If a woman doesn't say "no" to sex--is that the same thing as saying "yes"? That's the question at the center of the Steubenville, Ohio, rape trial that began this week. The defense for two high school football players accused of raping an unconscious 16-year-old girl will focus on issues of consent, specifically what "consent" really means. To defense attorney Walter Madison, who is representing one of the accused men, consent is not an affirmative "yes." He told the Cleveland
Plain Dealer that what happened wasn't rape because the young woman "
didn't affirmatively say no."
But the absence of a "no" is not the same thing as the presence of a "yes." And until American culture and law frames sexual consent as proactively, enthusiastically given, there will be no justice for rape victims. It's time for the US to lose the " 'no' means no" model for understanding sexual assault and focus on "only 'yes' means yes" instead.
It's already true, under most state laws, that a woman doesn't need to say "no" in order for her assault to be considered a rape. But our cultural understanding of rape is so muddled with "only 'no' means no" doctrine that lawyers often only need to suggest to juries that the victim didn't object, or didn't object loudly enough, in order to secure a not-guilty verdict.
When the University of Montana football player Jordan Johnson was acquitted this month, for example, an alternate juror told the press that the victim had given "mixed messages and comments to friends" about the assault. The young woman had admitted she didn't scream during the alleged rape, and wrote a note to a friend expressing guilt that she didn't fight back hard enough. The jury interpreted her lack of a clear "no"--here linked to common signs of trauma--as evidence she could have wanted to have sex.
But this kind of logic doesn't fly in real life sexual interactions. Are all women really to be considered willing sexual participants unless otherwise stated? If we flirt with someone, or even kiss them, does that give them permission to do whatever else they want to our bodies until we strenuously object? Is this the kind world we want for women--or for sex, for that matter?
The only way to know that sex is consensual is if there's a freely and clearly given "yes." This may sound radical to the uninitiated, but don't we all want to make sure we're only having sex with people who are actually interested? Ensuring enthusiastic consent requires only the most basic respect we all owe our partners in the first place: paying attention to how they're doing, and asking them if we can't tell.
It's not that difficult. But even if it were, it's the only way to ensure a genuinely equal world in which women's bodies aren't presumed to be available to men until otherwise stated. Without an affirmative consent model, rapists will continue to go free based on outrageous arguments about whether or not their victim didn't want it enough. Current research demonstrates that most rapists already know they don't have consent. It's the rest of us who are confused. Affirmative consent removes this confusion.
Late last year, the Connecticut State Supreme Court overturned a sexual assault conviction for a man who attacked a woman with severe cerebral palsy, who according to court documents has the "intellectual functional equivalent of a 3-year-old." Because of the way consent is defined in state law around rape and physical incapacitation, the court said because the woman was capable of "biting, kicking, scratching, screeching, groaning or gesturing," she could have communicated a lack of consent. But why should she have to? Is her body considered free property unless she bites hard enough? In the absence of a law built on affirmative consent, her rapist remains free to strike again.
Similarly, the Steubenville defense attorneys say the teenage girl in this case was not "substantially impaired," the Ohio standard for being unable to consent to sex. Despite widely circulated pictures of the young woman's limp body being dragged by the two accused, the defense insists she was conscious enough to say "no" because after the alleged assault she was able to give someone a passcode to unlock her phone. Remembering a habitually used four-digit number is not a "yes."
But in a culture that insists women prove they didn't want to have sex, anything becomes "yes." A passcode. The fact that the young woman got into a car with a group of boys willingly. Even the victim's silence becomes a "yes"; Madison told the press, "The person who is the accuser here is silent just as she was that night, and that's because there was consent."
There is something seriously broken with our system and our culture when a teenage girl who is so incapacitated that her peers mocked her as a "dead girl" could actually be considered--even for a moment--able to consent to sex.
We've already made strides in reframing the way we think--and prosecute--sexual assault. It was just last year--after many years of work by activists--that the FBI changed its archaic definition of rape from "forcible" assault of a woman to penetration (of any gender) without consent. It may take some doing on all our parts to make this next shift, but if we're serious about preventing the next Steubenville, it's time to get serious about affirmative consent. Only a "yes" can mean yes.
Jessica Valenti and Jaclyn Friedman are the editors of Yes Means Yes: Visions of Female Sexual Power and a World Without Rape.
If a woman doesn't say "no" to sex--is that the same thing as saying "yes"? That's the question at the center of the Steubenville, Ohio, rape trial that began this week.