Bizarre rape defence illustrates better model of consent

March 28, 2013 | Times & Transcript

(This post originally appeared in the Times & Transcript on March 27, 2013 and is reprinted with permission.)

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 court’s version of ‘guilty’ 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. There’s a lot to unpack (and be appalled by) in this case, but what I want to dig into is the reasoning behind the young men’s defence presented in court.

The defence argued that the young men were not guilty because the young woman didn’t ‘affirmatively say no.’ 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 wasn’t rape because she didn’t 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 ‘no.’ 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 society’s general understanding of consent, which is that ‘no means no.’

As a millennial, I grew up hearing ‘no means no’ and I absorbed a belief in that adage into my bones. I am grateful for ‘no means no’ 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 ‘acquaintance rape’ out of the shadows and into our collective understanding and public discussion of sexual assault. I also know that it isn’t enough.

No does mean no, absolutely and incontrovertibly. But if we rely solely on ‘no means no,’ we encounter problems. Most of us realize that the absence of a ‘no’ does not equal consent. However, the idea that it’s not ‘really’ rape unless the victim explicitly said no and fought back is still pervasive. In the case of the Steubenville rape defence strategy, we see ‘no means no’ pushed to a frightening extreme: if ‘no means no,’ then everything else — including the absence of a no — means yes.

One possible solution to this is to combine ‘no means no’ with ‘yes means yes.’ The ‘yes means yes’ model is championed most prominently by American feminist activist and educator Jaclyn Friedman. ‘Yes means yes’ is a slogan that represents a larger conception of sexual consent, known as enthusiastic consent. Under this model, the ‘no means no’ message is always complemented by the accompanying idea that only ‘yes’ means ‘yes.’

The enthusiastic consent model also emphasizes that consent isn’t something that is given once and is then considered to be a ‘done deal,’ but that it is state that must be maintained. Friedman explains that we’ve been taught to think of consent as a light switch, you flick it on and that’s it, it’s on!

In reality, she explains, we need to think of consent as water in a pool. If you want to swim, you’ve got to be in the water. If you’re 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 you’ve 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 you’d have to formally ask for consent for every single kiss you plant on your significant other.

To them, I say ‘come off it.’ The enthusiastic consent model isn’t about miring down sexual activity in verbal contracts and agreements; it’s about making sure that the people you’re engaging in sexual activity with are stoked on it. Who doesn’t want that to be the condition under which they’re engaging in sexual activity?!

Centring the ‘yes means yes’ model right next to the ‘no means no’ 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) isn’t a thing that you ‘get’ 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 “Did you actually say no?” This is a future I want.

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