by Field, Mark
(4)Where a person is at the time unconscious of the nature of the act, and this is known to the accused. …
(5)Where a person submits under the belief that the person committing the act is the victim's spouse...
(6)Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat….
(7)Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official….
(b)As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c)As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.
While it’s a bit simplistic for full legal analysis, we can pretty much rule out any argument that Willow’s behavior could be considered rape under (a) (1), (2), (4), (5), (6), or (7). Her actions simply don’t fit any of those categories. [Note the discussion in comments about the possible application of (a)(1). Spoilers there, of course.]
That leaves subsection (a) (3). Now, her behavior doesn’t fit literally within the words of (a) (3) because Willow didn’t administer any “substance” (rohypnol, say). This is where the analogy of fiction to real life begins to break down. At best, we can say that Willow did something “like” administering a “substance”.
The problem is that there is no real life “substance” which has the very narrow, limited effect of her spell. Willow temporarily blocked one particular memory of a specific event. The “substances” we’re familiar with tend to affect all mental faculties at once; the victim is unconscious or completely lacking in the ability to reason. One’s a scalpel, the other’s a broadaxe. Being unable to remember a particular fact strikes me as intrinsically different from being entirely unable to exercise conscious judgment.
To illustrate the difference, I’ll try an analogy. The best I can do for a real world example is to compare Willow’s behavior to a lie. Suppose my partner wants me to do something which is very important to her, but I fail to do it. She asks me about it and I don’t want to fight so I lie and say I did it. We then have sex, which we wouldn’t do if we just had a big fight.
If you accept my analogy (and you certainly don’t have to), it seems unlikely that most people would consider this rape, at least not within the meaning of the statute. Unlike the case with drugs, a person who has been told a lie has full conscious judgment and understands the nature of the act. In addition, it’s hard to define the kinds of lies which would result in criminal liability. The statute recognizes a particular kind of deception – impersonating the victim’s spouse – but that’s a lie which changes the basic nature of the act. Most lies are far less significant and “little white lies” are common and not generally criminal. Whether other lies should be considered or not, they aren’t under the existing law.
I can’t stop the analysis with this argument, however. Legal reasoning may begin with the text, but it seldom stops there. Only in cases where the text is capable of only one meaning do we lawyers ever look just at the text, and that’s very rare. What’s often true is that a text seems plain and unambiguous to us, but other people see nuance there. That’s not surprising – it’s the same issue we face in analyzing a TV show or a poem.
This bothers some people. They want legal answers to be fixed, determinate. If a text is plain to them, it must be plain to everyone else and those other people who read it differently are just being dishonest. The legal system is a bit more open than that, and one of its solutions to the problem of meaning is to look to see how other courts have interpreted similar problems. Maybe they see something we don’t.
The problem in this case is that this brings us back to the lack of real world comparisons for fictional events. There aren’t going to be any cases “similar” to Willow’s spell because there aren’t any real world actions “like” it.
If a viewer is willing to compare Willow’s behavior to giving Tara a date rape drug, despite the problems with that analogy mentioned above, then there will be cases supporting a finding of rape. If not, then it’s going to be hard to find support for any legal argument that it’s rape, regardless of how you may feel philosophically.
That conclusion may seem tame, though it’s pretty easy to see that I personally don’t consider Willow a rapist. She’s plenty guilty, just not of that. The fact that I can’t absolutely rule out the alternative just means that, to paraphrase LOTR, lawyers are like elves and will say both yea and nay when you ask them for advice.
One final comment on the episode as a whole: it’s an absolute disgrace that Joss Whedon never won an Emmy.
Trivia notes: (1) Anyone who’s interested in the music of this episode, or of the show generally, should read Music, Sound, and Silence in Buffy the Vampire Slayer. (2) The line “she ain’t got that swing” is presumably a reference to the Duke Ellington song, “It Don’t Mean a Thing (If It Ain’t Got That Swing)”. (3) Xander’s “respect the cruller” line is a reference to the movie Magnolia. (4) David Fury was the mustard singer, while Marti Noxon got the parking ticket and Joss himself was one of the pallbearers in the graveyard scene. The choreographers, Adam Shankman and Anne Fletcher, were dancers in the parking ticket scene. (5) Dawn mentioned pterodactyls, which were (very roughly) winged reptiles capable of gliding or flying. (6) Joss mentions in the commentary that Dawn’s backpack was actually his. (7) Dawn took the talisman which was lying on the counter, thereby setting up Sweet’s threat to take her to the underworld and continuing a plot point which will be important later. (8) Tara referred to bacchanals, which are basically drunken revels. (9) When Giles said that he was a “hair’s breadth from investigating bunnies”, there’s probably a pun intended. The phrase “a hair’s breadth” means “very close”. The word “hare”, meaning a bunny, sounds like “hair”. (10) Willow said she wasn’t “large with the butch”, which is a slang expression meaning she’s not particularly masculine (as a stereotype of lesbian women). (11) Xander’s use of the phrase “get-a-roominess” is Joss-speak for the phrase “get a room”, used to describe couples who are getting too romantic in public. (12) The demon’s name is Sweet, though that’s never spoken on the show. His “That’s entertainment” refers to the movie of that title. He was talking about the man who died while dancing, which was an homage to Hans Christian Andersen short story The Red Shoes. Continuing to dance helplessly is also perhaps a metaphor for Buffy’s situation. (13) When Xander says that under California law Anya will own half of his waffles, he’s referring to California’s system of community property under which (simplifying) spouses own half of all property acquired during marriage. (14) Xander got syphilis from the Chumash spirit in Pangs. (15) Anya mentioned David Brinkley, who was a long time news anchor on NBC. (16) Anya’s “I take the Fifth” refers to the Fifth Amendment of the US Constitution, under which accused criminals need not testify against themselves. (17) Anya mentioned the “fourth wall”, which is an imaginary wall that would separate the stage from the audience if it were real. To “break the fourth wall” means to have the actor directly address the audience rather than another actor. (18) Anya’s description of her song as “retro pastiche” means it’s in an old style and consisted of a variety of parts combined from different artists. For a “book number” see the link. (19) Giles’s reference to the police “taking witness arias” uses an opera term to describe a song. (20) Ym
a Sumac was a famous Peruvian soprano. (21) Spike’s song is titled “Rest in Peace” which is the phrase traditionally put on tombstones. James Marsters played the guitar for the song. (22) Spike’s “I can’t find my sweet release” is a sexual statement: he can’t have sex with Buffy. (23) Tara assured Dawn that the “lord of the dance” was not the scary one, referring either to Nataraja, the depiction of the Hindu god Shiva as he dances to destroy the universe, or to Michael Flately’s musical of that title. (24) Sweet’s minions all wear masks depicting former US president Richard Nixon. (25) Sweet’s reference to a “soft-shoe” is to a tap dance performed in shoes without the hard metal taps which make the clicking sound you hear from a tap dancer. (26) Sweet’s reference to buying Nero a fiddle is to the story that the Roman Emperor Nero fiddled while Rome burned. (27) The flower Willow used for her forget spell was called Lethe’s Bramble. Lethe was one of the 5 rivers of Hades in Greek mythology. If you drank from it, you immediately forgot everything. (28) Spike commanded Sweet’s minion to “sing” which is American slang meaning “talk”, and in context is a pun. (29) Spike’s “someday he’ll be a real boy” is a reference to Pinocchio. (30) When Buffy says that Dawn’s in trouble so it must be Tuesday, she’s referring to the fact that the show appeared in the US on Tuesday nights and that she’s constantly rescuing Dawn. (31) The opening guitar theme to “Walk Through the Fire” sounds very much like that in Paul Simon’s “Sounds of Silence” (which happens to be my favorite song). This may be coincidence, but the opening lyrics of “Sounds of Silence” fit the depression theme perfectly: “Hello darkness my old friend, I’ve come to talk with you again.” (32) Compare Buffy breaking down the door at the Bronze to the scene in The Harvest where she can’t – it’s a sign of how far she’s come. (33) Xander asked Sweet if he had to be Sweet’s “queen”, making a pun on the word which means both female royalty and a gay man. (34) Spike’s “get your kum-ba-yayas out” refers to the old Negro Spiritual song “Kumbaya”, as well as (probably) to the Rolling Stones album “Get Your Ya Yas Out”. (35) Spike’s mention of seventy six trombones refers to the song of that title in the musical The Music Man. (36) Musicals frequently end with a kiss, as formerly separated lovers overcome the impediments to their relationship. Joss noted the genre tradition – “the curtains close on a kiss, God knows” – while subverting it by having Buffy kiss Spike. I’ll discuss this in more detail in two more episodes.
Tabula Rasa
Because it comes right after the astonishing OMWF, and because the proverbial shit is about to hit the proverbial fan in the next two episodes, it’s easy to overlook just how good Tabula Rasa is. I’d say it’s Rebecca Rand Kirshner’s best work, and it’s the last episode of S6 before the controversy begins.
The episode opens with 2 moments of insight: Buffy’s that she’s not actually duty-bound to save Spike’s life; and Willow’s that “I was so selfish”. Both insights are lost by the end of the episode, and that’s a real sign of how S6 will go, somewhat like the Magic Box sequence in Life Serial.
One reason why the episode is so well-constructed is that we don’t just see the characters’ innate personalities once they lose their memories. No, we see them as they see themselves. This is most noticeable with Spike and Buffy – Buffy sees herself as a superhero, Spike sees himself as on a path to redemption – but it’s true of the rest as well. Whether those are accurate or beneficial self-images is another thing entirely.
Note the way the couples interact once they lose their memories. Lots of inferences to draw there, some of which I’ll leave alone in order to avoid spoilers. Though they aren’t a couple, per se, Buffy connected immediately with Dawn. Dawn may feel stifled, as I mentioned in my previous post, but Buffy still sees her as an integral part of her life.
Willow’s path recreates the one she has taken in life: first attracted to Xander, then recognizing that she’s “kinda gay”. Tara hangs back as if she’s unsure, but the attraction is there before the spell breaks.
“Joan” and “Randy” behave much like Buffy and Spike have been. Spike has an exalted image of himself: “I must be a noble vampire. (Buffy looks dubious) A good guy. On a mission of redemption. … I'm a hero really. I mean, to be cast such an ugly lot in life and then to rise above it. To seek out better, nobler things. It's inspirational, isn't it? And the two of us... (gestures from Buffy to himself) natural enemies, thrown together to stand against the forces of darkness. Utter trust. No thought of me biting you, no thought of you staking me.” Buffy’s pretty skeptical and doesn’t seem all that interested, but she doesn’t try to slay him and she is kissing him again at the end.
I’ll leave any other discussion of relationships with a cryptic reference to the Sherlock Holmes story Silver Blaze.
There’s a parallel being drawn between Giles and Tara, but with an important distinction. Both see themselves as enablers and follow through on their determination to leave partly for that reason, but in Tara’s case she has the additional justification of needing to leave for her own safety and self-respect, given how Willow has treated her. Willow has come a long way since she was an insecure girl mooning over Xander, but she’s back crying in the bathroom just as she was in Enemies. And as was true in Something Blue, Willow didn’t really cast the forget spells to make the other people feel better, she did them to make herself feel better.
It’s worth considering just what it is that Willow is doing wrong. In All the Way, Tara told her that she was “doing too much magic”. I can think of a few possible meanings for this. One is that Willow is using magic unnecessarily, like the decorations in All the Way. Another is that magic is like a pool of water and Willow is drawing too much out of the pool. A third might be that using magic too often increases the risk of unforeseen consequences to oneself or to others – see Spike’s comment in After Life, but also my post questioning the accuracy of his view. Tara implies it’s the third possibility she has in mind when she says “It's not good for you, Willow. And it's not what magic is for.”
I can see how Tara might use that third argument in an effort to persuade Willow, but I don’t think it really gets at the crux of Willow’s problem. In fact, the whole “too much magic” notion seems problematic to me. In my view, the problem is not “too much magic” but something much more obvious: abuse of power. Willow is using her magic to force others to conform to her own desires. Tara told her flat out how selfish she was: “you're helping yourself now, fixing things to your liking. Including me.”
We might wonder why Tara stayed with Willow even as long as she did. If Willow had erased my memory, I wouldn’t have needed a second example. The answer, I think, aside from the fact that Tara really does love Willow, is that Tara knows that she herself did something pretty bad in Family. Her spell there was purely selfish, like Willow’s here, but it affected more than one person and actually put them in physical danger. Willow’s first “forget” spell didn’t affect others nor did it put anyone in danger, but her second one did both. Tara learned from her mistake. Willow not only repeated hers, she made it worse. Much worse.
It’s not clear that Tara’s departure will help Willow stop her downward spiral. It may very well have the opposite impact, just as Giles’s harsh words did in Flooded. The problem is that at this point it isn’t about Willow, it’s about Tara’s own safety. For more on Tara, see the comments here. Spoilers, of course.
I think it’s worth asking questions about Giles. Yes, Buffy is avoiding adulthood with him around. Yes, Giles has felt increasingly superfluous since the beginning of S4 (he also tried telling Buffy to handle things on her own in The Freshman). But at the end of Life Serial Giles said he wanted to be seen as a “rakish uncle”, and he behaves rather uncle-ish here rather than fatherly. He’s convinced himself that his departure will be good for Buffy, but those of us watching can’t help wondering if it’s what Giles thinks he needs. It’s clear and understandable that he doesn’t want to be the disciplinarian, but there is lots of middle ground betw
een that and leaving town.
Xander, consistent with his “nothing to see here” line in OMWF, decides not to worry about Buffy’s return (“Me like Buffy. Buffy's alive, so, me glad.”). He then leaves the room when Tara and Willow fight. In the past he’s never hesitated to call out his friends when he thinks they’re wrong (and sometimes when they aren’t). Now he’s deliberately shielding himself from discomfort.
Xander laughed when his memories returned because he remembered King Ralph. What did Buffy remember? Being ripped out of heaven. In a very real sense, she had to live through that all over again. Thanks Willow.
I happen to like Joss’s taste in music, but I think the ending of TR works incredibly well even for those who don’t. I also think it’s a real tribute to AH’s acting that we actually feel sorry for her as she sits and cries, even though Willow has no one to blame but herself.
Trivia notes: (1) The title is Latin for “blank slate”. (2) There are lots of references to Restless in TR. The loan shark, aside from being a visual pun, refers to Xander’s dream in Restless: “XANDER: You gotta have something. (Looks at Buffy) Gotta be always movin' forward. BUFFY: (like a proud little kid) Like a shark. XANDER: Like a shark with feet and ... much less fins. SPIKE: (like a proud little kid) And on land!” (3) Spike’s suit is the same one he wore in Restless. (4) Spike’s request for asylum is a pun: he wants to be protected, Xander interprets his suit as showing that Spike has lost his mind. (5) Allen Funt was the host of the TV show Candid Camera. (6) The memory loss bears some resemblance to the Star Trek:TNG episode Conundrum. (7) Giles referred to Spike as “like a son to me” in Xander’s dream in Restless. (8) Buffy’s choice of the name “Joan” suggests Joan of Arc. Martyr complex much? (9) Spike’s suspicion that Giles is “bound to have some classic midlife-crisis transport” may remind you of Buffy’s conversation with Giles in Real Me: “BUFFY: Giles, are you breaking up with your car? GILES: Well, it did seduce me, all red and sporty! BUFFY: Little two-door tramp.” (10) Tara’s suggestion that it’s Halloween may refer to the episode of that title. (11) Spike’s claim to “help the helpless” refers to the slogan of Angel Investigations in Angel the Series. (12) The scene where Giles fights the skeleton is a tribute to the Ray Harryhausen film, Jason and the Argonauts. (13) Willow’s “I think I’m kinda gay” line is what she said in Doppelgangland about VampWillow. (14) Xander remembered seeing King Ralph, which was a 1991 movie. (15) Spike’s “from dust to dust” when he slayed the two vampires echoes the funeral service from the Book of Common Prayer (Anglican). (16) Anthony Stewart Head told Joss before S6 that he wanted to spend more time with his family in England. That’s the real world explanation for why Giles left, though obviously we need to treat it as part of the storyline. There are, by the way, terms which differentiate between real world explanations and in-story ones. The former are called Doylist, the latter are Watsonian. For the background, see here.