This article appears in our 2013 Fall issue, Gray. Subscribe today!
It’s been seven years since I saw the action movie Crank, in which Jason Statham plays a man who will die if his heart rate drops to a normal level, but I still vividly recall the scene in which Statham’s character grabs his girlfriend (Amy Smart) in the middle of Los Angeles’s Chinatown and demands sex, right there, right then. Smart’s character doesn’t know that her boyfriend believes he will literally die if she won’t acquiesce (seriously, why can’t he just do a bunch of jumping jacks?), and her perfectly logical response is, “No.” So he forces her.
If you Google “Crank rape scene,” you’ll find what I’m talking about, but not under that name. Instead, it’s labeled “Amy Smart has sex in public,” and captioned: “You either hate this scene or love it but I think it’s a very hot scene and if I were in Statham’s shoes, I would have done the same thing. Enjoy this awesome clip of Amy Smart getting some lovin’ in Crank.” Here’s what happens in that clip, after Smart’s character first says no. She struggles with Statham and they both fall to the ground. She tries to crawl away, screaming, “Get off me! No!” as he clings to her ankles. Finally, she screams “Stop it!” and smacks him in the face. That actually does slow him down a little, but then she feels guilty and goes to him, apologizing as she caresses his face, which gives him a chance to grab and kiss her. She’s still struggling and screaming “NO!” as he flips her on her back and penetrates her.
Cut to a shot of a Chinese lantern, while some tinkly music plays. Cut back to Smart’s character, pinned on the ground by her boyfriend, who just stuck his dick in her after she screamed, fought, tried to get away, and begged him repeatedly to stop. “Fuck it. Take me right here,” she says, moaning with pleasure, as though he were waiting for permission.
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In a 2007 Cosmopolitan article, “A New Kind of Date Rape,” author Laura Sessions Stepp coined the term “gray rape” to describe “sex that falls somewhere between consent and denial.” Despite the headline, there’s nothing new about her subject. In 1994, Katie Roiphe published The Morning After: Sex, Fear, and Feminism, an entire book arguing that people throw around the term “rape” too casually, especially to describe regrettable but consensual drunken hookups. That book, in turn, was a reaction to the work of feminists looking to name an experience that was far from new, but rarely discussed; Robin Warshaw’s contemporary classic, I Never Called It Rape, had sparked mainstream awareness of “date rape” only six years earlier.
Sessions Stepp saw no need to acknowledge that every example she uses to bolster her argument was a clear case of nonconsensual sex. “Alicia” told her date “flat-out that she didn’t want to proceed to sex,” and told him to stop before he “ignored her and entered her anyway.” “Laura” was in college when she got drunk and made out with a guy who then stripped off her pants and entered her, despite the fact that she said no. A 20-year-old Naval Academy student woke up to a football player having sex with her. Remind me where the “gray” is here? But because the women in question felt guilt, confusion, and self-doubt—as a great many victims do—Sessions Stepp freely categorized their experiences as something other than violent crimes.
And she didn’t stop at reducing these violations to lesser charges; inventing a quasi-legal term that incorporates the worst of both worlds—“rape” because it is, and “gray” because few will believe it’s that simple. The “gray” in “gray rape” is an imaginary fog of questions about what consent means, and whether you really need it every time.
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Repackaging rape victims’ tendencies toward self-recrimination as a mitigating—or at least muddying—factor simultaneously contributes to and reflects a culture in which women are afraid no one will believe them if they report a rape. Sessions Stepp (and umpteen commentators since) have tried to blame “hook-up culture,” binge drinking, the decline of religious values, popular music, teenage hormones, poor communication, and bad parenting for sexual violence. In other words, they’ve put the onus for rape on anything except rapists. They encourage victims of all genders, but especially young women, to consider what they might have done to provoke their attackers, and whether there’s any possibility that those nice people just didn’t realize that what they were doing could be characterized as a crime.
They conflate being sexually inexperienced or awkward with being unable to tell the difference between consent and nonconsent, calling every report of rape into question and handily obscuring the motives of people for whom nonconsent is the whole point.
Time and again, we refuse to believe that people who commit sexual violence specifically get off on the lack of consent, casting them instead as “good boys” confounded by the complex rules of dating in our modern world.
And when women and men who grow up in that culture have trouble processing a sexual assault or rape for what it is, we turn around and use their confusion as further evidence that “rape-rape” is an exceedingly rare crime committed only by people on the fringes of society. Comparing sexual violations to other crimes always creates an imperfect analogy, but can you imagine if we reacted this way to muggings?
“Well, the victim says she feels stupid for walking alone in that neighborhood at night, with that big ring on her finger, and he didn’t hold a gun to her head or anything. She told him she didn’t want to give him her jewelry and wallet, but she wonders if she was forceful enough. Eventually, she handed it over. He might have just thought she was really generous. So obviously, no jury’s going to convict the guy, and it’s probably not even worth picking him up. You don’t want to ruin a man’s life over a misunderstanding.”
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Our fear of mischaracterizing a “good man” runs so deep that we even hesitate to name and shame fictional rapists. In a 2008 episode of Mad Men, secretary Joan Holloway (Christina Hendricks) gets a visit from her fiancé, Greg, at the end of a work-day. Joan’s already uncomfortable when he lures her into her boss’s office, but when he pushes her down on the floor, her protests shift from a lighthearted “Not in here,” to a more emphatic “No, I mean it,” and then finally to “Stop, Greg, no!” She physically struggles, but eventually resigns herself to lying still until he’s finished, the man she loves clamping one hand across her face.
As writer and attorney Michelle Dean wrote in a Bitch blog post after the episode aired, “Joan’s rape was not a particularly ‘hard case,’ as lawyers like to say—in the middle of it HER FIANCÉ IS HOLDING HER FACE DOWN.” Nevertheless, Hendricks told New York magazine that fans didn’t always interpret the scene as depicting a crime. “What’s astounding is when people say things like, ‘Well, you know that episode where Joan sort of got raped?’ Or they say rape and use quotation marks with their fingers,” says Hendricks. “I’m like, ‘What is that you are doing? Joan got raped!’ It illustrates how similar people are today [to the 1960s], because we’re still questioning whether it’s a rape. It’s almost like, ‘Why didn’t you just say bad date?’
The enlightened, 21st-century reader is supposed to recognize the phrase “bad date” as a shameful remnant of our past, like the overt sexism, racism, homophobia, child neglect, office drinking, and cigarette smoking that are so jarring to younger Mad Men viewers. It’s hard to say how long that term has been shorthand for “pre-feminist conception of acquaintance rape,” but the first time I heard it used thusly was in an episode of the early-’90s drama Sisters, in which one main character, Georgie, dramatically reveals that she was raped as a teenager. “Back then,” she says tearfully, “we just called it a bad date.” (I’m paraphrasing from a 20-year-old memory, but the internet confirms that there was such a scene in the October 30, 1993 episode.)
Georgie never considered what happened to her rape until her college-aged niece became the victim of a similar crime; it’s clear to the viewer that she simply had no framework for understanding the violation she suffered. At least, it was clear to this viewer, in 1993, that the scene was meant to convey that point. If Sisters aired today, there would almost certainly be commenters all over the blogosphere arguing that flashback—Georgie didn’t fight hard enough, that the scene was ambiguous, and if she didn’t call it rape for all those years, how could anyone say it was? If the internet wasn’t convinced that Joan Holloway was raped, there’s no reason to assume today’s fans would agree that Georgie was.
This constant, public back-and-forth affords plausible deniability to pop culture makers who present criminal assaults as normal sexual behavior. In the 2009 comedy Observe and Report, Seth Rogen’s character jams his dick into a passed-out, vomit-covered Anna Faris—but when he pauses moments later, her character wakes up and slurs, “Did I tell you to stop, motherfucker?” Just as in Crank, retroactive consent is meant to relieve the audience’s tension, reassuring us that no matter what she said or did before, she wanted it.
And if there’s any doubt that the people behind this shit know exactly what they’re doing, Rogen cleared that up in a now-deleted YouTube interview, transcribed by Amanda Hess at the Washington City Paper: “When we’re having sex and she’s unconscious like you can literally feel the audience thinking, like, how the fuck are they going to make this okay? Like, what can possibly be said or done that I’m not going to walk out of the movie theater in the next 30 seconds? …And then she says, like, the one thing that makes it all okay.”
People really believe that penetrating an unconscious person is not a crime (blatant, black-and-white lack of consent notwithstanding) as long as that person wakes up and doesn’t object to sex. That belief is what keeps WikiLeaks founder Julian Assange’s supporters insisting he couldn’t be guilty of the two rapes of which he was accused, even though his own defense team has acknowledged that he forced himself on a sleeping person. “They fell asleep and she woke up by his penetrating her,” said attorney Ben Emmerson at a July 2011 hearing, describing a witness statement by one of the two Swedish women. “She may have been upset, but she clearly consented to its continuation and that is a central consideration.” A central consideration in what? How harshly he is punished for the rape you just described?
And hell, even if the victim doesn’t wake up, what’s the harm in getting off with someone who has no idea it’s happening? In early 2013, Rick Ross rapped the line, “Put Molly [ecstasy] all in her champagne, she ain’t even know it/ Took her home and enjoyed that, she ain’t even know it,” on the Rocko song “U.O.E.N.O.” Called out for it by every feminist on the internet and not a few mainstream-media outlets, Ross tweeted his first attempt at an apology “for the lyric interpreted as rape.” “I don’t condone rape,” he wrote, as though that should have been obvious despite his recording a lyric that did just that.
Like Julian Assange’s defense lawyers and Laura Sessions Stepp, Ross evidently hoped we’d all forget that having sex with an unconscious person is both illegal and repulsive. Only after he lost a lucrative deal with Reebok did Ross release a statement of apology that got at the heart of the matter. “I recognize that as an artist I have a voice and with that, the power of influence,” he wrote. “To the young men who listen to my music, please know that using a substance to rob a woman of her right to make a choice is not only a crime, it’s wrong and I do not encourage it.”
The swift, public reaction by both feminists and Reebok to “U.O.E.N.O.” was heartening, but around the same time, Tyler Perry’s Temptation: Confessions of a Marriage Counselor was released on more than two thousand screens, earning $21.6 million on its opening weekend. Temptation’s title character, Judith, is clearly attracted to one of her clients but repeatedly resists his advances, up to and including telling him to stop, saying no, and physically fighting him once it becomes clear that he doesn’t intend to respect her wishes. The rapist’s response: “You can say you resisted.” When he’s finished, she says she never wants to see him again.
“It would have been easy to include any detail that shows the audience […] there was consent involved,” wrote Nico Lang at The Frisky, in a post straightforwardly titled, “Tyler Perry has a Rape Problem in Temptation.” Instead, after that experience, Judith be-gins dating the man who raped her, and as Lang puts it, “Perry insists on punishing her in increasingly over-the-top ways (for forsaking Jesus or something).” One step forward, two hundred steps back.
Even pop culture that focuses squarely on rape as a crime perpetuates the myth of “gray rape.” In a 2007 essay titled “Television Viewing and Rape Myth Acceptance among College Women,” communications scholars LeeAnn Kahlor and Dan Morrison wrote:
Relatively little research documents the presence of rape myths in television programming. How-ever, the available data indicate that myths are fairly prevalent when the topic of rape is broached in programming. For example, Brinson (1992) analyzed 26 prime-time television storylines that contained references to rape, and…found that 42 percent of the storylines suggested that the victim wanted to be raped, 38 percent of the storylines suggested the victim lied about the assault, and 46 percent of the storylines suggested that the victim had “asked for it” in the way she dressed or acted (male and female characters were equally likely to make this accusation). On the other hand, only 38 percent of the storylines contained any opposition to the myth that the victim had asked for it.
1992 was a long time ago, and Kahlor and Morrison note that subsequent studies found TV depictions of rape becoming somewhat more nuanced and less victim-blamey overall. They’ve also, however, become far more common—and anyone who’s ever sat through a Law & Order: Special Victims Unit marathon knows you can only tell so many stories about sex crimes before you start writing twists about devious “victims” and innocent “perpetrators” to keep things fresh.
The comedian John Mulaney has a great bit about the character played by Ice-T on SVU: “What’s so great about him is that he’s been with the SVU for, like, 11 years, and he still treats every case like it’s his first, in terms of total confusion.”
It’s not even just Ice-T (although, yeah, it’s frequently Ice-T). When it comes to cases where a female victim’s credibility is in question, a funny thing happens: Suddenly, all three of the male detectives—Stabler, Munch, and Ice-T’s Tutuola—act like they’ve never met a genuine rape victim with a complicated story before, leaving only Mariska Hargitay’s Olivia Benson to stand up for the woman. Take, for instance, the unsubtly named 2010 episode “Gray.” Early on, the four experienced sex crimes detectives are standing around discussing a young college woman’s report of being raped while she was extremely drunk.“What if Chuck was drunk, too?” asks Tutuola. “How was he to know she wasn’t sober enough to consent?” Benson brings up the obvious analogy of drunk driving: The law expects us all not to commit crimes, as it turns out, even when booze has sent our judgment out the window. Munch and Tutuola then shift into full-on, tag-team victim blaming.
Munch: Come on, Liv. What does the girl expect? She gets bombed, goes up to a guy’s apartment—what’s she gonna do, play Scrabble?
Tutuola: It’s getting to the point where a guy needs a permission slip to get past first base.
On behalf of all of us, Benson looks at Munch and Tutuola like they are the world’s biggest assholes. Watching this recently, along with several episodes featuring similar exchanges between Benson and at least one of the dudes, I kept coming back to Mulaney’s bit: “It’s like, ‘Yeah, Ice…. You work in the sex crimes division. You’re gonna have to get used to that.” But then, these fictional characters also work for the same NYPD that in real life produced Kenneth Moreno and Franklin L. Mata. The two officers were convicted in 2011 of official misconduct for returning three times in one night to the home of a woman they’d been called to help, who later accused them of rape.
They originally helped the woman home from a bar because she was intoxicated to the point of vomiting, and Moreno admitted on the stand that during those three visits, he “cuddled” with the alleged victim while she wore only a bra. But the jury believed him when he said nothing else happened. Both men were acquitted of rape and burglary charges.
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Connecting messed-up TV-rape parables to real-world crimes may seem a bit of a stretch, but when Kahlor and Morrison measured the “rape-myth acceptance” levels and television viewing habits of a group of college women, they found a significant correlation between watching TV and buying into victim-blaming rhetoric. And it’s not just SVU or Mad Men or Sisters or soap operas where victims marry their rapists. “Our data establish a link,” they write, “between general, daily television use and the acceptance of rape myths.” (Emphasis theirs.) That link “is particularly problematic from a health communication perspective; it suggests that television use has the potential to erase, over time, the already limited effects that rape education campaigns have on audiences.”
Well, that’s just fucking great.
Of course I’m not going to tell you to stop watching TV—or seeing Seth Rogen or Jason Statham or Tyler Perry movies—nor do I wish to censor entertainment media that perpetuates rape myths. What I wish is that people would stop writing and producing this shit of their own volition because they realize it’s wrong, harmful, and above all, not entertaining. While we’re waiting, though, the least we can do is recognize that a culture that believes Joan Holloway was only “sort of” raped is also a culture that believes a plastered 16-year-old deserves whatever she gets, including people’s fingers inside her. A culture where “Took her home and enjoyed that, she ain’t even know it” is something a grown man would sing in public without a second thought is also one where a jury can listen to police officers describe going back to a drunk woman’s house three times to “snuggle” and think, “Yeah, that sounds reasonable.”
Of all the absurd Law & Order: SVU plot points over the years, perhaps the most unrealistic element is how consistently rapists are reported, arrested, and successfully prosecuted. It’s also the most satisfying one: Even when the show infuriates me, I can relax in the knowledge that Benson will always stand up for the victim, Stabler will inevitably have a fit of righteous, antirapist Hulk rage, and justice, more often than not, will be served.
But in a society where teenage girls are shamed for being attacked, and a pop culture landscape where retroactive consent is used as a comedic plot twist, convicting a few fictional rapists does little to counter the preposterous concept of “gray rape.” As long as we believe consent is just so goshdarn confusing, even to people who consistently get off on its absence, we’ll have plenty of stories to tell about rape, but not too many happy endings.
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