August 29, 2007

Rape, or whatever...: A talmudic discussion of whether there can be rape without a victim "harmed" by the attack, here. Ezra Klein raises a strange analogy, likening the woman who doesn't feel "terribly traumatized" after a "non-consensual sexual act" to a "bookish type" who doesn't miss the TV set that was burgled from his studio apartment; in Klein's view, the perpetrator of the first act is as much a "rapist" as the second is a "thief." By the same token, if I get slapped in the face, but I'm not hurt, the slapper has committed "battery" just the same as if I had been punched in the jaw.

But since rape, like burglary, is a crime, not merely a verb describing a particular bad act, how the victim feels afterwards makes all the difference in the world. In prosecuting crimes, the DA's office will only proceed if there is a sense that harm has been imposed on a victim, for obvious reasons: it's next to impossible to convince a jury to deprive someone of his liberty unless they feel he's wronged someone in an egregious manner. With rape prosecutions, having a traumatized victim is even more important, since the element of consent is not all that easy to prove, especially since eyewitnesses are not likely going to be available to decide the issue. And having a victim who feels like she's been wronged is always handy when you're proceeding to trial; the last thing a DA wants is to have the supposed victim appear before the jury as a reluctant, unsympathetic, or even hostile, witness.

If all you want, though, is to decriminalize "rape," to turn what has been viewed for millenia as one of the worst crimes people can inflict on each other, into a mere insult, like calling someone a "thief," then by all means, parse away.

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