“Rape is Rape” – or is it?

Eddie Shah has caused outrage by daring to call into question the politically correct and widely accepted mantra that “Rape is Rape”. The same outrage that we heard when Ken Clarke said virtually the same thing back in May 2011.

A key benefit of free speech and internet anonymity is that you can objectively analyse such contentious issues, and even dare to reach an unpopular conclusion, without running the risk of being run out of town by the outraged/offended mob.

So is it true that “Rape is Rape”?
(Including its inferred conclusion, that all rapists should be treated equally severely)

Because this is an issue that arouses such mind-fogging passions, let’s start by examining what we mean generally by the statement “Something is Something”.

We might mean that the two things are identical i.e.

2 is 2 or, as Ayn Rand might prefer  A is A.

In this tautological sense the statement “rape is rape” is true, but it tells us nothing about how we should deal with it. Not only is it true by this logic that “rape=rape”, it is also true that “crime=crime” and that “human action=human action”.

Nobody would seriously suggest that all criminals should be dealt with the same because “crime = crime” (with the possible exception of Draco).

The person who parks on a double yellow line and the serial killer are clearly morally different and deserving of different punishments in any rational legal system. Taking it even further if we must treat all human actions the same because “human action = human action” then the murderer and the life-saver are morally no different!

Clearly this cannot be what advocates of the doctrine “Rape = Rape” mean.

The other sense that we use “Something is Something” statements is slightly more subtle and means;

An entity is a member of a group (and therefore we can infer it has all the properties that define the group.)

This is the meaning that I believe the “Rape is Rape” advocates have in mind. What they are trying to articulate is the following argument:

Premise 1: This specific rape is a member of the group of actions called rape

Premise 2: It is a defining characteristic of the group of actions called rape that they are all terrible crimes

Premise 3: All terrible crimes should be punished equally severely

Therefore:

Conclusion: This rape should be punished equally severely with all other rapes

However in this argument, premise 2 is demonstrably false.

The definition of rape does not explicitly require the attribute “terrible crime”, the definition is simply: Sexual penetration without legal consent. This covers a wide range of different circumstances, some of which are clearly terrible crimes, other acts caught by the definition are not particularly terrible at all.

At the most terrible end of the spectrum you have the stranger who snatches and aggressively penetrates a woman, overpowering her physical resistance with violence.
(What most people are thinking of when they use the term “rape” in everyday language. What Ken Clarke referred to as “serious rape” and what Eddy Shah termed “Rape” Rape)

At the least terrible end of the spectrum you have the emotionally mature 15 year (and 364 days) old girl, engaged in enthusiastic and willing first time sex her with her 16 year old, long term boyfriend.

Or

The horny husband who lovingly wakes his highly sexually demanding wife with gentle penetration, without waking her up to gain explicit consent first.

(What Eddy Shah calls “Technical Rapes”)

If you really think these acts are equally terrible crimes then your moral compass must have been hijacked by the Feminazi movement.

I have deliberately dealt with the two extreme ends of the spectrum to demonstrate the logical error as clearly as possible, but many real cases fall somewhere in the middle of the spectrum. Certainly more terrible than a teenagers assignation, but also less terrible than brutal abduction and violent forced sex by a stranger:

Examples quoted by Clark and Shah were date rape, the circumstances of which are not always clear cut, or a 15 year old girl (40% of who are already sexually active) who may look like she is in her 20’s,  lies about her age, and willingly engages in sex with an older celebrity.

With such a wide range of different circumstances caught by the legal definition of rape, it makes no more sense to treat all rapes exactly the same as it does to treat all crimes exactly the same.

To be crystal clear to those in the outraged/offended mob, who cannot follow a reasoned argument, but are never-the-less rushing to put on their white hooded cloaks and tweet death threats to me:

I am not for one moment suggesting that legal rape is not usually a terrible crime and deserving of the severest punishment, nor am I saying that cases that fall in the middle of the severity spectrum are not serious or that those convicted should not be be punished.

I am simply saying that there is no logical case for treating all actions legally defined as rape the same, without reference to the specific circumstances of the case. The worst offenders should get the worst punishments, the less worse offenders a less worse punishment.

People who blindly support the “Rape is Rape” position are probably committing the fallacy of equivocation and conflating their mental image of rape (violent forced sex by a stranger) with the legal definition of rape (any sexual penetration without prior legal consent).

In reality, the argument (and its unspoken implication that all rapists should be treated the same) has no rational foundation or logical underpinning.

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  • I think you are a wee bit pervy, quite honestly, to argue thus. Just a view

    • I think you are a little prudish to think so. I assume you have no rational argument to counter the position taken ?

  • The domination of an adult or child, of either sex, by means of rape is aberrant behaviour. Most people control such urges. You seem to be arguing that the aberrant behaviour is normal. I have left my comfort zone by commenting on this issue on your blog. As you know, I have followed you on Twitter for a long time and have said little or nothing to you. But I could not ignore this blog. You call my comment ‘a little prudish’. All I can say is that I hope you and I don’t meet on a dark night. Your views are, frankly, scary.

    • I can see that you are suffering from a mind-fogging emotional response. Please explain how you can possibly interpet the above argument to be “Arguing that the aberrant behaviour is normal” If I point out that killing 10 people is morally worse than killing one person do you think that I am concluding that murdering 1 person is Normal or acceptable?

      My point is simply that there are a variety of different behaviours that fall into the legal definition of rape, you cannot lump them all together and treat them as equally bad, you need to consider the circumstances of the specific case and not adopt an irrational “rape is rape” heuristic.

  • That very last remark of mine was out of order. My apologies.

    • No apology required, you are entitled to be robust in putting your point. I believe in free speech so I won’t be calling the police to arrest you for the newly fashionable crime of “causing offence” 😉

  • I imagine, irrationally, that you are not a Guardian reader … but this article might, nevertheless, interest you – discussing the history of the Law and rape http://www.theguardian.com/lifeandstyle/2013/aug/13/rape-defined-sexual-crime-history

    • Thank you, an interesting article, but I don’t think it challenges the points I make.

  • grumpylondoner

    An interesting and thought-provoking subject,boldly posted.Stand by for the (inevitable) flak.

  • Pingback: In Defence of “Rape Porn” | Libertarian View()

  • AmyStephen

    Just for a point of clarification, is it your position that confirming a partner’s age, be it a female or male partner, prior to engaging in sexual intercourse, should not be a requirement? Meaning, provided the partner *appears to be* of the age of consent, that should be adequate?

    Or, are you saying that the crime of sexual intercourse with an underage minor is more or less serious based upon what a jury of your peers might consider appears to be “of legal age?” If that is your point, then wouldn’t it follow that sexual intercourse with an adult who appeared to look like a minor then be illegal?

    Or, are you saying that 15 is too young of an age since according to your resources 40% of those individuals are already sexually active (if true, likely with others their ag) and therefore they have forfeited their right for protection under the law and should then be made available to you for your sexual desires? If so, at what point do you believe society should not cross the line and should always consider such aged individuals as children, and therefore offer protection?

    • My view is that “confirming a partners age” can mean many things. Is asking enough? Having a credit card (which might not be theirs)? Photo ID, which may be fake, used to gain access to clubs. Is it a requirement to see a passport and birth certificate ? Must this be done with a woman who looks 25?

      My whole point is that juries and judges should be allowed to take all the facts into account when determining guilt and passing sentence.

      I do think it should be down to the jury to determine what a reasonable person would estimate the age of the victim to be. This would not entail making it illegal to have sex with older women who look younger. If an older woman consents it is not legally rape so there are no mitigating or aggravating circumstances,to consider

      Age alone without reference to circumstances is a fairly blunt instrument. I do not think that two 15 year olds in a voluntary sexual relationship should be considered rape. Many countries have different ages of consent for sex with people of a similar age and people who are considerably older. That seems quite sensible to me.

      Legally you have to have a cut off, but people mature at different rates and some 15 year olds will be more mature than some 17 year olds. If the age of the victim is close to the legal cut off then their maturity and actions should be a factor in assessing the seriousness of the crime.

      In essence I am saying it should be considered a far more serious crime for a fifty year old man to violently force himself on a 12 year old girl than if a 23 year old premier league footballer has willing sex with a woman he meets at a club, who claims to be 18 but turns out to be 15!

      • AmyStephen

        Remember, protection is not just for women, all children are protected, not entirely certain why you continue to bring it back to a gender-specific issue.

        It might be inconvenient to verify the age of the individual you are about to engage in the most intimate of relations, but in balance, I’m okay with requiring the same amount of effort we require as a society to determine if someone is legally able to purchase alcohol or use a credit card. In balance, protecting children seems a good bargain.

        Remember, a child may be motivated and able to perform sexual acts without threat or restraint, but that does not mean they are capable of reaching that decision in their best interest. That’s why we have the laws.

        And again, that is why I asked if you felt perhaps 15 is too old, a question you really did not answer. In the end, we must draw the line at what we define to be “underage.”

        Unless you have a clear measurement other than age that is practical and enforceable, we have no choice but to define the line in that manner and enforce it. Those who choose to have sex with people they do not know run all kinds of risk one of which could be rape since rape is having sex with someone without their consent. Children cannot consent so sex with children is rape.

        Children must be protected. In my opinion, that’s not negotiable of a civil society.

        • Larry Garfield

          Falling back on “for the children” tends to weaken, not strengthen, one’s argument. It’s overplayed.

          Consider the following scenario:

          Given the legal age of consent in a jurisdiction is 18. (Relevant only in relation to the following examples.)

          Scenario 1: Person A age 19 has mutually consensual sex with Person B age 17, after the encounter was initiated by Person B and when challenged Person B presented a false ID with a listed age of 18.

          Scenario 2: Person C age 19 forces Person D age 18 into a sexual encounter through threat of violence using a lethal weapon.

          Do you believe Persons A and C deserve equal jail time?

          Note: Whether or not 18 is an “appropriate” age of consent for this jurisdiction is not relevant. Also note that no gender was specified for any of the persons involved, as that is also not relevant.

          • AmyStephen

            Protecting children _does_ matter. Not sure what you mean by “for the children” since typically that’s a phrase used as an excuse to keep a bad marriage together. Are you suggesting that children should be able to consent to sexual activity and therefore the only form of illegal child sex would be absent their consent?

            In the US most states observe an age of 16 for the age of consent. Rarely is 18 used anymore, and doubtful many close to that age would be considered victims of rape unless their parents pushed the issue. In most states, consent can be provided by the parent of the minor. Most states have a “close-in age” factor that is used to measure the severity of the crime.

            Maybe it doesn’t seem fair but I can’t think of another way we can protect children from those who would abuse them sexually. Children are also not able to enter into contracts, same thinking holds, they are not considered capable of reaching a decision in their best interest and are not on an equal playing field with others who would engage in a contract with them.

            Jail time is typically associated with the crime. Rape is no different than assault or robbery, for example, there are “degrees” of the crime. Crimes considered less harmful might include shoplifting, more harmful, armed robbery. Same is true for rape. A 19-year old adult who has sex with an 17 year old child (as determined by the laws in the area the sexual act occurred) would be considered less heinous than force-able rape with a weapon where the victim was killed.

          • Larry Garfield

            I didn’t mean anything about marriage. But “to keep kids safe” is the battle cry of every politician looking for cover for infringing on free-speech of the past 20 years. As a rhetorical tool it has joined a long line of terms that no longer has useful non-inflamatory meaning, which is unfortunate.

            But it sounds like you agree with the OP, then, that culpability and punitive measures in cases of rape or statutory rape (as legally defined) should be contextual, and depend on the circumstances of the act in question. (Eg, relative age difference, whether it was consensual-but-under-age or entirely non-consensual, whether either party deliberately mislead the other, etc.)

            That is, not all rape is created equal, but the circumstances determine how severe an offense it is.

          • AmyStephen

            Infringing privacy “to protect children from sexual predators” when Hollywood is standing behind the politician, pockets full of money, is completely unrelated. In this case, we are indeed talking about protecting children from sexual predators and it really does matter (at least to me).

            No, I don’t agree with the author. First, rape is a clear legal term which means sex without consent. Rape is rape. Depending on the circumstances, all of the cases mentioned could be rape. Even marriage does not mean automatic consent (although some couples might agree to sex while sleeping).

            The insinuation is that all have the same punishment and such is not the case in any “free” country that I know of. The linked article above and the reference to Feminazi movement do nothing to articulate the argument clearly. If the point is different types of rape should result in different punishments then good, that’s how laws are typically written.

            When writing about something as sensitive as rape, careful consideration to the point and clear references that support ones position are in order.

          • I think you should try reading the article above again, perhaps more slowly. The entire argument is about the fact that the circumstances of a rape should determine the severity of the crime. The following extract could not make that more clear:

            “With such a wide range of different circumstances caught by the legal definition of rape, it makes no more sense to treat all rapes exactly the same as it does to treat all crimes exactly the same.

            To be crystal clear to those in the outraged/offended mob, who cannot follow a reasoned argument, but are never-the-less rushing to put on their white hooded cloaks and tweet death threats to me:

            I am not for one moment suggesting that legal rape is not usually a terrible crime and deserving of the severest punishment, nor am I saying that cases that fall in the middle of the severity spectrum are not serious or that those convicted should not be be punished.

            I am simply saying that there is no logical case for treating all actions legally defined as rape the same, without reference to the specific circumstances of the case. The worst offenders should get the worst punishments, the less worse offenders a less worse punishment.”

          • AmyStephen

            “I think you should try reading the article above again, perhaps more slowly.”

            Done.

          • Your prejudices cloud what you read so much you see things that are not there.

            The article I linked to which you refer to as the “defence of rape” site. (Which actually is a site about miscarriages of justice caused by false rape allegations) is not meant to prove that sex by two fifteen year olds is considered rape in the UK. If you require proof of that statement you can find it here:

            http://www.fpa.org.uk/factsheets/law-on-sex

            The article in question was to show that 17 year old boys in the US are prosecuted for sex with their girlfriends just short of 16.

            Yes she initially claimed rape, but then admitted she had consented to the sex. The police prosecuted anyway, read the extracts of the article below:

            “She later admitted lying, saying she made up the false report because she was scared.”

            it goes on:

            “Hadn’t he suffered enough for doing what teenage boys do on a regular basis every single day of the week? The law enforcement apparatus didn’t think so. Damon was arrested and charged with misdemeanor sexual assault, which carried up to a year behind bars, because the girl was not 16, the age of consent.”

            Please read slowly and note: “Because the girl was not 16, the age of consent”, NOT “because she was still alleging rape”

            It is very hard to debate rationally with someone who lives in a “Humpty Dumpty” parallel universe and makes words mean whatever she wants them to mean.

            In essence you agree with the only point I am making, which is that the punishment for rape should match the circumstances and that all rapists are not equally evil.

            Everything else you are arguing about is entirely in your head, fuelled apparently by misandry.

      • AmyStephen

        I apologize for the double-post but I do want to clear up a misconception when you said “two 15 year olds in a voluntary sexual relationship should be considered rape.”

        The law prohibits an adult from having sex with a child. I’m not familiar with UK law, but in the US although it can vary from state to state, I can’t think of any state where it is illegal for two underage children to engage in consensual sex. Forced sex would be a different matter, even for underage attackers, it would be considered rape since consent was not present.

        Bottom line, be familiar with the law. In most jurisdictions, ignorance (or good debating skill) will not be accepted as an excuse for rape, even if you believe the definition of rape is wrong, most officials will go by what is on the books.

        • In the Uk it would be rape by the 15 year old boy even with the consent of the 15 year old girl. What about this case in the US where the boy was 17 and the girl a few months short of 16.
          http://falserapesociety.blogspot.co.uk/2010/08/how-many-ways-can-falsely-accused.html

          • AmyStephen

            Sir, with respect, assuming the article you linked was accurate, the boy was found guilty of forced sex (rape), not consensual sex. If your point is the boy was wrongly convicted, then, if such was the case, I share your outrage.

            But, it is inaccurate to make the statement that you made. He was *not* found guilty of rape having consent of his partner. He was found guilty of rape since the court held he did not have such consent. This is consistent with my comments.

            Again, you try to make this a gender-specific issue which I find confusing. Protection for children is extended to all, it is not limited to gender.

          • She had consented, that is the point. The following is a direct quote from the article:

            “It was his first time. “[Having sex is] something that she brought up before I did, so I thought it was something she wanted to do,” said Damon. In fact, she later admitted it was entirely consensual. But it was still illegal — for him alone, of course — because she wasn’t yet 16″

          • AmyStephen

            Please continue reading your linked article. The very next paragraph says: “How was Damon victimized? (1) Damon was victimized by his 15-1/2-year-old girlfriend, who lied that he raped her because she feared getting in trouble for having consensual sex; ”

            Again, Damon was not convicted of having consensual sex. He was accused and convicted of forcing sex on (raping) his girlfriend.

            Therefore, your claim “In the Uk it would be rape by the 15 year old boy even with the consent of the 15 year old girl” is not proven by that resource.

  • Commenting

    The legal definition of rape must be, by necessity, a blunt instrument.

    You’re missing the point of the “rape is rape” statement by applying it to a legal term which is defined in a particular way for a particular reason, i.e., to work within a court of law.

    The term “rape is rape” is not a legal term. Conflating it with legal terminology is not logical or helpful.

    For anyone (male or female) who has been raped, insofar as they understand it that way (penetration through force, coercion, lack of consciousness, lack of ability to consent), then yes, rape is rape.