Times & Transcript
27 Mar 2013
Last week, many of us turned our attention to Steubenville, Ohio, as we awaited a verdict in a horrific rape case involving a 16-year-old female victim and two male perpetrators, ages 16 and 17.
After a night of parties, from which the young woman was incapacitated by alcohol consumption, she was assaulted multiple times in multiple ways, and video and photo documentation of the assault was shared via social media. The perpetrators remained unaccountable for a period of time, largely protected by their status as athletes in a small football town. Ultimately, both young men were found delinquent (American courtâs version of âguiltyâ for juvenile offenders) and will face time in a detention facility.
While this is an American case, it does draw attention to problematic beliefs relating to sexual assault that are not limited to the United States. Thereâs a lot to unpack (and be appalled by) in this case, but what I want to dig into is the reasoning behind the young menâs defence presented in court.
The defence argued that the young men were not guilty because the young woman didnât âaffirmatively say no.â There was no denial that the activities occurred (social media prevented the defence from taking that route) and there was no claim that she had actively consented to the activities. Instead, the defence argued that it wasnât rape because she didnât say no.
This sparked outrage amongst many.
The fact is, the victim was intoxicated to the point of being unable to walk and had thrown up on herself. In other words, she was too drunk to say anything, including a clear âno.â Did that mean she consented? No, it meant that she was in a state in which she was incapable of giving consent.
The defence that was presented in this case sharply throws into focus a serious problem with our current model of sexual consent. I am not referring to legal interpretations of consent in the United States or in Canada, but to Western societyâs general understanding of consent, which is that âno means no.â
As a millennial, I grew up hearing âno means noâ and I absorbed a belief in that adage into my bones. I am grateful for âno means noâ and how commonplace it was by the time I arrived at university. I believe that the proliferation of that message was incredibly important in bringing âacquaintance rapeâ out of the shadows and into our collective understanding and public discussion of sexual assault. I also know that it isnât enough.
No does mean no, absolutely and incontrovertibly. But if we rely solely on âno means no,â we encounter problems. Most of us realize that the absence of a ânoâ does not equal consent. However, the idea that itâs not âreallyâ rape unless the victim explicitly said no and fought back is still pervasive. In the case of the Steubenville rape defence strategy, we see âno means noâ pushed to a frightening extreme: if âno means no,â then everything else â including the absence of a no â means yes.
One possible solution to this is to combine âno means noâ with âyes means yes.â The âyes means yesâ model is championed most prominently by American feminist activist and educator Jaclyn Friedman. âYes means yesâ is a slogan that represents a larger conception of sexual consent, known as enthusiastic consent. Under this model, the âno means noâ message is always complemented by the accompanying idea that only âyesâ means âyes.â
The enthusiastic consent model also emphasizes that consent isnât something that is given once and is then considered to be a âdone deal,â but that it is state that must be maintained. Friedman explains that weâve been taught to think of consent as a light switch, you flick it on and thatâs it, itâs on!
In reality, she explains, we need to think of consent as water in a pool. If you want to swim, youâve got to be in the water. If youâre engaging in sexual activity, consent has to be your environment; it has to surround and envelope you. This means constantly checking in with you partner; it means never assuming that because youâve engaged in one sex act, all sex acts are fair game. It means understanding that consent can be withdrawn.
This approach to sexual activity sounds onerous to some people. Some scoff and ask if enthusiastic consent means youâd have to formally ask for consent for every single kiss you plant on your significant other.
To them, I say âcome off it.â The enthusiastic consent model isnât about miring down sexual activity in verbal contracts and agreements; itâs about making sure that the people youâre engaging in sexual activity with are stoked on it. Who doesnât want that to be the condition under which theyâre engaging in sexual activity?!
Centring the âyes means yesâ model right next to the âno means noâ has transformative potential not just for individual sexual encounters, but for society as a whole. Imagine a whole generation growing up being taught that consent (and sexual activity) isnât a thing that you âgetâ and run with, but something that is a continual process that needs to be maintained and valued.
Now imagine that generation as our law and policy makers, as our social commentators, as our school principals. In this future, we may never have to hear about what a victim of sexual assault was wearing or what their sexual history is or if they fought back hard enough. In this future, we may never watch another young woman who was too intoxicated to walk or talk answer the question âDid you actually say no?â This is a future I want.
â Beth Lyons is a Program Manager with YWCA Moncton. Her column focuses on equality issues and social justice and appears every other Thursday.