For various reasons, I’ve been thinking about rape lately; about the specifics of what rape is, what needs to be proved in order to obtain a conviction, and how other parts of the law have had to be tortured in order to make up for law-makers’ (both judges and legislators) blind spots about what rape and sex are.
There are a couple of things that really bug me. One is related to our culture’s obsession with penis-in-vagina (PIV) sex, and how that’s the only sex which is really sex. In some ways, that should come first, but I’m going to leave it until later. Twisty’s recent post and a couple of cases I’ve been reading lately have really got me thinking about consent, so I need to have a bit of a rant about it.
Cut for possible triggers…
So anyway, I was thinking about why consent is necessary to prove the crime of rape in the first place. Originally, it was a crime against the woman’s owner, not the woman herself – and what what she thought about it didn’t matter at all. It wasn’t until the 20th century that it gradually became seen in a legal sense as a crime against the woman herself, and that’s when consent became important.
But there was (and still is) a resistance to seeing it as a “real crime”. And then I realised: if something can be blamed on a woman (“She wanted to! How could I say no? I’m just a man, I can’t control myself!”), it will be. A bit like the Murphy’s law of the patriarchy. My point is, it’s still not focused on harm to the woman herself.
When we see how rape trials tend to be run, there’s a lot of support for this theory. Most rapes occur in “date-rape” or “acquaintance-rape” situations (I use scare quotes because I don’t like those ways of qualifying the crime – those crimes are still rapes). That is, the defendant is usually someone the complainant knows and trusts (well, trusted, anyway). The defendant will usually acknowledge that sexual intercourse took place, and his defence will usually be that the complainant consented. In some jurisdictions there’s a slightly different (and much easier-to-prove!) defence of honest belief in consent. This gives the jury a nice out – if they don’t convict the defendant, they can still feel sorry for the complainant (“that poor girl [note use of “girl” instead of “woman”], she just needs to make herself more clear next time”).
This has made the law of evidence fairly tortured in a lot of situations. I’m too lazy to go dig up specific references right now, so please take my word for it* that: (1) a lot of tricky evidence cases involve sexual crimes – because the evidence is usually one person’s word against another; (2) that there are a number of cases – the UK House of Lords decision in R v Z  2 AC 483 being one of them – in which you can see that the judges were quite convinced that a rape has occurred, the law won’t allow certain evidence to be admitted at trial, the judges are really quite uncomfortable with the idea of letting someone who seems quite likely to be a rapist go free, and so they twist the law to allow evidence in.
This really annoys me.
Why should the innocent law of evidence be tortured and twisted just because our legislators and judges (and society in general, let’s not let ourselves off the hook here!) can’t get itself around to reforming our rape laws?
This is what I suggest: first, the defence of “honest belief in consent” should be completely removed. Sure, lack of consent still needs to be proved, but it’s a hell of a lot easier to prove that than to prove that the defendant didn’t honestly believe that the complainant was consenting.
Second, the concept of “positive consent” should be incorporated into our legal discourse. By this I mean something pretty similar to Amanda’s idea of real consent, referred to above. It’s really revolutionary [yes, that's tongue-in-cheek]. Are you sure you’re ready for it [yes, that too]?
Ok, here goes:
Essentially, you (male or female) should always make sure that the person you want to have sex with/are having sex with actually wants to do whatever you’re doing at any given time.
We can then redefine rape as being “having sex with someone without obtaining consent” rather than “having sex with someone when they didn’t consent”. I would also say that actual consent would still be a defence, even if consent wasn’t obtained, so the crime itself is still pretty much the same in an abstract legal sense. That makes it sound like I’m talking semantics, and maybe that’s all it is in many ways, but there is a real difference. It essentially shifts the burden to the defendant to at least raise evidence of consent (that is, he would bear an evidentiary burden, and the prosecution would then need to rebut that beyond a reasonable doubt). That may seem impermissible at first glance, but there are heaps of crimes where the defendant bears an evidentiary burden. It’s perhaps a little controversial at a theoretical level, in terms of what we should really call it, and when it’s permissible, and so on, but I’m not going to go into that here as it would be a massive tangent. And, like I said above, I’m too lazy right now to go and dig up references!
Most importantly, it could shift the emphasis of the trial onto what the defendant did rather than what the complainant did, and that’s where the emphasis should be. This is what could move it from the semantic to the practically different.
“Awwwww”, say the “romantics”. “That takes all the romance out of sex, if you have to say every time, ‘hey, do you wanna have sex now? do you mind if I do this? and this? and this?’”
Two answers to that. Sex is better when you and your partner know each other wants, and the easiest way to find out is to ask each other. Plus there are so many different and interesting ways to ask…
And second: you think being raped is romantic?
This “but I want it to be romaaaaantic” mindset is a real blind spot in our legislators and judges – and everyone, really.
That blind spot and the fact that an honest belief in consent was worth entertaining as a defence makes me really worry about what goes on in the bedrooms of our (mostly male) legislators and judges. You know what? I feel kinda sorry for them.
* If you really, really want references, let me know and I’ll put something together. It might take me a couple of weeks, though, and I wanted to get this off my chest sooner than that.