All rape is created equal. Or is it?

So, about Steubenville.

Every time we hear of a rape, our righteousness kicks in — I mean the righteousness we share with all smart, empathetic, civilized people just like ourselves, people who abhor sexual violence — and we condemn. Swiftly and easily. We condemn the perps before they even get to trial, because we understand in our bones the vileness and the “personalness” of sexual violence; and also because, as good people, we want to show solidarity with the victim. We remind ourselves and each other that we have wives and daughters and sisters, and we can just imagine our grief and anger — and theirs — if they were ever sexually assaulted. We shudder. We care. And we condemn.

The most strident among us, the ones who are especially empathetic (or in some instances merely eager to be seen as such), may call for state executions. A friend of mine just went there: reflecting on the Steubenville case, he said he feels that “rape equals capital punishment.”

I reminded him that if the prosecutor in the Duke lacrosse case had had his way (and prosecutors usually do), we’d be looking at a number of executed-by-the-state young men — who turned out to be victims themselves, of gross judicial misconduct.

One of the Duke takeaways just might be that justice ought to be divorced from media-fueled emotions, and that fanning the flames with pronouncements of faux certitude, as both sides did, brings some serious risks.

But something else is bugging me.

Chances are I’ll get mauled for writing this, but here goes: I find there’s something problematic with our overall definition of rape. Surely there’s a difference between these two extremes:

• A fumbling 16-year-old getting to third base, feeling up his date under her murmured protestations. Or, let’s say, a teenager orally pleasuring a willing partner, with the recipient being just barely under the age of consent.
• A brutal, violent, sustained, and ultimately lethal gang rape of the kind that galvanized India and much of the world the other week.

All three of these examples (and even the first two are two not purely theoretical) are classified as rape. But are they the same crime? If they’re legally equivalent, are they morally equivalent also?

Should we kill the teenage perps in the first two examples? Would even the reflexive hardliners in the law-and-order crowd volunteer to throw the switch, certain in their opinion that rape is rape, and that all rape must be punished by death? Or might that be just a little too Taliban even for them?

My kids happen to be young girls. I do worry about them, and I’ll look out for them and keep them safe as best I can, always and everywhere and until my last breath.

But I’d worry too if I had boys. I’d worry not just that they’ll be trying on macho BS behavior and disrespecting women and girls, but also that if they did get into that kind of trouble (to the point where they penetrate a drunk girl with their fingers in some testosterone-fueled alcoholic haze, as appears to have happened in Steubenville), many people, like my friend, will stand ready to write my sons off, and even put them to death.

If we truly are those “smart, empathetic, civilized people” we fancy ourselves to be, that may not be the kind of justice we ought to aspire to.

About Rogier:
Rogier is a Dutch-born, New-England-dwelling multi-media maven (OK, a writer and photographer) whose dead-tree publishing credits include the New York Times, Wired, Rolling Stone, Playboy, and Reason.
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  1. Erik
    Posted January 6, 2013 at 5:29 am | Permalink

    Legally, the crimes are not equivalent. Many states have a fairly nuanced approach to penalties, which can depend on the age of the victim, that of the perpetrator, and the difference between the two ages. (

    But automatic capital punishment is problematic even in non-statutory acts. I remember years ago hearing of a case out of Texas. A woman recanted her claim that a man had raped her (self-professed guilty conscience), but only after something like 15 years had passed. I don’t think this is all that common a situation, but I have no iea how often it happens. With capital punishment, what do you if it turns out that you have a rare case of a completely false accusation? Bring the innocent guy back to life?

  2. Rogier
    Posted January 6, 2013 at 6:32 am | Permalink

    “With capital punishment, what do you if it turns out that you have a rare case of a completely false accusation?”


    Indeed. Just as many rapes go unreported, so too are there many reported rapes that did not occur. Both are common enough that they ought to be areas of concern.

    The FBI’s official statistics are that eight percent of all reported rapes are “unfounded” (which appears to not necessarily be the same as “made up” or “false”). That would put the number of unfounded rape accusations in the U.S. at more than 6,700 annually. Other stats I’ve seen about unfounded rape allegations range as high as 40-plus percent (a number probably to be dismissed due to small sample size and questionable methodology) and as low as three percent.

    Whatever the case, thousands of innocent men are behind bars and / or have a permanent criminal record (branded as sex offenders for life), so I wouldn’t say it’s not a common phenomenon.

    By the way, I did not say that penalties for rape are the same across the board, no matter the nature of the case. I merely stated that all three examples are legally rape (and that we’d better not be applying the most severe sentence to each and every one, as some people are advocating).

    • Brian
      Posted January 7, 2013 at 12:09 am | Permalink

      The problem of false allegations is an order of magnitude smaller than the problem of unreported rapes. I couldn’t find good sources for US data, but a UK government study showed 75-95% of rapes were unreported to police. This means that for every 1000 rapes, at best, there are 250 good reports, 20 “unfounded” reports, and 750 unreported rapes. So while thousands of innocent men may be behind bars, there are tens of thousands or hundreds of thousands of rape victims (men and women) who will never see their attacker punished. Most US groups, like the AMA, report similar numbers for the United States. Bad reports are a problem, but focusing on them and not under reporting is putting the lesser problem first.

      • Posted January 7, 2013 at 3:46 pm | Permalink


        I readily concede the point, and you’re right to raise it. I think that rape victims at least have the court of public opinion massively on their side — after all, what dimwit would ever defend a sex offender? [Raises hand.] I’ve done it a couple of times. Well, not so much defend them, as raise a few issues that are sometimes overlooked in our rush to judgement.

        It seems to me that the injustices done to rape victims whose violators never see the inside of a jail cell are not undone by allowing injustices against boys such as the ones in examples like these.

  3. Marty
    Posted January 6, 2013 at 11:59 am | Permalink

    we have a couple of teenaged girls, so worries about sexual violence seem to cross my mind a fair bit. I don’t worry much about the male perspective, so this article does a good job rounding out my thoughts a bit..
    we’re focusing on self-defense with our girls. they each have a 2 shot Kinder pepper spray gun and holster and will be taking a self defense class this spring. we’re trying to teach them to stay out of bad spots. I think alcohol is a big issue with teenagers and getting both boys and girls in trouble. I think our girls are developing responsible attitudes regarding alcohol.
    I guess I’ll spend a little more time worrying about all of them, now.

  4. Ed
    Posted January 6, 2013 at 1:22 pm | Permalink

    It’s fair enough to point out that there are, as always, shades of grey with this sort of thing, and I was all fine with that until the last couple of sentences: ” (to the point where they penetrate a drunk girl with their fingers in some testosterone-fueled alcoholic haze, as appears to have happened in Steubenville).” Sorry, but that’s ludicrously disingenuous. Everything that’s been made public about this case appears to show that the girl was dragged across town half-naked in a drunken (possibly drugged) stupor, repeatedly raped, filmed and photographed, and then urinated on, with one boy recording a twelve minute video bragging and joking about it. While I don’t support the death sentence in any situation, well, that’s hardly just a bit of drunken fingering. That’s appallingly callous and absolutely *should* result in them being punished as severely as we morally can. It’s not fair at all to say that the reaction to this case, of all cases, risks turning even the lightest shade of grey into something your sons might be vilified for – this is about as jet-black a shade as you can get without involving severe physical violence.

    Your article, overall, is sensible in that it recognises that we shouldn’t be using the harshest possible punishment every single time, but it’s completely let down by that appalling section.

    • Rogier
      Posted January 6, 2013 at 2:46 pm | Permalink

      Hi Ed:

      Thanks for your response.

      The young men in question behaved like absolute pigs. On that we can agree.

      The lengthiest and probably most authoritative account I’ve read of the Steubenville case was published in the New York Times, in a 5,700-word investigative story by Juliet Macur and Nate Schweber. See the second link in my post.

      Their article doesn’t fully support your notion that “everything that’s been made public about this case appears to show that the girl was dragged across town half-naked in a drunken (possibly drugged) stupor, repeatedly raped, filmed and photographed, and then urinated on.” It does leave the door open to the possibility that that’s what happened.

      Let me unpack it. I’ve seen the “dragged all over town” and “urinated upon” charges blogged and Facebooked, but the closest thing we have to a national newspaper of record is cautious and doesn’t report those allegations as facts. Of course, that may change as the case unfolds. My post was about dispensing justice dispassionately, about not getting whipped up in a maelstrom of (so far) unproven allegations and hearsay. So I tried to stick with what’s uncontested.

      I’m uncomfortable with your phrase “appears to show.”

      The kidnapping charges initially brought by the DA’s office were dropped, so I’m not sure how relevant it is, at least from a legal point of view, that the girl was allegedly “dragged all over town.”

      Like you, I’ve read that one of the lowlifes who witnessed the attack dared bystanders to pee on the girl, but the Times does not say that anyone actually did.

      That the jocks, as you say, “repeatedly raped” the girl seems intended to imply that they fucked her (I know that fingering her against her wishes is rape too), but if the Times is to be believed, all we know for fairly certain is that at least one and possible more of those present grabbed her and penetrated her vagina with their fingers.

      Again, it’s possible that it went down as you say it did. The truth will come out, most likely. I can wait for it.

      • Ed
        Posted January 7, 2013 at 2:37 pm | Permalink

        You’ve got some fair points, I think, but I’d still argue that your wording’s not really doing justice to what’s happened. While it’s certainly not as clear as I’d thought that the girl was dragged around or urinated on, I don’t think that there’s really a great deal of argument about her being near-completely unable to give consent, and had swathes of the evening photographed and filmed, as well as being forcibly stripped in front of crowds of people, on top of the penetration itself, which is, at least to my mind, every single bit as much ‘rape’ as penetration with anything else.

        I get that the case isn’t at all as clear-cut as I thought, but what *is* clear enough certainly made the way you phrased it a very incomplete story that, although from your response it’s clear you didn’t intend it, appears to at least to some extent trivialise what’s gone on. I think you’re absolutely right to want to let the whole truth come out through the proper legal process: however, you *can* do that without appearing dismissive of it. While it’s true that the way you described it did happen as part of the rape, it’s by no means a full enough picture – like focusing on the sea swells in a hurricane but omitting any mention of the wind. It does the whole picture a disservice, even if the picture’s kinda blurry.

        I’m really clutching at words here – can’t seem to get my thoughts down coherently, and it’s *really* frustrating ’cause I know this could all be much more concise and, frankly, better argued – but I hope I’ve managed to at least get the gist of it across. I can’t argue that it’s as simple as I’d thought, but I still think the way you described the case is massively downplaying its seriousness. I even agree with your thoughts about having sons getting into trouble for misguided drunken groping – it’s just that this case doesn’t fit that description, or rather, it does, but it also vastly exceeds it and hurts the point you were making by doing so.

        • Posted January 7, 2013 at 3:34 pm | Permalink

          Hi Ed:

          Don’t worry about wording it clumsily. I think that makes two of us, and I may be guilty of it to a greater degree. I really didn’t want to be dismissive of a rape victim’s plight.

          One quick clarification. I didn’t say that the Steubenville case was pretty much the equivalent of the first two examples I gave (the ones right after the first bullet point). Something much darker and more disturbing went on that night. My main point was — and I think you got it — that the emotional nature of any sexual assault leads us to condemn in black-and-white terms, and demand sentences to match, as if all forms of rape are carried out with the same severity of violence. I think we’ve gone overboard with that, and I’d like us to make an effort to detect at least a few shades of gray between the black and the white.

        • Rogier
          Posted July 30, 2013 at 2:04 pm | Permalink

          The New Yorker has an eye-opening , definitive piece about the case this week, from which we learn (again) that many of the most egregious accusations are completely untrue: including the alleged gang rape, the kidnapping, the rape taking place at multiple locations, the urinating on the victim, and other erroneous “details.” The lesson: Insist on facts. When the fact are not yet available, wait until they come to light. Until then, reserve judgment, and don’t spread rumors and half-truths.

  5. John David Galt
    Posted January 6, 2013 at 7:03 pm | Permalink

    The problem of possibly killing an innocent person and then being unable to bring him back applies to all capital punishment, and is one of several practical reasons I would abolish it, even (maybe especially) for the very worst crimes. The first sentence of this article illustrates why — too many people assume that if it’s a really horrible crime, it’s safe to assume that (1) it really happened and (2) the accused is the one who did it.

    And as far as acts lumped in with rape that aren’t really rape, your two examples are just the tip of the iceberg. Israel now has something called “rape by fraud,” whereby just about any lie you tell a woman to get her to say yes, even if it’s about some irrelevant fact like your own religion or ethnicity. This must not spread.

  6. Jacob H
    Posted January 7, 2013 at 1:38 am | Permalink

    A word on the subject of capital punishment for rape – even if it were restricted to only the most heinous cases, wouldn’t that create the perverse incentive for rapists to kill their victims afterward? Not to be crass, but it’s the death penalty either way, might as well make sure there is no victim to testify.

  7. Posted January 22, 2013 at 12:20 am | Permalink

    Not to take away from the seriousness of the unrelated felonies committed in the Steubenville case, but … a commenter at Jezebel shows how insane the definition of rape or attempted rape can sometimes be. You have to read the piece, then the reaction of commenter WalrusIam and the responses that follow.

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