Yes Means Yes
February 21, 2009 1:37 PM   Subscribe

Moving beyond no means no. The anthology Yes Means Yes brings together writers, male and female, to explore the power of enthusiastic consent and to promote female desire free of coercion. The book has spawned a series of readings, live chats, and some interesting blog responses.

Meanwhile, Twisty at I Blame the Patriarchy takes a more straightforward approach; consent must be given, but never assumed.

The problem with rape, other than the fact that 95% of it is perpetrated by men, always seems to boil down to this asinine controversy over consent. The issue is grossly encumbered with a futile focus on meaningless, temporary instances of the withdrawal of consent, to wit: “she said yes” or “she said yes and then she said no” or “she said yes and waited until two days later to say no” or “she said yes and has been lying about it ever since.” She said, she said, she said.

Well, what if lack of consent were the default? What if all prospective objects of dudely predation — by whom I mean all women — are a priori considered to have said “no”? What if women, in other words, were seen by the courts to abide in a persistent legal condition of keep-the-fuck-off-me?
posted by emjaybee (220 comments total) 22 users marked this as a favorite

 
Default?
posted by koeselitz at 1:50 PM on February 21, 2009


to explore the power of enthusiastic consent

Lukewarm, half-hearted consent is consent, too, right? I would hate to think I've been raping my wife all these years.
posted by jayder at 1:52 PM on February 21, 2009 [22 favorites]


What if people, men included, weren't such whores?
posted by IvoShandor at 1:58 PM on February 21, 2009


I don't know if I entirely follow the suggestion.

Plus, this guy is assuming it makes it to court to begin with, right? What if "the problem with rape" (what a weird phrase) is that it's often not reported at all; we don't even get to the issue of consent in a lot of cases because we don't hear about them at all.

And I'm just going from what I've heard, so correct me if I'm wrong.
posted by ODiV at 2:09 PM on February 21, 2009


You know, I know these gals hate S&M but speaking from the viewpoint of someone who isn't really interested in sex without sadistic overtones, I probably wouldn't go anywhere near a girl unless we spent hours talking about just exactly what I was going to do to her and how it made her feel and exactly what she would do to signal that it wasn't going the way she expected.
posted by localroger at 2:16 PM on February 21, 2009 [8 favorites]


You know, I know these gals hate S&M

Really?
posted by peggynature at 2:19 PM on February 21, 2009 [1 favorite]


The post on Iblamethepatriarchy is crazy nutso. I would assume it was parody if I didn't know better. For example:

A straight girl could still have as much sex as she wants with men, if for some reason she thinks it’s a good idea (naturally I would most vigorously urge self-identified heterosexual women to contemplate the horrific personal and political implications of submitting to male domination in this way.)

and

I grasp that, technically, the plan criminalizes all male participants in heterosexual sex.

Well, what of it?


Oh come on! What a ridiculous post. It's essentially self-parody. It doesn't even work as a Gedankenversuch. It's just... bad.

-David
posted by Justinian at 2:21 PM on February 21, 2009 [3 favorites]


What if women, in other words, were seen by the courts to abide in a persistent legal condition of keep-the-fuck-off-me?

Then, if that were taken seriously by the courts, it would mean that any sort of sexual activity during dating would have to be preceded by a frank exchange not unlike that preceding congress with a prostitute.
posted by Turtles all the way down at 2:22 PM on February 21, 2009 [3 favorites]


Yeah I pulled a Todd Lokken. I was just posting on usenet and forgot to switch gears. Please don't mock me.
posted by Justinian at 2:22 PM on February 21, 2009 [3 favorites]


Peter Griffin: "We all know that no women anywhere wants to have sex with anyone and to titillate us with any thoughts otherwise is just bogus."
posted by Effigy2000 at 2:24 PM on February 21, 2009 [4 favorites]


Justinian: I believe Twisty was using an extreme hypothetical suggestion to make this point:

"I grasp that, technically, the plan criminalizes all male participants in heterosexual sex.

Well, what of it? The set-up now...is that female participants are all infinitely rapeable, because all some perv has to do is say, “she said yes.”


That said, I can't claim to speak for her. That was just my interpretation, but I am a regular reader, and, in my opinion, she is a genius user of hyperbole and rhetoric, but all in the service of making pretty sensible points.
posted by peggynature at 2:27 PM on February 21, 2009 [4 favorites]


peggynature ... poorly phrased, I was of course thinking of iblamethepatriarchy, I somehow doubt you will find a post on her blog explaining her longstanding ties to the BDSM community. And the FP kind of leaves you with that via the quote below the fold.
posted by localroger at 2:28 PM on February 21, 2009


"What if women, in other words, were seen by the courts to abide in a persistent legal condition of keep-the-fuck-off-me?"

Then the burden of proof in rape cases would be misplaced. This doesn't fit with our legal system. And the background assumption that all sex defaults to rape epitomizes why I don't take people that think like this seriously. I'd criticize morebut I'm using an on-screen keyboard.
posted by Inspector.Gadget at 2:29 PM on February 21, 2009 [8 favorites]


That said, I can't claim to speak for her. That was just my interpretation, but I am a regular reader, and, in my opinion, she is a genius user of hyperbole and rhetoric, but all in the service of making pretty sensible points.

Reading some of her comments, it appears she is fairly serious about being a batshitinsane bitch.
posted by Krrrlson at 2:36 PM on February 21, 2009


I say tomato, you say batshitinsane bitch.
posted by peggynature at 2:41 PM on February 21, 2009 [9 favorites]


*calls whole thing off*
posted by jonmc at 2:44 PM on February 21, 2009 [15 favorites]


I can't believe I said "this guy" up there. I read the "gentleman farmer" on the side of her blog and naively assumed it was a blog by a guy who runs a farm.

And then somehow missed "spinster aunt eating dinner"

I think I've spotted a loophole in her proposition. As it stands, the rapist could be off the hook by not having had sex.
posted by ODiV at 2:46 PM on February 21, 2009


Well, what if lack of consent were the default? What if all prospective objects of dudely predation — by whom I mean all women — are a priori considered to have said “no”?

I assume this, and most of the girls I date/try to date end up thinking my politeness is a lack of interest, I am judged "too nice" or some variant, and we end up Just Friends.

It's a fine line. A fine, frustrating line.
posted by flaterik at 2:49 PM on February 21, 2009


At any rate, she later describes the proposition as a thought experiment, which is how I construed it originally.

If it freaks people out so much, as a hypothetical suggestion coming from a presumably insignificant blogger, then might I gently suggest a nerve has been hit? And that it might be worthwhile to carefully read and digest the linked posts?
posted by peggynature at 2:49 PM on February 21, 2009 [2 favorites]


This comment thread to Twisty's post is awful and funny. I'd quote it, but every post is incredible. It's like Little Green Vaginas.
posted by TypographicalError at 2:51 PM on February 21, 2009 [11 favorites]


Due to market demands, porridge is now to be served at only two temperatures: 3 degrees Kelvin, and spot-welded to your tongue. Thank you for dining at the Cafe of the Excluded Middle. Or piss off. But not both.
posted by kid ichorous at 2:57 PM on February 21, 2009 [16 favorites]


It's like Little Green Vaginas.

Which, I shouldn't have to mention, would be a great band name. Or title for an outer-space themed lesbian porn flick.
posted by jonmc at 2:57 PM on February 21, 2009 [8 favorites]


I think I've spotted a loophole in her proposition. As it stands, the rapist could be off the hook by not having had sex.

She covers that in the next thread.
posted by queen zixi at 2:58 PM on February 21, 2009


flaterik: I assume this, and most of the girls I date/try to date end up thinking my politeness is a lack of interest, I am judged "too nice" or some variant, and we end up Just Friends.

Are you sure it's not because they...didn't actually want to have sex with you?

(Not saying this to snark. Saying this because I've actually chased men around in ridiculously obvious ways when interested.)
posted by peggynature at 2:59 PM on February 21, 2009 [4 favorites]


I don't know Twisty, but I do know many of the contributors to the Yes Means Yes anthology. Consent is a particularly challenging topic, not least because traditional feminist formulations are so problematic. I haven't read the anthology entirely, and I do think that some of the essays are real showstoppers. Very good material. And others are, as with many anthologies, hard to read, hard to understand, hard to appreciate.

It seems like most of the commenters here are responding to Twisty's bit of flamebait, which is interesting, but also makes me feel like further commentary about the anthology from me would be wasted, so I'll opt out.
posted by kalessin at 3:00 PM on February 21, 2009



I assume this, and most of the girls I date/try to date end up thinking my politeness is a lack of interest, I am judged "too nice" or some variant, and we end up Just Friends.

It's a fine line. A fine, frustrating line.

You sound like a Nice Guy(tm). Ahem.

If you don't care to google the particular valences that phrase has taken on lately, I would at least urge you to consider why you think expressing interest in having sex with a woman is always "impolite," and whether there are certain unsettling assumptions underlying that belief.
posted by You Can't Tip a Buick at 3:01 PM on February 21, 2009 [2 favorites]


kalessin: yeah, I clicked that link first for some reason and assumed it was the meat of the post. This was further reinforced by every one else talking about the same thing. I regret talking about it so much now that I know it was only a tangent on the FPP.

Don't be discouraged. I'd like to hear your thoughts.
posted by ODiV at 3:03 PM on February 21, 2009 [1 favorite]


Yeah, kalessin, I'd like to get back on topic, too. I'm also somewhat familiar (sort of, online) with a couple of the writers in the anthology, and have been really looking forward to reading and discussing it.
posted by peggynature at 3:05 PM on February 21, 2009


*calls whole thing off*
posted by jonmc at 2:44 PM


I believe that "whole thing off" should be the default.

You must explicitly say "It's ON!" in order for it not to be called off.
posted by orme at 3:07 PM on February 21, 2009 [5 favorites]


Sometimes, I'm amazed anybody anywhere manages to have sex at all. But the human species is still here, so we must manage somehow.
posted by jonmc at 3:08 PM on February 21, 2009 [4 favorites]


Yay pro-sex. The stigma perpetuated by anti-sex ideology of all types is really, really not helping matters. Consent is easy, just whisper, "Would you like it if I did A? Would you like it if I did B?" Women (and men!) are socialized in our culture to think this kinda thing is romantic. It works. If it's a turn-off, you're doing it wrong.

Save intoxicated sex for intimate partners, not less intimate ones. It's way more fun that way. If you can't get laid sober, or stand to have sex sober, you've got some greater issue that alcohol won't fix. We should just encapsulate this idea into the idea of safe sex in general. Y'all should at least be sober enough to apply protection and notice if the condom breaks, or what's the point?

Our culture is so schizophrenic about sex. The anti-sex half of the culture is fighting an uphill battle against nature and trying to stifle the most hardwired instinct of all, no matter what their angle is. Good luck with that.
posted by Skwirl at 3:12 PM on February 21, 2009 [14 favorites]


Meanwhile, equals May 2007.
posted by ClaudiaCenter at 3:13 PM on February 21, 2009


I say tomato, you say batshitinsane bitch.

Sometimes a batshitinsanebitch is just a batshitinsanebitch.
posted by Krrrlson at 3:17 PM on February 21, 2009


You must explicitly say "It's ON!" in order for it not to be called off.

A few days ago I was heading into the changeroom before a squash game. A naked guy came out of the sauna and thought I was headed for it. Wanting to let me know that the sauna was still active he said to me, "It's on."

For about two seconds I thought he wanted to throw down.
posted by ODiV at 3:19 PM on February 21, 2009 [27 favorites]


The issue is grossly encumbered with a futile focus on meaningless, temporary instances of the withdrawal of consent, to wit: “she said yes” or “she said yes and then she said no” or “she said yes and waited until two days later to say no” or “she said yes and has been lying about it ever since.” She said, she said, she said.

Well, what if lack of consent were the default? What if all prospective objects of dudely predation — by whom I mean all women — are a priori considered to have said “no”? What if women, in other words, were seen by the courts to abide in a persistent legal condition of keep-the-fuck-off-me?


So in other words, "Twisty" is unhappy with the fact that lack of consent must be proven in a court of law. I guess it would be easier to put people accused of rape in prison if the presumption of innocence applied to every criminal defendant was replaced with a presumption of guilt where accusations of rape are concerned. The criminal justice system shouldn't be designed to maximize convictions at the cost of creating the risk of false positives of guilt.

Even with our current approach to rape accusations, where the guilt of a defendant is not presumed, 90% of wrongful convictions stem from charges of rape. Furthermore, independent research into the phenomenon of false allegations of rape places that ratio at 40%. Other research places rates of false accusations as high as 60%.

In light of those facts, to suggest that we need more mechanisms to obtain guilty verdicts in rape cases doesn't just create the risk of wrongful conviction. It invites that outcome.
posted by Law Talkin' Guy at 3:20 PM on February 21, 2009 [15 favorites]


Part of being a good man, I teach, is not being a relentless advocate for your own pleasure. Part of being a good sexual partner is not using a variety of psychological (and chemical) tactics to turn the red light to green, to turn the “no” into a “yes”, or even worse, to simply wait until the young woman has grown tired of saying “no” and falls into a resigned silence. This is all part of the “how not to be a rapist” workshop.

From the second-linked blog response. I think this it bears repeating.
posted by peggynature at 3:21 PM on February 21, 2009 [2 favorites]


It seems like most of the commenters here are responding to Twisty's bit of flamebait, which is interesting

To be fair, Twisty's stuff takes up something like 2/3 of the text of the post so is that really surprising?
posted by Justinian at 3:22 PM on February 21, 2009


You sound like a Nice Guy(tm). Ahem

I'm aware of the stereotype here, as well as the nasty underlying assumptions inherent in thinking expressing sexual interest is impolite.

It's a clear overreaction on my part to my disgust at people making unwanted advances and not taking no for an answer. Un-overreacting is proving a long and difficult process. But my disgust at men that act like that is pretty extreme and my desire to distance myself from them hard to overcome.
posted by flaterik at 3:24 PM on February 21, 2009


90% of wrongful convictions stem from charges of rape.

Wrong. Rather, according to your link, "More than 90 percent of those exonerated by DNA were convicted of rape, or of both rape and murder, rape being the classic crime in which DNA can categorically prove innocence." And of course these had to be cases of misidentification, not cases where consent was disputed.
posted by transona5 at 3:27 PM on February 21, 2009 [2 favorites]


kalessin, I'd be interested too. I've read about Yes Means Yes on a few blogs but haven't read it myself yet.

I like this, from Hugo Schwyzer (7th link above, "responses"): "“The opposite of rape is not consent. The opposite of rape is enthusiasm”.
posted by cybercoitus interruptus at 3:28 PM on February 21, 2009 [2 favorites]


I've never read IBTP before -- she's hilarious. Bookmarked.
posted by ClaudiaCenter at 3:31 PM on February 21, 2009 [2 favorites]


flaterik: I assume this, and most of the girls I date/try to date end up thinking my politeness is a lack of interest, I am judged "too nice" or some variant, and we end up Just Friends.

peggynature: ... I've actually chased men around in ridiculously obvious ways when interested.
You Can't Tip a Buick is spot on with his assessment. Just to prevent a derail, there are like a bazillion AskMes dealing with this. Here's a good one to start on. Prolly a better source than Google because Google will probably lead to the other bitter extremes like Ladder Theory. Bleh. Bottom line: Treat the other sex like they're people, you know, just like you. You'd be surprised where that leads.
posted by Skwirl at 3:31 PM on February 21, 2009 [1 favorite]


Well, the dude I chased actually married me. So I'm taking that as enthusiastic consent.
posted by peggynature at 3:37 PM on February 21, 2009 [2 favorites]


I also thought this story was interesting, about a woman whose boyfriend refused to have sex with her until she was asleep:

There was no violence. It was someone I knew and loved, and wanted to have sex with so badly it hurt. But he had to find the only moments where I wasn't willing, where I wasn't wanting, and fuck me then.

A perfect example of why enthusiastic consent is a good default policy.
posted by peggynature at 3:46 PM on February 21, 2009


A perfect example of why enthusiastic consent is a good default policy.

The first woman who ever enthusiastically consented to me (in fact, looking back, I consented to her actually) was somebody else's girlfriend. The repercussions were about what you'd imagine and then some.
posted by jonmc at 3:57 PM on February 21, 2009 [3 favorites]


I went to get some food and on the way there realized there was something I should've clarified: I'm not in any danger of breaking into a chorus of "oh woe is me, girls say they want a nice guy but they really just go for jerks". But I don't blame anyone here for pegging me as one of Those Guys based on what I wrote above.

I don't believe that at all, and I'm well aware that this is my problem. I'm not bitter, just frustrated at my inability to balance "not being a jerkass" and "being clear about what I want". But I do feel like this problem of mine stems from trying to be a good person and wanting to treat others with respect.

I think there's a non-derail version of this conversation that can be had, because I think my issues are related to the topic at hand, but I don't know how to without making it about me or veering back into the territory I already stepped in.
posted by flaterik at 3:57 PM on February 21, 2009 [2 favorites]


The first woman who ever enthusiastically consented to me (in fact, looking back, I consented to her actually) was somebody else's girlfriend.

Okay. Not exactly what I had in mind.
posted by peggynature at 4:01 PM on February 21, 2009


Not exactly what I had in mind.

99% of life is exactly not exactly what anybody had in mind. Discuss.
posted by jonmc at 4:03 PM on February 21, 2009 [3 favorites]


Well, I mean, you could've not consented, couldn't've you? Discuss.
posted by peggynature at 4:05 PM on February 21, 2009


What, and make her a rapist?
posted by ODiV at 4:07 PM on February 21, 2009 [7 favorites]


Well, I mean, you could've not consented, couldn't've you? Discuss.

Yes, I could've. But seeing as I was an 18-year-old virgin with the raging hormones and all, and this was an exceptionally attractive young lady, the chances of that were pretty remote. Not that the repercussions weren't something I'd just have to live with, but I simply couldn't resist using this story as a response.
posted by jonmc at 4:08 PM on February 21, 2009


This stuff makes my head go crazy. That is why i always go to hookers and pay them.
posted by Postroad at 4:08 PM on February 21, 2009 [4 favorites]


Part of being a good man, I teach, is not being a relentless advocate for your own pleasure. Part of being a good sexual partner is not using a variety of psychological (and chemical) tactics to turn the red light to green, to turn the “no” into a “yes”, or even worse, to simply wait until the young woman has grown tired of saying “no” and falls into a resigned silence. This is all part of the “how not to be a rapist” workshop.

This presumes that when it comes to sex that women are rational actors who are willing to take full responsibility without shame for their actions (as it relates to sex). I don't think we live in that world. Though I wish we did.
posted by Rubbstone at 4:15 PM on February 21, 2009


Turtles all the way down Then, if that were taken seriously by the courts, it would mean that any sort of sexual activity during dating would have to be preceded by a frank exchange not unlike that preceding congress with a prostitute.

That wouldn't be a terrible thing, if people were (a) honest about their intentions; (b) actually knew what their own intentions were; (c) were able to accept being told other people's incompatible intentions without taking it personally; (d) consisted of one gender with the same experience of sex.

But it doesn't work that way. Being honest about one's intentions is a turn-off. Perceived as crude, unsubtle, uncaring. "Wanna fuck?", however honest that is, means "I don't really care who you are, I don't want to get to know you, I probably don't even want to see you again after, let's just fuck." Sex and being cared about are too intimately interlinked in the human psyche, for this to work out. We seek sex to find life-partners. We seek life-partners to find sex. We play our cards close to the chest, and to outright say: "Pair of sixes, ace high, what you got?" ruins the game.

One's own intentions are unclear and often change, which in itself is a big part of the "rape problem" - genuine consent can turn into genuine non-consent. So can the reverse, although the harm done by stopping when she wants him to go, while not zero, is far less. Almost no-one has the kind of clear, strong self-direction that absolute consent requires. Most people equivocate and dither a bit even about trivial decisions like what brand of toothpaste to buy and what pants to wear, let alone who to have sex with and when. As for the people who don't equivocate, who aren't open to persuasion, who know exactly what they want and always pursue it ... it seems to me that that kind of person is far more likely to be a rapist, a psycho, a stalker, or at best a self-centred whackjob, rather than the kind of person one would want to be at one's most vulnerable with. There's something inherent in being open to considering others' points of view, that makes one's own point of view less definite.

Being told "I don't want to have sex with you", even if you yourself didn't actually want to have sex with the person who tells you that, is almost always taken as a negative. It implies that you are unattractive and undesirable (at least to that person). She "dressed like that" in order to be thought of as attractive and desirable, even if only by herself; not to have those attractions and desires followed up on. She told him "yes" when she really meant "no" because she didn't want to offend and hurt him--whether from pity of him, fear of him, or both--by telling him that no, he really is hideous. Sexual attractiveness and self-esteem are intimately interlinked: it's all very well to preach against that, but it's pointless. A billion years of biology says "if no-one wants to mate with you, you suck as a life form".

However post-modern one's view of gender relations, pregnancy in itself is enough to break sexual equivalence. The fact that she could get pregnant is always going to give her a much bigger stake in the outcome of sex than he has. Lots of implications follow from that. To a lesser extent, physical disparity--we are a sexually dimorphic species--breaks sexual equivalence too: most men are physically capable of forcing sexual penetration on most women. What prevents us is the fact that our psychology isn't that brutal, mostly, or ourselves so directly sex-driven. For every man who will rape you if you're left alone together, there are probably fifty who wouldn't. Out of those, some don't find you attractive. Some are just too broken, old, small, weak, or scarred by their own trip through the grinder of society to try anything, no matter what their fantasies. But I believe most just don't want to do that, because it's disgusting and wrong. That's cultural to some extent, but I'm sure it's more instinctual. Male humans have a protective instinct too, which is interlinked with possessiveness and vengefulness: the most enthusiastic punishers of rapists are usually the victim's male relatives and friends.

So how to reduce the prevalence of rape, which is, after all, the whole point of this discussion? (1) More thorough, more honest, sex education, starting at the "age of reason" (about five) and especially just before puberty. (2) Mindful empathy with, rather than contemptuous and cynical disdain for, the other gender's experience of the pre-sex interaction, the sex itself, and afterwards. (3) Social recognition that rape is something done to a woman, that a woman who has been raped is the innocent victim of a crime, that silence about it benefits the perpetrators far more than the victims, that perpetrators should expect a very low chance that a raped woman can be expected to stay quiet about it.
posted by aeschenkarnos at 4:16 PM on February 21, 2009 [19 favorites]


If 'No' is the default preference, there is no way I'm ever going to sit through another Chick-Flick without getting a notarized letter of consent ahead of time.
posted by digsrus at 4:39 PM on February 21, 2009 [1 favorite]


Then, if that were taken seriously by the courts, it would mean that any sort of sexual activity during dating would have to be preceded by a frank exchange not unlike that preceding congress with a prostitute.

Well, that would solve the problem, though. In Islam you have the concept of a "Temporary" marriage, which can be used with prostitutes, for example. In theory you could have some kind of contract, which governs sexuality for a given amount of time and as a bonus, the contracts could stipulate what happens if the girl gets pregnant as well.

That said, I think it would be pretty absurd and impossible to implement because religious people would be livid about 'marriage' being co-opted or even legally acknowledging pre-marital sex as acceptable.

Well, what of it? The set-up now...is that female participants are all infinitely rapeable, because all some perv has to do is say, “she said yes.”

Now that is, of course, absurd. Men say this and go to jail all the time, I think. The problem is that there is no way to know who's telling the truth in a he-said/she-said situation, but if a woman goes all the way and presses charges, I think in most cases courts will believe the woman. But, woman often don't actually go that far. (At least that's my understanding)

But anyway, it blows my mind how obsessed some of these hard-core feminists are with Rape, to the extent that they view all sex in the context of rape. These people seem crazy to me, (Little green vaginas seems about right) but their Blogs can be fascinating reading every once in a while.
posted by delmoi at 4:47 PM on February 21, 2009


If it freaks people out so much, as a hypothetical suggestion coming from a presumably insignificant blogger, then might I gently suggest a nerve has been hit?

Yeah, but it was the "how did she get so crazy" nerve, so it's ok.
posted by Brandon Blatcher at 4:49 PM on February 21, 2009


But it doesn't work that way. Being honest about one's intentions is a turn-off. Perceived as crude, unsubtle, uncaring. "Wanna fuck?", however honest that is, means "I don't really care who you are, I don't want to get to know you, I probably don't even want to see you again after, let's just fuck."

Maybe if you're too careless to establish some other context first. How about a nice date and some foreplay followed by an explicit sexual proposition?
posted by LogicalDash at 4:50 PM on February 21, 2009 [3 favorites]


Being honest about one's intentions is a turn-off.
Let me qualify that - I took Turtles as meaning up-front negotiating sex before anything else, as might be done with a prostitute. In the context of a dating relationship, of course honesty ought to be expected, but whether explicit is the same as honest is the core of the question. "Would you like to stay over?" with tone of voice and body language might amount to "Wanna fuck?", but is interpreted by most people, probably the authors of the article as well, as a much more courteous way of asking the same question. Exactly why it's considered more courteous to ask less explicitly is interesting: my guess at the answer is, it's a cultural thing, it gives the one asked more "outs", it requires less commitment to the answer from both, and it leaves more room for a qualified no (eg "I'd like to get to know you better first").
posted by aeschenkarnos at 4:55 PM on February 21, 2009 [1 favorite]


How about a nice date and some foreplay followed by an explicit sexual proposition?

Spending time and emotional effort - in other words, caring. Yet another reason why rape is so damaging; one of the worst things that one person can do to another is to indicate that the other's desires, thoughts, self, doesn't matter.
posted by aeschenkarnos at 5:00 PM on February 21, 2009 [4 favorites]


But it doesn't work that way. Being honest about one's intentions is a turn-off. Perceived as crude, unsubtle, uncaring. "Wanna fuck?", however honest that is, means "I don't really care who you are, I don't want to get to know you, I probably don't even want to see you again after, let's just fuck." Sex and being cared about are too intimately interlinked in the human psyche, for this to work out.

Speak for yourself - sometimes sex is just sex. (And exercise.) I agree that there are some people who get all sorts of hung up about sex, but this is largely cultural/social conditioning. There are plenty of GGG people out there who have lots of great crude unsubtle casual safe sex.
posted by mek at 5:13 PM on February 21, 2009 [1 favorite]


Situations where you've got consent in advance feel forced and artificial. Think Logan's Run or Craigslist, except you'd have to fill out a box saying explicitly that you want

As long as masturbation isn't rape, I will continue doing my thing onto a map and feel absurdly superior to people from the countries I've cum on...
posted by christhelongtimelurker at 5:13 PM on February 21, 2009 [4 favorites]


Then the burden of proof in rape cases would be misplaced. This doesn't fit with our legal system.

This is untrue. Right now, when a person stands accused of robbery, they are presumed innocent until proven guilty - but they assumption is not that the victim intended to give the robber the money until it can be conclusively proven otherwise. If an accused burglar wants to raise the defense that he/she was invited into the home, such evidence can be admitted. Yet the presumption is not that said burglar was welcome unless the prosecutor can prove that there was no invitation.

Yet when it comes to rape, prosecutors have to prove that the victim did not consent to the sex. It would seem that this is inconsistent with our legal system.

And Law Talkin' Guy - those statistics are so wildly misrepresentative of the open debate on these issues that you're doing this thread a disservice by cherry-picking studies in such a blatant way. There are significant peer-reviewed studies that show that the rates of false reports and convictions are lower for rape than for other crimes, the same, slightly higher, etc. It's an open question. But throwing out 90%, 60%, and 40% when the linked materials don't even support those claims - well, that's just absurd.
posted by allen.spaulding at 5:16 PM on February 21, 2009 [16 favorites]


Great. Somebody else fucking the earth.
posted by jonmc at 5:16 PM on February 21, 2009


Uh, are we sure this isn't some gigantic troll? Because it seems like a gigantic troll.

I think one BitingBeaver is enough.
posted by adipocere at 5:24 PM on February 21, 2009 [2 favorites]


And Law Talkin' Guy - those statistics are so wildly misrepresentative of the open debate on these issues that you're doing this thread a disservice by cherry-picking studies in such a blatant way.

Oh. Okay. Well, if you say so.
posted by Law Talkin' Guy at 5:28 PM on February 21, 2009 [4 favorites]


mek sometimes sex is just sex. (And exercise.) I agree that there are some people who get all sorts of hung up about sex, but this is largely cultural/social conditioning.
I disagree. It's not "some" people, it's pretty much everyone. The more common a practice is and the more cultures it is common across, the more likely it is to be instinctual, or the cultural expression of an instinct, rather than an ex nihilo cultural invention. It is human nature to be possessive of one's sexual partners, to invest emotional intimacy in those one is physically intimate with, and to require emotional intimacy be invested before physical intimacy is desired.

There are plenty of GGG people out there who have lots of great crude unsubtle casual safe sex.
Great if you can do it, more power to you. It's like being financially rich, in a way. Almost everyone can't, and if everyone could, it wouldn't mean anything.
posted by aeschenkarnos at 5:34 PM on February 21, 2009 [1 favorite]


Seems like other people do find a way to make consent fit into their sexual lives just fine.

Personally, I'm a strong proponent of just asking my sexual partner (even after we've been together for years) the simple question: "Do you want to have sex with me?"

Figuring out what to do after asking this question is a very easy If/Then statement:

IF Answer = "Yes", THEN *sex ensues*, ELSE *sex does not ensue*.

posted by peggynature at 5:34 PM on February 21, 2009 [3 favorites]


Yeah, I don't get this.

If the default was no (which I kind of already thought it was) but if we made it even more strict, all we would do is succeed into turning personal relations into contract law.

Well your honor, she said she kiss me in a particular place, and she didn't."
"We he promised me an orgasm."

I mean it would get silly.

Well, your honor, if you notice in the consent diagram I didn't mark anything above the waist, so there was to be no kissing, fondling on breasts, or even talking. I could have dealt with the talking, but he kissed me!"
"Well, your honor, I thought it was lesser included consent."
posted by cjorgensen at 5:36 PM on February 21, 2009 [1 favorite]


This presumes that when it comes to sex that women are rational actors who are willing to take full responsibility without shame for their actions (as it relates to sex). I don't think we live in that world. Though I wish we did.

You live under a fucking rock? This doesn't necessarily apply to just women. There are members of BOTH genders that are complete idiots about sex, and members of both genders that are not.
posted by kldickson at 5:37 PM on February 21, 2009 [2 favorites]


I don't really see the point of snide opacity like this, and the "straight-forward" claim in the FPP is just another twisty bob-and-weave, innit?

Failing to see the point in leaving uninitiated people twisting in the wind, I take it as somewhat bitchy.
posted by Ambrosia Voyeur at 5:38 PM on February 21, 2009 [2 favorites]


At the risk of playing along with the opacity I was just criticizing, let me be clear.

Fellas? Twisty is having you on. It's supposed to be funny. Ha ha ha.

Her reading list is the SCUM Manifesto and Welcome to Cancerland.

It's tongue-in-cheek. It's scattershot, trollesque, occasionally quite juvenile but overall joyous riffing on the bullshit realities of life as a woman. Please feel free to remove your steelplated jockstraps, nobody is going cockstomping today.

It makes me uncomfortable to see mefites being confused by this stuff. It's a little alienating all-around, but though I believe in the continued existence of a highly-gendered culture, I don't think we should really be so ready to assume the experiences of others are so totally alien from our own, and expect this kind of absurdity to be something done in earnest.

I don't know which is worse in this exchange, how little Twisty breaks character or takes a truly "straightforward" tone, and how resistant to inclusivity that makes her project, or how ready some here have seemed to be to believe in the bogeygirl.

Jeez, speaking of earnest, look at me, eh? *shudders, takes off girl scout getup*
posted by Ambrosia Voyeur at 6:01 PM on February 21, 2009 [5 favorites]


IF Answer = "Yes", THEN *sex ensues*, ELSE *sex does not ensue*.
All very good advice for anyone in a relationship, and amounts to "be considerate of your partner". But it's not answering the same question, which is: how does one turn a new dating relationship into a sexual relationship with certainty of consent? Call it "seduction" if you want, though it should be a lot more mutual than that term implies. What's the protocol? Assume M not only doesn't want to be accused of raping F, he genuinely doesn't want to rape F, even finds the prospect horrifying.

Now most of us manage to fumble our ways through it without being accused of rape or even offending each other overmuch. People have happily normal relationships all the time; some lucky folk even get to mek's supposed level of freedom from worry. But apparently not everyone can. Handing over little slips of paper to be signed is an inherently stupid concept. Asking questions that amount to the same thing as signing little slips of paper is off-putting for most people (although maybe that can and should change) and in the absence of any recording of it (itself a thorny issue), is pointless.

My point is, we need a better social model for positive sexual conduct. If a man rapes a woman, he should damn well know that he raped her. The accusation should never, ever, be a surprise.

So what should a sixteen-year-old, boy or girl, be told to do? (Personally, I think the answer is: "Boy, pay attention, whenever there looks like doubt, ask, and don't pressure her. Girl, be very clear about what you're thinking and feeling, and don't be pressured." Which should be simple.)
posted by aeschenkarnos at 6:05 PM on February 21, 2009 [4 favorites]


AV, nothing wrong with earnest; I wanted to include Twisty's post because it really is something striking and did seem related to the overall post (had been linked in other blogs for that reason). And because she makes me laugh even when I don't remotely agree with her, and I think her points are extremely good discussion-fodder. She makes even "us feminists" uncomfortable by pushing our protests about society to their extreme conclusions.

Perhaps "straightforward" was the wrong word to use; I should have used "ruthless" or "direct."
posted by emjaybee at 6:20 PM on February 21, 2009


"Boy, pay attention, whenever there looks like doubt, ask, and don't pressure her.

I think what is being suggested here is that "ask, and don't pressure her" take place in every sexual situation, not just those in which there appears to be doubt.

"Consent is defined according to the quality and quantity of assent, not the quality and quantity of dissent...rape is about something that the rapist does. Or rather, what he doesn’t do, in that he doesn’t rely on the woman’s assent."

Why is it so hard to ask for assent, even the first time? In my experience, it is neither weird nor awkward. Just basic courtesy, and also kind of hot.
posted by peggynature at 6:20 PM on February 21, 2009 [4 favorites]


The more common a practice is and the more cultures it is common across, the more likely it is to be instinctual, or the cultural expression of an instinct, rather than an ex nihilo cultural invention.

I agree - and your point applies perfectly to rape, the topic at hand. Just because something is instinctual doesn't mean it should be privileged, respected, taken for granted, expected, whatever. Rape is basically universal, but we agree it is bad and should be eliminated. In this sense, our "instinctual" approach to sexual relations may be a very very bad approach in modern society, and in fact it seems almost everyone agrees that there are many issues with the contemporary concept of sex. To simplify, the very concept of gender equality is "unnatural" in the sense that it was almost universally nonexistent until post Industrial Revolution. Yet we now (again almost) universally agree that it is a good thing and to be promoted.

We cannot change our sexual behaviour on a macro scale if our premise is that current behaviours are natural and inescapable. We mustn't assume that our current social conception of sex, and how sex relates to human relationships, is an absolute truth with no alternatives. Rape and other forms of sexual violence are systemic, and therefore the system itself is sick.
posted by mek at 6:22 PM on February 21, 2009 [3 favorites]


This is untrue. Right now, when a person stands accused of robbery, they are presumed innocent until proven guilty - but they assumption is not that the victim intended to give the robber the money until it can be conclusively proven otherwise. If an accused burglar wants to raise the defense that he/she was invited into the home, such evidence can be admitted. Yet the presumption is not that said burglar was welcome unless the prosecutor can prove that there was no invitation.

Proving the trespass or breaking/entering element of burglary or the forceful element of robbery- as the prosecutor must - necessarily includes proving nonconsent. Proving sexual penetration does not.
posted by Inspector.Gadget at 6:55 PM on February 21, 2009 [2 favorites]


Let me qualify that - I took Turtles as meaning up-front negotiating sex before anything else, as might be done with a prostitute. In the context of a dating relationship, of course honesty ought to be expected, but whether explicit is the same as honest is the core of the question.

Quite right, you did understand me correctly, but you proceeded to shade the question beyond what was meaningful in this context. It's a given, more or less, now, that honesty is at the core of the question. We can look into each other's eyes, in the dating situation, play around, say "oh no you mustn't," not really mean it and convey that meaning. And on the other end, as a male, play 'the rapist': "I'm going to take you, woman!" All to mutual excitement, because regardless of the words spoken, the players understand they are engaged in a contract that can be broken the minute the other partner says STOP!

But with what was proposed, the male is assumed to be the rapist, and in the wrong by default. The delicate and exciting dance is over. Sex requires explicit consent.
posted by Turtles all the way down at 6:58 PM on February 21, 2009


The delicate and exciting dance is over. Sex requires explicit consent.

If consent is the thing that ruins sexual excitement, then you're sort of implying that the risk of non-consent (a.k.a. rape) is what makes sex exciting.

And dude, that is just gross.

I'd rather take the chance of ruining "the delicate and exciting dance" a million times over than run the risk of raping my partner even once. (Though, honestly, in my experience, explicit consent is never a mood-killer.)

I'd also like to point out that, no, generally you cannot assume that "regardless of the words spoken, the players understand they are engaged in a contract that can be broken the minute the other partner says STOP!" It's especially risky to assume this in the case of someone you don't have a longstanding relationship with, and with whom you are delicately and excitingly dancing with for the first time. The only situation, aside from the enthusiastic consent context at the heart of this post, where this kind of understanding is absolute is in an agreed-upon BDSM scene. Now stop and consider whether those participants still manage to find sex exciting, even though explicit consent is absolutely required. I think they do.
posted by peggynature at 7:14 PM on February 21, 2009 [4 favorites]


Fellas? Twisty is having you on. It's supposed to be funny. Ha ha ha.

Comedy is supposed to be funny, not boring.
posted by Brandon Blatcher at 7:27 PM on February 21, 2009


Comedy is supposed to be funny, not boring.
posted by Brandon Blatcher at 7:27 PM on February 21 [+] [!]


IRONY
posted by peggynature at 7:30 PM on February 21, 2009


Proving the trespass or breaking/entering element of burglary or the forceful element of robbery- as the prosecutor must - necessarily includes proving nonconsent. Proving sexual penetration does not.

Re-read what I wrote. I wasn't saying that the prosecutor had no obligation to prove that the accused burglar was a trespasser. I was talking about the default state. Let's say I am robbed and a suspect is apprehended and charged. If I'm put on the stand and the prosecutor asks, "how did the suspect get your wallet?" I can respond with "he knocked me down and took it from me." My silence does not imply consent. The fact that I never said "I do not want to give you my wallet" does not imply consent.

Now let's say I'm raped and I'm put on the stand and asked "what happened?" If I say "he started having sex with me and I did not want him to," the defense will ask "did you say no?" Somehow this is a valid question, because the default case is that there exists consent until it's proven otherwise. The fact that I did not say "I do not consent to this sex act" is relevant. That's the difference between the baselines.

While it might seem like trivial burden-shifting, it's a major difference between the way society views the victims of each crime.
posted by allen.spaulding at 7:41 PM on February 21, 2009 [6 favorites]


Somehow this is a valid question, because the default case is that there exists consent until it's proven otherwise.

Don't lose sight of the factual and legal aspects of each crime: people have consensual sex constantly, while consensal muggings or smash-and-grabs rarely if ever happen. Consent or the lack thereof will often be the only issue at a rape trial, and placing the burden on the defendant to prove consent deprives some defendants of the chance to prove innocence in a testimony contest, contra burglary.
posted by Inspector.Gadget at 7:53 PM on February 21, 2009 [3 favorites]


Don't lose sight of the factual and legal aspects of each crime: people have consensual sex constantly, while consensal muggings or smash-and-grabs rarely if ever happen

Untrue. People consensually exchange money constantly. I've given more money to people today than I've had sex. A "consensual mugging" is called a transaction.
posted by allen.spaulding at 8:01 PM on February 21, 2009 [4 favorites]


Don't lose sight of the factual and legal aspects of each crime: people have consensual sex constantly, while consensal muggings or smash-and-grabs rarely if ever happen.

Wait, to use your analogy: people consensually exchange money constantly, too. It's only when consent is not given (or when the taker otherwise has no legal right to that money) that it's considered robbery.

Someone can just as easily commit a theft by stealing something from a house into which they were admitted consensually, as they can commit a theft by mugging a stranger on the street. It doesn't make it not stealing if their victim willingly let them into their house.

I'm not sure where I'm going with this. But I wanted to point that out.
posted by peggynature at 8:02 PM on February 21, 2009 [1 favorite]


Holy God I feel like I'm taking fucking crazy pills reading this thread.

1.) Twisty is not quite at BitingBeaver levels, thankfully (adipocere is correct, one Biting Beaver is more than enough) but she follows the same line of looking at the status quo, then looking towards what would be better, and then charging o forcefully towards the "better" that she runs right past it by a couple miles.

inspectorgadget is right - this completely fucks with the American legal system. Robbery is the wrong analogy; a better comport would be fraud - a.k.a a criminal perversion of a generally positive and protected free act (rape as a perversion of sex, fraud as a perversion of contract.) And you can look at contract and say that fraud is so heinous that it is to be assumed on the part of the party with greater leverage in any contract, until that party proves otherwise, but just ain't how shit works. Almost all contracts are non-fraudulent, and the grand majority of sex is not rape.

Twisty's "thought experiment" (and I think we can trust that she's giving us a grain of salt or two when she calls herself "the most brilliant legal mind of our generation") does indeed shift the burden of proof to the defendant, which isn't how the legal system can operate. That isn't to say that there aren't problems with how rape is prosecuted, when it is at all, but that those problems exist in society at large, outside of the legal strictures. In fact, the law is ahead of society in terms of making sure that these crimes receive the fairest possible hearing. Hence, the rape-shield rule in evidence, which states generally (with a few narrow but necessary exceptions) that evidence as to an alleged rape victim's prior sexual activity cannot be admitted, because such evidence might skew the opinion of the jury as to whether consent was assumed to have existed.

That's a strong rule, and is in place because "the law" knows not to trust that defense attorneys won't try to make the plaintiffs out to be sluts who obviously wanted it, and that juries won't fall for such bullshit. This comes at the expense of many otherwise legitimate defenses, but is still necessary and good law.

Still, the way that criminal trials work is that the prosecution must prove each element of the crime before the defendant is found guilty, and the defense must simply show that not enough elements are there for the action to have been criminal. For instance, for Robbery to be proven, the prosecution must prove the "taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear." Taking of property, permanent deprivation, means of force or fear. Those are the three elements that must be shown. If a person who has commonly borrowed his neighbor's weed-wacker takes it from said neighbor's garage without asking one weekend, the court can't simply assume the elements of permanent deprivation and means of force or fear.

Similarly, sexual intercourse is just one component of rape, with the absence of consent being the operative element which moves matters from the commonplace to the criminal. Assuming absence of consent - which again, is too common but not at all the norm - undoubtedly shifts the overall burden of proof.

2.) As a sex-positive person, I like the idea behind Yes Means Yes, and enthusiastic consent in general. This is part of why Twisty bother's me so much - even in being tongue-in-cheek hyperbolic, she's still assuming a wrong-headed Catherine McKinnon view of sex and interpersonal relationships which I find pretty abhorrent. I'll take Janet Halley's more forward-thinking, all-encompassing egalitarian scholarship on the matter, thank you very much. Still, the blog got me off on the wrong foot almost immediately with this bit of text:
New research, presented this week by Princeton University psychology professor Susan Fiske at the annual meeting of the American Association for the Advancement of Science, shows that, in men, the brain areas associated with handling tools and the intention to perform actions light up when viewing images of women in bikinis.
But the experts claim men just can’t help themselves. They say it’s a byproduct of human evolution because the first male humans had an incentive to seek fertile women as the means of spreading their genes. So it’s part of their biology to depersonalize sexual images of women. (Yeah. Right.)
Really? Instead of taking this published research as something to be worked with or thought upon, you dismissively assume that Susan Fiske is just sticking up for a male agenda to actively depersonalize women? The issue is so worthwhile, but with that single "Yeah. Right." the blog veers inexorably away from legitimate discourse and into stand-up hackery. ("C'mon, we know what guys are really like, right?") Not even a thought to the idea that maybe, just maybe, men generally have this reaction to images of scantilly-clad women because the women in those images are, as they so ubiquitously are in our culture, presented as a commodity. Was there even a control group of women to see how they responded? Because the images are generally presented to them as objects of desire as well.

I present a perhaps radical view, that the changing standard need not be a legal one, but rather one where we accept that sex is a part of life - a positive, common, fun part of life not just for men but for women as well. There are rapists out there, some of whom are angry men who don't have enough respect for women to understand that what they're doing is, in fact rape. Some of them know and don't care. They need to be dealt with criminally, but they are not most men. And once both women and men can come to understand sex as a general positive, and trust and respect one another to actually communicate (both verbally and non-verbally) as to what we each, individually, want from it, maybe we'll lift the stigma attached to reporting the crimes of those poor pathetic assholes who don't get it, and who hurt others in the name of something which should be good.

But don't throw the baby out with the bathwater.
posted by Navelgazer at 8:05 PM on February 21, 2009 [11 favorites]


It doesn't make it not stealing if their victim willingly let them into their house.

We weren't discussing larceny.

A "consensual mugging" is called a transaction.

A robbery at gunpoint doesn't become a transaction because the money is given voluntarily, because the nonconsensual elements still add up to assault.

A better analogy eludes me, but a class of crimes where a person is guilty until proven innocent is unacceptable.
posted by Inspector.Gadget at 8:10 PM on February 21, 2009 [1 favorite]


We weren't discussing larceny.

It's still a crime.

Or perhaps I should take my non-legal boobs and go home, and leave the menfolk to discuss the finer points of whether or not having non-entirely-consensual sex is okay.
posted by peggynature at 8:16 PM on February 21, 2009 [1 favorite]


Really? Instead of taking this published research as something to be worked with or thought upon, you dismissively assume that Susan Fiske is just sticking up for a male agenda to actively depersonalize women?

There's a lot in your post to point out, but this is the most egregious. She's attacking the apologists, not Fiske. Fiske's research shows that when men look at pornographic images, they are more likely to view women as objects and they become less compassionate towards others. These are the reception harms created by pornography that many feminists have long argued exist, including MacKinnon, who you just dismiss out of hand. Instead of recognizing that these feminists were correct and there appears to be a solid study concluding that looking at pornography means that men are more likely to objectify women, many apologists have said "well, it must be hardwired so what can you do about it. In fact, men are born to objectify women." This response is what she's saying "yeah right to." Fiske's research supports her agenda and undermines yours and Halleys. She recognizes this and you don't.
posted by allen.spaulding at 8:16 PM on February 21, 2009 [4 favorites]


Delicate Dance?

What are we Goony Birds?

Man. I think things just got worse and worse after AIDS became such an overriding paranoia out there. Least that is the only difference I can pin point.

I say that because coming of age (sexually speaking) in the seventies and early eighties there was much less stigma on just frigg'n coming out and asking. "I'd really like to fuck. How about you?"

It wasn't crass. It wasn't offensive. It was efficient.

Though it took a while for me to discover this "secret"— it was woman who told me to just come out and ask. She told me if you didn't feel like jumping each others bones with in the first couple dates then don't waste time trying to "convince" the other person. It's not a debate. It's chemistry. Soon enough you found that if you were "feeling it" generally they were too. So why not just come out and say it and make sure. What's the problem?

Honesty didn't seem to ruin any moment for me. In fact it seemed to diffuse all that nonsense that get's in the way. And I'm not super smooth by any stretch. And Jeebus. I was a frigg'n spazzy looking nerd so it's not like chicks were lining up to be with a Brad Pitt look alike. But I did pretty okay. My only complaint was I wish I had figured it all out sooner.

Then BAM! 1987 rolled around and it seemed like everybody younger than me became kinda afraid of fucking. I meet younger guys now who have these ridiculous notions about women. And these guys who are way better looking and more together than I was at their age — and they never get laid. And don't get me started on the younger women who read those crazy books like The Rules and shit like. God damn. Then once these people magically hook up is it any wonder they have these horrible sex lives?

Nah. Honesty, being right up front. It's the best policy.

As Mrs. TK so demurely says: "You. Pants off. Now."
posted by tkchrist at 8:17 PM on February 21, 2009 [6 favorites]


"well, it must be hardwired so what can you do about it. In fact, men are born to objectify women." This response is what she's saying "yeah right to."

Yes, and it's actually pretty insulting of men to just accept douchebaggery on the level of objectifying women as sexual objects as just an "inborn, natural" trait that can't possibly be overcome.

I expect more of men than that, and quite often they deliver.
posted by peggynature at 8:21 PM on February 21, 2009 [1 favorite]


Inspector.Gadget, you're shifting the goalposts. You keep adding elements, gunpoint, larceny, while avoiding the underlying claim. And you're being rude in doing so while repeating a mantra that was quickly addressed.
posted by allen.spaulding at 8:21 PM on February 21, 2009


Or perhaps I should take my non-legal boobs and go home, and leave the menfolk to discuss the finer points of whether or not having non-entirely-consensual sex is okay.

I'm using an on-screen keyboard ATM, else I would have posted an explanation. And don't trivialize the legal issues: ignoring defendant protections creates horrible outcomes for all and makes you look unreasonable.
posted by Inspector.Gadget at 8:25 PM on February 21, 2009 [1 favorite]


I'm not ignoring defendant protections. In fact, I haven't even stated my position on that particular legal hypothetical. I was simply following through with your analogy.
posted by peggynature at 8:27 PM on February 21, 2009


Inspector.Gadget, you're shifting the goalposts. You keep adding elements, gunpoint, larceny, while avoiding the underlying claim. And you're being rude in doing so while repeating a mantra that was quickly addressed.

I'm only looking for a better analogy. Rape is bad, but shifting evidentiary burdens and process protections undermines principles more important than one class of crimes.
posted by Inspector.Gadget at 8:29 PM on February 21, 2009 [4 favorites]


shifting evidentiary burdens and process protections

No, I'm matching the default state to robbery. I've given you a straightforward analogy. The only difference between a consensual monetary transaction and robbery is the lack of consent. The only difference between a consensual sex act and rape is the lack of consent. Both of these occur frequently in consensual and non-consensual forms. Yet we have a different default state when it comes to the intent of the victim. In robbery, a victim is assumed to not have consented to the transaction unless it is otherwise proven. That is not true for rape. That's all that people are saying and no matter what keyboard you're using, you keep avoiding the point.

All this proposed change doe is make an individual accused of rape face the same legal standards as one accused of robbery. Nothing more.
posted by allen.spaulding at 8:33 PM on February 21, 2009 [2 favorites]


In robbery, a victim is assumed to not have consented to the transaction unless it is otherwise proven.

At common law, non-consent is subsumed in the force/threat/etc. element, which the prosecution must prove. Am I missing part of your argument?
posted by Inspector.Gadget at 8:37 PM on February 21, 2009 [1 favorite]


At common law, non-consent is subsumed in the force/threat/etc. element, which the prosecution must prove. Am I missing part of your argument?

Shifting again and slightly inaccurate. Just as some jurisdictions have moved beyond the common law of rape that required a showing of force, we find the same parallel with theft/robbery. For example: MPC 223.2 defines theft as the unlawful taking of moveable property of another with the purpose to deprive the victim. No force requirement. MPC 221.(1)(c) defines robbery as committing a felony in the course of a theft. I realize that jurisdictions vary and some maintain the old force/fraud/coercion prong, but that's just not that relevant to the analogy.
posted by allen.spaulding at 8:48 PM on February 21, 2009


allen.spaulding: I'm not sure how much Halley speaks to the pornography argument in this case per se, nor how her preceding argument undermines it, but whatever. You're speaking at odd angles to what I was asserting as well, so maybe I need to clarify.

First off, where I dismissed McKinnon wasn't referring directly to Yes Means Yes and their opinions on how pornography is viewed, but in the "all sex is rape" view (and I know this is an oversimplification, but not by much) that she espoused. And if I dismiss it "out of hand," that is only because human experience as lived by most people who are not Catherine McKinnon shows that sex is a lot cooler and more interesting than that. McKinnon was brilliant and highly myopic, like many geniuses in their fields (Freud comes to mind as my stereotypical example of assuming the whole from the self), and as such, her otherwise sound logic and conclusions were largely built upon faulty, or at least highly debatable, premises.

Reading over the block of text I quoted again, I can see where you are right about it, and I was wrong in my interpretation, but I continued on to say, and I quote myself: "maybe, just maybe, men generally have this reaction to images of scantilly-clad women because the women in those images are, as they so ubiquitously are in our culture, presented as a commodity." (I even quote my own typoes, you see.)

I'm agreeing with the effect you're talking about. I still think it's fucking crazy, now that you bring it up, to believe that the objectification of women by men has a direct, or even significant, correlation to the prevalence of pornography, or to discount the very real evolutionary background at play (are you imagining some elaborate consent in animal sex? do you picture that before the advent of film women were treated as sexual equals?)

I'm not going to embarrass myself trying to mount a categorical defense of pornography, but I'll say that the boom in pornography and the boom in recognition of rape and other forms of sexual assault against both women and children came as a result of the sexual revolution, when women took it upon themselves to proclaim that they had a stake in sex as well. Of course, that claim is intellectually dishonest in a lot of ways (technological improvements surely played more of a part than anything) but McKinnon's argument of sex as necessarily being about domination, and thus something that women could not in good conscience take part in (a view which comes up in at least Twisty's linked stuff here, and which provides a good deal of background for the Yes Means Yes blog) was written in reactionary distress to the sexual revolution which I can only hope we can agree upon was all-in-all a good thing for women and women's rights.
posted by Navelgazer at 8:48 PM on February 21, 2009 [4 favorites]


Holy God I feel like I'm taking fucking crazy pills reading this thread.

I say that almost every fucking day.
posted by nola at 9:00 PM on February 21, 2009


it blows my mind how obsessed some of these hard-core feminists are with Rape, to the extent that they view all sex in the context of rape

I'm sure that if you exercise your empathy muscles sufficiently, you might come to appreciate that people living with one or more experiences of sexual assault, or even daily awareness of the risk of sexual assault, may in fact come to think about all sex in the context of sexual assault.

You might also come to appreciate that calling people who are strongly concerned with sexual assault, an experience that directly impacts, statistically, one in four women (in my experience it's hard to find women who have not experienced sexual assault in one form or another), and which can be incredibly destructive to a person's quality of life, 'obsessed' does seem to marginalize and denigrate the importance of women's lives.

Or you might not, but one can always hope.
posted by Salamandrous at 9:01 PM on February 21, 2009 [10 favorites]


I'm rusty on codified definitions of many crimes, but even in the MPC theft context I would argue that "unlawful" excludes consensual (contractually authorized, etc.) taking, thus including a nonconsent requirement. Also, give the 'shifting' stuff a rest: I repeated something I said upthread to clarify a point of contention in the analogy. In total, presuming in favor of the plaintiff on what may be the only issue at trial remains a bad idea, and the uniqueness (real or otherwise) of rapes as a class of crimes isn't a strong enough rationale for overturning the traditional burden.
posted by Inspector.Gadget at 9:20 PM on February 21, 2009


In robbery, a victim is assumed to not have consented to the transaction unless it is otherwise proven. That is not true for rape.

Giving property away is not common, but having sex is. And considering the sad fact that about 70% of raped women know their rapist, it doesn't seem odd to consider whether consent was given.

What I'm trying to say (perhaps clumsily) is that these are two different times of crimes, so complaining about the difference in how they're treated seems odd.
posted by Brandon Blatcher at 9:27 PM on February 21, 2009


That's it, it's prostitutes for me.
posted by tehloki at 9:28 PM on February 21, 2009


Sex is serious fucking business.
posted by Ritchie at 9:34 PM on February 21, 2009


Giving property away is not common, but having sex is.

Eh. I gave my brother a gift for his birthday and I bought a small present for a couple who shared the information that they are expecting their first child. I tipped the cab driver last night. These were all voluntary transactions. Just because I tipped the driver doesn't mean that the guy on the street outside the cab can take my wallet. Furthermore, he can't point to the tip to prove that I wanted to give him my wallet too.

presuming in favor of the plaintiff

Seriously, ffs. This is not a presumption in favor of the plaintiff. We're talking about a criminal trial, not a civil trial. Presuming a lack of consent unless it is otherwise demonstrated is the same as the crimes I've mentioned. In fact, other than rape, I can't think of a single instance where the default case is that a victim consented to the crime. The only thing making rape unique is that we treat it as such in this way. If I call the police and say that my wallet was stolen and they find someone matching my description in possession of the wallet, the only material issue of fact is whether or not I intended to give it to him. The baseline assumption is that I didn't. Why doesn't this outrage you too?
posted by allen.spaulding at 9:57 PM on February 21, 2009 [1 favorite]


So, I've been reading this and thinking about the comparison that's being made between the standard of proof for robbery/theft and the standard of proof for rape. I don't think they're different at all, despite what's been claimed. In both cases, you need to show that there's a lack of consent, because we don't criminalize consensual sex or consensual transfers of property. Take a hypothetical robbery case, where the only evidence was a third party witness who saw someone hand something to the defendant. I think we can all agree that this is legally insufficient evidence of robbery, because there's not a presumption that a property transfer is made absent consent without other evidence. Obviously, this hypothetical differs wildly from a typical theft/robbery case, where the owner of the property will testify that he or she did not consent to giving the property to the defendant. From that testimony, the court or the jury can draw an inference that at the time of the robbery/theft, there was not consent. A similar inference can be drawn when a rape victim testifies that there was not consent to sexual activity.

The difference between a rape case and a robbery case lies in the strength of that inference. This isn't a legal issue, so much as it is a practical issue. There's no law that says "we presume consent," it's just that as a practical matter most sex is consensual, so we assume sex is consensual absent some good reason not to. Now, obviously the fact that a victim testifies that she did not give consent is good evidence on the issue of consent, but I think there are good reasons for not accepting it as sufficient evidence in every rape case. Rape is a crime with a high rate of false reporting and consent can be an incredibly tricky thing to gauge in a sexual situation. Maybe sexual behavior should change so that that's not the case, but right now, there are men having sex with women, thinking they have consent, when they in fact do not. Criminalizing them means punishing them when they have perfectly good reasons to believe that they're following the law. To me, and I think to most people, the evil of branding someone as a rapist when they're intent was to follow the law is sufficient reason to keep these inferences the way they are.
posted by Bulgaroktonos at 10:00 PM on February 21, 2009


Sex is serious fucking business.

I know this is an off-hand remark, but this is what I'm trying to get at. Rape is serious business, and should be treated as such. Sex isn't and shouldn't be. If I seem offended by some of the ideas in the FPP links, it's because I'm deeply troubled by letting the unambiguous evil of rape so easily defame what should be the ethereal, general good of sex, and also because rape needs to be treated much more seriously than it is now, in terms of how it is considered in prosecution, but the cavalier attitude of assuming all sex to be rape unless stated otherwise goes against that, because common sense and experience rejects it. It cheapens the enormity of actual rape and sexual assault, in the false belief that the current problem at law is that too many rape charges are being thrown out or acquitted.

The problem is societal stigma keeping voctims from bringing charges to being with, and that's what needs to be focused on.From my own view, the less sexual experience is seen as an indelible stain upon any women who would admit to such an obscene (and universal) act, the less trouble there would be in bringing forth charges against those who commit sexual assault. But that's just my own view.
posted by Navelgazer at 10:00 PM on February 21, 2009 [2 favorites]


[A few comments removed. It would be great to try this again without pointlessly venturing down the path of idiocy that is making "feminazies" the introduction to your argument.]
posted by cortex at 10:03 PM on February 21, 2009


Allen, you're having a problem because you're ignoring an entire element of criminal law: the mens rea of the defendant.

In a robbery case, it is quite clear that if you prove the elements of the accusation the defendant had a guilty mind. No reasonable person could believe they were engaged in a consensual transaction if they hold another person at knifepoint and take their money. But in a case involving a rape accusation, merely establishing that intercourse took place is insufficient. Having the accuser say that no consent was given is also insufficient specifically when addressing the state of mind of the defendant.

You keep trying to make a false equivalence between the two cases. No, the fact that you claim your wallet is stolen is not enough to prosecute someone for robbery contrary to what you are claiming. The police would investigate and in the course of that investigation would have to determine whether the defendant knowingly took your wallet without consent. You can't handwave the investigation into the elements away because it doesn't suit your point.

No, simply claiming you were robbed is not enough to prove you were robbed or to convict someone of the robbery. It must be shown that the defendant knew he was committing a crime. For example if he used a weapon. This is exactly analogous to a rape trial. It must be shown that the defendant knew he was committing a crime. For example if he used a weapon.

In neither case is the purported victim's word by itself enough to convict. And in neither case is it enough no matter how many times you repeat it. You're building your argument on a strawman because the way you are claiming a robbery investigation goes down is not the way it actually does.
posted by Justinian at 10:16 PM on February 21, 2009 [4 favorites]


Rape is a crime with a high rate of false reporting

Really? We know this to be a fact?

and consent can be an incredibly tricky thing to gauge in a sexual situation.

Not if you ask for your partner's consent before you have sex.

I would suggest that if you find consent to be such an incredibly tricky concept, that you avoid coming into close proximity with anyone's genitals.
posted by peggynature at 10:21 PM on February 21, 2009 [2 favorites]


Justinian - you're missing the point and the question of mens rea is a whole new can of worms on which there's a lot of scholarship (what could a reasonable man think in a culture that constantly tells men that no means yes. Also, is it possible that the requirement of mens rea in rape cases reflects the gender of those who crafted the common law, etc).

Let me walk though what a theft case would look like if we employed the same default case as rape.

Me: Judge, that man stole my wallet. Look, the wallet he's holding has my license and credit cards in it.
Perp: Uh, he gave it to me. Honest.
Me: That's ridiculous, he took it right out of my pocket.
Perp: Yeah, but you never said no.
Me: Wat
Judge: Consent in these situations is tough. You're free to go unless you're black and the complainant is white. Then you're busted for reasons totally external to theft law.
Me: Wat
posted by allen.spaulding at 10:33 PM on February 21, 2009 [1 favorite]


Eh. I gave my brother a gift for his birthday and I bought a small present for a couple who shared the information that they are expecting their first child. I tipped the cab driver last night.

Good examples, but generally people have sex more than once a year or once in a lifetime. I'm not claiming that giving away property or money is uncommon, merely that having sex occurs more than the giving away of property, so it's not odd they're treated differently.

These were all voluntary transactions. Just because I tipped the driver doesn't mean that the guy on the street outside the cab can take my wallet. Furthermore, he can't point to the tip to prove that I wanted to give him my wallet too.

Sure, but these are relationships with strangers, but most rape victims know their rapists. As horrifying as this is, it doesn't seem unreasonable that the nature of the relationship and consent come up, since it is common for men and women to consent to have sex.

If sex is between two people is ok when they've both agree to it and wrong when one person hasn't consented yet it still occurs, then asking "did you say no" so that the one person is at least aware that the other isn't consenting seems logical
posted by Brandon Blatcher at 10:38 PM on February 21, 2009


Another point: in a robbery, whether or not the victim had a past history of charitable donations is not considered relevant. Whereas, in rape cases, the sexual history of the victim is often called into play to determine whether consent was likely given.
posted by peggynature at 10:39 PM on February 21, 2009 [1 favorite]


Except that I reject the idea that your example is accurate. You're oversimplifying criminal proceedings to the point of making them ludicrous.

That's not how robbery cases work. You don't just have some guy say "HE TOOK MY WALLET". You show the defendant has a criminal record, possibly. You show the accuser has an injury where the defendant hit him with the knife hilt or whatever. You show CCTV footage of the mugging take place. You present witnesses to the crime. And so on. You don't just plop some shlub up there and have him say "THAT DUDE STOLE MY WALLET".

A competent attorney would have you laughed out of court.
posted by Justinian at 10:40 PM on February 21, 2009 [2 favorites]


and I realize the glib example might hide what I'm trying to get at.

In rape cases, a defendant can point to the lack of a "no" to somehow establish the presence of consent. This is because the default state is that a victim consents to sex unless he/she clearly states otherwise.

In other crimes, such as theft, we do not assume that the victim consents unless he/she clearly states otherwise. If I am robbed of my wallet, a prosecutor does not have to prove that I said "do not take my wallet." If I am raped, it can be dispositive that I never said no. It's just that simple.
posted by allen.spaulding at 10:40 PM on February 21, 2009


Aside from the point that rape can and does occur without the use of weapons, Justinian's point is pretty well-stated. Thanks, Justitinan.

I would also clarify however, that the mens rea here is different from robbery, because in the date-rape form of offense you're like,y to get a good number of people who think what they're doing is okay, but really isn't. I believe that mens rea is truly at issue here, but that, if a standard is to be shifted for rape (and in truth I'm really stating the case as it asctually is today) it would be one of shifting the mens rea of the defendant not quite, but very near to strict liability. A heightened negligence standard, I guess, which doesn't allow intoxication as a defense, but would let those rare possible cases of, say, a wife caught in infidelity who claims rape on the part of her paramore (just as a hypothetical) not qualify.
posted by Navelgazer at 10:41 PM on February 21, 2009


Whereas, in rape cases, the sexual history of the victim is often called into play to determine whether consent was likely given.

Errr... maybe in 1970 or something. Virtually everywhere in the united states is covered by rape shield laws:

http://www.ndaa.org/pdf/vaw_rape_shield_laws_may_05.pdf
posted by Justinian at 10:42 PM on February 21, 2009 [3 favorites]


then asking "did you say no" so that the one person is at least aware that the other isn't consenting seems logical

But why should it be up to the victim to say "No" moreso than it is up to the perpetrator to receive a "Yes" before proceeding?
posted by peggynature at 10:42 PM on February 21, 2009


peggynature: as I said above, there are pretty strict rules forbidding any mention in court of the previous or subsequent sexual history of an alleged rape victim for exactly the reasons you're thinking of.
posted by Navelgazer at 10:44 PM on February 21, 2009 [1 favorite]


Navelgazer: I'm responding to Brandon Blatcher's comment.
posted by peggynature at 10:45 PM on February 21, 2009


sorry, my bad. wrong comment.
posted by peggynature at 10:45 PM on February 21, 2009


How did we come to a point where people that have clearly never been in a sexuality satisfying relationship are taken as experts wrt sex?
posted by vapidave at 10:47 PM on February 21, 2009


Er, sexually. Wish I could rub that one out.
posted by vapidave at 10:49 PM on February 21, 2009


I dunno who you're referring to, vapidave (eponysterical?), but aside from the idiots whose comments are deleted, I believe most people are now discussing some rather fundamentally important tenets of criminal law.
posted by Justinian at 10:54 PM on February 21, 2009


[eggynature: no worries. I too wish for better rape prosecution, as we desperately nee dit, I just want it to be good law, and I want the state of the current law to be clear.

FWIW, the relevant cite is Federal Rules of Evidence §412(b)
(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of an offense under chapter 109A of title 18, United States Code, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is--

"(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or

"(2) admitted in accordance with subdivision (c) and is evidence of--

"(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or

"(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which such offense is alleged.
These rules, dubbed the "Rape Shield Law" are generally interpreted with deference towards the plaintiff, in order to keep out any discussion of whether the plaintiff may or may not have enjoyed sex before the alleged attack.
posted by Navelgazer at 10:57 PM on February 21, 2009 [2 favorites]


Let me walk though what a theft case would look like if we employed the same default case as rape.

Before you were comparing robbery to rape, but now you're comparing theft and rape. But theft and robbery are different.

Robbery is defined as "as theft/larceny of property or money through the offender's use of physical force or fear against a victim."

Theft is a different category, "typically defined as the taking of almost anything of value without the consent of the owner, with the intent to permanently deprive him or her of the value of the property taken" There's no physical property stolen in rape and a person certainly deprive of value because they were raped.

On preview:
But why should it be up to the victim to say "No" moreso than it is up to the perpetrator to receive a "Yes" before proceeding?

Because they aren't victim and perpetrator at this point, they're just two people possibly getting ready to engage in one of the most common human activities. If someone doesn't want to do that, they should say "No".
posted by Brandon Blatcher at 10:58 PM on February 21, 2009 [3 favorites]


Oh allen, that wasn't a gotcha, but a request for clarification. Are comparing rape and robbery or rape and theft?
posted by Brandon Blatcher at 11:00 PM on February 21, 2009


If someone doesn't want to do that, they should say "No".

And if someone doesn't want to not only commit a crime, but traumatize their partner, they should ask for consent.
posted by peggynature at 11:01 PM on February 21, 2009 [6 favorites]


I realized that there was some confusion with theft/robbery, which is why I included the MPC element that turns theft into robbery so long as the amount in question qualifies as a felony. It's possible to have robbery without force/fraud/coercion, which is what I was getting at for the analogy. I don't really see how that changes anything.

Again, the basic premise hasn't be challenged. In a theft case, the fact that I did not say yes to having my property taken is what matters. Nobody would dare say that someone who stole my car was able to do so because I never said no. Why is it any different in rape? Shouldn't the real question be whether or not the victim said yes? Why is there a different standard in theft?

And while I think the rape shield discussion is ultimately an unfruitful divergence based on some posters not being fully up-to-date on changes in evidence law, it's worth noting how these issues have evolved. We've come a long way in how we treat rape, but only through serious agitation and activism to repair a deeply broken set of laws. This history doesn't weigh one way or another on whether or not this issue also needs to be addressed, but let's at least appreciate the hard work of prior feminists who fought hard for things like rape shield.
posted by allen.spaulding at 11:04 PM on February 21, 2009



Again, the basic premise hasn't be challenged. In a theft case, the fact that I did not say yes to having my property taken is what matters. Nobody would dare say that someone who stole my car was able to do so because I never said no.


Repeating it doesn't make it true. I've rejected your premise repeatedly. What matters is not "the fact" that you did not say yes to having your property taken, it is proving beyond a reasonable doubt that some other party took your property against your will. That is not the same thing as you just SAYING that you had your property taken.
posted by Justinian at 11:12 PM on February 21, 2009 [2 favorites]


Having read through the thread (and enjoyed it - this is interesting stuff, the sort of thing I come to Metafilter for), I can't quite get allen.spaulding's point re: robbery/rape comparison.

The equivalence I would think holds between a robbery case and a rape case would be:

Step 1: proof that a transaction occurred = proof that sex took place
(guy A had object, now guy B does)

Step 2: proof that the transaction was a robbery = proof that there was no consent
(proof that the victim did not consent to the exchange)

I'm not a jurist, so maybe I'm wrong about how these things are actually handled in court. But isn't the burden of proof, in both the presence of a transaction and the absence of consent, placed on the prosecution? Don't they have to demonstrate that the victim was, in fact, a victim? And if so, how is this different from the case of the prosecution in a rape case having to demonstrate that sex took place and that there was no consent? In both cases, the defendant is presumed innocent until shown to be guilty by the prosecution, which is one of the foundational principles of our legal system.
posted by AdamCSnider at 11:15 PM on February 21, 2009


Justinian - the ultimate question in such a theft case is whether or not the victim said yes. The entire trial will revolve around the question. If the prosecutor can prove I did not say yes, the accused thief is convicted. If the defense successfully establishes a reasonable doubt about whether or not I said yes, then the defendant is acquitted. This is what it means to prove beyond a reasonable doubt that my property was taken without my consent.

In a rape case, the question is not whether or not the victim said yes, it's whether or not the victim said no. The prosecution will try to prove that I did say no. The defense will try to establish reasonable doubt that I did not. This is what it means to prove beyond a reasonable doubt that I was raped.

These are different standards. You seem to have some knowledge of how criminal trials operate. Imagine how ridiculous it would be if the entirety of a theft trial revolved around whether or not the victim said "don't steal my wallet."

There are different default states in these two crimes.
posted by allen.spaulding at 11:17 PM on February 21, 2009


Nobody would dare say that someone who stole my car was able to do so because I never said no. Why is it any different in rape?

Because rape is different? Physical property isn't taken in rape and most robbery or theft is done by strangers. Rape in a more intimate crime, where the victim usually knows the perp, so it complicates the situation, determining whether consent for an activity most people want to engage in was actually consensual in a particular instance.

Shouldn't the real question be whether or not the victim said yes?

Most people want to have sex, so it's to them to communicate when they don't actually want to.
posted by Brandon Blatcher at 11:21 PM on February 21, 2009


Part of being a good man, I teach, is not being a relentless advocate for your own pleasure. Part of being a good sexual partner is not using a variety of psychological (and chemical) tactics to turn the red light to green, to turn the “no” into a “yes”, or even worse, to simply wait until the young woman has grown tired of saying “no” and falls into a resigned silence. This is all part of the “how not to be a rapist” workshop.

I read this and I think "Duh."

Does any of this seem genuinely complicated to anyone? Being clear that there is consent doesn't necessarily mean getting out the carbon-copy forms to be signed and initialed in triplicate, or to use some stiltifying, clinical language, or to be crude. You can gauge consent romantically, sexily, even humorously. It's not rocket science. But I guess if you have a hard time approaching women from a place of respect, the whole considering-what-another-person-wants-and-feels thing is one big muddy cloud to peer through.
posted by Marisa Stole the Precious Thing at 11:23 PM on February 21, 2009 [5 favorites]


Wow. I usually just kiss the guy first, it seems to clear things up pretty well.

Then again, I grew up in the "want to fuck?" years.
posted by The Light Fantastic at 11:24 PM on February 21, 2009


Step 1: proof that a transaction occurred = proof that sex took place
(guy A had object, now guy B does)

Step 2: proof that the transaction was a robbery = proof that there was no consent
(proof that the victim did not consent to the exchange)


This is exactly what I was just thinking about. And how does one go about proving that something (i.e. consent to sex in the case at hand) does not exist?
posted by peggynature at 11:25 PM on February 21, 2009


A question for those who advocate for a default lack of consent: Do you always obtain affirmative consent before you begin any sexual activity with a partner?
posted by ssg at 11:25 PM on February 21, 2009


Most people want to have sex, so it's to them to communicate when they don't actually want to.

No.
posted by peggynature at 11:26 PM on February 21, 2009 [4 favorites]


It's possible to have robbery without force/fraud/coercion, which is what I was getting at for the analogy

Ha, I should have previewed. Seriously, though, I assume here you're talking about cases where the victim is unaware of the robbery/theft? Is there an analogous case with rape, where the victim is aware of what's happening? Or perhaps I'm missing something.

We've come a long way in how we treat rape, but only through serious agitation and activism to repair a deeply broken set of laws. This history doesn't weigh one way or another on whether or not this issue also needs to be addressed, but let's at least appreciate the hard work of prior feminists who fought hard for things like rape shield.

Hear, hear, and I don't think anyone is saying we shouldn't appreciate said hard work, or agitate seriously in the service of reform - the question at hand seems to be whether the offered prescription for reform (shifting the burden of proof farther over towards the accused) will do more good than harm in both the case of rape and in terms of the impact on the justice system as a whole.
posted by AdamCSnider at 11:26 PM on February 21, 2009


Because rape is different? Physical property isn't taken in rape and most robbery or theft is done by strangers. Rape in a more intimate crime, where the victim usually knows the perp, so it complicates the situation, determining whether consent for an activity most people want to engage in was actually consensual in a particular instance.

Rape may be different for a number of reasons, but I don't know if that's a strong argument for the current default state where consent is presumed. Because the victims know the perpetrators, shouldn't it be easier for them to communicate and establish affirmative consent? Sure physical property isn't taken, but I don't really see that playing an important role. This is an honest question, I just don't see why we should have a higher bar for proving that an alleged rapist didn't have consent than an alleged thief.
posted by allen.spaulding at 11:26 PM on February 21, 2009


A question for those who advocate for a default lack of consent: Do you always obtain affirmative consent before you begin any sexual activity with a partner?

Have you not read any of the linked articles? That is EXACTLY what is proposed with the idea of "enthusiastic consent."
posted by peggynature at 11:27 PM on February 21, 2009


Does any of this seem genuinely complicated to anyone?

'course not, but you're not a rapist, which is the point. Reasonable men can ascertain consent and even if they find out they're wrong or the woman has changed her mind, they can back off. They might even be angry about it, but they don't force themselves on the woman.

It's the ones with mixed up notions or bad wiring in their head that are the problem.
posted by Brandon Blatcher at 11:30 PM on February 21, 2009


And how does one go about proving that something (i.e. consent to sex in the case at hand) does not exist?

One would presume testimony under cross-examination of the defendant, victim and any witnesses. Look for weaknesses in the stories of the accused and the accuser, look at the former's past history for any similar crimes. Would it be any more difficult to pass the "reasonable doubt" bar here than in the analogous theft case?
posted by AdamCSnider at 11:32 PM on February 21, 2009


Seriously, though, I assume here you're talking about cases where the victim is unaware of the robbery/theft? Is there an analogous case with rape, where the victim is aware of what's happening?

Erm, yes?

It's the ones with mixed up notions or bad wiring in their head that are the problem.


I agree. It just depresses me whenever I read or hear men express exasperation over how "complicated" courting rituals are. Ascertaining whether or not the other person wants to engage in sexual relations with you is the easy part. Ascertaining whether or not the other person really means it when they tell you they like your music, or enjoyed the dinner you cooked - that's where it becomes a tale of danger and intrigue.
posted by Marisa Stole the Precious Thing at 11:34 PM on February 21, 2009 [3 favorites]


Have you not read any of the linked articles? That is EXACTLY what is proposed with the idea of "enthusiastic consent."

I have, in fact, read them all. My question, however, is about the legal issue that is being discussed in this thread that stems from the quote from the I Blame the Patriarchy in the FPP. There is a world of difference between the position taken, for example, by Hugo Schwyzer (obtain enthusiastic consent from those you don't know well), and that taken by Twisty (though I think, after having read her blog for a while, that people here are taking her quote much too seriously).
posted by ssg at 11:42 PM on February 21, 2009


Do you always obtain affirmative consent before you begin any sexual activity with a partner?

Do you mean verbal, or do physical cues count (such as the partner trying to knock your teeth out through the back of your skull with his/her tongue)?

There are two issues sitting side by side in this thread - how we treat women outside of versus inside the courtroom (at the bar versus before the bar, you might say). Reflecting on how I personally go about things, I guess I do presume lack of consent, and don't feel this to be a hardship or injustice in any way. And I don't assume competence, which is also a serious issue for me (how drunk are you, precisely?). But this is a situation in which assuming such constraints causes no injustice, whereas setting them inside would. Whereas in a courtroom, the potential for injustice goes both ways: assuming consent and putting the burden on the victim risks letting the rapist go free, whereas setting the burden on the defendant risks sending an innocent man to prison.
I appear to be meandering somewhat. Anyway, time for me to leave this thread and go sleep on the questions it has raised.
posted by AdamCSnider at 11:43 PM on February 21, 2009


Ascertaining whether or not the other person wants to engage in sexual relations with you is the easy part.

Only if people are completely honest with themselves, and they almost never are. If you really, really want an an intimate relationship with specific someone, you'll probably distort reality a bit to play down the evidence that they don't reciprocate, and play up the evidence that they do. To a neutral third party it's all as clear as daylight.
posted by Ritchie at 11:43 PM on February 21, 2009


Only if people are completely honest with themselves, and they almost never are. If you really, really want an an intimate relationship with specific someone, you'll probably distort reality a bit to play down the evidence that they don't reciprocate, and play up the evidence that they do. To a neutral third party it's all as clear as daylight.

I don't deny this happens, of course. I just don't think being honest, and being clear, is on a plane with particle physics.
posted by Marisa Stole the Precious Thing at 11:48 PM on February 21, 2009


I think part of the problem here is that sure! take my wallet! enjoy! has never happened, ever. In fact, if someone in the street said give me your wallet, I'd totally do it - and assuming I could ID the guy and he got arrested and etc. - it wouldn't matter that I hadn't said no, or that I "willingly" gave it to him, because the threat is implied. Because people don't go around asking for and being given wallets, as a rule. Sex, though, is entirely different, in that people have sex all the time, and the vaaaaaast majority of instances of sex are consensual. As for this comment:

Imagine how ridiculous it would be if the entirety of a theft trial revolved around whether or not the victim said "don't steal my wallet."

Rape trials don't work that way, either. Sometimes it's about whether the victim said "no", but not when the victim is passed out or underaged or acting under an implied or overt threat of violence... I don't think there's any misogyny behind the notion that the transfer of a wallet is likely a crime, and any given instance of intercourse is likely not. The other problem with the affirmative consent idea is that it's meaningless if you accept (and I hope we all do) that consent can be withdrawn at any time.
posted by moxiedoll at 11:49 PM on February 21, 2009 [3 favorites]


ssg: I see what you're saying. Near as I can tell, the answer to your question is, "Yes."
posted by peggynature at 11:50 PM on February 21, 2009


Do you mean verbal, or do physical cues count (such as the partner trying to knock your teeth out through the back of your skull with his/her tongue)?

Those who advocate for default non-consent would have to answer that. From a legal perspective though, anything less than verbal consent would seem to be pretty murky. The physical cues might be clear as day to you in the moment, but it would get tricky to prove that sufficient physical cues were given to establish affirmative consent in court.
posted by ssg at 11:50 PM on February 21, 2009 [1 favorite]


I'm going with verbal, based on the same post I linked earlier.
posted by peggynature at 11:56 PM on February 21, 2009


No.

Ok, but that doesn't really settle anything.

I just don't see why we should have a higher bar for proving that an alleged rapist didn't have consent than an alleged thief.

I think that is a good question. In theft only property is taken, but in rape a person is physically violated. Perhaps it has to do with engrained American beliefs that property is supremely important.

Curious, are you advocating a verbal ascertaining of consent in order for sex to occur?

Ascertaining whether or not the other person wants to engage in sexual relations with you is the easy part.

Again, that's part of the problem, because some people can't ascertain that. Surely you've read Askme, eh?
posted by Brandon Blatcher at 11:56 PM on February 21, 2009


Ok, but that doesn't really settle anything.

It settles that you cannot seriously make the claim that "most people" walk around desiring sex, and that therefore their consent to sex is implied by their mere existence as humans. It's ridiculous proposition.
posted by peggynature at 11:59 PM on February 21, 2009 [3 favorites]


Clearly pointing out that there is a gross oversimplification of what happens in rape/robbery trials going on isn't working so I'll try this route:

Allen&Brandon, the endgame of what you're proposing (I reject the equivalence you are making, but lets assume it holds) is that in a case where both parties stipulate that intercourse occurred, without evidence of physical trauma, without any witnesses to the event, without any drugs or alochol involved, and without a history of any sort of criminal activity on the part of either pary... but party A claims he or she was raped by party B while party B says it was consensual, we should put party B in jail for many years?

Is that what you're saying? Because it sure sounds like it.
posted by Justinian at 12:07 AM on February 22, 2009 [1 favorite]


Near as I can tell, the answer to your question is, "Yes."

Good for you, but I suspect you are very much in the minority if the standard is affirmative verbal consent prior to every sexual encounter.
posted by ssg at 12:13 AM on February 22, 2009


It settles that you cannot seriously make the claim that "most people" walk around desiring sex, and that therefore their consent to sex is implied by their mere existence as humans.

No, really, most people do want to have sex. That doesn't mean they want to have it every day or with everyone they meet or that fact makes rape ok. But yeah, people do want to have sex, it's almost a biological impulse.

Allen&Brandon

Whoa, I think we came to this party in separate cars.
posted by Brandon Blatcher at 12:15 AM on February 22, 2009


Good for you, but I suspect you are very much in the minority if the standard is affirmative verbal consent prior to every sexual encounter.

I actually wasn't referring to myself personally, so you can take back your best wishes. I was referring to the opinion of other posters on the topic
posted by peggynature at 12:22 AM on February 22, 2009


Again, that's part of the problem, because some people can't ascertain that. Surely you've read Askme, eh?

Goodness yes. But ascertaining consent to sexual union is still simple. For this reason, I cannot understand the desire that sometimes arises to be more lenient towards those who don't know how to play nice with others, as if to place the expectation upon them that they behave like civilized human beings is somehow unfair. I applaud the efforts of those who try and educate those who react with surprise to hear that having sex with a woman who you've been feeding tequila shots all night is reprehensible. It must be exhausting to hold classes on the subject. I do think, however, that it behooves us all to speak up when you hear about situations like that, to point out that it's not cool to pull shit like that, and explain why.
posted by Marisa Stole the Precious Thing at 12:25 AM on February 22, 2009


Brandon, just because having sex is a biological impulse for many, or even most people, it does not automatically follow that the burden of consent for sexual intercourse rests on the person who wants to refuse the intercourse rather than on the other person to gain their partner's consent.

Just because most people, say, eat food in order to stay alive, one cannot presume that, in the absence of a person yelling, "NO! I'M NOT HUNGRY!" you are allowed to stuff food down their throat. You ask them, politely, if they want some. If they decline, that's the end of the discussion. But you ASK. You don't PRESUME.
posted by peggynature at 12:25 AM on February 22, 2009 [2 favorites]


And I am going to bed. Goodnight all.
posted by peggynature at 12:27 AM on February 22, 2009


in a case where both parties stipulate that intercourse occurred, without evidence of physical trauma, without any witnesses to the event, without any drugs or alochol involved, and without a history of any sort of criminal activity on the part of either pary... but party A claims he or she was raped by party B while party B says it was consensual, we should put party B in jail for many years?

The question isn't whether I want B in jail for many years, but what the standard ought to be for B to be convicted. The contested evidence presented ought to be about whether A said yes, not whether A said no. If B can convince a jury that there existed a reasonable doubt that A said yes, B does not go to jail. If all B can show is that A did not say no, then B goes to jail.
posted by allen.spaulding at 12:50 AM on February 22, 2009


This extended comparison with theft, to me, is an invitation to analogical reasoning where logic suffices. I think a better reason to adopt a new standard of conviction would be compelling evidence that the tragedy of guilty rapists exonerated by the present "no" standard will outweigh (N Guilty men, Volokh) the tragedy of innocents wrongfully convicted by a "yes." We can twist similes inside out to some reward, but discussions of social consequence seem to benefit much more by drawing on fact. We create damages either way we move; we should account for them.

Admittedly, I set my N ungodly high, and it's because our prisons are landfills for people. I'll look more kindly on the rhetoric of "more convictions" the day this changes.
posted by kid ichorous at 2:09 AM on February 22, 2009


allen.spaulding,

I think moxiedoll has directly answered your fundamental objection: why are there different default settings (though I agree with the other posters that there aren't actually two standards and that you are misunderstanding or oversimplifying things, but perhaps understanding this will lead you to see that there never was a difference):

I think part of the problem here is that sure! take my wallet! enjoy! has never happened, ever. In fact, if someone in the street said give me your wallet, I'd totally do it - and assuming I could ID the guy and he got arrested and etc. - it wouldn't matter that I hadn't said no, or that I "willingly" gave it to him, because the threat is implied. Because people don't go around asking for and being given wallets, as a rule. Sex, though, is entirely different, in that people have sex all the time, and the vaaaaaast majority of instances of sex are consensual.

She is right. It is logical to default lack of consent for theft of a wallet because a consensual exchange of wallets is so vanishingly rare as to be non-existent. If someone else has my wallet, it's because he took it against my will. This holds not just for wallets, but for anything. If I'm missing a wad of cash, and you have it, people aren't generally in the business of handing out wads of cash for no reason. If you have my car, people aren't generally in the business of giving out cars to strangers. If you want to claim that I gave it to you, you're going to have show that, despite normal practice, I did give you this cash or car. There is a reasonable presumption that people don't just give away their property.

When it comes to sex, on the other hand, it is not logical to assume non-consent. If someone is having sex, the vast majority of the time it is not rape. There is a reasonable presumption that people have sex with each other consensually, because this is true in the vast majority of cases. So if we have a case where sex has occurred and one party is claiming it as rape, the prosecution must prove that key element: lack of consent. They must do this by showing that the normal situation is not present, that the alleged victim didn't consent. Remember, there isn't a perp/victim status yet: what the accuser is saying must be shown to be true.

Does this help you? We're not all rape-loving, women-hating monsters here; there is a lot of disagreement with you over these examples for a reason.
posted by Sangermaine at 3:25 AM on February 22, 2009


The question isn't whether I want B in jail for many years, but what the standard ought to be for B to be convicted. The contested evidence presented ought to be about whether A said yes, not whether A said no. If B can convince a jury that there existed a reasonable doubt that A said yes, B does not go to jail. If all B can show is that A did not say no, then B goes to jail.

allen.spaulding: I think your whole argument presumes that such a situation doesn't already happen, and I'm not sure that presumption is correct.

Depending on the circumstances, a person might indeed go to jail for many years, if they couldn't create some reasonable doubt in the jury's minds about the consent being there. Depending on the circumstances, a jury might very well look at an alleged rape in exactly the way you're asking for them to do.

Someone who is raped by a stranger at knifepoint in an alley — similar to an armed mugging but with sex as the "transacted" good rather than money — is not, I think, going to be spending a lot of time on the witness stand talking about whether they wanted that sex to happen. Like the mugging, it's going to be pretty clear from the situation that they didn't want it, and I doubt very much that any defense attorney for the accused is going to try to mount a "but she wanted it" strategy. Insofar as cases like that actually happen (and they do, they're just not as common as date/acquaintance rape) I think that juries already take a pretty dim view of consent claims by the accused, and would look on it not unlike they would a mugger claiming that the guy who just finished up at the ATM handed over his wallet voluntarily and then got giver's remorse immediately afterwards. It's equally ridiculous.

Where a hypothetical jury might weigh a consent-based defense more carefully are in situations where the circumstances make it seem plausible. Trying to compare these cases to a street-corner stickup just doesn't work, because they're not similar. Nobody is going to believe that someone walking away from an ATM with a few hundred bucks just decided to spontaneously give it to someone else who happened to be pointing a gun at them; they're going to laugh at the whole line of thinking (absent some special case that might make it plausible, of course). Likewise, I really don't think, nor have I heard of any recent examples from the U.S. or countries with similar legal systems, of a jury taking seriously a forcible stranger-rapist's claims that the victim "really wanted it." It's a strawman. If it happens, it would be a travesty and an affront to justice, but I don't think it's the rule, at least not anymore.

Where juries probably do take those sorts of arguments seriously are in situations where, for some reason, they seem plausible and look like they might hold water. It's impossible to categorically discuss such situations because they tend to hinge on the very details that make them unique, but I don't see any reason why mounting a consent-based defense should be off the table 100% of the time. And if you wanted to find a property-based corollary to these crimes, you'd be looking at something much more complex than a simple street robbery (date rape might be better equivocated to some sort of business fraud between partners). Juries would almost certainly hear about details of the relationship between the parties in such a case as well, and the issue of consent or permission would be pretty relevant, I'd imagine.

For the record, I'm quite in favor of always obtaining positive consent, in as unambiguous a way as possible, all the time, but I don't think that we'll ever manage to fit such a nuanced activity as sex and courtship into the rigid framework of contract law. There is always going to be a gray area that juries will have to plow through, and we can only hope they take their responsibilities seriously.

Plus, as some others have also said upthread, I think the really major problem to how rape is handled in our society isn't in the courtroom, it's in how rape victims are treated before they ever get there, and in the number of cases of bona fide rape that never make it before a jury. Arguing over details of how juries should be instructed doesn't help much when most rapists never have to worry about being prosecuted because their crimes are never reported.

And, of course, the more we can do to make all sexual activities a meeting-of-equals rather than a girl-gives-guy-gets dynamic (which, at least IMO, requires ready access to reliable contraception), the better for everyone concerned.

posted by Kadin2048 at 3:44 AM on February 22, 2009 [1 favorite]


Inspector.Gadget's original criticism is completely correct that a civilized society places the burden of proof upon the prosecutor. Any other standard of proof risks creating some monster, like say the current asset forfeiture laws.

I'd say all this distracts from the real problem that rape victims suffer too much from the trial process. You know, you'll only make that part worse if you change the standards of proof. Asset forfeiture laws already make society dislikes the police much more, but they don't send anyone to jail. Otoh, lower standards of proof for rape will send people to jail while focusing all the social blowback on the victims. You'll also greatly increase the change the victim gets forced to testify during the appeals process.
posted by jeffburdges at 3:46 AM on February 22, 2009


I'd say that Twisty's emphasis on heterosexual congress is a dead giveaway. Surely, her basic idea would also apply to homosexual relations, turning not just 100% of heterosexual males, but also pretty much every gay and lesbian person into a rapist. Or is it only rape when there's a penis involved?

Apart from that, applying the same standards to heterosexual females would also land most of them in jail: much as we men hate to admit it, we aren't always-ready sex machines, and I don't think there are many non-virgin men who haven't done the dirty deed at least once without really having their hearts into it.

In short: if this is a "thought experiment", then only in the head of a woman who, by her own admission, can't really wrap it around the idea of having sex with a man. I can't blame her (hey, I feel the same!), but I don't want her to blame me either...
posted by Skeptic at 4:49 AM on February 22, 2009 [1 favorite]


While I think broadening the spectrum of responsibility to include homosexual relationships goes without saying, I don't think you can honestly say the gender playing field is so level that "applying the same standards" means a man engaging in a half-hearted pity lay is being raped. I don't think I need to go into all the ways in which women are pressured, in their daily lives, to give the appearance of being available sexual creatures, nor the double standard by which the same men who praise men are for engaging in random sexual encounters shame women for having them. I wish we did live in a world where we could draw the kind of equivalencies you're talking about, but we just don't. There's nothing wrong with erring on the side of caution.
posted by Marisa Stole the Precious Thing at 5:03 AM on February 22, 2009 [1 favorite]


Marisa: the "pity lay" is just but one of several possible scenarios. Another (more frequent one) may be in a loving, committed relationship, when one of the partners feels like having sex, and the other...not so much. As biology has it, the first one will usually, but not always, be male. To push things even further, we could even explore the possibility that, during a consensual sexual act, the male...er...finishes first (not that it ever happens), but keeps going, albeit unenthusiastically, until she gets her climax(es). Is she a rapist?

As for women being "pressured" to give the appearance of being available sexual creatures: aren't we men even more pressured in that direction?
posted by Skeptic at 5:44 AM on February 22, 2009


I'm not seeing how the default being "no" changes anything at all. Won't rapists just change their defense from "She didn't say no" to "She did say yes"?
posted by ymgve at 5:58 AM on February 22, 2009


Marisa: I want to make sure I understand - does the inequality in the gender playing field (which I certainly recognize) mean that in the case of a "pity lay" a woman could consider herself a victim of rape, but never a man?
posted by werkzeuger at 6:09 AM on February 22, 2009


I am very frustrated.

Twisty gives a thought experiment to give people the opportunity to think about what it's like to be a woman living in a legal/cultural system that makes it relatively easy for you to be raped and relatively impossible for a rapist to be 'brought to justice'.

The whole point is encouraging critique of our current legal and cultural milieu, but the knee jerk reaction seems to be the desperate defense of the status quo.

I wrote this on another thread:

"Innocent until proven guilty" no longer applies to accusations of sexual assault. As long as the accused cannot show that the accusation is impossible, ie, he was not in the place at the time, there were witnesses the whole time, etc, he will be convicted of sexual assault and punished.

This would so neatly reverse the burden of the risk of rape and the work of rape prevention. Instead of women being at the mercy of unscrupulous men, men would be at the mercy of unscrupulous women. Men would have to worry about how they should behave, who they should be alone with, where they go when, whether it's worth the risk to be out and about alone and unaccounted for, how well they know someone before they'll be alone with her, the fact that you can never really know someone well enough to really know, the uncertainty about how angry he can make her or what he can say to her before she'll consider using this handy tool that's available to her for significantly damaging his life, etc.

Yeah, men would end up in jail who hadn't raped, but as long as that number isn't higher than the number of women who are raped, we're not really any worse off, communally.

Is that terrifying? It should be. But not more so than the world that women live in now.


It seems to me that the fact is that Twisty's thought experiment reverses the power dynamics in sexual relations, and that's terrifying for some. Which is a sign that things now really really suck, and anyone who cares as much about women as about men should be scrambling to find ways to improve things so that the prospect of an about turn needn't be scary.

A big step would be changing the idea that sex is more important that the risk of non consensual sex, expressed in ways such as: oh but it's so complicated. people can't be trusted to say what they mean, especially when inebriated. people (women) play coy. people don't know how to be sexy and explicit. If you really think that rape is bad, then it will be obvious that it's better to step back from any sexual situation where consent is not 200% clear. Yes, even if it meant never having sex. Because one person's desire never outweighs the other person's bodily integrity.

Another step is what Twisty is getting to - the onus should not be to say no. When I was visiting the UK, there was a news story about a guy who 'had sex' with a woman whose legs he saw sticking out into an alley (something like that). It turned out she was dead at the time, so he was perhaps going to be tried for necrophilia. He said he didn't realize she was dead, and she never said 'no' so he didn't think he'd done anything wrong. There was no mention in the article that even if the necrophilia was on accident, it was rape on purpose. Apparently plenty of people think a man doesn't even have the onus of making sure his partner is alive, let alone that she consents, with the implication that it's reasonable for a man to assume that a woman he finds passed out on the street would not object to him 'having sex' with her, and as long as she doesn't explicitly say that she doesn't want something, he can go ahead and do whatever he wants.

That's how 'sex' looks with a presumption of consent.
posted by Salamandrous at 6:48 AM on February 22, 2009 [4 favorites]


Is it only rape when there's a penis involved?


Yeah, pretty much. There can be sexual assault without penetration, which is also a punishable offense, but as I see it, rape is about penetration. A penis is like a handgun in form, function, in the amount of damage it can inflict, the hair-trigger consequences of poor judgment--the sober responsibility that comes with ownership.

we aren't always-ready sex machines

Yeah we are. You know, I define Evolutionary Psychology as an attempt to explain why things are the way they are, and Eco-Psychology as an attempt to establish how things ought to be . . . just because men have been raping women and children for thousands upon bloody thousands of years shouldn't mean we must accept rape as part of our nature. Nevertheless in my real-world experience the only time we're not ready for sex is immediately after we've had sex.

Women can and do use sex as currency but only because men have created an environment in which sex is commodified; it is men who made Patriarchy a bad word.
posted by Restless Day at 6:54 AM on February 22, 2009


Restless Day: There can be sexual assault without penetration, which is also a punishable offense, but as I see it, rape is about penetration.

If you think that a penis is necessary for penetration, then you've had a very sheltered life, my dear.

Salamandrous: Twisty gives a thought experiment to give people the opportunity to think about what it's like to be a woman living in a legal/cultural system that makes it relatively easy for you to be raped and relatively impossible for a rapist to be 'brought to justice'.

No, it bloody doesn't. Rape is generally considered, by men and women alike, as an odious crime, the worst sort of bodily assault short of homicide. In most societies, even extremely patriarchal ones, it is very severely punished by law, and even alleged rapists carry a great stigma. Do you want to ruin a man's life? Accuse him of rape: whether he's convicted or not, he will become a social pariah. And convicted rapists will be at the very lowest rung of the convict hierarchy. To pretend that "it is easy to rape and get away with it" is seriously delusional.

And this is good so, for rape is an odious crime and its victims are left scarred for life. However, as for any other crime, the accused should be considered innocent until proven otherwise. To consider any sexually active male guilty by default is to exploit the victims of this odious crime to your own batshitinsane political ends, and, quite frankly, it sucks.
posted by Skeptic at 7:50 AM on February 22, 2009


BTW, I'd recommend all those who defend Twisty's standpoint to read or re-read "To Kill a Mockingbird". It was written by a woman, and it shows quite clearly why presumption of innocence and a proper trial are important, even in rape cases.
posted by Skeptic at 7:54 AM on February 22, 2009


As for women being "pressured" to give the appearance of being available sexual creatures: aren't we men even more pressured in that direction?

Perhaps. But we hold a stronger position in our society from which to fight this pressure, whereas women are, for historical and social reasons, worse off in this regard.

the knee jerk reaction seems to be the desperate defense of the status quo

No, the knee jerk response is to say that throwing out "innocent until proven guilty" is a stupid way to deal with the serious problems inherent in the status quo.

Yeah, men would end up in jail who hadn't raped, but as long as that number isn't higher than the number of women who are raped, we're not really any worse off, communally.

This is precisely where I see the problem. You can take a shift in the burden of proof regarding rape and then apply it to any other crime. After all, if the number of men who end up in jail who haven't stolen something/killed someone/dealt drugs isn't higher than the number of people who are killed/stolen from/sold drugs every year, then that makes it fine to presume guilt until innocence is proven in those cases as well, right? This isn't a change that, as some in this thread seem to assume, can be simply isolated to a single subset of crimes. It will spread, and probably spread rapidly, to infect the entire system.
posted by AdamCSnider at 7:57 AM on February 22, 2009


The question isn't whether I want B in jail for many years, but what the standard ought to be for B to be convicted. The contested evidence presented ought to be about whether A said yes, not whether A said no. If B can convince a jury that there existed a reasonable doubt that A said yes, B does not go to jail. If all B can show is that A did not say no, then B goes to jail.

This absolutely shocks me. allen.spaulding, I sincerely hope, for the sake of criminal defendants everywhere, that you have no involvement with the criminal justice system. Because this statement perverts the very foundations of a criminal trial.

What is one of the first things that almost every set of criminal jury instructions starts out with? What is one of the first things that almost every closing argument by the defense includes? The defendant does not have to prove anything. And yet here you're suggesting that the burden of proof, solely in the universe of rape cases, be reassigned to the defendant such that he needs to "convince" the jury of consent to avoid conviction. Why?

You posit some analogy between rape and theft. You say that if a larceny defendant put on a defense that the alleged victim willingly gave up their wallet, the burden would be on the defendant to prove that. That's simply incorrect. Under the MPC definition of theft that you supply, one of the elements of the crime is an "unlawful taking of moveable property." The burden is on the prosecution to prove every element of its case, including that the taking was unlawful. The defendant does not have to prove anything.

Now, perhaps you don't really mean to say that there should be a unique shifting of the burden of proof in the case of rape (though that's certainly what Twisty meant in her "thought" experiment, and I use the term loosely). Maybe you mean that factfinders should view the defense of consent in the case of rape with the same skepticism as the defense of gifting in the case of larceny. To this I'll simply reiterate moxiedoll's post.
posted by Law Talkin' Guy at 8:05 AM on February 22, 2009 [1 favorite]


I signed up for a LiveJournal account, couple years ago, because of Twisty's blog. Her hackles automatically go up when a man--any man--comments on her posts, even if (or especially if) he's agreeing with her.
In my journal I wrote, "Must refrain from commenting on feminist blogs."
posted by Restless Day at 8:07 AM on February 22, 2009


just because having sex is a biological impulse for many, or even most people, it does not automatically follow that the burden of consent for sexual intercourse rests on the person who wants to refuse the intercourse rather than on the other person to gain their partner's consent.

We're talking about investigation and prosecution of rape, so it seems logical to ask "Did you say or indicate you didn't want to have sex" to figure out whether rape occured. Or on preview, what AdamCSnider wrote.

Just because most people, say, eat food in order to stay alive, one cannot presume that, in the absence of a person yelling, "NO! I'M NOT HUNGRY!" you are allowed to stuff food down their throat. You ask them, politely, if they want some. If they decline, that's the end of the discussion. But you ASK. You don't PRESUME.

Bad analogy because a lot of people do presume and do not end the discussion when you say no. I'm Type II diabetic and it's astonishing how often people seem to take offense when you say no, or just want you to "try a little bit". Some people invest a lot of themselves in food they've cooked and take it as an affront if you don't at least try it.
posted by Brandon Blatcher at 8:17 AM on February 22, 2009


Some people invest a lot of themselves in food they've cooked their sexual skills and take it as an affront if you don't at least try it.
posted by casarkos at 8:24 AM on February 22, 2009


Yeah, pretty much. There can be sexual assault without penetration, which is also a punishable offense, but as I see it, rape is about penetration. A penis is like a handgun in form, function, in the amount of damage it can inflict, the hair-trigger consequences of poor judgment--the sober responsibility that comes with ownership.

You seem to be confused. This (NSFW) is the form of a penis; its function is to "copulate and ejaculate semen and to convey urine outside the body." This is the form of a handgun; its function is to "provide a portable firearm for firing a projectile for self defense, target shooting or hunting." These are illustrations of the damage inflicted by a firearm (link doesn't go directly to pictures). Maybe I need to call Enzyte Bob, but my penis is not capable of inflicting this damage or anything even remotely similar.

As for your other point about rape only being possible with a penis, that's also simply incorrect. Rape can be accomplished with non-consensual penetration with any object, finger, or penis. Incidentally, the law views having sex with someone while intoxicated or underage as rape, since they can't consent.

Incidentally, if a male and a female have sex while both are intoxicated or underage, guess who gets charged with rape? Not everyone agrees that this is a fair outcome.
posted by Law Talkin' Guy at 8:28 AM on February 22, 2009


Duly noted.
posted by Restless Day at 8:44 AM on February 22, 2009


We're talking about investigation and prosecution of rape, so it seems logical to ask "Did you say or indicate you didn't want to have sex" to figure out whether rape occured.

Whether or not a person says "no" is not the determinant of whether or not a rape occurred. If a person insists that a rape occurred, it is irrelevant whether or not they said "No." (For example, if they are unconscious when they are raped.)

It is not up to a woman to say "No" to prevent a rape from occurring. It is up to the rapist not to rape her.
posted by peggynature at 8:56 AM on February 22, 2009 [2 favorites]



Whether or not a person says "no" is not the determinant of whether or not a rape occurred.


Correct. But once the sexual act is established, whether there was consent to it or not is determinant.

If a person insists that a rape occurred, it is irrelevant whether or not they said "No."

Not quite correct. It is irrelevant in any case whether the person said "no". If she said "yes" at the time, or implied consent in some other way, it is very relevant. If the person later insists that a rape occurred, well, I'd call that a lie.

(For example, if they are unconscious when they are raped.)

But then, there can't be any question of consent, anyway. That is certainly rape, and I don't think anybody is questioning that.

It is not up to a woman to say "No" to prevent a rape from occurring.

I don't think anybody has pretended that. At least not on this thread. The question is, if a woman accuses a man from having raped her, whether her word is enough to convict the man. I don't think so.

It is up to the rapist not to rape her.

But it is up to the prosecutors to prove that there was a rape.
posted by Skeptic at 9:15 AM on February 22, 2009


This comment is probably a bit late but maybe folks who were interested in my thoughts about Yes Means Yes and the other portion of this post beyond the issues of rape and consent and law and enforcement will see it anyhow.

The direction of my thoughts about Yes Means Yes is that while I think it's as valid a point as the more traditional "No Means No" plank of feminist activism towards women's rights to self-direction especially in sexuality (consent and consent-getting aside), I think there's yet more work to be done.

I think the problem lies here: the power dynamic that recreates the abuse of power toward what is compelling or interesting for the person committing the act. The issue here is that the direction that the majority of activism is leaning is toward either a moral argument (that the act of exploitation or abuse of power is wrong - the "no means no" argument) or toward a celebration of or augmentation of power for those who were or might be or would have been victims of the abuse (the "yes means yes" argument).

Both of these strategies seem to ignore the fact that there will be lots of situations (grey areas of consent, recreations of the power high for the original abusers, etc.) that will still recreate the essential problem - that sometimes despite individuals' and communities' best intentions, rape still happens. Sometimes abusers have reasons that are not "good" or moral or ethically sound to be abusive. I'd even venture to say that this is true for most of the cases of abuse that we discuss. On the other hand, there are some grey areas where intent was misunderstood, and there are folks in the world I know who had what they thought was a casual sexual encounter where the other party(ies) felt some abuse was perpetrated. (It seems like if we spent more time talking about these issues and found ways to communicate better, some of these types of incidents might be reduced in number.)

I think that current formulations of redress or reform by folks on the side of social change and social justice (usually activists who are highlighting the problematic aspects of these dynamics of exploitation) are flawed and incomplete. We leave out ways to address the issue of balance of power and abuse of power as well as other more morally and ethically complicated grey areas. We also leave out ways to convince folks who might still be inclined to abuse power that there may be more profitable ways (not only for the community but for themselves) forward.

Going back to the idea of consent and the direction that the Yes Means Yes anthology is going versus the older standby, No Means No, as should be obvious by the ongoing discussion of Twisty's post here, there's a lot left out, a lot that still needs saying, talking about and addressing.

I think that the Yes Means Yes anthology (what I've so far seen of it) is definitely doing a good job exploring other reactions to the issue of the horrors of rape and risk and the celebration of self-directed, sometimes risky sexuality for women. But I also think that a lot more needs to be said, and that the anthology is just starting to scratch the surface of a conversation that we'll be having for a long time.

How can people from all backgrounds navigate this very tricky morass of morality and ethics and still have a good time and end up, on the other end, feeling as good about themselves or possibly even better when all's said and done?

There has got to be a way to get to a world where we talk obsessively about something else other than what the moral value is of a sexual transaction that we had in the dark with someone we hardly knew, and never really did get an idea of whether everyone involved had a good time. Or for that matter, whether anyone came away from it needing therapeutic support for the aftermath.
posted by kalessin at 9:25 AM on February 22, 2009


This absolutely shocks me. allen.spaulding

So it was sloppy admittedly wording, which is what you get when you try to combine legal analysis in a non-legal forum like this with an eye towards accessibility. It was dumb to do that when people keep saying that I'm shifting the burden of proof, which I continue to deny. You're also being remarkably uncharitable and finding one problem to avoid addressing the underlying argument about whether or not there are different default states regarding consent.

In a larceny case, a prosecutor must prove that the taking was unlawful, meaning that the defendant did not have permission, a legal right to take the object, etc. The presumption is that the victim did not write a contract giving the defendant the right. The prosecutor can prove this element by interviewing the victim and asking him if he gave the object away willingly. If the victim testifies that he never gave the victim the legal right to the stolen object, the prosecutor will have likely established a prima facie case. The prosecutor could ask "did you give this to the defendant, did you create a legal right for him to take it" and so on, and all a defendant has to say is "no" to establish an affirmative case.

At no point does the prosecutor have to prove beyond a reasonable doubt that the victim said "do not take this from me." The defense can try to raise a reasonable doubt that the defendant did have a legal right. They could ask the defendant "well, did you ever say no?" If the defendant says "no, I never said don't take my car," that is not dispositive, because we require affirmative consent to establish a right. The absence of an explicit denial is not presumed, on its own, to give the defendant the right to take the property.

In a rape case, if a prosecutor asks a victim "did you affirmatively consent to sex" and the victim says no, then it is unlikely that the prosecution will have been seen to have established a prima facie case, because we presume consent exists until otherwise proven. The lack of affirmative consent in one instance establishes a prima facie case. The standard is higher in the other instance, and we require a showing of explicit denial.

moxiedoll and others seem to think it's fine that we presume consent in sex crimes but not in property crimes based on their views of frequency, reporting rates, etc. There's also some fear that this will lock up far too many people, which is largely not true seeing how it's both a minor change and people almost never get convicted for acquaintance rape, especially when race is not involved. Many proponents of this change don't think it will seriously affect conviction rates, but that it is mostly an aspirational reform, to have the law reflect a growing common value that women do not always want to be raped. That silence does not equal consent. This is the more legal anthropology type of argument, where the law does more than structure incentives, but reflects the evolving values of a community and makes various groups feel connected, respected, etc. I'm not sure if I personally buy into this argument (I associate it with Mary Anne Glendon, with whom I share little) but I see it. Personally, I just don't think the burden on stopping rape should be placed on victims like this.

Firstly, rape survivors constantly wonder "should I have been more clear, should I have said no louder, etc" and frequently blame themselves for bringing the attack upon themselves. We then tell them that explicitly in a courtroom, that the burden on stopping their own rape was upon them, for their failure to say "no" is all that matters. In these instances, victims often report thinking "but I never said yes! I didn't want this!" Their views, once again, don't count.

This wouldn't shift the burden of proof, it would merely realign the default state in rape cases to all other crimes where consent is at issue. It seems like some people disagree that the default state is different and some believe that it ought to be. I've seen some give a descriptive reason why (# of wallets given away is low, even though we frequently tip waitresses, give presents, etc). I haven't really seen a normative reason why we should expect this of rape victims and no other crime victims. Your honor, he never said "don't punch me in the face. I just saw fight club. I thought he wanted it"* "Well if you never said no, Mr. Victim, I'm going to have to say you should be more clear next time, all charges dropped"

*Just to cover my bases, consent is not normally an affirmative defense to battery in most jurisdictions, which is why BDSM remains unlawful. I know this. It's a fucking metaphor.
posted by allen.spaulding at 9:33 AM on February 22, 2009 [1 favorite]


From the "intoxicated" link in Law Talkin' Guy's post.

If you get a girl drunk or high and then “get together” with her you have committed a sexual assault.

I'm not sure I understand this. If, according to the law, an intoxicated female is unable to consent to sex and an intoxicated male also cannot consent to sex, wouldn't both be able to press charges against the other? Why does the article imply only the male is guilty in such a case? Is it just the framing of the article? I don't mean to apologize for any real abuses or criminal liabilities that might arise from drunken sex in general but I am curious as to how the legal system might justify such preferential assumptions, if they actually exist. I'm also not addressing the sober/drunk dynamic since that is more justifiable.
posted by effwerd at 9:44 AM on February 22, 2009


If, according to the law, an intoxicated female is unable to consent to sex and an intoxicated male also cannot consent to sex, wouldn't both be able to press charges against the other?

This is a tangent, but something that often flummoxes people. Intoxication prevents a person from giving consent, but it does not prevent a person from having intent. It might seem like a tough distinction to make when talking about sex, but think about drunk driving. If I run over someone with my car while drunk, I can't say "hey, look. I was drunk, so I couldn't have consented to driving the car." If the pedestrian I hit is also drunk, in no way does that negate the crime.

So coming back to date rape. The challenge is to identify which party is the perpetrator and which is the victim. There's no question that the judicial system frequently uses gender as a heuristic, assuming that men are always initiators and women the passive victim. This is deeply troubling and it's a good thing the Mass SJC is starting to challenge similar practices. It may sometimes be possible to show that one party intended to get the other drunk with the purpose of denying their ability to consent, in such an instance that party's own intoxication ought not matter. These can be hard questions when done properly, but usually it's not done at all.
posted by allen.spaulding at 9:57 AM on February 22, 2009 [1 favorite]


Intoxication prevents a person from giving consent, but it does not prevent a person from having intent.

I was thinking the key phrase was "if you get a girl drunk" which seems to imply intent (to deny ability to consent) and it definitely changes the equation. Thanks.
posted by effwerd at 10:18 AM on February 22, 2009


allen.spaulding,

moxiedoll and others seem to think it's fine that we presume consent in sex crimes but not in property crimes based on their views of frequency, reporting rates, etc.

You gloss over this without responding, but it's a key point. Could you address it? It specifically answers your question of why there are, and should, be different standards.
posted by Sangermaine at 10:27 AM on February 22, 2009


You gloss over this without responding, but it's a key point. Could you address it? It specifically answers your question of why there are, and should, be different standards.

Sure. I feel like I've been spending a lot of time addressing whether or not there are different standards and whether or not a change would deviate from established practice, or would align rape with the standards applied in other cases. The larceny hypo was mostly for this purpose, but it sort of slid into this other territory.

Descriptively, I don't think that the circumstances surrounding sex make it unique amongst all other crimes. I think the real difference is the way the law has developed around women's consent. I think we require an affirmative denial because the law, having been written and developed almost exclusively by men, historically didn't trust women or believe women and remnants remain. Men don't seem to have a hard time discerning the intent of other men in thousands of situations, but somehow we think sex is just too hard and throw up our hands. One reason is that perpetrators can't imagine being on the other side of the transaction, this is part of the challenges of constructing a reasonable man, etc. I think this idea that the crimes are somehow different is mostly a gloss on this fact.

Normatively, I don't think they should be different. I don't see why we would ever presume consent unless it's been freely given. There are massive complications regarding withdrawal of consent, sure, but that's a different question. At the threshold, I don't think society should require a women to actively disavow consent, especially when we don't do this in other situations. I think a lot of the backlash to this position is complicated. Some people think it's unromantic to ask first. This makes me wonder what's so sexy about ambiguity and why we as a culture have eroticized it. Others are uncomfortable because they often are in situations where there is uncertain consent. I'd like to talk about why these situation continually occur and what it means about underlying gender relations, but the backlash often overwhelms that point.
posted by allen.spaulding at 10:40 AM on February 22, 2009 [1 favorite]


Thank you for the clarifications, allen.spaulding. Again, I don't think anyone is denying the historical problems you raise, the question is simply what the best solution is.
posted by AdamCSnider at 11:11 AM on February 22, 2009


Men don't seem to have a hard time discerning the intent of other men in thousands of situations, but somehow we think sex is just too hard and throw up our hands...I think this idea that the crimes are somehow different is mostly a gloss on this fact.

Your point about the construction of laws is taken, but you must acknowledge that sex is very different than other transactions, precisely for these cultural reasons you've given. Whether it should be this or not, it is. You even note this:

This makes me wonder what's so sexy about ambiguity and why we as a culture have eroticized it.

Whether you think this is a good or a bad thing, there is a level of ambiguity in sexual encounters that's commonplace. They are often initiated in unclear, non-verbal ways. A look, body language, etc. This is very different than with other transactions. Not to mention, as you said, the possibility of withdrawal of consent which is a wrinkle that makes sexual encounters even more ambiguous.

So we live in a society that does have this ambiguity about sex. Saying it would be better not to does not change the reality. Given this difference between sex and other situations, it seems reasonable too have different standards that reflect different realities. It does seem to undermine our justice system to require the accused to fight against this logical presumption of consent with society being as it is.

On the other hand, I can see your point(or maybe it was someone else's; this thread has gotten so long I'm losing track) that law can be a tool to shape society, and that perhaps by instituting this change we can force a change in society. Or at least "even the score" as someone implied upthread. But again, this seems to set a dangerous precedent and to change the standard to guilty until proven innocent, because under the new system all acts of sex would be rape unless the accused can prove otherwise.
posted by Sangermaine at 11:16 AM on February 22, 2009


Sangermaine: I think you're missing one key element in your description. Law doesn't merely reflect social values but it also partially constitutes them. It's a dynamic process. Arguing that we as a society ought to change the way we conceive of this problem necessarily requires legal reform. Pointing out that there currently exists ambiguity can't stop this process, because so long as the law allows for it, there will exist ambiguity. That doesn't necessarily mean that I'm right, but taking conditions-as-they-are-now as a given will undermine all efforts at change.

And again, this line "all acts of sex would be rape unless the accused can prove otherwise" is disingenuous. The proposed change would do no such thing. The prosecutor would still have to prove that the victim never said yes. Currently, the prosecutor has to prove that the victim never said no. This is why I keep saying that this is a change in the default state for consent; not a shifting of the presumption of innocence. An accused rapist can currently argue "she never said no" and undermine a prima facie case. Under my system, an accused rapist would need to argue "she said yes" (with all caveats about presumptions, burden of proof, etc).
posted by allen.spaulding at 11:39 AM on February 22, 2009


er, the prosecutor has to prove that the victim said no.
posted by allen.spaulding at 11:41 AM on February 22, 2009


Under my system, an accused rapist would need to argue "she said yes" (with all caveats about presumptions, burden of proof, etc).

Hmm, so what happens when the guy uses threat to get the woman to say yes? Does that open up the argument that since she said yes, it's ok?
posted by Brandon Blatcher at 12:28 PM on February 22, 2009


Pointing out that there currently exists ambiguity can't stop this process, because so long as the law allows for it, there will exist ambiguity. That doesn't necessarily mean that I'm right, but taking conditions-as-they-are-now as a given will undermine all efforts at change.

I take your point. I was just saying that there are grounds for treating sexual encounters differently than other encounters, because you had asked why this should be so.

>And again, this line "all acts of sex would be rape unless the accused can prove otherwise" is disingenuous.

I don't think so. The default state in the proposal is now non-consent. That means that, whenever there is a sex act, it is assumed that there was not consent. A sex act without consent is rape, so all sex is now by default rape. To show it is not rape, one must show that there was consent, but the default assumption is that all sex is rape, since consent is assumed not to exist.

not a shifting of the presumption of innocence. An accused rapist can currently argue "she never said no" and undermine a prima facie case. Under my system, an accused rapist would need to argue "she said yes" (with all caveats about presumptions, burden of proof, etc).

I don't understand how you can't see that is, indeed, shifting the presumption of innocence. Instead of "I didn't rape you, prove I did" it's "You raped me, prove you didn't". An accused rapist should not have to argue that "she said yes" if he is accused of rape; this would be to require him to prove that he is innocent. If he fails, in your example, to prove "she said yes", he goes to jail. The burden is on him to prove that "she said yes". The prosecution just has to show that sex took place, then it is on the accused to show that the sex was consensual or he gets punished. I really can't believe you don't see how huge a change this is. It should never be on the defense to have to prove t

I really think you're not thinking through the consequences of what you're suggesting, because it really is destroying the idea that people are innocent until proven guilty and shouldn't have to prove their innocence.
posted by Sangermaine at 12:29 PM on February 22, 2009


Sorry, I hit "post" by accident while still editing my post.

It should never be on the defense to have to prove t
Should be
It should never be on the defense to have to prove the innocence of the accused.
posted by Sangermaine at 12:31 PM on February 22, 2009


Gah, sorry to hog things, but this might help:

The prosecutor would still have to prove that the victim never said yes.

Why would the prosecutor have to prove this under your proposal? If there was, by law, a presumption that there was no consent, the prosecutor would not have to prove it. It becomes per se strict liability: if there was sex, then there was no consent by law, so it was rape. The prosecution merely has to show that sex took place. The law states that there is a default of no consent, so that sex is rape until shown otherwise.

Can you explain why this would not be the case? If there were the Allen Spaulding Act that said the legal standard is non-consent, then why would the prosecution have to prove that the victim never said yes? It's assumed as a matter of law.
posted by Sangermaine at 12:37 PM on February 22, 2009


allen.spaulding: You're still talking theory and I'm trying to find out how you apply your purported change in the real world.

So take my case as given: No evidence is presented except that party A claims they were raped by party B. Both parties agree that intercourse occured. B claims the sex was consensual. Again, no other evidence exists as this happened in private, nobody has any criminal record, and no physical injuries were sustained.

Under your theoretical system, should party B be found guilty or not guilty? You keep talking theory but theory in criminal law affects real people and ruins or saves real lives. So GUILTY or NOT GUILTY?
posted by Justinian at 12:40 PM on February 22, 2009


Oh: Both party A and party B appear equally credible on the stand as well.
posted by Justinian at 12:40 PM on February 22, 2009


As for women being "pressured" to give the appearance of being available sexual creatures: aren't we men even more pressured in that direction?

Oh wow. Really? I'm glad it was pointed out to you that "[men] hold a stronger position in our society from which to fight this pressure, whereas women are, for historical and social reasons, worse off in this regard", because I don't know if I would have been up to respond to this seriously.
posted by Marisa Stole the Precious Thing at 1:02 PM on February 22, 2009 [1 favorite]


Justinian - this change does not affect the way your situation is treated. The outcome would be the same as the default state currently is. I don't know how to make that any more concrete.

The following situation is also the same: Party A claims that they were raped by party B. The only material dispute is over whether or not Party A said yes. The outcome would be the same under both regimes.

Here is where it changes: Party A claims that they were raped by Party B. The only material dispute is over whether or not Party A said no.

Sangermaine - the proposal is not mine or the bloggers, but something that feminist legal scholars have long agitated for. The change is from a default state of "consent unless it can be shown that there was a vocalized no" to "non-consent unless it can be shown there was a vocalized yes." A prosecutor would still have to prove all the essential elements, which would mean showing that the victim never said "yes." I hope the demarcation of the three examples above shows how this isn't that radical a change to criminal procedure, but rather an affirmative valuation of women's voices.

When you say An accused rapist should not have to argue that "she said yes" if he is accused of rape I think you're missing some of the points already made. A prosecutor would have to prove beyond a reasonable doubt that the victim did not say yes. A defendant could challenge this. Currently, the exact same thing is true. A prosecutor usually has to prove that a victim said no. A defendant can challenge this too. In Justinian's he-said/she-said nothing changes in the outcome. What changes is how we value women.
posted by allen.spaulding at 1:11 PM on February 22, 2009



Justinian - this change does not affect the way your situation is treated. The outcome would be the same as the default state currently is. I don't know how to make that any more concrete.


By saying he should be found guilty or not guilty, that's how.
posted by Justinian at 1:34 PM on February 22, 2009


You're still missing the point. How do you think a prosecutor currently shows consent? Your hypo is too broad and it evinces a really solid misunderstanding of what the issues are. I'm not arguing for any different procedural changes when there's a dispute of material fact. The issue will still go to the fact finder to weigh the competing claims. That doesn't change. I'm not arguing that the presumption of innocence is removed. The only change is what the prosecutor must demonstrate. Currently, in most jurisdictions, the prosecutor must prove that the victim said no. I'm arguing for a chance that the prosecutor must prove that the victim never said yes. Your hypo misses that.

Just about every 1L in the country ought to have learned in Crim that most studies show that different legal standards for consent do not affect conviction rates. This isn't about increasing conviction rates. This is about redefining what the default state is. We currently believe all women want to have sex with everyone until they affirmatively say no. This needs to be changed.
posted by allen.spaulding at 1:57 PM on February 22, 2009 [1 favorite]


Ah, I think I finally understand, allen.spaulding. You're not switching the burden of proof, just expanding the definition of the crime. I consider my questions answered.
posted by AdamCSnider at 2:22 PM on February 22, 2009


I'm with AdamCSnider now: It doesn't seem to me that you're changing anything procedurally, just expanding what constitutes the crime. If so, I understand. I don't see how it matters at all on a practical level, though, since I can't for a second imagine how a prosecutor proves that someone "never said yes" unless their is a video or audiotape.
posted by Justinian at 2:51 PM on February 22, 2009


THERE not THEIR. Oh god, I am so sorry.
posted by Justinian at 2:51 PM on February 22, 2009


A defendant can challenge this too. In Justinian's he-said/she-said nothing changes in the outcome. What changes is how we value women.

I'm sorry for being a frequent flier in this thread, but I can't let a remark like that stand. For someone who threw accusations of being disingenuous and misleading at me earlier in this very thread, this one sentence out of you is the worst offense I've seen out of 200+ comments. Dressing up a revision to the criminal law that affects defendants' rights in terms of "valuing women" is the eptiome of the kind of misleading, red-herring reasoning that's been used to erode the safeguards of the criminal justice system before.

Look. The criminal trial process exists as a failsafe to protect defendants. It's not there to promote valuing women, national security, protecting our children, loyalty to democracy, control of espionage, or spiritual piety. If those things are important to you, fantastic. Some of them are important to me, too. But they're not (and shouldn't be) so overridingly significant that I'm willing to subject innocent people to the risk of wrongful conviction in order to advance my agenda.
posted by Law Talkin' Guy at 2:52 PM on February 22, 2009 [1 favorite]


"We currently believe all women want to have sex with everyone until they affirmatively say no."

This is an offensive characterization of opponents of this sort of change. Lots of people get up in the morning and have sex with their loving partners without saying any words and yet without raping them and to characterize them as misogynists is wrong. The fact is that people have non-verbal-yes-consensual sex and they might value this for reasons other than not valuing women or getting turned on by ambiguity.
posted by Wood at 2:59 PM on February 22, 2009


Dressing up a revision to the criminal law that affects defendants' rights in terms of "valuing women" is the eptiome of the kind of misleading, red-herring reasoning that's been used to erode the safeguards of the criminal justice system before.

So you opposed the elimination of the marital rape exception? After all, that was a revision to the criminal law that affected defendants rights in terms of valuing women. Distinguish.

And Wood - context matters. You're talking about repeat players with a history of established behavior. So, given the absence of such a pattern, why should we value the ability to have sex without affirmative consent? Again, this is an honest question.
posted by allen.spaulding at 3:19 PM on February 22, 2009 [2 favorites]


And again, LTG, histrionics about the Red Scare aside, all the studies that I'm familiar with show that changing the consent standard does not change the conviction rate. So why is it that this is so threatening?
posted by allen.spaulding at 3:21 PM on February 22, 2009


I would at least urge you to consider why you think expressing interest in having sex with a woman is always "impolite," and whether there are certain unsettling assumptions underlying that belief.

It might not always be impolite, but there remains a risk that you've misread the person and some people will consider your actions as a major faux paus, or worse. Politeness is behaviour that is deemed safe on the grounds that it minimizes your chances of causing unintentional awkwardness or offence.

As such, as long as there are significant proportions of people who react poorly to expressed interest in sex, then it's not going to be considered polite by a lot of people - it fails the most basic test. No recourse to suggestions of underlying unsettling assumptions is necessary.
posted by -harlequin- at 4:11 PM on February 22, 2009 [1 favorite]


I reject the concept of "burden of proof" on epistemological grounds; so the whole legal distinction between "innocent until proven guilty" and "guilty until proven innocent" strikes me as more of a superficial locution than anything substantive. Phrased either way, we have an accusation that will bring enormous consequences decided on what is usually a hilariously shitty amount of information, filtered by humans with seriously flawed capacities for judgment (see OJ trial). Remember we are being judged by a "jury of our peers," which means people from the general population. So 50% of these evidence evaluators think evolution is scientifically false, which should give you some insight into their ability to dispassionately weigh facts.

In reality, juries at rape, theft, burglary, etc, trials are just making judgment calls and send people to die or rot prison for decades (or out back in the world to possibly commit more horrible crimes), based almost solely on their intuitions and prejudices about how the world works. When you see how the sausage of jury conviction is made you can't help but feel a little nauseated at how truly primitive it all is. A lawyer on AskMetafilter explicitly noted how evidence works in rape trials:
There's a whole law school class -- Evidence -- that gives a rather limited answer to your question. No way anyone here can sum it up for you. I'll just make an observation. We ask ordinary people to apply their common sense -- what you call "prejudices or folk or statistical notions" -- to avoid exactly the kind of moral logjam you seem to be in.
So here we have the real crux of the matter. The Twistys and the allen.spauldings of the world believe that the "common sense" of the society is biased against women in such a way that guilty rapists are disproportionately being declared innocent by our courts. The "yes means yes" convention they believe can shift the onus in such as way to counterbalance that unfairness.

To apply my own "common sense," I reject this idea on three grounds: First of all, it just ain't gonna happen. Neither men nor women want sex to be a formal contract, preceded by handshakes, lawyers, contracts, and signatures. It's just not how sex happens, and so even if the law did change to require 'yes', the common sense standards of the jury, which is what ultimately decide cases, would remain the same. This means a lack of 'yes' would not suggest any more guilt to the jury than it does now (In fact the jury would realize that even innocent men would need to lie about this to avoid trouble, so this would probably actually result in more guilty men going free, since it would further erode the common sense distinction between innocent and guilty men, by forcing the innocent men to lie).

Second, even if society changed in such a radical way where it became the norm for men to seek verbal consent for each stage of sexual escalation (and let me repeat, this will never, ever happen), it wouldn't make a lick of difference anyway, since it's still his lie vs. her lie (she didn't say 'no' is equivalent to she did say 'yes'). So we would be in the same exact situation we are now.

Third, it is by no means clear to me that the legal system is biased against women in the favor of rapists. As noted above, there is evidence that up to 40% of rape allegations are false. Motivations for this range from the malicious to the selfish. This is suggestive that accusation is nowhere near common sense evidence of guilt. Evidence for this private behavior will have to rely more often on subjective and unreliable psychological and sociological judgments by the jury (some of which are explicitly biased by law against the defendant). Unfortunately because sex is such a private and mysterious behavior our social intuitions about it are far less accurate than e.g. our common sense notions that people don't generally voluntarily hand their wallets over to nice young strangers on the street.

Until a convincing (i.e. empirically informed) case is presented otherwise I do not yet find the 'yes means yes' concerns about the legal system logically or emotionally convincing. And certainly not to the extent that I think male and female sexual relations should be radically and awkwardly re-engineered in order to help correct it.
posted by dgaicun at 5:02 PM on February 22, 2009 [3 favorites]


Neither men nor women want sex to be a formal contract, preceded by handshakes, lawyers, contracts, and signatures.

Nor does it have to be. But consent needs to be absolutely clear.

Second, even if society changed in such a radical way where it became the norm for men to seek verbal consent for each stage of sexual escalation (and let me repeat, this will never, ever happen ...

I don't know who you're speaking for besides yourself here.

Third, it is by no means clear to me that the legal system is biased against women in the favor of rapists. As noted above, there is evidence that up to 40% of rape allegations are false.

Wrong. In the link that you provided, there is evidence that in "a small metropolitan community" in the Netherlands, over a nine year period, 45 out of 109 forcible rape allegations were false. Inflating this to global proportions is silly.

I do agree however that jury trials are flawed. I can definitely see the benefits of a tribunal system when it comes to more serious crimes. Prosecution and defense attorneys alike play on the fears and sympathies of jurors. They do so with judges as well, but at least judges are trained legal professionals.
posted by Marisa Stole the Precious Thing at 7:59 PM on February 22, 2009


Well, not having read the entire 200 posts of wank on this. Two things come to mind. First of all, too much of these discussions focus on trying to pin down legal ambiguities rather than basic ethical principles that sex should be a an experience mutually enjoyed by all participants, and what kinds of ethical behavior do we need to ensure that happens. To that end:

dgaicun: To apply my own "common sense," I reject this idea on three grounds: First of all, it just ain't gonna happen. Neither men nor women want sex to be a formal contract, preceded by handshakes, lawyers, contracts, and signatures. It's just not how sex happens, and so even if the law did change to require 'yes', the common sense standards of the jury, which is what ultimately decide cases, would remain the same.

The proposal isn't for formal contacts. The proposal is that if your partner isn't jumping up and down on the bed saying, "throw on a condom you fool and take me now!" perhaps you would be better off going to your own bed and having a good wank.

Which, most of the objections to the concept of explicit verbal (or even non-verbal) consent seem to ignore the fact that people can and do say, "I want you to ..., and I want it right now!" I'm not a huge fan of Dan Savage, but I think he hits the nail on the head that gay people need to have less sex, and straight people need to have more conversations about sex.

-harelequin- : It might not always be impolite, but there remains a risk that you've misread the person and some people will consider your actions as a major faux paus, or worse. Politeness is behaviour that is deemed safe on the grounds that it minimizes your chances of causing unintentional awkwardness or offence.

Well certainly. The problem is that you have to broach the subject at some point in time during a developing relationship, because there are so many things that need to be negotiated: my place, yours, or a convenient hotel; what forms of safer sex do we use; intercourse, oral, or other; what buttons need to be pushed; is this the start of a monogamous relationship or just a fling. The list goes on and on.

Those who object to having these conversations seem to place a inordinate value on playing Russian roulette with sex in a relationship, while generally both racial and sex-positive feminists have taken the view that such conversations are necessary if one is to be both safe and satisfied.
posted by KirkJobSluder at 7:23 AM on February 23, 2009 [3 favorites]


even if society changed in such a radical way where it became the norm for men to seek verbal consent for each stage of sexual escalation (and let me repeat, this will never, ever happen

As somebody way upthread pointed out, people express variations of "Do you like it when I do this?" "Does this make you hot?" etc., all the time during the process that goes from making out to various forms of penetration. It's called tuning into your partner. It's not difficult. Further, many find it sizzlingly hot, both to ask, and to affirm "Yes oh God yes yes keep doing that please please please".

Of course, that wouldn't come naturally to guys who conceptualize sex as "my orgasm" (as opposed to mutual pleasure) and who, in effect, just " masturbate into" their partners. This is not a personal attack or snark. It's just that writing the above reminded me strongly of the quote I've linked from "The Orgasm Gap" article.
posted by cybercoitus interruptus at 4:37 PM on February 23, 2009 [2 favorites]


This is reminiscent of the universally mocked Antioch Sexual Offense Provention Policy of the '90s. The part of it that received so much parody was the implication that consent be requested and obtained for each "new level" of activity, and that it had to be in clear spoken language, that this be gone through each and every time (ie explicit verbal consent was required for moving from making out to groping, from groping to oral sex, and then from oral sex to intercourse even six months into a live in relationship.) Also problematic was the lack of any standard for "impairment" and the flat-out requirement for "safer sex practices" regardless of the preferences (religion?) of the actual people involved.

Consent:

Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct. The following are clarifying points:

* Consent is required each and every time there is sexual activity.
* All parties must have a clear and accurate understanding of the sexual activity.
* The person(s) who initiate(s) the sexual activity is responsible for asking for consent.
* The person(s) who are asked are responsible for verbally responding.
* Each new level of sexual activity requires consent.
* Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.
* Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).
* At any and all times when consent is withdrawn or not verbally agreed to, the sexual activity must stop immediately.
* Silence is not consent.
* Body movements and non-verbal responses such as moans are not consent.
* A person can not give consent while sleeping.
* All parties must have unimpaired judgement (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions).
* All parties must use safer sex practices.
* All parties must disclose personal risk factors and any known STIs. Individuals are responsible for maintaining awareness of their sexual health.

These requirements for consent do not restrict with whom the sexual activity may occur, the type of sexual activity that occurs, the props/toys/tools that are used, the number of persons involved, the gender(s) or gender expressions of persons involved.



Antioch explicitly defended the policy as "humanizing" rather than the opposite in a letter to the Times.

Antioch closed in 2008 and articles that covered its end tended to mention the policy as a definitive point in its history of increasingly marginalized radicalism.

I thought it seemed relevant here, given the explicit linkage to current debates surrounding refiguration of consent and the singular effect of the social drama that surrounded the consent policy upon the college's reputation prior to its rapid decline and expiration (given that its politics had always been leftist.)
posted by snuffleupagus at 9:01 PM on February 23, 2009 [1 favorite]


According to an ex-girlfriend who briefly went to Anitoch, the policy was probably enacted due to the number of rapes and near rapes that occurred.
posted by Brandon Blatcher at 12:34 PM on February 24, 2009


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