In the comments on Alas, Sailorman wrote:
One way that people (and juries) will analyze the question of whether or not she was raped is to ask this question: "If she didn’t want to have sex, what did she do to avoid having sex?" And if the answer is "not much" then the unsurprising followup is "why not?"Sailorman may be right in that this is how many people judge alleged rape victims and rape cases. But those who judge in that way have it backwards since his question makes consent the default position and she has to do something (most likely something suitably dramatic) to nullify consent.
Consent as the default is a dangerous belief.
In BB's scenario which I listed in Is Being An Ass A Valid Rape Defense? the 15-year old said "no" multiple times when her boyfriend went too far. Despite being dismissed as a temporary roadblock, her "no" must replace the default position whatever you consider it to be. So how can multiple occurances of "no" only rank as "not much" to avoid sex?
What part of no does Sailorman, juries and the boy/man in this scenario not understand?
No means stop. It doesn't mean exploit everything about the location, differences in physical strength and the girl's feelings until she breaks.
Sailorman's question means that we are supposed to equate doing "not much" to escape with giving full and legal consent. And we are supposed to excuse someone for doing everything from getting her to his home (with no one else around) to pushing her emotionally and physically until she can't push back.
According to that theory she's at fault for inaction, but he's excused legally for taking deliberate, and most likely planned action. The skills it takes to break another human's resistance down are learned skills. Using those skills is a choice.
Using BB's scenario, to have lack of consent as the default, the question juries should ask would actually need to be:
"If she consented to sex as he insists she finally did, what did she do to instigate the change from non-consent to consent?"
And if the answer is "she stopped struggling verbally and physically and crumbled emotionally until she would say anything to get the torment to stop" then she in fact took no independent action.
Zip. Zero. Nada.
The sex that follows is therefore rape.
A lot of men will reject this out of hand because it puts them into the category of rapist and beyond mere assholeness. Being an asshole who used girls and women was cool, being a rapist ain't so cool even if no jury in the country is likely to convict you because they'd blame your victims and call them lying sluts who make false allegations of rape and hurt "real" rape victims.
Maybe the label rapist will stop some men when the label asshole won't. Like many rape survivors what I want most is for the raping and sexual exploitation to stop.
If wanting people to leave other people's sexual boundaries in place results in people saying I am out in left field and too extreme compared to "sensible" people, so be it.
For more, go to my next post on this topic, Is Agreeing To Go All The Way A Binding Contract?
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