Fetish Friday: It’s Still Rape.

We’re gonna have a serious Fetish Friday this month, it’s going on today and tomorrow, and we’re gonna have one for an important reason. This is the “very special episode” of the Fetish Friday, you know, the one where all the readers become addicted to a stimulant in order to study, or where the neighbor takes pictures of the bos, or where a main character makes a new friend who’s being abused at home. If you want the full effect of this post, I suggest you find some heart-warming late-80’s, early-90’s background music to play over it as you read, because while there may be a couple chuckles, and while there may be a few off color comments, the fact is today’s post is deadly fucking serious.

To that end, let me tell you right now: If discussions of rape are going to trigger you, you need to stop reading and go find something else to do. It’s cool, I get it, we’ll still be around next week and you’re not going to miss anything big.  But it’s probably best you don’t read today’s post.

Because today? Today you little shitstains, I’m gonna talk about rape and consent.

A Brief Prologue

Alright, so Fetish Friday mainly exists to talk about legal issues surrounding common sexual and romantic kinks and relationships that fall outside of the norm. It’s not meant to be a heavy ass discussion of the legality of real fucking issues, but earlier this month I was having a discussion with someone online and that discussion turned into a commentary on the concept of “rape by deception.” I’ll get into what that means here in a minute, but what’s important to know about this conversation is that the other party, who I fucking hope was being a strawman, had serious questions about what does or doesn’t constitute rape.  A little poking around showed that there were still some issues out there on this whole thing, especially as things like “stealthing” (seriously, we’re getting to it) are being discussed in the media and in the legislative halls of our states.

So, I decided that would be the topic of today’s post. Rape that people argue isn’t rape. But I want to be really fucking clear here: I am not talking about consensual non-consent which is a very specific fetish I’ll get into in another post.   Those are two very, very different things.

I also want to take a quick moment and say the next needed thing: Criminal laws are state dependent, and each state is going to vary wildly in what is a crime, isn’t a crime, and even what the meaning of an identical word or element of a crime is based on the statutory interpretations and the holdings of that state’s court.  There is not one massive “set of crimes” for the country, and the closest thing we have to look to on this is the Model Penal Code , a suggested statutory book that states tend to refer to, but not really adopt, when they create their individual criminal code. So, unless I’m talking otherwise, any discussion of the law today is going to be based on the Model Penal Code as a general guideline, and you’ll have to find a lawyer in your own jurisdiction to get your state’s take on it. I’m not that lawyer. I’m certainly not your lawyer. I’m talking about and educating, not giving advice here.

Also, and quite frankly, I want to be clear: Do not message me with stories about your time as a rapist or questions about this. If you think you may be guilty of any crime, you need to once again go talk to a lawyer licensed in your jurisdiction. You don’t need to be talking to me. I’m not your lawyer, there is no attorney-client relationship, and there will likely be no privilege.

So…Let’s go, huh?

Common Law And Rape

Here’s the first thing you need to understand about crimes: we break them down into two general categories. There are malum in se crimes, which are crimes that, even if they were not criminal (which they are) would be wrong, and there are malum prohibitum crimes, crimes which are only wrong because we have made them crimes. An easier way to put it is a crime that harms a person or their possessions is likely to be malum in se, that is, a wrong in and of itself regardless of whether it was criminal. Malum prohibitum crimes tend to be crimes that “harm no person” other than, obviously, the person committing the crime and society as a whole for having the law violated.

Most malum in se crimes were not originally criminal through some codification of the law. They were wrong at the common law, meaning they were so damn wrong nobody said “Oh shit, I should write down a list of the ways people can be convicted of this.” These crimes were so inherently bad that over time courts recognized them as such and developed the law that still controls them, in part, to this day. It wasn’t until we needed a hard definition of the law, normally to remove some discretion or just to, you know, be an orderly society at all, that we started codifying these common law crimes into the criminal codes we have today.  Even then, criminal codes change and evolve over time.

Let me be clear: the common law crime of rape was extremely fucking narrow. It was the “forcible penetration of a woman without their consent,” and was commonly limited to penetration of a penis into a vagina, required a use of force (and not simply a threat that force may be used), and, in some cases to show the lack of consent, required the woman to fight back. Failure on any of those meant the failure of the rape charge. It did not cover oral or anal rape (what we call per os or per anus), which fell under sodomy laws or sexual assault laws, and did not include anything less than full on penetration. Can you see the problems with this? I fucking certainly can.  But, for the purposes of this article, when I say “rape” let’s assume I’m talking about “Rape” and “Sodomy” in the same class, because frankly, that’s what people think of: non-consensual sexual penetration, no matter what hole it goes in.

So, to alleviate this, states began to codify rape law, first strictly hewing to the traditional interpretation, then expanding it. Actual force was no longer necessary, just a threat of actual force or a “threat that would cause a normal person to submit against their will.” Fighting back was no longer required to show a lack of consent (maybe because rape was beginning to have a bad tendency to turn into…you know…fucking murder as a result of this.) Oral and anal rape began to start to be considered. The law evolved.

But…it hasn’t evolved that much when we start talking about the meaning of “consent.”

North Carolina, Where “No” Means “Yes.”

North Carolina has an interesting fucking history.  It also has some shameful parts of their history. One of the more shameful parts of the history of North Carolina is the decision rendered by the state’s Supreme Court in 1979 in a case called State v. Way, 254 S.E.2d 760 (N.C. 1979).

In that case, a defendant was on trial for rape. The encounter had started consensually, and the defendant and his victim “B” were engaging in sexual intercourse. At some point, however, “B” clearly stated that she no longer wanted to have sex and told the defendant to stop. Now, we all know that this is presented as a case of rape to us today: Consent can be withdrawn. If you say “yes” but change your mind, them continuing is rape, right? We all had that course in college, didn’t we?

Well…I mean, not in fucking North Carolina. In that case the defendant was convicted of rape. However, the Supreme Court of North Carolina overturned the conviction, stating that because the operative moment for the commission of the crime was when the penetration actually occurred, he couldn’t be guilty. He was already in, so to speak, and had gotten in with consent. As such, he hadn’t started a new sex act or another instance of penetration unless he had pulled completely out, then re-entered her.

Yes. Fucking seriously.

Based on State v. Way, the current state of North Carolina law is that, so long as an encounter begins consensually it continues to be consensual, despite a victim withdrawing consent, until the first act of penetration ends. Legally, this means your rapist may not be convicted of rape so long as they don’t pull out at any point and then re-enter. In other words, your rapist could have a legal defense that, even though you’ve asked them to stop, they’re allowed to finish first.

Chew on that for a moment.

But, at least that was overturned and doesn’t continue to be North Carolina’s law to this very da…oh goddammit.

In Oklahoma, Don’t Sleep With Your Mouth Open.

Recently, the Oklahoma Court of Criminal Appeals released an opinion called State v. R.Z.M. which sounds really innocuous, even when you read the Summary Opinion of the court. It’s not long, about two pages, and merely affirms an order of dismissal on a charge of sodomy. The order doesn’t make the case interesting…but what it doesn’t say (but absolutely holds) does.

Alright, so Oklahoma has a rape law and a sodomy law. The rape law covers anal and vaginal intercourse, and makes it rape when a person engages in such activity with a victim that is too intoxicated to consent. The sodomy law, however, doesn’t. The sodomy law requires the use of force and proof of non-consent, and does not state that intoxication means a person cannot consent.

In the underlying case, which you can read about here, two high school students got shit-faced. On the way home, the boy student received oral sex from the girl student. The girl student was fucking black out drunk. The male student was charged with rape and sodomy, and the rape charge was dismissed based on the fact he did not have vaginal or anal intercourse with her. Then the sodomy charge was dismissed, because while the female student was too drunk to consent to vaginal or anal intercourse (and therefore would have been raped if it occurred), the sodomy statute contained no such restriction. Because intoxication was not statutorily defined as invalidating even seeming consent, the male student was convicted of no charges despite admitting to what happened.

And, yeah, I see the incoming MRA activist argument that “he was probably just as drunk” and shit like that, so let me cut that off right here: That is a dangerous precedent to set and we already have protections in law for the incapability of a person to form the appropriate state of mind for a criminal act based on those grounds. Had it continued, he could have raised that as a defense, certainly, but if he admitted knowing she was drunk, the gloves are off boys and girls.

Also, holding otherwise would have opened the door for your buddy to force you to give him a blowie while drunk. Do you want to suck Earl’s dick sober? No? So is it okay for drunk you to say yes to something sober you would say no to?

Unlike North Carolina, however, the outcry from this one resulted in swift action, and the loophole was quickly closed.

Why Are We Talking About This Part?

Because, in a rare double whammy, I’m coming back TOMORROW to talk about the actual issue I’m here to discuss today: what is and isn’t considered consent in rape, sodomy, and sexual assault situations, and why it’s such a hard fucking question to answer. The shit up there? That’s just the prologue to tomorrow’s post on the whole damn thing. I need you to understand that what the law will define as “consent” and what the law will define as “non-consensual,” and even when it does or doesn’t matter, is very fucking specific as to where you are, what the act is, and how it happened.  Because tomorrow I’m going to talk about some shit people are not going to agree with on a couple issues that relate to rape, sodomy, and sexual assault on a purely legal basis, and I want you to know, right off the bat, that this isn’t an easy legal question because the state of these laws is very much in flux at this time.

This isn’t to say that any of it is morally okay. It’s not an easy thing to deal with legally, though, and it’s an even harder thing to discuss openly like this. Please, please, please, understand: I’m talking about this from one perspective, and that is the analysis of the legal situation surrounding consent and the applicability of it to certain situations in rape, sodomy, and sexual assault in general, and I’m doing that because I want people to know what needs to change and to be aware so they can protect themselves from being a victim and take action to institute the change that may be needed.

I know, guys. Today’s post sounds fucking bleak. I get it. And tomorrow…tomorrow I’m going full fucking bore on the shitstains that think they can force themselves on others, but I need you to have the basic understanding that the law on this matter is complex and varies from place to place before we go any further.

Tomorrow?

I can’t talk about all this in one day. I just can’t. This post is brushing up on 2,500 words, and tomorrow’s likely will as well. But it won’t be at like….8:30 a.m. I’ll have it up in the wee hours of the morning tomorrow for your reading pleasure, because it’s done just…I want to go over it a few more times first.

It’s a sensitive subject.

-BB

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.