When Is It Rape?

Understanding Consent

By Mistress Norische

Washington's Legal Definition of Rape

The following information was directly taken from Title 9A RCW: Washington Criminal Code (1996 Ed.)

• First Degree Rape

  A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:

1. Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or

2. Kidnaps the victim; or

3. Inflicts serious physical injury; or

4. Feloniously enters into the building or vehicle where the victim is situated.

Rape in the first degree is a class A felony. 9A.44.040

• Second Degree Rape

  A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:

1. By forcible compulsion;

2. When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated;

3. When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

4. When the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination. It is an affirmative defense that the defendant must prove by a preponderance of the evidence that the client or patient consented to the sexual intercourse with the knowledge that the sexual intercourse was not the purpose of treatment;

5. When the victim is a resident of a facility for mentally disordered or chemically dependent persons and the perpetrator is a person who is not married to the victims and has supervisory authority over the victim.

Rape in the second degree is a class C felony. 9A.44.050

• Third Degree Rape

  A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person, not married to the perpetrator:

1. Where the victim did not consent to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct; or

2. Where there is threat of substantial unlawful harm to property rights of the victim.

Rape in the third degree is a class C felony. 9A.44.060

• Definition of Sex Offenses (9A.44.90)

  Sexual intercourse:

1. Has its ordinary meaning and occurs upon any penetration, however slight, and

2. Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another whether the persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

3. Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

Sexual Contact means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.

Mental Incapacity is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse, whether that condition is produced by illness, defect, the influence of a substance or from some other cause.

Physically Helpless means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

Forcible Compulsion means physical force which overcomes resistance, or a threat, expressed or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

Consent means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.

Forcible rape is a felony that carries the possible term is imprisonment for a sentence of not less than five years, unless there is physical injury or in such cases as a deadly weapon is used in a threatening manner or the victim is subjected to deviate sexual behaviors with more than one individual, in which the term of imprisonment is for a sentence of not less than ten years.

First degree rape is punishable by no less than ten years no greater than life imprisonment. Of those individuals that are convicted and sentenced to prison, the average prison term served is 84 months; most individuals serve approximately 47% of the original sentence.

Second and third degree rape is listed as a class C felony, in which there is a mandatory minimum five year term of imprisonment. The average sentence for second and third degree rape is seven years, of which the actual time served is between 27 and 39 months; depending on the severity of the crime itself and the behavior of the individual during incarceration.

There are cases in which an individual is found guilty or pleads to a lesser crime, of those pleading or convicted and sentenced to jail the average individual will spend approximately eight months in local or county facilities. For individuals that are convicted and sentenced or pleading to a lesser crime, they maybe sentenced to time served with probation, the average time an individual in such circumstances spends on probation is 57 months.

One interesting tidbit of information I found was that while there were approximately 247.730 reported rapes and sexual assaults in the year 2002; and although this number seems incredibly high, one in every ten men currently incarcerated will be raped this year which means there will be approximately 290,000 men raped while serving behind bars this year alone. This means that that every 2 ½ minutes a man in prison is raped somewhere in America. Now these statistics are undoubtedly off to some degree, due to the fact that only 16% of sexual assaults actually get reported; (Bureau of Justice Statistics 2003.

National Crime Victimization Survey: Crime Victimization, 2002. Washington, DC: U.S. Department of Justice.)

Now that we have come to a basic understanding as to what is rape, what are the consequences of rape and how often rape actually occurs; let us look at rape within the BDSM realm.

Rape Fantasies

Is there really such a thing as a rape fetish; were an individual will go through all the motions of being raped, screaming for help and fighting the mock rapist in an attempt to get away? Oddly enough even with all the negative connotations of rape there are several individuals, both male and female that have fantasies about rape or being raped. In fact there are several individuals within the BDSM realm that not only love rough sex but in all reality they cannot function properly as a sexual individual within the vanilla world. Fantasy rape is not to be mistaken for actual rape; during a fantasy rape scene the victim still has the right and ability to stop the complete scene and end the fantasy. Normally the prerequisites for a fantasy rape scene are rather extensive. Negotiations must be thorough and all the details of the scene should be discussed prior to the commencement of the scene.

1. Will a weapon be used?
2. Will there be vulgar language or name calling involved?
3. Will there be humiliation or degradation involved?
4. Will there be actual penetration, if so will a condom be used?
5. Will there be physical violence prior involved?
6. Will there be a safe word and if so what?
7. Will the scene be scheduled or will it be a surprise?
8. Will it involve kidnapping?
9. Will it involve a mask, blindfold, bondage, or costumes?
10. Are there any limits, such as choking, slapping, fisting, cbt, etc.?
11. Will it involve bodily fluids, if so what type of precautions will be used if any?
12. At what point will the scene stop?

The list of negotiations could be quite extensive, I have listed just a few things that should be discussed, but by no means is this a complete list... use your own best judgment and try to cover all possibilities. The proverbial "Who? What? Where? When? And How?" is a good place to start.

The main thing to remember is that this is merely role-play, and should in no way be associated with real rape. The "victim" of this type of play is completely in control, no matter how much the scene looks otherwise. The "victim" may scream "HELP!" or "STOP!" or even "POLICE!!" but in reality they are screaming MORE!! MORE!! MORE!!... The Dominant must observe all negotiations and present limits within the scene itself, the absolute necessity of safe words cannot be stressed enough. NEVER ignore a safe word, or a medical need even when the scene is designed to create a feeling of total helplessness, and absolute fear. To ignore your slave/sub when he or she calls the safe words will destroy all trust that exists within the relationship. Red means Red, or what ever word you use... to ignore the safe word takes this fantasy role play out of its safe little realm and slams it smack dab into reality, where rape is really rape. To ignore a safe word is just like ignoring someone when they say "NO!", it is non consensual and hence it is RAPE, it is no longer a game.

Does a Slave have the right to say "No"?

No matter what an individuals social standing is or what his or her role within the BDSM realm is, everyone has the right to say "No", even a slave. When an individual enters into a slavery contract with someone, their sexual activities or lack there of should be appropriately noted. Hence they are aware of what sexual activities will or will not be expected of them; they also have been informed as to what safe words they may use (if any), and an expression of behavioral limits should have been disclosed and accepted. Even within the perimeters of consensual slavery, an individual has the right to renegotiate his or her preferences and limits at any time. If at anytime an individual’s rights to limits are ignored, the possibility of consensual slavery is no longer present. If at anytime the activity is outside the boundaries of slavery, such as when a slave has sought release from his or her contract, any activity considered sexual should be based on personal desires not on slave duties or obligations. Hence at this time if the individual expresses the reluctance to engage in sexual activities, or refuses to perform said activities the Dominant within the relationship must observe all requests, failure to do so could be considered an act of rape.

At this time I would like to note that a person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct. (Source: P.A. 93-389, eff. 7-25-03.) In other words if at anytime your partner states "No", stop immediately, get clarification and together decide as whether to proceed or not. Do not attempt to pressure or coerce your partner, this would be inappropriate, and make the end results questionable at best.

Hence if someone who has previously agreed to sexual acts, states that they do not consent at anytime to any sexual act and you continue, it could be legally considered rape.

What Are Some Of The Emotional Effects of Rape?

The feeling of betrayal and shock that somebody you trust and obey could hurt you that way.

Humiliation and a sense of being ‘dirty’; you feel that if an individual who professes to love you could do that to you, that somehow you must be ‘bad’ or have deserved it in some way.

Self hatred at feeling sexual excitement by an act that you know is "wrong", knowing that the act was non-consensual and not wanting it to happen but your body betrayed you just as your Dominant did.

Anger, at the individual for hurting you, and anger at yourself for allowing it to happen is quite common.

Guilt, you feel that if you had been a ‘better’ partner or a better slave/sub, it would not have happened. "If I had only been a more perfect slave, more obedient or attentive then my Master/Mistress would have valued me more and not have treated me this way."

Long-term emotional impacts are:

Inability to trust, this is not surprising given that you have been betrayed by someone that you have placed all your trust into.

Inability to feel comfortable with sex or intimacy; sexual activities become associated with a feeling of pain, fear, and shame, it is no longer associated with pleasure, love or trust.

Fear, the feeling that it may happen again and that anyone, even someone you love can turn out to mean you harm.

Self doubt, never being able to trust your own judgment again; since you had trusted the person with you life and they betrayed that trust, how can you judge a person to be trust worthy again.

Rape is a devastating experience and no matter what role you play in this world you have the right to say no. If someone ignores this fact and goes against your wishes to perform sexual acts without your consent, it is rape... plain and simple. Rape is difficult for anyone in any role in life, but it particularly heinous when it involves a Dominant and a slave/sub. The level of trust and respect that must be present for a BDSM relationship to be successful is extreme, and when that trust is broken, when that respect is lost the devastation that follows is horrendous. Never risk such a bond, never cross the boundaries, and never assume anything.

As with everything this is my opinion, take what you will and leave the rest. If you wish to contact me, my email address is Norisch1@mchsi.com. If you wish to see more of my work you may find a complete listing of all my writings at... http://groups.yahoo.com/group/Norisches_Quill/?yguid=99788111 in the files section.

Norische