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Rape rape

So heinous they named it twice

So, Roman Polanksi was arrested in Switzerland, and his celebrity chums are outraged. Oprah Winfrey Whoopi Goldberg said:

I know it wasn’t rape-rape. It was something else but I don’t believe it was rape-rape. He went to jail and and when they let him out he was like “You know what, this guy’s going to give me a hundred years in jail, I’m not staying”, so that’s why he left. ((Thanks to Tom Goulter.))

“Rape-rape”? “Rape rape”? Regardless of the facts of Polanski’s actual case (see this thread on Crooked Timber), Goldberg’s phrase is peculiar. It seems to imply that singular “rape” is indeed rape (after all, it’s called “rape”), but it’s not very serious; to name the really serious thing one has to double the noun to “rape rape”. This sort of intensifying doubling is hardly unknown in general, but it looks strange in the context of the existing constructions such as “child rape”, “gang rape”, “spousal rape” and so forth. (We are, I assume, not meant to understand that “rape rape” means raping a rape.) But then, for good measure, Goldberg even seems to walk back from acknowledging her implicit plea that Polanski’s crime was singular “rape”, ie the not very serious version: actually, it’s just “something else”. She seems, even, to be arguing generally that some or many acts that are called “rape” by the justice system are not, in fact, rape (hence the necessity to say “rape rape”).

There has evidently been some inflation of criminological terms round Goldberg’s way, and I’m worried that in another 30 years it will have progressed to the point where defenders of some new Polanski will have to avail themselves of a nominal tripling, to plead: “It wasn’t rape rape rape.” But does Goldberg’s imaginative strategy generalize even now to other offences? “It wasn’t murder murder, m’lud, it was something else.”

How many times do you think we have to say “rape” to mean “rape”, readers?

  1. 1  D  September 29, 2009, 8:39 am 

    Whoopi Goldberg isn’t Oprah Winfrey even though there’s no reason to listen to either of them.

  2. 2  Steven  September 29, 2009, 2:10 pm 

    You are right, thanks!

  3. 3  richard  September 29, 2009, 2:10 pm 

    Apparently my comment “seems a bit spammy” – perhaps the offending term is the one under discussion? I will therefore replace all references to the “r” word with “canola,” and see if that gets through.

    As Goldberg herself notes, “the language we use here is very important.”
    I see that kithkin has already taken it to the next level in comments:
    Well, I’d say it’s canola-canola-canola because
    1. Good old fashioned she said no. Canola.
    2. She was drugged. Canola.
    3. She was thirteen. Canola.

  4. 4  richard  September 29, 2009, 2:27 pm 

    As Goldberg herself notes, “the language we use here is very important.”
    I see that kithkin has already taken it to the next level in comments:
    Well, I’d say it’s rape-rape-rape because
    1. Good old fashioned she said no. Rape.
    2. She was drugged. Rape.
    3. She was thirteen. Rape.

    Slate provides a lesson on the meaning of “unlawful sexual intercourse” with a minor – it’s the same crime as statutory rape (and thank God it didn’t happen in Virginia, or we’d be trying to figure out the epistemological ramifications of “Carnal Knowledge of a Child”). But then they add this fascinating bit of history:
    California’s first penal code in 1850 proscribed sex with girls under the age of 10. The age of consent was raised to 14 in 1889, to 16 in 1897, and finally to 18 in 1913, where it has remained since that time.
    …and I think I hear someone say “butt rape” at the end of that clip. I wonder if that could become another qualifier.

  5. 5  Sarah Ditum  September 29, 2009, 2:29 pm 

    Oprah/Whoopi muddling aside, this feels like Whoopi is asserting a distinction between non-consensual sex (singular rape) and violent sexual attack (rape-rape) – a distinction that campaigners have spent several decades trying to demolish. In Whoopi world, maybe you know you’re been rape-raped when you’ve got two black eyes.

  6. 6  Oli  September 29, 2009, 2:29 pm 

    I think there can be a ridiculously huge difference between definitions of rape (note I’m not weighing in on what has happened).

    I don’t think I need to explain what each is, but consider the differences between statutory rape and violent rape.

    You joke about there not being more than one type of murder, but you’re completely wrong, there are plenty of different definitions that weigh in the offender’s mental capacity at the time, provocation, etc.

    If you accidentally killed somebody due to a tyre blowing out on your car, would you expect the same sentence as somebody who randomly shoots another person?

    But in that case, it’s not murder (at least here). At the most it would be considered manslaughter. You’re not branded as a murderer and depending on your role, you’re sentenced accordingly lower.

    Rape doesn’t have that definition. If you’re in a place with a consent age of 16, you’re 16 and your lover is 15 (a fairly common thing, if even for a few months), you’re “raping” them.

    So I see what she meant but Oprah did goof up. She could have explained things with the proper definitions but hey, perhaps she thought her audience would understand “rape rape” better.

    As for what happened, the age gap was a lot larger than the teenage relationship I was talking about up there… But all sorts do fall in love and lust. It was a long time ago… Ask the (now) woman what she thinks should happen.

  7. 7  Steven  September 29, 2009, 2:32 pm 

    richard #3, thank you for your empirical demonstration of how stupid my spam filter is (it must be using a hardcoded keyword blacklist). I’ve now restored all the comments that seem to have been caught by it. Things should now be fixed.

  8. 8  Hey Zeus  September 29, 2009, 4:41 pm 

    Surely it depends on just how you put it to them.

  9. 9  sw  September 29, 2009, 6:19 pm 

    I have to agree with some, although not all, of what Oli says. On the other hand, I also find myself agreeing with Steve – I’m not quite sure what I would think if Polanski had pled guilty to another type of crime, and someone modified its severity by saying, “Well, it wasn’t bestiality-bestiality.”

  10. 10  Steven  September 29, 2009, 7:58 pm 

    I agree with some, although not all, of #9.

  11. 11  Alex  September 29, 2009, 8:51 pm 

    Oli’s sort of right that statutory rape isn’t really the same thing as violent rape. But since Polanski did sort of force himself on her, it’s sort of both. Maybe what Goldberg meant was that the two kinds of rape cancel each other out.

  12. 12  Steven  September 29, 2009, 9:06 pm 

    What Polanski was actually convicted of was “unlawful sexual intercourse” (which California does not officially term “statutory rape”).

  13. 13  john b  September 30, 2009, 7:57 am 

    @6 the now-woman thinks the charges should be dropped.

    @6,12 indeed – the modifier ‘rape-rape’ is necessary when you have a judicial system which brands things which obviously aren’t rape [*] as rape, but isn’t necessary in a system which doesn’t. So Goldberg’s statement was redundant (“he wasn’t convicted of rape, because he didn’t rape anyone” would’ve been better) but would’ve made sense in most US states.

    [*] @5 is a total red herring here – nobody’s suggesting that forcible sex isn’t rape, irrespective of the level of violence used, merely that consenting sex where one of the partners is under-age isn’t rape. And Polanski was convicted of consensual sex with a minor, not of rape – ie the court accepted that the girl consented, irrespective of what angry people on the Internet claim ‘actually’ happened.

  14. 14  Steven  September 30, 2009, 8:05 am 

    I don’t think Sarah’s point is a red herring: it seems unfortunately plausible as a reading to me. (And if it wasn’t what was intended, the implication is still there.)

    Polanski was convicted of consensual sex with a minor, not of rape

    No, Polanski’s “unlawful sex” was by definition non-consensual, whether or not it was what others would call “rape” or “rape-rape”: the point of all “age of consent” legislation is that someone younger than the age in question cannot consent.

  15. 15  Dave Weeden  September 30, 2009, 8:10 am 

    John B, but you’re wrong about 5, that does seem to be what Ms Goldberg was saying. As to whether the sex was consensual, I think that’s debatable. Samantha Gailey’s testimony suggests that she was deliberately intoxicated and drugged and was intimidated by Polanski. That’s not ‘consensual’ that’s – to use your own word – forcible.

  16. 16  roger migently  September 30, 2009, 8:20 am 

    I can’t help thinking that what some people are really saying is, “It’s Polanski, for christ’s sake! He’s a Famous Artist! The normal rules don’t apply! What he did wasn’t unlawful sexual intercourse, it was Art. By definition.”

  17. 17  Porlock Junior  September 30, 2009, 8:21 am 

    Alex is sort of right about the distinctions here. I would leave out his “sort of” as to Oli’s getting it right, because I perceive a clear enough distinction between the crime of imposing sex on an unwilling person (or one not conscious) by force or threat and that of engaging in it with a person legally considered not competent to make the choice. The distinction is not always clear in fact, any more than in the degrees of homicide — which is one of the reasons we have juries. But if we (in the US) can distinguish murder from “voluntary manslaughter”, then why not the same in the case of sexual violence or misconduct? And btw the former is a harder distinction to apply in good faith than the kind of arbitrary distinctions that can make an act into stat rape.

    But more importantly, it seems from what evidence is available that he didn’t “sort of” force himelf on her; he just damned well forced himself on her by drugs and force when she didn’t even think (in her immature way) that she was willing. This stinks, and not just sort-of, in my sensorium.

    Hence I can accept the idea of “rape [real] rape”, but call bullshit on Goldberg for denying that that’s what it was.

    Of course, no jury ever did hear the case, so the facts may be less clear than I think, and Goldberg could be right, but there’s no reason to believe it.

    One more nitpick, as implied by that lack of a jury: he was never convicted of anything, but entered a plea bargain that would have forestalled an actual trial. Then he ran out on that, allegedly because the judge reneged on it first. But now we’re way off the subject of the post. Funny how that happens with notorious and infamous cases.

  18. 18  Steven  September 30, 2009, 8:31 am 

    IANAL but, though he was not convicted by a jury, the judge’s acceptance of his guilty plea constituted a conviction.

  19. 19  NomadUK  September 30, 2009, 11:20 am 

    I commend those of you who just can’t get enough of this topic to the comments at this Crooked Timber post, in which everything other than the Whoopi Goldbert angle seems to have been and continues to be covered ad nauseam.

  20. 20  john b  September 30, 2009, 1:18 pm 

    @14 that clearly isn’t true, otherwise there wouldn’t be two separate criminal offences “unlawful sexual intercourse” and “rape”. The distinction is made explicit in the UK, where the law deems anyone under 12 to be incapable of consent, and hence deems sex with them to be rape.

    The situation for someone aged 13-15 is more analogous to the Operation Spanner types who got locked up for consentingly nailing each others’ genitals to the floor: it’s consensual but it’s a crime anyway because it’s a bit eww.

    @17,18 that is, definitely, legally speaking, a conviction. However, there’s a fair point to be made that *anyone* accused of a serious crime in the US would be crazy not to take a plea bargain – irrespective of their guilt or otherwise – and hence it doesn’t have the same moral weight as a guilty verdict or a guilty plea somewhere more sensible.

  21. 21  Steven  September 30, 2009, 1:39 pm 

    What part of #14 clearly isn’t true again? (Please refer to California law, which has no official offence of “statutory rape”.)

  22. 22  john b  September 30, 2009, 1:53 pm 

    I’m suggesting that the statements “Polanski’s “unlawful sex” was by definition non-consensual” and “someone younger than the age in question cannot consent” both clearly aren’t true, otherwise raping a minor wouldn’t be a different offence in California law from unlawful sex with a minor.

  23. 23  dsquared  September 30, 2009, 1:54 pm 

    However, there’s a fair point to be made that *anyone* accused of a serious crime in the US would be crazy not to take a plea bargain

    particularly if they were guilty.

  24. 24  Steven  September 30, 2009, 2:22 pm 

    I’m suggesting that the statements “Polanski’s “unlawful sex” was by definition non-consensual” and “someone younger than the age in question cannot consent” both clearly aren’t true, otherwise raping a minor wouldn’t be a different offence in California law from unlawful sex with a minor.

    Where is the offence “raping a minor” to be found in the California penal code?

    You were indeed wrong to say at #13 that Polanski was convicted of “consensual sex with a minor”. You are also, I take it, wrong to claim that it is “clearly untrue” that “someone under the age of consent cannot consent”. This is what the “age of consent” means: it is the age at which a person is considered competent to consent to sex, and under that age, there can (legally) be no consent. Thus, the offence that you claim Polanski was convicted of is legally a contradiction in terms.

  25. 25  Porlock Junior  September 30, 2009, 7:41 pm 

    @18, 20
    Ok, you’re right, I was making the wrong distinction. Trying again: As the case was never heard (much less decided) by a jury (or a judge, in an actual trial), the specific crime for which he agreed to a conviction is a poor basis for arguing what, specifically, he actually did. And in this discussion that seems to be a relevant question.

    In fact, it is not clear that any judge at any time exercised his jurisdiction to accept this plea. Is it? His claim seems to be that the judge was not accepting the deal — and ( as claimed later by another judge) for extra-legal reasons, like political pressure. I don’t know whether that’s true, or what the legal implications are if it is; but the case is very different from the implicit, sometimes explicit, “A judge and jury heard the evidence, and decided it thus.”

  26. 26  Steven  September 30, 2009, 7:51 pm 

    The judge accepted the plea (Polanski was “convicted by plea”), but then allegedly was going to renege on a sentencing deal and bang him up for much longer than everyone originally assumed.

    As to what actually happened, I have no idea. I was just pointing out that it has not been proven in court (or by plea) that he “raped a child”, so confidence of that judgment on the part of certain commentators seems misplaced.

  27. 27  John B  October 1, 2009, 7:45 am 

    The offence in the California penal code is “rape”. This can be committed against an adult or a minor (I don’t think it’s unreasonable to abbreviate “the offence of ‘rape’, when committed against a minor” to “raping a minor”.)

    So CA law clearly draws a distinction between two sorts of sex-with-a-minor – the ones where the defendant is guilty of rape and the ones where the defendant is guilty of unlawful sexual intercourse. Either they arbitrarily decide between the two by flipping a coin, or they have some concept and standard of consent..

  28. 28  Steven  October 1, 2009, 7:48 am 

    I think you are assuming that if an act is not coercive it must be consensual, but I don’t think that follows in this case. At least AIUI, if you have sex with a minor in the state of California, then either i) the sex was coercive, in which case you will be prosecuted for rape; or ii) the sex was not coercive, in which case you will be prosecuted for unlawful sexual intercourse (because consent is assumed to be impossible for minors to give). By definition there still can be no such thing as “consensual sex with a minor”.

  29. 29  dave  October 4, 2009, 4:14 pm 

    We need to distinguish “rape-rape” from “rape.” Its too confusing. What about “Whoopi rape”? After all, it wasn’t “rape-rape”.

    btw Steven, brilliant tag-line!

  30. 30  roger migently  October 5, 2009, 11:19 am 

    Why do I keep thinking of Rita Tushingham? Why do I keep hearing “Rape! Rape! Rape! Rape! Ra-ape! Raaaaaape!” ? (Old fogey’s joke. 1965, when Michael Crawford was young.)

  31. 31  Porlock Junior  October 5, 2009, 6:00 pm 

    @roger migently

    No, thank you, not today.

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