This distressing incident in California sounds like just another instalment in the seemingly perpetual bickering over ‘legitimate rape’ and ‘forcible rape’ that we have all heard so much about over the last year or so. A young woman fell asleep with her boyfriend. Her boyfriend left while she was sleeping and another man entered the room and initiated intercourse, also while she was sleeping. According to the prosecution, the woman resisted once she realized that the man was not her boyfriend. It seems that during the original trial, the prosecution put forth two arguments: first, that the incident was a rape because the woman was asleep when the accused first initiated intercourse. Second, that it was a rape because the woman was tricked into believing she was having sex with her boyfriend, and therefore did not consent to sex with the accused. Although the original trial led to a conviction, it has been overturned because the California statute addressing rape by fraud, which was written in 1872, only addresses the specific circumstance of tricking a woman into believing she is having sex with her husband. Because the victim in this case believed she was having sex with her boyfriend, the incident does not technically meet the definition of rape by fraud.
The accused will be retried, and may very well be reconvicted. Because having sex with an unconscious or sleeping woman is a rape under California law, the issue of fraud and mistaken identity might not be necessary in a new trial at all. It is, however, relevant in a more general sense because this case brings a slightly different angle to discussions about whether or not we should differentiate between different kinds of rape. It is tempting to simply say that we should not, to say that yes means yes and no means no and that is all there is to it. However, the vagaries of this case can remind us that such an approach might be too simple, and that what exactly constitutes consent can depend on the circumstances.
It is clear that this young woman in California was raped, both because she was not conscious and because the man was not who she thought he was. The combination of the two should help us talk about the complexities of consent in different contexts. I wondered, when reading about this, why the California legislature had ever felt it necessary to create a law addressing rape by impersonation. I vaguely recall a Greek myth about a god assuming the form of a woman’s husband in order to have sex with her, but it seems unlikely that even in 1872 rapists were in the habit of donning disguises to deceive their victims. It seems much more likely that the 1872 law was meant to address cases just like this one, where a woman who is sleeping or otherwise in a vulnerable position initially believes she is having sex with the man she loves, and resists upon realizing it is someone else. However, the fact that the woman was initially unconscious would also be enough for a conviction under California law, and that is where circumstance and context become relevant to any discussion of consent and criminality.
If you asked most people if having sex with a sleeping woman was a rape – they would probably say yes. If you asked most women if they would think it was a rape for their husbands/boyfriends to wake them up at night and initiate sexual activity – they would probably say no. The two questions look the same, but they aren’t because consent can work differently in different contexts and with different partners. With people who don’t know each other well or who are not in a relationship, consent is often explicit, which is as it should be. In the context of an intimate relationship, however, consent is often implied and that is worth remembering when we talk about different kinds of rape and how to respond to them. We all know that spousal rape happens and is deeply traumatic, but the way it happens is likely to be different from the way a ‘stranger rape’ happens. Date rape happens with disturbing frequency, but it too is likely to occur under circumstances that distinguish it from other forms of sexual violation.
It does sometimes seem like the only response to sexual violations is to say that rape is rape and all sexual acts require affirmative consent, but that approach is not cognizant of the way people actually behave in intimate relationships. Terms like ‘legitimate rape’ are inadequate and sometimes offensive but we do need to keep talking about how consent works in real life and how sexual assaults tend to happen under different circumstances. Talking about and understanding how consent happens under different circumstances can only help us prevent and respond to all forms of rape.