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Consent, Coercion, and Consumption
Attitudes supporting a rape culture begin shockingly early. As
you carefully peruse the following material, think about your own
attitudes and challenge them. This section lends support to the
proposition that sex education teaching healthy respect for girls
and boys cannot start too early. We know that much about our attitudes
is taught - our hope is that in this area, harmful attitudes can
be untaught.
Attitudes of Adolescents
In a survey of high school students, 56% of the girls and 76% of
the boys believed forced sex was acceptable under some circumstances.
A survey of 11-to-14 year-olds found that 51% of the boys and 41%
of the girls said forced sex was acceptable if the boy, "spent
a lot of money" on the girl; 31% of the boys and 32% of the
girls said it was acceptable for a man to rape a woman with past
sexual experience; 87% of boys and 79% of girls said sexual assault
was acceptable if the man and the woman were married; 65% of the
boys and 47% of the girls said it was acceptable for a boy to rape
a girl if they had been dating for more than six months. See AMA
Report, "Facts about Sexual Assault."
This 1995 survey of 1,965 8th and 9th graders reveals the early
establishment of gender stereotypes in the context of rape:
· 11% agreed that if a girl said "no" to sex she
usually really meant "yes."
· Nearly 27% agreed that girls who get drunk at parties or
on dates deserve whatever happens to them.
· Over 46% felt that being raped was sometimes the victim's
fault.
· 40% agreed that girls who wear sexy clothes are asking
to be raped.
· Over 33% felt that they would not be arrested if they forced
a dating partner to have sex.
· More than 20% agreed that when a girl wears sexy clothes
on a date it means she wants to have sex.
· 36% agreed that when a girl agrees to go into a bedroom
on a date, it means she wants to have sex.
· Over 15% said that forcing your date to have sex is acceptable
in some circumstances.
· Over 7% said it is acceptable for a boy to force a girl
to have sex if she got the boy sexually excited.
See Pamela McMahon, "Facts about Sexual Assault"
Lois Pineau, in her article "Date Rape: A Feminist Analysis,"
states that "the reasoning that underlies the present criterion
of consent is entangled in a number of mutually supportive mythologies
which see sexual assault as masterful seduction, and silent submission
as sexual enjoyment." Pineau argues that male aggression and
female reluctance are widely believed by both society and the courts
to be normal parts of seduction. On the basis of this model, sexual
aggression "cannot be inconsistent with the legitimate consent
of the person allegedly seduced by this means. And if it is normal
for a woman to be reluctant, then this reluctance must be consistent
with her consent as well." (p.485) Lois Pineau, "Date
Rape: A Feminist Analysis" in Applications of Feminist Legal
Theory to Women's Lives: Sex, Violence, Work, and Reproduction (1996).
From "Unwanted Sex," by Stephen Schulhofer (Atlantic
Monthly, October 1998):
on coercion and force:
"In most states, a sexual-assault charge normally requires
proof that the abuser used physical force or threatened the victim
with physical injury. Submission to avoid other kinds of harm is
not enough to meet the statutory requirement of intercourse 'without
consent.' …
"… Rape laws have moved far since the days when women
were required to resist 'to the utmost.' Today 'reasonable' resistance
is supposed to be sufficient. In the more progressive states no
resistance is required at all. But in nearly all states intimidation
short of physical threats is still treated as if it were mere 'persuasion.'
When it succeeds, courts will usually say that the victim 'consented.'
"We have all heard of cases in which the police, judge, or
jury refused to believe that a woman's 'no' really meant no. But
he problems run deeper: even when jurors are convinced that a woman
was unwilling, unwillingness is not enough. IN the face of clearly
expressed objections, intercourse is still not considered rape or
any other form of felonious assault unless the assailant used physical
force or threatened bodily injury. And the law's definition of physical
force remains extremely strict. The physical acts of lifting a woman
up or pushing her onto a bed and accomplishing sexual penetration
usually aren't enough. The 'force' must be something beyond the
acts involved in intercourse-something that physically 'compels'
the woman to submit.
"Because nearly all states require proof of physical force
in prosecutions for rape or sexual assault, many serious abuses
are classified as 'nonviolent' and penal sanctions are assumed to
be inappropriate. The abuses are not really nonviolent, of course.
It is more accurate to say that they don't involve what the law
regards as the required kind of force. The force they do involve
is seen as normal and therefore permissible." (56)
and on sexual autonomy:
"Respect for sexual autonomy requires safeguards against abuse
and exploitation. But-equally important-it requires that the law
protect our freedom to seek emotional intimacy and sexual fulfillment
with willing partners. Despite decades of discussion and years of
ambitious feminist reforms, adequate protection of sexuality remains
elusive, in part because freedom from unwanted sex and the freedom
to seek mutually desired sex sometimes seem to be in tension."
(58)
"Few of our other personal rights and liberties-perhaps only
our right to life itself-are as important as our right to decide
whether and when we will become sexally intimate with another person.
The emotional vulnerability and potential physical danger attached
to sexual interaction make effective legal safeguards at least as
important for sex as they are for the sale of land or the purchase
of a used car. Strangely, in the list of fundamental entitlements
that the law grants us as free and independent beings, sexual autonomy
is somehow left out.
"There is nothing intrinsic to sexuality that requires this
constricted pattern or protection. Violent threats are just one
possible source of a defect in consent, and the law already recognizes
a few others in the context of sexual relations. The best-known
example is immaturity: the law has long prohibited consensual intercourse
with a girl who is below the legally prescribed age of consent.
The law likewise punishes acts of intercourse with a woman who is
sleeping, unconscious, mentally incompetent, or unaware that a sexual
act is being performed.
"Traditionally, the law draws no formal distinction between
cases of physical violence and exceptional cases like the ones just
mentioned; all are classified as rape. Yet our terminology keeps
force in the forefront. In ordinary language 'rape' means the imposition
of intercourse by force. The terminology influences assumptions
about the proper scope of rape or assault, for judges, legislators,
ordinary citizens, and committed anti-rape activists alike. Rather
than asking whether certain sexual advances unjustifiably impair
freedom of choice, we have asked only whether the conduct is so
bad that it is equivalent to violent compulsion-whether it is tantamount
to rape.
"Sexual autonomy should not exist so precariously. Attention
should no longer focus exclusively on whether a man's behavior is
aberrant, egregious, or potnetially lethal. Instead the proper questions
for debate are whether each participant in a sexual encounter had
a meaningful oportunity to choose, and whether a meaningful choice
was in fact made before sexual pentration occurred. In connection
with criminal sanctions the law must also consider whether the defendant
can fairly be considered culpable. But culpability cannot be confined
to cases of aberrant physical violence; there is ample reason to
find criminal responsibilty when, for example, a man commits an
act of sexual penetration knowing that he doesn't have the woman's
consent." (63)
on affirmative consent:
"The silence-means-consent assumption draws support even from
some rape-law reformers. They worry that treating passivity or ambivalence
as nonconsent will patronize women, who should be assumed to be
capable of asserting their own wishes. But we seldom think it patronizing
to insist on permission, not just silence, when the interests affected
are ones that men can easily recognize. When a doctor asks if a
patient wants a probe inserted into his rectum to check for tumors,
the patient's silence is not assumed to indicate consent. The patient's
willingness must be made explicity. Yet rape law doesn't require
us to obtain actual permission for intercourse; it prohibits penetration
only when there is clear evidence of nonconsent.
"…To rminimize the risks, many reformers propose that
nothing less than verbal permission-an explicit yes-should ever
count as consent to intercourse. The drawbacks of such a rule are
evident. If body language cannot be a legally effective way to express
consent, many common modes of indicating a desire for intercourse
will have to change radically, or-more likely-the verbal-permission
requirement will simply be ignored by spouses, lovers, daring partners,
and perhaps courts and juries as well.
"To signal affirmative consent, body language must be unambiguous.
Sexual petting does not in itself imply permission for intercourse,
any more than does inviting a man in for coffee or permitting him
to pay for dinner. A woman who engages in intense sexual foreplay
should always retain the right to say no. If she doesn't say no,
and if her silence is combined with passionate kissing, hugging,
and sexual touching, it is usually sensible to infer actual willingness.
A verbal-permission rule would reduce the risks of a possible misunderstanding
in this situation, but at the cost of imposing a degree of formality
and artificiality on human interactions in which spontaneity is
especially important.
"The verbal-yes rule thus seems many steps beyond the level
of regulation that contemporary courts are likely to entertain.
And a verbal-yes rule is not mandated by a commitment to respect
sexual autonomy. The central point is that sexual intimacy must
be chosen freely. The first priorities are to stop insisting on
proof of the woman's opposition, and to stop requiring her to take
actions clear enough to overcome the law's presumption that she
is always interested in sex-at any time, in any place, with any
person. The legal standard must move away from the demand for unambiguous
evidence of her protests and insist instead that the man have affirmative
indications that she chose to participate. So long as her choice
is clearly expressed, by words or conduct, her right to control
her sexuality is respected." (66)
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