Feminism: Allegations of Sexual Violations

[Michael Seswatha Jordan]

There are ways of getting verbal consent that are more appropriate in the moment than "Do you consent to having sex?" I'll leave those up to your imagination. But suffice to say there is a gradient between no verbal consent and phrasing it like you're reading out of the legal language.

Exactly, that's what I was trying to say. Don't see where there is room for interpretation. You know whether one is consenting or not. If not your simply only worried about your own desires. Then your committing rape or sexual assault.

[Kat]

Exactly, that's what I was trying to say. Don't see where there is room for interpretation. You know whether one is consenting or not. If not your simply only worried about your own desires.

But the other things you mentioned were also non-verbal consent. What I'm saying is that there are sexier ways to ask someone if they're down with having sex.

[TrackerNeil]

Yes, sexual assault is a crime that the criminal justice system cannot adequately handle, as most of the problem cases are he-said she said. Requiring affirmative consent does nothing to help with the criminal justice aspect of things, but it does help from an education perspective.

If affirmative consent is how young people are taught from an early age, you at least are more likely to avoid the truly "accidental" sexual assaults. Unfortunately, our "teaching" tends to be abstinence instead of ya know, teaching about sex and about consent. It may not help get convictions, as defendants will claim whatever kind of consent is required, but it should nonetheless reduce sexual assaults.

I see what you're saying, and I don't disagree. This seems part of a larger effort to change the context in which sex between men and women occurs, and in my view it's a change that's sorely needed.

[Ser Scot A Ellison]

Does anyone think we need to change the criminal burden of proof for the State in rape/sexual assault cases? If so, how, and what safeguards will be put in place to protect the defendant in such a hypothetical alteration?

[Michael Seswatha Jordan]

But the other things you mentioned were also non-verbal consent. What I'm saying is that there are sexier ways to ask someone if they're down with having sex.

Haha, without a doubt. Been married 7 years out of practice. ;)

[brook]

Honestly, what took me aback was the part about silence not equaling consent. When I was in my twenties, I engaged in an awful lot of, ah, unwise sex with questionable guys. Sometimes, I wouldn't be into it, but I'd go along with them because I really didn't feel like the hassle of turning him down and ending the encounter. I wasn't unwilling, but I wasn't enthusiastic,

There are a whole lot of issues that we could go into here but I'll leave them for now.

You say you weren't unwilling. I'm assuming you willingly participated in the sex act in some way? It was something more than freeze up and have something done to you? Because if so that is still an example of you providing consent.

On the other hand freezing up is a very common response to sexual assault and it leads to a whole lot of arseholes stating 'well she/he did not say no' as if consent is the default that needs to actively be revoked.

Using an example that doesn't go as far as rape it was pretty common in my teens/early 20's for my friends and I to just crash out together in whatever bed was available. On one such occasion I wake up to one of the guys groping me and immediately freeze up entirely while this continued for several more minutes (felt like forever, no idea how long it actually was) while he KNEW I was awake, at some point he attempted to go further and I came to myself enough to get out of the bed and that was the end of that but I can easily see how that initial shock could have continued and led me to being just as frozen while things went further.

I mean in that situation the fact I wasn't consenting while sleeping is obvious to all but I was just as unconsenting during that period after I was awake and it doesn't take a verbal 'no' to make that the case. My 'participation' was limited to lying there stiff as a board, trying not to cry and wondering what the hell was wrong with me that I wasn't just yelling at him and was instead lying there letting it happen in a room full of my friends any one of whom would have stepped in had they any idea what was happening.

[TrackerNeil]

There are a whole lot of issues that we could go into here but I'll leave them for now.

You say you weren't unwilling. I'm assuming you willingly participated in the sex act in some way? It was something more than freeze up and have something done to you? Because if so that is still an example of you providing consent.

On the other hand freezing up is a very common response to sexual assault and it leads to a whole lot of arseholes stating 'well she/he did not say no' as if consent is the default that needs to actively be revoked.

Using an example that doesn't go as far as rape it was pretty common in my teens/early 20's for my friends and I to just crash out together in whatever bed was available. On one such occasion I wake up to one of the guys groping me and immediately freeze up entirely while this continued for several more minutes (felt like forever, no idea how long it actually was) while he KNEW I was awake, at some point he attempted to go further and I came to myself enough to get out of the bed and that was the end of that but I can easily see how that initial shock could have continued and led me to being just as frozen while things went further.

I mean in that situation the fact I wasn't consenting while sleeping is obvious to all but I was just as unconsenting during that period after I was awake and it doesn't take a verbal 'no' to make that the case. My 'participation' was limited to lying there stiff as a board, trying not to cry and wondering what the hell was wrong with me that I wasn't just yelling at him and was instead lying there letting it happen in a room full of my friends any one of whom would have stepped in had they any idea what was happening.

As you say, for me they were not situations in which I felt frightened or "froze up", or whatever. Honestly, I was just thinking, "Fine, fine...let him get what he wants so I can get out of here." I imagine that if I had indicated clearly that I wanted nothing to do with it, none of them would have tried to force me. However, although I would say that I feel it was my responsibility to make that indication, looking back I wonder what kind of person has sex with someone who is obviously just giving in. And, obviously, I didn't grow up in a culture in which my sexuality was deemed a prize to be won by some "deserving" man. Perhaps if I had, I would have viewed the whole thing differently.

Also, I'd like to acknowledge what happened to you in the situation you described. I imagine if I had been in your place, it might have taken me awhile to get the hell out of that bed.

[karaddin]

Thanks Maarsen, I may not need to be published but I do need to not be high on morphine in hospital.

Scot despite knowing this has chosen to focus on the rather less important detail in the argument which is the current situation. Rape is not like property crime where there is something missing, it is not like murder where there is a dead body. Treating it the same and making the victim of what is frequently a traumatic personal crime need to personally prosecute the case does not logically follow.

Proof that sex took place is not proof of rape, the victims testimony that they did not want that sex is the proof. This is why it should be treated differently... Because it is.

And all of that was beside my argument, which is that consent has already framed the encounter in an active and passive dichotomy and that we need to completely overhaul the way we look at sex so there is two actors, not one and an object.

This post is not on morphine and I need it so I'm kinda angry.

[Ser Scot A Ellison]

Karradin,

How can that concern be addressed without forcing a defendant to prove their innocence? Perhaps it is my profession but I see shifting the burden in a criminal case from the State to the defendant to be a bit more than "less important detail". That's a huge change in the way criminal cases would operate when the charge made is rape.

[brook]

I don't think kara is necessarily talking about changing the burden in criminal law though.

This goes a whole lot deeper than reacting after a crime has taken place. It's about a fundamental issue in the way we frame sex as something one person does to another with/without their permission. Sex is viewed as something to be given/taken rather than something that involves two actors with equal standing and agency.

Tracker - I agree with you on the 'what kind of person' wondering. Fact is nothing stops my libedo dead in its tracks faster than realising or suspecting that the other person isn't as into it as I am.

[karaddin]

Scot when I'm draughting legislation then you might feel a little more urgency in addressing these points rather than when I'm fucking spitballing on the internet.

Rape looks like a property crime because it was, a crime against the male owner. Making small fudges here and there isn't cutting it, it needs to be built from the ground up as about the interactions of two (or more) whole people. To do this I feel we need to completely rethink the way we look at sexual interactions full stop and that the concept of consent is already tainted. So maybe try engaging with what I'm saying instead of acting like I'm about to remove presumption of innocence for your entire legal system.

I'm not a fucking lawyer (as pretty much every lawyer on the board makes clear in every discussion) but that doesn't mean I can't identify issues in current procedures. It means I can't write the legislation to fix it so stop acting like I need to before I point out the problem.

ETA: And yes to be triply clear I'm arguing what brook said, not just criminal matters.

[Ser Scot A Ellison]

Brook,

I absolutely agree that sex should be between equal partners with equal agency and the ability to refuse and step back at any point. However, this necessarily involves criminal law because people will be prosecuted for rape. If they, as a criminal defendant, are required prove consent existed throughout the sexual encounter the effect is to force them to prove their innocence of the crime that they have been accused of perpetrating.

[brook]

Scot I really don't think you are understanding exactly what I'm saying. Yes criminal law is required to prosecute crimes that occur but it isn't actually the most important issue here.

The way we talk, and the way we think about sex (not just rape) is fundamentally broken. This needs to be addressed. It's so very much deeper than that.

[Ser Scot A Ellison]

Brook, Karradin,

I do think you are correct. I'm missing what you are saying. I don't think I know enough about the in's and out's of the sociolgical aspects of this issue to really see what it is you are suggesting hence I attempt to push the discussion, which is interesting, to an arena I'm familiier with. Please understand that I do agree we need sexual equality. I simply see some issues arriseing as such ideas are put into practice, legally.

[Crom Dubh]

Karaddin and brook make excellent points regarding the framing of sex. However, I think Scot brings up good points well: yes, these are issues deeper than the criminal court procedure, and yet inextricably linked to it. Stating that a person's assertion that they did not consent to sex is proof of rape, for example, is a complex issue. Karaddin said here:

Proof that sex took place is not proof of rape, the victims testimony that they did not want that sex is the proof.

and that ignores some pretty fundamental issues. Was there any sort of communication that the sex was unwanted (here is where affirmative consent is helpful, I suppose)? What circumstances were surrounding the encounter? Were one, or both parties, intoxicated in some manner? So on, and so forth. Yeah yeah, basic questions, and not meant to invalidate the idea of victim testimony as valuable, or meant to insinuate anything about said testimony being unreliable. However, by privileging the accuser's testimony over the accused, the potential exists for simply "flipping" the existing dichotomy in a very unproductive manner. Social pressure to make rape victims doubt their own experience is a real phenomenon, and a harmful one. Privileging accusations of rape over protestations of innocence does not seem the way to go either, however.

[karaddin]

I don't know I can put it better than in the first post.

You consent to something that is done to you, you choose to do something. See that difference? By framing sex along the lines of consent there is inherently one party choosing to have sex and the other allowing it to happen to them.

Other examples - abortion. There is a push to have "informed consent" as an aspect of allowing abortion, but this presupposes that the medical doctor is the expert that can enlighten the pregnant woman, but the doctor isn't the expert. He may be the expert on the medical pros and cons of proceeding, but he is not the expert on her life, her financial status, her desires etc. She is. She is the source of truth on whether she wants that pregnancy

The consent model basically subordinates the person consenting to some other authority figure. There is no authority figure in whether a person wanted to have sex is that person.

ETA: False comparison, a person is definitive source of truth on what they want. Victim says they didn't want sex, alleged rapist said they did want sex. These are the equivalent positions. Alleged rapist saying he knew the victim wanted to have sex is privileging their position.

[TrackerNeil]

Brook,

I absolutely agree that sex should be between equal partners with equal agency and the ability to refuse and step back at any point. However, this necessarily involves criminal law because people will be prosecuted for rape. If they, as a criminal defendant, are required prove consent existed throughout the sexual encounter the effect is to force them to prove their innocence of the crime that they have been accused of perpetrating.

I don't know of any serious attempt to enshrine affirmative consent as the law of the land, though, so I think your fears are, for now, groundless. However, I think affirmative consent will cause a lot of universities to muck up an awful lot. Not because of false rape reporting or anything like that, but...well, I work for a university, and let me say that I am dubious that my employer could conduct a competent investigation into the color of the sky, much less something as fraught as sexual assault. That's not to say affirmative consent should be repealed, but I wish it had come with strict, detailed guidelines about how universities must investigate allegations, what standards of judgment are employed, the nature of due process, etc.

[Ser Scot A Ellison]

Karaddin,

I don't know I can put it better than in the first post.

You consent to something that is done to you, you choose to do something. See that difference? By framing sex along the lines of consent there is inherently one party choosing to have sex and the other allowing it to happen to them.

Now I'm lost. You can consent to have something done to you or you can consent to participate in something mutually pleasurable to two people. It's still consent.

[Michael Seswatha Jordan]

This is a very tricky subject. So, if I receive consent to have sex with a female whether verbally, physically or any number of ways that could be constituted as consent, and sex is initiated this is not rape correct? Now, if at some point during sex, my partner starts to feel uncomfortable, and I do not receive a cue or do not notice anything different (they continue having sex as before), and I continue would this be considered rape in the partners mind? If no verbal cue or obvious discomfort is apparent, how can the other be guilty of rape. I know that you should be aware and considerate of your partner. And I understand that some are not that attentive, and are only worried about their own needs and "getting off". But if no verbal cue is giving, such as " I don't want to do this" or "I'm hurting, please stop", can you hold the other person liable for rape? I gather this is what is being discussed, if I'm wrong would someone explain?

I feel that at anytime during sex, if one or the other gives an obvious cue to discomfort or simply not wanting to continue, and the other continues, that is rape. Even if they were given consent to I initially have sex. That being said, if no cues are giving and both parties proceed to finish the act, then neither should be held liable for rape. Its not OK to consent to sex, follow through with the act, then say you were raped after the fact. Either out of guilt or shame, that is unfair to the other and could cause untold problems to them, physically, mentally and financially.

ETA: I am very aware of when my wife either feels discomfort or for one reason or the other falls out the mood. I ask and if this is the case I stop. And this should be obvious even if its not your main partner, and should have the respect to stop. Like I believe TrackerNeil said, it even throws you out of the mood. But as far as rape, something would need to be said I'm my opinion. Maybe when having sex as a one night stand, you wouldn't be very attuned to the body language of that person.

[Crom Dubh]

I'd agree with Scot's definition of consent as well. You can consent to engage in an activity,and still maintain equal agency. Both parties consent, after all. Regardless, I agree with reframing sex as something people of equal agency engage in as partners, not something done to one person by another.

False comparison, a person is definitive source of truth on what they want. Victim says they didn't want sex, alleged rapist said they did want sex. These are the equivalent positions. Alleged rapist saying he knew the victim wanted to have sex is privileging their position.

I agree, a person is the definitive source of truth on what they want. In a situation where sex occurred, and one person said "no, I didn't want to have sex," and the other person says "yes they did," I'll side with the person who said "no." However, situations can and do arise where the situation is murkier than "I said no, and they kept going," or "I clearly did not want to have sex, which I displayed through pretty recognizable non-verbal signs, and they kept going." In which case, I think there should be skepticism applied equally to both the accused and the accuser. Or rather, there should not be an automatic presumption of guilt based on someone saying "I was raped."