Under Duress: Agency, Power and Consent, Part One: “No”

Trigger Warnings

This article contains discussions of rape, rape apologism and victim blaming. One survivor who previewed this article said they found a definition of rape used here “particularly triggering”.

Summary

When rape apologists are using our models of consent to defend rape and to deflect feminist analyses, it’s at least worth considering the limitations of the models. This article is part one in a two-part series of articles examining the issues.

Part One: “No”: Understanding consent as a binary is powerful because it allows us to say that “no means no”, a statement which has had and still has incredible power to change attitudes about rape for the better. However, it can make it more difficult for us to conceive of what else might mean “no”, as well as to distinguish between different kinds of “yes” given in different contexts. It can be used to victim-blame. It doesn’t always accommodate some of the complexities of communication (although we should beware, because “miscommunication” is a shield rapists often like to hide behind). And admitting “no always means no” seems to mean that we must also admit “yes always means yes”; this can conflict with the subtleties of a fully radical feminist analysis of rape culture.

Part Two: “Yes”: Modern feminist views on consent have often been in conflict. One way to resolve that conflict may be to look for unified models of consent which takes into account ideas from multiple feminisms. Here I suggest a non-binary power model of consent, which looks at systems of domination such as patriarchy, and the pressure they enable people to place on consent. In this model, “no” still means “no” but “yes” should be understood as a statement meaning, “I choose to say ‘yes’, understanding the consequences of saying ‘no'”. A focus on “systems of domination” – plural – allows us to consider other dynamics of rape beyond men raping women without moving away from fifty years of feminist work on rape and consent.

Gendered Language

Where I discuss rape, I have used a mixture of gender-neutral language and male = perpetrator, female = survivor pronouns. Any discussion of rape is almost inevitably pushed into one of two traps in the use of gendered language; either it’s written in exclusively gender-neutral terms and erases the strongly gendered power dynamics of most rape, or it’s written exclusively in terms of male perpetrators and female survivors and erases other dynamics of rape . Even attempts to reference gender proportionally are doomed to fail, because when other pronouns are used just once or twice, it can feel more like tokenism than representation. Please read this article recognising that each use of pronouns and genders is completely deliberate but is not intended to be definitive or exclusive.

No Means No: The First Rule of Consent

The Basic Message

If you’ve heard just one message about consent, chances are this is it. If she – and it’s always a she; more on that later – says “no”, then the sex is off. If she says “yes”, then it’s on. The message is simple and it’s been a crucial tool in advancing the basic feminist understanding that sex isn’t sex without consent. “No Means No” is the feminist bottom line and all feminists must hold this line at any cost. If you’re already asking, “But what if she says no and means yes?” don’t worry, we’ll get to you in about 6,000 words or so. But for now, please take a seat over there. No, over there. Not too close to me, please.

By saying “no”, a woman is meant to be able to transform herself from a default woman, that is to say, a consenting woman, into a non-consenting woman. But we’re not even there yet; only certain women, owned women – wives, mothers, daughters – are allowed this “no”, as Twisty explains in the link and as Dworkin wrote in 1987:

Men can break sexual laws with the secret but empirically real sanction of the male-dominant community that establishes social policy as long as that community is not outraged: that is, as long as another man’s rights over a woman are not violated and as long as social policy in general is working effectively to protect gender polarity, male “nature” and female “nature” [emphasis mine].

- Dworkin, Intercourse, (Arrow, 1988) p188

(I’m not well-informed about abuse of children, but my understanding is that similar dynamics operate there.)

The Power and Responsibility Dynamics of “No”

But when is this “no” done? Do you say “no” when you first meet somebody? Should you wait until they buy you a drink? Until you’re alone? Until you’re naked? Until you’re having sex? Until you’re having a kind of sex that you don’t want to have? Do you have to interrupt them to say “no”? Is there a threat of violence if you do? Will it break the mood and lose a friend? There are a lot of restrictions which can check the ability to say “no”.

“No” is the answer to a question, but where is the questioner in this approach? Where is their responsibility for consent? “No Means No” claims to give the no-sayer all the power, but what it actually gives them is all the responsibility. Responsibility isn’t necessarily a bad thing, but responsibility without power plain sucks. The only responsibility given to the person hearing a “no” is whether they respect it, and as feminists know, rapists are often let off the hook for betraying even that responsibility.

Actually, What Was The Question Again?

The question, if asked at all, is rarely as straightforward as, “Do you want to have sex?” and it’s often hedged around with codes. “Do you want to come in for coffee?” Asking is a vulnerable act, and the need for self-defence is understandable. Sometimes, ambiguous statements can make a situation easier for everyone involved. “Coffee?” “No thanks, I’d best get back” is a clear negotiation in which nobody loses face. Ambiguity places the asker in a less vulnerable position, which deescalates the situation and allows a refusal to be offered in a way which isn’t socially transgressive according to norms of, for example, female socialisation.

But less vulnerability also means more power, and ambiguity opens up ground for abuse. When the man soliciting sex is hostile (a word which I use in its broadest possible sense), then both “yes” and “no” are lose-lose responses to this kind of solicitation. This can be done via “That’s Not What I Meant” and “You Know What I Meant” as follows below.

“That’s Not What I Meant”: A hostile man can retroactively reconstruct a question to remove a context of sexual invitation and then attack the no-sayer for refusing what he now claims is a friendly, innocent request. This is what happened to Skepchick back in June 2011 when she turned down an offer of coffee in an elevator (link is to a video, Skepchick later produces a written follow-up on the popular response). The context of the request was perfectly clear, but its surface ambiguity allows – barely – its reconstruction as a friendly approach and Skepchick faced an extraordinarily vehement counter-attack by rape apologists for her video.

“You Know What I Meant”: And just because a coffee refusal can also be understood as a sex refusal, doesn’t mean that a coffee acceptance can be understood unambiguously as a sex acceptance. Whatever offer is held out as a code for sex might also be an offer which is welcome in itself. She might just want a coffee. Or, she might want a coffee, and then might want to think some more after that about whether she wants sex. Taking a coffee acceptance as a sex acceptance is a non-consensual escalation of consent from “consent for further company” to “consent for sex”.

In other words, it’s deceptive to describe a request for coffee as just a request for coffee, and it’s deceptive to describe a request for coffee as just a request for sex.

Maybe Means No: The (Unspoken) Second Rule of Consent

Implicit Refusal

I’d like to ask the reader to do a brief mental exercise. (If you’d rather not, just skip to the next paragraph.) I’d like you to remember the last time you found it difficult to give an explicit “no” to somebody in a non-sexual context. Maybe they asked you to do them a favour, or to join them for a drink. Did you speak up and say, outright, “No”? Did you apologise for your “no”? Did you qualify it and say, “Oh, I’m sorry, I can’t make it today“? If you gave an outright “no”, what privileged positions do you occupy in society, and how does your answer differ from the answers of people occupying more marginalised positions?

This form of refusal was analysed in 1999 by Kitzinger and Frith (K&F) in Just Say No? The Use of Conversation Analysis in Developing a Feminist Perspective on Sexual Refusal. Despite the seeming ambiguity in question/refusal acts like, “We were wondering if you wanted to come over Saturday for dinner”, “Well, uhh, it’d be great but we promised Carol already”, they are widely understood by the participants as straightforward refusals.

K&F conclude by saying that, “For men to claim [in a sexual context] that they do not ‘understand’ such refusals to be refusals (because, for example, they do not include the word ‘no’) is to lay claim to an astounding and implausible ignorance of normative conversational patterns.”

It’s worth noting here that this isn’t the case for everyone; for some people, e.g. some autism/Aspergers spectrum people, implicit refusals can be unclear, stressful, overwhelming or invisible. What’s being discussed here isn’t the clarity of a refusal act to an individual, but the conflict between the general social consensuses that complex implicit refusals are invalid or insufficient in a sexual context and valid outside of one.

(If you’re interested in reading more about this paper, you might want to check out this article, which reviews it in more detail: Mythcommunication: It’s Not That They Don’t Understand, They Just Don’t Like The Answer.)

Drunken ‘Consent’

K&F suggest that claims of non-understanding are in fact self-interested justifications for coercive behaviour. I’d like to look at self-interest in another context, that of drunken sex.

If you’ve spent any time having conversations about consent, you’ll probably have encountered the following question:

Is it rape if somebody has sex while drunk?

Now, when men used to ask me this kind of question, the conversation requests I actually used to hear were, “I have sex with drunk people, or can imagine myself doing so; I want you to tell me that I’m not a rapist” and/or “I like the pressure which alcohol allows me to put on people’s consent and I’m seeking social approval for this tactic”.

Such conversations often centre on legal definitions of rape, with people sometimes liking to say that, “It’s a fine line,” or “It’s her word against his”. Now, this may sound surprising, but I don’t care what the law says about rape, except insofar as bad legal definitions of rape hurt survivors and let rapists escape without consequences. Patriarchy has a vested interest in narrowing the definition of rape as far as possible; remember, overwhelmingly, it is men that rape. Where men rape men – and there might be patriarchal self-interest in defending the survivors – this is often within a prison-industrial system which is vastly overpopulated with black men, who aren’t really the darlings of patriarchy. As such, legal definitions formed by patriarchal cultures are inevitably reductive.

One non-legal definition of rape is that it’s an experience which feels to the survivor like a fundamental crossing/violation of boundaries, which happens using some form of coercion/strength/manipulation. Some things that people do can cause that experience. Someone can attempt to rape without causing an experience of rape. Someone can experience something which they later come to understand as rape (this understanding can be very difficult and painful to reach), and that too is rape. Someone can experience rape without the perpetrator explicitly intending to rape, but it’s always the case that the perpetrator knew enough to know that they might have been raping.

This definition allows us to turn our focus to the actions of someone who presses on with sex while knowing that the other person is sufficiently drunk that their consent may be unclear, or that they themselves are sufficiently drunk that they may not notice signals of non-consent (signals which can be implicit, as above).

Asking, “Is this legally rape?” carries an undertone of, “If you say it’s not, I’ll go ahead and do it”, and is a question which should be turned around and asked back as:

Why are you so relaxed – and even enthusiastic – about maybe raping someone?

You don’t get this in other contexts. You don’t get folks saying, “Well, I’m going to do this thing which may or may not kill somebody. It’s probably fine as long as it’s legal.” One of the reasons you don’t get this is that the law cares more about murder than it does about rape (while that does tend to depend on who’s being murdered, the same could be said for rape). Another is that we live in a rape culture, where it is acceptable to put pressure on consent in a variety of approved ways in order to coerce sex.

We can solve this apparent contradiction by clarifying what our questioner is actually worried about. They aren’t worried about raping. They are worried about social consequences of rape. They are worried about being named a rapist. They are okay with “maybe” being a rapist as long as it won’t come back to bite them.

Now we can understand the question fully through recognising that it’s not a question at all. It’s an act of kicking up dust around the whole question of drunken sex, a dust cloud which surrounds rapists as they rape and allows them to escape the social consequences because “it’s her word against mine”, or because, “drunken consent is a very tricky area”. They don’t need to worry about the legal consequences, of course, because most rapists don’t go to jail.

If you care about not raping, because you care about not raping, then the only way to be sure you’re not raping is to be sure you’re not raping. This means not having sex when you’re not sure whether it’s rape or not. This means that if you’re asking the question, “Is it rape if I…?” then you may not know the answer, but you know what you should do. Here’s a radical point of view for you: If you don’t care whether or not you rape, then I don’t care whether or not you’re innocent.

The last part of the question – or rather, the act of throwing up dust – left to address is:

What if both people are drunk? With your logic, doesn’t that mean they’re raping each other?

This one’s often asked with a special flourish, as one might say, “Checkmate!”, but the answer is simple. The perpetrator is the person who violated the other person’s boundaries.

Now it might be that there have been some deeply unfortunate liaisons in which both people have felt violated but gone along with what was happening because they felt less powerful than the other person. Verbal and non-verbal communication can get pretty messed up when drunk. But what usually happens when two people don’t want to have sex is that they don’t have sex. Drunken people who don’t want to have sex with each other successfully avoid having sex with each other all the time. Sure, people mutually regret drunken sex, but regret doesn’t necessarily mean an experience of rape.

It’s more likely that one person had the power to push on regardless of the other person’s implicit or explicit refusals, or that one person felt violated but unable to refuse, and potentially even obliged to feign consent. That might be because one person was more drunk than the other (it could be either: it’s easier to ignore a drunk person’s boundaries, but it’s also harder to set boundaries to drunk people). Perhaps one of them was even unconscious. Or it might be because one person is backed up by more and more powerful systems of domination than the other. What should happen when one person has that power is that they don’t draw on it. What can happen, when they don’t care about raping, or when they’re drunk (and don’t care about raping) is that they use it and push. On “mutual regret”, there is one more possibility; over time, perhaps one partner will realise that their regret is an indication that something was more deeply wrong with what happened, and gradually come to understand that the other person raped them.

We’ll go into systems of domination in more detail later on when we talk about the power spectrum model of consent, and revisit this question more fully.

Before we end this section, and with it this post – there’s more than enough here for two posts, and I’d like the chance to read through feedback to this one before I post the second half – I’d like to state that, yes, I am being very harsh on people asking the “drunken consent” questions. I’m doing that because these questions aren’t asked in isolation. They’re asked as part of a discourse of victim-blaming and rape apologism. Individuals may blunder in and ask them apropos of nothing, not intending to contribute to this discourse, but the net effect is the same as if they’d joined the many rape apologists lined up to minimalise and victim-blame every instance of rape.

These questions can be engaged with in ways respectful to, and supportive of, survivors of rape. I hope this article sets out one way in which that can be done.

I’m also discussing the subject primarily through the lens of men asking the questions, as reflects the heteronormative context of this discourse. When women ask these questions, it can be complicated. Some women may be looking for reassurance that what they experienced was not rape (Answer: It’s rape if you say it is). Others may be beginning to suspect that someone raped them but are unsure about whether they are allowed to claim that experience if they had drunk alcohol (Answer: It’s rape if you say it is).

Politically, I call it rape whenever a woman has sex and feels violated.

- Catharine MacKinnon, “A Rally Against Rape”, from Feminism Unmodified: Discourses on Life and Law

Others may be invested in this subject since they drink before sex because the social groups around them shame them as “sluts” for consenting to sex while sober. The subject of slut-shaming is something we’ll explore in Part Two: “Yes”.

Conclusions from Part One: “No”

  • “No means no” is an non-negotiable line; no feminist theory allows an undermining of “no means no”
  • As well as being a bottom-line, “no means no” is also a resistance against assumed-default-consent in women, a feature of patriarchy
  • Even if you respect a verbal “no”, you’re not really respecting it if you don’t create and nurture opportunities for your sex partners to give a “no” at any time before and during sex
  • Ambiguous sexual requests can help both parties save face, but they can also be used against women who say “no” – be aware of how this functions, don’t do it yourself, and call it out in simple, clear ways when you observe it – try not to get trapped by the surface logic of the situation
  • Sexual refusal can be implicit as well as explicit; implicit is actually much more common
  • In situations involving alcohol, concentrate less on legal definitions of rape and more on how willing you are to maybe rape someone (the answer to this should be “I am not”)

The second part of this article is now available and can be found here: Under Duress: Agency, Power and Consent, Part Two: “Yes”

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75 thoughts on “Under Duress: Agency, Power and Consent, Part One: “No”

  1. This is absolutely brilliant, and so much needed. Thanks so much for writing this and for doing this work – we really need more mashups of liberal and radical feminism in the world!

  2. Pingback: Consent is back! « I Blame The Patriarchy

  3. WHERE HAVE YOU BEEN ALL MY LIFE while I struggled by making dumb inarticulate sounds in an attempt to say EXACTLY THIS.

    I <3 you. Subscribed! Can I bake you cookies?

  4. You haven’t mentioned the “enthusiastic consent” model. What do you think of that one? To me, it seems to be slightly stricter than the “power spectrum” model – if I am pressured into changing my consent by a power gradient, I won’t really be enthusiastic. But I might also be less-than-enthusiastic with a power equal.

  5. @Julian: It’s funny you should say that: “enthusiastic consent”, “yes means yes” and agency-centric models are covered in the next part, as well as the introduction of the way I think we should be modelling consent, so stay tuned!

    Thank you all for the positive comments so far. @Samosa, you are welcome to bake vegan cookies, but how ’bout taking them along to the nearest crisis centre rather than posting them all the way to me? If you actually do this I would be delighted.

  6. I honestly wish they’d taught me this in school.
    Great article, really looking forward to part two. I see a lot of ‘slut-shaming’ in my peer group and it’s been something I’ve been thinking about a lot lately.

  7. This is thought provoking, but I was surprised by the focus on defending “no means no” resistance to rape-culture. Because the situation in which an explicit request is made and an explicit refusal given is so rare, and because requesting sex from someone contributes to the view of sex as something done to another, not a mutual activity, and because asking the direct question can rarely be done in a way that is not coercive (the person who wants to refuse doesn’t want to be rude/ questions what signals they were giving out, etc), I have always felt inherently uncomfortable with the “no means no” bottom line. For me, it’s “no yes means no” to an equal extent as it is “no opportunity for a yes means no.” That’s just as a bottom line. But I’m almost certain you’d agree? And then of course, the yes must be full, free, and informed, but I’ll imagine you’ll talk about that in your next post.

    Really important stuff.

  8. I have always felt inherently uncomfortable with the “no means no” bottom line. For me, it’s “no yes means no” to an equal extent as it is “no opportunity for a yes means no.” That’s just as a bottom line. But I’m almost certain you’d agree?

    Hmm… I’m not sure what I think about that. I guess that what I see at the moment is a culture which is still hovering somewhere around “not even no means no”, let alone anything else meaning no.

    When even explicit, specific refusals are often ignored, I think that indicates that even the idea that a woman can be in a state of non-consent is in dispute. I see that as what “no means no” is about – negotiating that first line, that women can refuse consent.

    I getcha, that refusal-of-consent is usually indicated in other ways than “no”. But it’s like, ok, here’s a situation (a “no” situation) where consent is incredibly obviously not given, and that’s still sometimes considered consent.

  9. Typical “no”s that get ignored: a no to this kind of sex after a yes to that kind of sex, a no after already being naked, or after starting, or after it hurts, a no after coming to his house, a no after accepting a drink in the bar, as many “no”s as necessary throughout the night provided the final answer is a grudging “yes”.

    And they get ignored by juries, too.

  10. Thanks for writing this. I love the rape definition: “It’s rape if you say it is.”

    My first reactions to this (which I blame on internalised Patriarchy) were: “But then anyone could say they were raped”, and “But that would never stand up in court!”

    It’s strange to realise how conditioned I am to think that we can’t possibly expect men to take responsibility for making sure they only have sex with people who actually want to have sex with them. This article made me realise we only hold men responsible for not doing something that could be legally proven to constitute rape, and the bar needs to be set higher than that.

  11. Pingback: A Radical TransFeminist on Consent « The Fivefold Path

  12. I just wanted to say that I really enjoyed reading this. I’ve been reading quite a few feminist blogs for a while now, but this is the first blog post I’ve read that really helped me when thinking about the “is drunken sex rape?” nonsense. In general this was just really enlightening for me, and I’m excited to read part two. Honestly, very, very excited, haha. I hope it gets posted soon! :D

  13. I think it should be up to the dominant/aggressive party to outline the repercussions of replies. My boyfriend asks me, “Are you sure? I won’t be mad if you say no. We can watch a movie instead.” It’s no different than “Will you go to my friend’s funeral with me? I won’t be upset if you say no. I know it might make you uncomfortable.”
    Or, “Will you go shopping with me? You don’t have to; I don’t really need to go today,” etcetera.
    It’s only fair, considering the aggressive party knows the outcome of both replies–“yes” means sex, “no” means no sex. There are underlying factors as well, which they know when they took the risk; “no” also means an awkward beat or ruptured pride, “yes” means the possibility of pregnancy, STDs, “strings attached” or any legal/social ramifications.
    The neutral party, however, can only assume things. “Yes” means they are consenting to whatever style of sex the aggressor prefers; it could be anywhere from rough to soft, from selfish to generous. “No” means not only hurting/insulting the opposing, but also runs the risk of backlash. In both cases, violence is a possibility.

    With that said, communication is key. The ambiguity in sex invitations leaves the dominant party complete control, as their intentions are clear in their heads. Victims, on the other hand, have to assume the worst to keep safe.

  14. @Stripeeyed: Yes, I agree. In the next part, I’ll talk about the need to disarm power dynamics, but I just realised I won’t talk a lot about how to do that. That’s probably a whole post in itself, but I could reproduce some of your comment and/or link to it. I’d obviously attribute it to you. Would you mind?

  15. I really appreciate the work you’ve done here. I guess as a man who was raped by a man, I always feel a bit left out of the discourse when it comes to empowerment and dismantling rape culture. I understand how important it is for me to understand rape in a heteronormative context, I’m just finding it really difficult to find any resources in this vein from the perspective of a male victim of a male rapist. Any advice?

  16. Love love love love love this post. Twisty’s post about establishing a legal scheme of default non-consent has always been one of my favorites on the subject, and this one is going on the list right next to it.

    Can’t wait for Part 2.

  17. @Wesley: There’s a general list of resources for male survivors on RAINN’s site which I’m not sure if you’ve seen?

    In terms of getting involved with the discourse, I think one point of commonality is the rapist. While the methods/tactics used by rapists are different depending on who they’re targeting, there are some ideas – entitlement, rape culture, male socialisation, victim-blaming for starters – that probably match up closely between men who’ve survived rape by men and women who’ve survived rape by men. The archive of women survivors’ stories is growing, on blogs and in anthologies; perhaps you could add your own.

    I think it’s important to be respectful of the need for separatism/autonomy on behalf of female survivors who would like to process their experiences away from the company of men. I don’t know if there are any men’s groups in your area?

  18. I hadn’t seen that list of resources, thanks:) I apologize if I made you feel as if I was trying to recenter the discourse around my maleness/disprivilege, certainly wasn’t my intention. I agree with your philosophy regarding providing a space for cis women, trans women, and male survivors to process separately. Thanks for the lead on resources:)

  19. @Wesley wrote:

    I apologize if I made you feel as if I was trying to recenter the discourse around my maleness/disprivilege

    No worries, that wasn’t what I was implying. I was just flagging it up as a risk of getting involved with the discourse; I’m sure you’d probably thought of it already but some don’t, so I thought I’d raise it.

    I agree with your philosophy regarding providing a space for cis women, trans women, and male survivors to process separately.

    (emphasis mine) I wanted to just pick out one thing you said and disown it somewhat. (A previous comment of mine said something different, but I thought better of it – you might have been responding to the comment before I edited it!) I feel very conflicted about the right approach for trans* women. I have opinions, but ultimately, as a trans* woman who hasn’t experienced rape or abuse, I don’t think I should be speaking on the subject of whether trans* women should be seeking access to the structures currently branded as “women’s” structures, or setting up their own autonomous support structures. I’d like to create space for trans* women survivors to address that issue instead and to amplify their voices when they do.

    For now, for trans* women reading this in the UK who are wondering where they can access support and concerned about whether they’ll encounter transphobia, I can recommend contacting the Edinburgh Women’s Rape and Sexual Abuse Centre, about whose trans*-inclusion I’ve heard good things.

  20. … feeds the idea of a default state of consent until explicitly stated otherwise. Which is really dangerous, especially if we think about conjugal rape and the types of “ignored no” Julian Morrison talks about. It shouldn’t be the case that you (as in one, obviously) can do whatever you like to someone until they say no. Consent has to be explicit, active, not default. It can be volunteered (better) or sought, but just because someone didn’t say no (by whatever means) doesn’t mean they consented. It doesn’t. Especially because of all the privilege (power) dynamics we’re talking about here. The idea that someone just lying there and taking it, feeling violated, and concomitantly disempowered to say or do anything about it, is consent is horrifying… but that’s what “no means no” as opposed to “no opportunity for a yes followed by a full free and informed yes” as a bottom line of consent means. To me.

  21. The idea that someone just lying there and taking it, feeling violated, and concomitantly disempowered to say or do anything about it, is consent is horrifying… but that’s what “no means no” as opposed to “no opportunity for a yes followed by a full free and informed yes” as a bottom line of consent means. To me.

    I think I getcha. Maybe “bottom line” is the wrong way for me to put it. I’m trying to get at the idea that “a world which can conceive of a woman’s right not to have sex” is an improvement over “a world where what a woman wants is considered totally irrelevant”, though it’s still a million miles from the world we want. But I don’t mean that in a reformist way. I think even that basic “right” can’t be fully achieved under patriarchy. But, y’know, not all feminists agree yet that we need a global anti-patriarchal revolution. But we can all fight people who don’t respect “no means no”, even though we might not all agree what we want to put in place of that.

    I dunno, does that speak to what you’re saying?

  22. Pingback: Some Interesting Blogs and Articles About the Issue of Communication, Sex, and Rape « mindfulconsideration

  23. Brilliant and so important post! Thank you.

    Apart from addressing the issue of consent so well, your analysis really rang a bell with this:

    “They aren’t worried about raping. They are worried about social consequences of rape. They are worried about being named a rapist. They are okay with “maybe” being a rapist as long as it won’t come back to bite them.”

    That’s exactly what I take away from ‘debates’ with men who will tie themselves in knots trying to make the question of rape exclusively about whether or not an accusation will stand up in court. So, if a person committed a murder but left no evidence that could be used to convict them, their victim isn’t actually dead?

    Again, thank you for this; it needed saying!

    PS: Here via Twisty. Radtransfem is now bookmarked in my ‘Feminism’ folder. :)

  24. @fede04: Thanks. :) And so true! I’ve been in an awful workshop on consent which almost immediately turned into men asking questions which were essentially: “How much can I rape before I get caught?” And everyone was nodding thoughtfully and taking it very seriously, except for a small group of survivors in one corner. (They were taking it very seriously too, but in a different way.)

    PS: Here via Twisty. Radtransfem is now bookmarked in my ‘Feminism’ folder.

    Haha, you’re not the only one. The traffic on this blog spiked mightily shortly after I got the pingback. I Blame I Blame The Patriarchy.

  25. I really enjoyed reading this.

    Before your next post, and to be read while thinking about ‘enthusiastic consent’ model of consent, here is a link that you may find interesting. It completely blew my mind and actually changed the way I consider consent… it may or may not do the same for you, as I don’t know yet what you’re going to say!!

    sex positivity is rape culture in disguise: http://ardhra.tumblr.com/post/9264155235/sex-positivity-is-rape-culture-in-disguise

  26. @Jennifer: Thank you so much for the link. I’m reading Intercourse at the moment and a few of the ideas there seemed to appear here too. Some of the points work well with my next part, though I’m starting to think I need to to delay publishing it until I’ve finished going through Intercourse again.

    From your link, I found this part especially striking:

    It’s also worth noting, that while subjectively sex can be good at times, even assuming that sex (or at least, sex that you consent to) is universally good from your perspective can become problematic, because actually it turns out sex isn’t always a single person thing, and if you’re not considering that fact you can quickly end up in a situation where your partners feel pressured to be sexual, or where potential partners feel pressured to be sexual, which can quickly become a problem. Sex is only good if all the parties involved think it’s good. Don’t decide that for people without their consent.

  27. What do you think of Catherine McKinnon’s argument that within a patriarchy, women are unable to consent because their identity and world is so completely defined and controlled by a paradigm which denies them agency? I’m not expressing it very well but hopefully the sense is clear.

    The male discourse around rape is like that heard about child abuse a while back – men expressing their concern that they dare not be by themselves with a child lest their actions were interpreted as sexual. To me this was profoundly disturbing: how could they not tell the difference? And this was the point: for some of them, at least, there was no difference, not because they were inveterate sexual predators, but because in the patriarchy the right to control women and children is normal. Considering how the the other person, the one with less power in the situation, would feel or respond, simply isn’t part of the deal, so it is mystifying and opaque to such men.

  28. What do you think of Catherine McKinnon’s argument that within a patriarchy, women are unable to consent because their identity and world is so completely defined and controlled by a paradigm which denies them agency?

    I think Catherine McKinnon’s got a damn good point. I think that binary yes/no consent as an idea is completely inadequate under patriarchy, though maybe it’s better than yes/yes. I think it does a lot less than many people think when there are men who just want to rape. They’ll do a “consent performance” if they think someone is looking or expecting it, and they’ll use that performance to victim-blame/justify rape. But it only has a surface resemblance to an actual attempt to negotiate whether someone else is up for sex.

    In the next part of this article, I’m going to try to set out a way of thinking about ‘consent’ that I think works better.

    The male discourse around rape is like that heard about child abuse a while back – men expressing their concern that they dare not be by themselves with a child lest their actions were interpreted as sexual. To me this was profoundly disturbing: how could they not tell the difference? And this was the point: for some of them, at least, there was no difference, not because they were inveterate sexual predators, but because in the patriarchy the right to control women and children is normal. Considering how the the other person, the one with less power in the situation, would feel or respond, simply isn’t part of the deal, so it is mystifying and opaque to such men.

    Hmm. Yeah. Thanks, food for thought. I’m not sure about “mystifying and opaque”, though. I think there’s a kind of bluster and refusal to acknowledge something known which comes up in male discourses around rape (and child abuse). I don’t think many men are confused; I think they’re defensive, afraid and ashamed. Like Dworkin says:

    Since the paradigm for sex has been one of conquest, possession, and violation, I think many men believe they need an unfair advantage, which at its extreme would be called rape…

    I think they see us stating clearly and simply that they have that advantage – an advantage they want – and they’re afraid we’ll do something to take it away. Sometimes you can see it when you spell out to a man what he has to do to avoid raping someone. How many times have you heard, “But I do that, I’ll never get laid”? How is that a valid response to, “This is what you do not to rape,” except to someone who explicitly considers raping preferable to “not getting laid”?

  29. Hi Lisa- I’m glad it was useful, I admit I haven’t checked out Intercourse but there is a zine which you may or may not have seen which is about defining consent for oneself which was really interesting.

    That passage also stood out to me, as did several others. I have a lot of friends who for various reasons definitely don’t experience sex as unilaterally positive and actually, now that I’ve read that and started to turn over more of it in my head in relation to my own experiences, it seems very obvious. And yet I’m 26, have considered myself a feminist for 11 years, and all of that never overtly occurred to me?! It was revelatory. :)

    I’m looking forward to the next instalment of this series, that is FOR SURE.

  30. Oh, I remember that zine! I think I have it printed out on a table around here, actually. It might be in a Pile. :) Yeah, it’s great – other comment readers, click that, get it printed out (it’s tough to read in order online as it’s paginated for printing), staple it up and hand it around!

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  32. Pingback: Agency, Pragmatics, and No Means No « quoded

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  34. This is such a fantastic post.

    Ultimately it always comes back to the problem of the permanent legal state of consent. As Twisty points out, there are categories of women who are “un-rapable”, because they have forgone their right to opt out of that state. To say “no” requires power, power can come from a variety of sources – narrative power (nice men don’t rape); legal power (rapists end up in gaol); relationship power (rapists don’t have happy partners); physical power (try that and I’ll cut it off) without power tho what is the point of saying no.

    If you go back 20 years, women in the UK could not be (legally) raped by their husbands. Of course they were raped, many women said no and many husbands ignored that; at the same time, many women said no and their husbands respected it – but in the foggy middle there were women for whom their desire to have sex or not just didn’t factor – they knew that legally and socially they were expected to have sex with their husbands so they just lay back and thought of England. Within such a socio-legal structure, McKinnon’s pronouncement on consent kicks in – married women could not give valid consent; there was nothing to give, it had already been taken.

    “No means No” has become almost completely synonymous with womens rights and the anti-rape movement, yet when I spoke to some younger feminists the other day, they were unaware that the phrase came from the older trope of “when a lady says no she means maybe; when a lady says maybe she means yes, and if she says yes, she’s no lady” . No means no is important, and as you rightly point out it is the baseline of consent.

    I do have a bit of a problem tho with your definition of rape where there was consent, but through systems of power the consent was less than valid, and hope you address this in your next post. Being not a rapist is pretty important, and (I like to hope) that most men avoid it, but I’m not sure that men — or women for that matter – really understand consent within a patriachial power structure. Power systems can be unseen to the powerful – so for example, the man who finds himself alone with an attractive young woman in the aftermath of a party and invites her into his bed, may not realise that her agreement was based on a fear of him chucking her out with no money for a taxi, or becoming violent if she didn’t accept, interpreting her lack of enthusiasm for coyness and evidence of her “good moral character” and that only her attraction to and desire for him was overcoming her natural reluctance.

    Much wider social discourses (good girls don’t; young women alone at night are vulnerable; women don’t initiate sex; men are inherently violent if thwarted), are coming into play here and determining whether the state of permanent legal consent is revoked – revoking this consent is a definative action – rather than just going along with what is expected. That she may feel violated in the aftermath isn’t evidence of him raping her, its evidence of something seriously wrong with sexual relations between men and women and the social narratives that sustain individual interactions.

  35. Thanks, mhairi, for the comment, along with some historical context I wasn’t aware of. That “when a lady says….” trope is awful. I’m not at all surprised, but it’s awful. It reminds me a little of the utterly disgusting Yale Frat incident (link TW for rape culture). The more things change…

    I’m not sure that men… really understand consent within a patriachial power structure… That she may feel violated in the aftermath isn’t evidence of him raping her…

    But I just can’t accept this presumed innocence of men. Time and time again, when I’ve confronted men in conversation about their predatory behaviour, and laid out what they need to do in order to avoid maybe being a rapist, their response has been that if they did that, they’d never get laid.

    That’s the reply. “I’d never get laid.” Let’s expand it: “If I did the work you’re saying I need to do to reduce the chance of raping people, I’d never get laid.”. And let’s break it down: “Getting laid is more important to me than not raping”. If there’s ignorance there, it’s wilful ignorance, and it’s self-interested to boot.

    If you’ve had other responses when confronting men with this material, I’m pleased. You wouldn’t be the only one – I saw a wonderful tweet reply from a man to someone posting this article, who said that it had really made him think about his behaviour. I’m so delighted when that happens. But sadly, in my experience it’s not the norm. It’s not even frequent. It’s a tiny, tiny minority.

    I say enough’s enough. Let’s stop distinguishing between men who rape, men who are cool with maybe raping, and men who are too wilfully pig-ignorant to know the difference. Let’s treat them all as rapists, because their social function is that of rapists; viz., they rape. It’s not up to women to mother them; it’s up to feminist women to stand firm behind our class interests – that’s what the men are doing.

  36. Late again with reading and responding – but I just wanted to say thank for this very thoughtful and in-depth account. I especially liked the bit about the coffee – things like that are so rarely spoken.

    Thanks for writing this :)

  37. Pingback: Reading for 1/25/12 « Witty in the Morning

  38. I just want you to know that I love both of these entries. I’ve always considered myself a feminist, I have even read Catherine Mckinnon’s work. But I love them for another reason, too. I have been having trouble accepting that what happened to me last fall counts as rape. Why? Because we both had been drinking, and though I initially told him a few times that I didn’t want to do anything, and very much didn’t want to.. it ended up happening anyways “because I let him”. I couldn’t understand why I didn’t just stop him if he didn’t actually threaten me or physically force me, unless I actually wanted it. But I didn’t want it. But, I stopped telling him no, and didn’t even consider telling him no even though he was hurting me so much. I especially couldn’t understand how I could blame him for what happened, when I eventually “gave him permission”. He even asked permission for other things after he started (won’t go into detail), and I couldn’t understand why he would do this if he was raping me.

    The reason I’m telling you this is because your blog actually helped me accept that what happened isn’t my fault, and that he did actually rape me. And that it’s HIS fault. He had to have been questioning if he was doing something wrong, or he really didn’t care. He was just playing a game of getting my “yes” so that I couldn’t blame him afterwards, not because he actually wanted me to want to sleep with him. The legal definition is so inadequate. I kept trying to figure out if I felt like i was threatened by him with physical violence, when that’s not even the most important or significant questions for me to be asking myself. It’s about him manipulating the situation and taking advantage of the power he had over me. Your section on drunk consent was especially helpful for me. Same with the point about how rapists are more concerned about being labeled rapists than actually raping someone. This helped me make sense of how he was acting.. You honestly helped me accept what happened to me. So, thank you so much for writing it and sharing it.

  39. @Luna: I’m so sorry about what he did. :/ I’m glad that this post helped, though. I hate the way that some people think of “yes” as quite literally a “get out of jail free” card, instead of consent being a process that people follow to make sense more consensual!

    I found another article recently about responses to pressure and hurt, which talks about there being more responses than just “fight or flight” – it might be a helpful read if you’re trying to understand some of the ways you responded to the situation, as it talks about approaches like acting friendly, freezing up, and flopping and being compliant. Here’s the article – it’s quite academic in tone but seems survivor-friendly from what I can see.

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  41. i’m a 71-yo transwoman who has much to thank you for.

    Someone posted a link to this article in my FBP towards late January. It took me a few days to get to it, and when I did, while reading it, I realized that something that had happened in 1958 (I was 17 then) with a male teacher of mine was “technically” rape, in the sense that you so clearly describe as you write about a dynamic where the experience leaves you “with a sense of being violated” (“stained”) even though in my case my attacker did not consumate his intended act, as I feebly said “I can’t do this …” (out of _physical_ pain), and he didn’t force himself on me. By the way, the place was a capital city of a third world country in South America.

    This realization has brought me a period (of two month so far), of deep hurt, tears, and conversations with my close womenfriends, which are by now bringing me some early semblance of healing. I’m also fortunate enough to have a good woman therapist who has helped me a lot too, whom I’ve been seeing for over a decade.

    The “triggering” came as I read the part where you write on the reasons for delaying saying “no”, in my case out of guilt and confusion, since this teacher had been until then my mentor and the only person to whom I had told about my gender identity issues, at his insistentce in asking questions about “something I seemed to carry within me”. Once I did, he directed me towards a part of his library that contained a bunch of early “sexology classics” (Krafft-Ebbing’s “Psychopathia Sexualis”, some Freud stuff, Havelock Ellis, …) which I read avidly, the first time I found “serious” literature on crossdressing and such. He also told me to take all the reading lightly, since what was happening to me was “normal” for some people … He even arranged for me to talk to a friend of his who was a psychologist and guidance counselor. While all this gave me some inner relief, he later manipulated me into the situation I described above, by repeatedly suggesting/insisting that I came to his house and could do “whatever I pleased” while he was working on grading tests and his wife and kid were away at the country.

    I trusted him, so I did this, and for the first time I was the object of his attention “in a different way”, while crossdressing, which I enjoyed a lot … I had been the object of gay men attention before as a youth, but quickly had decided that “that was not my cup of tea” … and felt very happy since I figured “I wasn’t gay” at least” … By then I only thought I was a crossdresser, since I knew I liked girls (but also wanted to _be_ one), and the Christine Jorgensen story had been in the newspapers the year before, I believe, which prompted some questions and fantasies inside. So my nascent sense of myself “as a girl” was so gratified by his attention, only until the scene above. After that, it all became a muddy affair, a difficul dance that both attracted and repelled me.

    This situation was so much more difficult for me since when this happened for the first time, I was having an affair with his wife, which I think now was even promoted by him, under the pretense that she needed to go out since she was “trapped” in the house with the baby all week, so he insisted that I take her out to tea and movies, on weekends. She was 24, a beautiful, sexy, naturally elegant, educated, bookish, indigenous type of woman with long balck hair, a full-moon face and golden eyes, a stunning presence anywhere I went with her. Soon after the affair began, she told me that after she had the baby girl, her husband “had not touched her” sexually … So I understand now that I was like a “love offering” to her, initially at least … And to me, a totally unexpected gift from/of the Goddess (literally,intended) since until then I was a virgin.

    So there I was, my two “poles” being played with, and myself with a sense of élan and an intense inner splitting … from which my tears today seem to flow … I was so madly in love with her (I thought, my first time, and with such a magnificent woman, it seemed to me, and her breats still filled with milk! ) … This whole thing went on for about a year. It all ended badly, of course, as she realized that I wasn’t a proper candidate for a new life for her and some other guy, a former classmate of hers, entered the picture. I was instantly jealous, he took my place taking her out on weekends. She and I had a physical fight about it, and I never came back. My teacher kept asking me why I wasn’t coming by, I told him I was prepping for the University entrance exams, which was true too.

    A few months later the teacher found them in bed, instant drama, psychiatrist, lawyers, annullment (no divorce at the time), etc. In the end, he kept the baby, her grandmother moved in with him and helped him raise her. She married the other guy, had a couple of kids with him.

    For me, the take-home lesson from all this recent processing has been to understand much better how I had such a weak sense of boundaries then, how layered betrayal can be, how ininformed my parenting was, not to blame anyone, my parents did their best within their reach and understanding to give me an education which culminated in the USA with two Masters’ degrees in science and a great job in biomedical research. While doing all this, i read meters of books in the med library, coming to suspect that my mother may have been given DES, which I confirmed in 1994, and this triggered my decision to seek help for transition. Separation, divorce, coming out followed in quick succesion. Fast forward to this day: living full-time since I retired 5 years ago, a year after my second wife died; a few significant, expected losses along the way, a busy life as an LGBT activist. Cultivating friednships that can become more, no rush. Non-op but legally female.

    Three final reflections: one of my most immediate reactions after I named my experience “rape” was to think “OMG, if it feels like this to have had this happen in a totally “OK”, liberal, anti-clerical, socialist environment, how much more awful could it be if it happens within the realm of a chuch?.

    The second: this discoveries/uncoverings had made re-view many of my connections with women before and prompted a clear sense of identification with all the women I know around me who have had experiences of abuse (so many of them!), a kind od sisterhood I did not have before, now I think “I am one of them”, deepening my sense of my own, imperfect, non-natal womanhood.

    Finally, I find myself trying to be oh so mindful in my dealings with my old and new womenfriends and lovers, steeped lately so much within the framework of the indispensable mutual respect that our connections require, still having to unlearn the remnants of having lived with male privilege (although in a very un-macho, femmy body) a major part of my life. And possibly, more adjustments to come.

    Gratefully,

    Latina.femme.

    P.S. Since I’m not a native English speaker, please feel free to edit, and/or cut for space.

  42. @Latina.femme: Thank you so much for your comment. I read it with a sense of sadness for the girl you were, compassionate sisterhood with the woman you are today and a deep and enduring rage at individual rapists but also at a world which loves rape so much that it can take a woman over fifty years to understand that she experienced it. Thank you for sharing your experiences, and I wish you the best for, as you say, what’s to come.

  43. Pingback: It’s time to move on the conversations about kink and feminism. | Silicone Valley

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  45. Pingback: Reading group – Under Duress: Agency, Power and Consent « FEL feminisme

  46. Pingback: Consent doesn’t have to be enthusiastic | Second Council House of Virgo

  47. Pingback: Consent and abuse of power in kink and other sexual communities « Rewriting The Rules

  48. I still feel uncomfortable with the nature of consent when one or both partners are drunk. Would you agree that if both partners would have consented to sex while they are sober, and consented as much as they could in their intoxicated state, then it is likely to not be rape?

  49. @Jill: It’s rape if one person makes another person feel violated. “Consented as much as they could” isn’t a meaningful statement. It’s rape if one of them made the other one feel violated. It’s not each person’s responsibility to not make themselves get violated “as much as they could”. A person can be super drunk and still act in violating ways, or super drunk and not, or sober and act in violating ways, or sober and not. Usually the difference isn’t some kind of dice roll – “they tried as much as they could not to violate but ended up violating anyway!” – it’s intent to violate and/or not caring about violating, i.e. rapemindedness.

  50. Pingback: “I’d like you to remember the last time you found it difficult to give an explicit “no” to somebody…” | Knitting and Sljivovica

  51. http://fuckingrapeculture.tumblr.com/post/51202878613/coercive-rape

    Look at this. I had to think about you when I’ve read it! We really need to become more vocal on coercive rape, rapemindness (I love this word because it describes the situation really well, thank you for the invention!) and the systematic structured sexual coercion against women and its counterpart male sexual entitlement. Finally I find words I was always seeking for since I’m 14 years old. I literally hate the widespread sexual coercion – culture and I know that I wouldn’t be able to say ”NO” and it really frustrates me because what men are actually thinking what sex is when they don’t think that the female sexual arousel has to be always a requirement for sex! When they do think they can literally using the female body as a fucking masturbation-tool. It provoces in me so much anger, sadness and despair even more to know that most women have to endure coercive rape and coercive sexual assault (obligatory blow job) and that most men think that this isn’t rape, a continuum of rape/rape-culture but their fucking right/entitlement, really men can be horny as fuck that doesn’t give them any damn right for sexual access/service because sex is not a fucking masturbation, service for men he can coercively perform on the female body! And then women feel drained, guilty and empty after it and sex-positive feminists are saying: ”you just feel bad because society tells you so”, no just no she feels fucked up because she was coercively drained to break down her natural sexual boundaries, to betray her Self, to be self-violating to endure something which threats her integrity of her Being which mostly when not always is triggering dissociation/depersonalisation. And the experience of dissociation/depersonalisation especially during sex (imagine feeling detached from your own body and self and feeling seperated, lonely and isolated during sex…. how awful!) is absolutely draining, destructive and devitalizing and has nothing to do with ”empowering” especially when you think about that men find it horny to use sex as a weapon against women and penetrating her in a sense of defeating, vanquish over and against her. I’m sorry for my little rant but I can become really angry about it and it is so liberating finally finding words for it but at the same time also depressing and frustrating facing the reality. I really enjoy your work!

  52. Reblogged this on Our Harvard Can Do Better and commented:
    ““No” is the answer to a question, but where is the questioner in this approach? Where is their responsibility for consent? “No Means No” claims to give the no-sayer all the power, but what it actually gives them is all the responsibility. Responsibility isn’t necessarily a bad thing, but responsibility without power plain sucks. The only responsibility given to the person hearing a “no” is whether they respect it, and as feminists know, rapists are often let off the hook for betraying even that responsibility.”

  53. Pingback: Mod Carousel remakes “Blurred Lines”–but does it subvert the misogyny? | sexynewz.com

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  60. Pingback: Consent: Mandatory – Not Sexy. | MS. Informed

  61. Pingback: Can’t say “no”? You’re not alone | All Things Linguistic

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