Wednesday, October 08, 2008

Objective Consent Vs Enthusiastic Consent

Those who try to discredit rape victims who didn't give legal consent will oppose the idea of judging the validity of the rapist's proof of legal consent by whether this so-called consent was enthusiastic.

However, it isn't enough for some of those people to disagree. Some will view the idea of enthusiastic consent as a hate-based concept. Enthusiastic consent (alleged rape victim actually wanted sex and showed this undeniably) is described as subjective while consent (as defined by defense attorneys and anti-feminists) is described as objective.

So why is enthusiastic consent such a hateful concept?

The first thing enthusiastic consent does is eliminate the excuses of those who rape the unconscious or semi-conscious. "But she didn't say no so my client assumed she was passively consenting," is no longer a valid defense. Neither is, "She didn't say no firmly enough to communicate her lack of consent." And neither is, "She didn't fight hard enough or try to scratch his eyes out so he assumed she was consenting while playing hard to get."

The so-called objective definition of consent means that if a rapist says a variation of, "Consent or be raped," and the rape victim chooses the less violent option that no rape occurred. To view this rape victim's response as non-consent because the victim clearly didn't want to consent but felt she had no choice then that is viewed by the opponents of enthusiastic consent as an injustice.

This scenario is real and a case where it happened changed Maryland's definition of rape after an appeals court ruling was overturned by Maryland's top court so that it is rape in Maryland if someone continues after consent is withdrawn. In that case the rape victim had just been raped by the friend of the guy giving her 2 options.

But according to the opponents of enthusiastic consent, she did consent and it is wrong to view that consent subjectively. But in this context it isn't subjectivity which is being blocked but context. With this model of objective consent it can't matter if the rape victim consented at gunpoint.

Consent is consent and we can't muddy the waters by getting subjective.

For those who say consent is consent (willing or not) then by their so-called objective standards the revoking of consent must be just as objective and there can be no subjective factors which allow continued sexual contact after consent is revoked. Any delay in abiding by the revoking of consent makes the other person a rapist.

If you look at those who view enthusiastic consent as a hate-based concept, you will likely find subjective excuses for why the revoking of consent can be ignored without the person who does the ignoring becoming a rapist.

This demand for objectivity is selective. A defense attorney's attempt to bring up past consensual encounters between the alleged rape victim and the alleged rapist and the past sexual behavior of the alleged victim is an attempt to make the jury see the case subjectively so that past consent overrules current lack of consent.

Those who blast the so-call subjectivity in enthusiastic consent, demand subjectivity for judging the actions of someone who didn't have consent for a specific action at a specific time.

The reason those who label enthusiastic consent as a hate-based concept do so is that if juries look at the context of what the defense attorney calls consent, to see if there is evidence that the person who allegedly consented clearly and unequivocally wanted to have sex, then the number of rape convictions will rise dramatically.

And that's just wrong in their opinion.

A whole subsection of rapists who work to get a mockery of genuine consent, don't allow their victims a chance to say no, or who use past consent to justify ignoring lack of current consent would have to worry about doing prison time.

Requiring people to have sex only with those who clearly want to have sex with them at that moment becomes the ultimate injustice.

What's interesting about any prediction that a vast number of boys and men would go to prison under the model of enthusiastic consent is that it provides a backhanded acknowledgment of how pervasive this type of sexual violence really is.

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posted by Marcella Chester @ 10:29 AM   5 comments links to this post


At October 08, 2008 5:07 PM, Anonymous Tokidoki said...

Thank you for pointing out why I hate the "you didn't say no" argument so much. I've never quite figured out WHY it's pissed me off so much, I just figured it's because it changes what happened to me.

In my assault, my ex forced my hand back to his crotch over and over until I gave in. He'd always keep pushing me until I gave in. Then said it wasn't rape or assault because I had given in/agreed/"consented." He was never violent, so obviously convincing me I had to isn't rape. Ugh.

I hate that we use such a passive word for the sharing of our bodies. I love your blog so much, check it daily. I j had to come out of lurking to thank you for this post.

At October 08, 2008 7:46 PM, Blogger sophie said...

ditto above. What sort of f-ed up world is it where a woman can tell such appalling stories and others reading can nod - yup, took my words?

The reason those who label enthusiastic consent as a hate-based concept do so is that if juries look at the context of the what the defense attorney calls consent to see if there is evidence that the person who allegedly consented clearly and unequivocally wanted to have sex then the number of rape convictions will rise dramatically.

And when the convictions per reported rape are in single percentage figures, this would be a problem why?
Even I get a little uneasy at the thought of an increase in justice - because so many, many, many men would meet the consequences of their actions. Is this what they fear, why they will do anything to prevent justice and call their actions right, or normal?
I'm certainly not arguing that they're not normal...

But I simply can't get my head around anyone calling the standard of enthusiastic consent, 'hate'.

At October 08, 2008 8:48 PM, Anonymous Mara said...

You make an awesome point. This post makes so much awesome sense I wish everyone could read it. I was thinking today about how I'm tired of everyone coddling the rapists. I want someone to do something to alleviate the pain of the victims. This post has alleviated some of mine. So thank you.

At October 08, 2008 9:44 PM, Blogger Marcella Chester said...

Tokidoki, Sophie and Mara,

You're welcome.

I want to get to a place where it is rare that anyone can relate to what I describe in this post.

The more we shine a light on this type of sexual violence -- and it is violence even though it is tightly controlled -- the harder it will be for rapists to deny that what they did was rape.

The tight control needed to rape in this way disproves any claim that it is caused by hormones which the rapist cannot control.

If a boy or man were truly out of control he wouldn't be able to hold back until he believes he can get away with rape.

At October 09, 2008 12:41 PM, Blogger JENNIFER DREW said...

Here in the UK the presumption is still that a woman 'consents' unless she is able to prove 100% she did not. This effectively means submission becomes 'consent' when a woman or girl submits to a male's demand for unwanted sexual activity. Until such time as we change the definition of what supposedly passes for 'consent' men and boys will continue to act on the presumption and socialisation that males are never responsible for their behaviour. Enthusiastic consent means just that - a person is giving 'active' consent. Consent is not consent when predominantly women and girls are coerced, pressurised or threatened by male perpetrators in order that the male's sexual demands be met. But society still refuses to challenge dominant beliefs that it is the woman's or girl's responsibility but never the man's or boy's to ensure both parties are freely consenting without any coercion, pressure or threats. This is why so many men and boys believe they did not commit rape but instead just enacted the male sexual script, which says 'ignore your partner's refusal/objections and just keep pushing until she gives in and 'consents' (sic). In this way rape becomes non-rape but just 'normal' male/female interaction. The fact rape convictions would increase dramatically if women's and girls' right of sexual and bodily autonomy were to be accepted and reinforced is still widely perceived as too radical a concept since it directly challenges male power and privilege.


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