Rape & consent: 'Yes means yes'

CLEMENTINE FORD
Last updated 09:31 25/02/2014
Activists take part in the SlutWalk London 2012 to demonstrate against victim-blaming in cases of rape on September 22, 2012 in London, England. The global SlutWalk campaign was formed following the international outcry after a police officer in Toronto, Canada addressing students in January 2011 said that in order to avoid being raped 'women should avoid dressing like sluts'.
OLI SCARFF/Getty Images

A SLUTWALKER: An activst in the SlutWalk London 2012 demonstrates against victim-blaming in cases of rape. The global SlutWalk campaign was formed following the international outcry after a police officer in Toronto, Canada addressing students in January 2011 said that in order to avoid being raped 'women should avoid dressing like sluts'.

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OPINION: When it comes to discussions of sex crimes, there will always be certain pockets of society that insist on lecturing everyone about  'false' rape claims. In reality, it's estimated that only one in roughly six women in Australia who are raped will report the crime to the police [and in New Zealand, according to the Law Commission, only 12 per cent of reported rapes lead to a conviction and an estimated 90 per cent of sexual offences go unreported].

The idea that we are drowning in a sea of falsely accused men (who are then all falsely imprisoned) is, well, false. So too is the idea that a rape accusation will destroy a young man's career and irrevocably threaten his livelihood. A man's ability to survive has always been in direct proportion to his privilege and the willingness of his supporters to write his actions off as 'mistakes'. 

The problem is in how seemingly difficult it is to prove sexual assault, particularly when the majority are perpetrated by people known to the victims. It is not in dark alleyways or on quiet jogging tracks that most women are assaulted, but in places familiar to them and by people with whom they have some kind of connection.

Most perpetrators are not 'evil monsters', but ordinary men. They are brothers and husbands and friends and sons. And for many people, this is an uncomfortable reality, because it means they might know some of them.

Because this probability is so difficult to grapple with, most people simply choose not to - instead, they place the onus on women to protect themselves, to anticipate danger and intent. Don't drink too much, don't wear revealing clothing, don't flirt. Don't do anything that could confuse a man into thinking that he has a right to have sex with against your will or even your knowledge. If you're not explicitly saying 'no', he can't be held to account for assuming you meant 'yes'.

But what if we radically changed the way we defined consent, and the securing of it? What if instead of fixating on whether or not a woman is clearly saying 'no', we prioritised instead the message that she is definitely saying 'yes'? It's called affirmative consent, and it's gaining popularity at college campuses across America (a demographic in which 1 in 5 women currently report having experienced sexual assault).

The notion of affirmative consent has even taken hold in California, with a bill recently being co-sponsored by state Senators Hannah-Beth Jackson and Kevin de León and Assemblywoman Bonnie Lowenthal. If passed, SB967 would establish affirmative consent as the standard for determining guilt in rape trials.

As Ms. writes, "An accused perpetrator cannot use self-intoxication or recklessness as a defense, and the person assaulted cannot have give consent if asleep, unconscious, incapacitated due to drugs or alcohol or unable to communicate because of a physical or mental condition."

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Of course, there will be those naysayers who rush to condemn what they'll no doubt refer to as the bureaucratisation of sex and partnerships. "Sex is going to require a signed contract now!" they'll spit, ranting about the loss of spontaneity, as if wanting to institute social measures to decrease the rates of sexual assault is akin to wrapping their bedrooms in red tape and government protocols.

For those of us invested in a world in which the accepted norm for sexual interactions really is that they're participated in with equal consent, it's a no-brainer. Intermittently checking in with your partner(s) to make sure everyone's having a good time shouldn't be seen as an imposition or a buzz killer, but the standard.

For too long, survivors have been expected to shoulder the responsibility for 'inviting' their assaults by failing to take the proper measures to prevent them. Even in cases where the judicial system determines guilt (which, remember, we are all urged constantly to wait for before judging) like in the case of the Steubenville rapists, we encounter a narrative that tries to remove blame or fault.

Boys will be boys. They're young. They have 'promising futures'. They shouldn't be forced to pay for one little mistake, as if the rape and ritual humiliation of a woman is the same thing as double parking. And the end result is always the same - the majority of perpetrators go on with their lives with very little ramifications, while the victims are left to deal not only with the fallout but the vilification of all those who blame them for failing to protect themselves against the natural urges of their sons, brothers, friends and heroes.

Teaching affirmative consent benefits everyone. Shifting the demand (both legal and social) onto accused perpetrators to prove that their partners consented makes for a more equitable legal process for everyone concerned. After all, if you can prove she said yes, you should be okay. Right?

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