"Consent"

[uncommon]

>snip

The Problem with consent

Although this condition does not obtain with regard to any other crime you can think of, when it comes to rape, women are currently considered to exist in a state of perpetual “yes!”. This is because “yes!” is consistent with global accords governing fair use of women. Victims of robbery or attempted murder don’t have to prove that they said no to being robbed or murdered; the presumption is that not even women would consent to being killed. But because penetration by males is what women are for, if we are raped we have to prove not just that we didn’t say yes, which is impossible to prove, but that we specifically and emphatically said no, which is also impossible to prove.

There are rules about what sort of woman can even attempt to make the “I said no” argument in court. Women who typically are not eligible to opt out of consent include: women who drink in bars, women who walk alone, women who walk at night, women who use drugs, women belonging to certain castes, women who dress a certain way, women who don’t dress a certain way, women who are married to men, women who have had multiple sex partners, women who may have said yes last month, women who may have said yes at the beginning but who, three minutes in, found it disagreeable and changed to “no,” women who didn’t fight back hard enough, women who didn’t tell anyone or report it right away, women whose physical similarity to pornulated women aroused the defendant, women whose behavior at the party aroused the defendant, teens with a “reputation,” and prostituted women.

>end snip

http://blog.iblamethepatriarchy.com/patriarchy-blaming-the-twisty-way/consent-or-the-legalization-of-womens-humanity/

While I am sure many people would be off-put by the politics of such a dear Spinster Aunt as Jill, I think it would be interesting to have a discussion not just about "age of consent" or "consensual sex" but what is consent, and why does it exist in the first place?

There is something about the word itself that implies that the giver of "consent" is a sort of empty vessel, a passive thing allowing acts to be committed upon (usually) her body. It seems to me that this concept is very damaging.



:shrug:

[Zoeisright]

1. Consent is a vital term in the women's movement.

Consent is active and has to be present with each individual sexual encounter. Consent is actually a positive thing and it's not damaging - it's essential.

I suggest you study domestic violence and date rape issues before you condemn consent. That's just stupid.

[uncommon]

5. It's not stupid at all actually.

I am extremely well read and studied on both issues which is why I find the need to bring them up.

The problem with the idea of "consent" is that women are assumed to have consented unless proven otherwise. Proving otherwise is prohibitively difficult. Hence the low rates of reporting AND conviction.

If women were assumed to not have consented when they walk into a police station to report a rape, the whole game would change.

The perpetrator could attempt to prove that consent was indeed given, but the burden of proof would not be on the victim.

[damntexdem]

16. That's not a problem with "consent," that's a problem with police, judges and prosecutors.

The assumption in law of either consent or nonconsent would be prejudicial judging.

That a woman said she was rapid is powerful evidence of the fact of rape, but a rule that nonconsent would be assumed and consent have to be proven would be tantamount to assumed guilty until proven innocent. The burden is on the PROSECUTION to prove guilt, not on the defendant to prove non-guilt.

[uncommon]

20. However

in the case of rape, we have a mindset as a society that it is much more likely that the accuser was in fact NOT raped that causes this system, which normally protects people across the board, to fail terribly.

So if this solution doesn't work, what does?

[MineralMan]

51. What you say is true in some cases, but not all.

Much progress has been made in most jurisdictions in this area. We are no longer in the 1950s in much of the country. There are areas, and individual jurisdictions where what you say is true, but not where I am in Minnesota, though. Much has changed in rape cases.

We're rapidly losing the mindset to which you refer, except in some backwards areas.

[zipplewrath]

19. Lack of consent implies a crime

The reason that consent is presumed, is because otherwise the presumption would be force, which is a crime in many contexts. As such, the nature of our laws is that consent, like innocence, is presumed.

You might want to change this conversation to the issue of "free will" which is roughly what you're getting at. How do we determine that a persons choice was made "willingly" or of their own "free will"?

[uncommon]

23. Is consent presumed when

someone is punched in the face? Is it presumed when someone's car stereo is stolen?

There is a serious failure here - it's really a larger social failure that keeps women relegated to a sub-male position in society - but is there any way to fix it other than social revolution?

[NoNothing]

29. Legally, yes consent is presumed

A defendant is presumed to be innocent of *all* elements of a crime until proven otherwise. This includes elements dealing with consent.

At least in the way you seem to mean: the prosecution *does* have to prove beyond a reasonable doubt that the victim did not want his stereo stolen or his faced punched.

Often, this as simple as putting the victim on the stand and asking, "did you say they could to this?" because it's so unreasonable that anyone would consent to the act in the first place. But in cases where consent might very well be reasonable - e.g., the roommate who "borrows" your car, or the significant other who absconds with your property, or, yes, the two people who hook up and have sex - it's sometimes more difficult thing to prove.

But it does have to be proven, in most victim-based crimes. Rape is not unique in this regard.

[uncommon]

33. Sex does not = rape. That's the problem right there.

Just like hitting someone in a bar fight isn't the sport of boxing.

But there is an assumption that rape is, first and foremost, sex, rather than violence.

[NoNothing]

40. Fine

But *just as* the prosecution actually does have to prove beyond a reasonable doubt that you were not engaged in boxing to convict you of battery, so to do they have to prove beyond a reasonable doubt that you were not engaged in consensual sex to convict you of rape.

I see nothing about this, legally, that is unfair. If there is unfairness, it is in the minds of juries, but you can't fix that by abrogating peoples' rights.

[zipplewrath]

32. In a sense, yes

If the person punched, or the person who owns a car, doesn't cooperate (press charges) it will often end with no charges. If they do, then a case will have to be made that the person didn't have permission to take the radio (he sold it to me). Much of the same evidence will be presented that would be in an assualt case. i.e. "if he sold it to you, why did you have to smash the window and pry it out of the dash?"

My wife works daily in court with victims of domestic abuse, which is a real "he said she said" situation. Consent, in that situation, doesn't particularly have a strong male bias. And in a sense, it is biased against men. If she has scratches or bruises, you're getting arrested, even if they are from defensive actions on your part. If you have scratches and bruises, she may not get arrested unless they decide that your's AREN'T from defensive actions on her part. (if there is a male bias, it is that men cause bruises, women cause scratches. Bruises take time to form, scratches show up instantly).

[LiberalLoner]

2. This is going to get flamed all to heck, but I'm glad you posted it anyway.

As a woman who has had some awful experiences in life, I am very keenly aware of my 2nd (or 3rd) class citizenship in the world. I am very aware - and carry the memory in my body - of male hatred of women.

[uncommon]

6. Thanks

I pretty much assume any feminist statement on DU will get flamed but it's good to at least try to get people to think once in awhile.

Hang in there.

[LiberalLoner]

10. At least they've changed the laws so rape is no longer a crime against property -

not that long ago, it was defined as a crime that lowered the value of the property of either the father (if the woman was unmarried) or the husband (if married.) And since a wife was legally the property of a husband, he could rape her (or beat her) as he wished without fear of any action being taken against him.

[uncommon]

12. Indeed. Sloooooooow progress is better than nothing, but still frustrating. nt

[uppityperson]

31. Oh uncommon, THANK YOU for coming to Du to try to get people to thinkd once in a while

I don't know HOW we managed to do so before you came. Thank you from the bottom of my feminist heart!

"I pretty much assume any feminist statement on DU will get flamed but it's good to at least try to get people to think once in awhile."

As if.

[uncommon]

35. What the hell?

A lot of DUers respond very negatively to feminist discourse. This was true years ago when I was a frequent poster, and it is still true now.

Your response was obnoxious.

The whole point of starting ANY thread is to get people talking about whatever issue you post about.

[uppityperson]

38. You were a freq poster yrs ago?

[uncommon]

41. Indeed -

Katherine Brengle if you are curious.

I left DU because I got tired of all the flame wars and ridiculousness. I came back because I got hungry for political conversation again.

[uppityperson]

44. Thanks. Looks like we frequented many of the same threads in Choice

Looks like that poster's account is still active. Wondering why you are back under a new moniker when the old one is still active?

Welcome back. I have become more cynical and jaded and tired of arguing with the current crop of DU invaders. If you be she, welcome back and sorry for snarking.

[uncommon]

47. Couldn't remember the password lol -

and no longer had access to the email address for the reminder.

S'okay, I remember how it is here.

[damntexdem]

18. The issue is too important for flaming.

Which doesn't mean that flaming won't occur.

[uncommon]

24. I concur. I mean, debate on the issue interests me, so I hope

some kind of intelligent discourse can happen.

[MineralMan]

3. How odd. I've certainly never seen women in that light.

I'm not sure your premise is sound.

[uncommon]

7. The law does, not individual people. nt

[MineralMan]

13. The law is for dealing with interactions that have gone badly.

It is not for interactions that go well. The person who does not make assumptions like the ones you mention have no need for the law at all. Those who violate the will of another person, in any area, are wrong to do so. Our laws are clumsily designed to codify that principle.

[uncommon]

25. Exactly - it's clumsy and doesn't protect

the victim in a fair way. So what is the alternative?

[NoNothing]

4. Just so I'm clear

The OP is arguing that we should legally presume women do not want to have sex?

That seems like a terrible idea.

[uncommon]

8. No, we should legally presume that a woman who says she has been raped did not consent.

There should never be a presumption by the law that a human being exists in a state of sexual availability to any takers.

(ETA: This does not mean an automatic conviction of the defendant - it means a shift in the burden of proof.)

[NoNothing]

14. There's no distinction

Because a rape with consent is simply "having sex."

Since "lack of consent" is the primary element of the crime that distinguishes it from legal behavior, it has to be proven beyond a reasonable doubt. Otherwise, it most certainly *is* an automatic conviction if any sex at all took place.

[uncommon]

26. Then how do we make it possible for a victim to prove it?

Not all rapes involve visible brutality (and even then sometimes it isn't enough).

[NoNothing]

34. There is no hard and fast rule

Like with any other crime, it depends largely on circumstantial evidence.

[MineralMan]

49. See, that's where you're incorrect. We cannot do that without changing

our entire system of justice. Do you want to do that? Rape is a crime. It must be treated as such under our laws.

[MineralMan]

9. I think the best practice is to presume nothing about women, or

about an individual person. In all of our interactions, determining the wishes of those affected is always a good idea. In our sexual interactions, it's even more important not to make any assumptions at all about an individual.

[uncommon]

11. I agree - we should assume full personal bodily sovereignty for all humans -

unfortunately we don't.

[MineralMan]

15. See, there you go again with the "we" thing.

I have always followed the practice I described, and have never presumed that anyone wanted to engage in sexual activity with me. Much to my surprise, that proved not to be true. Some people actually did want that.

If you mean "the law" you should use that term. It will help avoid confusion, I think.

[uncommon]

27. "We" as a society. You are playing a semantics game and it isn't

adding anything to the conversation.

It isn't just "the law" that is a problem.

[MineralMan]

48. No, you know, I'm not.

In legal issues, which is what this is, precision of language is crucial. That's why you'll often find me picking nits in this type of discussion.

The person accused of rape or sexual assault also has rights. We have a very strong reason to require proof of guilt, not of innocence. The assumption that the accuser is correct is a violation of that requirement, no matter what the crime.

When you use a general "we" in your argument, your argument fails when some of those in the "we" group do not act as you say "we" do. Language (and logic) is funny that way.

[NoNothing]

17. Yes, we do

There is a difference, though, between assuming that a person has the right not to consent to any bodily infringement - which we definitely do - and automatically assuming that any alleged violations of this right actually occurred. They are two totally separate spheres; it is not wise to conflate them in this way.

[MineralMan]

22. You make an excellent point.

Should we, as a society, assume that all sexual interactions between men and women are non-consensual unless proven otherwise? That doesn't seem to make much sense. Our biology lends its power to cause both men and women to want sexual contact. Without it, we perish.

So, I think the assumption is, quite naturally, that sexual contact is most often consensual. If that is the case, then the non-consensual contacts are not the norm. the assuption of consensuality seems to be appropriate.

[uncommon]

28. Thing is, if it truly is an act of mutual consent,

there will be no legal issue.

Despite popular notions to the contrary, women are not running to the police crying rape when they haven't been. The few instances in which this actually happens are broadly publicized to foster a culture that at the very least passively condones most rape.

[NoNothing]

36. Even if you were right that women never make false allegations -

a ridiculous assertion to begin with - there is the little matter of rights. Part of our respect for individual sovereignty means that you can't be locked up in prison based on nothing more than the allegation of another person. Even if those other people are saints and would never lie on purpose, you have a *human right* to the presumption of innocence.

[uncommon]

42. I did not say NEVER. I said rarely. And that is true. nt

[NoNothing]

45. We don't know how rare it is, actually

But more to the point, it doesn't matter. The presumption of innocence is a human right.

[damntexdem]

21. That's not what was said -- rather that a woman who reports rape should be believed.

My issue with the argument is that a prosecutor must still prove a crime, not have the burden on a defendant to prove innocence.

[uncommon]

30. I didn't say a judge had to automatically convict - but that

the victim believes in truth that she has been raped - and that the automatic assumption of society at large not be that she is lying, which is most often what happens, especially in high profile cases that we end up talking about a lot.

There should be a burden on the prosecution in order to convict, but there are also certain things that really shouldn't come into play, such as the victim's prior relationship with the accused, her prior sexual history, and the host of other issues through which a victim is vetted to prove her truthiness.

The burden of proof on the victim to proof her chastity, her virtue, how ferociously she fought off her rapist, etc, is what makes it nearly impossible to get a conviction. A woman has to be damn near perfect in the eyes of society to be rape-able - and even then, it's a toss up.

That's not okay.

[uppityperson]

37. Consensual sex = "a passive thing allowing acts to be committed upon her body"?

Consensual sex exists because people enjoy having sex with each other. Non-consensual sex exists because sometimes they don't want to have sex with someone yet the other person goes ahead.

Consensual sex does not mean "a passive thing allowing acts to be committed upon her body".

[uncommon]

39. It's the word and what it implies that is the problem, not actual acts of consensual sex. nt

[uppityperson]

43. Implying that sex is consensual does not ="a passive thing allowing acts to be committed upon her..

Saying consent was given means it was consensual, not "a passive thing allowing acts to be committed upon her body". It means that both parties consented rather than being forced.

Edited to add, I see where you are coming from, but disagree that consent implies the passive thingie.

[Xithras]

46. In a just society, the burden of proof must ALWAYS lay with the accuser.

Ergo, "Innocent until proven guilty". The alternative, where the accused is forced to prove innocence, has been tried in various areas (including parts of our own country at various times in history) and never turns out well.

And yes, consent can be challenged for other types of crimes as well. Many, many years ago two of my neighbors got into an argument, and one called the police on the other after a rather expensive lawnmower was taken from a carport. The neighbor who took the mower claimed that they had shared tools for years, and therefore that consent was implied. The neighbor who owned the mower claimed that consent had never been given, and that it had been a theft. The entire trial, over a stolen lawnmower, revolved around the argument of consent.

The crime may be different, but the legal theory and the result is the same. Consent can be challenged in any trial where the accused claims that the accuser provided it. It is nearly always challenged in rape trials, because it's hard to prove. It is rarely challenged when a stereo is stolen or someone is punched simply because no rational person would consent to that type of thing. Rape is different simply because sex is something that virtually all humans engage in and consent to willingly throughout their lifetimes. I saw years ago that something like 96% of all humans who reach puberty engage in voluntary sexual activities during their lifetime. Because only 5% of rapes involve strangers, the presence of pre-existing relationships between the accused and the accuser, and the simple fact that nearly all humans engage in consensual sex with people they know, the idea that the sex was consensual becomes plausible. Consensual muggings are rare. Consensual sex between acquaintances is an everyday occurrence. That is why consent will ALWAYS be an issue, and why we can't just treat a rape accusation like a mugging accusation.

By the way, the lawnmower thief was found not guilty, because the judge found that the owner had provided "implied consent" during their previous friendly relationship. If he wanted to withdraw that consent, he needed to state it, which he apparently never did.

[Romulox]

50. It is not Constitutionally permissible to presume guilt when an accusation of rape is made.

http://www.usconstitution.net/xconst_Am5.html

[MineralMan]

52. I went to the sourced link.

I had to chuckle at the blogger's advice for people posting comments on her blog entries. It seems no wonder that there are zero comments:

http://blog.iblamethepatriarchy.com/patriarchy-blaming-the-twisty-way/guidelines-for-commenters/

[BlueIris]

53. Yeah, shame on Twisty for demanding the comments be feminist.

On a feminist blog.

Or asking that comments be factual:

"...(C)ommenters should carefully consider whether a description of their personal sex lives is in fact absolutely vital to their analysis. Because it isn’t."

Shame, shame on the sane woman!

[MineralMan]

54. I said I chuckled at the rules, not that I blame her.

I thought they were funny. Chuckling is a way of enjoying humorous things.