Analysis / Rape Is a Special Kind of Evil

The logic behind rape being qualitatively different from other crimes runs something like this.

We have created a hierarchy of evil, based on what does greater or lesser damage to the social contract but mitigated by necessity. Killing another human is the most destructive and in pretty much every society therefore punished the most harshly. But it is possible that killing another human being can be forgiven from need; self-defense or the defense of others. Even the violent suppression of a rebellion or the killing of an insolent underling by a leader can be construed as attempts to preserve the existing social contract.

People may:
  • steal to feed themselves or their families.
  • torture others to obtain information which can save thousands (although this one is a very dubious and questionable justification at best).
  • kill someone in self-defense, to preserve their own life.

These are all actions which are normally punished if performed for their own sake, but which may be treated less harshly if performed "for the right reasons"—personal survival, the survival of another, or the survival of the group. Constructing a situation in which rape becomes necessary for personal survival, the survival of another, or the survival of the group is extremely difficult, if not impossible.

It is in the top tier of the hierarchy of wrongs, because of its ability to have permanent effects on the victim and those around the victim, along with torture and murder. That also means that any attempt to justify it instantly begs the question of why the use of the other two, particularly torture since both leave the victim alive, wasn't a relatively superior solution. Also unlike torture or murder, it has the possibility to actually create an additional victim(s) of the crime (a female victim being unwillingly impregnated, especially if getting an abortion isn't easy for her).

However, this reasoning has its flaws. As rape has historically been used as a form of torture, such as in war. The Romans for example allowed soldiers to rape enemy women and/or men(which ever they preferred) of towns and cities that did not surrender as a form of punishment. All in order to install fear to other towns and motivate them to surrender, ending the war quicker which would save thousands and it worked. The license to rape and pillage was also considered a major incentive for the soldiers involved in siege warfare, even people who opposed to rape in peacetime like Francisco de Vitoria reluctantly admitted that might be a necessary evil in the context of war to boost the morale of troops. Particularly all ancient and medieval societies practiced this. It’s even done in recent conflicts like the Syrian War.