It's been a while, hasn't it?
It occurred to me the other day that this is Sexual Assault Awareness month. I wrote an essay in the fall for my ethics class that details an important issue in society today; I thought I'd post it here if anyone is interested (I got an A on the paper!)
Rape: A Moral and Legal Dilemma
In his Nicomachean Ethics, Aristotle defines justice to be the highest virtue, “more admirable than the morning and evening star,” which I believe is also true for present day society (Nichomachean Ethics, 114). Today, justice is seen as primarily rectificatory, with the law providing the foundation for justice in every day life, especially protection and correction for crimes. In society, sexual assault is arguably one of the most demeaning and morally atrocious crimes that can be committed against another human being. Like the opening of television program Law and Order: SVU states, “sexually based offenses are considered especially heinous.” However, sexual assault is one of the most grossly underreported and under prosecuted crimes. Justice for victims who have been violated in the most intimate nature is lacking in American society, and one of the reasons for this lack of justice is the legal system is confined and defined by terms that are far too narrow. From an Aristotelian perspective, the current ‘rape culture’ that plagues America creates a moral dilemma in which the highest and most fundamental virtue in society gets trapped in the confines of its own system, a legal system that was created to maintain law and order in society, but that ultimately fails in providing justice for sexual assault victims.
Aristotle’s definitions of various types of actions a person can perform are vital in understanding the present-day legal definitions for rape and sexual assault. In Nicomachean Ethics, Aristotle describes three types of actions: voluntary, which is performed with willing participation; involuntary, which he defines as is “an act done under constraint when the initiative or source of motion comes from without … in which the … person acted upon contributes nothing,” (Nicomachean Ethics, 52); and non-voluntary, which is takes into account an act done in ignorance. In addition to these three separate classifications, Aristotle describes ‘mixed’ actions, in which the type classification of action is not inherently apparent. In his book, Aristotle uses the example of a boat that is about to run ashore. The sailors, faced with the dilemma of discarding their possessions, throw everything overboard in order to lighten the load of the ship. Aristotle explains that this action in itself is voluntary, because the men are moving their own bodies to throw their belongings overboard, but the essence is involuntary, because one would never do such a thing voluntarily unless absolutely necessary. Similarly, Aristotle links these definitions closely with the definitions of justice. He explains that justice deals with one’s relation with others, and is either distributive or rectificatory. According to Aristotle, rectificatory justice deals with involuntary occurrences in society, such as theft or assault, and works to remedy the losses obtained by the victim.
Although written from a far earlier perspective, I believe that Aristotle’s theory of justice is analogous to the modern day U.S. justice system, especially regarding the definitions of the various criminal actions. It is precisely these definitions that confine sex crimes into a hardly prosecutable box, leaving victims completely devoid of justice.
In the American justice system, rape is defined as “the carnal knowledge of a woman by a man forcibly and unlawfully against her will” (“Rape”). In Aristotelian terms, this would be the epitome of an involuntary action. Because consensual sex is defined as voluntary participation, the opposite of this, involuntary, must be defined as forceful. Many states currently define rape as something vicious and forceful, and that evidence of physical force must be present in order to have any chance of seeing a courtroom (“Rape”). This legal definition implies that the victim must be wholly helpless, fully over powered, and contribute nothing to the situation, which completely parallels Aristotle’s definition of involuntary action. This provides a stereotypical view that rape is perpetrated by a dark hooded stranger, on a small helpless female, in a dark alley late at night.
However, the majority of sexual assaults, 73%, are committed by a non-stranger in a familiar setting (“The Offenders,” RAINN). One particularly upsetting implication of this definition has created a term to define sexual assault that falls outside of these parameters, namely “gray rape.” This term nearly mirrors Aristotle’s definition of mixed actions, and is illustrated in various ‘types’ of rape: date-rape; rape involving intoxication of the victim and/or the perp; spousal/partner rape, which until recently was not legally considered rape (because consent is implied in the marital contract). Per Aristotle’s definition, many of these situations are seen as mixed, yet would be viewed outwardly as ‘voluntary,’ because much of the time extreme violence was not used, which implies that the victims partook in the action in some way.
In my research for this essay, I discovered the following stories on a survivor’s message board : (note: due to the sake of anonymity, I have not cited the actual message board, nor the survivor’s names)
When I was raped in 2007, I went to the hospital and the SANE nurses did a rape kit. One of the women said, "Oh this is great! I found a hair that is not yours! They collected samples and submitted them to the state lab. The police didn't believe me. They said, "Maybe you were just drunk." I called repeatedly to follow up. Finally a detective (female) sat down with me and made it pretty clear that no one cared and "even if they could find the guy, all they could prove was that I had sex with him." I had to sit there and cry at her desk until she believed me. The lab said they had "inconclusive" results. They never received the hair. The cops closed the case and gave up.
Another survivor says something similar:
"I had a horrendous experience all the way through. The police officer actually told me it was my fault. I should have gotten away. And my case is still pending, no one will respond to me. I reported the officer. It has been a nightmare."
Cases like these -- and especially sexual assaults that occur when one or both parties are under the influence of alcohol or drugs -- are sadly far too common. . When consent, i.e. "voluntary action," is not completely clear, involuntary action is difficult to prove, and the police seemingly do not want to waste time on cases that demonstrate the epitome of Aristotle's definition of mixed actions. This brings up another Aristotelian term that is critical in the moral dilemma associated with sexual assault, and that is cases that involve actions done in ignorance.
Aristotle uses a chilling example to illustrate this principle: “When a man is drunk or in a rage, he is not thought to act through ignorance, but through intoxication or rage, and yet not knowingly, but in ignorance” (Nicomachean Ethics, 55). A person may be ignorant of what he is doing, and his actions may be excusable, even if the act committed is atrocious (Aristotle uses the example of mistaking one’s own son for an enemy and killing him). This definition further illustrates the moral dilemma associated with defining sexual assault, especially in cases of ‘gray’ rape, where perhaps alcohol and drugs are present. If a man is seen to be intoxicated, it makes the rape accusations less believable in the eyes of the law. Aristotle goes even further and says that a man who acts in ignorance can be seen as acting involuntarily … even in the case of sexual assault. This tactic is extremely easy to use in situations where alcohol was involved, because it is much easier to confuse non-consent with consent, which, in turn, can make a rapists actions seem legitimately innocent., Another survivor illustrates this unfortunate situation:
"The cops were called. I had been incredibly drunk, and high. They told me I wasn’t drunk enough to not consent, that I must’ve consented. Even though I had tried to tell him to stop. I also told one of my really good friends shortly after, and he said that maybe I shouldn’t label this guy something so terrible when he could’ve been just as drunk as I was. It was a nightmare. I was sick every night with the stress and the confusion. So I decided to bury it and just pretend it never happened."
Cases such as this example illustrate the dichotomy between protecting the victim and protecting the rapist. The U.S. legal system, at least viewed historically, seems all too eager to protect a man who, in the eyes of the law, was most likely acting in ignorance, and therefor does not deserve to be labeled a rapist. It is tragic illustration of the ethical problem associated with rape: the legal system ostensibly strives to seek justice for victims of crimes, yet at the same time rape is one of the only crimes so scrutinized by law enforcement officials, and one of the only offenses in which the victim can be, and is often, blamed, especially in situations like the preceding examples.
All of these examples illustrate a critical moral dilemma that is coming to the forefront of public opinion and debate, as seen in Joe Biden’s presentation to the University of New Hampshire this past April, where he summed the issue up quite succinctly: “Look folks – rape is rape is rape” (Grant, Elaine, “A New Era in Handling Campus Rape”). The problem present here can be assessed from Aristotle’s approach to justice from an ethical perspective. Aristotle describes one part of justice as rectificatory; namely, righting the wrongs thrust upon people in society. He deems justice to be the highest virtue. Yet for rape victims, true justice is perhaps hardly ever seen. Rape and sexual assault victims are pushed to the brinks of the system, due to the out-dated and poorly defined definition of rape, and the critical examination of the behavior of the victim. In essence, justice for rape victims is limited by the very system that was created to protect human beings, Aristotle makes it evident that the law, which is rooted in justice, seeks to promote the highest good for the people. For rape victims, the law does usually does not achieve this standard. The law easily throws out cases that cannot easily be proved beyond a reasonable, leaving victims stuck in a terrible limbo, and going against the very virtue that drives our society, especially because the victim’s behavior prior to the assault is usually scrutinized and criticized; sexual assault is one of the only crimes in which this type of denigration occurs. Biden illustrates this criticism, recounting the story of Jenny, a college student who had been sexually assaulted: “ …When she sought justice through the school, she was asked what she was wearing, how she was dancing, and whether she was sober. ‘The student judicial panel said they didn’t find Jenny credible because she had been drinking. They decided her rapist was a nice kid and didn’t deserve the punishment under the circumstances,’ Biden said” (Grant, Elaine, “A New Era in Handling Campus Rape”).
Today, there is a movement called “Rape is Rape,” in which victims' activists are working to convince the FBI to change the legal definition of rape. Currently, rape is defined as a violent sexual act, consisting of extreme force. Activists today are working to obtain a definition that defines rape as a lack of consent, instead of the use of force. The slight change of semantics would provide a much broader spectrum for what is considered sexual assault, in the hopes that more victims will come forward and obtain the justice they deserve. But until then, the ethical dilemma will still remain. 60% of rapes go unreported; out of all the ones that are reported, and factoring in those that are not, only 6% of rapists will spend time in jail; 15 out of 16 will walk free.
On a recent episode of Law and Order: SVU, character Olivia Benson consoles a victim whose case was thrown out due to alcohol, mixed action, and a desire to protect the man: “Sending him to prison isn’t gonna heal you. Healing begins when someone bears witness” (SVU, “True Believers”) . Yet for the majority of rape and sexual assault victims, there will always be a part of themselves missing, a part taken away by force, coercion, or mixed signals and shame. But for all these victims, that piece is still missing, no matter how the assault occurred. And it is because of the ethical dichotomy I've presented above that justice may very well never reach these victims. However, the future looks promising in re-defining rape. By improving the legal terminology, Aristotle’s highest virtue of justice will be more achievable for victims that deserve the rectification, and Olivia Benson’s consoling words will only be an echo of an old, unjust law that has turned in to a law that can help make victims whole again.