The Sexist

Legal Consent, Morning-After Regret, and “Accidental” Rape

Over the past few weeks, this blog has hosted some really productive discussion threads about rape prevention, victim blaming and new models for sexual consent. I'd like to thank everybody who has participated, but I'd also like to directly address a few theories that have arisen over the course of these discussions. And I would like to begin the process of debunking them.

Debunked, after the jump:

- "Yes means yes" is dangerous in a world where "no means no"
- Women exploit rape laws to criminalize consensual sex they later regret
- Some rapes just happen on accident

By the by—if you're in need of a primer, here's the relevant reading material:

Verbal assault: The abuse and debasement of "rape"
Drunk girls deserve to get raped
Writer to rape victims: sometimes it's too late to say no
On the difficulty of saying no

Now, on to the theories:

Not everybody accepts the "yes means yes" standard of consent, so we have to stick to "no means no" [Source].

I've heard this argument time and again: Telling people that consent ought to be based on "yes" instead of "no" is dangerous, because the nation's sex partners (and courtrooms) just don't agree with that standard. According to this theory, if a woman expects a man to respect her bodily autonomy implicitly, she's gonna get raped and there's nothing she can do about it.

Well: Of course not everyone agrees with it. That's why feminists devote books and blogs and documentaries to critiquing current models of consent—necause we believe by changing attitudes and changing laws, we can make lives (not to mention sex!) better. That being said: "yes means yes" is actually consistent with the legal standard in many jurisdictions, and if rapists go around assuming that "no means no," they may be in for an unpleasant surprise.

I'm most familiar with rape laws in Washington, D.C., so I'm going to stick to D.C. code here. In D.C., there is no crime called "rape"—instead, sexual assaults are categorized as various degrees of "sexual abuse."

In D.C., you could be charged with first degree sexual abuse if you cause a person to submit to a sex act using any of the following tactics: by physically forcing them; by threatening them; by rendering them unconscious; or by drugging them. This crime can be punished with up to life in prison. You could be charged with second degree sexual abuse if you have sex with someone when you have reason to know that they are incapable of knowing what's going on, incapable of saying no, or incapable of "communicating unwillingness" to have sex. This crime can be punished with up to 20 years in prison. In these crimes, the rapist is aware that their victim does not want to participate in the sex act, and does it anyway ("no means no"), or is aware that their victim cannot consent, and does it anyway ("passed out means no").

Misdemeanor sexual abuse requires a less stringent standard of consent. Under D.C. law, the misdemeanor charge applies to "whoever engages in a sexual act or sexual contact with another person and who should have knowledge or reason to know that the act was committed without that other person's permission." This crime can be punished with up to six months in prison.

Here, the standard does not require force, threat, or incapacitation. It doesn't even require penetration—it covers all "sexual contact." The misdemeanor charge only requires the absence of consent. In this crime, the rapist is not aware that the victim is powerless to say no—he is only aware that the victim has not offered a "yes." In D.C., you can go to prison for six months for having sex with someone without gaining their permission—even if the victim did not explicitly say "no."

"Yes means yes" is more than just pie-in-the-sky wishful thinking of bloggers living in a feminist dreamworld. For everyone who engages in sex, not abiding by "yes means yes" can also mean very real jail time.

Rape laws are invalid because they're based on how the victim "feels" the next morning. [Source].

Again, in D.C., the severity of a sex abuse charge depends entirely upon the actions of the perpetrator, and not at all on the feelings of the victim. The legal system does not care how traumatized the victim is, whether the victim has changed her mind about how she feels about her sexual assault since it happened, or whether the victim wants to press charges. Let's recap: According to the law, the only things that matter are: (a) whether the perpetrator had reason to know that the victim did not consent, (b) whether the perpetrator had reason to know that the victim could not consent, and (c) whether the rapist used force. D.C. law is only concerned with the severity of the rapist's actions—not whether the victim "secretly liked it," "totally wanted it," or "only regretted it later."

If the story of Polanski's victim has taught us anything, it's that rape laws are not about the victim. They're about the perpetrator. The American justice system has been continually criticized for failing to serve sexual assault victims. Rape trials don't exist to make victims feel better—they exist to help prevent future rapes. And so, even though reporting rape, pressing charges, and enduring a trial is a notoriously difficult process for victims of sexual assault, victims are still encouraged to step forward in the hopes that others will not become victims.

From a legal perspective, it makes perfect sense that rape laws would be centered exclusively on the perpetrator's actions and not at all on the victim's feelings. If a person routinely has sex with people without their consent, he may catch a few victims who "secretly liked it." That's not the point. The point is that that behavior is reckless, dangerous to the public, and unacceptable.

That being said, locking someone up for a few months doesn't strike me as a very effective rape avoidance tactic. It would be much more productive if we focused our efforts on prevent rapists from believing that behavior was acceptable in the first place.

Some rapes happen on accident [Source].

As Thomas notes on the Yes Means Yes! blog, the dominant analogy used to address rape likens it to a terrible and unpreventable disaster. Under this model, rape is like a hurricane. Everyone agrees that hurricanes are devastating. Hurricanes cannot be prevented—they can only be predicted, planned for, and vigilantly avoided. Because no one can be blamed for causing a hurricane, the onus is on the victims to make sure they stay out of the disaster's path.

Similarly, because many people are convinced that nothing can stop a rapist from raping, women are encouraged to conform to a series of disaster-avoidance behaviors: stay indoors, wear longer skirts, quit drinking, travel in packs, and avoid trusting men.

Of course, rapes have a pretty obvious culprit: rapists. Still, some people continue to cast date rape scenarios in particular as unavoidable accidents. Since acquaintance rapes are absent of any obvious malicious intent, they are considered a product of an unfortunate miscommunication. These rapists did not intend to rape anyone. In a way, they too are victims—victims of the problematic gray area of sexual consent.

This focus on some rapes as "accidents" suffers from a misapplication of the term "accident." I often find analogies misleading in discussion of sexual assault (see: that hurricane bullshit), but I'm going to use an analogy in this instance because I think it may be helpful. What if we thought about rape in terms of another type of accident—a car accident?

In the United States, driving a car is a privilege. In order to be cleared to drive, you must pass tests, register your information with the government, have enough money to buy a vehicle, and secure insurance in case you get into a wreck. For some people, the privilege of stepping behind the wheel inspires a certain amount of hubris. These people believe that because they are driving a car, they can take certain liberties on the road—including cutting others off in order to save time, running red lights, shirking stop signs, and generally being a gigantic asshole. Their concern lies only in getting where they want to go as fast as they can, and not at all with all the other humans on the road they have an obligation to protect.

A few weeks ago, my boyfriend was hit by a car when he was in a crosswalk (he's fine, thanks for asking). In D.C., of course, pedestrians legally hold the right of way in a crosswalk. But my boyfriend did not share the privilege of the driver—he was a pedestrian, and so he was forced to wait patiently at the very wide, very well-marked, very busy crosswalk until one of the big privileged cars deigned to stop for him. If a pedestrian decides to step out into the street as oncoming traffic approaches, he has to hope that his legal right to cross—not to mention his human life—outweighs the driver's sense of privilege to keep on trucking. Asserting your rights, of course, comes with a certain amount of danger. But pedestrians have no choice but to cross busy streets. And sometimes, they get hit.

Now, the driver who hit him did not set out with the intention of running into a human with her car. She didn't mean to hurt anybody. But she also knew full well that cars are required to stop for pedestrians in crosswalks. She was simply so accustomed to her driving privilege that she never dreamed that this could actually happen—and that she would ever be held responsible for her habitual disregard for the law. After all, a lot of motorists act this way, and most pedestrians just stay out of their way. When a pedestrian is hit in a crosswalk, it's not an accident. It's the result of the motorist who has normalized her dangerous actions.

When rapists engage in sex acts without bothering to gain their sex partner's consent, they are not "accidentally" raping someone. Rapes don't come from miscommunication. They are not isolated, unpreventable incidents. They are a product of institutionalized, reinforced, life-long privilege. They are the symptoms of a flaw in the rapist's entire worldview. They are the product of the way the rapist has habitually devalued women, laid claim to the bodies of others, pursued what he wants no matter what—and never thought anything of it because he has never been called on it. That's not an accident. That's a system.

  • Nancy Schwartzman

    Wow -- amazing analogy. I like how you make clear the way folks behave when they have privilege and are used to privilege. They may not intend to egregiously break the law, or hurt another person, but actually thinking you can do what you want, and having gotten away with it in the past, makes for a climate of "you put yourself in that situation" whether it was crossing the street or hopping into bed. Asserting yourself and your rights is only "dangerous" if folks choose not to listen or to punish you for doing so.

  • L

    Nicely written. That car accident analogy is especially striking. Thank you.

  • Christina


  • Katie

    That car accident analogy is going to come in quite handy in all my future discussions/arguments/yelling matches about rape and rape prevention. Thanks!

  • Joe Schmoe

    Standing ovation, Ms. Hess.

    I have never been able to figure out what is so difficult about simply asking your partner if he or she would like to have sex before having sex.

  • abyss2hope

    Thanks for taking on these 3 statements. I believe they are tightly interconnected in many people's thinking and behavior.

    “Yes means yes” is the most dangerous to rapists who work to prevent victims from saying no or who lie when their victim did say no. They want the public and the police to believe that their victims are the exploiters and the rapists are the victims of a crime which happens when rape victims go to the police. And they need the belief in accidental rapists in case all that denial fails to hide the truth.

  • Chanda

    Amanda, thanks for laying out the law! I wish we could make your blog entries required reading for everyone.

  • Fuchsia

    Thumbs up!

  • Lindsay

    Well done! That is one heck of an effective analogy.

  • TJ

    Amanda, that analogy was absolutely PERFECT!!!

  • Pingback: Rapists Who Don’t Think They’re Rapists - The Sexist - Washington City Paper

  • Pingback: Bits and pieces « Claire Hennessy

  • Pingback: The Week’s Most Popular Blog Posts: Perfect Vaginas Edition - The Sexist - Washington City Paper

  • Sasha, CA

    Wow, you really think that "acquaintance rapes are absent of any obvious malicious intent"? As someone who was brutally raped and tortured by an acquaintance (not a date) despite putting up one hell of a fight, I beg to differ. The guy who raped and tortured me also threatened to kill me but it's good to know that he didn't have any "obvious malicious intent". WTF?!?

  • C.H.

    I think you mistake the meaning of what Amanda is saying. For most people, a man jumping out of the dark, grabbing a woman and raping her signals "obvious malicious intent". He was lying in wait with the intent to commit bodily injury upon a woman. Most people do not equate "date" or "acquaintance" rape the same way. The overwhelmingly pervasive idea is that in those circumstances a woman could somehow have avoided attack, which is obviously fallacious, that is when women tend to be most at risk. But I think it makes people feel better about excusing rape.

    I also understand exactly what you are saying. I believe that rapists know exactly what they are doing and it is always done with obvious malicious intent. The trick is getting the majority to see it the same way so we stop having different "degrees" of rape and letting what are probably the most dangerous men to operate without fear and consequence.

  • J.M.

    The analogy is worth pursuing. As a walkable-cities geek, I happen to think that it is the pedestrian's responsibility to help de-normalize the driver's behavior - not by getting hit, but not by waiting passively at the side of the road either. An assertive pedestrian can make use of a crosswalk safely almost anywhere by making appropriate eye contact with drivers as they go: gestures and and wild-eyed glaring are sometimes necessary to bring the oncoming traffic to a halt, but less so as the driver culture slowly shifts, "one bird at a time".

    Are there similar behaviors which, individually practiced in sufficient numbers across the culture, can help de-normalize these rapes?

  • Meghan

    I was once given another (quite different) car analogy during a debate about aquaintance rape in a sociology class. The female student who opposed my view said that it was a woman's responsibility to know better than to--for example--go to a party by herself and get drunk. To do such a thing was akin to "walking out into traffic without looking and then getting hit by a car." The fascinating thing about her analogy is that it reveals a hidden belief in men being designed to rape...just as cars are meant to drive on roads (and might accidentally hit objects that stray into their path), so are men meant to sex (and might accidentally rape women that stumble into their path.) This viewpoint amazes me everytime I remember it.

  • jenn

    amazing analogy!!! sorry to hear that your boyfriend got hit by a car too!!

    this whole series is fascinating to me.

    it has also ended up as a link onto a kink site ( as part of a discussion regarding the "advice" that a newspaper columnist gave to a young woman who was raped while at a party.,0,7648053.column?page=1

    thanks for saying so clearly what i have been trying to explain to people for a long long time. it is hard to do when i have so many emotions tied into the issue.

  • Pingback: Rape Analogy Redux: The “Stroll In The Jungle” Theory - The Sexist - Washington City Paper

  • Ecjeppesen

    I'm organizing a Week to End Violence Against Women Week at my college in April and I'm definitely going to use these much, much better analogies in there somewhere - posters, pamphlets, panel discussions, something.

  • snobographer

    I'm not totally sure about the analogy of the car hitting the pedestrian. I like the point you make that it's a system, but it sounds more like willful negligence than an intentional act. I'd make it more like somebody who hits pedestrians with his car because it gives him jollies to hit pedestrians with his car, and then he acts like it's an accident and gets away with it because everyone thinks the pedestrians should be more careful to avoid getting hit by cars.

  • Max

    What I think some people mean when they comment about the feelings the next day is that ultimately, it will always come down to his word vs her word. He can claim that she said yes, she can claim that she said no. There is no written contract to fall to, and with the public perception of sex offenders being what it is, being accused of that crime may in turn bend jury perception and lead to a conviction when there really is insufficient evidence to lead to a conviction.

  • Alex

    Hi Max; I understand the point you're making, but it's a fallacious one. Look at the statistics on what percentage of reported rape cases go to court, and how many out of those get a conviction. It's staggeringly small (less than 10 percent). So the likelihood is that if it's his word against hers, not only will it be massively unlikely that the guy will get convicted, it's more likely it won't even get to court anyway, due to insufficient evidence.

    Arguments like yours are based on a misconception that needs to be countered. Because it does nothing but perpetuate rape appology of the women-lie-about-rape kind. Which, ironically, is the kind of thing that will turn juries against women.

  • Saurs

    "What I think some people mean when they comment about the feelings the next day is that ultimately, it will always come down to his word vs her word. He can claim that she said yes, she can claim that she said no."

    No, that's not correct, Max. When people claim that women falsify rape charges because they regret sex afterwards, that's literally what they mean. They are suggesting that a woman who has sex with someone may thereafter "regret" it (in this scenario, women who have sex are "ashamed" of sex because sex is shameful for women and makes them feel guilty) and accuse the man or woman with whom they engaged in sex of rape. People who dabble in this theory (notably, defense lawyers) are lending credence to the myth that women (some women, all women) are always dubious in their relationship to sex, that sex is something they dispense and might later "regret" dispensing to other people rather than something in which they joyfully participate. If this particularly genus of rape apologia is popular, its because it mirrors popular patriarchal beliefs about "women's sexuality" (as though it were a separate and distinct thing from human sexuality) -- namely that sex is something women often regret or feel bad about, because engaging in sex makes a woman a whore, especially if she enjoys it. So, she shouldn't enjoy it. If she enjoys it, she's a whore. And if she doesn't it, then its her fault and no one forced her. So, under this theory, if a woman has sex with a man, even if no-one else ever knows or hears about it so that they can slut-shame her publicly, the overwhelming internal and self-actuated guilt she feels makes her somehow feel compelled to bring charges against the dude she slept with in order to quell her rising fear and self-hatred and shame. Of course, by accusing someone of rape she then reveals what a whore she is (under this theory about "regretted" sex). Kind of a double-edged sword, there, and a very deliberate message sent to rape victims to keep their mouths shut unless they want to be publicly humiliated for being a whore and a liar.

  • Entendre

    Yeesh, Saurs -- maybe you're going a little bit too deep, there. Why does it have anything to do with the perception that women who enjoy sex are whores? That has nothing to do with the "regret" idea. This idea isn't based on anything wholly _rational_ -- it's based on possibility. Is it REASONABLE that a woman COULD wake up the next morning, regret having sex, and accuse a man of rape? Why, yes it is. It has happened, if very rarely.

    Is it REASONABLE that a man COULD wake up the next morning, regret having sex, and accuse a woman of rape? Why, yes it is. It has happened, if very rarely.

    Does that excuse actual rapists? Of course not. But your contention seems to be that the entire system of rape accusation and investigation is biased against women in particular. I don't think that's true -- it's biased against anybody who can't provide proof beyond reasonable doubt of a crime. In the case of rape, that's a very difficult thing, because the non-consensuality of rape is often impossible to prove beyond a reasonable empirical doubt.

    What does that mean? One of several things -- perhaps our justice system is flawed, and we shouldn't require proof beyond a reasonable doubt to convict. Perhaps it means that we can't rely on the justice system to prevent or punish rape, and should try to figure out some other way to do so. Perhaps it means that we should each take our own precautions to avoid and prevent rape, regardless of how "wrong" it is that we might have to.

    Legal consent of "yes" is only a start -- it won't stop liars on either side of the accusation. But it's an invaluable start; we can only work to make it a cultural norm.

  • Saurs

    Entendre, if you know something I don't about statistics of rape and sexual assault, fill me in. False accusations of rape are estimated at about 4 per cent of rapes reported; the same per cent of false accusations of all other crimes. Rapes are overwhelmingly underreported, poorly and sometimes deliberately under-investigated, and very rarely lead to pre-trial hearings, trials, and sentencing. Except when the victim is severely beaten or murdered, sentencing is usually light. So, yes, I believe the "entire system of rape accusation and investigation" is, in fact, largely biased against women and set up to disprove their accusations because said accusations have unpalatable and sometimes unresolvable implications about sexual norms as they exist at present. (One of these norms, as I say, is that sex is supposed to be shameful for women or that engaging in sex willfully is supposed to be shameful for women.) That law enforcement, usually the first line in this system of investigation, is almost overwhelmingly made up of men is no particular coincidence.

    As far as having to take precautions against rape because this system of which you speak is broken, that would require a complete cultural overhaul unless you simply mean that all people (women, children, and men) who aren't rapists should go to extraordinary lengths to protect themselves against rape, which is ostensibly inevitable. What lengths would you suggest, though? The identity of known victims don't give a clue -- a toddler of 3 to an adult of 80 is a potential victim of rape. Older women, women in their seventies and eighties, are often raped in their homes, at night, by an intruder. What are their options? They shouldn't own property, they shouldn't live alone, they shouldn't possess breasts, an anus, a vulva and vagina? What about men, in prison? What are the precautions they ought to take? We know for a fact that most rapists are acquainted with their victims and that most rapists are men: should women refrain from having male bosses, neighbors, spouses, children, friends, lovers, lest they be accused of not taking the appropriate steps to protect themselves against a crime, after all, we know takes place between people who know each other. Should men simply be banned or be placed under surveillance and curfew?

    No, of course not. At least, I don't think so.

    Y'see, I don't believe rape is inevitable, is "hard-wired" into our "species," or that it possesses a considerable gray area. If we, as a civilization, are at all prepared to take rape as a crime seriously, we would. We aren't, so we don't. Part of the reason for that, I believe, is because we have thoroughly warped ideas about women and sex. There are a considerable number of people who do not believe women enjoy sex, who believe sex is usually painful for women, and who sometimes consider a woman's pain correlative to a man's pleasure, if not actually causative. Therefore, its not such a stretch to think that a woman might regret sex, considering she, under this assumption, doesn't actually like it to begin with, but simply dispenses it for cash, for love, or for something more complex or complicated in return. People who believe that women don't like sex but that men do naturally see women as less than human; if men like sex, women are for sex. This a prude's understanding of sex, a childish, often self-centered, thoroughly distasteful notion of sex as defilement, something that men win through victory over women. Violent pornography underpins this philosophy; a wanton slut who submits to sex, which is filthy, will naturally submit to any other kind of physical torture and enjoy it!

    Only in a completely repressed society are there people who actually believe that a significant enough number of alleged rape victims -- significant enough that "morning-after regret" actually is a well-known apology and defense of rape -- that women are so ashamed of having had sex with someone (someone who, at the very most, they were attracted to, if not actually someone they have a relationship with) that they are willing to actively pursue that person's imprisonment simply in order to save face. Save face against what? That they are sexually active?

    Apart from that, "legal consent," the actual notion of "consent" in general, is a mistake. Again, it reiterates the false belief that women submit to something rather than actively participate in it, that women consent to having men or other women use their bodies for their own pleasure rather than women cooperating actively for mutual gratification. Consent makes sex sound like a one-sided affair, which it, generally, is not. Since rape is, in fact, a one-sided affair, an assault for the gratification of the rapist, consent lends sex an air of rape. We should strive to separate rape and sex from each other as far as possible, lest we contribute to this magical gray area in which all rape is sex unless someone is dead or bleeding, in which all victims are lying unless proven otherwise.

    "Is it REASONABLE that a man COULD wake up the next morning, regret having sex, and accuse a woman of rape? Why, yes it is. It has happened, if very rarely."

    No, it's not reasonable. Why would he do that? Also, please provide an example when this has ever happened, and that the men was proved to have been lying because he "regretted" sex. In fact, do you know of an example in which a woman admitted to having lied about having sex because she "regretted" that sex? Again, I don't.

  • Alex

    Thank you Saurs - *awesome* analysis.

  • BlackHumor

    Saurs, you do realize that all the evidence you have given in the first paragraph, with the one exception of "Rapes are overwhelmingly underreported", can be attributed to the fact that for most rapes the only evidence is the testimony of the victim and it is not possible to prove the rapist is guilty beyond a reasonable doubt based solely on that?

    Now, granted, he certainly has much more motive to lie than she has, but that's still not anywhere proof "beyond a reasonable doubt". Take an analogy: suppose a case comes to court where Alice is accused of stealing Bob's car. Alice claims Bob clearly told her she could borrow his car; Bob claims he said no such thing and his car was just missing one day. Alice should get off, because her story is just probable enough to cause a reasonable doubt, even though given that Bob is a reasonable human being it should be pretty unlikely that he just forgot he told Alice she could borrow his car.

    So Entendre would seem to be right and it's mostly a problem with the criminal justice system.

    Plus I also disagree with your analysis of the concept of consent; men also have to give consent to sex. It's as important for the man to consent to sex as the woman. Saying that concept is a bad concept because it implies that it's something women have to give does not make sense because men (legally and morally) have to give consent just as much as women do.

  • Culturally Misunderstanding

    If Alice and Bob were both reasonable human beings, if they were on familiar enough terms that Bob lending Alice his car for a day was probable, and if it did just so happen that Bob forgot or Alice misinterpreted something he said for permission, they would be able to settle things outside of court.

    The fact that it escalated this far would indicate something more complicated than a case of "he said, she said." Ideally, it is then the job of the court to uncover the truth. Can Alice recall when it was that Bob gave her permission to borrow the car? Does either one have control-freak tendencies? Is there some past history to take into account? A plausible alibi is not a get-out-of-jail-free card. It has to be examined in light of everything else they know about the case.

    As for rape, considering how much trouble it is to get a conviction, what does anyone have to gain by falsely claiming that somebody raped them? Perhaps there are some horribly misguided souls that think any attention is a good thing, even if that attention amounts to little more than a whore/liar label. Honestly, give the victims some credit, people. The vast majority just want to see that their abuser doesn't have the chance to traumatize someone else's life.

  • Z

    "As for rape, considering how much trouble it is to get a conviction, what does anyone have to gain by falsely claiming that somebody raped them?"

    I wonder this every time I hear that argument. Less than 6% of people who (commit/are charged with, I'm not sure) rape actually end up in jail. A lot of rape victims have to deal with victim-blaming and, particularly in trial, the defense grabbing at anything about the person to convince the jury that "she was asking for it" or prove she's lying. Not a pleasant experience.

    There are some people who'll do about anything for attention- but most people don't want to go through the trouble if they don't have to.