that consent is default, but it may also merely reflect that our society does assume people are selfish with their cash but does realize that women do have hook-up sex, etc., in a fully consentual manner … so it is plausible that a man and a woman would go out to a bar, go to one of their places and have sex, whereas it’s not so plausible that a person would give a wad of cash to someone on the street.
OTOH, I would imagine that if it’s a close family member that is accused of stealing, “it was a gift” can and does get a lot of traction. And when people more readily believe, say, domestic help has stolen something than rape allegations, perhaps the issue isn’t so much sexism but classism?
[…] On pigs, basketball, frames, and music 22 06 2007 [Link] […]
Great post, but did you HAVE to use a basketball analogy? Not that it isn’t apt–it is–but I love the too much. Plus, of all the pro sports, basketball is the most deeply progressive in its support of candidates, community issues, race issues, internationalism, etc. The San Antonio Spurs just won a championship with only a single U.S. player in its starting five (I count Ginobili as a “starter”; Pop would as well).
But your post is right on. It would be one thing for the boys to ask what the “rules” are because sex is new to them and they really want to treat people properly, but most of the time, they’re doing so to see how far they can “push it” before they’ve broken the law, which is fucked up.
Actually, I do feel that the labels “conservative-sexist model” and “liberal-feminist model” are inaccurate because so many–like, most–men who claim to be liberal seem to subscribe to the former. And since they claim to be liberal, they can then duck out of it and say, see, I don’t think that way, I’m a liberal.
Aw, Gayle ain’t ya cute….bunnies bunnies bunnies please
Slythwolf, I’ve described a similar dynamic somewhat differently, using the terms Commodity Model and Performance Model, on this thread (sixth comment). I agree that lost of liberal and progressive guys have a commodity view in mind.
Amanda, your use of the music metaphor seems to agree entirely with my thinking about the Performance Model, but your use of a sports metaphor and the “conquest” terminology also vary from what I had to say. Are we just expressing the same thing differently, or do you have a substantively different view?
Brilliant Amanda! I’m a true fan of Lakoff’s method. It is such a seemingly easy concept, but too often we get sucked in to the stupidity of trying to disprove all of the misconceptions of the right instead of just redefining the argument in our own terms.
“Nifong to jail? Marcotte next?”
Interesting universe you live in…
Irving “Scooter” Libby outs CIA agent, lies to FBI, obstructs justice, gets caught by hard Rightwing prosecutor, gets convicted, is sentenced to prison - WingnutLand erupts in calls for Bush to pardon him.
Amanda believes a woman is telling the truth about being raped. Prosecution botches the investigation, ends up dropping charges against 3-men who may not have been involved. No trial takes place - Wingnut demands Amanda go to prison for expressing her opinion.
…?
YAY Bunnies! and kitties too!
Yeah, MikeEss….Conservatives Sure Are Funny.
Great post, Amanda. And your analogies were very illustrative. I think this post should be required reading for every single human being.
Zuzu, if you are still reading this thread or any other lawyers, I’m still confused. I was mugged last year. The guy stole a coin purse and $40. When I called the cops nobody questioned that I had had a coin purse and $40 even though I couldn’t prove that either of those things existed. Now suppose they caught the guy, coin purse and money are long gone, so he claims he never stole from me. Maybe he claims he just asked me for the time or something (to explain how I could recognize him). If it went to trial would I really not be able to say, “he mugged me”, or “he stole from me”, or be called a victim?
Thanks.
Backing away from the particular topic..
It’s insanely difficult trying to nail the real, final root of what makes someone a conservative. You do as good of work as anyone I know, of figuring that out.
I really hate the division of competitive/cooperative into bad/good.
I’m very competitive. And very cooperative. You need to be both, without ill will or passive aggressive bullshit, to get along in this world.
Women are told not to be competitive, so many people think that what we are told to be is somehow “better” and that competition is masculine and wrong.
What you are positing as “competitive” is not my concept of competition, where I can place first, second, 832nd or whatever, where I can strive to excel and compete with myself, where I can press my limits and do better every time.
What you’re describing is human domination. One side wins, one side loses. Competition doesn’t require someone to lose. Domination does. There is no object to domination if there is no one to dominate.
Carovee, she’s not saying you don’t have a right to call yourself a victim. Just that there are some situations where the judge might have a reason to prevent you on the stand from using the word “victim”. Pretending the two are the same thing is bad faith.
JoAnne, I’m not saying competition is bad. I’m very competitive. But treating sexual intercourse as a game where two people enter and only one can “win” is just a bad model. Competition is a fine model for games, bad for sex. This isn’t about running around tagging things as good or bad. By painting it as a good/bad thing, you’re forcing yourself to make strange statements like competition doesn’t require losers, and it really does. That’s fine. It’s fine for a basketball team to get dominated in a competition. It’s bad in sex. See, simple?
But if you want to really get stuck in confusing issues, consider this—sex is non-competitive playtime, but within the rules of the game, you can dominance/submission games without having winners or losers. BDSM reminds me of a grown-up version of cops and robbers, where you ape the roles of dominance and competition, but you’re not actually dominating, but playing out agreed-upon and completely consensual roles.
Actually, the part that’s really annoying me is that I see a definite absence of logic.
I understand that procedurally the judge looks at the prosecution and defenses motions separately*, but I can’t disconnect the allowing of “had sex” with the disallowing of “rape” because the end result is one where the defendant is deemed credible enough to summarize the events but the accuser is not. Choosing such an action in the name of being “just” makes my head explode. As does the fact that the judge had a chance to put both witnesses back on equal footing and did not do so.
A decision that is tied directly into culture, because - considering how bad the headline for banning the word “rape” at a rape trial reads - can you imagine how people would react to banning “had sex” at a rape trial?
This is why, although I understand the need for procedural rules on the one hand, on the other hand there does seem to need to be more forces encouraging people to stop missing the forest for the trees. Choices that seem logical when looked at only under a microscope are not necessarily logical when you take a step back.
Furthermore, even in states where “rape” is a legal term, banning within a courtroom the only commonly used word that means “to perpetrate nonconsensual sexual acts” because the legal system has appropriated it seems to very much epitomize the concept “can’t win for losing.” It may be legal - it may even be the only legal choice available - but it’s not fair, right, just or logical.
*although, doesn’t the judge have the discretion to disallow things even if neither lawyer asked for it?
Simply; This post is brilliant. I think it may be your duty to make publish it in a more high profile environment (ie- Fox News).
DAS, yes, it’s very difficult to get a rape conviction against a good-looking man, especially if you’re a plain woman. “He’s so handsome he doesn’t need to rape” along with “She should be grateful someone that good-looking wants to have sex with her” are myths very much in use in Swedish rape trials. My review of the source.
Actually, I do feel that the labels “conservative-sexist model� and “liberal-feminist model� are inaccurate because so many–like, most–men who claim to be liberal seem to subscribe to the former.
You can say that again.
I really liked the comparison between basketball and music, though: I’m going to share that.
Life during War-time II: Sex, rape, basketball…
This post/thread says it all, so, rather unusually for this weblog, I’ll let the quotes speak for themselves:
The conservative-sexist metaphorical framework of sex is Sex As Conquest. Â… Sometimes the struggle over the pussy is between men (ex: jok…
Amanda wrote:
I don’t think sexual intercourse is an appropriate place for winners and losers, either. It’s definitely not the place for a zero-sum game between men and women.
I’m not the one who paints it that way. I’m saying I’ve seen it painted that way.
Actually I don’t think it’s “fine” for a basketball team to get dominated in the sense of the other team calling them a bunch of losers or failures.
Domination is about one person lording it over another, not one performance exceeding another’s. It’s personal. This is inappropriate. It’s known as poor sportsmanship and being a sore winner.
But back to the main point. I don’t think a negative view of competition in general is absent in the comments on this post.
Maybe I misread unrelatedwaffle who wrote: “I think this really gets at the heart of one of conservatism’s main hang-ups. Everything is a competition….Framing every worthwhile pursuit in life as a chance to step on other people to get yours is just asking to feel inadequate for the rest of your life.”
I agree with the first part, that it’s pointless and ultimately self-destroying to make everything a competition. But I don’t think that competition is the same as stepping on other people to get yours.
Competition, good in appropriate places. Domination, bad in pretty much every place. See, simple?
I think “male-conqueror model” is an excellent name, and in fact the things that have been raised as problems with it are just the opposite - they are insights into the model that the name affords. If you subscribe to this model, then gay men fit in just fine - obviously one party “plays the man” and the other “plays the woman”. If one man rapes another, then the rapist is taking the man’s role while making a woman out of the victim. Just try it - take these cases that obviously don’t fit the model, shoehorn them in hard, and you’re looking at that kind of sex through the eyes of a large swathe of society.
I think “male-conqueror model” is an excellent name, and in fact the things that have been raised as problems with it are just the opposite - they are insights into the model that the name affords. If you subscribe to this model, then gay men fit in just fine - obviously one party “plays the man” and the other “plays the woman”. If one man rapes another, then the rapist is taking the man’s role while making a woman out of the victim. Just try it - take these cases that obviously don’t fit the model, shoehorn them in hard, and you’re looking at that kind of sex through the eyes of a large swathe of society.