Handbags Have More Legal Protections than Most Women
In Minnesota and 39 other states, rapists can declare open season on people who choose to get drunk
Imagine you’re wobbling home from a drinking binge. Another person walks by and snatches your unconscious handbag or lifts your insensible phone from your back pocket.
Luckily, the handbag (or phone) and you, the shitfaced owner, are both protected; the law assumes that neither of you consented.
But in 40 states, there’s no protection from sexual assault for the bodies of those who become voluntarily intoxicated.
I’m not surprised that handbags and phones, et als, have more rights than sexual assault victims. After all, this is capitalism, where property rights are sacrosanct. Also, this is a misogynist culture. The overwhelming majority of sexual assault victims, of course, are women, just as the overwhelming majority of sexual predators are men.
That’s the way it’s always been in most of the world, so the evolution of rape laws got twisted like a rancid pretzel in an effort to criminalize some rapes while still preserving the patriarchy and its possessions. Rape began as a property crime, and originally the victims of rape were the men who owned the women who were assaulted. Under this system, fathers and husbands suffered economic loss once a rape reduced — nay, eliminated! — the value of their wives and daughters.
Knowing this, I wasn’t shocked when in March of 2021, the Minnesota Supreme Court overturned the rape conviction of a man who’d invited a woman to “a party” after she was denied admission to a bar for being too drunk. There was no party, and the woman passed out soon after she entered the man’s home. She came back to consciousness as he was was raping her.
If only this woman had been a handbag. Or a phone. An object who was not assumed to give consent while she herself was insensate.
In other words, in Minnesota and the other 39 states, people who get drunk or otherwise intoxicated of their own free will are not protected from sexual assaults. Predators of every species prey on weakness, and predators will prey.
Rape is the only crime that requires proof of the mental state of both the defendant and the victim. The defendant must have criminal intent and the victim must be pure in her intent to not be raped. In contrast, if a person robs you of your handbag, the police don’t ask if you, in your hearts of hearts, wanted to be robbed or had asked to be robbed or had let yourself be robbed before or had led the robber on. The prosecuting attorney doesn’t prepare you for testifying by making sure you had no desire to be robbed, that you’d not complained in the past of being robbed, or that you made a clear, unambiguous statement about not wanting to be robbed.
Our cultural assumption is people do not consent willingly to the theft of property. We assume that thieves and robbers (and murderers, and destroyers of property) act against the wishes of their victims. For example, a bank robbery defendant who testified that the bank tellers “wanted it” would probably be laughed out of the witness box.
The mental state of the victim could be at issue in robbery cases, but because our culture doesn’t articulate its bedrock assumption that no one consents to being robbed and because the sanctity of personal property is so deeply embedded in our cultural tapestry, it is unthinkable that I might consent to someone snatching my handbag or phone. Similarly, it is unthinkable that I would consent to having an ear cut off, or to being stabbed, or to having my nose broken. Because consenting to robbery or non-sexual assault is literally unimaginable, the victim’s state of mind is rarely discussed in prosecutions for theft or robbery or assault.
But, because misogyny is so deeply embedded in Western culture, it controls our legal system and demonizes women. Laws that required corroborating evidence in rape cases, or evidence that the victim resisted “to the utmost,” or evidence of prior chastity were formed by cultural beliefs about women like “Women lie more than men, especially about sex,” and “If a woman has sex with one man, she’ll have sex with any man.” This is rape culture. It gets worse:
Because racism and homophobia are also deeply embedded in Western culture, the brutality of rape culture hammers people of color and queer people with even greater brutality.
The result has been generations of men who believe they have the right to rape. The result has been generations of social services, medical staff, police, lawyers and judges who treated people like criminals if they reported a sexual assault, a phenomenon sometimes called “secondary victimization.”
So how can future victims of sexual assault get the same respect under the law as their handbags and phones?
A holistic response is required to address injustices with deep cultural roots. One element is to implement affirmative consent laws, sometimes called “Yes Means Yes,” which would reframe the idea of consent in rape and sexual assault cases as “a voluntary, affirmative, conscious, agreement to engage in sexual activity.” The #MeToo movement has influenced policy discussions around consent; activists argue forcefully that a person who is incapacitated by drugs or alcohol, or is either not awake or fully awake, is also incapable of giving consent.
Another element is the current trend toward early education in affirmative consent, which has also been influenced by the #MeToo movement. Early education in boundaries and consent is critical to counteract the negative cultural messages about sexuality that boys and girls receive.
“Consent conversations matter in K–12 education because schools can reach young people broadly and at a formative stage of development, before students begin to have sex or form beliefs about sex.”
— The Guttmacher Institute
The pace of change is directly proportional to the volume of outrage. To make sex safer and more pleasurable for future generations, we need to get on our phones to research consent laws and education in our states, then grab our handbags and start marching.
