Rape and Consent: Shifting Burdens   27 comments

We’re facing an epidemic of rape in the United States, and the costs to individual victims and society as a whole are enormous. Based on national victimization surveys, somewhere between 1 in 5 and 1 in 3 women will become victims of an attempted or completed rape at least once in their lifetime (in my circle of friends and acquaintances that number is closer to 1 in 2). The annual victim costs are estimated at a staggering $127 billion (not including child sexual abuse). That’s substantially higher than any other crime. At least 80% of rape survivors suffer from chronic psychological and/or physical conditions as a result of being sexually assaulted. Rape survivors also face a significantly elevated suicide risk: 600% higher than victims of other crimes and 1300% higher than non crime victims. Additionally, the omnipresent threat of rape limits the freedom of ALL women and prevents us from participating in the world as equals.

Yet only a small percentage of rapes are reported and of those that are reported, few end in a conviction. This means that rapists are free to go on raping, creating more victims and destroying more lives.

The rape culture myths addressed in my last post have a lot to do with the low reporting and conviction rates for rape. So does this:

The law presumes women old enough to legally have sex to exist in a state of perpetual consent. Unless you are able to prove beyond a reasonable doubt–a very high standard–that you did not consent to sex, the law assumes that whatever dude came along and forced himself on you had the right to do so.

So you’ve been raped. Being a “good” rape victim, you report the attack to police right away and submit to an agonizing examination of your body and every orifice in the hope that forensic specialists will find your attacker’s semen or other physical evidence. And they do! Congratulations, you have just ensured a consent defense (unless, of course, your attacker decides to plead guilty).

What I’m proposing is that we make a small but important change to the law by making consent an affirmative defense in rape cases. I’ll explain what that would mean and how it would work in a moment. First, though, let’s take a look at the three possible defenses in rape cases, shall we?

First up, we’ve got the “wrong guy” defense. In this type of rape case, the defendant will deny having had any sexual contact with the victim. The defense may not dispute that the victim was raped, but argues that the cops caught the wrong guy. For obvious reasons, this type of defense is most common in stranger rapes, though it is sometimes used in cases where the perpetrator is a very casual acquaintance or where the victim wasn’t able to get a good look at her rapist but believes he is someone she knows.

When you read about guys freed after spending X number of years behind bars wrongfully convicted of rape, it’s always this type of case. In fact, Peter Neufeld from The Innocence Project has said that in every rape case where they freed a wrongfully convicted man through DNA testing there was a real rape victim also denied justice.

This type of defense would NOT be affected by my proposal.

Second, we’ve got the similar but not identical “I didn’t have sex with that woman” defense. As in the previous type of case, the defendant will deny having had sexual contact with the victim, but he may not deny having been with the victim or at least knowing the victim. In other words, it’s not so much that he’s claiming to be the wrong guy as that she is either mistaken (usually as a result of being unconscious or heavily intoxicated) or lying about having sexual contact with him.

This type of defense would NOT be affected by my proposal.

Finally, there’s the consent defense. Here, the defendant admits to having sexual contact with the victim, but claims she didn’t object (enough). Many people believe that this type of defense is seen predominantly in so-called date rapes. Not so. The consent defense rears its ugly head whenever there’s physical evidence proving sexual contact between the defendant and the victim. And because forensic technology is advancing at a rapid pace, we’ll be seeing more rapists rely on the consent defense than ever before.

A victim who’s a total stranger, a victim who was tortured or beaten (hey, she “liked it rough”), a victim who ended up dead–none of this precludes a consent defense. And because women exist in a state of perpetual consent, it’s up to us to prove, beyond a reasonable doubt, that we didn’t consent. It’s no wonder then that rape prevention in this country consists of telling women how not to get raped (hint: it usually involves limiting your freedom and increasing your dependence on dudes) instead of telling men not to, you know, rape us.

But what if women weren’t presumed to exist in a state of perpetual consent? What if consent was an affirmative defense in rape cases?

Affirmative defenses are sometimes also known as justification defenses. The defendant is essentially saying, “I did it, but I’m not criminally liable because I was justified in doing it.” Self-defense is probably the best known example. For instance:

Let’s say Fred tries to rape me and I hit him over the head with a tire iron. Fred goes to the emergency room where doctors inquire about the source of the huge gash on his head. He tells them what I did, omitting the part where he tried to rape me, and they call police. If police don’t believe my side of the story (let’s say Fred is a fine upstanding citizen and I’m a drug-addicted prostitute), I could find myself charged with felony assault or worse. My defense will be that I was justified in hitting Fred with the tire iron because I was acting in self-defense.

Now, here’s the thing: Because self-defense is an affirmative defense, it will be up to me to prove that I was justified in hitting Fred because he was trying to rape me. Fortunately the standard of proof is generally lower than “beyond a reasonable doubt” when the defendant asserts an affirmative defense. So I’ll be okay as long as I can prove that Fred was attacking me (and that his attack justified my actions) by a preponderance of the evidence.

I’m proposing that the same standard apply when consent is asserted as a defense to rape. However, while the victim is currently in the position of having to prove beyond a reasonable doubt that she did not consent, the defendant would only need to prove that he had consent by a preponderance of the evidence.

I have no illusions that this change would single-handedly eliminate our low-reporting-and-conviction-rate problem. It will still be necessary to fight rape culture with its pernicious victim blaming and countless myths and misconceptions about sexual assault. But it would give rape victims–particularly those who’ve gone through the nightmare of a physical examination post-rape only to have their attacker utter the magic words “she consented!”–a better chance than they have now.

Most importantly perhaps, this change would put rapists on notice and go a long way toward shifting some of the burden to prevent rape where it belongs: the perpetrator. If you’re in the habit of engaging in predatory sexual behavior, targeting women who are too intoxicated or intimidated to give meaningful consent, you’ll probably want to alter your behavior. And if you’re the kind of guy who’s terribly concerned about potential “misunderstandings” leading to “false” rape accusations, there’s a simple solution for you: Make sure all your sexual partners are really consenting. Not grudgingly, but enthusiastically!

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27 responses to “Rape and Consent: Shifting Burdens

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  1. Sasha,

    While I admire your creativity, passion, and elegant prose, this is one of the most terrifying blog posts I’ve ever read. You are proposing the criminalization of sex. I understand that you make an exemption for cases in which the defendant can prove that the sex was “justified,” but that would be a minority of cases (I’ll get to why in a minute).

    This would mean that rape would be treated entirely differently than any other crime. Sex is a legal act between two people, as long as both consent. It is the legal and moral equivalent of giving someone a ride in your car. If the person does not consent to be given a ride in your car, we call it kidnapping, but it falls to the accuser to prove that they were kidnapped. They need to either show ligature marks on their wrists from where they were bound, or provide considerable circumstantial evidence of their kidnapping. Your proposal is the equivalent of saying that after giving someone a ride in your car, unless you can prove either with a preponderance of evidence or beyond a reasonable doubt, that you had their consent to give them that ride. If you cannot do that, you go to jail for a decade or so.

    Which brings me to my second point: how do you prove consent? Proving non-consent is, by comparison, easy: bruises, skin under fingernails, toxicology reports, witness testimony, etc. But to prove consent, you need either witnesses or signatures; which do you think would kill the mood more? Frankly, I can’t think of very many women who would be happy if before every sexual encounter, I dragged her out in front of my friends or family and asked her to publicly consent to sexual acts with me (and they would have to be enumerated explicitly, since consent to oral sex is different than consent to vaginal sex, etc.). If we live together, do we have to go over to the neighbor’s every night for her to announce to him her consent to him before we go to bed?

    Contracts with signatures or voice recordings would be mildly more convenient, but still a bit of a hassle I think. And ultimately, I think they would only serve to give more business to expert witnesses who study handwriting and voice falsification. And what about the poor and indigent, who cannot afford legal documents or voice recorders, and people who live in rural areas, who might be hard pressed to find a witness on short notice. No more sex on my camping trips, I guess.

    I know I am engaging in hyperbole slightly, but the issues I raise are serious. And I think women would object as strongly as men, because in my experience, women care about romance and spontaneity even more than men! This proposed legislation would make both impossible.

    I look forward to hearing your thoughts.

    • I don’t know about you, but I LIKE it when my partner screams out “YES YES YES” loud enough for the neighbors to hear. Doesn’t kill the mood at all.

      Your whole bit about proving non-consent, is still operating under the sceanrio of a “true rape” script, which most rapes DO NOT occur under.

      • Yes. Antioch College did institute a code where every student had to ask at every step, once upon a time, but in real life, an affirmative defense burden doesn’t require that. All it’s really likely to do is cause people to make sure the person you are sleeping with actually wants to sleep with you. It might cause some people to behave better afterwards, out of fear their current way of treating people they just slept with could provoke retaliation (unlikely, no matter how big a jerk they are, but hey, if it makes them act less awfully, let’s not tell them). As said in my other comment, I really don’t get this fear a lot of guys have.

      • But when she stops screaming, or even just saying, “YES YES YES,” it turns from consensual sex to rape at her option. After all, Feminists have fairly well established that she doesn’t have to say, “No!” or just “no,” but that positive communication of consent must be continuous. Continual consent isn’t enough. Consent must be continuous, or it’s rape.

    • Over the past few days, I’ve read numerous guys make comments similar to yours. You said “this is one of the most terrifying blog posts I’ve ever read” and Colin at the hollow antagonist (http://www.hollowantagonist.com/2011/07/05/rape-case-logic-and-our-shameful/ ) said Its every man’s greatest fear that he will one day be accused of rape when he didn’t. This propels us to naturally side with the defendant, some sort of pre-emptive sign of support so that when our time comes, we know everyone else will ‘have our backs’. Not that we’re rapists or anything, but that’s entirely the point; the very thing that makes rape a vile, disgusting act is what drives us to backwards conclusions and stupid fallacies, in the name of self-preservation. We’re deathly more afraid of being an accused rapist when we’re not than we are of girls being raped and their attackers getting away with it.

      As a fellow male, I gotta say, I don’t get it. I quite seriously have never once in my life been worried someone will falsely accuse me of rape. And to what I suspect will be the immediate objection “You are just lucky! You’ve never been around any of the crazies out there!” I will just reply, yes, I have. At the top heading of the crazy list is this really attractive woman I met by the swimming pool at the apartment we both lived in. During our date, she “went into a trance” and started talking about how I had to die to make way for the coming of the Christ child, started sobbing, then popped out of the trance and wanted to know why she was crying. And ya know? Didn’t for a second cross my mind to think “Oh crap! What if she accuses me of rape?” I just … don’t get why this is an automatic line of thought for people.

      I mean, as long as you make sure whoever you’re sleeping with wants to sleep with you, and don’t do anything awful and unwanted to her during the process or immediately afterward, this just doesn’t seem like a substantial risk to me. Sure, it *could* happen, and it also *could* happen that your partner will reach under the bed and pull out an icepick during a laBasic Instinct, and it could happen that a sniper is waiting outside your door because some other guy pissed off the mob and they accidentally gave him the wrong address, or that you’ll get in an argument with a dude on parole for armed robbery who will plant a bomb in your car that will go off when you turn the ignition key. All of these things are possible, but none of these things is very likely. Going through life worrying about them seems a big waste of time. On the other hand, rape is ridiculously common. I’m pretty sure there’s not an adult living in the US who doesn’t know a rape victim. I’m going to agree with Sasha and say about half the women and girls I knew (at least when I was younger and had a wider circle of friends who confided to me in great detail about their lives) were the victim of some sort of sexual assault. And for those of my friends in high school that this happened to, I usually knew and was on friendly terms with the guy as well, at least prior to finding out they were a rapist. These were not “stranger jumping out of the bushes” scenarios (tho one guy did rape two different girls at gunpoint, both on dates; when I asked him about this his response was “Those bitches got problems.” Dude might as well have waved a red flag at that point (and in case this doesn’t sound as bad to you as it does to me, there was body language and hesitation and surrounding behavior that all pointed to him being a lying sack of shit and them telling the truth. We weren’t friends after that.

      A lot of guys love smearing the victim and making a fetish of the “women lie” stuff cause they are rapists or potential rapists themselves. (remember the survey at … I think it was Auburn University? from a decade or two ago where half the male students, while saying they would not rape anyone, did say they would force sex on someone they really wanted if they could be 100% sure of getting away with it). But the other 50% of guys, who both don’t rape and would never rape, why so many of them seem to along with making this crime next to impossible to prosecute unless the victim has a spotless record and was thrashed within an inch of her life, or go so far towards excusing the rapists themslves? I’m going to guess they too are terrified of being falsely accused themselves.

      To which I’ll quote the hollow antagonist post again: To me, this stance, although understandable as an initial sub-conscious thought, is entirely indefensible as a reasoned position. Still, to this day, a vast majority of men will argue this having given it a large amount of thought time. Once again, the word is indefensible.

      I mean, really, how many women have you been friends with in your life? How many would DO something like that?

      And in any event, “affirmative defense” standards vary from district, and as a practical matter, this would only make a difference in a tiny percentage of cases, the ones where the jury was pretty sure the guy did it but had just enough doubt, probably primarily due to the horrible “women lie” / “woman scorned” myths out there. A change in burden would really put the actual burden, the actual evidence needed to convince a jury, still at a higher REAL threshold than is usually applied in most “beyond a reasonable doubt” cases.

      I meant to say more but this is already long enough as is.

      • Thank you for that comment, mojave_wolf. I know a number of guys who aren’t afraid of being wrongly accused of rape by their sex partners, so this is by no means a universal male fear. Nonetheless, it’s clearly very common. IME, the guys who don’t live in mortal fear of wrongful rape accusations are significantly less likely to have views of women informed by sexism, misogyny, and gender essentialism (the idea that men and women are naturally very different, and women are these strange creatures who do things for reasons completely alien to rational beings).

        They also have a much better idea of how hard it is to file rape charges (particularly when evidence must be retrieved from inside the victim’s body), the high personal costs involved in going through with a rape case (grand jury testimony, depositions, court appearances, a possible trial–all of this takes an enormous toll on the victim’s life, job, and relationships), and the slim chances of a conviction.

        Then there are the reactions from the community, including friends and family. Many guys who are deathly afraid of being wrongfully accused think that they’ll immediately be shunned by all if they are accused of rape, but of course that’s not what happens at all. Particularly in cases where consent is the issue, the typical reaction is that the victim is a lying witch out to ruin a good man’s life. At best, people will think the whole thing was a misunderstanding (and she’ll still be accused of destroying an innocent man’s life). There’ll be lots of victim blaming and there may be threats from the rapist, his friends and family, or random dudes in the community who are convinced the victim is lying. Fun times! Not.

  2. You’re assuming that women give enthusiastic consent to sex and then turn around and accuse their partners of rape just because filing police reports and undergoing forensic examinations is so much fun. If your partner is into it as much as you are, why in the world would she accuse you of rape?!?

    Now, the kind of guys who make a sport out of manipulating women into sex or preying on intoxicated women might have some problems. And even that is a “might” because most women won’t want the scrutiny that comes with a criminal proceeding.

    But okay, let’s assume that a guy has the enormously bad luck to sleep with a woman who seemed normal but is actually so unbalanced that she would accuse him of rape just for the hell of it. How would he prove he had consent? We would be having the same debate we’re having now, except that the burden of proof would be reversed and the standard would be lower. The victim would still need to testify and her story would still need to make sense. Credibility would still be a huge factor. Lack of bruising or drug residue would still benefit the defendant.

    After all, how would I prove that I was justified in hitting Fred with the tire iron because he was trying to rape me? I’d have to tell the jury what happened and hope they believe me instead of Fred. If I’m lucky, Fred will have a history of attacking women. If not, I have to hope that my lawyer can catch him in a lie when he testifies.

    No more sex on my camping trips, I guess.
    You seem to be assuming that women are just dying to accuse you of rape. Why? Do you really think the only thing preventing your sexual partners from pressing rape charges against you is that they currently have the burden of proof? I sure hope not.

    But if you’re totally paranoid, you can always opt to sleep only with women you know very well and trust. I know it sucks, but it doesn’t suck nearly as much as being raped by a guy who knows he’s going to get away with it and then suffering from debilitating PTSD, panic attacks, and suicidal depression for the rest of your life.

    Don’t worry though. What I proposed in this post will never happen. Women will remain solely responsible for preventing rape and men will continue to rape us knowing they’ll get away with it. How do you feel about vigilante justice?

    • @ Sasha:
      You are saying that very few women would file a false rape accusation because a rape trial is such a horrible experience. I believe you. But isn’t this something we are trying to change? Aren’t we trying to change the fact that rape trials are horrible experiences for the victims?

      And aren’t we also fighting for the notion that consent can be withdrawn at any time during sex? So your proposal would mean that an accused person would have to proof not just that consent was given, but that it was never withdrawn. That seems very tough.

      It seems to me that this prosposal is trying to fix a broken system not by repairing it, but by making a few extra breaks so that it all seems more or less straight upon casual inspection.

      Given the rarity of false rape accusations, I’m not worried that your proposal would lead to a flood of false convictions. And it would have with reducing the number of unjust acquittals. But I feel there are better ways of doing that. Fighting rape culture, making sure women are supported when they file rape charges, making sure society doesn’t automatically side with the accused, etc, etc. Removing sex from its schizophrenic pedestal of being both holy and dirty would be an important step in that.

      I want to live in a society where sex is viewed no different than any other voluntary transaction between people. And I want to live in a society where a rape charge is treated no different than any other criminal charge. Your proposal, while well-intentioned, seems to do the opposite.

      • Unfortunately I think filing rape charges will always be very difficult, just because of the nature of the charges. Many victims have trouble talking about their sexual assault even to a rape crisis counselor, whom they know to be 100% sympathetic. Having to describe in excruciating detail exactly what your rapist did to you, while he’s sitting right there and his attorney makes you out to be a liar–that will always be painful. And that part really can’t be helped. Defense attorneys must be able to thoroughly cross examine the state’s witnesses.

        Then there’s the physical examination post-rape. Having to remove your clothes so total strangers can take photographs of your naked body to capture any bruising, tearing, cuts, burns, bite marks, etc. is very difficult for someone who’s just been raped. Then all orifices forcibly penetrated by your rapist must be penetrated again to collect evidence. That alone will keep many victims from coming forward (or at least from coming forward in time for physical evidence to be collected). All of this would add up to a horrible experience even if we’d managed to completely transform our rape culture.

        I agree that fighting rape culture must be priority #1. And if we get to the point where rape victims are treated like other crime victims and rape is treated like other crimes, we can always decide to ditch the special accommodations.

        Special victims units, rape shield laws, newspapers voluntarily withholding the identity of rape victims–there are people who argue that none of these should exist because they perpetuate the idea that rape isn’t like other crimes and rape victims aren’t like other crime victims. The problem, of course, is that all of the preceding exist precisely because society treats rape differently. Eliminating rape-specific laws and practices before we’ve dramatically changed the culture that makes them necessary will only benefit rapists.

    • Sasha,

      “If [people] were angels, no government would be necessary.” -James Madison

      Our judicial system is based on the premise that we shouldn’t have to “trust” anyone. As long as I don’t break the law, I should have to prove nothing in order to remain a free man. In the world you posit, there is no one on the planet I would trust to sleep with. As soon as I slept with a woman, I would be giving her complete power over the rest of my life (at least until the statute of limitations expired on our last sexual encounter). I would not trust anyone with this. It’s not that I think that women are dying to accuse me of rape; I have always had enthusiastic consent with all of my sexual experiences. But I’ve never collect evidence of it, and don’t plan on it in the future. Women do falsely accuse men of rape, and your idea would empower such women (rare though they may be) to have virtually unlimited control over anyone they sleep with.

      If it makes you feel better, our paternalistic culture is largely to blame for this: some women, fearing being labelled a slut or hussy by their community, claim to have been raped to avoid social ostracisation. The disgusting double standard regarding sexual promiscuity should, in my opinion, be one of the highest priorities for the feminist community.

      Your car theft comparison is pretty weak, I think. It is just reality that some crimes are solved through physical evidence, and some are based on witness testimony. Credibility is always a factor in witness testimony. The laws aren’t “rape specific,” they are testimony specific. I guarantee that if there were a car theft case that was based on witness testimony instead of physical evidence, the tax history of the witness would make an appearance.

      And frankly, I’m not willing to give up my right to sleep with women I don’t know well or trust, and nor do they plan on giving up their right to sleep with me. Consensual casual sex with people I barely know is part of my pursuit of happiness, and since it infringes on no one else’s rights, it is constitutionally protected. Your de facto criminalization of it would be enough for me to move to a different country. Your law would have a chilling effect on America’s vibrant sexual community.

      Ultimately, our difference of opinion in this matter hinges on our different interpretations of the consensual sex. I see sex as equivalent to giving someone a ride in your car: if they want to prove they were kidnapped, they’d better have some evidence. You see sex as equivalent to punching someone during a boxing match at the gym: if they go to the police station with a fat lip, it’s up to you to prove that you were in a boxing ring, rather than on a street corner. Frankly, yours is a pretty dark view of sex. I’d be curious to know your familiarity with and opinions on the views of some of the “anti-sex feminists,” like Catherine McKinnon and Andrea Dworkin, who argued that all heterosexual sex was inherently violent and degrading for women.

      • No, James, I don’t have a dark view of sex. I have a dark view of rape. Unfortunately the misconception that rape is just sex is a common one and may be partly responsible for the way rape is routinely trivialized. It’s probably also part of the reason that almost every rapist getting away with this life-altering/destroying crime isn’t considered a national emergency. What’s the big deal? It’s just sex!

        The current presumption in every rape case where the consent defense is used is that the victim is a lying bitch who willingly had sex and is now out to destroy an innocent man’s life. That almost explains some of the venom and threats routinely unleashed on victims.

        And make no mistake, rape victims are treated very differently than other crime victims. I picked car theft off the top of my head, but feel free to substitute a violent crime instead. There is no other crime where the victim must be a virtual saint to see justice, and huge segments of the population automatically side with the defendant, harassing the victim and threatening to rape and kill her. Look at the case of the 11 year-old Texas gang rape victim mentioned in the other thread. She’s 11! Consent isn’t even an issue. But the town’s people and the media coverage have been squarely on the side of the perpetrators. She’s had to change schools and move because of all the death threats she’s been receiving.

        That’s the other thing. You seem to be under the impression that this change in the law would make every rape case where sexual contact is proven to have occurred a slam dunk for the prosecution. Hardly! Jurors who buy into rape myths will still be easily persuaded that the victim is a liar, which is why fighting rape culture must be our main focus.

        And that means fighting misogyny. Because the idea that women would happily consent to sex and then turn around and accuse their partners of rape is rooted in misogyny. The woman scorned, the vindictive bitch, the gold-digging whore–these are misogynist tropes. False rape reports are no more common than false reports of other crimes (they may actually be less common when we account for the fact that many complaints are dismissed as unfounded due to rape myths), but from the way people respond to rape allegations, you’d think at least half of all reports are false!

        So we’ve got a terrifying, dehumanizing crime that leaves most of its victims with chronic problems, and we’ve got a situation where the vast majority of these victims don’t even report the crime, in large part because they believe it would be futile. Of the victims who do report, only a tiny minority will see their rapist convicted. Not surprisingly, this tells rapists that they have nothing much to worry about if they continue raping. I would like to give them something to worry about. You, on the other hand, are far more concerned about the tiny number of false reports (many of which don’t even accuse a specific person or, when they do, there’s no evidence of sexual contact) than the epidemic of rapists getting away with their crime.

        As for MacKinnon and Dworkin, yes of course I’ve read them (though it’s been a while). As far as I recall, MacKinnon never said that all heterosexual sex is inherently violent and degrading for women. As for Dworkin, she did say that penetrative intercourse (not just the heterosexual variety) is inherently violent. She did not say that heterosexual sex is inherently degrading to women (unfortunately many men seem to disagree with her on that; see their disregard and contempt for women who’ve had a lot of sex), and she definitely didn’t say that all heterosexual sex is rape (as anti-feminists like to claim).

        I don’t think penetrative sex must be violent, though it certainly can be and frequently is (using the following definition of violent: “Acting with or marked by or resulting from great force or energy”). Note that that’s not necessarily a bad thing. It all depends on what you and your partner(s) are into. Nor do I think of heterosexual sex as degrading to women. Those are the views of misogynists and anti-feminists. The kind of guys who start disrespecting a woman as soon as she sleeps with them. The dudes who call women with lots of sexual partners “sluts” and “hos.” The dudes who watch porn that portrays sex as a dirty, disgusting, degrading activity that turns women into “cumdumpsters.” They’re the ones who think of heterosexual sex as degrading to women. Not feminists.

      • I’m not willing to give up my right to sleep with women I don’t know well or trust

        See, and that is really the crux of the matter. Because of course you wouldn’t have to give up on casual sex at all. All you’d have to do is assume the risk that in the extraordinarily unlikely event that someone you sleep with ever accuses you of raping them (and as long as you’re not actually raping people that risk is truly infinitesimal), it will be more difficult (though by no means impossible) to be acquitted. False accusations, particularly ones involving consensual sex partners, are exceptionally rare. But you know what isn’t rare at all? Rape. And that’s in large part because, the way things currently stand, rapists can pretty much rape with impunity. Particularly if they rape a date or acquaintance. As women, we live with that risk every day of our lives.

        So while you have an infinitesimal chance of being wrongly accused by a consenting sex partner, the women you care about have approximately a 1 in 4 chance (possibly higher) of being raped. You could reduce that risk and give them the opportunity to actually hold their rapist accountable in the event that they are attacked. But you’re not prepared to do that. Your male privilege allows you to say, “my right to having a teensy bit more peace of mind (that comes from knowing that proving rape is almost impossible in most cases) is more important than your right not to be raped or to hold your rapist accountable if you are raped.” Because of course you’re not the one who’s going to be raped.

      • “You just hate sex” argument.
        http://www.snopes.com/quotes/mackinnon.asp

      • Sasha – I agree with you to be falsely accused of rape is unlikely and that, like most crimes, perpetration is more of a problem than false accusation.
        However, you have conceded that false claims do exist. The person you are forgetting is the unlucky person who is falsely accused. To be falsely accused of something so disgusting as rape is unquestionably horrific – made worse because the defendant knows the false accuser can withdraw their accusations but chooses not to.

        It is absolutely no comfort to the falsely accused that they are a statistical anomaly. Complaints, charges and court cases are awful experiences for genuine victims and the falsely accused.
        The legal system must treat everyone fairly and it should not jeopardise the rights of the innocent due to the statistical probablity of their guilt.

  3. Oh, forgot to mention. You say, “This would mean that rape would be treated entirely differently than any other crime.

    Rape is already treated entirely different than any other crime. If you’re a victim of car theft, no one gives a damn that you cheated on your taxes.

  4. Hi!
    I really like your take on this, even though I’m already familiar with yes-means-yes standard of consent.

    Your male privilege allows you to say, “my right to having a teensy bit more peace of mind (that comes from knowing that proving rape is almost impossible in most cases) is more important than your right not to be raped or to hold your rapist accountable if you are raped.”

    Wouldn’t have said it better. Being male, I never understood the fear of being falsely accused. Likelihood of a false accusation vs. likelihood of being assaulted. Number of false accusations vs. number of serial rapists outside jail. To value the comfort of making sure a slightly bad thing which virtually doesn’t happen doesn’t happen to you, over a very very bad thing which happens to lots of people all the time not happening means absolute abandonment of empathy. Which lies at the heart of prejudice.
    It’s what enables men to see rape as sex in the first place and to imagine women being in a state of perpetual consent. But women aren’t in a state of perpetual consent. This is simply a fact and that’s why it needs to be acknowledged by law even rape wasn’t such a common crime which it is.

    Men who imagine women to be in the state of perpetual consent obviously fail to distinguish rape from sex, and thus are rapist wannabes even if they didn’t rape anyone. Adopting affirmative consent as a legal standard should be aimed not only at sentencing criminals, but for social impact just as well. What ‘clueless dudes’ do deserve is a chance to question themselves.

    @not having anonymous communication-free sex and car metaphors
    Requiring people to make sure they’re not raping someone is somewhat like requiring drivers to make sure they’re sober. You may drive drunk and not run anyone over, but driving while drunk means you leave it up to chance whether you hit someone or not, and that’s considered antisocial and vile to such extent that we’ve agreed to criminalize the mere instance of not-caring. And rightly so, even though it means I’m not getting drunk tonight.

  5. I’ve often brought up Twisty’s thought experiment that the default consent status should be no. You have to trust anyone in order to ever have sex, because the default assumption is that they didn’t consent. (I even brought it up to my dad, who thought it a very interesting proposition.)

    I like this more subtle shift, though. And I do know the exact kind of ambiguous situation that causes men to freak out about this, and I still think the tradeoff of my peace of mind for some equity is a good one.

  6. To value the comfort of making sure a slightly bad thing which virtually doesn’t happen doesn’t happen to you, over a very very bad thing which happens to lots of people all the time not happening means absolute abandonment of empathy. Which lies at the heart of prejudice.

    Well said. And it’s this same lack of empathy that allows some men to commit rape. The same disregard for victims and prioritizing of one’s own desires over another’s right not to be sexually assaulted.

    James writes, “In the world you posit, there is no one on the planet I would trust to sleep with,” but it doesn’t even occur to him that in the world he currently resides, every woman who ends up alone with him (whether by choice, by accident, as part of her job, whatever) must assume the FAR greater risk that he could rape her and then claim she consented. And when that happens, the law will presume that she’s a liar who willingly had sex, and it will be virtually impossible for her to prove otherwise. Most likely she won’t even try.

    • The law comes from another direction: that the accused rapist is NOT GUILTY unless PROVEN guilty beyond a reasonable doubt. Just her bare accusation doesn’t prove anything. It doesn’t prove that she accused him falsely. It doesn’t even prove that she has had any sexual contact with the accused.
      Often called the “presumption of innocence.”

  7. LC,

    The “ambiguous” situations you refer to are exactly what I think we’d see substantially less of if consent was an affirmative defense to rape, simply because dudes would have far more incentive to make sure their partners really want to have sex. Basically this proposal would give the enthusiastic consent/yes-means-yes standard of consent some teeth.

    I think it would also improve the reporting rate (because the law would no longer presume victims who can prove sexual contact to be liars) and gradually increase the conviction rate (though not as much as some people think, at least not without simultaneously dismantling rape myths). The biggest shift, though, would occur in who is responsible for preventing rape, which currently is widely viewed as solely the potential victim’s burden.

  8. Basically this proposal would give the enthusiastic consent/yes-means-yes standard of consent some teeth.

    I’m inclined to agree.

  9. In India, rape in police custody, once far more widespread, has greatly decreased (on some accounts) precisely because the burden of proof was switched to the defendants.

  10. Pingback: Does Your Number (of Sex Partners) End in a 0 or 5? | My Sex Seeker Blog

  11. I’m not sure if anyone will read this or care, but I am a victim of rape and sexual assault. I knew who did it, it happened more than once but because it was my partner at the time what was I going to do? Rape is a vile, dehumanising crime regardless if you know the person or they are a random stranger. The effects stay with you even if they didn’t break bones or leave physical scars. It took me 6 years of abuse and then 3 months to finally go to the police, then when I did it was left to me to prove that it had happened. Because I wasn’t assaulted the week before with bruises or witnesses, it was left to me to prove HIS guilt! Might I also add at this point that HE had admitted on more than one occasion to other people that it was HIS right, HE has needs! He will more than likely admit it to the police because he is that arrogant and ignorant that HE actually believes it!!! Since speaking out about what happened to me I have been shocked at the response from society in general. I have gone through sights on the web, spoken to lawyers, police, my friends and support agencies to just have someone listen without and kind of judgement, but they are few and far between. While I spend each day (not because I have nothing else to do) wondering what is going to happen, what will HE say, how do I prove this, he is sitting back living his life in pure ignorant bliss. I am the one researching solicitors, seeking intervention orders to keep him away, having nightmares and lashing out in my sleep.THIS IS AFFECTING ME EVERYDAY AND STILL THE BURDON OF PROOF IS ON MY SHOULDERS? Switch it the other way. I didn’t realise till I tried to get help how harrowing and evasive the process was. Would I still go through with the whole legal process if I DID know how hard it was going to be? HELL YES!!! The shame I felt about not telling anyone was still felt but it has helped me talk about it and move forward. It will never be completely forgotten but I don’t want it to define me. What is needed is education in the community from when kids start school, there also needs to be male education. I am not at all anti-men, I know who did this to me and they are solely responsible, but men just don’t know what is and isn’t acceptable. Whether they are married, defacto, separated or just ‘have needs’, they need to know where the line is and if in doubt just don’t go there! Women also need to be educated. Rape isn’t just perpetrated by a random pervert in the park at midnight, it can be anyone. Statistics show that is more than likely to be someone you know. Just because we become ‘adult women’ in the eyes of the law at 18 (in Australia) and can legally consent to sex at 16, does not mean that we have less rights or are entitled to advocacy and support. Instead of feeling ashamed and to blame for what has happened to us, we should be encouraged to speak out against these types of crimes.

  12. Pingback: TEA Party Republicans Outraged Over Bill to Require Consensual Sex |

  13. Guys, not only do you need to be certain that she REALLY, REALLY consented, which means that she hasn’t consumed any alcohol or other mind-altering drugs and doesn’t have any in her system, you need to be certain that she will still have consented tomorrow, the next day, the next week and the next month.
    As long as fornication (extramarital sexual contact) is legal, or decriminalized, consent must be presumed in the absence of contrary factors.

  14. Someone said men are deathly more scared to be an accused rapist instead of being an actual rapist that got away with it?! WTF?! I cant tell who is more disturbing, the commentor or the writer here?!
    Well, where to start?
    Basically, the rape laws need to change bc proving consent by the victim is ridiculous. Isnt the report one step in showing you did not give consent or agree?! Furthermore, how is an unconscious rape victim to prove this beyond a resonable doubt without somehow being psychic?!
    Please be sympathetic about this issue. We all have friends who we know that have been a victim, some of us even know the perputrators.
    This is not an issue for people to debate, something needs to change proactively for the legit victims in these cases.
    You dont fix rape issues by making the rape laws easier for the defendent? Im sure the amount of government spending is the reason why this ridiculous law exists now in the first place. Lets just make the rape cases “disappear” by not enforcing justice and prosecuting these sick fucking people before everyone is voiceless!

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