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Rom-coms, rape law, and restorative justice: Lessons with Shirin Bakhshay

On Oct. 6, 2018, the Senate voted to confirm Justice Kavanaugh in the midst of sexual assault claims by Christine Blasey Ford. There have been new accusations that emerged on Sept. 15, 2019 by Deborah Ramirez, a student at Yale at the same time as the Supreme Court justice. These assaults took place in the 1980s through the late ’90s, a signature feature of this era being the influx of romantic comedies full of mistaken identities, wacky hijinks and the gleeful normalization of rape.

Photo courtesy of Mills College.

The romantic comedy genre is built on the tension between unrequited lovers, presenting romancea precarious balance of emotions and desiresas ripe for comedy. However, making a mockery of love is a dangerous narrative gamble, and more often than not, it fails. In rom-coms, actions from rape to civil offenses are portrayed as romantic, and these mischaracterizations of love undeniably fuel the justifications of rape culture.

If we are to attempt to undo the damage of these movies, then we must thoroughly deconstruct them, separating the cultural narratives from the legal ones; to do this, I sat down with lawyer, researcher, and Professor of Sociology and Public Policy Shirin Bakhshay, and learned about the complications of rape law through iconic rom-com movies.

For example, the 1987 movie “Overboard,” with Goldie Hawn as the wealthy Joanna and Kurt Russell as Dean, was the movie that taught me how to hate. I remember watching it as a kid and feeling an incredible, unplaceable distress while watching. The film follows a lonely handyman as he convinces a wealthy amnesiac who falls off a boat that she is his loving wife so she will clean his house, parent his children and ultimately bear him another one.

While the situation is morally fragile, the legal specifics are harder to pin down, Bakhshay said, her legal explanation bringing the extravagant premise of this movie into the context of reality. “I’m not even sure if [Dean’s actions are] a crime. But [Joanna] could almost certainly sue civilly.”

Even so, Bakhshay could easily spot that there was some kind of abuse happening in the film. She drew similarities in Joanna’s experience to elder abuse, “where people who are mentally incapacitated are convinced of things by family members or friends, and they end up giving them money … and you can sue for that kind of stuff, and sometimes you can pursue criminal action.”

The trope of the amnesiac lover is disturbingly popular, featuring in an episode of another childhood favorite, “Monk.” In the 2006 episode “Mr. Monk Bumps His Head,” the titular character suffers from amnesia and is convinced by a woman he meets that she is his wife. While the two never consummate their relationship, Monk is made to endure household chores, which he fails at comedically. This trope is so common that it has an extensive TV Tropes page dedicated to it.

While “Overboard” is certainly noteworthy, toxic relationships tropes continue well into the 2000s. “The Notebook” romanticizes a particular kind of abuse far more commonly experienced that being manipulated while suffering amnesia. The couple that we are supposed to root for is Noah and Allie; while Allie is on a date on a Ferris wheel with another man, Noah hangs off the side and threatens suicide if Allie won’t go on a date with him.

According to Bahkshay, “that’s classic emotional abuse,” but the arms of the law remain distant from such incidents. “The law doesn’t answer [for that type of behavior],” she explained. Whether in civil or criminal court, “there isn’t a clear legal claim for emotional abuse like there is for physical abuse or sexual abuse. Think if you could make a criminal claim against people for emotional abuse. Think about the floodgates that would open.”

The restraint of the law when it comes to policing morally heavy actions was a phenomenon that Bahkshay commended in our conversations, based on her own experience studying restorative justice, an alternative to the punitive justice system that works to “repair the harm caused by crime. When victims, offenders and community members meet to decide how to do that, the results can be transformational. [Restorative justice] emphasizes accountability, making amends, and—if they are interestedfacilitated meetings between victims, offenders and other persons.”

At the end of the movie “16 Candles,” the popular jock Jake decides that he is done with his popular girlfriend Caroline and ready to ask out the protagonist, Samantha. Well, what then to do with Caroline, who ends the film passed out after a party? Jake gives Caroline’s unconscious body to his friend Ted, reminding him that he could “violate her ten different ways if [he] wanted to,” and further explaining that Ted is welcome to have sex with Caroline, as “she’s so blitzed she won’t know the difference” between him and Jake.

According to Bahkshay’s expertise, this is unquestionably rape on Ted’s part. “If you’re unconscious you can’t consent,” she said. “In either scenario you can’t consent. So it is some version of rape. [While] it depends on what state you’re in what the law actually explicitly calls it … [conceptually,] you cannot consent if you are unconscious.” As for Jake’s actions, “the ethical violation that is giving your girlfriend to another man … that’s another form of some sort of emotional abuse or manipulation.” Bakhshay’s explanation affirmed what I’m sure were the gutted reactions of many women watching the movie.

In regards to Jake’s confidence that Caroline won’t know the difference between Jake and himself, as well as the bed trick trope more generally, Bahkshay emphasized that knowing who you are consenting to is a key part of consent. “If you are deceived into thinking that you were consenting to one partner and it’s actually a different partner,” she explained, “that’s the same thing as nonconsensual sex with that other person.”

“Revenge of the Nerds” is the mascot of the bed trick, a media trope referencing rape by deception. In the movie, one of the titular nerds rapes a popular girl by wearing a Darth Vader mask at a Halloween party and pretending he is her boyfriend.

While the glorification of rape in romantic comedies often features violence against women, films also employ toxic ideas about masculinity to justify the rape of men by women. In the movie “Wedding Crashers,” the main character Jeremy is tied to his bed in the middle of the night by the attractive Gloria. “When he wakes up, she stifles his protests by gagging him with a sock so she can finish what Jeremy later describes as a “midnight rape,” writes Mika Doyle, media analyst from Bitch.

“Being raped obviously wasn’t all that traumatic for Jeremy, though, because he ends up falling in love with Gloria and marrying her,” Doyle continued. It is clear that in the worldview of these filmmakers, rape can lead to love, and when it does, it isn’t wrong.

Attitudes towards other types of sex crimes and offenses, like assault, harassment and battery, are even more muddled in the media. Perhaps the most famous example of sexual assault in film is in “The Breakfast Club.” According to the film’s star Molly Ringwald, “At one point in the film, the bad-boy character, John Bender, ducks under the table where [another] character, Claire, is sitting, to hide from a teacher. While there, he takes the opportunity to peek under Claire’s skirt and, though the audience doesn’t see, it is implied that he touches her inappropriately.” Using this example, Professor Bahkshay explained the nuances of sexual assault and harassment.

For example, Bender’s actions wouldn’t legally be considered sexual harassment. I was surprised to learn from Bakhshay that “legally, sexual harassment is actually pretty limited because there has to be some sort of damage. It’s not just enough for there to be some sort of improper sexual conduct, sexual behavior, or sexual comments. There has to be a consequence. So either you’re denied something, or you’re made so uncomfortable as to not be able to function. And it’s very unlikely that one incident like that rises to that level.” I was also surprised to learn that “sexual harassment is different than sexual assault [because] sexual harassment is not a crime,” but a civil wrong one could sue for. While Bender’s actions might constitute sexual assault, the “standard for harassment is much higher, because there has to be some sort of effect on your job performance, [for example], or it affected your ability to stay in school.”

Examples of everything from rape to stalking to harassment in romantic comedies are endless, and it is undeniable that the media contributes to cultural confusion about what is and isn’t a sex crime, and what a survivor’s recourse is should they experience one. “We are raised to believe certain scripts about the way that the world works, about how relationships function, about how romance functions, and … a lot of that includes sexual violence,” Bakhshay said. “It is played for entertainment value, and it is played for laughs, [and it] contributes to a narrative that sexual assault is not that harmful, sexual assault is not that dangerous, especially if at the end of the day you find love.” As far as I am aware, none of the directors of these movies have responded to the criticism their films have faced.

As our conversation changed towards one’s legal options while facing sexual harassment, I became frustrated, an experience many women surely share when dealing with the complicated, sometimes lackluster ways the law responds to sex crimes. Why isn’t sexual harassment a crime? Emotional abuse? When should the law be responsible for interpersonal conflict? As an advocate for restorative justice, Bakhshay believes that “the law [isn’t] the answer to every injustice. … More needs to be done to deal with attitudes around sexual assault and consent culture, but [does she] think that it necessarily all falls on the shoulders of the law? No … the media has a lot to do with it.”

The prison system, the legal system and the government itself are systematically oppressive organizations rooted in kyriarchy. As the feminist movement continues to advocate for survivors of sexual violence, we have to consider the history of the legal system and its failings, and we must always question whether it is useful, reliable and fair in each situation.

Sometimes, the law can’t do much for those at risk for sexual violence because the law was not made to protect, but to punish. As Bahkshay explains, “historically and typically, the law is reactive not proactive. The law is supposed to keep us in line when we do something wrong, and the law is supposed to, you know, make us pay up when we harm someone. But the law shouldn’t always be how we understand our moral obligations, and our ethical obligations, and how to be socially responsible, socially conscious people.”

For as instrumental as the law has been in cementing changing social standards, the law has never really led social change; the media has, and the law has played catch-up.

After all, Bakhsahy said, “there are many, many, many, many things wrong with the way we are socialized to think about gender, and sexuality, and sexual relationships, and consent, and sex. Instead of looking to the law to criminalize more conduct, or regulate more conduct, we actually need to do a better job of just creating aware, educated, socially responsible people.”

The path to a more aware, educated, and responsible world will be long and complicated, but in figuring out how we are going to get there, we must consider the implications and the effectiveness of further empowering the law and the state, and whether or not that will really help survivors of sexual assault and women at large.