Last week, the governor signed a bill bringing Washington State's rape laws into the 21st century by finally eliminating the "marital exemption" to our third-degree rape and indecent liberties laws. The law used to say that these crimes had been committed unless the victim was married to their rapist, in which case what had been a crime was magically rendered not a crime. Which is clearly fucked.
Nevertheless, some people—Slog commenters, state Senator Elizabeth Scott (Rrrrr-Monroe)—were confused.
Senator Scott, who was the sole NO vote on this bill (as she likes to brag, she's a BA-holding linguist), defended her vote by saying, "This bill requires absolutely no proof that rape occurred—because there couldn't be any." Scott sent that in an e-mail to a constituent. WRONG. Totally wrong. This bill, in fact, only strikes language saying that if what occurred is legally defined as third-degree rape, then it doesn't matter whether your husband raped you or a stranger did, it's still a crime. Whether or not she believes in the existence of third-degree rape isn't actually relevant here.
"As a linguist, I hate it when words are twisted beyond recognition. Rape used to mean rape," she continued.
First: HAHAHA, WTF.
Second: "Rape" still means "rape," whatever your bullshit linguistic red herring argument is supposed to mean. "Consent" is about communication, and we're not the Borg and we're not telepathic; we have communication breakdowns. Sometimes a rape doesn't look like a made-for-TV movie with a brutal stranger accosting you in a park. Sometimes your rapist is your friend. Sometimes you've had sex before. Sometimes you feel like it's your fault. But that's why there are laws. There's a legal definition of crimes, and there are lawyers and judges and juries involved in deciding whether or not a sexual encounter is against the law.
But, since people were asking, what exactly is third-degree rape?
I took my question to David Martin, a King County prosecutor who heads the domestic violence unit. Third-degree rape is "everything short of using force," he explained. "If someone says 'no,' and you do it anyway, should that be a crime? What legislatures all over the United States have said is 'no' means 'no.'"
People talk about fighting off an attacker—but is that the only way to deny consent?
"Should a victim have to fight? Do they have to use violence?" he asks rhetorically. "Or do they get to say, 'I get to do with my body what I feel is appropriate'? If you tell someone, 'You can’t come in my home, I have property rights,' if they do, they’re committing trespassing." You don't have to physically fight them for that to be a crime. Why should that be different when it comes to your body?
"You can’t invade another person’s body sexually without their permission," says Martin. That's what the law says.
On marital rape, he tells me, "For a long time, these laws were on the books because women were looked at as chattel, as property. It was a form of rape that was seen as legitimate." In the domestic violence unit, while he admits there's there’s "a huge problem with reporting" and there are definitely "barriers to the ability to prosecute," they're also "among the most important cases that my office does." Raping one's partner as part of a pattern of abuse, says Martin, has "taken violence and compounded it with something equally if not more horrible—that is, sexual violence."
If you're still unclear on this whole rape thing, Martin gave me published examples of third-degree rapes, from the appeals court. Here you go:
State v. Higgins:
Mr. Higgins again tried to wake N.N. and began tugging on her shorts. Mr. Higgins asked N.N., “ ‘Do you want to?’ ” or “ ‘Can we?’ ” and she replied, “ ‘No.’ ” Report of Proceedings (RP) (Nov. 12, 2010) at 81. N.N. went back to sleep. Mr. Higgins eventually moved on top of N.N. and she thought he was trying to leave the tent to go to the bathroom. She scooted under him to allow him access to the tent door. Mr. Higgins then pulled N.N.'s shorts and underwear down. She said, “ ‘Stop. You're drunk.’ ” Id. at 82. He responded, “ ‘oh, well, you're drunk too.’ ” Id. She repeated “stop” five or six times and started crying. Id. at 83. She struggled to get out from under his body weight. Mr. Higgins pulled his own pants down, pinned N.N.'s arms and had sexual intercourse with her.
State v. Ramos:
According to Monterrosa, Ramos asked her if they could talk because he was experiencing a lot of problems and felt lonely. Monterrosa was nervous, but reluctantly agreed. They walked to Ramos's girlfriend's truck in the parking lot. After Monterrosa sat down on the edge of the back seat, Ramos told her that he would not let her out of the car and ordered her to get further inside. He pushed Monterrosa and climbed into the truck. He got on top of her and started to pull down her pants. Despite Monterrosa's repeated protests, Ramos pulled her pants down to her knees and had intercourse with her. Monterrosa said “No” many times, but did not scream or hit Ramos. Afterwards, Ramos instructed Monterrosa not to tell anyone, or he would continue to grab her whenever he saw her.