What is "rape"?

The Ohio Steubenville rape case has captured the nation's, and many parts of the world's, attention for the past few weeks as the verdict for the two main defendants, a seventeen year old and sixteen year old, came out on March 17. The basic facts goes as follows, though probably most people know: a sixteen year old girl went to an all-night party, got drunk, then the two aforementioned teenage boys had sex with her, took pictures and a video of the girl, posted them on YouTube and sent text message pictures. The girl charged the boys, football heroes locally, with rape. The defendants defended that she consented, though she had been drunk while the teenagers had sex with the girl.

The legal issues surrounding consent and the level of intoxication is not something that I am particularly knowledgeable, but the issue of consent, rape, gender lines, and young people surrounding parties is something I have come across, so my comments will be limited to those topics. One of the primary legal defenses was that the girl had consented, or at the very least did not opt out of having sex. A common argument, especially between parties who know each other is that, given the context of sexual relations, innuendos, nonverbal signals, women should actively opt out if they do not want to have sex. Otherwise, the baseline is that consent is given if she doesn't give an affirmative, explicit signal (some would go as far as verbal) that she does not want to have sex. The alternative and often argued on behalf of women is that women should not have to opt out of having someone penetrate her body. Men should have to ask, otherwise the answer is no. These arguments often turn on the power imbalances between men and women. Unfortunately, there is no universal system of "opt in" or "opt out" and states vary on what is called "rape."

Another interesting and often central aspect of rape, as was with case, was the credibility of the arguments. Because rape usually occurs without any witnesses, the evidence and strength of the argument often comes down to a "he said" versus "she said" argument a la Rusk v. State. Unfortunately, in the adversarial system, this comes down to demonizing the other side while attempting to make your side look like the victim. The woman will be framed as a seductress, a liar, or a money grubber. The man will be framed as a liar, who doesn't respect women and is a slave to sexual urges. No one ends up looking good.

The incredible thing is that even if the woman is demeaned or clearly feels violated after the fact or feels like she didn't want sex beforehand, she can still be framed as someone who "wanted it" or "deserves it." Now, I don't mean to say that every time a woman regrets having sex with a man, it should be rape. Rather, aside from purely legal analysis, society's views about rape still tend to make the woman the criminal. Even the media commentary surrounding this case was extremely sympathetic to the defendants, describing how a witness claimed that the victim had been "flirting" with one of the defendants at the party or emphasizing repeatedly how a verdict would "ruin" the futures of these teenagers. There was definitely not a similar kind of sympathy towards the victim and how her life has been negatively impacted her life.