When most people think about rape and sexual violence they imagine a situation where a woman is attacked by a man she does not know. We usually do not think of college campuses, particularly dating on college campuses, as a place where rape is likely to occur. Yet college campuses are a dangerous place for both female and male students and the rate of rape and sexual violence is startling. During their college years, one in five women are sexually assaulted or raped. And it is not just female students who are victimized, as 17 percent of student victims are male.

Rapes on college campuses do not fit our mental model for how rape occurs, which makes it difficult to combat and makes victims reticent to report crimes. Among college women, nine out of 10 knew their rapist. Rape is particularly likely for freshmen and sophomores, especially cases of incapacitated rape, which happens to 15 percent of female freshmen.

Reporting Problems

Despite high rates of violence, only 20 percent of victims report the crime to the police. There are multiple reasons why victims may not choose to go to the police. Oftentimes the victim and the rapist are in the same social circle and victims fear social reprisal for reporting. They may also fear that their claims will not be taken seriously by the police or school officials and that they may be subject to disciplinary action or criminal prosecution themselves. Remember, many of these victims have been drinking underage and/or using drugs prior to their rape.

Victims may also have been conditioned to think that their rape was not a “real” rape. Their rapist is someone that they know, not a stranger grabbing them in a dark alley. Force may not have been used since often the victim was incapacitated at the time. Our culture also offers multiple excuses for rapists and puts blame on victims who were intoxicated or otherwise “irresponsible.” These feelings of guilt on the part of the victim are internalized and expressed by not reporting the crime because it isn’t worth dealing with.

In an effort to combat the problem of rape on campus, many colleges and universities have adopted affirmative consent practices. The use of affirmative consent to change cultural attitudes about rape and/or to change rules on how to prosecute sexual violence has caused a great deal of controversy and should be more thoroughly examined.

What Is Affirmative Consent?

For a full background on rape culture and affirmative consent, you can read this article. But the video below, featuring journalism icon Gwen Ifill, also provides an excellent overview of the concept of affirmative consent and some of the push-back on adopting it as a standard.

So let’s unpack some of the arguments surrounding affirmative consent. Jaclyn Friedman, the affirmative consent advocate, explains that the “no-means-no” standard (where consent is presumed unless it is expressly denied) doesn’t deal well with some kinds of sexual assault. In particular, it does not provide adequate protection from abuse for victims who may freeze up and feel too unsafe to deny consent. This is actually a common reaction, particularly for victims who are sexually inexperienced, incapacitated, or conditioned to not resist. When the burden is placed on all participants to make sure that everyone is consenting, it eliminates some of these dangers. It also would eliminate a situation where one party feels they were victimized and the other party honestly does not feel they did anything wrong because they thought silence was consent.

In a culture where silence indicates a lack of consent, not evidence of it, it becomes much more difficult for this to happen. This could be especially helpful for younger college students, or the sexually inexperienced, who are in fact more likely to be assaulted than their older student peers.

Shikha Dalmia takes a different view on the issue because of how affirmative consent changes the burden of proof and, in her view, the presumption of innocence. Her main objection is not that we may want to adopt this as a cultural model for how consent works but that we might use affirmative consent as a legal framework. As she states, consent is already required, under the “no-means-no” standard. But we presume that there was consent until the non-initiator indicates otherwise. This presumption is necessary, in Dalmia’s view, to maintain a presumption of innocence for those accused of rape.

We have to take that concern seriously because the presumption that everyone is innocent until proven guilty is a cornerstone of our judicial system. But changing the presumption of consent does not necessarily lead to a change in the burden of proof/presumption of innocence.

In a formal rape trial, the prosecution currently needs to show that the victim did not give consent, but that is not the same as saying we assume they are lying. In some instances where the defendant is asserting impotence or intoxication as a defense against rape they are already required to prove that element of the case, yet it does not change the underlying presumption of their innocence. Requiring one party to prove an element of the charge does not mean that we assume that party is being deceptive.

We are placing the burden of proof on the prosecution to prove a lack of consent. And they offer evidence for this such as the actions of the victim and defendant, including but not limited to what was said. But if consent was not presumed that wouldn’t change the fact that we are still asking the prosecution to prove its case. Prosecutors would still have to contend with any evidence the defense offers to show that there was in fact consent, and they would still be offering their own evidence to show that nothing the victim did amounted to consent. It would change the understanding of what all parties should have understood at the time of the incident–that they should have obtained consent–not be a commentary on what the defendant did or did not do.

A Practical Solution?

The second problem is how affirmative consent actually works in practice. Is it really something that will “work” on campuses, or in the general population, given our cultural scripts for how men and women behave sexually?

There are impracticalities to the use of affirmative consent but not for the reasons that detractors might suggest. The impracticality is not in asking for consent during a sexual encounter. The main obstacle is changing the cultural norm so that not getting that consent is a problem.

But hasn’t that been the case in all movements for increased social justice? Sharing a water fountain between blacks and whites was never impractical on its face, in fact, it is even more practical to have one water fountain. Just as affirmative consent as a model has the potential to reduce confusion and assault. The impracticality is from an unwillingness to implement a new system that changes social norms, gender norms in this case, not with the new norms themselves. There may not be enough evidence of how effective affirmative consent is on college campuses to draw a conclusion about its implementation. But there is some anecdotal evidence, suggested here, that even skeptics can incorporate affirmative consent into their sexual behavior.

The video below highlights both the concern about the practicality of the system and the appropriateness of how affirmative consent policies have been added to most college campuses. Many of these institutions adopted an affirmative consent model because the Obama administration, as part of the “It’s On Us” program, made continued federal funding contingent upon colleges dealing meaningfully with sexual assault. In the video, the panel discusses the issue in the state of California.

Some of these objections are based on a misunderstanding, sometimes a deliberately created misunderstanding, of affirmative consent. It certainly does not require written consent, and in fact, does not require even verbal consent. Obviously, a written document would be your strongest piece of evidence in a case trying to show you had obtained consent. But that doesn’t mean that it is the only way to do so, and this line of reasoning conflates the idea of how affirmative consent would work in practice in most sexual encounters with how affirmative consent might affect a legal proceeding.

What Affirmative Consent Would Change

Either at the school or the state level, a legal proceeding is only changed by explicit amendments to the burden of proof or the presumption of innocence. Affirmative consent does not do that. Our current prosecutorial system functions perfectly well, even when consent is at issue, without a document signed by the victim saying they didn’t consent. There is no reason to think that a written contract would be required simply by asking an initiator to make sure their sexual activity was welcome.

In fact, if you look at one example definition of affirmative consent used by a university, specifically the State University of New York, it explicitly includes actions as one method to show consent. The key is that the words or actions create a “clear permission” regarding willingness.

But there is still discomfort with the idea that the federal government can influence policy at colleges around the country by threatening to withhold funding. Some people think it is inappropriate to try to strong arm a college in this way.

And yet the government already engages in this behavior all the time, in other contexts, to promote fair treatment. One example is the area of special education. While I was at William and Mary I worked in our clinic for children with special needs, ensuring that they received FAPE–a free and appropriate public education. In exchange for federal funding, the state of Virginia agreed to follow certain guidelines for how they were required to handle children with special needs. Before the implementation of the law that allowed this, the Individuals with Disabilities Education Act, children with special needs were often shoved into a corner and ignored.

Most people would not object to this requirement because they realize that sometimes you need practical reasons to encourage socially just behavior. As much as we would like to think otherwise, people do not always behave morally on their own, state governments and colleges included. The federal government has consistently used the power of the purse to encourage behavior to support marginalized groups. The fact that they are doing so now, to protect students from sexual assault, should not matter. A prudish or squeamish reaction to the involvement of the government in sexual matters focuses on the sex and not on the violence. Rape that occurs when someone is incapacitated, knows the attacker, was drinking, etc. is just as much an act of violence as a stranger jumping a victim on the street. And there is no more quintessentially appropriate role for government than the prevention of violence against its citizens.

Conclusion

We need to deal with rape as it actually happens in reality, rather than dealing with rape as it is portrayed in our culture. A rapist is not always, or even usually, a stranger. It does not always happen with physical violence; often sexual assault happens in a wider social context. And because sexual assault is inextricably linked with sexual conduct in general, we have to address our sexual culture if we want to address sexual assault.

Affirmative consent may not be a panacea for the issue of sexual assault, even just on college campuses. The use of alcohol and drugs, the tight-knit social communities where these assaults occur, and the relative sexual immaturity of the age group all make sexual assault more complicated on a college campus. But the discussion of whether we want to adopt this model, either in a social or in a judicial context, has opened the door for people to grapple with what consent really means. That discussion is a valuable one for us to be having.

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

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Throughout most of our history, rape was a property crime.

Today we do not, in the modern United States at least, think of a woman’s sexuality as a financial asset. But that is a recent phenomenon. For most of our history, rape was not treated the same way as other violent assaults because it wasn’t just a violent assault, it was also a crime against property.

You can see this view–of a woman’s sexuality belonging to her father and later her husband–in laws concerning rape and sexual assault. It was even possible for a father to sue a man who had consensual sex with his daughter because he had lost the value of his daughter. Based on this view, value is lost in terms of her work if she became pregnant and was no longer able to earn wages, or in terms of a future wife for someone else because of this stain on her character. Men could not be held accountable for raping their wives because a wife was a man’s property and consent to sex–at any time of his choosing–was part of the arrangement.

Lest you think that these laws are ancient examples of a culture that no longer bears relation to our current policies on rape, spousal rape was not made illegal in all fifty states until 1993, where it still may carry a less severe sentence than other rape offenses. The tort of seduction was technically on the books in North Carolina in 2003.

This context is important given our current cultural attitudes toward sexual assault. To understand this culture and how it can be amended, we need to look more deeply at the historical understandings of rape and consent.

Force Means No

The framework for defining rape underpins our understanding of who is required to prove consent or non-consent. The Hebrew Scriptures, which established longstanding cultural norms that helped form a basis for what was morally and legally acceptable in early America, make a distinction between a woman who was raped within a city and one who was raped outside of the city limits. The first woman was stoned to death and the second considered blameless (assuming she was a virgin). This distinction is based on the idea that it was the woman’s responsibility to cry out for help and show that she was non-consenting. A woman who was raped in the city obviously had not screamed because if she had someone would have come to her rescue and stopped the rape. The woman outside the city had no one to rescue her so she could not be blamed for being victimized.

This brutal logic, which is completely inconsistent with how we know some victims of rape react to an attack, was continued in the American legal system when our laws on rape were formulated. Rape was defined as a having a male perpetrator and a female victim and involving sexual penetration and a lack of consent. But it was again the woman’s responsibility to prove that she had not consented and the way that this was demonstrated was through her resistance. She was only actually raped if she had attempted to fight off her attacker. Different jurisdictions required different levels of force to show a true lack of consent. For example, fighting off an assailant to your utmost ability or even up to the point where the choice was either to submit to being raped or to being killed. Indeed, the cultural significance of chastity as a virtue that the female was expected to guard was so profound that many female Christian saints are saints at least in part because they chose to die rather than be raped or be a bride to anyone but Christ.

Potential canonization aside, it was consistently the responsibility of the woman alleging that she was the victim of a rape to prove that she had fought off her attacker in order to show that she had not consented. If she could not show that she had sufficiently resisted, she was deemed to not have been raped. Her chastity was someone else’s property, either her father’s or her husband’s/future husband’s, so it was always understood that someone, other than her, had the right to her sexuality. The assailant had assumed that he had the right to use her sexually and was only a rapist if she acted in such a way that a reasonable man would have known that she did not belong to him. Her failure to communicate that fact, that she was the property of some other man, was a sign that she had in fact consented. Therefore the rape was not his moral failing in stealing another man’s property but her moral failing in not protecting that property from being stolen.

Culture Wars

We can see the effects of this ideology in how we treat rape victims today. Although we don’t necessarily require evidence of forceful resistance, it is considered helpful in prosecuting a rape case. Rape shield laws may have eliminated the most egregious examples of slut-shaming victims, but an innocent or even virginal victim is certainly what the prosecution could hope for if they were trying to design their most favorable case. One of the first questions that will be asked of the victim is “did you say no?” In other words “what did YOU do to prevent this from happening to you?” The burden is still often legally and almost always culturally on the victim to show that they did not consent.

There is an alternative approach that has been gaining traction on college campuses and elsewhere known as the concept of “affirmative consent.” Take a look at the video below, which elucidates the differences between the “no versus no” approach compared to affirmative consent, which is often described as “yes means yes.”

In this video, Susan Patton and Rush Limbaugh both represent examples of rape culture. The contrast between the views of Savannah Badlich, the advocate of affirmative consent, and Patton, who is against the idea, could not be starker. To Badlich, consent is an integral part of what makes sex, sex. If there isn’t consent then whatever happened to you, whether most people would have enjoyed it or indeed whether or not you orgasmed, was rape. It is your consent that is the foundation of a healthy sexual experience, not the types of physical actions involved. In contrast, Patton expressed the view that good sex is good sex and consent seems to not play a role in whether it was good sex, or even whether it should be defined as sex at all. The only thing that could indicate if something is an assault versus a sexual encounter is whatever physical evidence exists, because otherwise, the distinction is based only on the assertions of each individual. Again we are back to evidence of force.

What is “Rape Culture”?

Rape culture refers to a culture in which sexuality and violence are linked together and normalized. It perpetuates the idea that male sexuality is based on the use of violence against women to subdue them to take a sexual experience, as well as the idea that female sexuality is the effort to resist or invite male sexuality under certain circumstances. It overgeneralizes gender roles in sexuality, demeans men by promoting their only healthy sexuality as predatory, and also demeans women by considering them objects without any positive sexuality at all.

According to this school of thought, the “no means no” paradigm fits in perfectly with rape culture because it paints men as being predators who are constantly looking for a weak member of the herd to take advantage of sexually, while also teaching women that they need to be better than the rest of the herd at fending off attacks, by clearly saying no, to survive. If they can’t do that, because they were drinking or not wearing proper clothing, then the attack was their fault.

“Yes Means Yes”

Affirmative consent works differently. Instead of assuming that you can touch someone until they prove otherwise, an affirmative consent culture assumes that you may not touch someone until you are invited to do so. This would be a shocking idea to some who assume that gamesmanship and predation are the cornerstones of male sexuality and the perks of power, but it works out better for the majority of men and women, who would prefer and who should demand equality in sex.

This video gives a brief highlight of some of the issues that are brought up when affirmative consent is discussed and the difficulties that can still arise even with affirmative consent as a model.

Evaluating Criticism of Affirmative Consent

The arguments are important so let’s unpack some of the key ones in more detail. The first objection, expressed in both videos, is how exactly do you show consent? Whenever the affirmative consent approach comes up, one of the first arguments is that it is unenforceable because no one is going to stop sexual activity to get written consent, which is the only way to really prove that a person consented. We still end up in a “he said, she said” situation, which is exactly where we are now, or a world where the government is printing out sex contracts.

The idea that affirmative consent will by necessity lead to written contracts for sex is a logical fallacy that opponents to affirmative consent use to make the proposition seem ridiculous. Currently, we require the victim to prove non-consent. Often the victim is asked if they gave a verbal no or if they said they did not want the contact. The victim is never asked: did you put the fact that you didn’t want to be touched in writing and have your assailant read it? The idea that a written explanation of non-consent would be the only way we would take it seriously is absurd, so it would be equally absurd to assume that requiring proof of consent would necessitate written documentation. Advocates for affirmative consent don’t want sex contracts.

In addition, even under our current framework we accept a variety of pieces of evidence from the prosecution to show that the victim did not consent. A clear “no” is obviously the strongest kind of evidence, just as under an affirmative consent framework an enthusiastic verbal “yes” would be the best evidence, but that is just what the best evidence is. That is certainly not the only kind of evidence available. Courts already look at the entire context surrounding the incident to try to determine consent. The process would be virtually the same under an affirmative consent model. The only difference would be that the burden would be on the defendant to show that they believed they had obtained consent based on the context of the encounter instead of placing the burden on the victim to show that, although they didn’t say “no,” they had expressed non-verbally that they were unwilling to participate.

The shift in the burden of proof is sometimes cited as a reason not to adopt an affirmative consent model. Critics argue that this affects the presumption that the accused is innocent until proven guilty. Which is, rightly, a cornerstone of our judicial system. If this model did, in fact, change that presumption then it wouldn’t be an appropriate answer to this problem. But it does not.

Take another crime as an example. A woman’s car is stolen. The police issue a BOLO on the car, find it, and bring the suspect in and sit him down. They ask him “did you have permission to take that car?” and he replies “Yes, officer, she gave me the keys!”

He is still presumed innocent and, as far as this brief hypothetical tells us, hasn’t had his rights violated. It looks as though he is going to get a fair trial at this point. That trial may still devolve into another he said, she said situation. She may allege that she didn’t give him the keys but merely left them on the kitchen table. At that point, it will be up to the jury to decide who they believe, but that would have been the case in any event. He is presenting her giving the keys to him as one of the facts to show his innocence.

If a woman’s car is stolen we don’t question her about how many miles are on the odometer. We don’t ask if she wore a seatbelt the last time she drove it. We don’t care if she had been drinking because her alcohol consumption doesn’t negate the fact that she was a victim of a crime. We certainly wouldn’t force her to prove that she didn’t give the thief the keys.

That is how affirmative consent works. It wouldn’t require a written contract or even necessarily a verbal assertion. Context would always matter and the cases would still often become two competing stories about what the context meant. And it doesn’t mean that we are assuming that person is guilty before they have the chance to show that they did, in fact, get that consent. It just means that we are placing the burden of proving that consent was obtained on the party claiming that consent had been obtained.

Conclusion

There is no other category of crime where we ask the victim to show that they didn’t want to be the victim of that crime. A man who is stabbed in a bar fight, regardless of whether he was drunk or belligerent, isn’t asked to prove that he didn’t want a knife wound.

We need to change our cultural framework of rape and consent. When we are working under an affirmative consent framework what we are doing is changing the first question. Currently, our first question is for the victim: did you say no? Under an affirmative consent model our first question is for the suspect: did you get a yes?

Resources

Women Against Violence Against Women: What Is Rape Culture? 

Vice: A Brief And Depressing History of Rape Laws

Women’s Law Project: Rape and Sexual Assault In the Legal System

Find Law: Is The Tort of Wrongful Seduction Still Viable? 

International Models Project On Women’s Rights: Law Reform Efforts: Rape and Sexual Assault In The United States of America

Catholic Company: The Virgin Martyrs As Models of Purity

Chicago Tribune: To Combat Sexual Assault, Colleges Say ‘Yes’ To Affirmative Consent

Think Progress: What Affirmative Consent Actually Means

SUNY: Definition of Affirmative Consent 

Washington Post: Why We Made ‘Yes Means Yes’ California Law

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Rape Culture and the Concept of Affirmative Consent appeared first on Law Street.

Oklahoma has done it again, ladies.

Oklahoma law does not criminalize someone who forces an intoxicated or unconscious person to engage in oral sex.

A Tulsa County judge dismissed a case in November involving two high school students after a 17-year-old boy reportedly offered a ride home to a 16-year-old girl. She had been heavily drinking and court documents show that her BAC was at 0.34, which would constitute alcohol poisoning. She was taken back to her grandmother’s house where she was completely unconscious and taken to the hospital. She later woke up to sexual assault testing and the boy’s DNA was found on her body.

He was initially charged with forcible sodomy and first-degree rape.

The boy claimed their encounter was consensual, but the girl claimed that she had no memory of it happening.

According to the court, “Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation.”

The case was appealed, but the appeals court affirmed that the state could not prosecute the boy for his actions.

“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” Benjamin Fu, the Tulsa County district attorney leading the case, told The Guardian. “I don’t believe that anybody, until that day, believed that the state of the law was that this kind of conduct was ambiguous, much less legal. And I don’t think the law was a loophole until the court decided it was.”

The defense attorney, Shannon McMurray, argued in the Oklahoma Watch that the court was right because intoxication cannot be substituted for force.

“There was absolutely no evidence of force or him doing anything to make this girl give him oral sex other than she was too intoxicated to consent” McMurray said.

This ruling has acted as a catalyst for the public to urge change to the law. Lawmakers as well are pushing to close this gap and make sure that this cannot be used in the future to dismiss a case.

One Oklahoma State Representative, Scott Biggs, R-Chickasha, said that he plans to amend the bill in order to include unconscious victims under the forcible sodomy law.

Oklahoma: it isnt rape if you’re drunk. So I can get drunk and rob people and it’ll be okay then? maybe steal a car?https://t.co/yM2YK4cW8z

— Lynsie Lee (@LynsieLee) April 28, 2016

WTF IS WRONG WITH OKLAHOMA???? OK court: oral sex is not rape if victim is unconscious from drinking https://t.co/AKf2vyKP7q#YesAllWomen

— Jeska Dzwigalski (@JeskaD) May 1, 2016

While the verdict shocked many, it wasn’t surprising to all.

“It’s not surprising, although unfortunate, that this is how it came down,” Rebecca O’Connor, the vice president for public policy of the Rape, Abuse and Incest National Network told The New York Times. “It’s also not unique to Oklahoma. This sort of gray area of law can lead to unfortunate consequences.”

Julia Bryant

Julia Bryant is an Editorial Senior Fellow at Law Street from Howard County, Maryland. She is a junior at the University of Maryland, College Park, pursuing a Bachelor’s degree in Journalism and Economics. You can contact Julia at JBryant@LawStreetMedia.com.

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