Volokh misses the point, 100%
That's going to be my new catchphrase. 100%.
Um, that's not what "crime of violence, not crime of sex," is supposed to mean. Or at least, that's never been I thought it was supposed mean. Maybe I missed the rap at the Women's Center that day.
Of course some sex crimes are sexually motivated. Indeed, sometimes people actually get off sexually on committing violent crime. And sometimes sex crimes are motivated only by the desire to humiliate, dominate, and punish. Anyone who's heard the phrase "hate fuck" knows what I mean. The phrase sears me when I hear it.
The point is that rape is not a sexual exchange or relationship gone awry. It's not an exchange or a relationship at all, except in the most trivial sense, because one person no longer has any say it what's going on. Someone who is forced into sex against their will is not, in some sense, having sex, and the violation they feel is not a result of their having sex "badly" or something like that.
The expression is also an attempt to define rape and sexual assault as outside the bounds of normal sexual contact. To say that we shouldn't accept it as par for the course in the sexual realm.
It is also an attempt to emphasize the violence involved so that people who may feel shame about the sexual issues have a chance to feel empowered to name their injury and the crime committed against them.
If you went to a restaurant expecting maybe a nice meal and the matire d' tied you down and force fed you until you wanted to die, you wouldn't have to say "it was a crime of violence, not a crime of gastronomy." But maybe you would if people said, "Well, going into a place like that, looking as hungry as you did, what can you expect from an overeager chef?"
I'm sure Volokh has heard these kinds of statements before. I still have no idea why he thinks the "sexualness" of the crime can be measured in terms of the attractiveness of the women, and by inference, the desire of the men. I could just as easily make the argument that the sexualness of the crime is more rightly measured by the degree to which these women feel their sexuality to have been violated. I don't think that correlates with age or attractiveness. The desires or the motivations of the rapists have nothing to do with the criminality, do they? If they sought to violate, to humiliate, or to dominate their victims, that by itself doesn't make it rape. What matters in rape is the victim's will and consent.
Some will argue that a well-meaning rapist, one who didn't mean to commit rape, who genuinely thought their victim was consenting, isn't guilty of anything, and therefore the victim's consent is not in fact all that matters. I don't think so. If you went to the firing range, and you shot someone without meaning to, you'd still be guilty of a crime. Your victim would still be dead or injured. It's a little different because even if they wanted you to kill them, it would still be illegal, but the point here is that the injury is still real, and has consequences. Now if someone did something crazy and did something like hide themselves inside one of those hay bales with the target on them, and you shot them not knowing they were doing that, you probably wouldn't be culpable. You did your due diligence, and you had no reason to believe that anyone would get hurt. You probably have to say the same thing about rape. Unfortunately, these days due diligence is often phrased as "she wasn't struggling," which is hardly sufficient.
--Melissa O, at 17:47