The Public Policy/Thinking About Rape
Haag, Ernest van den
THE PUBLIC POLICY Thinking About Rape by Ernest van den Haag Most trials leave no doubt that a burglary, a murder, a robbery was committed; the court must decide only whether the accused did it....
...The wish of some males to assert themselves by humiliating women by compelling sex has deep psychological roots...
...The rapist feels that he must force his victim to do what is in her objective interest, as he defines it, even if she does not realize that it is...
...But "acquaintance rape" and "date rape" are more problematic...
...It may be perceived as a personal offense, an insult, by those who are insecure, and have compensatory fantasies of irresistibility...
...With rape, however, trials often hinge on whether a crime even took place...
...It never was relevant...
...She is forced to submit to the use of her body to satisfy the rapist's desire to humiliate her—for, in rape, sex is a means, not an end...
...Her partner may feel that the liberties she permitted implied her consent...
...The rapist finds it outrageous that she is unwilling to surrender totally...
...I know of no case where limitations on, or the banning of, pornography has led to fascism, Communism, or even censorship proper...
...The wish to overpower is more central to acquaintance rape than to stranger rape...
...On the other hand, a man should not have to fear that being alone with a woman will automatically expose him to a claim of rape...
...Either could get what he wants by legitimate means: money can be earned, things bought...
...As sexual mores have loosened, rape has become more, not less, frequent...
...Pornography depicts women as fungible means for the gratification of sexual desire, implicitly denying that sex is more than the utilization of women for that purpose...
...When sex is greatly restricted by law and custom, a man's fantasies of irresistibility are not often impaired by rejections...
...No, rape was wrong because it violated the will of parents or husbands...
...The rejected person feels a greater need to punish those who impair his self-image or, worse, confirm it...
...Any additional crimes committed (e.g., robbery) can provide further evidence for lack of consent...
...After all, sex is available at affordable prices to anyone who cares to buy it...
...Why should he want to overpower her, then...
...so is ambivalence...
...But sometimes the man cannot be certain, because his partner is not...
...The rape of a virgin radically reduced her value on the marriage market, while the rape of a wife violated the husband's property rights...
...Nor is prostitution regarded as an admission of amorous incompetence, as it is now...
...Pornography has generally not been considered protected speech under the First Amendment, but courts have been reluctant to enforce anti-pornography laws...
...Majority Rule and the Public Good...
...1991, 125 pages, Hardcover ISBN 0-8448-1607-8 $35.00 Softcover ISBN 0-8448-1608-6 $19.95 Forthcoming in Spring 1992...
...Men do not expect non-marital, non-commercial sex...
...The idea of some feminists that anything but an explicit verbal statement must be taken as a refusal is patently absurd...
...women were usually married to men they hadn't chosen...
...Today, rape is thought wrong because it violates the victim's right to make her own choices freely...
...This volume presents a clear and readable account of the theory and practice of constitutional government in the United States...
...She may feel that she made her unwillingness clear, but that clarity may emerge only in retrospect...
...They will be grateful to have had the realization of their objective interest forced on them...
...She may communicate (or make) her decision only at the last moment...
...The very situations that make rape and claims of rape possible are indispensable to developing intimacy...
...How dare she resist him...
...Genuine willingness or unwillingness can be conveyed by non-verbal means, and is usually not hard to discern...
...Most people relinquish their childish fantasies of omnipotence and irresistibility as they grow up...
...The Constitution and Separation of Powers...
...The defendant will often insist that the sexual act occurred with the consent of the alleged victim, for if she consented no crime was committed...
...just as a robber takes a shortcut to obtain jewelry, the man who rapes a stranger takes a shortcut to obtain sex...
...So seduction—sex with a consenting unmarried woman or someone else's wife—was regarded as no better than rape...
...Is there nothing to be done to reduce the frequency of rapes (more than 130,000 last year...
...Ultimately the rape (or the revolution) will convince victims that they were wrong to resist...
...If the number of rapes is to be reduced, a willingness of courts to restrictpornography may be required...
...This is not as paradoxical as it may appear...
...The Separation of Powers in the Administrative State...
...Under such circumstances it is hard to find anyone guilty beyond a reasonable doubt...
...Still, a woman should be able to be alone with a man without fearing that he will assume eo ipso that she is willing to have sex...
...However, when non-marital, non-commercial sex is readily available, as it is now, rejection stings...
...Violation of the woman's will was not taken seriously...
...Although statistical proof is hard to come by, common sense tells me that pornography encourages those predisposed to assert themselves by raping women...
...Of course, not even contracts and laws are always clear...
...They might blame the victim for giving the rapist opportunities or "leading him on...
...a woman can be raped even if she is promiscuous or a prostitute...
...To be sure, other crimes, such as robbery, violate the victim's will, but a rapist does not take an object, as a robber does: he takes the very intimacy the victim wishes to reserve for someone else...
...Understanding American constitutionalism within the context of founding principles, the author examines the essential elements of the American system, especially the separation of powers and the rule of law...
...The victim may consent to sexual play but resist going all Ernest van den Haag is a distinguished scholar at the Heritage Foundation...
...And, without privacy, how will they find out whether they care for one another, or are attracted...
...But the shortcut seems easier...
...Rape is the most antisocial way of doing so...
...Just as Karl Marx thought that workers who do not share his view of 56 The American Spectator April 1992 their own objective interests suffer from "false consciousness" (they do not realize that they need a Marxist dictatorship), so the rapist believes that his victim suffers from false consciousness (she thinks she does not want sex with him...
...The Politics of Budget Control: Congress, The Presidency and Growth of the Administrative State John Marini, University of Nevada, Reno 300 pages, Hardcover ISBN 0-8448-1716-3 $45.00 Softcover ISBN 0-8448-1717-1 $19.95 To Order Call TOLL FREE 1-800-821-8312 Or Write To: Crane Russak, c/o Taylor & Francis, 1900 Frost Road, Suite 101, Bristol, PA 19007-1598 The American Spectator April 1992 57...
...Obviously, only because she does not realize what she actually wants...
...This defense, of course, is seldom persuasive in stranger rape: the man who jumped out of the bushes or broke into an apartment will have a hard time convincing the jury that the victim agreed to have sex...
...On the other hand, the man who rapes an acquaintance thinks: Here is a girl who trusts and likes me enough to invite me up or to come to my place...
...At first glance, this may seem odd...
...Prostitutes, too, may be patronized by men who feel a need to exercise power, but at least the women volunteer, which makes the humiliation less blatant...
...Unceasing attempts to seduce, to exhibit, to be approved of, are the least harmful ways they find to support their fantasies...
...Because she likes him, but not enough...
...relationships are far more ambivalent than contracts and laws...
...It is not certain whether rape is on the rise or whether it's simply being reported more often, but either way there is too much of it...
...Fears that such restrictions are a slippery slope to the curtailing of political or cultural freedom are not borne out by historical experience...
...Courts are capable of distinguishing between pornography and non-pornography, and have a compelling interest to act on their ability to do so...
...But, in practice, consent and refusal are not as clear-cut as the law presumes...
...Yet, opportunity—or the silliness or seductive behavior of the victim—neither excludes not excuses rape...
...the way...
...Equal Protection and Personal Rights: The Regime of the Discrete and Insular Minority...
...LI Crane Russak A member of the Taylor & Francis Group The American Polity: Essays on the Theory and Practice of Constitutional Government Edward J. Erler, California State University at San Bernadino The collapse of totalitarian governments around the world has provoked renewed interest in the problems and prospects of constitutional government...
...n the past, rape was thought wrong for largely material reasons...
...Contents: Natural Right in the American Founding...
...Yet some risk of actual or claimed rape is unavoidable, as long as people want privacy...
...Consent is less unlikely, and typically there are no witnesses...
...Genuine misunderstandings are possible...
...They may hold on to minor aspects of these fantasies, but generally become sufficiently aware of reality not to act on them...
...Some legal progress has been made, particularly in the inadmissibility of the victim's sexual history...
...Juries have thus been reluctant to convict, even when presented with evidence that force has been used...
...otherwise there would be fewer lawsuits...
...But stranger rape is committed largely by impulsive men...
...Yet some people retain undiluted an infantile refusal to acknowledge reality...
Vol. 25 • April 1992 • No. 4
