Monday, May 17, 2010

Conditional Sexual Ethics

So often when people deny non-stranger sexual violence they express conditional sexual ethics where what was horrific when done to a stranger becomes tolerable or even expected when done after the person targeted did something which changes the observer's sense of ethics.

A common example of this is when people respond to a story about a rape case where the alleged victim dated and then kissed the alleged rapist and then they use that kiss to claim the accused must not be convicted. The conditional ethics active in this response turn any sexualized interest into a valid substitute for consent.

Some people who hold conditional sexual ethics will try to deny doing so by reframing their conditional ethics in terms of reasonable doubt. If anyone might consent in a certain scenario then they position allowing sexual violence in that scenario as a result of our legal system.

However, this makes as much sense as stating that an agreement to have a relative stay one night must be treated as if it were an agreement to have that relative stay forever no matter what the homeowner wants or says. The fact that some relatives become roommates isn't used to negate all situations where this doesn't happen.

We understand that consent in other areas is not all or nothing, but too many people refuse to understand this when it comes to sex. This must change.


Bookmark and Share
posted by Marcella Chester @ 9:03 AM   18 comments links to this post


At May 17, 2010 11:14 AM, Anonymous Anonymous said...

I agree with the overall post, but the idea of "conditional ethics" has me wondering. I've studied and taught ethics and, while there are many different types of ethics, depending on ones background, culture, viewpoint, etc., I've never heard of conditional ethics.
There are conditional parameters that might be used to phrase an ethical dilemma, but ethics themselves are never conditional. Just different based on whose they are.
Reasonable doubt is a whole other ball of wax. It simply states that a person of reasonable mind would accept a given set of factors to explain a situation.
Does kissing or prior sexual experience open the door to more? Not to me, but my "reasonable mind" is based on arguably a more experienced frame around consent and sexual violence. Which is why I don't make it to many juries.
It bothers me, but I can't use that to downgrade another persons "reasonable doubt."

At May 17, 2010 1:49 PM, Blogger Marcella Chester said...

Anonymous, conditional ethics isn't any form of true ethics, it is a selective application or absence of ethics. Those who hold onto conditional ethics practice beliefs so that under certain conditions ethics will not required and therefore accountability will not required.

Too many people refuse to see rapists as fully responsible for their crimes whenever they can see any reason to blame the victim. In too many situations not only is a rapist excused, but the rape victim becomes the only one who should have behaved more responsibly.

The way this conditional ethics is most frequently disguised is for the person who refuses to hold certain rapists responsible to cite "reasonable doubt."

The legal idea of reasonable doubt is very different from the selective ethics usage of reasonable doubt. The first relates to specific evidence, but the second relates to how biases taint evidence or lack of evidence.

To flip to the offender side of conditional ethics, it isn't always the actual evidence which causes certain defendants to be found guilty or to be given longer sentences for the same crime. Bias can have a huge impact on who is charged, convicted and then on what sentence is given.

In sex crime trials prior kissing or prior sexual consent has no relationship to the legal concept of reasonable doubt, but it has a direct linkage to biased assumptions that trump actual evidence.

If someone's bias blocks them from acknowledging certain sex crimes that is not an instance where they are dealing with reasonable doubt.

At May 17, 2010 8:02 PM, Anonymous Anonymous said...

Prior consent may be connected to reasonable doubt. If it's part of the person's framework to view prior sexual contact or agreement prior to the crime as "giving consent," then that person would include that as "evidence" in their reasonable doubt. Evidence is not always physical, it can include state of mind, intention, motivation, and other intangibles. These areas cannot help but be influenced by bias. In fact, due to lack of physical evidence in many sex crime cases, these intangibles are sometimes all the jury has to go on. What is often referred to as the old "he said/she said" but usually goes much deeper than that.
It is still evidence, though.

At May 18, 2010 7:48 AM, Blogger Marcella Chester said...


Prior consent is not connected to reasonable doubt since someone's framework of viewing prior consent as "giving consent" does not match the legal definition of consent. Jurors are instructed to follow the criminal statutes and what you are describing is jury nullification.

Just because someone views their misassumption about consent as reasonable doesn't make it equal to reasonable doubt.

If a defendant is claiming consent then there needs to be evidence that the alleged victim actually consented and not just evidence that the defendant baselessly presumed consent or didn't bother to determine if the other person consented or not.

At May 18, 2010 8:40 AM, Blogger Melissa said...

I fail to see how prior consent could be a legitimate basis for reasonable doubt, when the question at hand is whether or not consent was present in THIS incident. Prior consent has no effect on the answer to that question.

At May 18, 2010 9:13 AM, Anonymous Kali said...

Anonymous, I think you are confusing "common and pervasive" with "reasonable". Biases surrounding rape, especially the ones benefiting rapists, are very common, but that doesn't make them reasonable. In either case, biases cannot substitute for evidence supporting reasonable doubt.

If a defendant is claiming consent then there needs to be evidence that the alleged victim actually consented and not just evidence that the defendant baselessly presumed consent or didn't bother to determine if the other person consented or not.

That is the way it should be. But, unfortunately, Mens Rea in rape cases allows the latter kind of evidence to be used in defense of the rapist. Mens Rea gives men the licence to rape. It needs to go.

At May 18, 2010 10:50 AM, Anonymous Anonymous said...

Kali, you are making my point, which was that bias is often present in "reasonable doubt," whether it is tangible evidence that creates it or not (such as prior consent). Unless you are going to tell me that there are NO cases anymore where rapists are freed because the jury believed there was prior consent. Or that judges stop a jury from returning a not guilty verdict because they realize the jurors had the wrong idea of "reasonable doubt." If that's the case, then we have come much farther than I thought and it's a cause to celebrate.

"Mens Rea gives men the licence to rape. It needs to go."
The cornerstone of our legal system is based in the mens rea concept. To abolish this is to set a dangerous precedent for unraveling jurisprudence. I'm trying to tread lightly here as I completely understand the emotion this kind of thinking is rooted in and see it often in the survivors I work with (as well as myself). But to casually toss out mens rea where it doesn't suit us will set society back hundreds, if not thousands of years. Mens rea is not a license to rape. It is a principle to establish guilt in a meaningful way. Without it, the gov't can put anyone away for any reason it chooses based on the current political climate.
Unless you honestly believe that it is a humane society that will remove a person's freedom when they did not know what they did was wrong.
Education and redirection, absolutely. Loss of freedom, not in any society that wishes to call itself a democracy.

At May 18, 2010 1:59 PM, Blogger Marcella Chester said...


Bias is not a factor in genuine reasonable doubt but it is present in what many people incorrectly call reasonable doubt. This distinction is critically important for people to understand why certain types of criminals are repeatedly not judged based on the evidence itself.

The same flaw is present in how many people interpret mens rea in sex crime cases. The too common misapplication is where guilt (sexual action w/o consent) has been proven but the criminal presents popular excuses for treating non-consent as if it were legal consent.

Many people who refuse to think of what they did criminally as wrong are convicted and nobody claims their rights were violated. If those who commit sex crimes didn't know what they did was wrong then they would not expend any effort at victim blaming or escaping detection. The MO of many sex criminals reveals that they do understand what they are doing is wrong even when they know there are people who will excuse their crimes.

At May 18, 2010 4:32 PM, Anonymous Anonymous said...

Nicely stated, Marcella. I agree.

Clarifying the difference between public perception of "reasonable doubt" and the legal form is very important. I was highlighting that the former is, indeed, loaded with bias and too often relied upon.

At May 19, 2010 9:18 AM, Anonymous Kali said...

The cornerstone of our legal system is based in the mens rea concept. To abolish this is to set a dangerous precedent for unraveling jurisprudence.

Mens Rea makes sense in many types of crimes (though, not all, as recognized by the law) where harm can be done unintentionally and without negligence. Rape is not such a crime. The only way we can rationalize applying Mens Rea to rape cases is if we believe that there is no legal requirement for getting positive consent. Only then is it possible to "accidently" commit rape.

At May 19, 2010 9:45 PM, Anonymous Anonymous said...

Aren't you concerned that abolishing such a foundational principle of law in one area will clearly lead to eroding it in others?
Slippery slope and all that.

I understand clarifying the law and making it more stringent, but we don't want to create situations where innocent people get accused/put away. Unless we're doing away with "innocent til proven guilty" too. LOL. Sorry, bad joke.

At May 20, 2010 8:54 AM, Blogger Marcella Chester said...

Anonymous, nothing anyone has suggested takes away "innocent until proven guilty." When so-called foundational principles are used by people to protect those who choose to harm others then that itself is helping to abolish the foundational principle of life, liberty and the pursuit of happiness.

To genuinely uphold the foundational principles in the US and elsewhere, each of us must have the right to be free of sexual violence no matter what excuses those who inflict violence use to defend their actions. Too often those who claim to be interested in protecting the rights of all are all too eager to sacrifice the rights of crime victims.

At July 18, 2010 3:42 AM, Anonymous Anonymous said...

I think perhaps one reason people tend to think this way about sex crimes is related to a similar oddity I've noticed in how people think about sexual activity in general. A lot of people seem to assume that certain kinds of sexual activity will automatically lead to other specific sexual activity, and that something is wrong or "off" if it doesn't. To be more specific, even in a totally non-violent, consensual context, some people assume that if two people are attracted to each other and start making out, they're probably going to take their clothes off, and if they take their clothes off (and if they're a man and a woman) then they're going to have intercourse. I've had boyfriends who were pleasantly surprised by the concept that they didn't automatically have to "perform" and that we could play around sexually in whatever way felt good to both of us, rather than following a pre-written script in which Tab A has to be inserted into Slot B before the evening is through. I think that the prevalence of the belief in this kind of sexual "script" encourages people to think that once a woman has "enacted" the beginning of the script, she's essentially told the man to expect to carry out the whole script to the pre-determined end.

For people who are used to thinking that even once you're in bed with someone, the two of you of course are still communicating about what you each feel like doing -- so one or both people could easily say "I'm kinda turned on, but I'm not quite in the mood for screwing; how about if we just do such-and-such" -- this kind of "script" thinking sounds slightly insane. But I think that it actually is a common way of thinking about sexual encounters in our society, and that forms part of the backdrop against which all kinds of excuses for violent sexual coercion start to sound more plausible to people.

At July 18, 2010 10:13 AM, Blogger Marcella Chester said...


You are right to highlight that many people subscribe to a fixed script theory. This idea of consent by script as a substitute for actual continued consent actively dehumanizes people so that protecting the script is more important than protecting the rights of actual people.

This script theory also seems to tie into the victim blaming narratives which take the form of, "What did you expect once you ___?" (agreed to be alone, kissed, etc.)

At July 18, 2010 5:21 PM, Anonymous Anonymous said...

This idea of consent by script as a substitute for actual continued consent actively dehumanizes people so that protecting the script is more important than protecting the rights of actual people.

It's me again -- same commenter as above. This observation of yours seems very insightful and important: people protecting the script rather than the rights of actual people. I wonder why they do that? I've tended to assume that they just can't even imagine that there's another way for people to behave sexually. I've often had the experience of going to bed with a guy and having everything continue to be spontaneous and consensual, not script-driven or "Now's the time when we have to have intercourse," but I get the feeling that some people actually haven't had that experience and haven't even considered that it *could* be that way. Like one woman friend who said, "I can't imagine getting into bed naked with a guy and then trying to control him." It was clear we were talking in different models -- she meant "control him to keep him from trying to have intercourse," and I wasn't thinking in terms of controlling the guy either, but I *was* assuming that there'd be intercourse only if both people wanted it. We might as well have been speaking two different languages.

The script we're talking about was once described as the "Disneyland ride" model of sex: "The ride begins *here* and ends *there*, and you aren't allowed to get off until you get off." I guess my question is, why do people defend that model of thinking/behaving sexually? Do they just not know that there are alternatives, or do they have some psychological or cultural stake in maintaining it?

-- K.

At July 18, 2010 5:32 PM, Anonymous Anonymous said...

p.s. Me again. I've noticed that men who subscribe to the script model are not only out of touch with what the *woman* wants, they're out of touch with what *they* want. I've mentioned that boyfriends have been pleasantly surprised to find that they don't have to "perform"; I've been with men who found that they wanted to engage in some sexual play but not have intercourse; I've been in sexuality workshops where men have explored their feelings and discovered that they *don't* always want to have intercourse with every attractive woman around -- but they have felt that they *should* want it. Somehow our culture is brainwashing people in ways that do pervasive harm. Of course, I think the harm of men feeling pressured to perform is nowhere near as bad as the harm done to women who are raped, but my point is simply that the "script" isn't something that men would all naturally want to go along with, if they knew what they really wanted. -- K.

At July 18, 2010 5:53 PM, Blogger Marcella Chester said...


I think that for many people the problem is that they don't want to think about sexual violence and when they do think about it, they want everything to be instantly clear.

I also think much of this thinking comes from victim-centric rape prevention strategies which puts no responsibility on people to ensure that they never take actions which the other person doesn't freely consent to.

At July 18, 2010 6:07 PM, Blogger Marcella Chester said...

K, just read your PS.

I think what those men are experiencing bumps against the idea that sexual actions are generic based on gender. Anything generic must be disconnected from the individual and that reduces how well actions suit the individuals. The most obvious harm is through sexual violence, but that isn't the only negative impact.

If a man believes he must have sex under certain non-criminal conditions, that turns sex into a duty.


Post a Comment

Links to this post:

Create a Link

<< Home