Earlier this month, the Steubenville, Ohio high school football players who sexually penetrated an intoxicated and sometimes unconscious teenage girl were found guilty of rape. The boys’ defence was that the girl was drinking, but she wasn’t so drunk that she couldn’t have said no if she didn’t like what they were doing. A week before that, on the HBO television show Girls, one of the lead male characters initiated a variety of sex acts that his girlfriend clearly did not enjoy or anticipate, but to which she doesn’t exactly say “no” even though she doesn’t exactly say “yes”, either. Think pieces and 140-character philosophies on consent abounded. Were the events in Steubenville and the scene on Girls rape, rape-rape, unfortunate misunderstandings or just bad sex?
To abate our widespread confusion about sex and consent, we need to change our understanding of masculinity, sexual virtue and sex itself. But we also need to change the law. Rape laws have always both reflected and shaped our cultural views of women and of sex, and our modern system is no exception. The feminist movement of the 1970s achieved significant victories in how our legal system deals with rape and sexual assault. Decades later, our understanding of sex crimes is more evolved, and it’s time for another legal shift to reflect that.
A history of rape
Traditionally, rape wasn’t a crime against a woman but a property crime against her husband, father or other male authority. Under coverture laws, a husband and wife were a single person in marriage – and that single person was the husband, with the wife’s legal existence merged into his. Married women had no right to contract for themselves and no right to personal property. They couldn’t file a lawsuit on their own behalf or be sued themselves. If a married woman was raped, her husband could even recover civil damages from the rapist. And spousal rape was not legally recognised for most of American history. Just like married women had no right to open their own checking accounts or have their own credit cards, they also had no right to refuse to have sex with their husbands. It wasn’t until the 1990s that all 50 American states had laws on the books giving wives legal recourse if their husbands raped them.
During slavery, raping slaves wasn’t just endemic but legal. After abolition, the rape of black women by white men continued with almost no legal recourse.
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Even after rape became recognised as a violation of the woman herself, proving it required witness corroboration and evidence that the victim yelled out, fought back and used the utmost force in defending herself. Courts and juries routinely tied rape to virtue, the assumption being that the only rape-able women were virgins. Judges allowed the introduction of evidence pertaining to a victim’s clothing, sexual history and chastity. Any woman who had consented to sex before was presumed to consent to all subsequent sexual activity. Black women assaulted by white men were presumed to be unchaste and almost never saw justice.
Shifts in rape law came with shifts in women’s rights. Feminist activists pushed for legal reform in the 1970s and 80s, and by the turn of the century irrelevant evidence was largely barred and definitions of rape were updated to include male victims, penetration of orifices other than the vagina, weapons other than a penis, rapes preceded by threat or coercion and rapes that otherwise weren’t forcible.
Those changes didn’t just shift the legal landscape; they helped to shift the way we talk about and socially understand rape and sexual assault. That’s part of the power of our legal system: It doesn’t just mirror social norms, it helps to shape them.
Sex as a commodity
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?
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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.
Shifting the legal model
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.
For the overwhelming majority of men who have sex with enthusiastic and willing partners, this won’t be anything new. For the small number who bank on myths about rape and a flawed legal system to get away with serial assaults, it could make all the difference. And like legal changes of the past, it will both reflect and pave the way for a healthier and more holistic understanding of changing gender norms, human sexuality and sexual violence.
It’s time the law reflected the reality of sex and assault: That sex is a fun recreational activity, while assault takes what should be a mutually pleasurable act and turns it into a one-sided violation. A legal system that embraces affirmative consent won’t end rape. But it will remove some of the unnecessary ambiguity and deflection in our understanding of sexual assault. And hopefully, it will promote a model of sexuality that embraces pleasure and rejects coercion, protecting victims and laying the social groundwork for better sex for all of us.
Jill Filipovic is a consultant, writer, speaker and recovering attorney. She assists fashion and lifestyle brands, legal organisations and law firms, international NGOs, non-profits and corporations in using new media to reach their business and strategic objectives. She holds a JD from NYU School of Law.
Follow her on Twitter: @JillFilipovic