White Paper-Dohertyk9

Dohertyk9’s Proposal:

I set out to attempt to prove that consent is a social and legal construct rather than simply “common knowledge”. Consent has never been clear, but as it is defined today, consent is the constant expression of agreement. The constant expression of agreement is actually impossible, and therefore, every sexual act is rape.

However, after reviewing my sources and attempting to make causal claims about it, it became clear to me that data was extremely scarce and lacked uniformity. As Prof. found in his own research of the topic, the FBI recorded 85,593 rapes in 2010, yet the Centers for Disease Control and Prevention reported nearly 1.3 million incidents. Both had differing definitions of rape that made an enormous difference in how many rape cases are believed to have occurred. Based on prof.’s suggestion and my own speculation, I have decided to adjust my argument.

…You could identify the disagreement about rape’s definition as the cause of the wide disparity in rape statistics (DEFINITION, CAUSATION), leading to the inevitable problem that nobody’s numbers can be used to draw any general conclusions (REFUTATION). Then you use the test case of the BJS numbers to prove your point: THERE ARE WAY MORE RAPES than can be counted by the “forcible penetration” definition, so we shouldn’t be impressed by the BJS chart that forces the narrative of a radical reduction in rape over time.

-Prof. Hodges

This is precisely what I plan to argue: No one’s number’s can be used to draw accurate conclusions about how many rape cases actually occur within a given year. This is due to the incredible disparity in rape statistics. In particular, the numbers used by the Bureau of Justice Statistics, which report that there has been an overall decrease in rape cases  since 1973, should not be given any weight because it is likely that there are way more cases of rape than the Bureau reports. If you use a broader definition than the “forcible penetration” one, the number of rape cases in a given year skyrockets from the number reported by the Bureau of Justice Statistics. This is evident when reviewing the sheer difference in number between the cases reported by the Bureau of Justice Statistics and those reported by the Centers for Disease Control and Prevention.

1. Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada

Helpful quotes for my argument: “Based on my analysis, I argue that wife/partner rape is informed by societal and cultural beliefs about sexuality, intimate relationships and marriage, and rape myths. Although my study reveals that rape mythology and stereotypes are not as explicit as they have been historically, a little digging under the surface and some unpacking of the views and arguments presented by my interview group reveal the extent to which myths and sexism continue to inform the legal prosecution of wife/partner rape as well as the failure to prosecute it in many cases.”

-Ruthy Lazar (author)

The Essential Content of the Article: The author essentially argues that few studies have actually looked at how rape cases are processed in court. She notes that the arguments used in court for these cases are fueled by underlying themes of sexism and myths about sexuality and rape.

What it Proves: This article contributes to my argument by proposing that societal views affect the legal interpretation of rape. This will be useful to prove that the definition of rape is actually constructed by society and is not universal.

2. The Discursive Reconstruction of Sexual Consent

http://journals.sagepub.com/doi/abs/10.1177/0957926598009002002

The Essential Content of the Paper: This paper argues that in legal settings, although the complainant has the opportunity to tell their side of the story, the complainant often feels as though he/she has not truly had the opportunity to explain the situation in his/her terms. The paper argues that this is because the case is always framed by the people asking the questions in the debate. The paper further argues that the case is framed in a favorable way for the defendant because of societal views that a misinterpretation of verbal and nonverbal cues between women and men is not intentional rape on the man’s part, and therefore, the defendant is innocent.

What it Proves: This proves that the legal definition of consent varies depending on the courtroom. Even if an agreement has been reached on what the legal definition of consent actually is, it is very difficult to decide whether or not that definition has been met in the case (whether or not that legally defined consent was actually given.)

3. Re-examining the issue of nonconsent in acquaintance rape

(By Donat, Patricia L. N and White, Jacquelyn W)

The Essential Content of the Book: This book examines consent as a social construct. It explains in detail the effect of cultural attitudes, cultural metaphors, societal myths, sexual scripts, and the legal system on the definition of consent and rape.

What it Proves: The book proves that relationships are defined by those same cultural attitudes, cultural metaphors, societal myths, sexual scripts, and legal systems and therefore they define consent and rape.

4. Understanding the Unacknowledged Rape Victim

(by Kahn, Arnold S and Mathie, Virginia Andreoli)

The Essential Content of the Book: This book seeks to explain how some victims of rape do not consider themselves to be rape victims even though they experienced what would legally be considered rape. It argues that personalities, sexual attitudes and experience, affective reactions, reactions of peers, use of alcohol or drugs, and counterfactual thinking affect whether or not a victim will consider him or her self to be a victim.

What it Proves: This book proves that certain circumstances of rape are not considered rape even by the victim himself/herself. The person’s personality and experiences can alter what he/she considers to be rape. A person’s interpretation of the definition of rape can be altered by the legal or social definition and therefore even when a person has been victimized, he/she may not even consider it to be a victimization. This helps to prove that rape’s definition is relative and not universal.

5. Rape culture is normalized across college campuses

http://www.statepress.com/article/2017/02/spopinion-rape-culture-is-normalized-on-campuses

The Essential Content of the Article: This article argues that college students are desensitized to rape and therefore perpetuate rape culture. It states that “rape is about power, control and dominance.”

What it Proves: This article proves only that the author feels very strongly about rape and defines it much differently than others do. The author blatantly makes the statement that all rape cases are caused by “power, control and dominance”, but offers no factual proof of this statement. This article aides my argument solely because it proves that the definition of rape varies greatly from person to person.

Additional 5 sources:

1. Intimacy Without Consent: Lynching as Sexual Violence

https://search.proquest.com/docview/1034589333?pq-origsite=summon

The Essential Content of the Book: This book seeks to show that lynching has a tendency to involve not only violence, but also sexual violation of the victim, regardless of the victim’s gender. In addition, the race of the victim plays a large role; if the victim is black and male, the case is treated very differently than if the victim is white and male.

What it Proves: This proves that because cases of sexual assault are taken more seriously if they involve the violation of a female, especially a white female, legitimacy of rape is defined by a person’s gender and race. This will help prove my point that consent is socially constructed because factors such as race and gender should not matter if every person is equally capable of giving consent.

2. Party Rape, Nonconsensual sex, and Affirmative Consent Policies

https://search.proquest.com/docview/1807962270?pq-origsite=summon

The Essential Content of the article: This article shows that many college age men do not consider forcing a woman to have sex to be rape. 32% of college age men said that they would force a woman to have sex, while only 13% said that they would rape a woman. It also shows that the law tends to favor these often otherwise successful young men over their victims.

What it Proves: This proves that rape is defined differently depending on how you ask. Men view forcing a woman to have sex to be different from rape, when in reality, they are the same thing.

3. Concubinage and Consent

https://search.proquest.com/docview/1860064133?pq-origsite=summon

The Essential Content of the text: The text explains that wives and slaves in Islamic history had very different rights, even though slaves could be married off without their consent. Slaves could be treated far worse than wives and it would be perfectly permissible. However, their husbands needed to treat them better than their owners did.

What it Proves: This shows that what was considered acceptable in some situations was completely unacceptable in others. The law allowed for owners to rape their slaves, yet their husbands could not perform the same act under the same circumstances, or it would be considered illegal.

4. ‘Talk, Listen, Think’: Discourses of Agency and Unintentional Violence in Consent Guidance For Gay, Bisexual and Trans Men

http://journals.sagepub.com/doi/abs/10.1177/0957926516634549

Helpful quotes: “You don’t have to say no in words. Many people who are threatened, frightened, tricked or stopped from escaping feel so scared that they choose not to say anything and not to ‘fight back’. This is a way people survive sexual attack. The law says that your consent has to be given /freely/.” (Galop, Help & Advice, Your Rights & the Law, Consenting To Sex, Some Questions About What Consent Means)

The Essential Content of the article: This article explains the focus on men in the explanations of sexual assault and consent made by Galop. It helps to put into words the traumatic experiences people in the LGBT community have.

What it Proves: This article proves that there is always a neglected race, gender or sexual orientation when it comes to defining rape and consent. Because one type of person is always left out, the definition of consent always falls short of its intended meaning. In this way, the definition of consent is not universal. This helps my argument because it proves that for certain types of people, legal consent cannot be given.

5. R.v.A. (J.) And the Risks of Advance Consent to Unconscious Sex

https://search.proquest.com/docview/747126169/abstract/762991F7B5BE41C4PQ/1?accountid=13605

The Essential Content of the Article: This article describes the risk of agreeing to sex before one of the partners becomes unconscious. It explains that any misunderstandings in the advance consent or mistreatment of the partner during the unconscious sex could result in rape and therefore unconscious sex should be automatically considered rape.

What it Proves: This proves that consent is impossible to define in exact terms. The partner could agree to the unconscious sex before the act and yet it could still be defined as rape.

33 thoughts on “White Paper-Dohertyk9”

  2. Your White Paper demonstrates that even after we severely limit the focus of a hypothesis, a broad range of sources and disciplines can contribute to its complete examination.
    Source 1. The difficulty of prosecuting rape between spouses demonstrates very well the impediment of unclear definition.
    Source 2. I’m not sure that what you say is entirely true: “However, the definition of consent varies from case to case, which proves my point that consent is relative and therefore socially constructed.” I concur with your judgement that the definition of consent varies widely from jurisdiction to jurisdiction, but the way you’ve described your source makes it seem like better evidence for the other problem: Even when we agree to what consent IS, adjudicating whether it’s been given is very difficult.
    Source 3. Yeah. “Consent as a social construct” is the perfect mantra.
    Source 4. Brilliant. This source all by itself beautifully identifies the problem that NOBODY’S numbers can be trusted.
    —[STYLE NOTE: You’re struggling, understandably, with pronoun gender in an attempt to avoid sexist prejudice. You say: “Even when a person has been victimized, he/she may not even consider it to be a victimization.” The best fix I know for this problem is to avoid the pronouns by substituting nouns of type and sticking to plurals. “Even the victimized may not consider themselves victims.”

    Interrupted by other student concerns. Will return. Good so far?

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    1. Regarding your feedback:

      Source 2- Noted, I forgot to update my “What it proves” from my previous argument. I have now changed it to reflect your feedback.

      Source 4- As you mentioned in your comment, I have been struggling considerably with the use of pronouns. In one of my previous assignments, you pointed out that I made it seem as though I was only addressing man-on-woman rape. This was because I attempted to solve the pronoun problem by choosing a gender. I didn’t consider making it plural to avoid the need to specify, thank you for the suggestion!

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      1. Until we create some genderless singular pronouns for humans, English will have this problem. I’m afraid we’re going to settle on “they” and “them,” which will always sound wrong to me and is still not acceptable in formal writing.

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  3. Source 5. In this rare occurrence, as you correctly note, an opinion counts as evidence.
    Source Additional 1. This is an extremely tasty source, but its implications might lead you astray. Rapes against white women might be more likely to be aggressively prosecuted, but PERHAPS NOT because of confusion about consent. CLEARLY the lynched male, white or black, would not be consenting to sexual violation, but race might still determine the likelihood of aggressive prosecution. Yes, prejudice is always involved. Maybe, race colors the interpretation of consent. But be careful not to claim that it does if it doesn’t.
    Source Additional 2. Really? I need to read that study. Be right back.

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    1. Regarding your feedback:

      Source Additional 1- As you mentioned, this source may be more distracting from my argument than anything else. It is more related to the issue of race in law than the issue of consent in law. However, perhaps there is another way that I could use this source for my argument?

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  4. Making progress on that claim. I found this quote in your named source:

    Newsweek magazine reports, “nearly one-third of college men admit they might rape a woman if they could get away with it” (Bekiempis). Turns out, this is a telling misrepresentation of the results of the study, which found that approximately 32 percent of college men said they would force a woman to have sex, but only 13 percent of those said they would rape a woman (Edwards, Bradshaw, and Hinsz 188).

    So the claim is very secondary. I’ll go now in search of Edwards, Bradshaw, and Hinsz. Apparently they’ve been misinterpreted by Newsweek. Maybe your source misinterprets them as well.
    Back soon.

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  5. Found the primary source:
    https://www-liebertpub-com.ezproxy.rowan.edu/doi/abs/10.1089/vio.2014.0022

    But the search is not yet final.
    In the Abstract, new authors Edwards, Bradshaw, Hinsz indicate they got their survey data from a yet-more-original source:

    Sexual assault is a problem on many college campuses, and many researchers have conducted studies assessing the prevalence of sexual assault perpetration and intentions to be coercive. Behaviorally descriptive survey items (i.e., “Have you ever coerced somebody to intercourse by holding them down?”) versus labeling survey items (i.e., “Have you ever raped somebody?”) will yield different responses, in that more men will admit to sexually coercive behaviors and more women will self-report victimization when behavioral descriptions are used (Koss 1998) instead of labels. Indeed, some men will endorse items asking whether they have used force to obtain intercourse, but will deny having raped a woman.

    This search has taken on a life of its own that, admittedly, may be of more value to me than to you, but it’s also instructive of just how far claims can travel, and how much they morph as they are interpreted and reinterpreted.

    Off to find Koss if I can. Back soon.

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    1. Very intriguing. As you mentioned, I’m unsure of whether this information will actually prove useful to me or not…

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  6. Fortunately, Edwards, Bradshaw offered me a clear link to the full text online. “Denying Rape but Endorsing Forceful Intercourse: Exploring Differences Among Responders”
    That sounds pretty pertinent. Maybe this is the mother lode.
    Probably it is. But it’s an article by Koss contained in a book by Ann Wolbert Burgess, available at the Rowan Library.

    Rape and sexual assault II
    by Burgess, Ann Wolbert
    Garland reference library of social science, 1988
    Book :
    Available, HV6561.R368 1988, Campbell Library Stacks (3rd – 4th Floors)

    I wonder what is actually says.

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  7. Meanwhile, Edwards, Bradshaw offers this table that resulted from their own survey. As you might suspect, it indicates that the language used to describe an act elicits very different responses (based on the squirmy definition parameters you’re arguing).

    Table 1. Frequency of Intentions by Item Wording
    Intentions to force a woman to sexual intercourse YES 31.7% (n=26) / NO 68.3% (n=56)
    Any intentions to rape a woman YES 13.6% (n=11) / NO 86.4% (n=70)

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  8. Source Additional 3. Worth a sentence in your essay.
    Source Additional 4. You’re very clever. And by backwards inclusion, your Source Additional 3 is now more relevant since SA4 postulates that NOT ONLY is there always a group excluded from rape definitions, one person might be a member of an included group AND ALSO an excluded group depending on context and the parties involved. Nice nuance there.
    Source Additional 5. And right on cue, you serve up this beauty in which the same person can switch from an included to an excluded group within minutes, even with the same person, and even when consent was thought to be granted and understood. I disagree with your categorical claim that this source “proves that consent is impossible to define in exact terms.” You appear to allow in the same section that unconscious sex can never be consensual sex. That sounds pretty exact. But there’s room for you to be more right than me. You’re saying “consent cannot be clearly defined” while I’m saying, “nonconsent can be clearly defined.”

    This has been fun for me, DK. I hope my intrusions are welcome. I have tremendous appreciation for your beautiful analyses of these sources. Nothing but admiration.

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    1. Regarding your feedback:

      Addditional sources 4 +5: Considering all of this, how would you suggest that I progress with this argument? Do I attempt to argue that “consent cannot be clearly defined” or “nonconsent cannot be clearly defined” as the reason for the inconclusive data?

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      1. For now, both are useful approaches. Ultimately, you may not have room in 3000 words to do justice to both, so you’ll have to allocate words judiciously.

        Ask yourself whether you’re making a moral argument or a legal argument.

        The moralist who wants to know “Can we be good?” will be keen to know whether consent can be given or trusted.

        The judge who needs to know “Can we prove a crime?” will want to know whether non-consent can be proved.

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        1. I’m not sure that I can make a legal argument here. How can I prove non-consent if I cannot conclude what consent is? That being said, I suppose the best argument to make is to state that because consent cannot be trusted/given, morally correct decisions are extremely difficult.

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          1. If I argue that….would I be saying that intercourse is inherently wrong? Or that it is so ambiguous that it might as well be?

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            1. Calling it “non-consent” does make it seem that the term would be hard to prove without being able to prove consent, but that’s not the case. We can demonstrate being shackled without having to define being unshackled. When I say NO unambiguously, you don’t have to define YES to prove I denied my consent. No is much easier to recognize, especially as you have chosen to define consent: an unambiguous and constant state of total approval made continuously clear to the partner. By your definition, any deviation from that strict norm is non-consent.

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            2. And yes, by your strict definition, all sex that deviates from that strict definition of consent is nonconsensual and therefore rape and therefore inherently wrong. As thesis, it’s bold and clear. As a practical matter of law, it will gain few adherents. But as argument, it’s a breathtaking strategy to demonstrate how dangerously murky definitions can trap unwitting partners, create unfair feelings of guilt, and not inconsequentially take the fun out of love.

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              1. Thank you for clarifying that. So I will argue that the definition of non-consent is clear and very restrictive. If non-consent is any less restrictive, consent is too ambiguous to be determined.

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  9. I did track down that original Newsweek article by Victoria Biekempis
    http://www.newsweek.com/campus-rapists-and-semantics-297463

    Here’s the pertinent quote, which doesn’t appear to misinterpret the study, but offers instead a question we won’t be able to read until you find that book in the stacks at Campbell. Just kidding. But that’s what it would take to track down the original.

    Approximately 32 percent of study participants said that they would have “intentions to force a woman to sexual intercourse” if ‘‘nobody would ever know and there wouldn’t be any consequences.’’ Yet only 13.6 percent admit to having “any intentions to rape a woman” under these same circumstances. With the exception of one survey that was not counted because of inconclusive answers, all of the men who admitted to rape intentions also admitted to forced intercourse intentions.

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    1. Hm. Interesting. Would you suggest that I continue to use this source, or remove it entirely and proceed with the other sources you found from it?

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      1. The value of the Newsweek article is to point a researcher to the original source. It can’t be trusted to provide good evidence. It’s tempting, of course, but the more original sources will give you much greater opportunities to draw your own, accurate conclusions.

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