Yes or No?

This is a story of Cause and Effect.

Cause: New legislation is introduced which will "define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given" and will "introduce an 'objective fault test,' meaning a man can no longer use the defence that he thought he had consent if the circumstances appear unreasonable."

In other words, men can no longer rape incapacitated women and claim those women had consented.

Seems reasonable enough.

Effect: Outrage; claims the new law is completely unreasonable.

Chair of the Bar Association's criminal law committee Stephen Odgers SC said the law made sexual assault a crime of negligence.

"The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse," Mr Odgers said.

Thankfully, Attorney-General John Hatzistergos aptly noted: "Although Mr Odgers might like to draw a distinction between the stupid or drunk rapist and normal rapists, for rape victims they're categories that don't matter." Right on. And, beyond that, I don't think "stupidity" is a viable defense for any crime, nor is negligence or intoxication, so why on earth rapists should get special dispensation, I have no idea.

Although I suspect it has something to do with the frustratingly unalterable idea that consent to sex is an unnavigable quagmire of indiscernible mystery, as opposed to being as simple as this:

Yes or No?

Everyone wants to make it harder, and discuss all kinds of hypotheticals about implied consent or assumed consent and blah blah blah. But it's really. not. that. complicated. It is, in fact, as Auguste says, "possibly the easiest concept in the history of the world."

Consent is defined according to the quality and quantity of assent, not the quality and quantity of dissent.
That's just another way of saying it's a yes or no question, and if you haven't gotten a serious, coherent yes, then you shouldn't presume you've gotten consent. [Also see: Portly Dyke.]

Anyone who protests that simplicity, who feels compelled to say, "But what about this situation? But what about that situation?" is, by definition, a rape apologist—because at the root of such protestations is the idea that people should have a right to sexual congress without consent, without taking three goddamned seconds to say:

Yes or No?

And what this law is about is protecting people who couldn't even answer that question, if they were asked—or could only answer it in a way that any reasonable person would know is bullshit if the question were anything else.

Q: Are you okay to drive?
A: Sure! (clunk as head hits bar sleepily, before popping back up, wobbling on neck) I'm perfectly schlober!

Q: Do you want to have sex?
A: Sure! (clunk as head hits bar sleepily, before popping back up, wobbling on neck) I'm perfectly schlober!

This law seeks to make people treat the answer to the second scenario with the same incredulity with which they treat the first.

Because, realistically, that isn't happening. And that's what Auguste is talking about when he refers to the quality of consent.

I personally believe that most men are quite capable of making distinctions between a willing partner who gives serious, coherent affirmative consent to sex—and a partner who doesn't know what planet she's on, no less who's trying to get in her pants. I personally give most men credit for being moral and rational enough to not be interested in a partner who hasn't given clear consent. And, in my experience, which includes one man who was not decent enough to respect my lack of consent, none of the other men I've known intimately (not all of whom I've known sexually) had the slightest bit of confusion on this issue, or thought clear consent was difficult to discern.

But still there are people not willing to give men the benefit of the doubt—and, surprise, it isn't the people in favor of this law:
"It will turn our sons into criminals," new Bar Association president Anna Katzmann SC said yesterday.
Actually, if they're as likely to "have sex" with a woman incapable of clearly consenting as you assume, Ms. Katzmann, this law might keep them from being criminals, by teaching them to ask the simplest question there is:

Yes or No?

Because if they're "having sex" without asking it, they may be criminals already.

[Thanks to Lauredhel for passing that story along. Cara has more.]

Shakesville is run as a safe space. First-time commenters: Please read Shakesville's Commenting Policy and Feminism 101 Section before commenting. We also do lots of in-thread moderation, so we ask that everyone read the entirety of any thread before commenting, to ensure compliance with any in-thread moderation. Thank you.

blog comments powered by Disqus