Generally I'm not a big fan of Emmerson anyway, but this cartoon over the weekend really ticked me off. How on earth are we supposed to have an informed and constructive public discussion about proposed changes to the law around rape with this kind of rubbish getting pride of place in our major daily newspaper?
Monday, 27 July 2009
Quick hit: Positive consent =/= sign for sex
Generally I'm not a big fan of Emmerson anyway, but this cartoon over the weekend really ticked me off. How on earth are we supposed to have an informed and constructive public discussion about proposed changes to the law around rape with this kind of rubbish getting pride of place in our major daily newspaper?
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what's the problem? Seems an accurate result of Power's proposed reform to me.
Hmm, it could be snarky towards Power (and the feminists who've asked for this for years!) in that it uses the old "you practically have to get a signed contract" meme, but the "Simon says..." also seems to say something about the attitude [some] men have to getting consent - that it's a done deal. The two readings sort of seem to come from contradictory points of view, and I can't tell which is more likely!
The fact that this kind of strawman argument *always* comes up really worries me; it implies that there are a huge number of guys out there who honestly can't think of any way, besides a signed contract, to ascertain if their partner is rational and willing.
The "problem" is that men are afraid of the "she has changed her mind" scenario, while women are afraid of the "he did it anyway" scenario. So from the male side it seems perfectly obvious that you need consent that can't be retroactively withdrawn and that misses the concern that women have.
Of course, it also misses the real problem with gaining consent - many women refuse to consent to sex that they want and have sought out if consenting means "clear, verbal indication of sexual intent". If all that's required is "not obviously objecting" that's a much lower standard and almost all women are willing to provide that (let me be clear, I do not mean women who are not consenting can do that, I mean specifically and only "women who want sex but are so uncomfortable with their own desire that passive not-objecting is as far as they can go"). That ambiguity is the start of the slippery slope that leads to rape.
I still think the best approach is for men as a group to say "Great. From now on, no sex unless you clearly and unambiguously ask for it". The problem is that women who would not be getting any sex are by definition the ones who are not going to complain about it in public. If you can't ask the object of your desire for sex, are you likely to tell the media?
I think it was the former of the possibilities that Alison pointed out, with it being a cleverly played on Power's name. But the proposals Power is championing would actually require BOTH parties to be able to PROVE that the other actively consented.
i.e. it becomes the accused's responsibility to show that there was consent. So, if you were accused of sexual violation for an act of intercourse that took place 5 years ago, could you, with the evidence you now have, prove that consent was actually and positively given?
That's not quite what the current proposals are getting at. It's not that you have to prove that you gained consent. Instead, if you use "but she / he consented" as a defence, then you need to show what steps you took to ascertain that consent was actually given. That evidence is then subject to the standard evidentiary rules and cross-examination and the like. One effect of this would be to put people who have been accused of rape on the stand. Given that often it is, as Moz said (I think), a he said vs she said situation, this would give juries an opportunity to assess the veracity of both parties.
Moz's first paragraph is interesting.
I think the signed contract thing does hint at some very real male fears. Consent is a messy business already, (especially with alcohol and drugs involved) so the idea of being able to actively prove/demonstrate it in a court of law is frankly, quite scary. The contract represents the hard evidence you would need to truly allay such fears.
Though 'crying rape' (read crying wolf) is probably exceedingly rare compared to real rape, the thought of being falsely named and shamed as a rapist is quite horrifying.
Looking again at the cartoon this morning, the other thing that bugs me is that you could read it with an overtone of coercion actually - while i think this would probably be an overly paranoid reading on my part there may well be others who look at it and see a man demanding a woman consent and that she prove it by reading and signing.
Plus, what Deborah said.
Quite right Julie. A signed contract would prove nothing in court; it would be necessary to prove the woman signed it of her own free will and volition, and while understanding what she was signing. No small matters.
Of course, a perfectly reasonable course of action under the proposed law would be for the alleged attacker to admit that sex occurred and lay a counter-complaint asking that the alleged victim show that they had obtained consent. Both parties can then say that they did not obtain consent because they did not want sex... Legally, if neither party obtained consent, what happens? Is it just down to who complains first?
I think in practice it's not going to change anything in the "sie said/sie said" cases, because the difference between "I thought sie wanted it, sie didn't say no" and "I thought sie wanted it, sie said yes" is only a tweak to the lie for genuine rapists. For people genuinely struggling with the ambiguity this might help, but it is IMO more likely to increase the number of frustrated virgins.
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