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Could Punishing Some Rapists Less Reduce Rapes Overall?

When it comes to rape and the best ways to stop it, I will not, even for a second, pretend to have all the answers. However, there is an idea out there that I think deserves more attention and discussion. Basically, the idea is to create more categories of rape like we have for murder (first degree, second degree and manslaughter). Similar to the way killing someone can fall into different categories based on the facts involved, and the different categories typically bring with them very different amounts of punishment, perhaps it’s time for rapes to be looked at in the same fashion. Currently some states have something like this but the categories usually only distinguish between statutory rape, rape, and rapes that involve violence.

I don’t think these categorizations go nearly far enough, especially given that states like California appear set to require colleges to adopt a new standard of what constitutes sexual assault. (Not to get too legal here but not all sexual assaults are rape, but all rapes are sexual assaults, and for the purposes of this article, I’m focusing on rape). The new standards, which many colleges around the country seem eager to embrace, says that sexual intercourse can be considered rape anytime “affirmative consent” is not given. In other words, not only does “no mean no,” but anything short of being explicitly told “yes” can mean  no, too.

Given how serious the problem of sexual assaults are on college campuses -nearly 1 and 5 students are said to fall victim to it during their college years – and how schools have been turning a blind eye to it for years perhaps this is the right way to go. However, if we’re going to go this way, we might also have to get more nuanced in the way we treat rape in terms of the amount of punishment associated with it. Specifically, we should consider dramatically lowering the amount of punishment some rapist receive in light of the lowered standards lawmakers and courts keep making for the crime.

Please, don’t think I’m trying to excuse rape or make anything easier or better for rapist by suggesting some should be punished less than others. I believe rape to be one of the most abhorrent crimes on the planet, and I think some single acts of rape justify the rapist never seeing the light of day again. I also strongly believe a woman has the absolute right to change her mind in the middle of intercourse (there are cases involving this scenario) and that a man can absolutely be guilty of raping his wife. Furthermore, I do not believe anything a victim does or wears ever swings the blame even an inch in their direction.

images (1)As far as I’m concerned, if I may use a crude comparison, a person has the right to wear a suit made out of hundred dollars bill, walk around a bad part of town and not be robbed. However else someone might feel about that person’s actions, the only thing that matters is that the person who robbed them broke the law. It is the actions of the robber alone that resulted in the crime and that are criminal.

I mean, I’ve never heard anyone blame a bank for getting broken into because it was storing valuables that enticed someone to commit a crime. That something a victim does makes them more attractive to a criminal does not excuse the crime. Period. End of story.

All this said, if I was on a jury, I would have a hard time punishing a man who, in the middle of having sex that started out consensual, didn’t stop right away once the woman changed her mind the same as someone who forces themselves on a woman from the start. I think both are wrong and worthy of punishment, but I do not think they are the same crime. The former is more like a heat of the moment kind of crime similar to manslaughter where basically it is found that the killer didn’t leave their house with the intention to kill anyone. The latter involves a more conscious decision to act and do harm similar to the way first degree murder charges work.

In the case of murder, I think we, as a society, have very good reasons for treating these two situations differently. A person who knowingly and willfully does a crime, simply put, is sicker, more evil and more likely to do it again than someone who, in the middle of an argument, loses control. Both are deserving of punishment and both people need mental help, but the person who engages in something they know to be criminal from the start clearly seems like the bigger threat to the community.

But along with one criminal potentially posing a bigger threat which justifiies the increased jail time, each category having dramatically different amounts of punishment makes it easier to prosecute cases and get convictions. Manslaughter, crimes that don’t involve criminal intent, carry lighter sentences. This makes it easier to get convictions because where some people on a jury might not want to lock up a 19 year old who killed someone while texting and driving for the rest of their life, they might find their actions deserving of a few months or years in jail. Likewise, those same people on a jury might have no problem throwing the book at a 19 year old who organizes and participates in a drag race that results in someone else’s death. However, force a jury to treat the two crimes as being the exact same, and I bet the texting teen will walk many times because some on a jury won’t be able to bring themselves to lock him up forever.

When it comes to rape, I think a similar issue arises when the law treats a guy who doesn’t stop in the middle of consensual intercourse because a woman changed her mind or, by California’s new standard, someone who might not even know they raped someone because they were never told no or to stop the same way as a man who ignores the words no and stop from the start.

I think this is why some people would have a hard time sending people involved in the former scenarios away for decades of their life. It might even explain why some schools and police departments fail to even launch an investigation by inappropriately taking it upon themselves to decide the claims’ of a victim don’t fit the potential outcome for the accused. And I’m certain this has resulted in more than a few men in positions of power abusing their authority in this way because, factually speaking, they just can’t see all acts of rape as being the same. Some involve force and some involve a date. Some are not consensual from the start and involve violence or the threat of violence, and some only become non-consensual after, for lack of a better word, a lawful beginning and no force.

However, I do appreciate that there are far more issues surrounding rape and the way it victimizes women than I can possibly wrap my mind around. In talking about this topic with a friend, she quickly pointed out that date rape or taking advantage or a drunk girl, factually speaking, sounds a lot different than the scenario of a man who forces himself on someone. But, as she pointed out, the way it harms the victim can be even worse than being attacked by a stranger. There’s the violation of trust that comes with being raped by someone a woman knows or who was a friend.

While arguing against the idea of creating laws that would create dramatically different categories of and punishments for rape, she went on to say that the continued victimization that comes along with date rapes is especially bad if it goes unreported or unpunished. This, she said, is because the woman was attacked by someone she knows and someone who is likely in the same social circle as her. Repeatedly seeing her attacker out and about, unpunished and enjoying his life as though he were not a rapist can make her feel like she’s reliving the crime over and over again.

However, I think the key part of that last statement is the idea of it going unreported and unpunished. My whole point in bringing up the idea of creating categories of rape with wider variations in their degree of punishment is because I think it will make it easier to convict men of the crime by making it more likely men in power won’t thwart investigations and people on juries will hand out convictions because they will see punishments better fitting the crimes. In making it easier to convict rapist, even if it sometimes means punishing some less, my hope is that it will make more women willing to come forward to seek justice because they will feel there is a better chance justice will be served. And as more men become aware there are consequences for their actions, more will think twice about just what it is they are doing.

But, like I said, I’m no expert on this. And maybe there is more value in trying to advance the thinking of society to view and treat all acts of rape as being the same no matter the circumstances involved. I really don’t know. What I do know is that any conversation about what can be done to make sure more rapists are punished, more women feel comfortable coming forward and fewer rapes occur is a conversation worth having.

Brian M. Williams
Brian is the author of the recently published travel memoir "Stranger in a Stranger Land: My Six Years in Korea." (Click this profile for more information.) He's also a law school grad with Southern charm and Virginia roots. He recently returned to America after nearly seven years traveling and working abroad. He loves dive bars, international travel and foreign accents. He's particularly good at small talk and was the first person to notice there's no "I" in "team."

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