An old, dead debate is clawing up out of the ground: whether a woman who can’t show two black eyes and missing teeth or the legal equivalent of that was really raped.
That debate was called back by Missouri Senate candidate Todd Akin and his reference to "legitimate rape". But that reference led to a search for the position of other Republican candidates. That search led to the discovery that Akin and Paul Ryan had co-sponsored the so-called "No Taxpayer Funding for Abortion Act". That bill proposed to limit the rape-exception in a ban on government-funded abortions. The bill proposed to limit the exception from rape to "forcible rape". That language that narrowed the definition of rape eventually was dropped from the bill.
So there we go. What’s old becomes new. But the answers to this old argument have been around for over three decades. In fact, we can find answers in a case that was decided by the California Supreme Court that talks about rape law in California.
1. Threats, coercion, and sex.
Juoquin sold marijuana. Marsha smoked a little marijuana with Juoquin at his house. After 10-15 minutes, he started to hug Marsha. She pushed him away and told him to stop. He had overstepped, but she didn’t think that it was any big deal. But he kept on hitting on her, so she told him that she wanted to go.
He told her that he didn’t want her to go. But she got up, left the house, and went to the front gate.
Things turned hostile outside. He yelled at her. He refused to open the gate, and she didn’t know how to open it herself. Then he said that he would open the gate, but that he wanted to put on his shoes first. She followed him inside.
Inside, he continued bullying her. Several times, he reared back his fist like he was going to hit her. He told her that he was a man. He flexed his arm muscles. He grabbed her sweater collar and told her that with one hand he could lift her up and throw her out.
He boasted. He said, "I had bitches do anything I want. I have had bitches suck me . . . I have had them do that. I can make you do anything I want. You understand me?" He said, "You're so used to see[ing] the good side of me. Now you get to see the bad." She expected him to hit her.
She was afraid. About 40 minutes after she followed him back inside, he turned affectionate and started hugging her. She thought that he was psychotic. She decided to act as if she were going along with what he wanted.
Then he said that he wanted sex. He told her to take off her clothes. She refused. He said that she was going to make him angry. She took off her clothes. They had sex
2. Criminal courts.
In Superior Court, the jurors convicted Juoquin of rape.
But the Court of Appeal overturned the conviction. The justices said that the conviction could not stand because Marsha had not physically resisted.
And in fact that had been the law before Joachin confined and grabbed and threatened Marsha and had sex with her. But it was not the law when he did these things.
The case went up to the California Supreme Court. In a decision written by Chief Justice Rose Bird, the Supreme Court reinstated the conviction. (People v. Barnes (1986) 42 Cal. 3d 284.)
The Supreme Court first noted that physical resistance was no longer needed to prove rape. In 1980 the rape-statute was changed so that a rape was rape if the rapist accomplished it by forcing the victim to have sex by fear of violence.
In its ruling, the Supreme Court noted how the new definition of rape reflects a new understanding of women and proof of consent.
Historically, it was considered inconceivable that a woman who truly did not consent to sexual intercourse would not meet force with force. [Citations.] The law originally demanded "utmost resistance" from the woman to ensure she had submitted rather than consented. [Citations.] Not only must she have resisted to the "utmost" of her physical capacity, the resistance must not have ceased throughout the assault.
The law evolved, so that that need to show utmost resistance became a historical relic. Nevertheless, until 1980 in California rape wasn’t rape if the victim had not physically resisted or physically resisted only slightly.
This need for proof of physical resistance was based on distrust of women’s claims of rape. It was also based on false assumptions about a woman’s inevitable response to rape. As the California Supreme Court said, some women resist; others freeze. This "frozen fright" can be a "psychological infantilism" that looks like "cooperative behavior". Far from showing consent, the Supreme Court understood that lack of physical resistance could be the product of "profound primal terror". All of these conclusions were supported by reliable studies.
In fact, studies showed that physical resistance could fend off a rape, but that it could also lead to greater violence to complete the rape.
3. Judicial burdens.
The end of the need in rape cases to prove physical resistance has had judicial effects.
The effect of this law is that, yes, it is easier to convict a man of rape who in fact had consensual sex. This adds to the burden of an innocent defendant and his hopefully hard-charging lawyer.
But it also means that women have greater freedom from rape. A rapist’s ability to squelch physical resistance by making his victim feel a paralyzing primal fear is no longer a get-out-of-jail-free card.
4. Psychological burdens.
Any successful efforts of legislators to re-introduce the issue of "forcible rape" into abortion laws would have deep psychological effects.
I suppose that a rape victim who physically resists has at least the consolation of her courage. I would suppose that someone who was frozen in fear bears the risk of increased shame from her non-resistance. Efforts of the Todd Akins and the Paul Ryans would have the effect of narrowing the options and adding to the great burden of those victims who suffer the greatest feelings of shame.
5. Burdens on advocates
Some of my friends believe that a woman should not have the option of ending a pregnancy if she has been raped. I respectfully disagree. I mean both of those words. I respect them. And I disagree with them.
A substantial majority of Americans take the side of the rape victim. Given that substantial majority, any likely versions of the laws about abortion will protect the freedom of choice of rape victims.
That means that persons driven to protect the product of a rape will have to walk their efforts along the ancient ways. They will not be the law of the land; they must be the light of the world. If they succeed, it will be through love not compulsion. The choice will rest with the victim.
The recent Republican nominating convention had both too much imagination and too little.
1. Too much imagination
There was too much imagination in this sense: the whole convention responded to an imaginary Barack Obama sitting in a chair, an imaginary Obama that holds opinions and does things that the real Obama doesn’t.
For example, a major theme of the convention was that Obama is against small businesses. A fifty-dollar bill with the face of Draco Mulfoy has as much verity as that claim. It ignores Obama’s support for small businesses – like his administration’s loan program for small businesses. This canopy of a theme of the Republican convention came from X-Acto knifing certain words in a certain Obama speech. These words were picked away from the words that came before and after. The claim was not honest.
2. Too little imagination.
But there was also a lack of imagination.
I didn’t see most of the convention, but I trust conservative columnist David Brooks when he says that testimonies there about the compassion of Mitt Romney were moving. So let’s accept that Romney is a compassionate man.
Then how can he link himself by his selection of his running mate to the extreme part of his party that wants to cut away the social safety net? How can he in that way link himself to the members of his party who, as Bill Maher says, want poor people to find their food in the woods?
Mr. Romeny appears to have compassion for persons who stand in front of him, persons he knows. If someone he knew were hungry, he would probably feed that person. If they were sick, he might try to find a way to get them cured.
But if that person is not in front of him, if he doesn’t know them, then he seems unable to imagine the harm he would do by, say, stopping the government food-stamp program. And he can’t imagine the death or bankruptcy that would come with the end of Obamacare.
Make no mistake: without food stamps, people will go hungry. In fact, even with that program, people live in America who are, in sterile social-science speak, "food insecure". Without that program, children will be stunted in their growth. Without that program, adults will die. Particularly the elderly. Particularly the sick.
People will steal to survive. People will pilfer to fill their children’s mouths. Some of them will get caught, get prosecuted, get convicted. With the stigma of a criminal conviction, their ability to feed themselves and their children will be more dire than it was before.
If Obamacare is repealed, people who give birth to children with birth defects will go bankrupt saving their children. That’s because insurance companies won’t sell health insurance for a baby born with a "preexisting condition." The baby’s parents will have to choose between going bankrupt paying for medical care or buying their baby’s coffin. And they might both go bankrupt and bury their baby.
If Romney could imagine this, maybe his compassion would not permit him to allow it. But he can’t or won’t imagine it. So he has embraced the social-Darwinists of his party. He has (literally) embraced the Paul Ryans who claim they want to "free" poor people from dependence on government. This is the freedom to starve. This is the freedom to die. Imagine it, if you can.
So far as I know, no soldier in American history has chosen to put himself in harm's way for the freedom to go hungry. It isn’t much of a freedom. There’s got to be a balance that permits essential freedoms, but which doesn’t convert us to some kind of Dickensian dystopia.
3. Failure of imagination: it couldn’t happen here.
There’s another potential failure of imagination. That’s the failure of the imagination of the electorate. That’s the electorate that might select Mitt Romney and Paul Ryan in November.
We human beings typically have a hard time imagining a radical change from what is. I suspect that that’s one reason that a prophet like Jeremiah could prophecy that his countrymen would be reduced to literally eating their own sons and daughters, but the reaction of those countrymen was something like, Yeah, whatever.
This lack of imagination affects us today. There is not now mass starvation. So we can’t imagine mass starvation among us through the policies of a major American political party. The image and idea of mass starvation in America seem incredible, the product of a severe fever, not careful thought.
We often can’t imagine a future without a social safety net, even though it is a marquee idea of the Republican Party. And even if we imagine the dynamiting of our dams that hold back hunger, we can’t imagine the flood of suffering that will flow from that policy.
The practices of our compassionate government rose from the suffering of The Great Depression. The potential repeal of those practices comes at a time when few men and women live who remember the time that gave birth to them. This is probably not coincidental. Perhaps the practices will die with living memory of their reasons.
4. Imagining a worse possibility.
Or it might be worse than that. It might be that small-government conservatism is so appealing that it makes mass suffering tolerable to many people.
Ayn Rand has many disciples, and she despised compassion. In a time before he chameleoned himself to blend with compassionate stage-scenery in Tampa, Paul Ryan compelled new employees to read Atlas Shrugged. Ayn Rand would have kicked into the gutter poor Lazarus, the beggar who Jesus spoke of. The only thing that might have stopped her is if he were already in the gutter. Certainly, she would not have lifted him out of the gutter. She would not have bound up his sores. She would not have given him bread.
(The parable of the rich man and Lazarus is at Luke 16:19-31.)
5. This election.
Imagine a parable of a man beset, not by bandits, but by hunger. Or ill health. Or lack of education. Imagine a priest and a Levite and a small-government conservative who cross the road to avoid that helpless man. (Luke 10:30-37.) Who will be the good Samaritan to help him?
This election is a choice between the candidates who want to cross the road and the candidates who want to help. Imagine the difference that the election of one side versus the other will make. Literally: please imagine it. Because elections have consequences, and this election will make a difference in hunger and in health and in education and in prosperity.
Prayer: Lord, your word says that as iron sharpens iron, so one person sharpens another. Let it be so in this debate. And if anyone’s imagination is stimulated by this piece, perhaps their prayers will be, too – including their prayers for me, which I covet, to make my own imagination pleasing to you.
