Monday, November 30, 2009

Why Demanding Communication of Lack of Consent Is Dangerous

I've challenged other feminists who under certain conditions support placing some legal responsibility onto the person who doesn't want sex or sexual contact. Too often those feminists assume I'm being artificially nitpicky when I talk about the dangerous legal consequences of ever placing any responsibility onto the person who isn't consenting.

To these feminists the idea that the person who isn't consenting can do absolutely nothing and be completely passive seems irresponsible and may be seen as contributing to someone who doesn't have the other person's consent proceeding with the assumption that no response is acceptance.

Because they view clear communication in personal interactions as good they don't see what is bad in including this good idea in sex crimes laws.

Now there is an overturned sexual assault conviction in Connecticut which shows the danger I see in the position held by some of my fellow feminists.
The state Appellate Court in Hartford on Tuesday set free a Bridgeport man convicted last year of sexually molesting a severely handicapped woman.

Although the woman cannot speak and testified by using a special computer device provided by the state, the appeals court ruled she is not physically helpless, as defined by the state law under which a Bridgeport Superior Court jury convicted Richard Fourtin. [...]

The woman has severe cerebral palsy and cannot verbally communicate. She is so physically restricted that she is able to motion only with her right index finger.

In order for the woman to testify during the trial, a small video camera was placed over her and a tray affixed to her chair. On the tray, the prosecutor placed a board printed with the letters of the alphabet along with the words "yes'' and "no'' on top.

After each question, the woman's left hand would push her right hand, with the index finger forward, across the board to either spell out a word or answer yes or no. It was an exhausting process that lasted four days.

But the appeals court said it was not convinced that the woman is helpless.
And why wasn't this woman helpless?

Because the woman could screech, bite, kick and scratch. Unfortunately, this belief that if someone can do something even once then they could do it instantly when sexual contact or activity is unwanted. None of these actions would help her get away from Fourtin so the assumption needs to be that any of these would repel him or any other sex criminal.

This idea goes back to the idea that most non-stranger rapists are merely failing to understand someone else's lack of consent. If their victims were better communicators these rapists allegedly wouldn't be rapists.

Implicit in this ruling is the assumption that if the victim didn't screech, bite, kick or scratch that she must be assumed by the criminal law to have consented or there must be reasonable doubt about whether or not she was consenting even though there is no evidence that she communicated actual consent.

This goes directly back to the position that many people defend as being reasonable when that position is not reasonable and directly helps sex offenders get away with sex crimes that those people recognize as sex crimes.

If you go to a car dealership and test drive a car, say wonderful things about that car, you have not consented to buy that car simply because you didn't say, "No, I'm not buying this car." It would be absurd to demand that all car shoppers' absence of consent must be clear.

Nobody who goes to a car dealership needs to be empowered to always say no in order to avoid unwanted car ownership or car ownership which comes at too high of a price.

If a shopper says, "maybe" or "I'll think about it" or says nothing everybody gets that there is no consent. So this concept is not a difficult one. Yet many people -- including those who vocally oppose rape -- continue to have trouble with this concept when it comes to sex or sexual contact.
Too many people, including judges, seem to need a reminder that the basic concept of consent is a positive agreement not just the lack of an extremely negative response. The backwards view of legal consent when it comes to sex and sexual contact needs to be abandoned by everyone who doesn't support sex crimes.

There can be no excuses allowed for continuing to support a view of consent which leaves those who did not consent so vulnerable to sexual abuse and then to being abandoned by our legal system.


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posted by Marcella Chester @ 10:58 AM   6 comments links to this post


At November 30, 2009 12:36 PM, Blogger JENNIFER DREW said...

Thank you Marcella for debunking claims women should and must give clear communication to a man so that when the woman is raped by the man she can cateogorically prove she has not 'consented.'

In all other situations apart from when a man makes the choice to ignore a woman's sexual wishes, men commonly do not give direct responses. Instead they prevaricate by 'saying yes I would like to but' or 'I would if I could.' Such forms of human communication are normal and it is because women and men too, do not want to hurt the other person's feelings. Strange as it may be to many pro-rape apologists men do not have a problem 'understanding' what a woman/man is communication unless it concerns a potential unwanted sexual interaction. Then suddenly male rationality flies out of the window and he is supposedly incapable of understanding what the woman is saying to him.

Chapter 5 of The Myth of Mars and Venus by Deborah Cameron analyses how women and men's communications are more similar than dissimilar and why men who rape women suddenly experience 'misunderstanding' when they choose not to listen or accept a woman's 'no.'

The woman who suffers from cerebral palsy apparently was supposed to have been capable of resisting a physically healthy mane from raping her. Yet again the judges have taken a male-centered stance wherein they believe such male attacks occur between two individuals of equal size, weight, health etc. Missing of course is how most victims react to a sudden sexual assault as well as enduring mythical belief men rape women because women fail to communicate clearly to men they do not want the man to rape them.

It continues to be a no win situation for women and a win win situation for male rapists, particularly men who choose to rape known women because thes male rapists know their likelihood of conviction is zero.

At November 30, 2009 12:55 PM, Blogger AixelA said...

Saying that some blame should be towards the person that was raped is ridiculous. I agree with you.

At November 30, 2009 5:36 PM, Blogger NOLA radfem said...

That story made me sick to my stomach.

Great post, Marcella. I missed your writing while I was gone!

At November 30, 2009 8:06 PM, Blogger Prudence said...

Oh My God. I wish I was surprised by this, but the law really is a complete ass in these matters. How the hell can they go through the process of communicating through an unconventional and lengthy process and then rule that she was perfectly able to communicate in the heat of the moment? Of course they don't answer the question of what happens if she did communicate and he ignored it? She's disabled, she's not able to fight. Anyway, that's not the issue here. You are so right Marcella, it shouldn't be this double negative that a "yes" is a perceived lack of "no". A yes should be a bloody yes and if you can't get a pretty convincing yes from the person you are with then you shouldn't try it. What they skate over here as well is how would a person so disabled have sex? Wouldn't there be some discussion beforehand? During? as to what she liked and what he should do differently? Without evidence of that level of consideration then it can't be presumed to have been an equal sex act surely?

At November 30, 2009 11:20 PM, Blogger Barbara aka Layla said...

Very well said, thank you for being such an articulate and strong advocate.

At December 07, 2009 1:25 PM, OpenID earwicga said...

What a horrible judgement. Completely able bodied people who are raped can be so shocked they are unable to defend themselves in any way, let alone verbally. Will this judgement be appealed?


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