Rape in the News and Our Love of the Outrage Narrative
A sad story out of California has been making the rounds since yesterday: the overturning, on appeal, of the conviction of a man who snuck into a woman’s room while she was sleeping, had sex with her pretending to be her boyfriend, and then left when she woke up, pushed him away, and began to cry and yell.
I think everyone can agree that this was rape. Two different ways in one act, even — first because she was asleep (i.e., not consenting), and second because, when she woke, she initially thought she was having sex with her boyfriend (i.e., not informed consent even if she had given it).
That duality is actually what the defense took advantage of on appeals: they argued that it was unclear whether the initial jury had found the defendant guilty because they believed the former was rape, or the latter, or both, and California law (passed in 1872 and unmodified since) only considers pretending to be another person to coerce sex to be rape if it is done by someone who is not a woman’s husband.
Since the defendant is unmarried, the defense argued, sex-by-deceit would not, under California law, constitute rape. They requested a retrial on the basis that the jury’s decision might have improperly taken the deceit into account in their verdict, and the panel of judges agreed.
So cue the outrage (and there is plenty of it) about how the court system is constantly failing and these awful conservative judges are unsympathetic to rape victims, should be run out of town on a rail, etc. Which is natural — but misses the point. Several points, actually, all of which are salient but all of which also make for a less heart-warming rage porn story to fuel your righteous indignation:
- First, and probably most-overlooked by everyone that seems to have an opinion on the story, the defendant wasn’t acquitted. He was granted a retrial in front of a different jury. That jury will almost certainly still find him guilty, on the basis that having sex with a sleeping or unconscious person is explicitly rape under California law.
- Second, the panel’s opinion makes it clear that they are not happy about this decision, but agree on the legal conclusion. It was a badly-written law that left a loophole, and should have been updated generations ago — but it is the law on the books. The judges’ opinion is larded with phrases like “because of historical anomalies in the law and the statutory definition of rape” and “We reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of the crime of rape of an unconscious person under section 261, subdivision (a)(4),” none of which even hint at personal sympathy or leniency toward the defendant.
- Third, the defendant in question already served his time. As gross as it is that he could potentially be found “not guilty” and have his record altered, he has already been punished with the full force of law. Not harshly enough, perhaps (only three years in prison), but that was his sentence and he served it. This doesn’t even represent a chance to get off scot-free, and if it did it would still be a slim chance (see the first point).
I realize that those are complicating factors in the deliciously provoking narrative of “the courts always protect rapists” — which is a narrative played out in plenty of horrible stories, if you want to go find them and be angry about them. There really are shameful acquittals and deeply offensive judicial opinions out there, all the time.
But the fact is that this guy was found guilty by a jury of his peers, who didn’t seem to have any trouble agreeing that what he did was, in fact, rape. The only people that have actively tried to argue that it was anything but rape are his defense lawyers.
Passively complicit, we could argue, are the California legislators of 1872, who should have written protection for unmarried women into the law in the first place — though it was progressive for its time, and written deliberately to counter the precedent set by contemporary English courts, which had concluded that pretending to be someone else for purposes of obtaining consent wasn’t rape, so long as the consent was given. And we can certainly be disappointed in 130-odd years of legislatures that never considered updating the language.
But it’s not really the story of the complacent, patriarchal rape culture it’s being made out to be, and I think we all ought to examine our outrage a little bit. Are we actually looking at cultural problems and ways to change them when we read stories like these? Or do we just like getting angry about sad things that didn’t hurt us personally? The frantic urge to blame the judge, the courts, etc. makes me think it’s more the latter for a lot of people.
Anger can be good, used constructively, but unthinking anger that manifests itself as a scolding comment on a news article or a sad Facebook post and nothing more is masturbatory at best. There are real things this story could encourage us to do (start by checking your own state’s consent laws, for example, and if it has similarly archaic language and assumptions, write your legislators to get them on that shit — forward them the article as a spur).
Just be angry about the right thing, even when it doesn’t fit the righteously-indignant narrative so lovingly constructed for us by outrage-porn “news” sites like Jezebel and the Huffington Post.