Don’t rape — a response to Scott Greenfield

Scott Greenfield wrote a post piggybacking on James Taranto’s column on rape. Taranto argued that women escape the consequences of their actions by being drunk. Greenfield went further, writing:

It strikes me that that avoids the thrust of the problem: “rape culture” holds that men rape women, and therefore men, and only men, are culpable.  In the extreme, feminist nutjobs contend that all sex is rape by men.  Less extreme is the view that consensual sex can occur, but is subject to post-coital regret.  If the woman decides afterward that it wasn’t a great idea, then what would have appeared to be consensual sex at the time becomes rape after the fact.

I have represented sex offenders, sometimes for the original offenses, sometimes for collateral matters like parole violations. My clients have done things that were legally defensible, but morally repugnant — the guy who leveraged his position as a supervisor to persuade a woman into consenting when she really didn’t want to. Some were very sad cases that were morally defensible, but legally indefensible — the developmentally disabled man who just couldn’t ever get why 10 year olds were off-limits, even though they were intellectually peers. Some, the rarest of the lot, are just plain evil — the man who refused his step-daughter her cancer treatments unless she serviced him is easily the most unabashedly evil person I have ever met, and I sleep well knowing that he will die of miserable old age in prison.

When I handle a sex case, there are two things I will not do — slut shame or victim blame. It’s reprehensible and has no place in the judicial process (I also note that no matter how many times I have seen it tried, it never works, but that is for another post). I get good results for my clients, fighting the cases that need fighting, working out the ones we can resolve, and I would like to think I do so fairly and respectfully.

I mention my history representing sex offenders because when I write what follows it is important to remember whose side I am on and what I do for a living — Taranto and Greenfield are wrong.

Despite Greenfield’s blaring fear quotes, rape culture is a real thing. It is different, however, from the kinds of sex offenses that get prosecuted, and different still from how both Greenfield and Taranto glibly describe it.

Sex offenses, as they have traditionally been classified under the law, are pathological. At one end, the offender who victimizes adults — specifically the rarest of the rare, the violent stranger attacker — pathologically seeks validation of his own power. At the other end — the child molester — pathologically seeks to be loved, hence the grooming, Jerry Sandusky style.

Rape culture, describes behaviors that society as a whole, and yes, men in particular, do that strips women of their agency in sexual decision making. Rape culture exists when a woman can’t walk down the street without being catcalled — not a crime, obviously, but definitely the result of a notion that woman are objects whose bodies exist solely for masculine enjoyment. In a much more dangerous sense, rape culture exists when police advise women not to dress like sluts. Rape culture exists when a judge can tell a woman that she brought her assault upon herself for being at a bar. Rape culture exists when we tell women that it is their responsibility not to get raped, rather than men’s responsibility not to rape — boys will be boys, and all that. In rape culture, it’s all perfectly normal.

In other words, rape culture describes all the ways in which society sexualizes women and removes their agency that are not considered pathological.

(It is probably also rape culture that the only way I feel safe saying this is that I am a middle aged white man who can’t be immediately dismissed as a “feminist nutjob” by virtue of my gender.)

This is not to say that there are no women sex offenders — the media loves to pounce on the Hot For Teacher cases in particular. This is a red herring, though, because cases involving women offenders are rare — in my home county there are 348 registered offenders on the Megan’s Law website, and only 5 are women. We also perversely celebrate women offenders — a few years ago, the Houston Press published a listicle of the ten hottest women on the sex offender registry.

So when Greenfield writes that rape culture renders women “such… delicate flower[s] that she is absolved of all personal responsibility for her choices” he gets it wrong. Women do not generally cry rape because they made a decision they regret, women cry rape when they have been raped.

20 or 25 years ago, date rape was not a crime, but nearly a rite of passage, so commonplace that it was seen as inevitable and universal. The codes of conduct and sexual assault policies now populating college campuses are an attempt at changing that, and if it seems that the pendulum has swung too far in the other direction, I am okay with that. The answer is never “don’t get raped,” but rather “don’t rape.”

It is one thing to say “don’t drink too much, because bad things can happen” and quite another to say “if you drink too much you deserve what happens to you.” There may be problems with the complainant’s testimony, there may be problems of proof, there may be a serious dispute as to whether one party genuinely believed consent was given, but the “crime of regret” is a bogeyman legend. It doesn’t exist.


  1. jake said:

    This post is a fantastic example of how to make like an ally. It’s also one of the best definitions of “rape culture” that I’ve encountered.

    I’m so disappointed that this is even an issue of contention among people who are charged with defending people accused of sexual assault. If our lawyers really do believe, as Greenfield and his ilk seem to, that many (most?) women who say they were raped are either lying or deserving victims, then the problems are so much bigger than we can possibly imagine.

    February 13, 2014
  2. Annie said:

    Well said, Charlie. There’s another problem, too, though: Rape culture emasculates men. Yep, I said it. It means all you guys are so in thrall to your raging hormones that you can’t EVER control yourself. That something as banal as the length of a woman’s skirt can drive you to rape. That’s not a problem of perception – that’s a problem of sociology. Rape is rape, period, and NONE of the blame falls on the victim. NONE. No matter what gender the victim might be. If you want to stop rape, then the ONLY caution you should be giving is “Don’t rape.” Period.

    February 13, 2014
  3. Rape culture is the dirty illegal end of sex drive. There is a rape culture like there is a theft or murder culture. You can say we have a materialistic culture and theft is the illegal fringe of this, just like rape. Calling our culture “rape culture” is an attempt to control discourse by lumping in anything that involves unwanted sexual advances towards females ie catcalls, etc. These are boorish but they aren’t rape. Furthermore, If rape is rape, period, then why are feminists continuing to expand the definition?

    February 16, 2014
  4. Dave Knight said:

    A lawyers first responsibility should be to his client. Not to an abstract moral delimna. Does Thomas advise his clients about his rules?

    February 16, 2014
    • Charles Thomas said:

      I advise my clients about a lot of things. At root level, though, I work the case in front of me and I work it hard — but I am not unaware of the culture at large.

      February 17, 2014
  5. Charlie,

    What follows is not necessarily my last comment, but rather some rather obvious (as it seems to me) observations.

    “Slut-shaming” and “Victim Blaming” do not seem to have precise meanings. I notice that Mark Bennett has put them in quotes almost invariably.

    For a defence counsel in a rape prosecution to take it as an indisputable “given” that the complainant is actually a victim looks like negligence to me.

    No, I am not assuming that most or even many complainants are not genuine. I read nothing that SHG, MB or anyone else on their side of the argument has written as making that assumption or relying on that implication.

    You say:

    “Women do not generally cry rape because they made a decision they regret”

    I see no-one contending otherwise. The suggestion is that *some* women are being empowered to do so. Unless the assumption is made that no woman is capable of abusing that power, it is reasonable to see this as a step too far.

    You also say

    “women cry rape when they have been raped”

    This implies that women never cry rape unless they have been raped. Even if there were no established cases of women falsely claiming to have been raped, a lawyer instructed by his client that such was the position would be betraying that client if s/he did not explore the possibility. The uncontested fact that women have very rarely falsely claimed to have been raped does not absolve the lawyer from that duty IMHO, though the rarity will constrain his/her zeal somewhat.

    One cannot “victim-blame” – however that term is rationally understood – without a victim.

    It can often be neglected, but when controversies such as this arise, they almost always involve cases at the margin, “outliers” if you like. A small minority of crimes are detected and prosecuted; most prosecutions do not go to trial. The ones that do inevitably tend to be ones involving rare factual matrices.

    February 18, 2014

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