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History: from Rape to Sexual Assault

One of the most prevalent misconceptions about sexual violence is that it is sexual. The big lie is that the perpetrator couldn't control himself, he found her so attractive that he had to...etc. This suggested that rape was an outgrowth of some instinctual genetic imperative. Individual men were seen to have no control of their individual urges. The notion that rape is sexual (biologically-based, hardwired) and not a misuse of power discounts and denies the perceptions of survivors who did not think of their experiences as sex (or sex gone slightly awry) and is slander to those males that do not assault. Activists rightly identified the reality of the actions of individuals existing within the context of a rape culture. Individual perpetrators are responsible for their own behavior.

For thousands of years, previous to the early 1970's, rape was the sole "sex crime" recognized in law. It meant forced intercourse, there had to be some penetration of a vagina by a penis. Historically, men wrote the law, enforced the law, controlled the law. Most of our present-day laws are based on Mosaic Law (Moses), the Code of Hammurabi, etc. There was language in English Common Law that put into law men's fear that women would lie about having been raped. There developed out of this fear, a system of proofs to "guard" against women lying. To prove that she didn't want this "sex" forced upon her she had to struggle, and to prove that she had struggled, she had to be physically damaged (torn, bruised, beaten, etc.) in addition to the rape. The violation of the rape was not counted. It only counted as a "real rape" if the victim was additionally "damaged."

Two ugly things follow from this:

1) The rape itself was discounted. There was little recognition of the pain and torment caused by these forced acts of intercourse. Most people misunderstood rape as sex; how could there be "too much" sex they wondered.

2) If the victim had no other damage (besides the rape itself) in most instances the rape was not prosecuted.

A retired Chicago Police Officer (now a professor of criminology) recalled that when he was a rookie in the early 60's, he was told in training that "any woman who came to the police station to report that she had been raped was a prostitute who hadn't been paid!" This wasn't that long ago and that notion is not dead yet.

Has anyone heard the phrase "She got herself pregnant?" This was said in the past, as if it were something that she had "done" on her own. Has anyone thought about the "pseudo-science" of this assertion? (If someone had "gotten herself pregnant" she should be granted a Nobel Prize, not castigated.) In the same way, it was believed that "women got themselves raped." Read the newspaper coverage of an alleged rape. To this day, it will read something like, "Last night a woman allegedly was raped..." It won't read, "Last night a man allegedly raped a woman..." Why do you think rape has been covered this way, I ask students?

One of the most prevalent misconceptions about sexual violence is that it is sexual. The big lie was that the perpetrator couldn't control himself, he found her "so attractive" that he had to...etc. This suggested that rape was an outgrowth of some instinctual genetic imperative. The antiquated notion was that rape is sexual (biologically-based, hardwired). Individual men were represented as having no control of their individual urges. Rape is a misuse of power; insisting otherwise discounts and denies the perceptions of survivors. No one who has been raped thinks of their experience as sex (or even sex gone slightly awry). The logical extension of this notion is that all men will rape or have raped. This is obviously untrue and is slanderous to those males that do not assault. All males do not assault, but some do. Individual perpetrators are responsible for their own behavior. Whether they assault out of malice or ignorance (or both) is probably of little or no consequence to their victim(s). Irrelevant to the victim, his intent is of critical import to the perpetrator if he chooses to try to stop. But the behavior of individuals does not exist in a vacuum, the behavior of individuals exists within a rape culture. "Rape culture" is a phrase used initially by feminists to describe our culture where rape and other sexual abuses are so commonplace.

The shameful history of identifying rape as the only "sexual assault" served to discount the majority of survivors. I remind students, that the problem isn't sex, the problem is sexual assault/rape. Plainly put, forced intercourse turns a penis into a weapon.

These assaults were not counted in the past:

• The definition of forced intercourse with some penile penetration of a vagina discounted the female survivors that had been victimized in other ways (anally, orally, etc.)

• Some perpetrators did (and some still do) use objects other than their penises (bottles, baseball bats, broomsticks, etc.) (Remember, this is not about sex, this is about hate.)

• All states exempted rape in marriage from prosecution. There was language in the laws in each state of the US that exempted a husband or co-habitant from prosecution for raping his wife or partner. Some states extended this exemption to dating couples thus legalizing date rape.

• The extent of the prevalence of sexual assaults committed on children was underestimated and most perpetrators were not pursued. (This continues through today.)

• Males were the only possible perpetrators recognized by statute and only females could legally be victims.

• The limiting definition of forced intercourse with some penile penetration of a vagina obviously discounted all male victims of incest or other sexual assault. All the years that men controlled the law and there was no recognition of a problem that has existed for as long as the rape of women. We can assume the gross numbers to be smaller, but that does not excuse men's historical unwillingness to confront the assault of females or of males.

• There was no language codifying the concept of consent.

The effect of the pre-1970's rape laws was to essentially make rape perpetrated by a stranger the only rape that might be prosecuted. Then and now, the vast majority of perpetrators of incest and other sexual assaults were not strangers, they were people known to the victims.

Twenty-five to thirty years ago, some women (feminists) came together and started talking and listening to each other about their life experiences. Many described coercive sexual acts they had experienced. They came to realize that the stereotypes of rape that they had grown up with did not describe their experiences. "That couldn't be rape, it was my husband." "That couldn't be rape, it was my boyfriend." "That couldn't be rape, it was my professor." "That couldn't be rape, it was my priest." "That couldn't be rape, it was my female lover." There has been much demonization of these women. You would think the phrase "feminist" was a dirty word, considering how it was and is covered in the news. These women were the first to recognize how many women, children and men were being assaulted. They went to city councils, county government, state legislatures, and the federal government to find anyone who seemed to care and want to do something about the epidemic of rape. They put pressure on the men in these governmental bodies and fought for years to get better laws. The laws in all states are much better now as a result of their efforts. In some states, the word "rape" doesn't appear in law anymore. The phrase "sexual assault" has become a word used to describe a wider range of abusive acts. One of the improvements in the law that is worth mentioning is that now, in every state in the United States, due to the work of these so-called "man-hating feminists" boys and men are protected by these laws as well as girls and women. We all owe these women a great debt of gratitude.

Consent is what separates sex from sexual assault. "Consent means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent...Submission under the influence of fear shall not constitute consent." Even if we can get away with it, even if the victim has not identified it as sexual assault, even if she or he did not experience it as sexual assault, consent was not established and its absence makes sexual assault a definite possibility. The key is whether the freedom to choose is always present, whether choosing to change one's mind or to stop at any point. Having this choice represents our mutual right to feel safe and marks the absence of sexual assault. It is a process that continually recognizes each person's autonomy and participation in the decision-making. There is a commonly held perception that "her mouth is saying no, but her eyes are saying yes" and therefore women want to be forced. The only real consent is established by asking for and discussing sexual contact prior to the act. Just because she didn't say "no" doesn't mean "yes." It is better to feel the stab of rejection than to find out someone feels they have been raped. We need to reject the notion that real men don't ask. We can learn to communicate honestly.

Most males that commit sexual assault do not do time in prison. Statistically, the false report is a rare occurrence. The real danger to us is that we will do something and our partner will feel assaulted. If someone feels assaulted, then they have been assaulted. We cannot "unassault" her. It is a rude shock that we cannot interpret her experience for her, and have the last word on how she feels about what happened. We are entitled to our perceptions, but it is not under our control to decide for our partner whether she/he has been sexually assaulted.

Many males set themselves up to commit a sexual assault by: 1) not attempting to find out in advance what their potential partner wants and 2) not saying what they want ("Me ask? Hell no, she might say ‘no.'") ("What should I do, card women that I'm going to have sex with?") "Yes, if you don't want to have sex with someone underage and want to protect yourself." Men's model has been to act first and then think. This insures the reactive need for a defensive posture later justifying our acts or absolute denial neither a powerful nor moral place to negotiate from.

Does the absence of "no" = "yes?" Seemingly so to one defense attorney. "Well, she didn't say no." This was his comment about the "sex" his client had inflicted upon a female who was passed-out at the time. Passed-out (and therefore temporarily unable to speak) somehow equals consent? There wasn't (couldn't have been) verbal consent. Mutuality is impossible with someone who is passed-out, extremely inebriated, asleep, a child, mentally-incapacitated. If we males aren't trying not to assault, we may set ourselves up to commit assault. It shouldn't be someone else's role to (attempt to) set our limits. Many females (and some males) have said, cried, begged, shouted "no," and been ignored. A friend suggests an easy adage to remember. "Good sex has elements of give and take. Rape is just take."

JOSEPH WEINBERG & ASSOCIATES © 1994