Sungold at KittyWampus wrote in the comments:
Legally, I'm not sure how you handle indirect refusals; can you put a man in jail unless you're sure beyond a reasonable doubt that what happened was rape and not a misunderstanding? The presumption of innocence would mean that the indirect refusal needs to be reasonably clear, I should think - and I can imagine this can turn into a real rat's nest in court.This is only a rat's nest when actual consent from the other person is not required by law -- or by the application of criminal law. This rat's nest situation requires the concept of consent being your default condition.
I wrote in comments:
Whoever takes an action is the only one legally responsible for ensuring that this action does not violate the other person's limits or lack of consent. That means clearing up any possible misunderstandings before an action is taken.
Sungold of KittyWampus found that troubling legally and wrote a follow up comment explaining that she gave her requirement that "to call an act rape, there has to be a clear absence of consent" because she believed that to require someone to have clear specific consent violates the legal presumption of innocence.
This is a common misunderstanding of the law -- but only common in the area of sex crimes -- which conflates a defendant's own presumptions (or rationalizations) with legal presumptions in a criminal case.
We can have a legal presumption of innocence and have a standard where the positive presence of freely given consent (words or actions) is required for sex to not be rape. These are not mutually exclusive. The burden of proof in a rape case can remain on the state while the burden of ensuring sexual consent from another person is on the person taking the sexual actions.
With Sungold's definition of rape the prosecution not only has to prove that the alleged victim didn't consent the prosecution has to prove that the alleged victim, if conscious, clearly communicated that lack of consent to the defendant.
Sungold excludes non-romantic relationships from her definition, but in rapes where there was nothing romantic going on the defense will often claim there was a romantic or sexual relationship when the prosecution has solid DNA evidence. If presumption of innocence is defined incorrectly as beginning the case by believing the defendant's claim then evidence of clear lack of consent is going to be even harder to find. Flirting or everyday friendliness will be twisted into evidence that a lack of consent was unclear.
It doesn't matter that Sungold doesn't apply her definition in this way. If her definition can be misused by rapists and their defense attorneys then that definition is clearly invalid and must be rejected across the board.
Sungold excluded situations where someone is clearly unable to communicate lack of consent such as unconsciousness but in real cases her definition does not exclude unconsciousness. The defense will claim that the alleged victim was conscious and while conscious there was not a clear lack of consent. The rape victim is often challenged to disprove the defense claim that the alleged victim suffered from a blackout, not unconsciousness during the alleged rape.
This can result in the dropping of charges because the unconscious person cannot testify with certainty about what happened when they were unconscious. This is true even if the rape victim can testify that she/he would never give consent to the defendant under any circumstances.
Remember, this definition is based on the need to communicate lack of consent not on the need to get another person's consent.
The only way to prove this unconsciousness -- and impossibility of communicating lack of consent -- is if the rapist or a buddy tapes the assault. But even there defense attorneys will dismiss the lack of specific consent because we cannot know if there was a clear lack of consent prior to the video starting. To see one of the newest examples of this check out the update in my post about the charges against 2 Santa Ana College football players and a friend.
Rapists who claim that lack of consent wasn't clear can be amazingly dense when they want to be. The misunderstandings which Sungold referred to in her post is rooted in a dangerous model of sexual consent and non-consent.
Even though my parents never talked to me about sex I grew up with the clear message that it was my job to stop boys from going too far and that it was normal for boys to push girls beyond their limits. Because of this message after the experience I described in part 2 of being trapped in a car with a coercer who would have raped me once I became too exhausted to stop him I didn't realize until much later that I'd escaped an attempted rape.
Normal was for a boy to take a little more than he was allowed and if he didn't get slapped and she didn't run away then he could take even more than he was allowed. This model set up boys to be rapists without thinking about what they were doing as "real" rape.
This normal was in fact statistical (common) and many of those who repeated this message were trying to prevent unwanted sexual contact. But like Sungold they had it backwards and provided backhanded support to those who proceeded without consent. This old normal behavior has been called garden variety male sexual aggression.
If we are serious about reducing the number of rapes we must reject this model and any definition for rape which allows non-rape to include sex where someone didn't consent -- in practice and in the law. Being tongue tied or in shock is not consent and we cannot define rape in a way that allows this to be treated as if it is legal consent.
Challenging this definition has nothing to do with personalities or intra-feminist disputes. As I wrote in a comment at Kittywampus, I have no interest in flame wars or grudge posts. I'll close by quoting from that comment:
Consenting is something we do not something we fail to do.
We forget this at the peril of more than a quarter of a million people each year.