Note: trigger warning.
When people talk about your first year of law school, they talk about harsh profs. They talk about too much reading and the socratic method and exams and the curve and stress and caffeine and writing competitions and they talk about it all being really, really difficult.
They don’t talk about the week and a half of your criminal law class where you will discuss rape.
Somehow, in all those discussions about 1L, no one ever mentioned to me, nor did it occur to me, that there would be a period during my second semester of law school where I would walk into ever class feeling anxious and worried, afraid that someone would yell, that someone would cry, and that I would be either or both of those someones.
I was lucky enough to have a wonderful professor (a young black woman with a background in anthropology) who handled the subject with as much grace as is possible, which is to say, not much. We got through the unit, and I can competently explain to you that generally the three elements of rape, legally speaking, are force, nonconsent, and sex. And yes, force is its own element, and in many states, the force “incidental to penetration” does not count as force. I can talk to you about the negligence mens rea as opposed to the knowledge mens rea with respect to nonconsent. I learned the law, and i found the law extremely problematic.
But I also learned something else, something about our cultural conceptualization of rape, and that is much, much more problematic.
As we began the rape unit, we started talking about a pretty typical rape case. For purposes of this post, it’s enough for you to know the case involved two college students who had made out before. This particular time, they were making out in the man’s dorm room, things got a little rough, the woman said, “No,” but the man allegedly thought she didn’t mean it. Man thought she consented. Woman didn’t consent.
As we discussed the case, our prof turned to a normative question: never mind what the law is in this particular jurisdiction - should we criminalize this kind of conduct?
There was an awkward pause. Where he had been comfortably answering questions about the law as applied in this case, the man on call seemed unwilling to answer that question. Our prof just waited. Finally, he answered, “I don’t know. She was hurt by it, I guess, but, you know, you’d be criminalizing an awful lot of, uh, conduct, if you criminalized this kind of thing.”
As I listened to him speak, I wondered my ears, which felt red hot, were actually steaming. Doesn’t the fact that thousands if not millions of people are hurting other people mean that we need to act decisively to prevent further, devastating harm? How could someone possibly be comfortable with less action?
My prof considered this for a moment. I debated raising my hand, but waited, not entirely sure I would be able to speak coherently, lest I be branded just an emotional girl. When my prof spoke, it was careful, measured, “Hmm. Interesting. Arguably, because this conduct causes harm, as you say, it is problematic, yes? And if it is problematic, then its extremely high occurrence speaks to the need for higher levels of criminalization rather than less.”
That exchange, though, kept my mind boilling. Because my fellow classmate viewed rape as so extraordinarily common, he thought it was not something the justice system should interfere with. Rape is just one of those things that happen. A miscommunication. Part of our culture. Boys will be boys.
This understanding of rape, of something that happens all the time every where but isn’t really that big of deal, permeates our culture, and leads to the absolutely horrible disaster that has been a comedian’s gang rape joke about a young woman in his audience (he apologized but not really). I understand that women are generally expected to just relax and take the jokes. To lighten up. To calm down. Because rape happens all the time. It’s not a big deal. And yes, I agree, you can make fun of horrible things. Sometimes, humor is our way of dealing with pain. But the there is a difference between humor to deal with pain and using “humor” as a weapon with which to wield your privilege over someone who has annoyed you.
Rape happens all the time. It is a big deal. It causes unbelievable, irrevocable pain.
And it is not funny.