Thursday, February 08, 2007

Time Limit On Rape: Unwanted Sex Vs Rape

Many bloggers have commented on the Time magazine article about the fact that some states recognize that consent is something that can be withdrawn while other states don't.

Maryland is one state with a recent appeals court ruling which says that once sex starts that consent can't be withdrawn.

Many people view this ruling from the perspective of a nice man stuck with an illogical woman. The assumption is that for no good reason the woman yanks consent from under the man and if he doesn't stop in milliseconds, he is likely to be charged with rape.

Jeralyn at Talk Left demonstrates this view perfectly.

If it starts to hurt, or there's no protection, and he doesn't pull out, it may be unwanted sex at that point but it's not rape. Let's not trivialize real rape to accomodate definitions of consensual sex gone awry.

[...] Only if the demand for withdrawal was clearly and unequivocally communicated to the partner, who then forcibly continued, should it be construed to be forced or unwanted sex.

If consent has been withdrawn (through words or actions) what happens after that cannot be classified as consensual sex gone awry. Doing so trivializes real rape.

In cases of mixed messages the only acceptable response is to stop until there is a clear and unequivocal and uncoerced request to continue. Otherwise the assumption is that consent is everyone's default position and it is an individual's responsibility to make sure everyone around you knows you don't consent to have sex with them. If they can find any excuse to ignore you, then it's your own fault if you have unwanted sex.

Think about the implications this would have on robbery cases. If you're mugged at knifepoint and say, "take my wallet, but don't hurt me" you haven't really been robbed since you did not send a clear and unequivocal message that you didn't really want to give your wallet away. If an action might be a crime we understand that it is the person contemplating the action who must ensure that their actions are legal.

The second assumption is that this legal position allows woman to persecute innocent men. The myth is that women who haven't really been raped are jumping at any attempt to ruin men's lives by branding them with the sex offender label.

The reality is much different.

In the case that sparked the Maryland ruling the woman had already been raped by someone who pleaded guilty and frankly, the idea that the woman's attempts to minimize her trauma by negotiating with the boy who said it was now his turn could possibly be true legal consent are nonsense.

What wasn't in dispute was that after getting this second rapist to promise to stop if she didn't like it, she almost immediately demanded that he stop. The core problem is that any jury could even imagine that this woman was in any position to give legal consent.

Cooperating in an attempt to minimize violence done against you is not the same as true consent.

A state's refusal to allow people to withdraw consent gives carte blanc to anyone who got consent to a certain type of sexual interaction (pleasurable) but who went beyond the scope of that consent. It also gives carte blanc to anyone who gets sex before the other person has the capacity to say "no" or who may not be in a physical state to remember that no consent was given.

That means there might be a jury that concludes there is reasonable doubt of rape if a woman testifies that she woke to find that she was being raped and the man testifies that she gave sleepy consent, but what isn't in dispute is that she yelled, "stop" and he ignored that order and continued to rape her.

Oh, wait, in certain places he didn't continue to rape her, he continued to have legal but unwanted sex with her. Like that makes the sexual assault magically disappear.

If the woman consumed any alcohol and can't testify with certainty that she didn't do anything that looked like consent, a judge could say, "Drunken consent is still consent."

Do we really want to give rapists this free pass or to minimize their actions by calling it legal or a less severe crime than full out rape or sexual assault?

My answer is: "Hell no."

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posted by Marcella Chester @ 9:19 AM   4 comments links to this post

4 Comments:

At February 08, 2007 11:23 AM, Anonymous Joe said...

I think that cases where sexual acts began with concent which were than withdrawn are sort of case by case.

For example I think that a woman that willingly participated in (kissing, touching, oral sex) but was than physically forced to have vaginal intercourse was clearly rape.

Counter example, during forplay the woman begins to loose interest and after penetration is completely bored and annoyed by his bad breath. She also gets a backache. She decides that she doesn’t really want to have sex and would rather go watch TV. The only indication is that she’s quiet and not participating. There was no active consent past the backache. This is rape, sex without consent, but it’s really not clear to anyone but the woman. I think this is what people envision when they talk about this.

As an aside, I think this is sort a pointless argument. Well, not pointless, but there’s plenty of clear cut rapes happening that ‘close calls’ are small small part of the issue.

or am I wrong on that last part?

 
At February 08, 2007 11:38 AM, Blogger Marcella Chester said...

Joe, your example highlights the myth used by those who support Maryland's appeals court ruling. What changed was the woman's feelings for no external reason.

The reality is that some rapists will behave appropriately until he has consent or believes people will give him the benefit of the doubt then his behavior changes drastically. When the girl or woman protests this change, she is ignored. Not misunderstood. Ignored or worse the violence will escalate.

What this behavior shows is premediation and effort designed to allow the rapist to get away with rape. Recognizing this is never pointless.

 
At February 08, 2007 5:05 PM, Anonymous joe said...

I guess I didn't make my point very well. I was saying that worrying about a man caught in the 2nd situation was pointless because that's so unlikely to be a criminal case.

I agree that pointing out that it's not the typical case is worthwhile.

I don't have statistics to back this up, but my gut feel is that women in the 2nd scenario aren't going to go to the police and report it as rape. It's possible to imagine a situation where someone would but that's why we have juries and rules of evidence.

You read people outraged that "a mans life could be ruined because the woman changed her mind mid thrust and he didn't stop quickly enough." or similar nonsense. Is that possible? I suppose. Is it likely? I highly doubt it. Can anyone point to three cases in 200 years of law?

 
At February 10, 2010 9:01 PM, Anonymous Anonymous said...

Joe your second scenario wasn't rape. If the woman makes no attempt to stop then in that scenario it is simply unpleasurable sex but with full consent. I think most women have been there at some point.

The UK has a similar problem with rape laws at the moment when in 2005 a judge ruled that 'drunken consent is still consent' because the woman was too drunk to remember if she'd consented and there was no evidence of rape physically.

This ruling has outraged many people though as many say that it gives a free pass to any man wanting to rape someone who lacks the ability to give consent.

Unwanted sex is exactly the rape as rape. By definition rape is sex that the person does not want to happen as they do not give consent for it, however, i think many people are hung up on the semantics of it all rather than the point in case. Of course consent can be withdrawn during intercourse and i agree that rulings otherwise are very dangerous for women.

 

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