Thursday, January 08, 2009

Understanding and Misunderstanding Genuine Consent: Part 2

In the comments of part 1, Hysperia wrote:

[...] if the man doesn't know the woman is dissociated, and I know that is possible, then it is not rape, at law. The woman may still FEEL raped and violated and phenomenologically, that's true.

This statement about the law is provably false when the dissassociated person is not actively and positively indicating agreement to sex.

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.

In Hysperia's example where the man didn't know about the woman's dissociation, the man's decision to proceed while a woman blanks out or freezes fails to meet the legal standard of consent under part (a) because there were no words or actions indicating freely given present agreement to perform a particular sex act.

If however, as Hysperia clarified in a later comment, the dissassociating person is taking overt actions which indicate freely given agreement then the issue becomes not whether this person consented but whether this person is capable of giving legal consent at that time.

These 2 issues are separated for good reason. When consent is sought by an on-duty police officer from someone who has just been arrested consent isn't a defense because there is no way to identify whether the agreement has been freely given.

If the first type of dissassociation (no resistance, no active sign of consent) happens after consensual kissing there will be a definite change in the dissociated person's body. Mutuality will stop cold. This change will be perceptible even if the other person doesn't know the reason for the change. If it happens after a man makes the first move on a woman there will be no freely given agreement since freezing is not an agreement.

The same standards apply no matter which genders are in which roles.

The legal definition of consent makes that man a rapist even if he is unlikely to ever become a convicted rapist because of persistent biases which at most acknowledge that the other person has the right to feel raped.

Many people exclude coercion from their definition of rape, but coercion isn't needed unless there is a clear lack of consent.

Coercion is a strategy used specifically to overcome another person's lack of consent. Once coercive behavior kicks in the person being coercive has realized that consent is absent. If someone asks, "Wanna have sex?" and the answer is, "You Betcha," coercion is pointless.

The problem is that many times people wrongly assume that the coercive person is ignorant about the other person's lack of consent and if the coerced person clarified their lack of consent with a firm, "no, thank you" that the unwanted sex wouldn't happen. There are plenty of us who have tried to communicate clearly with a coercer and who have had our clear communication ignored or invalidated.

Before I was raped the first time I got stuck in a car with a coercer (while my brother and soon to be boyfriend/rapist took his sports car for a spin) and I would have been raped that day if my brother and my soon to be boyfriend hadn't returned in time. I lost count of how many times I said no and pushed his hands away. He practiced extreme control since he was working to exhaust me to the point where I could no longer say no or block him.

He knew that wouldn't have been genuine consent. He also knew that many other people wouldn't agree with his belief or with his victims (he bragged about other girls who didn't escape in time) if they had rightfully reported him.

The reality is that many rapists get away with rape because many potential jurors refuse to hold defendants accountable because of their bias about what makes someone a "real" rapist or because of their bias about what makes someone a "real" rape victim. This includes judgments of what the rape victim did or did not do prior to rape to prevent becoming a rape victim.

This bias in judging what a rape victim did to prevent rape brings me to KittyWampus's follow up post where she believes I misrepresent her position. Here is a clarification of her position.

To repeat: Outside a dating/flirting scenario, no sexual touching should take place. Period. Within it, possibilities for honest miscommunication abound. Both parties have a responsibility to make it clear if they don't want sexual contact to begin or escalate.

This is backwards legally.

Both parties have a legal responsibility to make sure any sexual contact they make is freely consented to and that any escalation of sexual contact they make is freely consented to as well.

This shift of responsibility onto the actor (the identity of which can shift from moment to moment) for that person's actions is much more than semantics.

When you put all the responsibility for the actor's actions onto the person acted upon you open the door for dangerous assumptions and opportunistic ignoring of lack of consent by someone who says "she/he failed to make it clear that sex was unwanted."

This often leads to people telling those who absolutely did not consent (therefore raped) that it is understandable that they feel raped, but because of their lack of clear communication about that lack of consent what was done to them was not actually rape.

Since possibilities for miscommunication abound that means that ensuring there are no wrong assumptions is imperative. This burden must be upon the person taking the specific action.

Many times the idea of someone asking a simple question of verification prior to sexual contact or escalation gets treated as if it is a huge burden when it is not. The reason many people don't ask for verification is that if the answer is no they will be obliged to stop.

Asking for permission or verification of consent is often positioned as being too hard or too impractical yet the person not wanting to consent or not wanting to escalate consent is expected to speak up and to clarify everything they don't consent to.

That's a dangerous expectation and one that all of us need to reject if we want to reduce sexual violence.

As part of a rejected comment to my post Understanding And Misunderstanding Genuine Consent an anonymous man wrote:

2 people have sex person A and Person B.

Person A had sex because of social pressures.

Person B had sex because they wanted to have sex with person A.

person B did not rape person A. If anyone raped person A it was the societal pressure.

The fatal flaw with this logical structure designed to deny rape is injected in the very first sentence which falsely implies mutuality of action. That deliberately corrupts the rest of the structure and makes the seemingly logical conclusion invalid.

This is an example of GIGO. Garbage In. Garbage Out.

Inaccurately summarizing and then judging a particular reality based on this inaccurate summarizing is a common strategy used by rape denialists and defense attorneys.

This inaccurate summarizing can also be presented by journalists or others when they describe a rape case where the defendant claims, "it was consensual," as, "It is agreed that they had sex." In reality, it is only agreed that there was sexual contact.

To match what I and others were talking about the logical sequence would be:

There are 2 people, Person A and Person B.

Person B wants to have sex with Person A.

Person A doesn't want to have sex with Person B and doesn't say no because of social pressures. (which could include fear of what will happen after "no")

Person B ignores total lack of positive indicators and ignores presence of negative indicators from Person A and takes sex from Person A because, "Person A didn't say no."

Person B did rape Person A because Person B proceeded despite there being no freely and legally given consent.

Person A rightfully reports having been raped.

Person B claims to be falsely accused and claims that if anyone raped Person A it was the societal pressure.

The problem where Person A is afraid to say "no" because of systemic issues happens in prisons, psychiatric hospitals and where Person B otherwise has significant control over Person B. This control can be situational such as being at a location where Person A cannot leave or cannot leave safely. It can also happen because of Person A's history with violence or abuse where "no" was punished.

Another variation of this is when Person A does say no and Person B refuses to back off. When Person A realizes futility of "no" and stops protesting to minimize the trauma then Person B takes sex from Person A.

This gives us cases where the defendant admits proceeding despite a clear, "No," because Person A didn't keep saying no and didn't physically assault Person B.

Many who present logical defenses for why Person B isn't a rapist claim that actual willingness and eagerness by Person A to have sex is impossible for Person B to distinguish from total lack of willingness. According to this argument only the clear and undeniable presentation of Person A's lack of consent can result in what Person B did as counting as genuine rape.

Yet the difference between active consent and lack of resistance is huge and in no way confusing. The only way to confuse these 2 is if you have never gotten active consent from anybody because of your approach to getting sex.

Final note to anonymous: When you practice rape denial your complaints about certain rape victims not being mentioned in my other post ring hollow. You have proven yourself to be in no way interested in being sensitive to all rape victims.

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posted by Marcella Chester @ 10:03 AM   3 comments links to this post


At January 08, 2009 6:42 PM, Anonymous Cara said...

I lost count of how many times I said no and pushed his hands away. He practiced extreme control since he was working to exhaust me to the point where I could no longer say no or block him.

He knew that wouldn't have been genuine consent. He also knew that many other people wouldn't agree with his belief or with his victims (he bragged about other girls who didn't escape in time) if they had rightfully reported him.

Yup, that's my rape. Right there.

At January 11, 2009 10:16 PM, Anonymous M said...

I didn't know there was a word for what happened me...disassociation...he didn't get very far with me (I think he realized that it would have been rape), but no wonder I had a week-long panic attack and ended up in an emergency room. They asked if I was raped, and I said no, but we couldn't understand why I had a panic attack...I don't know if it is rape or not, but I have been having a lot of hang-ups about it...I kept asking him, Why are we doing this? Do we really even know each other?...then he put his hand up my shirt (and I can't make myself say more)...I know he didn't ask. I just remember not feeling anything. Is that rape? I am not even sure and I don't know who to ask and I am too embarassed.


At January 12, 2009 12:23 AM, Blogger Marcella Chester said...


I'm glad you are asking. First, my heart goes out to you for what was done to you against your will.

Some people deny that sexual assault where perpetrators use anything other than their penis can be rape and they deny that the crime committed can be equivalent to their definition of rape in the harm it does. I disagree on both counts.

The crime of rape isn't about specific body parts, it is about sexual disrespect, violation and violence.

From what you cannot say, I know you were raped and that isn't nullified by the fact that he could have chosen to use a different body part.

It also isn't nullified if you didn't say the word no. Anything other than your willing participation is nonconsensual and therefore sexual assault. Your questions were resistance and he ignored that resistance because he wanted to and because he believed he could get away with his sexual violence by pleading ignorance if you reported him.

I'm not surprised that you didn't immediately connect your panic attack to the assault you suffered. There are so many seemingly harmless messages that we get before we are sexually assaulted which go off like landmines once we are raped.

Much of the rape prevention messages directed at potential victims can easily lead rape victims to immediately feel like they failed when the failure to prevent rape belongs to their rapist alone.

When those messages are combined with the natural protective reaction to block traumatic memories our reaction can seem totally disconnected from the cause.

That is why I felt crazy for several years after I was raped the first time.

I hope this answers your question fully.


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