[Crossposted to my Vox blog.]

Plenty of people have commented on the Missouri rape case where a judge decided that once penetration had been consented to, there really wasn’t any crime.

And as plenty of people have pointed out, this is a monumentally stupid ruling.

(Trigger warning.)

Reading the narrative, it’s pretty clear that what consent there was was very limited. The complainant had just been sexually assaulted and raped by the appellant’s friend, and then gave a very conditional consent to appellant (“If I say stop, you have to stop”) which was then withdrawn.

How twisted do you have to be to see that as a “green light”?

It’s interesting to note that the complainant and appellant’s stories differ at this point. The appellant says he stopped immediately; the complainant says he didn’t. I suspect this is because everyone involved, with the exception of the appeals judge, realized that this is an important distinction on which the charge hangs.

There’s another difference in the testimony, which refers to the extent in which the appellant participated in the prior sexual assaults. According to the complainant’s testimony, he was heavily involved, and would presumably know that consent had not been given; according to the appelant’s testimony, he was away from his friend.

The trial judge’s instructions also strike me as fucked up:

The amount of force necessary depends upon the circumstances, and no particular amount of force is required but it must be sufficient to overcome the resistance of the victim. You must be satisfied that the victim either resisted and that this resistance was overcome by force or threat of force or that the victim was prevented from resisting by force or threat of force. The victim must have resisted to the extent of her ability at the time unless her resistance or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, “consent” means actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force.

Given that the last sentence negates pretty much everything that came before it, why do the instructions spend so much time focusing on how much the complainant resisted?

The appellate judge’s ruling is based primarily on (i) Battle v. State a 1980 case that did not actually hold that ignoring post-penetration withdrawal of consent constituted rape, but merely that a jury instruction was ambiguous, and (ii) old English common law. The judge goes on to cite (especially barbaric) “Biblical and Middle Assyrian” law on the subject, which treated rape as “trespass upon the property,” calling it “common law.” In fact, it is no such thing; both the old English jurisprudence and the Biblical-era laws had long been superseded by later statutes and understandings on the subject.

It’s always been one of my little legal rules of thumb that any opinion that relies on “tradition” rather than statute or case law is worthless and more likely than not wrongly decided. Bowers v. Hardwick did this (and thankfully, has been superseded by Lawrence v. Texas); U.S. v. Reynolds did as well.

Rape is a dicey issue in the criminal courts, because the typical lack of witnesses, the consent defense, and the standards of proof. It’s exacerbated by a societal view of sex that sees consent as mere acquiescence rather than as enthusiastic participation. It’s also dicey in the moral sphere, because the social consensus seens to be that anything which doesn’t meet the criminal standard of rape is acceptable. Not to get all Sapir-Whorf here, but I think the fact that we don’t have separate terms for “legal rape” and “moral rape,” the way we do for other crimes (e.g., “larceny” versus “stealing,” “murder” versus “killing”). There’s no term for someone who’s forcing sex on another in a way that doesn’t meet the legal requirements of a rape charge, which leads people to think it’s all right.

Once again, more at Pandagon.