Over at Al Jazeera, I’m writing about the evolution of American laws on rape and sexual assault. Over the decades, sexual assault law and jurisprudence have changed along with the status of women; the law has both reflected the culture and helped to move it forward. In light of that, perhaps it’s time for another shift in the law, to a model of affirmative consent:
While the law varies widely across the United States, many sexual assault cases now hinge on the question of consent. Practically, that requires showing that an alleged victim said no forcefully and repeatedly and, usually, that she fought back. The result is that it’s incredibly difficult, particularly in acquaintance rape cases, to prove beyond a reasonable doubt that the alleged victim did not consent and the alleged rapist knew she wasn’t consenting. It also opens the door to ridiculous conclusions: If only “no” means “no”, then is anything other than a “no” a “yes”?
Just as earlier American rape laws reflected cultural attitudes about women, sex and gender roles, so do our modern laws. Americans see heterosexual sex as largely oppositional: Sex is a thing women have that men want. Religious leaders encourage young women to be “pure” and refuse to have sex until their wedding night; Millionaire Matchmaker Patti Stanger has a “no sex before monogamy” rule; in his dating guide, Steve Harvey says women need to raise their standards and institute a 90-day sexual probationary period on new beaus. The underlying assumption is that sex is a transaction service women provide for men, and that smart and virtuous women will trade sex for something else they want – marriage, commitment, decent treatment.
When sex is perceived a commodity that women have and men get, our laws, our courts and our juries similarly use a transactional model to assess sexual assault. The baseline is that men always want sex, and women are in the position of withholding or relenting. While most state laws have been updated to reflect the fact that sexual assault turns on consent, the presumption remains that men will naturally try to “get” sex at all costs, and so the onus is on the woman to clearly and forcefully express her refusal to partake in any sexual interaction. Sex isn’t a thing that both parties should have to say “yes” to; it’s a thing that women have an obligation to refuse. Sexual assault charges are routinely dropped or not filed in the first place, and defendants are routinely found not guilty, if a victim didn’t clearly enough say “no”.
What if instead, we understood sex as collaborative and mutually pleasurable? What if we understood consent not as an absence of no, but as a clear and freely-offered “yes”? What if those ideals were represented in the law?
Under that model, “giving” or “getting” sex no longer makes sense. It makes that scene in Girls not just “bad sex”, but unthinkable, cruel and bizarre. It makes the idea of inserting your fingers into a marginally-conscious 16-year-old not teenage hijinks or a misunderstanding, but a violation of the greatest magnitude.
That’s not the world we live in, but it doesn’t have to be so far off. Sexual assault rates are decreasing. Studies of sexual assault have demonstrated that most rapes are committed by a small number of repeat offenders who know they are harming their victims and take pleasure in it. The vast majority of men are not rapists. But the few who are routinely escape prosecution because our cultural belief in rape myths lets them off the hook. Too many of us are willing to accept that acquaintance rape is a misunderstanding; that the only normal response to rape is to scream out and fight back; or that women who dress or act in certain ways send mixed messages. The result is that most sexual assaults in the United States don’t conclude with a guilty verdict.
A shift to a legal model of affirmative consent could help change that. With affirmative consent, there’s less grey area. The baseline assumption is that sex acts must be entered into with a meaningful “yes”. Rape victims would no longer have to prove that they vociferously objected to sex, just like a robbery victim doesn’t have to prove he verbally told a thief not to take his belongings. An affirmative consent model assumes that women are sexual actors, too, and that men have agency beyond simply trying to get sex at any cost.
Legally, this would mean clarifying the meaning of “consent” in our penal codes to make clear that the question isn’t whether a woman voiced her lack of consent, but whether the sex was mutually consensual. In practical terms, that will probably mean that if a defendant uses consent as a defence to a sexual assault charge, he would shoulder the burden of demonstrating that the defendant affirmatively and meaningfully consented – not that she just didn’t say no, or that she was competent enough to say no if she wanted to.
You can read the full piece here. And if you haven’t read Jessica Valenti and Jaclyn Friedman’s piece about creating a culture of affirmative consent, you should check that out too.