What is rape? (long)

[Jester]

I've been raped. Though in my case it was a matter of my not being able to give consent, but not because I had chosen to become unable to do so but because I was nowhere near an age to even know what I was consenting to do, not that the people I did it with were much better.

This brings up an interesting question, which I think was at the heart of the OP. To wit, if you are under the age of consent, and the person you are with is also under the age of consent (let's say both parties are, for the sake of argument, 12), but both of you do what you do willingly, i.e. consent....can it be considered rape? If so, who is the rapist?

I ask this not to belittle or mock anyone, but because it is a fair question to ponder. I mean, can a boy be held accountable as a rapist if he has sex with a 12 year old girl if he is only 12 himself?

[Nyoibo]

This brings up an interesting question, which I think was at the heart of the OP. To wit, if you are under the age of consent, and the person you are with is also under the age of consent (let's say both parties are, for the sake of argument, 12), but both of you do what you do willingly, i.e. consent....can it be considered rape? If so, who is the rapist?

I ask this not to belittle or mock anyone, but because it is a fair question to ponder. I mean, can a boy be held accountable as a rapist if he has sex with a 12 year old girl if he is only 12 himself?

Yes, usually the older one is the one held responsible, but failing that, it's the guy who's held responsible.

[Jester]

Yes, usually the older one is the one held responsible, but failing that, it's the guy who's held responsible.

Yes, I know that is the way it's done, but isn't that a bit of a double standard? Or an arbitrary standard, really. I mean, if a 12 year old girl is too young to be able to give consent, isn't a 12 year old boy as well?

[Eisa]

Yes, I know that is the way it's done, but isn't that a bit of a double standard? Or an arbitrary standard, really. I mean, if a 12 year old girl is too young to be able to give consent, isn't a 12 year old boy as well?

That's actually what I think. And it's annoying that the boy is automatically the one at fault. Girls have sexual needs and desires, too. Girls can solicit sex and push for sex just as much as boys can.

[Nyoibo]

No no, when it comes to sex and rape, girls are innocent little flowers who would never even think of something like that, guys are evil mysogynistic monsters who'll rape a woman as soon as look at her.

So sayeth society.

[kibbles]

I agree with Jester, girls aren't always poor innocent flowers and if both are underage it's backwards to automatically say the boy is at fault.

[Andara Bledin]

I mean, can a boy be held accountable as a rapist if he has sex with a 12 year old girl if he is only 12 himself?

Legally speaking, it's generally not considered rape if both parties are willing and within a certain age range to each other. So, using this example, if both parties were 12, then it would not be statutory rape because both parties are judged at having the same assumed level of maturity and culpability. These are referred to as Romeo and Juliet laws, and seek to correct issues in cases where the age difference is minor or non-existent due to the fact that statutory rape is a prima facie case.

^-.-^

[Canarr]

Legally speaking, it's generally not considered rape if both parties are willing and within a certain age range to each other. So, using this example, if both parties were 12, then it would not be statutory rape because both parties are judged at having the same assumed level of maturity and culpability. These are referred to as Romeo and Juliet laws, and seek to correct issues in cases where the age difference is minor or non-existent due to the fact that statutory rape is a prima facie case.

^-.-^

Apparently, not everywhere (see http://www.fratching.com/showthread.php?t=4881).

As an answer on Jester's question, at least for Germany: age of consent laws apply only if one party is above 18. As long as both are minors, almost anything goes (I do believe there are limitations, say one party is 17 and the other is 10), but I don't have a source to check at the moment).

[Jester]

Legally speaking, it's generally not considered rape if both parties are willing and within a certain age range to each other. So, using this example, if both parties were 12, then it would not be statutory rape because both parties are judged at having the same assumed level of maturity and culpability. These are referred to as Romeo and Juliet laws, and seek to correct issues in cases where the age difference is minor or non-existent due to the fact that statutory rape is a prima facie case.

Not entirely true.

For clarification, it should be pointed out that "Romeo and Juliet" laws allow for one or both parties to be under the age of consent as long as they are within a certain age window of each other, thus preventing the idiocy of an 18 year old being convicted of statutory rape for having sexual relations with their 17 year old significant other. The window varies from state to state (and not every state has R&J laws), but my home state of Arizona has a window of 4 years, as an example. (I think it's 4 years. I could be wrong.) Which means if you are 18 and your girlfriend is 14, you're fine. If she's 12, you're fucked. While some people may think that even that age range is too large, I will remind you that, in reality, we're talking about a high school senior and a high school freshman. Myself, I have zero issue with this.

Now, R&J laws don't apply across the board. For example, some states have laws that minors below a certain age (say, 14 or 12) are not included in such things, and any sexual relations they may have with someone above that or another age range (determined by state law) would be considered criminal on the part of the older party. So if you had a 16 year old engaging in sex with, say, a 9 year old, that is going to be criminal.

The problem we get, that was being discussed, is when there are no R&J laws, and both parties are below 18. Generally speaking, the law comes down hard on the male, but not the female, even if they are of the same age. Which is, of course, patently ridiculous.

Also, some states without R&J laws will prosecute an 18 year old boy for having sex with his 17 or 16 year old girlfriend, but would not prosecute an 18 year old girl in the same situation.

Is this a double standard? Absolutely. And it goes on all the time, all over the country. And it basically goes back to our Puritanical roots in this country, which have molded many of our sexual attitudes, including the idea that males are always the aggressors and females are always sitting around innocently waiting for romance to come their way. Which clearly is not true.

Even now, in 2011, we are so repressed sexually in this country that we have some of the worst sex education of industrialized nations in the world, as well as one of the highest teenage pregnancy rates. Yet many "family values" folks would have you believe that sex education is Wrong, despite all the evidence being completely to the contrary.

[Canarr]

Going back to the question of giving consent, since that's at the heart of any discussion about rape: the OP gave an example of a girl frozen in panic while receiving oral sex, apparently due to flashbacks to an earlier molestation by another person. The boy, oblivious (and not in a very good position to read her facial expression) continued what he was doing.

It's everybody's right to change their mind and refuse consent for any further activity, no questions asked. The girl was frozen in shock or panic, and thus, unable to voice any lack of consent she might have been having at that point. The boy, inexperienced himself, didn't read her body language for what it was, and misinterpreted. He didn't notice that she was no longer willing or able to give consent.

Should the boy have done more to ensure that he still had his partner's full consent? Or did he do okay? Does someone have to be "at fault" every time something unpleasant happens? Or can there be a case of, "Well, that sucked, but there's really nobody to blame." (Beyond the original molester, of course).

[Jester]

In the cited example, I feel bad for both parties, as the girl was freaked, and I am pretty sure that once he found out what had happened, the boy would have been freaked out too, and probably felt a bit guilty. But I for one do not believe that he should have been held accountable, legally or morally, as he, as has been pointed out, had no idea what was going on.

I personally believe that that does, in fact, fall under the category of "that sucks, but nobody involved was to blame."

[Eisa]

Erm...well, he probably learned for next time, I guess, but I would think in that one, no one's really at fault except for the original molesting douchebag.

Although I wonder if that's why my university was so focused on getting a "yes!" not just the lack of a no...

[Shangri-laschild]

If he's sober he may be taking advantage of you but how are they supposed to know exactly how drunk you are? and then they may be drunk themselves impairing their ability to judge your judgement.

you were drugged not by choice but not by her and she doesn't know it wasn't by choice, is it rape?

If you know they are on something or drunk then you know that they can't really consent. You are putting yourself in a risky position. They may decide they are fine with it later and they may not.

now someone is trying to get you drunk, with the intent on sleeping with you but they never threaten you or really force you to drink. (hard to describe properly but it's been done in tons of sitcoms)

They're a complete sleaze but rape no, because you had the choice to say no to the drinks and no to the sex and the ability to put a stop to it.

You had the ability to say no to the alcohol, yes but that doesn't change the fact that if you're too drunk to be able to consent, then you haven't consented.

Also if you know how you are when you're drunk (violent, slutty, stupid, easily influenced etc.) and you make a decision to get drunk then you are making a decision to be violent, slutty, stupid, easily influenced etc.

That's like saying someone who walks through a bad part of town is deciding to be stabbed. Is it a bad idea? Yes. Did their bad judgment lead to the situation? Yes. Is the person who stabbed them still just as accountable? Yes. Just because you put yourself in a stupid situation doesn't mean it wasn't rape, it just means that the victim made some bad decisions as well.

I thought I'd have more scenarios but honestly they all kind of just boil down to the same sort of question. basically when does it stop being taking advantage of something and start being rape?

specifically did she say no, was she capable of saying no, did she resist. Basically this is where the first question comes from, it's also why I wanted to be hypothetical.

Consent isn't whether or not the person says no or in a state to be able to say no. It's not about if you're able to resist or not. It's whether or not the person agrees to it and is in a state to be able to consent. That means they have to be old enough, sober enough, awake, to be able to understand the situation and agree to it. Consenting means giving permission.

[Jester]

Consent...means they have to be old enough, sober enough, awake, to be able to understand the situation and agree to it. Consenting means giving permission.

But what if both parties are under age? Drunk? Too out of it to understand what they're doing?

If Jack is as hammered as Susan, and they have sex, and Susan afterwards objects to the whole thing, thinking she was too drunk to make such a decision, is Jack a rapist or not? I say he is not, anymore than Susan is. Hell, he may have woken up and went "What the hell!!!??!?!" The problem I have is the double standard that basically says that, with everything else being equal, the male is to blame.

[Canarr]

Agree with Jester. If both parties are similarly intoxicated, there is no reason why both shouldn't be treated similarly under the law.

Of course, one of the problems with the treatment of rape in law is the difficulty of both proving and disproving that it ever actually happened. Unless there are witnesses present (which, I believe, is the case with only a small percentage of rape cases), it's a matter of word against word; and even physical evidence only goes so far. Proving that two people had intercourse with one another is easier than determining whether or not it happened with consent - especially when you're looking at the grey areas, such as your example with Jack and Susan.