Laws are supposed to, vaguely at least, reflect our moral intuitions.
But when it comes to sexual assault, US law and morality are wildly divergent. The latest manifestation of this divergence, which is both shocking and depressingly standard, came from Oklahoma, where a court ruled that oral sex is not rape if the victim is unconscious from alcohol.
The court explained that a victim’s inability to consent due to drinking alcohol is not explicitly listed in the statute as constituting force. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language,” they added.
There’s little wonder the law issues such immoral verdicts given the history of sexual assault law in the United States says Heidi Lockwood, philosophy professor at Southern Connecticut State University. The first versions of sexual assault law in the United States viewed the crime as a violation of men’s property, she adds.
Lockwood points to one 19th century case where Chief Justice Lumpkin lamented “the destruction of female innocence robbing woman of that priceless jewel which leaves her a blasted ruin.” He went on to outline the seriousness of sexual assault:
“In what has society a deeper concern than in the protection of female purity and the marriage relation? The wife cannot surrender herself to another. It is treason against the conjugal rights. Dirty dollars will not compensate for a breach of the nuptial vow. And, if the wife is too weak to save herself, is it not the privilege of the jury to say whether the strong arm of her husband may not interpose to shield and defend her from pollution?”
Lockwood points out that the US inherited British medieval common law, which viewed women and children as a form of property. She says the vernacular of US law portrayed sexual assault as a violation of men’s property rights until the ‘70s. For many centuries, there was a strong emphasis on the role of force in sexual assault—it was thought only women could be raped, and that the victim should fight to protect her and her husband’s “conjugal rights.”
The shift away from the use of force in sexual assault is relatively recent. Lockwood points out that, until 2002, the Department of Justice’s definition of rape was “the carnal knowledge of a woman by force and against her will.”
Sexual assault law is now largely more focused on consent, rather than force, but this also has troubling implications.
Lockwood says the law is often interpreted as requiring the victim to prove that she or he did not give implicit or explicit consent. The suspicion that the victim might be lying “defines the way rape is prosecuted today,” she adds.
“It is worth noting that there is no other type of assault in which the victim must prove that she or he is lying, or, worse, did not ‘ask for it.’ If I report that my wallet has been stolen, I do not first have to prove that I did not intentionally hide it.”
In the case of Oklahoma, Lockwood says that the court is essentially demanding that every possible form of consent is codified into law, and that the underlying problem is the emphasis on requiring victims to prove that he or she did not consent.
Tim Kenyon, philosophy professor at the University of Waterloo, points out that the law lists “unsoundness of mind” as a condition that makes actions forcible, and that “it’s no great leap” to see unconsciousness through alcohol as a temporary unsoundness of mind.
However, he points out that Oklahoma criminal rape law explicitly made clear that vaginal or anal penetration of someone incapacitated by alcohol counts as rape, but did not add this distinction to the oral sodomy law.
“This is an ugly mix of antiquated laws that carve up sexual activities into different legal domains according to some puritanical code, and legislative half-measures that update some of those laws but not others,” he says. “This puts courts in the position of either doing the legislating themselves—which they are supposed to avoid—or delivering grotesque, horribly unjust verdicts like this one.”
Though the Oklahoma decision is particularly egregious, it’s just one example of a broken system. Only two of 100 rapists spend time in prison, 68% of sexual assaults aren’t reported, and those victims who do go to trial are often traumatized by the experience.
Given the legal systems failings, says Kenyon, little wonder that victims are starting to address sexual assault outside of criminal courts. Instead of going to trial, victims are turning to civil litigation to demand some form of justice. In such cases, victims publicly speak out about assaults they’ve suffered, and then sue for defamation if the alleged attacker denies their claims.
Legal remedies are a blunt instrument says Kenyon, but they should at least roughly capture our moral intuitions.
“When you get a legal system that’s pathological in some sense, either because it’s unfair to people or it’s incomplete or re-victimizes victims, it’s particularly foreseeable that the law and the morality are going to come apart,” he says. “You’re going to see people looking for alternative ways to find legal or extra-legal remedies.”
These failings mean that the law on sexual assault does not carry moral weight. Just because someone is found legally innocent, by no means does this mean that they’re necessarily morally right.