An Illegitimate Phrase By: Anthony Conwright

The preamble of my college years was something of a wakeup call. On the night of freshman orientation, the entire freshman class was invited to listen to a woman speak about sexual safety. To be honest, I cannot recall the title of the talk or recall the speaker’s name, but I remember what it felt like to hear her story. She spoke with softness, in regards to tragedy, that I had not witnessed before that night. The cadence of her voice put together words that sewn a story that would steal the breath out of the auditorium, but put new life into what would be the beginning of my journey as a feminist.

The woman told the story of the night she was raped by a male she had developed a crush on. He seemed nice, popular and had most of the attributes that any person would seek in another during their freshman year at college. The exact details of the story still remain, consciously or unconsciously, somewhat hazy. The one thing I do remember is the missed opportunity I had to show my solidarity with her. There was a point during her discussion when she expressed the desire to have a male say, “rape is wrong.” I sat there with many other freshmen, who I am sure shared my desire to fulfill the speaker’s request, but was afraid of being deemed disrespectful. Ironically, only one male out of the entire freshman male population in the auditorium was bold enough to face the hypothetically scrutiny and say, “rape is wrong.”

As I type these words, I am still haunted by that day. The day I cowered in fear and silence, warranted or unwarranted, and neglected to use my voice to express a one of the deepest connections in the human pair bond lexicon, empathy, would never happen again. I, in part, write this for one of the many women that have changed my life forever.

At first glance, the phrase “legitimate rape” reads idiotic, offensive and a bit ironic doesn’t it? When Todd Akin said “legitimate rape,” he was criticized for using the term, but even more so for the absence of scientific fact that he married with the phrase. His exact words were:

"If it's a legitimate rape, the female body has ways to try to shut that whole thing down. But let's assume maybe that didn't work or something. I think there should be some punishment, but the punishment ought to be on the rapist."

When I first saw the blaring headlines shouting “Legitimate Rape” into my pupils, I was reluctant to believe that someone, especially someone holding office in the United States, would use the phrase in 2012. What struck me the most was the fact that most people didn’t realize that the United States has and still legitimizes rape. I’ve written about the way male dominated, patriarchal systems without women in positions of power have been negligent in many cases of rape within the military, Catholic Church and Penn State before. The phrase “Legitimate Rape” resonated with me because it says something about the culture of our perception of women’s rights.

When I analyze issues that revolve around women’s rights, I find most laws, ideals and cultures that infringe on the rights of women to be somewhat derived from the notion that women are forms of property to be controlled by, even when the two are intermixed, men or God. The word rape has its roots in women being property. The word rape comes from the Latin verb rapere: To seize or to take by force. Generally, Ancient Roman laws relating to rapere or raptus primarily focused on the damage done to the owner of the victim instead of the personal affliction and injury done to the victim. This meant that damages would be paid to the owner of the person that was ravished. [1] Since to take by force or seize could be considered as the ravishing of a girl from her parental home by a suitor of whom her father disapproved, actions for the crime of raptus could be applied even though the situation could be similar to what we would call elopement. Since the woman belonged to the father, a misguided suitor who elopes with his beloved against her father’s wishes was subject, in theory at least, to the same punishment as someone who commits what we now consider to be rape (Brundage 47). In essence, what we now consider rape has its roots in women being property of men, and the crime of rape had little, if anything, to do with the harm done to the women, but to a man’s property. This is evident when looking at Ancient law where the “break-it-you-buy-it” model of rape was written in Deuteronomy when it was commanded that, “If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered, He shall pay her father fifty shekels of silver. He must marry the young woman, for he has violated her. He can never divorce her as long as he lives.” (New International Version, Deuteronomy 22: 28-30) With this definition, rape of an uncommitted virgin is legitimized because the law makes it ok just as long as the man pays the father and marries the woman without divorcing her.

While the definition of rape has changed over time, the history of the word may shed some light on why it is difficult for women to truly find justice when it comes to the crime of rape. Not only did Ancient law fail to divorce rape from a woman being property, but also current laws in America have failed to separate a woman’s body from male ownership. Julio Morales was convicted of rape after he pretended to be a sleeping woman’s boyfriend to initiate sex. Morales was accused of entering a woman’s bedroom after the woman’s boyfriend decided to go to his home because he did not have a condom and had engagements the next morning. Morales pretended to be the victim’s boyfriend, began to initiate sex in a dark room, and was not recognized until a light flashed from outside revealing it was Morales. Are you asking yourself, “Did Morales commit rape?” Here is what Judge Thomas L. Willhite Jr said about the decision:

Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.

The historical anomalies in the law and the statutory definition that the judge refers to are important because, as you can guess by now, it refers to a woman belonging to a spouse. California Penal Code Section 261(a)(5) states:

  1. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

Even though it is recognized that Morales committed a crime, which is to say he did rape the victim, he will not be convicted under this particular California Penal Code. There are various reasons why the case could have journeyed down the road ambiguity that it did, however the important point is that the reason this particular offense does not fall under this circumstance of rape is because the victim was not married. However, even in marriage, women’s rights are not guaranteed.

Marital rape is not a new phenomenon, but its illegal status is relatively young. In the United States, marital rape has been illegal in all 50 states since 1993. While all 50 states have made marital rape illegal under at least one of their laws regarding rape, the punishments for marital rape varies from state to state. For example, Alabama does not punish all forms of marital rape the same as any other form of rape. Here is how the state of Alabama defines sodomy in the first degree: ALA CODE § 13A-6-63 : Alabama Code - Section 13A-6-63: SODOMY IN THE FIRST DEGREE:

(a) A person commits the crime of sodomy in the first degree if:

(1) He engages in deviate sexual intercourse with another person by forcible compulsion; or

(2) He engages in deviate sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated; or

(3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.

(b) Sodomy in the first degree is a Class A felony.

Did you notice something peculiar? In all instances of Sodomy in the first degree (Numbers 1, 2 and 3), the perpetrator must engage in “deviate sexual intercourse.” Alabama defines deviate sexual intercourse as: ALA CODE § 13A-6-60 : Alabama Code - Section 13A-6-60: DEFINITIONS

(2) DEVIATE SEXUAL INTERCOURSE. Any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.

The definition of Deviate Sexual Intercourse involves persons “not married,” which means that a husband by law cannot be charged with the crime of sodomy against his wife. This is what “legitimate rape” looks like. The phrase is real, and if you were disgusted at someone using the phrase, you should be equally disgusted that there are legal circumstances that exist that justify any form of assault on a woman’s body.

There is a cure for the disease of “legitimate rape,” and it is called the empowerment of women. Give women control over their full reproductive rights, health, and education and we will see changes in poverty, infant mortality and how much input women have in legislative decision making. The legal ambiguity of rape may not exist if we did not treat the vagina as property belonging to someone other than the person it is attached to. Since the word rape has its roots in women being property, laws that are derived from that same definition are not going to fully give women justice or equality. A woman’s body is her property and all forms of sexual assault and rape, regardless of the perpetrator are assaults on her sexuality, body, and mind. Once women are given property rights over their person, they can determine what goes in and out of their property.

Works Cited

Brundage, James A. "Law and Sex in the Ancient World." Law, Sex, and Christian Society in Medieval Europe. Chicago: University of Chicago, 1987. 47-48. Print.

[1] Robinson, O. F. "Justinian the Legislator." Penal Practice and Penal Policy in Ancient Rome. Oxon: Routledge, 2007. 162. Print. The term Raptus is an ambivalent term; it connotes plundering and carrying away. It seldom means rape in the modern criminal sense…but there is an element of violence, which makes ‘ravishing’ a rather more suitable translation than ‘abduction’ – ‘if anyone…ravishes a woman against her will or abducts a willing one’.

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