Thursday, October 17, 2013

May God Bless and Keep Bad Arguments.... Far Away From Us!

By Robert H.

Law stud Eugene Volokh has a completely incoherent critique of how a study investigating rates of sexual violence defined "rape."  This is what I can figure out from his blog post: he correctly notes that the study uses a broader definition of rape than what is supported in either American law or traditional usage (they included sex obtained via emotional coercion).  He also thinks the study shouldn't use that definition.  What is incoherent, to me, is how he got from the first sentence to the second one.  Surely he isn't dumb enough to argue that legal or traditional concepts of rape exclusively define how to use the word?

Rape as both a concept and as an English word predates rape as an American crime by centuries (14th century English adoption, from the Latin rapio rapere, meaning to seize), so it would be weird if American legal statutes now get to dominate the word's usage.  What's more, our definition of rape has expanded before and will again, both culturally and legally.  For example, violent spousal rapes used to not be considered rape.  Most people are glad that they now are.

So that puts a big burden on most of us: we cannot oppose any expansion of the definition of rape with arguments that would also have applied, decades ago, against those who expanded "rape" to cover husbands assaulting wives.  These bad arguments include:

1. But that's not how rape is defined legally!
2. But I do that!  Are you calling me a rapist?
3. But lots of people do that, are you trying to make them all rapists?
4. Most people don't use the word that way, so while I agree with you that those actions are wrong, it is imprecise to call them rape.
5. That isn't how the word is traditionally used.
6. That isn't how the word is traditionally understood.

Instead, try "The actions you want to call rape should not be a crime for reason x (bad consequences, unjust, whatever), or should be a different crime from rape because rape's dominant character is y, and the actions you describe lack y.  Rape's dominant character should be Y because of z."

So maybe Volohk could have said,  "Society abhors physical violence and the threat of physical violence, that is why society abhors rape, and therefor 'rape' should only cover situations involving sex coerced by violence or the threat of violence.  Society is cool with pressuring each other emotionally, though, so sex coerced that way isn't rape."  Then the other side can respond.

No one can respond to "no because TRADITION!  Tradition!"

Edit: I am having trouble getting the video to embed, so yo:

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