That myth of morning-after regret appeared in the comment by Sailorman in Alas, a blog: Beyond A Reasonable Doubt, The Rape/Consent Spectrum, And Restorative Justice:
So back to the example: If she knows she can break up with him and leave, and chooses not to, well, this seems to be dangerously close to a case of regret that she didn't decide to break up with him. It seems like regret more than it is seems like rape. The whole CONCEPT of force/coercion is that you have no other choice.Sailorman equates a 15-year-old's decision not to leave immediately, despite multiple risks she'd face if she tried to go, with consent to sex. From there he concludes that her wish not to have sex was only retroactive. Therefore she couldn't have been raped and is lying if she tells anyone she was raped.
This view isn't new to Sailorman but has been the entrenched view that helped deny all but the most heinious and undeniable of rapes for centuries. It validates the rapist's reality while denying the reality of the rape victim.
What Sailorman is tapping into is that the boyfriend knew that when his girlfriend sat down in response to his apology that she was making a choice which determined his decision to not let her leave without getting sex from her. The trapdoor shut when she sat back down.
But the girl didn't know that when she sat down again or there either wouldn't have been any further resistance or she would have reacted as if she were in a room with a rapist. In nobody's reality should walking into a trap be the same as giving consent.
Rather than making the springing of that trap illegal, the believers of the regret-not-rape myth say she must have intentionally sprung the trap on herself so she wouldn't have to actually go to all the work and embarrassment of expressing desire for sex. Saying no and staying (even with promises that the no would be respected) equaled saying yes. The idea of giving in is only a sham to hide the girl's full willingness to have sex with her boyfriend.
I'll repeat it for those who didn't get it the first time: The boy knew that leaving when she stood up was her last chance because he knew what he was planning to do if she stayed. FYI: That's call premeditation, folks.
In his mind and in the minds of many observers, her sitting down (after his first attempt to get sex) absolves his criminal liability for what he was always intending to do. Get sex from his girlfriend, whether she liked it or not.
If this boy didn't have the rapist's mentality she could have stayed all night and not been pressed for sex she wouldn't freely participate in.
I've set out exactly why I consider the scenario Sailorman commented on and which I included in Is Being An Ass A Valid Rape Defense? to be real rape and not something with softer connotations.
But what factors rule out the possibility of true legal consent in a situation like this when it comes to sex the defense teams like to call consensual?
Here is Oregon's statute:
163.315 Incapacity to consent; effect of lack of resistance. (1) A person is considered incapable of consenting to a sexual act if the person is:
(a) Under 18 years of age;
(b) Mentally defective;
(c) Mentally incapacitated; or
(d) Physically helpless.
The last item (d) is the one I want to focus on since that seems to be what is disputed in scenarios like that used on Alas, which victims call what happened to them rape but others don't. Note: I'm not describing the way the law is enforced or how juries are making their judgments.
According to Oregon's statutes "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. (emphasis mine)
Is a girl or woman physically helpless if she is pinned down by her boyfriend or by her date?
In most cases the answer is yes. And that means she cannot give consent at that point. So if her date or her boyfriend got a no to sex or anything less than a clear message of consent before he has her pinned, any agreement by her while under his physical control cannot be considered consent.
I can almost hear the howls of protest from the believers of the regret-not-rape myth. I'll use an analogy to show why I'm making this seemingly outrageous claim.
Most people understand that she can't give legal consent with the blade of a knife pressing against her neck or a gun aimed at her head, but also understand why she may attempt to appease the man controlling her since not doing so could result in more pain and more danger. She is able to talk but she is physically unable to communicate her unwillingness. She may have said no, but he refused to hear it and that means she could not communicate with him.
Her inability to communicate is because he won't receive the message. Not can't. Won't.
Yet that understanding frequently evaporates when the man doesn't fit our stereotype of who a rapist is and how he selects and isolates his victims and how he makes them physically helpless. When he gains the illusion of consent he wants in order to justify his actions, he knows plenty of people will believe right along with him.
Most people still buy into the myth that a rapist is helplessly driven by the urge to rape and nothing anyone else can say or do before the rape attempt has begun will deter him in the least. That myth leads people to believe or disbelieve rape allegations based on elements of character that have nothing to do with alleged rapist's sexual beliefs and behavior.
If the general view of alleged rapists flip from absolute condemnation to mild annoyance merely by where and how the rapist isolates a potential victim and how he extracts a mockery of real consent, what intelligent rapist is going to pick the method most likely to get him sent to jail for the next 20 years?
He's going to exploit not only the girls and women he can get under his physical control through lies and trickery, he's going to exploit those who will stand up in his defense. He will use his defenders and their power as a protection against being held responsible for his actions.
Some stranger rapists adopt the strategy used by date rapists to increase their success rate and to decrease the chances that their victims will report their rapes.
Like the stranger rapist, the boyfriend/date rapist won't take no for an answer and will only be thwarted by her escape. And if she escapes from his first attempt he will use all of his social skills to convince her that her fears were irrational.
Everyone who dismisses boyfriends who don't want to take no for an answer as behaving normally contributes to girls believing their rapist/boyfriend's lies over the unreality of what they experienced.
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