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:
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.