Rape & Consent: presence of “No” or lack of “yes”

This post seems all the more relevant with the new GoT discussion of "was it consensual?" *

Definition of consent:

Consent is generally defined as “permission for something to happen or agreement to do something.”  However, this definition is still open to interpretation, whether giving permission means giving overt, expressive permission and that non-consent is the lack of overt, expressive permission.  This gray area of the word is especially dangerous in the realm of sexual assault and rape cases.

Definition of rape:

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.1

Overall, this definition is very inclusive.  It is not gender, object, or target specific, thus encompassing all acts we would typically consider rape.  Despite the clarity of this definition, that last phrase "without the consent of the victim" is open to many interpretations.

QUESTION 1: How to define with out consent (WOC): overt, expressive denial of permission or the lack of overt, expressive permission.

Note: This post mainly focuses on defining WOC in situations where physical violence and/or weapons were not explicitly involved and when victims have the capacity to express consent (i.e. not drugged, tied up, disabled, under-age). Thus, definitions and cases will be discussed in light of this viewpoint and details and definitions outside this area of focus may be omitted.

New Jersey Sexual Assault Definitions (N.J.S.A. 2C:14-2) 2

a. An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another  person under any one of the following circumstances:

(b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status

(7) The victim is one whom the actor knew or should have known was physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable  of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any  one of the following circumstances:

(2) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

Criminal Justice Information Uniform Crime Reporting (UCR) Program [FBI] 3

• Rape, Completed Physical resistance is not required on the part of the victim to demonstrate lack of consent.

The following scenarios illustrate incidents known to law enforcement that reporting agencies must classify as Rape, Completed:

4. One night, a woman’s husband was very drunk, and he accused her of sleeping around. He became enraged, pushed her onto the bed, and penetrated her with an object. She was too afraid to struggle.

5.  A woman broke up with her ex-boyfriend three months earlier, but he showed up at her workplace and followed her home. Once there, he intimidated her and told her he wouldn’t leave until she had sex with him. He forced her to perform fellatio.

6. A man who owned a restaurant threatened to fire a waitress if she would not consent to sexual acts with him. When she refused, he threatened her. She was afraid to resist and he performed  cunnilingus.

The New Jersey legal definitions make no real distinction as to which way to define consent. They do, however, clearly indicate the immorality of completing such acts on someone in a subordinate position. Being in a subordinate position clearly influences one's ability to give overt, expressive consent even with the absence of weapons or physical force. Intimidation takes on many forms, as demonstrated by the examples provided by the FBI reporting system (4-6). Here there are individuals in subordinate positions who were "intimidated" and "too afraid" to give expressive, overt NON-consent to the activities. These definitions do seem to accept lack of expressive consent in their definition of rape.

A Georgetown Law page 4 explains this reasoning well: 

Many states do not require a victim to resist in order to charge the offender with rape or sexual assault. In addition, there are many reasons why a victim of sexual assault would not fight or resist her attacker. She/he may feel that fighting or resisting will make her/his attacker angry, resulting in more severe injury. She/he may not fight or resist as a coping mechanism for dealing with the trauma of being sexually assaulted. Many law enforcement experts say that victims should trust their instincts and intuition and do what they think is most likely to keep them alive. Not fighting or resisting an attack does not equal consent. It may mean it was the best way she/he knew how to protect herself/himself from further injury. [Greenfeld, Lawrence A. and Steven K. Smith, American Indians and Crime, Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, NCJ 173386 (February 1999)]

Question 2: Must the individual know they are continuing an action WOC of their partner for it to be considered rape?

While the definition of WOC may be lack of "yes," this leads to a second question of how will a perpetrator know the act is non-consensual if there is no overt, expressed opinion one way or the other.  If the victim says it was rape because she did not consent, but the perpetrator says it was not rape because she did not not consent... which way will the courts lie?  Can one accidentally rape someone else?  Must the individual know the act is immoral for it to be rape?

Generally, the answer seems to be yes. Montana presents this definition: 5

45-5-503. Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent

In the case of New Jersey definitions regarding those incapable of giving consent:

The victim is one whom the actor knew or should have known was physically helpless, mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable  of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.

However, when it comes to age and WOC,  it was stated in a case regarding a 14 year old girl: 6

Defendant contends that the court committed plain error by failing to instruct that mistake of age was a defense to the offense charged. We disagree. Just as consent is not a defense, for the same reasons, mistake of age is not a defense. In undertaking to have sex with the victim, defendant assumed the risk that she was under legal age.

A little conflicting.  Perpetrators assume the risk that their partners are consenting?   

Question 3: Should the case be to prove non-consent or to prove violation?

A different blog post made an interesting analogy regarding rape and privacy cases.7

I want you to think about theft and property law for a moment... we presume that, absent evidence to the contrary, you don't permit any random person to take off with your things. If someone takes something that belongs to you, the law does not require you to prove that you withheld permission. If the person who took your property wants to claim that you gave them permission--in other words, that you consented--that is on them. This does not violate the presumption of innocence, because the prosecution always has to prove that the person who took your property actually took your property.

For some reason, we don't see consent to sex in the same way. When we expect the prosecution in a rape case to prove a lack of consent, what we are saying is that the default position is one of consent... In order to keep things consistent, we should take the same approach to the right to sexual agency and bodily sovereignty as we do to the right to ownership and exclusionary control of property. We ought to presume that people default to a state of control and exclusion unless they give some indication to the contrary. This will not violate the presumption of innocence in rape cases, given that the prosecution will always need to prove that the accused had sex with the alleged survivor (and this is by no means trivial). I think going this way is better than applying rape-reasoning to theft cases, for what should be obvious reasons.

This then leads us back to the result of Question 2: perpetrators assume the risk that their partners are consenting?   

Question 4: Is "lack of no" a viable working definition?

Looking through various support sites, there is always an FAQ of the following: 8

I thought “no,” but didn’t say it. Is it still rape?

It depends on the circumstances. If you didn’t say no because you were legitimately scared for your life or safety, then it may be rape. Sometimes it isn’t safe to resist, physically or verbally — for example, when someone has a knife or gun to your head, or threatens you or your family if you say anything.

But note, this only deals with the black/white situation... namely, where guns/violence/substances are involved.  What if you find yourself in a situation mentioned in Question 1 where intimidation stems from fear and power?  If you do not say no at that immediate point in time, do you waive all your rights to a successful legal case? The internet seems pretty mum on this regard.

As a final thought, I came across this black/white situation where substances were involved and yet non-consent is defined by the defense as "presence of a no." 9

In the case that has shocked the nation, prosecutors state that the inebriated girl was taken to a number of parties by a group of drunk teenagers, supporting her to walk when she wasn't physically capable.The prosecution claims that the group later sexually assaulted the girl while she lay unconscious.But attorney Walter Madison, who represents one of the accused boys, argues she was drinking voluntarily and left willingly with the group of boys.

As reported by the Cleveland Trader Madison said: 'There's an abundance of evidence here that she was making decisions, cognitive choices.' 'She didn't affirmatively say no,' he stated.

 "There's an abundance of evidence here that she was making decisions, cognitive choices."

If WOC much means overt, expressive non-consent in this case where a teenage girl is severely intoxicated, I doubt a "lack of no" definition will hold up in many courts regarding cases without substances/weapons/violence. The definition may be the right one, but if it is not used... it is irrelevant.