Some legal thoughts

As a matter of law, “assault” can be defined as the fear of an unwanted touch; battery is an unwanted touch. As a matter of common sense, whether something is criminally actionable isn’t what determines whether an act constitutes assault or battery. These rough definitions come from civil law—specifically, tort law, the vehicle for imposing accountability on each other for the harms we do each other.

It’s a curious thing to assert that someone has to say “no” before unwanted touches of a sexual nature becomes sexual assault. If that’s true, then shouldn’t you have to say “yes” before it’s consensual? (NB: Technically, yes.) Requiring “no” but not “yes” is the premise of the more noxious notions ever used as a legal defense: implied consent.

Implied consent is what makes it legal to test drivers’ blood alcohol level, a search in the meaning of the Fourth Amendment. The idea is, by driving, you’ve impliedly consented to being tested. It’s how offenders have defended themselves from charges of sexual assault for years—and how laws protected them at one point in time. States legislated loopholes for assaults against voluntary social companions, prior consensual sexual partners, and spouses.

Sex is itself a dialogue between bodies; it doesn’t always require a verbal dialogue. That isn’t an excuse for “misreading” cues shy of an exclamation. Nor is updating the law to respond to that reality impossible. Consider Canada’s law, around since 1992.

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Canada acknowledges the complexity of consent by addressing both parties’ participation and recognizes the simple, obvious truth that “no” and “yes” can be expressed in many ways.

Reading cues and saying “no”

A friend protests that characterizing the actions “Grace” describes as assault diminishes her agency: She could have said no, don’t infantilize her. But isn’t presuming entitlement to sex rather than affirmatively looking for consent a much more serious violation of her agency? I’m not suggesting a contract; I say “looking for” rather than “seeking” because it is, of course, entirely possible to confirm that sex is desired, and consensual, via corporeal dialogue—if you’re interested in doing so.

x A lot of men will read that post about Aziz Ansari and see an everyday, reasonable sexual interaction. But part of what women are saying right now is that what the culture considers "normal" sexual encounters are not working for us, and oftentimes harmful. — Jessica Valenti (@JessicaValenti) January 14, 2018

Imagine attending a reception and trying to make conversation with someone. It goes well for a bit, then they edge further and further away; they talk less and less, then stop talking; they excuse themselves. Would you chase them across the room? Beeline back to them as soon as they return from the restroom? Push wine on them? Block them from leaving? No. And they’d probably stay, not because they have to, but because social norms dictate as much—and because figuring out how to respond to grossly aberrant behavior is often difficult in the moment.

This gross analogy is only meant to illustrate how easy we all know reading cues is. How could we excuse someone from the responsibility to do so in an exchange with much more serious elements?

x This is awesome. Watch this. Sexual consent explained in terms of making a cup of tea. Seriously. Watch.

https://t.co/WryaQOeEod — J.K. Rowling (@jk_rowling) June 10, 2016

If the night unfolded as she says it did, Grace should never have had to say “no” aloud.

Throughout the course of her short time in the apartment, she says she used verbal and non-verbal cues to indicate how uncomfortable and distressed she was. “Most of my discomfort was expressed in me pulling away and mumbling. I know that my hand stopped moving at some points,” she said. “I stopped moving my lips and turned cold.”

Grace also said something stronger than “no”: She told Ansari she felt forced. Specifically, “I don’t want to feel forced because then I’ll hate you, and I’d rather not hate you.” He resumed his offensive. Yet he has an army of defenders blaming her for not making her objection clearer, for not leaving.

Rape culture

When’s the last time you responded to another survivor of violence by asking them why they didn’t fight harder? No one says, if you knew it was a high-crime area, you were impliedly consenting to being victimized. The same victim-blaming may occur, but no one denies the assault. That’s because unwanted touching—again, the legal definition of assault—is usually presumedly wrong.

Rape culture and its norms are deeply ingrained. In conversations, on Twitter, people who haven’t read Grace’s account rewrite it in realtime almost compulsively. They seize on the elements that used to be part of the retrograde implied consent defense: She went to his place, she knew it was a date, she didn’t say no. Never mind that her account also contains mention of physiological responses that indicate shock—her lips went cold, her hand stopped moving—and explicit reference to the ways in which she said “no.”

These responses remind me of a conversation about campus sexual assault with my grandmother and aunt. “Women shouldn’t drink around men who are drinking,” was their bottom line. I asked, “Shouldn’t it be that men shouldn’t drink if it makes them more likely to assault women?” The silence was lengthy.

It’s not just men: It is rape culture. Gender can have a lot to do with it—or nothing. I’ve had a man try to force me to have sex when I couldn’t consent and two women succeed at coercing me. It’s privilege; it’s power. The wherewithal to say, “no”—that’s also privilege.

x Do you know how many women have had to fake periods or drunkenness to weasel out of a sexual encounter without setting off a male rage spiral? "Just saying 'no'" is not always an option. That's the whole fucking problem. — Lauren Duca (@laurenduca) January 14, 2018

Some of the privilege implicated in the right of refusal can be very literal: The security of having resources, the ability to leave without worrying about how much a taxi costs or what the surge pricing is on Uber. Some is more abstract: Whether you believe your “no” matters and that, if it isn’t respected, you will be believed. Whether you are vulnerable to repercussions, from violence to social shaming. Whether you trust law enforcement.

Establishing the norm of looking for “no” is a foundational step. Perhaps one day we will even graduate to a more nuanced understanding of the dynamics affecting “no.” An older, presumably wealthier, and very prominent man was aware of the ways in which he was more privileged in this situation. The threshold for hearing “no” should have been low in the spirit of Dan Savage’s campsite rule if nothing else.

Why it matters

The rush to defend what was, at a minimum, caddish behavior, can be explained easily.

Nobody is arguing that what Ansari is alleged to have done is equivalent to the more serious crimes Harvey Weinstein has been accused of, or even to the more obvious abuses of power perpetrated by men such as Louis CK. What we are saying, however, is that all of these things exist on a spectrum of abusive behaviour that negatively and persistently impinges upon women’s lives. What’s especially difficult about this case, however, is that it will force men to examine their own behaviour in a way that most of them have not had to do so far during this moment. Someone committing multiple, serious sexual assaults and rapes is easy to characterise as a predator, a monster, and a thousand miles away from the lives and behaviours of the often well-meaning men who are trying to engage with this cultural moment. Ansari’s alleged behaviour, however, is likely to hit much closer to home.

It’s not just perpetrators but also survivors who may be thrown into uncomfortable territory by the firestorm around Grace’s account.

To acknowledge that commonplace behavior can be assault forces those of us who’ve experienced these harms to relitigate them, to reassess the many people in our lives who’ve inflicted or are still inflicting them. Such an undertaking is not just overwhelming but crushing, and, worst of all, ongoing. This is all to say, what’s difficult about this case is what’s important about this case.