Tuesday, October 03, 2006

Is Consent Your Default Condition With Your Boyfriend?

As a follow up to my post Is Being An Ass A Valid Rape Defense? I wanted to examine one particular comment which reflects a view I've heard again and again from a wide variety of people, many of whom consider themselves fully enlightened about rape and sexual crimes.

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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posted by Marcella Chester @ 12:03 AM   7 comments links to this post


At October 03, 2006 1:47 AM, Blogger Mickle said...

"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."


At October 03, 2006 2:29 PM, Blogger ms. jared said...

everytime sailorman leaves a comment anywhere i die a little bit inside. and his "playing devil's advocate" or "not that i think this, but many people do" bullcrap is just that: bullcrap. he wants to throw inflammatory stuff out there to see how much support it receives so he doesn't have to feel like an asshole for believing it. he spends so much time focusing on ways to defend rapists it's ridiculous.

sorry for the rant but men like him really piss me off.
xoxo, jared

At October 10, 2006 4:16 AM, Blogger bean said...

Brilliant post!!

I remember trying to teach this concept to a bunch of first year students when I was TA'ing a SOC101 class: if s/he doesn't say, "YES," then you should not be having sex. If s/he seems to be into the act, then one party should ask the other outright, and unless and until there's a YES from both parties, then sex should not happen. The most common response was that it was too embarrassing to ask. I say, if you're too embarrassed to ask, "do you want to have sex," then you are too immature to be having sex!! And I don't care if you're 14 or 44, that response remains the same.

(FTR, I'm not even proposing going all out with the full Antioch Consent Rules, although I'm not opposed to them. I'm just saying, at the very least, get affirmative, definite consent before engaging in sex.)

At October 10, 2006 12:07 PM, Blogger sailorman said...

I understand "no" perfectly well. And--this may surprise you--I have no problem at all with "default no consent," at least in principle. Obviously, that's not what the laws say now, but they could be rewritten to do so.

If you had accepted my invite to look at the Oregon rape statute and/or rewite the Oregoon law, you'd see that I 1) agree with you that this type of behavior is a problem, and 2) suggest modifying the laws to change it. Sorry you didn't choose to participate in that conversation. I also posted a bit on the boy as well as the girl.

I understand that you feel strongly about this. So do I, incidentally; some of my family members were raped, one of who died as a result.

In any case, I think you've misrepresented me here through selective quoting. you and I are actually in general agreement: rape is bad; consent is good; his behavior was bad. We are only disagreeing about the applications of principles in this particular case.

It's not as if I'm some random lone MRA activist posting that she "deserved what she got." I'm one of many on that thread who has disagreed with you. Painting me in that light is dishonest.

At October 10, 2006 1:01 PM, Blogger Marcella Chester said...

Sailorman, I don't see you as someone bad so my responses to your positions are not meant in any way as a personal attack.

You express opinions that have been around for much longer than either you or I have been around and are reflected in rape laws which haven't been updated to reflect the reality of rape from the perspective of those who have been raped -- yet who are told they are lying when they say they were raped.

You focus on how to prove consent in a particular jurisdiction, I focus on how to understand why what seems to have been proven in a court of law isn't always accurate.

You are looking at where we are, I'm looking at how to communicate why where we are harms girls and women.

At October 10, 2006 2:06 PM, Blogger sailorman said...

Thanks for the clarification.

I am painfully aware, given my profession, that a court decision does not mirror what happened in real life. This is an endemic problem in the courts, though it's probably worse for rape than for almost any other crime given the usual lack of witnesses and physical evidence.

Better minds than mine have tackled the problem of how to improve accuracy. There is usually no real way to increase convictions of rapists ("good") and improve protections for women ("good"), without ALSO increasing improper convictions of non-rapists (bad) and reducing protections for the accused ("bad"). Whether the current system is good, neutral, or horrible depends simply on the values you assign to protecting women/protecting innocents/convicting rapists.

Anyway, good luck with your work. I will keep plugging away in my own fashion to improve things.

BTW, I suspect you don't especially want me commenting here, so having said my thanks I won't return after this. If I'm wrong, let me know--either on my blog, or Alas, or by email.

At October 11, 2006 10:10 AM, Blogger Marcella Chester said...

Sailorman, if your comments can be seen as telling rape victims that they aren't really rape victims (even if that's because of a loophole in rape laws) or could be seen as dismissive toward rape survivors then I wouldn't approve that comment.

If you want to respond to a post of mine, but aren't sure if it would be seen as respectful to all rape victims and survivors, feel free to blog about my post or posts on your blog.


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