Trigger Warning: Before I begin a post on this subject, I would like to give a warning to readers. I will discuss the idea of rape from a cost and benefit perspective. This is not meant in any way to justify the action, only an attempt to explain it. If you have any traumatic experiences that may be relived through this post, I still recommend you read this, but keep in mind that you are loved, respected, and deserve nothing but happiness your life.
This is as good a point to start at as any for a solutions based approach to problems of society. Rape culture is a real issue, and there are many negative effects to society as a result. I’ll start by going through a short examination of these(note, that this is by no means intended to be exhaustive, just to be enough to set up a potential beneficial action).
Let’s start with the question of “What is rape culture?”. This may be difficult to conceptualize, and near impossible to reduce to a formal argument. Rape culture is multifaceted, and pervasive at many levels. This blog is targeted toward solutions, which necessitates the reduction of things into tangible pieces that can be used to form a conclusion, but many issues do not contract to a point. I would encourage you to explore this issue, and explore the many ways it can affect reasoning, processes, and ideology. If you are in any way unsure of what rape culture is, or how it is prevalent in societal structures, I would recommend this post from Everyday Feminism as a starting point. Given the large scope of the problem, the focus of this post will be a narrow aspect of the issue in general. Here I will look at rape culture from a limited perspective of the acceptance of violence against women as a matter of course, and more particularly, with regard to the legal system. Even with this narrow view, we have to be careful in dissecting what exactly it means to be violent. Is violence necessarily a physical action, or can it also involve emotional considerations? Is manipulation toward an act of self harm an act of violence by the manipulator, or does accountability ultimately fall on to the person who preformed the act? Here, we also need to be careful about what we designate as “bad” and “good”. I’m going to wait on these issues for now, and focus on them in a later post, but they are not small issues. Addressing rape culture as a whole needs considerations for these. This post will attempt to pose a potential solution to one small piece of the problem, but should be explored and criticized with regard for a more complicated picture.
First, let’s begin with the idea of prosecution. Prosecution, can be thought of as a cost. If we assume that there will be people in society that don’t adhere to whatever out personal concept of morality is, then we must have negative consequences for actions that we consider harmful. People respond to incentives. Let’s consider the idea of sex. Sex is not hard to come by. If you are kind, compassionate, and have genuine feelings, it is not hard to find at least one person that is willing to have sex with you. Even if you are by most people’s definition a terrible person, prostitution is common, and not difficult to find(note that this is disregarding the human trafficking problems regarding prostitution under the current system of law, this is important morally, and should be examined). Let’s assume the benefit of rape is orgasm. Now we can examine the costs of rape.
The first cost is usually pain. You risk being kicked, punched, clawed, or even shot or stabbed if you pursue that course of action. The next direct cost is the chance of prosecution. The third direct cost(while more abstract) is a feeling of guilt. The rapist has harmed someone, and will probably feel bad about it, if they cannot justify it in their mind. The opportunity cost of non-rape orgasm is either money, or time. If one chooses to rape, we know that the benefit of the rape option was greater than the cost. This means that the probability of harm, the threat of prosecution, and the guilt felt, are less than the money cost of having sex with a prostitute, or the time cost of investing in a serious relationship. Note that their may be more abstract benefits to rape(a feeling of power, or even direct enjoyment from harming another). This may be important when considering the ultimate equilibrium of who rapes and who doesn’t, but the point can be made even without taking it into account. The goal here is to find an action to lesson rape, and the impact of rape culture on society.
The pain cost is probably negligible. The idea of rape is to force another to submit, whether through physical force, extortion, or drugs. All of these only work if the rapist has some advantage over the victim, physical, trust, or another. Let’s examine the other two, starting with the threat of prosecution. The first issue is that most rape cases aren’t prosecuted. I can give two easy reasons for this. The first is that in general, reliving the experience is traumatic. The second, is the prosecutors do everything they can to make it more traumatic, which usually involves casting doubt on the victim’s absence of consent. Now, why would prosecutors do this? I would argue because it helps win their case. If they can destabilize a victim on the stand, they are more likely to make a mistake in their testimony, and it will be easier to avoid conviction.
This may be amoral, and prosecutors may know it is amoral, but let’s go through a thought experiment. Assume that there are some amoral people in the world. If the moral attorneys refuse to traumatize the victim, and that makes them less likely to win their case, then when a rapist seeks out an attorney, they will choose an attorney that is willing the traumatize the victim, because they will be more likely to win the case. This decreases the revenue stream of the moral attorneys, and may even put them out of business. This means for a new firm to be solvent, they must hire amoral attorneys.
There is also a second consideration to this process on the personal guilt cost of rape. Personal guilt only happens when you believe you have done things genuinely wrong.This means if you can convince yourself that “she wanted it”, you can absolve your conscience. Attorneys are highly educated, and treated with some respect in society. This means that if they can attempt a justification like that for a defendant(even if they don’t believe it themself, and they are only using it to win a case and not go out of business) a potential rapist can also ease the cost of guilt by the same reasoning. This decreases the cost further, and makes rape more likely, and is an integral part of rape culture.
The question remains of how can we solve this issue. Note that this is only a snippet of the determinants of rape culture, but it does present a tangible problem, and opens the door for solutions. There are several feasible solutions to this. The first, is to ensure that any trauma to the victim will lead a jury to be more likely to convict. This would require some societal conversation and movement to attempt to change people’s preferences. There is an obvious issue here, of whether or not the person is innocent. If the alleged rapist is in face innocent, and all of the moral attorneys have been pushed out of the system, then if it beneficial to punish them because they had to go with an amoral attorney? I would argue no, but it is a potential solution, that merits further discussion.
The second potential solution is to make it so a defendant does not have the right to face their accuser in potentially traumatic cases. The issue here, is that if the defense does not get the chance to ask the accuser about their account of the issue, they can only rely on previous accounts, given by the accuser to the police, which will give a very narrow and one sided view of the accusation.
I will propose a third option, which is a combination of a few things. One of the most important steps we can take here, is to make available trauma counseling to the accuser, regardless of ability to pay. The trauma councilor will be bound by medical ethics, and not allowed to testify to either side. The benefit to this is it will make people more likely to offer testimony. The cost is the money it takes to pay those councilors, particularly in the case of false accusations. I would make the argument however, that if one is going to make false accusations of such a serious nature, they probably have some sort of systemic psychological issue they need to work through, so this would add benefit, by helping them to resolve these issues, and decreasing the probability of extraneous court cases in the future. Step two, involves expanding something we have in place. This is the contempt of course clause, which, at least in Virginia, has several parts that could be applicable to intentionally traumatizing a victim. These are:
“(1. Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;
(2. Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness or party going to, attending or returning from the court, for or in respect of any act or proceeding had or to be had in such court;
(4. Misbehavior of an officer of the court in his official character; ”
Here, if we define emotional violence as violence, would be directly in violation of 2. Also, if we define justice as giving each his due, than traumatizing a victim would be an injustice. For 4, misbehavior is a relatively loose term, but it could be construed that intentional traumitization of a victim is a behavior inappropriate for a defense attorney. I am by no means an expert, or very well versed in the legal system, but to me it seems like defining traumitization of a victim as contempt of court would do much to increase the competitive ability for moral attorney’s to continue practicing. It also seems to me that trauma counseling would do much to decreasing the costs of an accuser bringing a suit in the first place. These would increase the direct cost of rape to the rapist, and would help decrease the ability of the potential rapist to rationalize their behavior.
This may not be a perfect solution, but it is the best I can think of, and anyone is welcome to challenge the idea, or present a better one, in hopes that the optimal idea will eventually emerge.