Tuesday, February 9, 2016
Is the Law Actually Behind on Sexual Assault?
This was mentioned in class, but I'm not sure what to think of it. The way I understand it, whenever consent is not given to ANY sexual act, then it is sexual assault/rape. So, in the example, when the woman mentioned in class gave consent to sex, but not to what she experienced, the MOMENT she said "no" or "stop" or ANYTHING that communicates that she no longer consents, EVERYTHING that follows is sexual assault/rape. This understanding- as long as it's a correct understanding- seems to be exhaustive. ANYTHING that happens after no communication of consent OR after it is communicated that one does not consent, is sexual assault. If two people are having sex, and at ANY POINT (that is, at the beginning, in the middle, right before climax, whatever possible example you can think of) a person says they no longer want to continue or they are no longer giving consent or they say to stop, ANYTHING that follows qualifies as sexual assault/rape. I may have said the same thing multiple times here, but I wanted to ensure that I got what I was thinking out clearly, so you can all respond as best as possible.
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With respect to this: "[If] a person says they no longer want to continue or they are no longer giving consent"
ReplyDeleteIt is uncontroversial that if a person clearly revokes consent, the act becomes sexual assault in both a moral and legal sense. The issue at hand seems to be cases where consent is given at the start, (for the sake of argument let's assume affirmative consent) one party's intention to consent ends at some point, but the revocation of consent is not communicated. The issue may arise due to lack of explicit agreement on what was consented to (i.e. mutual assumption) or due to one party changing his/her mind.
The controversial cases are those where the party which ceases to consent does not communicate that revocation in a way that is understood by the other party. So the issue is not when people say "stop", but when they *don't* say stop even though that is what they were thinking. It seems dubious to claim that the other party should be considered in the wrong, legally or morally, if they did not know that the first party did not want to continue. It also seems impractical that the law should require consenting couples to explicitly itemize the acceptable sex acts in a written contract in advance. One might suggest that affirmative consent must be given at certain natural transition points or whenever a new sex act is introduced. In other words, you should ask for a 'yes' before every new action. This seems somewhat tenable on a personal level, but if it were codified into law it would introduce problems such as defining which sex acts count.
The issue is further complicated by the use of safe words - couples who practice roleplaying, BDSM, and other nontraditional sex acts usually establish a unique "safe word" which is the only word that counts as revocation of consent. This is used because many of these nontraditional acts entail insincere protest. Therefore there are cases where a person saying "stop" does not materially constitute revocation of consent. In order to align with individuals actual intentions to consent, the law must recognize safe words. It must also recognize that, if and only if you choose to use a safe word, saying "stop" does not count as revoking consent. However, the issue arises that most couples do not document their intent to use a safe word on paper. It is merely a verbal contract and is subject to the limitations thereof.
Steven, I see your point being made all the time, but I have yet to see someone ever argue the opposite. I'm not exactly sure on the point you're trying to make, because I think we're all in agreement. I don't think rapists need to be informed of your point, well really I think they already are, but it doesn't make a difference. If someone is going to defy someone's word of consent, they are fully ready to do it, I don't believe they are on the edge enough to be swayed against doing it by you telling them. No matter how much you scream "stealing is bad" there will always be thieves. I'm not saying to never make this point or not talk about consent at all, but like you said in your post, you made your point a few times over, and It seems like I hear this everywhere. The people that benefit the most from your point are probably other women, who might be too timid to speak up during sex. But, if you're having trouble speaking up during sex, you might be having it with the wrong people.
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