Thursday, December 9, 2010

Sexual control, consent, responsibility

Since I have a contracts final in two days, I'm doing the obviously responsible thing and putting off studying to write a blog post about rape. We'd been talking about rape in my criminal law class even before all the drama about Julian Assange went down. So in a morbidly fortuitous way, I'd already been thinking about what rape means in our culture when he was arrested.

True to my lazy ways, rather than go research rape history, I'm going to outline how I've understood rape and leave that open for criticism in the comments. I'm still learning, so if y'all know something I don't, feel free to point me in the right direction.

From the way I understand it, rape was originally about theft, not sex. If a man forced a woman to have sex with her, that was only a problem if he wasn't married to her. Society saw that sex as a theft from the man that the woman actually belonged to. We didn't always recognize marital rape as a valid crime because rape wasn't about the woman originally. It was about a commodity being stolen. As time progressed and women became more fully human under the law (thank you, feminism!), we finally started seeing rape as a means of control or domination over women. It still wasn't about sex. It was about a man overpowering a woman and making her submit to him. It was about him seeing her body as something that he was entitled to. It was about her not having any sexual autonomy. We're finally getting to a point where we're acknowledging as a society that rape isn't about what a woman is wearing or where she's walking at night. Rape is generally about control--which is why we're also realizing as a society that rape is most common in relationships where the woman knows her attacker. Men use rape or sexual to keep women in a place of submission.

And now here we are at a place in history where women have more sexual autonomy than they've ever had before. Condoms are relatively easily accessible (I know they should be even more so if we're serious about preventing unwanted pregnancy, but that's for another post), birth control, at least for most middle class women, is still relatively accessible and while we have a long way to go on sexual education, enough awareness about disease prevention is arising so that most women and men are talking about these things and deciding what kinds of protection they want to use (hmmm. I'm realizing I could be projecting my own experience on to society at large here. Is that sentence naive?).

Which brings me to what I want to discuss. Again, before the Julian Assange drama, we were talking about rape in my criminal law class. We discussed rape history. We discussed consent. We discussed force as an element of rape and whether it should even have to be an element in rape. Legislatures are finally recognizing that some women don't resist because it would further endanger them. They're also recognizing that sometimes women are "forced" to have sex by more than just brute force. Maybe they're manipulated. Maybe they're shamed. But we're slowly realizing as a society that sex without consent can happen even without being beaten to the ground.

And this is where we get into the gray area. This is where I start getting confused and this is why I'm writing this post. We discussed a hypothetical where a man is potentially convicted of rape because he lied about wearing a condom. The woman had consented to have sex with him as long as he wore a condom. After the sex, she found out he hadn't worn one and so she filed a rape charge. I have to say, this makes me extremely uncomfortable. While I'm not going to say this happens all the time, it does happen that a woman will lie to a man about being on birth control. Has she raped him?

I'm all about a woman having a say in how sex goes down for her (heh). And I've been in situations where I felt like my body was being co-opted for someone else's purposes. I've been made to feel dirty and owned by a sexual partner (not this one, but that's also a post for another day). And it messed with me. It gave me issues about my body, control, trust, sexuality, etc. So I can't imagine the emotional trauma that must come from an actual rape.

And yet... I realize that I also have to take responsibility for my sexuality. I'm a big girl. I've never had sex and been unaware as to whether or not a condom was present. I've had condoms break in the middle of sex before (aren't y'all just thrilled at how much information I give you? Sorry. I feel like we gotta say these things out loud for them to get better). And I would hope that if I told a partner, "hey. the condom broke. you gotta pull out" or if the partner said, "oh, shit. the condom broke" and then i said, "ok. then pull out" he would. But if he didn't... I'm not sure it qualifies as rape. Is it wrong? ABSOLUTELY. You gotta stop when someone says stop. Jerk yourself off. Maybe ask her if she'll do it (and be willing to reciprocate. I mean, really guys? This shit is not all about you). But get out when she says get out.

But is that situation going to cause the same amount of emotional trauma that a more manipulative and/or forceful situation is going to cause a woman? Is a guy who keeps going after the condom breaks working under the same "i'm entitled to her" mentality as an uncle who molests his niece? Or is he like, "oh, shit. but i'm almost done!" I mean, no one likes a buzz kill, cock block, interrupted orgasm, however you want to call it. Are we really going to tell women that they're not responsible at all for checking whether the condom is in place before they actually start having sex? Is that helping women to tell them that they're entitled to sexual autonomy but still not capable of taking some responsibility in what we're trying to reform into a mutual relationship between mature adults?

Lastly, I want to clarify that I know I wasn't in the room for the Assange events. I have no idea what those women went through. My questions stem mainly from the hypothetical we discussed in class that seems to be very similar to the Assange mess. I'm also not trying to blame those women for anything. They're certainly entitled to have sex with whomever they want and to insist on condom use. But my questions above are sincere. I really want to understand this issue more. I want an honest dialogue (seriously, chrome? we're not spelling that with "ue" on the end anymore. sigh). So please, discuss.

UPDATED: Just wanted to throw in this delightful video on consent :) You know, lighten things up a bit.


xJane said...

I agree broadly with your characterization of the-history-of-rape-as-I-understand-it but I'm not sure it isn't still (or always) about control.

That said, I'm also on the fence about the nuances of what kind of birth-controlled sex constitutes rape. I definitely think there is room for sexual torts—offensive touching by sperm that was promised to be corralled by a condom or theft of genetic material that was promised to be nullified by oral contraception—that do not rise to the level of criminal rape. I also think this grants autonomy to both actors. I'm not familiar with Swedish (?) rape laws, but it may be that the type of rape being claimed falls closer to an American tort with civil damages than the criminal act "rape" implies to us.

I believe I've also heard of criminal charges brought against people have been held responsible for consensual sex that [knowingly to one party] transmitted a deadly (or potentially deadly) STI. Although I don't know what the results were (it should fall under assault with a deadly weapon or attempted murder).

Lessie said...

xJane, thanks so much for your comment. I too would be more comfortable with some kind of lesser sexual charge--something between sexual assault and rape. Sex torts seems like it would do the job nicely. Of course, making the litigation worth it in the absence of significant monetary damages could be problematic. But I agree that this would give more autonomy to each party.

That's also a good point about the Swedish rape laws. I hadn't even thought that perhaps we're blowing the charges out of proportion here in the U.S.

xJane said...

That's been my thought since I first heard about the (possibly disputed) allegations. The American media (the only media I've read about it) seems to be saying, "how is just not using a condom rape?". Even here, we have different levels of rape and sexual assault, so it may well be possible that we just don't have words for the kind of rape (or other sexual crime) alleged.

I also agree with you about being able to tell whether or not a condom is being used, although I've never had one break.

G said...

commenting here mostly to be able to follow the conversation.

G said...

Lessie, thank you for an awesome post. (xjane, thank you for being awesome.)

Lessie said...

C'mon, G. You know you have an opinion ;)

xJane, I've also only read American media on the topic. And I'm sure that's partly what feminists are getting so upset about. Can't we approach the story from a more nuanced angle?

I guess the other thing I worry about is that if we make every sexual discretion or every sexual experience we regret into a rape, we've trivialized rape far more than a badly placed rape joke has.

xJane said...

"if we make every sexual discretion or every sexual experience we regret into a rape, we've trivialized rape"

Just so. But if we can have, as you say, a more nuanced view of sexual crimes such that there is a range from civil through criminal, I think everyone wins.

ECS said...

Rape is penetration without consent. If a woman tells the man "I'm done, pull out", she has withdrawn her consent. If the man refuses to pull out, it's rape.

I'm probably misunderstanding you, but are you saying that if a woman consents to sex, starts having sex with a man, then changes her mind halfway through the sex act and tells him to get off her, the man can keep screwing her until he's "done"?

If that's what you're saying, then I disagree with you. The man who refuses to stop after a woman tells him to stop is raping the woman. No means no, even if the "no" comes after the man has already stuck it in.

Good luck with your exams! When I was avoiding exams, I played Tetris for hours. I had to delete it off my computer.

Oh, and this is an excellent, interesting, post. Thanks for sharing your thoughts here. (and to G for linking it). Would love to hear more about how things are going for you.

G said...

(ECS~ ur welcome <3)

Lessie said...

"I'm probably misunderstanding you, but are you saying that if a woman consents to sex, starts having sex with a man, then changes her mind halfway through the sex act and tells him to get off her, the man can keep screwing her until he's "done"?"

ECS, thanks for commenting :) And I went back and re-read that part of my post, and I guess I didn't really write that part clearly.

I'm not saying it's ever okay for a man to keep screwing a woman until he's done if she's asked him to pull out. If she says, "I changed my mind. Stop." and he says, "Too bad. You're staying right there til I'm done," or even just ignores her and keeps going, that's definitely rape.

I think what I was trying to get at in my post is the issue of women being aware of things like whether a condom was present. If a woman consents to sex with a condom, but then doesn't make sure the guy is wearing a condom until *after* the act and then tries to accuse him of rape, is that really fair? Should she maybe be able to slap a battery charge or something on him? Absolutely.

But I think you're right. I think the way I have it in my post, it sounds like I'm saying it's fine for a man to ignore or refuse to pull out. And that's not what I was trying to say. I'll have to think about how to clarify that. Or maybe I'll let the clarification stand here. Not sure.

At any rate, thank you for joining the discussion! I do feel that we have a long way to go yet as far as realizing women's sexual autonomy.

ECS said...

Hi, Lessie! Good luck with your contracts exam - or did you have it Friday?

I just read a post that speaks directly to this issue. Thought you might like to read it:

G said...

oh, awesome link ECS. thanks.