Trigger Warning for sexual violence and rape apologism
A couple weeks ago in Idaho, a judge dismissed a rape case in which a woman was allegedly raped by a man who she believed at the time to be her boyfriend. The article itself contains a graphic description of the charges themselves (Trigger Warning), but what is of interest to me for the purposes of this post is the reason for the dismissal. The reason was that this was a case of rape by fraud — but the law only recognizes rape by fraud if the woman thought the rapist was her husband.
Fourth District Judge Cheri Copsey said Wednesday she was not happy to dismiss rape charges against two Boise men who police say tricked an intoxicated woman into thinking she was having sex with her boyfriend.
But Copsey said Idaho law left her no choice because the woman wasn’t married.
“Unfortunately, I don’t think it falls within the definition of rape, as defined under Idaho law,” Copsey said as she dismissed a grand jury indictment for charges of rape and aiding and abetting a rape filed against Cielo Sanchez and Zachary McGraw.
Subsection 6 of the Idaho rape code specifies that the crime can be charged when the victim “submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.”
The key word is “husband,” Copsey said.
She said she suspected that if she allowed the case to go to trial, she would have had to dismiss the case when prosecutors were done.
“What bothers me is the fact is the Legislature realized that someone could be fraudulently induced, and that could be rape, and yet has never chosen to expand protection (the law) gives to married women,” Copsey said. “Unfortunately, the Legislature has never amended (the rape law) to make it to meet the requirements of modern society.”
Initially, it seems a little bit difficult to fathom what exactly was running through the minds of legislators when they crafted a law stating that rape by fraud is a crime, but only when it has been committed against a woman who thought the assailant was her husband. I, of course, do not actually know what was running through their minds. As it seems to address a rather specific set of circumstances, the legislation very well may have been a response to an individual event. But without knowing the exact reasoning behind the wording of the law, I immediately recognize two of its rather repulsive implications.
The first is the suggestion of women as the property of their husbands. Not that long ago, and in many quarters still to this day, rape against a woman was not understood to be a violation of her rights — as women had no right to bodily autonomy — but a property violation against the woman’s father or husband. The woman was not her own private citizen with her own private rights, but an extension of a man; to violate her was to violate the man she was connected to, by defiling a piece of property that largely held its value in sexual purity. Here, the tying of the violation of rape by fraud to the victim’s marital status quite easily conjures up this recent history of women as property. The specific reference to the victim’s husband causes one to wonder whether the goal of the law was not to protect women against rape, but to protect men against the attempts of others to gain access to their wives through the use of fraud.
The second implication is that women who consent to sex with one person cannot be raped by anyone else. The legislation more or less states outright that only married women can be raped by fraud. Because of the specific nature of rape by fraud — that a person thinks sie is consenting to sex with one person, only to find out that the person actually touching hir is another person entirely — this statement very clearly suggests that only married women should be agreeing to any kind of sexual contact at all, and only with their husbands. The implication, therefore, is that any unmarried woman who consents to sex with any man has consented to sex with them all. Because of her supposed “promiscuity,” as evidenced by her willingness to have sex outside of marriage at all, she cannot be raped. Indeed, the law just told the victim in this case that according to the state of Idaho, she was not raped.
It doesn’t particularly matter to me whether or not these implications were intentional. Wider context matters, and if whoever wrote this law didn’t consider the implications when doing so, that’s on them. Their intentions don’t make the implications exist any less. Not intending to treat women as the property of their husbands doesn’t make the effect any less real in a world where women have suffered and continue to suffer extraordinary abuses, including sexual violence, precisely because of that belief. Not intending to say that women who have sex outside of marriage are unrapeable doesn’t make the effect any less real when a woman who was raped has been told that because of her marital status, her rape doesn’t count. And that’s not even to touch on how the gendered nature of the legislation suggests that only women are raped, and that only men commit rape, leaving many potential victims without any recourse.
The good news is that in addition to harsh criticism of the law by the judge who dismissed the charges, a legislator or two may be up in arms as well. While I commend legislators who are looking into changing the law so that it applies to more than just married women, I have to note that a band-aid probably isn’t good enough. As stated above, it is indeed entirely possible that the original law, which has proven so grossly inadequate now, was written in response to a specific instance just like this one. That means that “insert[ing] another sentence” just doesn’t cut it. Changing the law to address unmarried victims — and I hope it goes without stating that at the very least, if the law is to be changed so narrowly, it should at least be changed in a way that is gender neutral with regards to both victims and perpetrators — doesn’t address the wider context of rape laws that don’t adequately define consent and a lack thereof.
McGraw’s defense attorney L. Craig Atkinson later filed a motion to dismiss the charges because they did not fit Idaho’s rape statute.
Sanchez’s attorney, an Ada County public defender, joined McGraw’s motion.
First, there was no allegation the rape was done by force or that the woman was unconscious at the time.
In his motion, Atkinson argued that reports indicate the woman was able to give consent for sex that night, and did.
Atkinson argued that Idaho code does not define alcohol intoxication as “temporary unsoundness of mind,” which is a strict mental health condition that could make a victim incapable of giving consent.
He also argued that the subsection of a law that says a victim can’t give consent for sex because she is “unable to resist due to any intoxicating, narcotic, or anaesthetic substance” did not apply to this case either.
“There are no allegations in this case that the victim was unable to resist due to intoxication,” Atkinson wrote in the motion. “The allegations are the (woman) consented to intercourse, but terminated the intercourse after realizing the individual she was having sex with was not her boyfriend.”
The problem, of course, is that the victim consented to intercourse with only one person. Each time every one of us consents to any given sex act, we understand that we are not consenting to that sex act with every single person in the entire world — only our partner(s) at the time. There is no such thing to blanket consent, in the sense that consenting to a sex act one time means consenting to it at all times. It doesn’t. Similarly, consenting to a sex act with one person does not mean consenting to a sex act with all people. Consent is always highly conditional, and based on the conditions set forth. The conditions set forth here were that the alleged victim consented to intercourse with her boyfriend, and not with anyone else.
And if Idaho law recognized that, not only would Atkinson’s argument be irrelevant, but so would the basis for the judge’s dismissal. A rape law which adequately defines what “consent” means would render any specific law about “rape through fraud” obsolete. Such a law would not be necessary, because it would be understood that fraud negates consent, and that the primary conditions present in any sexual consent — what acts and which individuals the consent applies to — were violated. And this fix would affect a much wider variety of cases and negate the current need to predict all kinds of unusual scenarios.
The problem here is not that one specific part of the rape code only applies to married victims, abominable as that may be. It’s that Idaho’s rape statutes are all around inadequate, and don’t account for the many varied forms that sexual violence takes — which includes a whole lot more than force.