A thought has been knocking around in my head for awhile now.
Why do we assume that men consent to rape?
Let me illustrate this with a more palatable scenario.
Let’s imagine we have a man and a woman who are engaged in a mutually agreed upon sexual act. Now, let’s say the man, without the woman’s knowledge or permission, changed the act to something she hadn’t consented to but, for whatever reason, she was unaware.
Let’s further imagine that the sex act they were now engaged in had legal ramifications for the uninformed party. Say the woman could go to jail for a significant length of time and be socially ostracized by her community for having engaged in it.
What level of responsibility does the man have to communicate to his sexual partner that they are now engaged in a sexual activity she did not consent to and has serious ramifications for her future safety and welfare?
Now lets switch things up. Let’s imagine the same scenario except this time it’s the woman withdrawing consent during a sexual activity.
The man is now engaging in a sexual activity–rape–that he has not consented to and has serious ramifications for his future safety and welfare. The woman is the sole arbiter of which sexual activity is taking place–consensual sex or rape. She is also the only one with a clear understanding of which sexual activity is taking place. Her partner is thus reliant on her to inform him, clearly and unequivocally.
What responsibility does she have for ensuring a man’s informed consent to rape?
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No one has any responsibility for informing their partner that a sex act has changed imperceptibly for legal to illegal because such a thing is impossible under the core legal principle of mens rea. This isn’t the middle ages where a person could unwittingly serve a poison apple and subsequently be arrested for murder.
It is also legally impossible to perform a crime that one is unable to consent to. If one is forced at gunpoint to commit murder then one cannot be convicted of murder.
It is, of course, illegal if a person is not informed of lack of consent due to gross negligence (e.g. one partner claiming that they did not pay attention to their partner’s cries of “stop”) or non-consensual, intentional obstruction of lines of communication (e.g. putting on a blindfold and earplugs during the middle of the act.)
This is the way our system at least claims to work.
I have to stop reading these damn gender politics websites. They’re starting to make me paranoid that any sexual interaction I have will land me in trouble unless I have a fucking notarized contract.
Nope, not even a marriage contract establishes consent
It comes back to hyperagency – men are always deemed to be the initators of everything, including sex, so since we always initiate, we are deemed always to be consenting. It’s that simple.
And where the woman initiates or inflcits sex there is no end of hamstering to exculpate her, because after all it would be slut-shaming or something to claim she really wanted it – wait, no – victim-blaming, since when sex goes wrong, only the woman can be the victim.
Iron Lightning,
the question is, what counts as communication of a “stop” during sex. I thought the law doesn’t require the active participant to understand, for the “stop” to be communicated, but the “stop” counts if a “reasonable person” would have understood it.
Those “enthusiastic consent model” people, are muddying the practical meaning of consent and it is not clear how a person, who can’t be counted, on clearly saying “stop”, when she doesn’t want to continue, can be counted on to realise and stop, when her partner silently withdraws consent.
Typhonblue:
The “rape-culture”-folks will love this post.
Two other ways, how one can try to get “raped”:
1. Aggressively pursuing sex while voluntarily considerably intoxicated
2. Conditional consent, with a condition the other person can’t guarantee (like: “we can have sex, but you have to pullout before you come”)
@Gingko
What I mean is why do we assume that men’s default state is “would rape” rather than “emphatically does not want to rape.”
If you conceive of rape, just for the sake of argument, as an extremely degrading sexual act not just for the victim but the rapist, why would we assume that men would automatically consent to be rapists?
@Jupp: The “reasonable person” standard is flawed but necessary since it is rather easy for the perpetrator to strike a ludicrous but impossible to disprove claim of misunderstanding such as: “I didn’t understand that when he/she said “stop” he/she meant for me to halt. I thought that he/she meant to stop fucking his/her genital and start on his/her ass.” Therefore the “reasonable person” standard must be used despite the possibility of corruption unless you have a better idea.
@typhonblue: To answer your question, I believe that this stems from the popular belief of male hyperagency. If a woman decides to withdraw consent even without informing her partner and the man fucking her does not stop then people are want to believe that he must have made the informed conscious decision to not stop as he has all the power.
“What I mean is why do we assume that men’s default state is “would rape” rather than “emphatically does not want to rape.”
Ah.
“If you conceive of rape, just for the sake of argument, as an extremely degrading sexual act not just for the victim but the rapist, why would we assume that men would automatically consent to be rapists?”
You do this to demonize men. You define rape so that it encompasses practically every expression of straight male sexuality. You build on the work of various bodies of superstition and bigotry you inherit from the past and then vehemently denounce those belief systems as cover.
You demonize men so that you can marginalize them. You do it to position yourself as their moral judges so you can exercise control from that angle, and you are aided by the fact that you share a gender identity with those they spent their entire childhoods needing to please.
It’s easy because it fits perfectly with the bsic cutural norms. So then you denounce those in name for cover and call yourself all transgresive and subversive of the order you are perpetuating.
I don’t know if it has been overturned yet but years ago I remember the court system of Quebec upheld making heterosexual group sex illegal in a private residence or sex club because the judge felt it was degrading and demeaning to women so it was impossible for a woman to consent to it legally, no matter how much she may have consented to it personally.
I don’t know if men are presumed to actually be able to consent to demeaning and degrading things or if nothing can be considered to be degrading and demeaning to men under the law. Either way I don’t think most of the men who engaged in group sex or wife swapping realized that the adult women they thought were consenting adults were actually wards of the state. I wonder if that would make the state negligent for putting men in danger of being rapists without their informed consent because they didn’t supervise their wards to prevent them participating in group sex.
[The aim of all this was not to put men in jail for group sex but to make up a reason to close down someone’s private sex club.]
Iron Lightning,
I agree about the reasonable person standard, but it can get messy if the person who wants to stop, doesn’t say “stop”, but something that can be understood as stop, like “is it that late already? Tomorrow I have to get up early.”. Sometimes people just communicate by body language that they want the sex to stop; but what if the partner doesn’t stop? Can you expect everybody to be able to read body language? Then there are women who willingly have sex with men, they are afraid of, and sometimes this fear stops them from saying “no”, like described here:
And finally we got this:
This is apparently something the lovely lady who wrote this piece desires.
In the comments she says:
Now I can buy that these two know, when no really means no, but I wouldn’t trust an outsider to determine whether consent was established in encounters like the one described.
@Jupp: Well, if the person says “is it that late already? Tomorrow I have to get up early.” then the proper response is “Okay, I’ll be quick then.” The first speaker here merely said that he/she had to get up earlier and not to stop which I think would be a reasonable person’s interpretation.
In the case of body language it depends heavily on what that body language is. If one were to start kicking, striking, and clearly trying to escape then yes, stop. If one is wiggling around in some non-obvious discomfort than that is insufficient communication. As people aren’t expert readers of body language any communication through that avenue ought to be very explicit.
Those people (not just women by any means) who are too afraid of their partner to tell them to stop are either too emotionally immature to be having sex or perhaps trapped in an abusive relationship. In the first case this would not be rape and a result of someone irrational fear of physical superiors. In the second case the conditions are such that consent can not be given in the first place (i.e. the “consenter” has good reason to believe that they are under threat of violence as would have to be evidenced by a prior pattern of violence.)
On that last woman who says no when she really means yes this is, as she said, not something you ever want to do unless all the people involve have an understanding. Less that understanding if one partner says to “stop” then you ought to do so. If that partner is not being genuine then that partner will hopefully tell you to resume but he/she might choose to say nothing to avoid the awkwardness. The later reaction is a risk that must be taken but I should hope that it’s not a particularly common reaction.
Now, my friend, I can’t go over every nuance and grey area of consent so use your cognition. You’re a reasonable person after all, aren’t you?
Iron Lightning:
I believe I am, as most people do. But I see again and again smart and relatively influential people, hold opinions which I find unreasonable. That is the problem, “reasonable” is practicalkly defined in a society as what people believe is reasonable. While I agree mostly with what you said about consent, I am not sure how common this view is in your or my society.
@Jupp: Yeah, you’re probably right. I live in the U.S.A. and I expect most people would have a different idea of what constitutes an abusive relationship. I did admit that it is a flawed standard but there’s frankly no better standard that I can fathom.
An interesting scenario and question, but I’m unsure that she has any responsibility in this situation. I believe that there can be a rape (non-consensual sex) without there being a rapist (lack of criminal intent). This is what we’re sating here. He had no criminal intent.
I guess it could be argued that it’s similar to the failure to reduce speed to avoid an accident type ticket. It might not be the drivers fault and the driver may bot have done anything illegal, but if an idiot decides to cross in the middle of the street as opposed to the crosswalk, you’re still expected to try not to hit them.