Legal Consent, Morning-After Regret, and “Accidental” Rape
Over the past few weeks, this blog has hosted some really productive discussion threads about rape prevention, victim blaming and new models for sexual consent. I'd like to thank everybody who has participated, but I'd also like to directly address a few theories that have arisen over the course of these discussions. And I would like to begin the process of debunking them.
- "Yes means yes" is dangerous in a world where "no means no"
- Women exploit rape laws to criminalize consensual sex they later regret
- Some rapes just happen on accident
By the by-if you're in need of a primer, here's the relevant reading material:
Verbal assault: The abuse and debasement of "rape"
Drunk girls deserve to get raped
Writer to rape victims: sometimes it's too late to say no
On the difficulty of saying no
Now, on to the theories:
Not everybody accepts the "yes means yes" standard of consent, so we have to stick to "no means no" [Source].
I've heard this argument time and again: Telling people that consent ought to be based on "yes" instead of "no" is dangerous, because the nation's sex partners (and courtrooms) just don't agree with that standard. According to this theory, if a woman expects a man to respect her bodily autonomy implicitly, she's gonna get raped and there's nothing she can do about it.
Well: Of course not everyone agrees with it. That's why feminists devote books and blogs and documentaries to critiquing current models of consent-necause we believe by changing attitudes and changing laws, we can make lives (not to mention sex!) better. That being said: "yes means yes" is actually consistent with the legal standard in many jurisdictions, and if rapists go around assuming that "no means no," they may be in for an unpleasant surprise.
I'm most familiar with rape laws in Washington, D.C., so I'm going to stick to D.C. code here. In D.C., there is no crime called "rape"-instead, sexual assaults are categorized as various degrees of "sexual abuse."
In D.C., you could be charged with first degree sexual abuse if you cause a person to submit to a sex act using any of the following tactics: by physically forcing them; by threatening them; by rendering them unconscious; or by drugging them. This crime can be punished with up to life in prison. You could be charged with second degree sexual abuse if you have sex with someone when you have reason to know that they are incapable of knowing what's going on, incapable of saying no, or incapable of "communicating unwillingness" to have sex. This crime can be punished with up to 20 years in prison. In these crimes, the rapist is aware that their victim does not want to participate in the sex act, and does it anyway ("no means no"), or is aware that their victim cannot consent, and does it anyway ("passed out means no").
Misdemeanor sexual abuse requires a less stringent standard of consent. Under D.C. law, the misdemeanor charge applies to "whoever engages in a sexual act or sexual contact with another person and who should have knowledge or reason to know that the act was committed without that other person's permission." This crime can be punished with up to six months in prison.
Here, the standard does not require force, threat, or incapacitation. It doesn't even require penetration-it covers all "sexual contact." The misdemeanor charge only requires the absence of consent. In this crime, the rapist is not aware that the victim is powerless to say no-he is only aware that the victim has not offered a "yes." In D.C., you can go to prison for six months for having sex with someone without gaining their permission-even if the victim did not explicitly say "no."
"Yes means yes" is more than just pie-in-the-sky wishful thinking of bloggers living in a feminist dreamworld. For everyone who engages in sex, not abiding by "yes means yes" can also mean very real jail time.
More at the source: The Sexist blog at Washington City Paper
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Thoughts? Feelings? I actually really like the overall tone of the article and think the author makes some really good points regarding the legal aspects - at least on paper, although personal experience tells me that what the law says is not always how trials are approached, especially in sexual assault cases.