I used to think that the problem with rape was that women weren’t being explicit – they weren’t actually saying no, partly because men weren’t actually asking. Perhaps because there’s (still?) something shameful about sex that makes people reluctant to come right out and talk about it. Or maybe that would destroy the romance. Whatever.
I still think that a pre-sex explicit question-and-answer might be a valuable social custom, but I’m now thinking that a much bigger part of the problem is that women do say no, explicitly and implicitly, and men do understand that ‘no means no’ (I suspect the prevalence of the ‘no means yes’ belief is grossly exaggerated, if not completely fabricated, by men for men), but men don’t hear us: they continue to think that women, like children, should be seen (okay, looked at – all the time, everywhere) and not heard. And when they do hear us, they don’t take us seriously. We’ve all read the studies about how a woman will say something in a meeting. Silence. Then a little later, a man will say the same thing. Excellent idea, Bob! You’re promoted! Here’s a raise!
Lucinda Vandervort (“Mistake of Law and Sexual Assault: Consent and Mens Rea” in Canadian Journal of Women and the Law 2 ,1987-1988) presents a hypothetical sexual assault trial in which the defendant maintains that all of the woman’s neutral as well as non-cooperative behaviour really indicates consent. The hypothetical defendant may have been honestly mistaken in his belief that the woman consented (which is accepted as a defence in Vandervort’s hypothetical). But given the woman’s behaviour (she said no, she did not say yes, she did not co-operate), surely he was being unreasonable, not to mention arrogant, selfish, immature, or just incredibly stupid – to believe as he did.
And in fact, a standard of reasonable is used: “When an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief” (Criminal Code s.244(4), my emphasis).
But Vandervort says that a case such as her hypothetical would probably be screened out as unfounded by the police or rejected for prosecution by the Crown on the grounds that the mistaken belief in consent was not “sufficiently unreasonable” – that is, the defendant’s belief is deemed not only honest, it’s considered reasonable enough. What? What planet do you guys live on? Oh. Um, this one.
On a non-patriarchal planet, the man’s belief in consent, despite what the woman said (“I have to leave”, “Stop”) and did (she struggled, she pushed him away), as well as what she didn’t say (“I want to” “Yes”) and didn’t do (undress), would surely be considered unreasonable. And delusional. At the very least, ‘willfully blind’ (and thus unacceptable as a defence).
Further, Vandervort states that in sexual assault cases “the reasonable person standard … focuses on the type and degree of violence used by the assailant and compares it with that used in normal sexual encounters of a similar nature” and notes, somewhat dryly, that “normal sex appears to include some quite extra-ordinary forms of interaction, some of which are quite violent.” Indeed, according to Lorenne Clark and Debra Lewis (Rape: The Price of Coercive Sexuality, The Women’s Press, 1977), most men (against whom rape complaints were laid with the Metropolitan Toronto Police Department in 1970) consider violent behaviour to be normal for a sexual encounter. I wonder how many women would agree. (Though perhaps ‘preferred’ should be substituted for ‘normal’: it could be that a similar finding – that is, that most women also consider violent behaviour to be normal for a sexual encounter – merely reflects the reality of sex because it usually involves a man.)
Even so, one has to wonder just who’s being consulted about what’s normal? Consider Robin Weiner’s comments: “What is ‘normal’ according to male social norms and ‘reasonable’ according to male communication patterns and expectations does not accord with what women believe to be reasonable…. A woman may believe she has communicated her unwillingness to have sex – and other women would agree, thus making it a ‘reasonable’ female expression. Her male partner might still believe she is willing – and other men would agree with his interpretation, thus making it a ‘reasonable’ male interpretation…. The use of a reasonable person standard thus has a basic flaw. Courts do not clarify the perspective from which the ‘reasonableness’ standard should be applied” (“Shifting the Communication Burden: A Meaningful Consent Standard in Rape” in Harvard Women’s Law Journal 6, 1983). And anyway why isn’t what’s acceptable used instead? Just because everyone does it that way (it’s normal) doesn’t mean it’s right!
Look, guys, we take you seriously. We can’t help but do so. Your repertoire of facial expressions, your body language, and your attire are limited to ‘serious’ and ‘more serious’. And when we don’t take you seriously, when we laugh at you, for example, you get really mad.
So, please, show a little respect. Acknowledge that we too have brains. That we know what we want and what we don’t want. That we can express ourselves accurately. Take us seriously. Or don’t take us at all.