Rape and Consent

 Posted by on 15 January 2003 at 9:22 am  Uncategorized
Jan 152003

A few days ago, I read Eugene Volokh’s comments on the recent California withdrawl-of-consent rape case. His basic position was that the case was decided rightly. In light of those comments, I was quite astonished upon reading the facts of the case cited in Wendy McElroy’s excellent FoxNews column.

Wendy wrote:

What are the facts of the case? 17-year-old Laura T. attended an otherwise all-male party at which she did not drink. After allowing two teenaged boys to undress and fondle her in a bedroom — acts she admitted enjoying — she had sex with each. Laura did not say the word “no” nor did she resist. Instead, she said, “I have to go home.” Because John Z. continued for approximately four minutes after she first expressed what might have been reluctance, he was convicted of rape.

Rape is an abomination no civilized society can tolerate. But precisely because rape is such a serious crime, it is important to establish explicit and reasonable standards by which to judge the guilt or innocence of those accused.

If a woman (or man) clearly says “stop” during consensual sex, then the partner should be morally and legally constrained to do just that — stop. But what if the partner proceeds in good faith on the basis of a “yes” given moments before? Common sense dictates that the rescinded “no” must be explicit and that the partner should have a reasonable amount of time to grasp the changed circumstances.

But the Court ruled that sex becomes rape the instant the women rescinds consent and it provided no guidance on what constitutes the withdrawal of consent.

The sole dissenting voice, Justice Janice Rogers Brown found that none of Laura’s statements were “unequivocal.” Her requests to go home could have been interpreted as a need for reassurance or a request for greater speed….

The Laura T. decision may well become a Pandora’s Box for false accusations of rape. No longer can the man point to a woman’s explicit consent because she can now argue that — once penetration occurred — she changed her mind. She need not utter the word “no!” She can merely say, “I have to go home.” As the former mainstream feminist Professor Erin O’Connor notes in her blog , “this ruling neatly dispenses with the idea that rape necessarily involves force, and replaces it with a definition of consent that is as uncertain and shifting as the woman who wields it.”

So I wrote Eugene the following note:

Since you wrote on this rape ruling, I thought you might be interested in this FoxNews column by Wendy McElroy. If indeed the woman merely said “I have to go home” that would hardly qualify as an unambiguous statement that consent has been withdrawn, no?

Frankly, I would argue that verbal consent is too weak of a standard for acquaintance rape, as it allows a woman to self-deceptively or maliciously turn a regrettable sexual encounter into a rape. Rather, the woman must be physically threatened with harm or struggle physically against the man, preferably while making clear statements along the lines of “get off me you bastard!” Women need to take responsibility for making their wishes crystal clear. The best way to do that is with action in conjunction with words.

Sadly, far too many women are not above charging rape in order to cope with feelings of regret or anger. (Feminists like to claim that a woman would have no motive to false charge rape. That’s absurd.) And the thought of a man going through a trial, going to jail, and being labeled a sexual predator due to a woman’s failure to make her wishes known, coupled with an act of self-deception or simple dishonesty is pretty abhorrent. According to the stats in Warren Farrell’s The Myth of Male Power, women falsely charge rape far more often than we might think.

Ages ago, when I was a teenager, I was pressured into sex by my scummy boyfriend at the time. I didn’t want to, but based upon ambiguous statements he made the night before, I feared that he might overpower and force me. (Scummy boyfriend that he was, I’m quite certain in retrospect that he never ever would have forced himself on me.) By modern feminist standards, I was raped. By reasonable standards, I was just stupid and timid.

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