Friday, January 16, 2009

No Clear Presence Of Non-Consent

sailorman has left a new comment on your post "Understanding And Misunderstanding Genuine Consent...":

The unfortunate reality is that your statement regarding legality is not really true. Mind you, this is most assuredly not a good thing. But I think it's important when discussing laws to distinguish between "should be" and "is." So when you say this:

For sex to be consensual and legal there needs to be a clear presence of freely and legally given consent.

That is wrong. We don't define that which is "legal;" we only define what is illegal Most laws (including rape laws) don't talk about what you CAN do, they only talk about what you CAN'T do. IOW, technically there is often no such thing as "legal" sex--there is only "non-illegal" sex. Similarly, the definition of legality is always skewed towards the defendant, so it's really a problem of proving lack of consent.

So your sentence is backwards.

You say "Legal = clear presence of consent."

but in fact it is "Legal = non-illegal = no clear presence of NON-consent."

Confusing? Yes. But it is a crucial distinction, because it serves to illustrate the problem with rape law and with criminal codes in general: Lots of behavior which is BAD (like non-freely-consented-to sex) may still be LEGAL.

Sailorman is the one who is getting confused about the definition of rape. His decision to add double negatives changes the definition of what is legal unnecessarily.

To test the validity of Sailorman's definition imagine that someone who was allowed into another person's house, at a party for example, found the homeowner's coin collection and then walked out with that collection without being challenged.

In this action there was no clear presence of NON-consent which by Sailorman's definition means that this action must be defined as non-illegal. Yet we -- and criminal law -- recognize that the person who used stealth rather than a gun to steal someone else's possessions is still a thief.

This is true even if the homeowner greeted the future thief with, "Make yourself at home."

The actual definitions are as follows for both crimes:

illegal = sexual contact/taking someone else's possession without freely given consent

not illegal = sexual contact/taking someone else's possession with freely given consent.

Both of these are clearly defined with no gap between the 2 and with no gap between the reality of the offense and the reality of the law related to that offense.

The traditional backwards definition for rape which Sailorman provides catered to the desires of those who wanted the legal right to proceed when they did not have the other person's freely given consent and when there was no stereotypical presence of non-consent (other person shooting you so you wouldn't interpret "no" as "yes, but I don't want you to think I'm easy.").

This gap is where most rapists falsely claim, "I might be a jerk, but I'm no rapist."

From Minnesota Criminal Statutes:

Subd. 4.Consent.

(a) "Consent" means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.

(b) A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.

(c) Corroboration of the victim's testimony is not required to show lack of consent.

As this legal definition shows consent can be clearly defined in positive terms while the law as a whole defines what is illegal.

The only question in Minnesota is which degree will apply: Criminal Sexual Conduct In The [1st through 5th] Degree. All 5 degrees are felonies yet many people treat anything less than first degree as if it isn't real rape.

With a positive definition of consent the prosecution still has to prove that the alleged rape victim did not freely consent to a particular sexual action. This proof from the prosecution wouldn't be enough to prove rape under Sailorman's definition.

I'll repeat: Consent is something you do not something you fail to do. We have no problem with this concept in practice and in the criminal law except when it comes to sex crimes.

Any jurisdiction which still has any criminal statutes on the books which match Sailorman's confused definition need to be updated ASAP to prevent continued injustice and false accusations against rape victims.

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posted by Marcella Chester @ 7:51 AM   7 comments links to this post


At January 16, 2009 12:20 PM, Anonymous Anonymous said...

I was wondering... and I ask this very seriously:

Do you think "accidental" rape is possible?

By that I mean that both parties involved are completely convinced that the other is a willing, enthusiastic participant. For example, if someone spiked the drink of a woman at a bar, who then ended up going home with her date, who subsequently raped her. I have learned (through rape crisis victim advocacy training) that some of the date rape drugs can actually make the victim act loud, bold, assertive and even seemingly make advances. In the case that this occurs and the guy she's dating really thinks she's coming onto him, would this be "accidental" rape? (Obviously it's rape if there are clear signs of total intoxication, but I'm not sure there always are...?)

Or what about in a case where you've got two people who just completely misunderstand each other, whether they're equally intoxicated or just not on the same wave length with communication or one is mentally impaired and the other is unaware of that...

I ask, in all sincerity, because I am a rape crisis advocate and I don't know what to tell my friends when they ask me. A lot of our discussions about this have ended in stalemates where we scratch our heads at trying to reconcile the black and white nature of 'no means no' with the very grey circumstances of human psychology and relationships. In other words, no one disagrees that consent needs to be clear, but there seems to be very much confusion over how to define consent and how to make that definition universal given everyone's different circumstances/fetishes/personalities, etc.

Another example: If a woman has told her husband that she loves being woken up to sex for five years now and that's a regular thing between them... but then she wakes up one day and really doesn't want to be doing it... is that rape or a misunderstanding?

I would so much appreciate your input here. I want to be able to support the cause and be the best advocate I can be and help to solve the problems in society that create rapists in the first place. I also want to be fair about the complex nature of some of these situations and get another perspective on how to look at them.

Thank you for your help.

At January 16, 2009 1:06 PM, Anonymous Anonymous said...

If I may...

In your first example (guy slips something into girl's drink then takes her home), yes it's rape. And in some states it has additional penalties because the person spiked her drink in order to sexually assault her.

Had the drink been spiked by someone else (other than the person she went home with- which I am going to assume is what you meant although it wasn't clear from what you typed), then that person is still considered guilty of a sexual assault because the girl in your example could not give consent due to the drug's effect. Maybe the guy just met her and doesn't think she's had too much-unlikely. If it happens, it sucks for him and maybe next time he'll make sure he doesn't take home women who are under the influence and cannot give consent. It's a reality that unless the other person is drug-and-alcohol-free, consent cannot be given under the law (at least in the state where I am). The burden isn't on the person to give consent, it's on the person to get consent that is meaningful under the law.

And let's be careful about "accidental rape." I would surmise that the cases where that term might be used are so few and far between as to be meaningless. The person who is less drunk than the other (if both parties are drinking) has power over the person who is more drunk and if they take advantage of that, they are liable. There is nothing "accidental" about rape. There is only denial about what really happened. I would bet that if someone were in a situation and the other person wasn't reacting/seemed really drunk/didn't seem as into it, it would be apparent to someone who truly cares about and makes sure they are getting consent. The activity needs to stop and be postponed until such a time as when both parties can freely give consent without influence.

As for the woman who "gave permission" to be woken up with sex, the law (at least in my state), clearly says that consent must be obtained EVERY TIME sexual activity takes place. If she wakes up and says "Stop" her husband needs to listen and they need to have an open and honest conversation about it. If he ignores her no, continues to do this on future occasions, etc, he is guilty. And he has committed a sexual assault if he has not gotten her consent before every incident of sexual activity; it is illegal. Which is why waking someone up with sex can be a dangerous gamble and should be played VERY cautiously.

It may not seem "fair" to some people, but it's the impact of the action on the recipient, NOT the intent of the actor that determines what is and is not a sexual assault. It's like the saying "Beauty is in the eye of the beholder." The beholder gets to determine what is a sexual assault, and therefore it is important that each and every time we enter into sexual activity with anyone that we make sure they give us their consent, clearly, enthusiastically, without fear or threat of violence, and in a clear state of mind.

Everybody wants to excuse the rapist. Read "I raped a woman."

At January 16, 2009 1:50 PM, Blogger Marcella Chester said...


If people have been taught that legal consent occurs whenever there is no clear presence of non-consent, I not only think accidental rape is possible. I think it is common.

However, this doesn't excuse the accidental rapist from legal responsibility -- or it shouldn't.

This is why I've said that this model sets up people (boys especially) to commit rape. They've been told they have consent when they don't. They've been told that the person who didn't consent (to them or someone else) is only suffering from morning-after regret and to therefore dismiss important feedback about approaches to sexual behavior.

In all of your examples there is an important shift in thinking and behavior when consent is something that must be freely given and when it is viewed as needed for each action.

People understand that they can take nothing for granted. This is often described as something terrible or burdensome, but in reality it isn't for those who have any respect for the impact their actions can have on others.

This shift of thinking is complete when the person who wants to take a specific action takes full legal responsibility for the actions they take.

In the first example, the man needs to consider how many drinks that woman had and may even need to ask. If her answer doesn't match her behavior then he cannot assume she is lying or deluding herself. Is she coherent? If she's someone he knows has he ever seen her behave this way? Since he has full legal responsibility for his actions he knows he cannot rely on guesswork and will wait if there is any possibility that she's too impaired to consent for whatever reason. He could even give her a raincheck to be redeemed when the effects of whatever is in her system have worn off.

If there is a possibility that her drink was spiked, with an unknown drug or high octane booze, then the other concern for this man besides consent is for this woman's safety. Rape drugs can and have killed people. The same is true of alcohol poisoning. Letting someone sleep it off can be a fatal mistake.

In your second example, both people need to ensure that there are no assumptions of consent, no misunderstanding and no possibility that the other person is feeling coerced before they take a specific action. This could be verbal verification or it could be the initiator communicating the desired action and then backing off to see what the other person will do without pressure or prompting.

In your third example, the key is for the husband to understand that generic preferences and generic agreement don't trump immediate lack of consent. If her normal welcoming response is absent for whatever reason then he cannot just proceed. Again this goes back to mindset. The same would be true if it were the husband who told the wife what he likes.

I believe this approach in all situations where the first concern is for the other person reduces the chances of accidental rape down to practically nil.

This mindset is much different from the mindset which asks, "Can I get away with having sex with her (or him) or pushing another person into unwanted sexual actions?" That change in mindset changes the manner of getting or confirming consent.

It also will improve the quality of the sex for anyone who doesn't find pleasure in other people's sexual trauma.

At January 16, 2009 3:14 PM, Blogger Marcella Chester said...

Anonymous 2,

You make great points.

Many times what people describe as an accidental rape is in reality a premeditated rape where the other person's clear unwillingness is something they see and acknowledge to themselves before dismissing it as unimportant.

These rapists need to reject the definition of legal consent as something which must be freely given. If they labeled what they did as the felony it is then they would have a harder time committing rape. Sailorman's definition of non-illegal gives them the opportunity to falsely claim that the other person's lack of consent was unclear which allows them to falsely claim that what they did was legal.

As the example in the link you provided shows there is nothing accidental about rape.

Rape comes from the decisions people make.

At January 16, 2009 5:25 PM, Anonymous Anonymous said...


Thank you for taking the time to respond. This part was especially helpful and meaningful to me:

I believe this approach in all situations where the first concern is for the other person reduces the chances of accidental rape down to practically nil.

I agree that communication and concern for each other's well-being are crucial.

Thank you again. I really appreciate what you do.

-Anon 1

At February 06, 2009 11:10 AM, Blogger healandforgive said...

Marcella, I don’t think I know a single woman who hasn’t struggled at one time or another with the "line" of consent. Thanks for using your hard earned wisdom to make a difference!

At February 10, 2009 12:55 PM, Blogger Marj aka Thriver said...

Thanks for letting us use this for the blog carnival. Your patience and energy for the cause just amaze me! Yo go!


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