Sunday, September 25, 2011

Op-ed: Sometimes Rape, Sometimes Less: Consent, Prudence, and Mitigation

The Old Philosopher*

[FRS Editor: The views expressed in this op-ed are the guest author's.]

I am not a lawyer, nor have I been a law-student. I do notice that legal writing and argument makes much use of analogy and metaphor—more than do biological and social science, where I have more experience. Changes in sexual morality and the laws governing sexual conduct have been great in the past 50 years; and I suspect that many of the analogies and metaphors on which the laws of “sexual imposition” are based, are no longer as valid as they might have been when dress was more modest and virginity at marriage, much more common. (For that matter, marriage itself was more common, and different, 50 years ago—which is a related subject on which I've recently written.)

The following metaphor better fits modern than mid-20th Century sexual customs—because most modern adults are sexually experienced—and the main difference is that 50 years ago, many more women and rather many more men would have clearly indicated limits if they even “got to the first kiss”with a recent acquaintance. The implied consent in “progress toward coitus” may merit repetition by others. Such repetition gives these metaphors weight when argued at law.

Once upon a time, rape was a capital crime: Men were put to death for rape. The public image of rape as a crime punished by death, was of a rapist who was uncaring to the point of evil and a victim who was totally unwilling, resisting as completely as possible. Such crimes are indeed horrible and repellent. They make up a small fraction of the events that today can be called “rape”.

Few indeed are the men who would grab some modestly dressed woman who they don't even know by name, take her by force to some secluded place whether indoors or out, and impose intercourse on her against her total resistance. Comparably few are the men who would drug some modestly dressed woman who shows no sexual interest in them, and impose intercourse while the drug has rendered her unable to resist.

Also few are the women who would drug some modestly dressed man who shows no sexual interest in them, and impose intercourse while the drug has rendered him unable to resist. (There is some cultural hint, in sayings such as “poison is a woman's weapon”, that more women than men might be disposed to commit “drug rape”; but no real empirical evidence either way that i know-of. And it is imaginable that a woman might impose rape by force rather than drugs, but in general women have less average large-muscle strength and grace, so on average men are more capable of “forcible rape” than women .)

If the above are the stereotypical images of “real rape”, and they are not the commonest examples of what gets referred to as 'rape', perhaps there should be more ways to refer to sexual imposition than just “rape”. Though some of you reading this can guess what comes next, it is worth reviewing what the vulgar tongue calls “finishing what we started”, “giving a cock-teaser what she was asking for”, and “getting drunk and doing what I/we wouldn't have done sober”, including the possibility that the man rather than the woman was the one who decided not to go all the way and got over-ruled.

Here's a classic stereotypical summary: “She met him at a dance, took him to an after-party, teased him up, and said 'No' when it came to the action. He wouldn't take no for an answer.” This indicates that the woman was quite far from modest and that short of intercourse, she took much of the initiative. “He” accepted her initiative and then required her to “follow through”. Many men who would regard the rape of a modest innocent stranger as evil, having been “teased up”, would then regard intercourse as “finishing what we started”, or “giving a cock teaser what she was asking for”.

“Finishing what a cock teaser started” is not something we should bless—a sudden change of attitude deserves some respect, though it's also reasonable to stop trusting people who change their attitudes like that. But failure to conform to a sudden change of attitude, is not equal to the forcible rape of a modest and completely unwilling stranger. Erotic play is how the process that leads to intercourse, normally begins. People who want to be erotically playful but stop short of intercourse, should say “how far they want to go”, clearly, before the first kiss—or if the first kiss was unexpectedly spontaneous, before the fourth.

Consider a non-sexual analogy: We should not equate careless driving which results in an accident injuring a passenger with the cold-blooded premeditated assault of an innocent victim—and the law does not. Careless driving which results in an accident causing injury to a passenger is likely to have some such legal name as “negligence causing bodily harm”. If the careless driving was done by someone who was visibly drunk, the passengers are likely to be regarded as complicit because they consented to ride with a visibly impaired driver.

Often, car passengers who have been partying, and the erotically flirtatious, are going to forget to take those prudent steps. If they do take the prudent steps, they may find prudence to “be a deal-killer”. The driver who may or may not be legally too drunk, is somewhat likely to say “so call a f...... taxi”. The [wo]man who is asked to specify how far the flirtatious eroticism is to go, may well respond “Nowhere.”

To add one more metaphor, the only place to skate at all may be on thin ice.

Having “set the scene”, complete with difficulties and mixed motives, let us reflect on the implications of consent “short of intercourse”, and of knowingly inciting sexual arousal. One important part of the context of any evaluation of sexual assault or even harassment, is the normal course of “sexual relations that go all the way”. Few couples suddenly copulate without “foreplay”. Nearly all mutually consenting couples go through a sequence of increasingly intimate pleasuring, with intercourse being the consummation of the sequence. The kiss isn't the start, either, it's Stage Three or later.

It may be helpful to draw an analogy between a sexual encounter and neither driving nor skating, but a strenuous day-hike, perhaps to the top of a small mountain: Both “sex” and light-climbing require some vigor and fitness to be at their best, both can be called-off before the summit is reached, and both have a usual sequence that usually “goes all the way”. The hiking starts with dressing appropriately (high heels might do to start a sexual encounter but not to start a serious hike), perhaps carrying a rain jacket, a first-aid kit, a canteen of water, perhaps a snack. Serious hikers usually walk with longer, faster strides than “strollers”, and a different posture.

The erotic start can involve postures, sensual movements of the body, “come-hither looks”, erotic words, and clothing [or lack of clothing] that shows off the body's erotic potential. One way or another, usually more than one way at once, both parties show what i'll call “deliberate immodesty”. Strict modesty has many examples, such as the clothing and body-language of Amish and Hutterites, monks and nuns, strict Muslims, and “prudes”. There are modest facial expressions and “prim and proper” ways of speaking—and there are ways that faces and words can insinuate and hint at sexuality. Stage One is a flirtatious appearance and way of speaking.

Stage Two usually involves body contact “short of kissing”; dancing and holding hands often are involved. Both dancing and holding hands can be non-erotic, can be prim-and-proper. Most people can easily recognize what's plainly erotic and what's plainly eros-free; but sometimes there is ambiguity. A Boy Scout—or a 25-year-old student—can be dressed for hiking but not have time to go farther than the loop trail from the park gate to the river bridge and back. Walking along with him, you won't know that unless you ask.

Whether to call the first kiss Stage 3 or Stage 4 is not clear. Often an embrace leads up to the kiss, and the same kind of embrace can be merely affectionate, or can be a definite erotic initiative—or can be an inquiry, a “feeling out the other's level of interest.” Even long-married couples sometimes embrace sexually, but do not go on to kiss because something about the situation “limits how far they can go” at that time. Likewise, a kiss is often “as far as things go”: A recent public example was NDP Party Leader Jack Layton and his wife and fellow-MP Olivia Chow kissing in public shortly after the May 2 election. The kiss proclaimed their marriage and their erotic connection, and that was as much as the situation “would bless”. It was more erotic than the way either would have kissed their grandchildren, but not “as erotic as they could get” in private.

To use the trail analogy, they walked out on the bridge and looked at the river, but then walked back to the park gate—and to their work.

Kissing can have stages: The “deep kiss”, kissing the other's neck and earlobes, amount to going beyond “just kissing.” Caressing the other's clothed body comes with, or shortly after, those kinds of kissing—unless one person demands they go no further (or unless they have agreed in advance, to go no further.) The second serious kiss, the third and more, and the wandering hands, are across the river and starting up the mountain.

Few “Americans” or Canadians would regard consent to a kiss as implying consent to intercourse—especially if the person who then says “No further” is modestly dressed and has been using modest language and postures. There might well be some ambiguity, though, if a woman who is dressed and speaks provocatively, kisses a man, presses her half-covered body against him, and then acts offended when he responds by putting his hands or his next kiss on some of that skin that normally would be covered. And if a man wearing scanty clothing and “talking sexy”, kisses a woman who shows some interest, he is going to look phony at best if she then starts fondling him and he suddenly “turns prim and proper”. (If she turns out to be athletic enough to force him to finish the sequence, he's likely to get more chiding than sympathy if he complains to the Law. Perhaps the principle of gender equality could be used to apply the same attitude to women who tease-and-turn-prim?)

Some might call it rape, if one partner says “no further” after initiating several sexy kisses and “a few feels”, and the other gets excited and “won't take no for an answer”. Some people would call it something less. Few would say that insisting on “finishing what we started” with consensual erotic kissing, is morally “OK”; and few would call it identical to imposing intercourse on someone who was behaving modestly and consented to nothing more intimate than a handshake. It is bad semantics to call them both “rape," when in one case no steps were taken toward intercourse together, and in the other, some initial steps were consensual1.

“Fair play”, especially if one is about to initiate some sexy kissing, calls for a statement about “how far to go”. Holding hands, dancing, even “chaste kissing” such as some substantial fraction of the population would do with their grandchildren or grandparents, don't necessarily belong to the sequence that ends with intercourse. Erotic kissing, “caresses” or “fondling”, do. If the trail leads to the top of the mountain, and you want to go no farther than the first good view point—say so back at the river bridge, so your hiking partner won't be frustrated later. If you're still on the trail that loops back to the park gate, before the junction with the bridge to the summit trail, that's different.

After a few minutes of neck-and-ear kissing, deep-kissing, and feeling one another through the clothing, either the clothing will start to come off, or the hands will start to feel inside the clothing—or perhaps, one partner's body will stiffen and show resistance while his or her hands will stop caressing. It's one thing to start up the trail toward the summit and another to make the full climb, and while most people who start up the trail do want to make the climb and are able to, there can be sprained ankles, sore feet, heel blisters—and a few fools who don't realize they're not in good enough shape.2

If the person who loses interest is the one who initiated the sexy-kissing, [s]he owes the other an apology (as would a hiker who sprained his ankle or ran out of breath after walking a few hundred metres.)

Once both of you have your hands where the daylight seldom shines and it's obvious you're both enjoying the feeling in all three senses of the word, it's obvious where this leads, especially if you've been there before. You're doing something sexual now and you both know it. Your body contact is either teasing, or pre-coital. The trail is definitely going up the mountain. It has become “a real stretch” to refer to insisting on finishing the process, as rape—as equivalent to forcing coitus on a modest and totally unwilling victim.

Between consensual fondling and “kissing below the neck”, and full coitus, there may be cultural differences in what order-of-intimacy people perceive. Except where women are welcome to “go topless”, her breasts nearly always have more privacy than his chest. Some women seem to believe that they can fondle and kiss a man's chest and it means less than when he does the same to theirs. Both men and women differ in how intimate they mentally consider chest and breast contact—also in how exciting they find it—and the mental and physical ratings don't match up, either. Some people of both sexes get a lot of erotic pleasure and excitement from kisses and touch to their lower backs ....

... and one could go on to legs and feet, but this isn't meant to be “erotica”. It is meant to be context for the question of re-conceptualizing rape and sexual offenses short of rape; it is meant to be context for the question of prudence; and the point of mentioning individual differences is that no particular system orders the parts of the body from least to most intimate, between fondling below the neck and “the genitals.” Some women would consider their thighs more private than their breasts, for instance; others would consider their breasts more private.

To return to the hiking analogy, all mountains are different—and they all have summits. If both of you are hiking happily and steadily upward together, every step upward implies a greater commitment to finish the climb. If either of you wants to give up, the sooner said the better. A sore heel or a sprained ankle less than 500 metres from the top3 is less reason to quit, than the same trouble back near the start. A twinge of reluctance at the first kiss is more reason to quit than when you're down to your underpants, “lubricated”. and breathing hard.

Some people attach special significance to underpants, and believe it's “feeling around” or “foreplay” as long as you still have them on. The word “foreplay” is significant: It could be written “before-play”, and before what? The answer is obvious: Before intromission, before the penis enters the vagina, before it is definitely and unquestionably intercourse. Foreplay leads up to intercourse, If what you're doing, once you go beyond that second kiss or that neck kiss or that hand on the covered thigh or inside the shirt on his or her back, if what you're doing is not foreplay, then there should be a plan you agree on, that says what you are doing and how it will continue and end.

There are worse things that can come from flirtation, than stalling the process by asking about limits.

The farther you go without stating any other plan, the more you implicitly promise to have intercourse. If you are sexually experienced, you “know or ought to have known”—an important phrase in law—that this is so; that arousal builds on itself and motivates body contact that increases arousal, which increases body contact, until orgasm. (It may be worth noting here, that a virgin, and especially a virgin who has not experienced sex-play short of intercourse, cannot be expected to anticipate arousal as well as someone experienced; and that someone who has had only one or two sexual experiences cannot be expected to anticipate as well as someone who has had many... but sex-education in schools and churches will have warned most people of the general nature of sexual arousal.)

If you're not going to the summit, how high are you going?—and what's the reason to go that far rather than some other distance? To put this in anatomical rather than geographic terms, what parts of the body and what uses of the hands, mouth, nipples and genitals are in play and what are off bounds? What counts as a climax? The erotic climb creates erotic tensions, which normally lead to the satisfaction of orgasm, Are you going to “get each other off with your hands”?4 These things should be settled by the third erotic kiss—though often they are not, and that failure to settle them is imprudence.

The fact of arousal, the fact that it normally leads to orgasm, the fact that arousal without orgasm can lead to hours of frustrated feelings, are important to our task of “reconceptualizing what's rape and what's not.” Every contribution you make to someone else's arousal implies an intention to get her or him to orgasm, unless you have agreed otherwise beforehand. The greater the arousal you give someone, knowingly and willingly, the greater your responsibility to “finish what you started”. It's true the responsibility is never total—there can potentially be something like a broken leg or abdominal cramp that overrides an implicit promise to climb a trail to the summit—or to copulate—but the responsibility is neither zero, once you take the initiative to arouse someone else's desires.

Sexual consent short of intercourse mitigates the seriousness of any outcome more intimate than that to which consent was given. Human sexual arousal naturally leads toward coitus; adult human beings of dull-normal and higher intelligence know that, sexually experienced adults know it “full well”. Prudence and modesty may be called “old-fashioned”, but they are not out-of-date—definitely not expired and not fit for the dumpster. To neglect them is to take partial responsibility for any sexual consequences.

If this reflection opened with the topic of rape, it should close with some mention of some other “sexual consequences”: Responsibility for pregnancy especially, STDs, even emotional dependence. Experienced lawyers know that some women deliberately get pregnant to secure “child support” from men. Some pursue a longer-term strategy of pregnancy, marriage, and divorce, with much larger financial claims. Some are less strategically deliberate, but still exploit men and with sex as their modus operandi. Intercourse has adverse consequences other than sexual-assault charges, to put the matter formally.

STDs are among those adverse experiences; and the 1970s notion that penicillin will quickly cure any (VD, they were called then) you catch while having fun with your crotch, is simply false. It was fairly close to true in the 1970s, but syphilis and gonorrhea have evolved resistant strains, while AIDS is a virus disease and antibiotics don't work against viruses. This is not the place for a detailed hygiene discourse; the main point is that condoms, used with care, combine contraception with STD “prophylaxis”. They are not perfect. Abstinence—including from some forms of intimacy short of intercourse—is the only perfect contraceptive and the only perfect prophylaxis. But condoms are far safer than other contraceptives simply because they are also prophylactics (and in the 1950s, were so labelled in the US, rather than being called “condoms”.)

I am not a maker nor a seller of condoms. Indeed, I have been sexually abstinent “for several years” and while not taking out advertising to make my abstinence known, I do acknowledge it when the situation warrants. From the somewhat neutral perspective of that long-standing abstinence, I can claim some objectivity in writing about sex, about mitigation of “rape”, and about prudence. (I anticipate writing later, about possible categories of sexual imposition short of “rape”; and the tone of that text will not be the same as this one's; so to conclude, let me add to safe driving and hill climbing, another metaphor that is often applied to sex.)

Playing with matches is fun for small children. We restrict such play, and insist that children learn and follow safety rules before they are allowed to have matches. Usually we supervise their first experiences using matches, quite carefully. It might be a very good idea to treat sex analogously: When children learn to use matches, they learn to light campfires, candles, cooking-fires, perhaps kerosene and pressure lanterns. When grown-ups play with erotic arousal, there might be more fun and fewer disasters, if we identify a set of erotic alternatives not exactly analogous but comparable to the alternative ways we can use matches. We might even be wise to have a chaperon for our first erotic explorations, which is one reason double-dating was recommended in the 1950s and early '60s, and chaperons were normal in earlier days (and still are in some other civilized societies).

It's not entirely an accident that I close this “reflection” with the subject of fire. Climbing may offer a better analogy for the progress from kissing to coitus; but the metaphor, “playing with fire”, has validity. If we apply the attitude of prudence we have always applied to fire, to sex, we might be much better off.

1.  Perhaps by analogy to murder, there might be “First degree” and “second degree” rape, and analogues to “manslaughter” and “negligence causing death”. The distinction is not exactly that of premeditation, however, and i can think of no consensual act that would be murder without consent; so the analogy is doubly imperfect.

2.  Let's keep in mind that this is a low mountain, 500-1000 metres in height from base, not the Andes or the Himalayas or even the major peaks of the Rockies and Alps. My analogy here is to a vigorous day-hike, not a major expedition.

3.  This is intended to refer to trail distance; vertical distance on a day climb would usually be 1/10 to ¼ as much.

4.  To return to the land-form language, are you going to timberline? to the bottom of a scree slope that is tedious and somewhat dangerous? to where you'd need a rope for safety? In mountaineering, it can be more dangerous coming down than going up. Once you get to where you feel a good deal safer climbing with hands as well as feet, than with feet only—you had better have your route back down well worked out.

The analogy to sex is far from perfect: Orgasm is natural and in itself, safe. If you call orgasm the summit, then the summit itself gets you much of the way back down to the river bridge, which mountains don't do. The natural way down from sexual arousal is dangerous in quite different ways: STDs, psychological attachment and-or anger, perhaps a morning-after regret that you did what you did.

*Davd Martin (Ph.D., 1966, Sociology) has been a professor, a single parent on a low income as a commercial herb gardener, and editor of Ecoforestry. His men's-interest essays and blogs have appeared on The Spearhead and, and now on this site.