A question about rape- emotional blackmail

dascmom · Mar 24, 2013

In the story I am working on, a man, who happens to be the older step brother of the victim, verbally coerces the younger adult male (18 years old) into having sexual intercourse with him. So it is not physically forced, but more so emotionally coerced by the use of emotional blackmail i.e. "if you don't go along with this, then I am going to tell your father ... and with his poor health that could kill him etc." type of situation.

So, is it legally considered rape if emotional force is used to gain access (not really consent) rather than physical force? Or say, if the victim could easily get up and leave, but doesn't because of deep fear of the repercussions.

Thanks!

Fade · Mar 24, 2013

I think the law changes depending on what state your in, but according to rainn.org

Rape victims may be forced through threats or physical means. In about 8 out of 10 rapes, no weapon is used other than physical force

Blackmail sounds like a threat, so I think it'd count, but I recommend checking state and our country laws for the location of the story.

CWatts · Mar 24, 2013

Wouldn't it being his step brother automatically make it incest?

jmare · Mar 24, 2013

CWatts said:
Wouldn't it being his step brother automatically make it incest?

Incest requires blood relation. Step brothers aren't related by blood. No less creepy though.

dascmom · Mar 24, 2013

The man (25 years old) who manipulates the 18-year-old into having sex through verbal threats, is the son of the woman who marries the 18 year old's father (five years before), so they are not genetically related, but at one time did live in the same household. Is it still considered incest?

I am not sure if a "threat" has to be with the potential of something physical happening to the victim.

Canotila · Mar 25, 2013

Yes, it absolutely is considered rape. Proving it in court could be extremely challenging unless the perpetrator had sent him something easy to document, like texts or an e-mail. Even straightforward "traditional" rape cases are difficult to prove in court.

Threats can be anything that intimidates the other person into doing something against their will. The perpetrator could even threaten to commit suicide out of shame if the victim told anyone and that would still be a threat.

cornflake · Mar 25, 2013

I don't think emotional blackmail comes close to the legal definition of rape. Threats like 'I'll shoot you/your family member,' are one thing; threats like 'I'll tell your father and he'll be so upset he might keel over (to an adult)' are quite another.

BunnyMaz · Mar 25, 2013

Coercion counts. I'm not sure the specific threat you've given as an example would be convincing to an 18 year old, because it's a bit weak. "Sleep with me or I'll tell your dad you slept with me" seems... unlikely to feel like a realistic threat. It's the sort of threat that would work on a child, maybe, but certainly not on a teen or adult.

But a more serious threat could work. The kid's father's boss telling him he'll fire his dad, a teacher threatening his grades that will stop him getting into university, a bully making it clear that they'll go after his younger sibling instead... there has to be some actual meat on it for it to be a convincing threat for someone to give in to it, and for it to convincingly come across as coercion-based rape.

dascmom · Mar 25, 2013

Thanks. These answers have been helpful.

As far as the threat, the older brother had been molesting the younger brother off and on from the ages of about 14-17, which is another topic I've been researching. Since then, the younger brother was able to stop the sexual abuse by moving out early to go to college. However, the older brother has been hanging around the college campus, trying to talk to the younger one. One night the younger brother is called home due to his father's failing health (heart problems). That night, the father is given the OK to go home after he has been stabilized at the hospital. At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?

Thanks!

cornflake · Mar 25, 2013

dascmom said:
Thanks. These answers have been helpful.

As far as the threat, the older brother had been molesting the younger brother off and on from the ages of about 14-17, which is another topic I've been researching. Since then, the younger brother was able to stop the sexual abuse by moving out early to go to college. However, the older brother has been hanging around the college campus, trying to talk to the younger one. One night the younger brother is called home due to his father's failing health (heart problems). That night, the father is given the OK to go home after he has been stabilized at the hospital. At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?

Thanks!

I'm confused now. The older had been molesting the younger until he was 17? You're separating this out because of age? How old is the older brother? Why was it non-consensual in the past?

In general, past relationship has nothing to do with the current event - any more than a husband could claim he didn't rape his wife that one night because she has sex with him all the time.

MarkEsq · Mar 25, 2013

I hate to contradict folks but coercion will not count. Remember that rape statutes vary from state to state but I'd be shocked if anywhere allowed mere verbal coercion.

Rape (or sexual assault as we call it in Texas) happens when there is anal/vaginal penetration without the victim's consent.

Lack of consent exists when there is:

-- physical force or violence
-- threat of physical force or violence
-- unconscious victim (or otherwise unable to resist)

There are others, but these are the main ones and none of the enumerated 'lack of consent' situations in my penal code include coercion, so the situation you suggest really wouldn't fly.

Best of luck!

evilrooster · Mar 25, 2013

dascmom said:
At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?

Phrased the way you have it there, I'd say it's rape. It's clear that the younger brother does not consent to the sex. His failure to make a scene is a separate issue from his consent.

It would be muddier if the elder brother had said, "Have sex with me or I'll tell Dad that we've been lovers." I think it would still count as rape, because it's coerced consent rather than free consent. But "don't make a noise while I do this thing you don't consent to" is much more straightforward.

Having said that, if I were a prosecutor, I'd choose to bring statutory rape charges against the older brother over the earlier molestation rather than try to prosecute the incident under question as rape. Not that it doesn't count, from what you've said. But it'll be easier to get a jury on-side for the under-age stuff.

BunnyMaz · Mar 25, 2013

The scene as you've clarified it reads as rape to me. Sexual assault/paedophilia/incest victim is forced to have sex with their abuser through emotional blackmail. And the threat definitely sounds more believable in the context you've described.

Maryn · Mar 25, 2013

Personally, I'm more inclined to give credence to the reply from the attorney rather than trust what seems right or how it ought to be.

We all know there's a lot about law, both criminal and civil, which can produce results other than what we feel is right or fair. Cases of "emotional blackmail" might well be among them. Is it even illegal? I dunno. Can the victim prove it? I doubt it.

So as a set-up for this situation to work, if you need it to be illegal, I think you need to consult an attorney in the state where the work is set and have him or her search case law.

Maryn, with no doubt that it's immoral and unconscionable

cornflake · Mar 25, 2013

evilrooster said:
Phrased the way you have it there, I'd say it's rape. It's clear that the younger brother does not consent to the sex. His failure to make a scene is a separate issue from his consent.

It would be muddier if the elder brother had said, "Have sex with me or I'll tell Dad that we've been lovers." I think it would still count as rape, because it's coerced consent rather than free consent. But "don't make a noise while I do this thing you don't consent to" is much more straightforward.

Having said that, if I were a prosecutor, I'd choose to bring statutory rape charges against the older brother over the earlier molestation rather than try to prosecute the incident under question as rape. Not that it doesn't count, from what you've said. But it'll be easier to get a jury on-side for the under-age stuff.

We don't even know the age differentiation - not to mention that many places stat rape is only m/f and can require complaint.

jclarkdawe · Mar 25, 2013

Why are you making this complicated? You've got statutory rape for two years, virtually no statute of limitations on it, and a simple case (relatively) to prove. Although the coercion meets society's definition of rape, as Mark says it's going to be hard to pigeon hold into a legal definition. And incredibly hard to prove to a jury's satisfaction.

And if you tell me the victim is only admitting to the adult rape happening, you're not going to succeed. Males especially are going to admit to being raped the more easily they were victims.

Best of luck,

Jim Clark-Dawe

MarkEsq · Mar 25, 2013

BunnyMaz said:
The scene as you've clarified it reads as rape to me. Sexual assault/paedophilia/incest victim is forced to have sex with their abuser through emotional blackmail. And the threat definitely sounds more believable in the context you've described.

Not to get into a back-and-forth, Bunny, but...

I definitely agree that it's immoral and unconscionable (as Maryn says) but as a guy who's indicted and prosecuted rape cases, I'm here to tell you this isn't rape. Let me repeat: immoral and unconscionable, absolutely. But without some element of physical coercion, it's does not amount to the crime of sexual assault.

BunnyMaz · Mar 25, 2013

MarkEsq said:
Not to get into a back-and-forth, Bunny, but... I definitely agree that it's immoral and unconscionable (as Maryn says) but as a guy who's indicted and prosecuted rape cases, I'm here to tell you this isn't rape. Let me repeat: immoral and unconscionable, absolutely. But without some element of physical coercion, it's does not amount to the crime of sexual assault.

Really? But how can this be considered to have meaningful consent? I was under the impression that rape was the absence of consent. Genuinely curious, here. I had heard the US definition of rape was recently updated to something like

"the penetration, no matter how slight, of the vagina or anus with any body part or object" without the consent of the victim.

And in the UK it's

1-(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

evilrooster · Mar 25, 2013

The definition of rape varies from US state to US state. For instance, I gather from various discussions of recent events that Ohio doesn't have the same requirement for physical coercion/inability to resist that Texas does. Lack of consent is sufficient.

I suspect dascmom is going to want to do some research into the precise laws of the state where the story is set.

cornflake · Mar 25, 2013

BunnyMaz said:
Really? But how can this be considered to have meaningful consent? I was under the impression that rape was the absence of consent. Genuinely curious, here. I had heard the US definition of rape was recently updated to something like

And in the UK it's

There's nothing in the OP's post that says the guy doesn't consent.

jclarkdawe · Mar 25, 2013

Verbal and emotional coercion is on a gradient. Here's two examples:

Guy to girl: "Make love to me or I'm leaving."

Guy to girl: "Fuck me or I break your jaw."

Both are coercion, but only one meets the legal definition of rape. Both have issues of the validity of the consent. This type of case is going to be both incredibly fact specific and state specific.

And Mark specifically listed an "unconscious" or otherwise unable to resist victim as rape. Legally, ability to consent to very different from the validity of the consent. In the Ohio case, there was a serious issue about whether she said yes or no, but it didn't matter. She was so intoxicated she lacked the ability to consent. Something the young men involved in the case didn't understand.

Best of luck,

Jim Clark-Dawe

ULTRAGOTHA · Mar 25, 2013

Does this take place in the 21st century?

What country does it take place in?

If the United States, what state does it take place in?

Without that information it's hard to give specific advice as rape laws vary so much from state to state.

And are you looking to have the older step-brother charged with rape? If so, I agree with jclarkdawe that you have a perfectly good statutory rape case if the rape started when the younger step-brother was 14.

evilrooster · Mar 25, 2013

jclarkdawe said:
And Mark specifically listed an "unconscious" or otherwise unable to resist victim as rape. Legally, ability to consent to very different from the validity of the consent. In the Ohio case, there was a serious issue about whether she said yes or no, but it didn't matter. She was so intoxicated she lacked the ability to consent. Something the young men involved in the case didn't understand.

I was unclear. The recent case in Ohio made me look at the statute in that state. Although in that specific case, the victim was incapable of consent, even had she been sober, a rape could have occurred without physical violence or the threat of it. Lack of consent is sufficient in Ohio, whereas I gather it is not in Texas.

Which reinforces that the law varies, and the OP will need to look at local statutes to determine the specific condions that apply.

cornflake · Mar 25, 2013

jclarkdawe said:
Verbal and emotional coercion is on a gradient. Here's two examples:

Guy to girl: "Make love to me or I'm leaving."

Guy to girl: "Fuck me or I break your jaw."

Both are coercion, but only one meets the legal definition of rape. Both have issues of the validity of the consent. This type of case is going to be both incredibly fact specific and state specific.

And Mark specifically listed an "unconscious" or otherwise unable to resist victim as rape. Legally, ability to consent to very different from the validity of the consent. In the Ohio case, there was a serious issue about whether she said yes or no, but it didn't matter. She was so intoxicated she lacked the ability to consent. Something the young men involved in the case didn't understand.

Best of luck,

Jim Clark-Dawe

I'm separating 'threats' as in 'I will kill/harm you, etc.' from personal emotional coercion full stop, and have been the whole thread. I don't think the scenario described by the OP is close to rape.

There are a number of ways someone can be unable to consent, among them unconsciousness, age, altered state, but I don't see anything I'd think was criminal in the OP's scenario, save possibly what's described as the molestation, but that's unclear (as to what happened, ages, etc.).

GingerGunlock · Mar 25, 2013

dascmom said:
Thanks. These answers have been helpful.

As far as the threat, the older brother had been molesting the younger brother off and on from the ages of about 14-17, which is another topic I've been researching. Since then, the younger brother was able to stop the sexual abuse by moving out early to go to college. However, the older brother has been hanging around the college campus, trying to talk to the younger one. One night the younger brother is called home due to his father's failing health (heart problems). That night, the father is given the OK to go home after he has been stabilized at the hospital. At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?

Thanks!

I feel, given these details, that this would constitute as rape. The younger brother would not engage in the act without the coercion, does not want such an act to occur, and immediately distances himself physically from both the older stepbrother brother and the father he wanted to protect. "Do this or it will hurt [person you love]", be it "violent" or not, is a coercive threat that makes a situation rape, regardless of age and gender.

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