“There’s a problem with consent? Eh?” I hear you ask. Well, I don’t, this is the internet and no one hears you gasp in surprise on the internet, but you know what I mean.
Yes, there is.
The problem is this: “consent” is a concept which was invented by men who make the law (because women on the whole, still don’t make the law, its terms, concepts and assumptions are pretty much decided from a male point of view ) and those men tend to be unaware of their own privilege and women’s experience and when that experience is brought to their attention, pretty much dismissive of it.
The first problem with consent, is that it focuses on the actions and behaviour of the victim. Did she consent? Not: what did he do? How did he do it? Why did he do it? What steps did he take to ensure that she wanted him to? But: did she consent? So it continues the long tradition that rape has had, of ensuring that the starting point for any investigation, is not the behaviour and actions of the alleged perpetrator, but that of the victim. So far, so bad.
Now let’s consider what consent really means in a sexual context. I looked it up and the words used are: permission, approval, acquiescence, agreement, compliance.
Am I very high maintenance? See, I have never consented, permitted or complied with penetration in my life. Whenever my body has been penetrated, I have either been raped or I have actively participated in the event and in fact, I have actively eneveloped as well as being penetrated. I am not a passive recipient of a man’s active sexuality, I am a woman with an equal, active sexuality of my own. Sex isn’t something a man suggests and I permit or grant him; it’s an activity that I engage in with a man as a full, enthusiastic participant.
Our laws on the other hand, have no concept of women as active, enthusiastic participants in sexual acts. Our laws go from the starting point, that women are passive and men are active, men suggest sex and women consent or not. And that this is normal. What the hell kind of sex lives do our legislators have? Do they not know any real women? Have they never actually had sex?
This is a problem. If you get a bunch of men making a law, which frames normal sex as something women shouldn’t need to be actively participating in for it to be considered consensual, then you get a law which makes it easy for rapists to tell us, that what they have done is not rape and for us and the rest of our society, to take their word for it. The law goes from the same starting assumption that rapists do: that sex is something men do to women, not something they do with women. Why are our law-makers, allowing rapists to define the terms of the law? Inevitably, if you allow the criminal to define the terms, then you will ensure that in most cases, that criminal can’t possibly be convicted of the crime.
The other problem I have with the concept of consent, is that women are presumed to be in a state of consent the whole time. This is framed as “his word against her’s, she has to prove he raped her, he doesn’t have to prove he didn’t – innocent until proven guilty.” A woman who reports a rape, has to persuade a jury, that she was not in the state of consent which the law defines is the default for women (but funnily enough, not for men, unless they are gay). There are a few exceptions to this; if you are under 16, you are technically unable to be in a legal state of consent, although judges regularly ignore that with derisory sentences for child-rapists. If you are aged 75+, the cultural assumption is that it is reasonable for you to be considered to be not usually in a state of consent, so you have a better chance of being believed than you had 30 years before. If you are pregnant, you are deemed to be allowed to be in a state of non-consent, but it’s not absolutely fool-proof, it helps if you are respectable, white, middle-class, with only one sexual partner - your husband- in your life and have never done anything remotely interesting or exciting as well - being pregnant alone, may not be enough to be let off the constant default setting of consenting to sex with randoms who claim you did. Don't get too complacent, now.
Anyone else who is female, must always be considered to be in a state of consent to sexual intercourse as a default, however inconvenient, unlikely or unpleasant it may be and even if they say they aren’t, unless they can prove beyond unreasonable doubt, that they are not . Short of having witnesses and injuries consistent with extreme force, that’s almost impossible for women to prove. The rape law is completely weighted against female rape victims because of this nonsensical concept of consent
The effect of this, is that 85-90% of women who men rape, never report that rape because they already know that there isn’t the faintest chance of getting justice. Of the minority who do report, only 6% ever see their rapists found guilty. We know that the rate of false allegation of rape is between 2% and 6% (and of those, in half of those cases no individual man is named as a perpetrator) so it’s reasonable to assume that well over 90% of men accused of rape are guilty, but walk free. Added to the 85-90% who weren’t even reported, that’s an awful lot of men getting away with rape.
There are many reasons the overwhelming majority of rapists get away with rape: the prevalence of rape myths; the victim’s fear of being disbelieved (in spite of the fact that there’s a 95%+ probability that you’re telling the truth); the reluctance to face further humiliation and abuse by the legal system; recently, the chance that you will be prosecuted for falsely alleging rape if you end up being part of the 90%+; but the concept of consent as it is currently understood, is surely one of the reasons why the minority of rapists who are actually accused, are mostly getting away with it.