Trigger Warnings

Some of my posts deal with rape and that means that bits of this blog may be triggering.

Saturday, 2 June 2012

What's wrong with consent?

“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.

17 comments:

  1. I broadly agree - our rape law is, to put it mildly, inadequate, and favours the rapist over the victim. That isn't the only, or even the main reason, why rape convictions are so low - that's due to broader cultural and social problems that changing the law wouldn't affect. But it would be a good start.

    So, I have to ask... what would a more pro-victim rape law look like? It's not enough to say the current law is bad, it should be possible to come up with alternatives. Perhaps it should simply require the accused to prove beyond reasonable doubt that the alleged victim was consenting, rather than requiring her to prove that she wasn't. But as you say, part of the problem is the whole way 'consent' is defined under the law - it's an artificial construct which doesn't always line up with real life, and reinforces a certain ideological view of sex. So how can that be addressed?

    I feel just as unhappy with the current rape law as you - well, alright, maybe less so, since it isn't likely to affect me directly. But I also feel it's necessary to move from general problems with it to specific proposals for change. I have to say I don't know what a more pro-victim law would look like, how the concept of 'consent' could be handled less problematically. But I'm open to suggestions.

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  2. Good question Alasdair. I guess a more reasonable rape law would do away with the idea of consent altogether and have a higher bar of what level of involvement a person had in the event, to be considered actively participating in it. This would mean that a defendent would be questioned about how he knew that a woman was willingly participating in what he is calling sex and she is calling rape.

    This might not be a perfect solution as some couples who play sex games where passive/ active roles are employed, or where there is a pretence of resistance or reluctance from one partner, would still have the same issues as current rape victims have (a defendent could claim that these games were part of normal sex play and he'd mistaken reluctance or refusal for role-play) but it would address those rapes where a man ludicrously claims consent but has no sexual history with a woman, which would make his claim credible to anyone who isn't steeped in rape-myths.

    I agree with you that a change to the rape law by itself would not be a panacea; there have already been a few changes recently, which have in fact introduced the principle that a man who wants to penetrate a woman's body needs to take reasonable steps to ensure that she consents to that penetration (and remember the hoo-ha that change caused! The idea that men should actually take some responsibility for ensuring they didn't rape someone was greeted as if they were being asked to achieve the labours of Hercules!)

    Long term, we need much more education about rape and sex, we need to teach boys that they don't have a right to have sex with women and that they are responsible for preventing rape (by not doing it). This is not a message which people want to hear because it goes to the heart of power relations between men and women; women have traditionally been responsible for keeping their "virtue" and there has been an assumption that men have the right to break down boundaries in order to get that sex which a woman gate-keeps. (Sex being seen as a prize women jealously guard and men have to try and get hold of and if they manage to and the woman doesn't like it, it's her own fault for not being careful enough with the prize.)

    Those cultural assumptions are still so strong, that even the recent re-write of the law hasn't filtered through to public attitudes and discourse, hence the outrage in some quarters about the jailing of Ched Evans, who is seen as merely doing what men do: getting sex from a woman who didn't do a good enough job of guarding it closely enough. The outrage is that her bodily integrity is being prioritised over his right to get the prize and many people are still bewildered by this long overdue change of priorities, a change which is based on a completely different set of assumptions with which those people are not familiar as they have no cultural resonance as yet.

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    1. I would also like the standard to change to consent is active participation from all parties, not just permission. I could see how even in an "innocent until proven guilty" situation that the prosecutor could then show how the plaintiff did not actively consent rather than yes, he was aggressively rapey.

      I must defend BDSM where it supposedly is grey. There is such thing as safe words to prevent the confusion of assumed consent just because "no" isn't the nonconsent word. This problem occurs in vanilla relationships as well, hence how a spouse can rape their own spouse, by assuming that the relationship implies consent. Unless the couple established that consent could be assumed in said situations, the standard for consent should change to actively establishing the way to ask as well as reject consent, the specific cues per relationship will recognize.

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  3. this comment is actually for your "how i became a rape victim" post, but for some reason i can't post it there.

    i was stunned to read this. you're walkthrough of everything really opens my eyes and helps me make sense of my own experiences. this is what people should know about rape. every part of it. if this was published, i wonder how many women would realize how true this is, and change people's view on how society defines rape and how rape actually is, in every vague, every calculated, every forgiven-by-the-masses detail. i really think that something like publishing the truth of it like this would make way for change.

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    1. Thanks Cori. Feel free to share on your social networks, the more people who question their assumptions about rape, the better.

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    2. I also couldn't post there.
      It had taken me a long time to come to terms with what happened to me at fifteen, and the person I became because of it - I've never heard of anyone else reacting like that sexually, which cemented the knowledge that I 'was always just going to have been that sort of girl', and that it was expected of me. Reading that post was like reading my own life.
      I haven't cried for years, if ever, over how it began seven years ago, but I cried today, though. It feels like I'm finally allowed to. That I'm still a valid person/woman/human. Not despite it necessarily, but because of it, too.
      I can't get across on the internet how much this means to me, all I can say is... Thank you.

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    3. TakemetoVegas, I'm glad this helped.

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  4. My ex wife accused me of multiple rapes. I was arrested, detained and questioned. I was able to show that on certain of these occasions no rape could have been possible, for a variety of reasons. Circumstantial evidence pointed to no rapes having ever occurred. I have had all my arrest records, DNA etc destroyed by the police as they are certain that no crime was committed. Only a few hundred people a year have this happen, out of nearly 1.5 million arrests.

    There are numerous reasons as to why she would benefit by making a false allegation. These were brought to the police's attention.

    My ex-wife has never been interviewed about her false allegations, let alone be arrested, charged or prosecuted. The police recorded this as a rape, and have not recorded this as a false allegation. This is one of the reasons why only 6% of rape 'perpetrators' are convicted, and why there are so few cases of false allegations recorded. I'm not going to push for prosecution because the children have suffered enough from their mother's actions.

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    1. Well arealvictim, that little anecdote is completely irrelevant to the subject of the post. This is a post discussing the concept of consent, about which you have not commented. However unpleasant your experience, it is incredibly rare compared to the experience of women actually being raped or sexually assaulted - 25% of women experience rape or sexual assault in their lives, 1 in 9 women actually get raped, most don't report it (only between 10 and 15% ever do) and all the research which is taken seriously by police, prosecution services and people who actually know about rape, are absolutely consistent that the rate of false allegations is around 4-6%, possibly even as low as 2% and of those false allegations, in half of cases the person making the allegation has mental health problems and/ or does not name a specific perpetrator.

      That means that between 94 and 98% of rape allegations are true and while there will be a tiny minority of men out there who are subjected to false allegations of rape, that problem is an anthill compared to the mountain of actual rape that takes place and goes unreported and un-punished.

      This is the blog of a rape victim who in common witht he other 85-90% of us, never reported her rape. I am not interested in engaging with men who want to take about false allegations. You have the rest of the world to do that, you will be listened to sympathetically out there, while rape victims are silenced. If you post any more rape myths on my blog, I'll delete them and block you. For your assistance, here are some of the most common rape myths here:

      http://www.rapecrisis.org.uk/mythsampfacts2.php

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    2. HerbsandHags, if you are going to delete my posts, could you please have the courtesy to delete them all, or at least leave them and state your points where you disagree, and let others judge the merits.

      You do make valid points, but if you're going to be selective in what you allow to be posted you do detract from the merits of your arguments.

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    3. No. Like I said, you've got the whole of the rest of the world to give you a sympathetic hearing, while the 1 in 4 women who are raped or sexually abused in their lives are silenced by the deafening din of the minority of men who are either falsely accused of rape, or who falsely allege that they are falsely accused of rape. Men have a hell of a lot more reason to lie about rape than women do, but public discourse doesn't address that.

      Statistics show that only about 4% of rape allegations are false and these are NOT jsut police statistics, they are British Crime Survey stats (generally considered more reliable than police stats) and independent research carried out by universities etc. And yet if you ask most people, they think most allegations of rape are false. It is exactly this perception, that stops women speaking out against rape and that enables men to rape so many of us with so little consequence and so little awareness of what a bloody crisis this is for women. I am not going to allow this tiny little space on the internet, to be yet another space for people to discuss the anthill of false allegations while they ignore the Everest of rape and sexual assault.

      If you want to delete your posts, feel free. If you want to post more, try and make it about rape, not false allegations. This blog is not here to give that crap a platform, sorry about that - you've got the rest of the world for it.

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  5. We need to start teaching boys that it is not simply "no means no" but actually "absence of yes means no".

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  6. Just have to put in a link to a fabulously written article really going into the problems with our models of consent:

    http://radtransfem.wordpress.com/2012/01/10/under-duress-agency-power-and-consent-part-one-no/

    and the second part:

    http://radtransfem.wordpress.com/2012/01/23/under-duress-agency-power-and-consent-part-two-yes/

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  7. Dearest Blogger,

    I've been following your posts for quite some time. I am always inspired and encouraged by your writings. I believe you need a bigger audience and would like to nominate you as a speaker for a TED conference. To do this I either need your information, or you could have a family member or friend fill out this form:
    http://www.ted.com/nominate/speaker
    The world needs to hear your voice.
    Lots of love, L.

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  8. I'm not sure what the legal definition of consent is here in the United States, as it varies by state, but at my university, the definition of consent in our school code is "Consent is an understandable exchange of affirmative words or actions, which indicate a willingness to participate in mutually agreed upon sexual activity. Consent must be informed, freely and actively given. It is the responsibility of the initiator to obtain clear and affirmative responses at each stage of sexual involvement. The lack of a negative response is not consent. An individual who is incapacitated by alcohol and/or other drugs both voluntarily or involuntarily consumed may not give consent. Past consent of sexual activity does not imply ongoing future consent." It then goes on to list certain situations in which consent cannot be given, including incapacitation, force, and coercion. I always thought this was a pretty comprehensive definition that covers a lot of the holes you mentioned in your post.

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    1. I agree that that's a pretty comprehensive definition Eli, but unfortunately it's a much stronger one that the legal definition under UK law. The law has moved towards a more comprehensive definition in recent years, but public opinion hasn't yet moved with it and it isn't quite as good as the one you've described. Here's hoping we're moving in that direction.

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