Trigger Warnings

This article contains discussions of rape, rape apologism and victim blaming. One survivor who previewed this article said they found a definition of rape used here “particularly triggering”.

Summary

When rape apologists are using our models of consent to defend rape and to deflect feminist analyses, it’s at least worth considering the limitations of the models. This article is part one in a two-part series of articles examining the issues.

Part One: “No”: Understanding consent as a binary is powerful because it allows us to say that “no means no”, a statement which has had and still has incredible power to change attitudes about rape for the better. However, it can make it more difficult for us to conceive of what else might mean “no”, as well as to distinguish between different kinds of “yes” given in different contexts. It can be used to victim-blame. It doesn’t always accommodate some of the complexities of communication (although we should beware, because “miscommunication” is a shield rapists often like to hide behind). And admitting “no always means no” seems to mean that we must also admit “yes always means yes”; this can conflict with the subtleties of a fully radical feminist analysis of rape culture.

Part Two: “Yes”: Modern feminist views on consent have often been in conflict. One way to resolve that conflict may be to look for unified models of consent which takes into account ideas from multiple feminisms. Here I suggest a non-binary power model of consent, which looks at systems of domination such as patriarchy, and the pressure they enable people to place on consent. In this model, “no” still means “no” but “yes” should be understood as a statement meaning, “I choose to say ‘yes’, understanding the consequences of saying ‘no'”. A focus on “systems of domination” – plural – allows us to consider other dynamics of rape beyond men raping women without moving away from fifty years of feminist work on rape and consent.

Gendered Language

Where I discuss rape, I have used a mixture of gender-neutral language and male = perpetrator, female = survivor pronouns. Any discussion of rape is almost inevitably pushed into one of two traps in the use of gendered language; either it’s written in exclusively gender-neutral terms and erases the strongly gendered power dynamics of most rape, or it’s written exclusively in terms of male perpetrators and female survivors and erases other dynamics of rape . Even attempts to reference gender proportionally are doomed to fail, because when other pronouns are used just once or twice, it can feel more like tokenism than representation. Please read this article recognising that each use of pronouns and genders is completely deliberate but is not intended to be definitive or exclusive.

No Means No: The First Rule of Consent

The Basic Message

If you’ve heard just one message about consent, chances are this is it. If she – and it’s always a she; more on that later – says “no”, then the sex is off. If she says “yes”, then it’s on. The message is simple and it’s been a crucial tool in advancing the basic feminist understanding that sex isn’t sex without consent. “No Means No” is the feminist bottom line and all feminists must hold this line at any cost. If you’re already asking, “But what if she says no and means yes?” don’t worry, we’ll get to you in about 6,000 words or so. But for now, please take a seat over there. No, over there. Not too close to me, please.

By saying “no”, a woman is meant to be able to transform herself from a default woman, that is to say, a consenting woman, into a non-consenting woman. But we’re not even there yet; only certain women, owned women – wives, mothers, daughters – are allowed this “no”, as Twisty explains in the link and as Dworkin wrote in 1987:

Men can break sexual laws with the secret but empirically real sanction of the male-dominant community that establishes social policy as long as that community is not outraged: that is, as long as another man’s rights over a woman are not violated and as long as social policy in general is working effectively to protect gender polarity, male “nature” and female “nature” [emphasis mine].

– Dworkin, Intercourse, (Arrow, 1988) p188

(I’m not well-informed about abuse of children, but my understanding is that similar dynamics operate there.)

The Power and Responsibility Dynamics of “No”

But when is this “no” done? Do you say “no” when you first meet somebody? Should you wait until they buy you a drink? Until you’re alone? Until you’re naked? Until you’re having sex? Until you’re having a kind of sex that you don’t want to have? Do you have to interrupt them to say “no”? Is there a threat of violence if you do? Will it break the mood and lose a friend? There are a lot of restrictions which can check the ability to say “no”.

“No” is the answer to a question, but where is the questioner in this approach? Where is their responsibility for consent? “No Means No” claims to give the no-sayer all the power, but what it actually gives them is all the responsibility. Responsibility isn’t necessarily a bad thing, but responsibility without power plain sucks. The only responsibility given to the person hearing a “no” is whether they respect it, and as feminists know, rapists are often let off the hook for betraying even that responsibility.

Actually, What Was The Question Again?

The question, if asked at all, is rarely as straightforward as, “Do you want to have sex?” and it’s often hedged around with codes. “Do you want to come in for coffee?” Asking is a vulnerable act, and the need for self-defence is understandable. Sometimes, ambiguous statements can make a situation easier for everyone involved. “Coffee?” “No thanks, I’d best get back” is a clear negotiation in which nobody loses face. Ambiguity places the asker in a less vulnerable position, which deescalates the situation and allows a refusal to be offered in a way which isn’t socially transgressive according to norms of, for example, female socialisation.

But less vulnerability also means more power, and ambiguity opens up ground for abuse. When the man soliciting sex is hostile (a word which I use in its broadest possible sense), then both “yes” and “no” are lose-lose responses to this kind of solicitation. This can be done via “That’s Not What I Meant” and “You Know What I Meant” as follows below.

“That’s Not What I Meant”: A hostile man can retroactively reconstruct a question to remove a context of sexual invitation and then attack the no-sayer for refusing what he now claims is a friendly, innocent request. This is what happened to Skepchick back in June 2011 when she turned down an offer of coffee in an elevator (link is to a video, Skepchick later produces a written follow-up on the popular response). The context of the request was perfectly clear, but its surface ambiguity allows – barely – its reconstruction as a friendly approach and Skepchick faced an extraordinarily vehement counter-attack by rape apologists for her video.

“You Know What I Meant”: And just because a coffee refusal can also be understood as a sex refusal, doesn’t mean that a coffee acceptance can be understood unambiguously as a sex acceptance. Whatever offer is held out as a code for sex might also be an offer which is welcome in itself. She might just want a coffee. Or, she might want a coffee, and then might want to think some more after that about whether she wants sex. Taking a coffee acceptance as a sex acceptance is a non-consensual escalation of consent from “consent for further company” to “consent for sex”.

In other words, it’s deceptive to describe a request for coffee as just a request for coffee, and it’s deceptive to describe a request for coffee as just a request for sex.

Maybe Means No: The (Unspoken) Second Rule of Consent

Implicit Refusal

I’d like to ask the reader to do a brief mental exercise. (If you’d rather not, just skip to the next paragraph.) I’d like you to remember the last time you found it difficult to give an explicit “no” to somebody in a non-sexual context. Maybe they asked you to do them a favour, or to join them for a drink. Did you speak up and say, outright, “No”? Did you apologise for your “no”? Did you qualify it and say, “Oh, I’m sorry, I can’t make it today“? If you gave an outright “no”, what privileged positions do you occupy in society, and how does your answer differ from the answers of people occupying more marginalised positions?

This form of refusal was analysed in 1999 by Kitzinger and Frith (K&F) in Just Say No? The Use of Conversation Analysis in Developing a Feminist Perspective on Sexual Refusal. Despite the seeming ambiguity in question/refusal acts like, “We were wondering if you wanted to come over Saturday for dinner”, “Well, uhh, it’d be great but we promised Carol already”, they are widely understood by the participants as straightforward refusals.

K&F conclude by saying that, “For men to claim [in a sexual context] that they do not ‘understand’ such refusals to be refusals (because, for example, they do not include the word ‘no’) is to lay claim to an astounding and implausible ignorance of normative conversational patterns.”

It’s worth noting here that this isn’t the case for everyone; for some people, e.g. some autism/Aspergers spectrum people, implicit refusals can be unclear, stressful, overwhelming or invisible. What’s being discussed here isn’t the clarity of a refusal act to an individual, but the conflict between the general social consensuses that complex implicit refusals are invalid or insufficient in a sexual context and valid outside of one.

(If you’re interested in reading more about this paper, you might want to check out this article, which reviews it in more detail: Mythcommunication: It’s Not That They Don’t Understand, They Just Don’t Like The Answer.)

Drunken ‘Consent’

K&F suggest that claims of non-understanding are in fact self-interested justifications for coercive behaviour. I’d like to look at self-interest in another context, that of drunken sex.

If you’ve spent any time having conversations about consent, you’ll probably have encountered the following question:

Is it rape if somebody has sex while drunk?

Now, when men used to ask me this kind of question, the conversation requests I actually used to hear were, “I have sex with drunk people, or can imagine myself doing so; I want you to tell me that I’m not a rapist” and/or “I like the pressure which alcohol allows me to put on people’s consent and I’m seeking social approval for this tactic”.

Such conversations often centre on legal definitions of rape, with people sometimes liking to say that, “It’s a fine line,” or “It’s her word against his”. Now, this may sound surprising, but I don’t care what the law says about rape, except insofar as bad legal definitions of rape hurt survivors and let rapists escape without consequences. Patriarchy has a vested interest in narrowing the definition of rape as far as possible; remember, overwhelmingly, it is men that rape. Where men rape men – and there might be patriarchal self-interest in defending the survivors – this is often within a prison-industrial system which is vastly overpopulated with black men, who aren’t really the darlings of patriarchy. As such, legal definitions formed by patriarchal cultures are inevitably reductive.

One non-legal definition of rape is that it’s an experience which feels to the survivor like a fundamental crossing/violation of boundaries, which happens using some form of coercion/strength/manipulation. Some things that people do can cause that experience. Someone can attempt to rape without causing an experience of rape. Someone can experience something which they later come to understand as rape (this understanding can be very difficult and painful to reach), and that too is rape. Someone can experience rape without the perpetrator explicitly intending to rape, but it’s always the case that the perpetrator knew enough to know that they might have been raping.

This definition allows us to turn our focus to the actions of someone who presses on with sex while knowing that the other person is sufficiently drunk that their consent may be unclear, or that they themselves are sufficiently drunk that they may not notice signals of non-consent (signals which can be implicit, as above).

Asking, “Is this legally rape?” carries an undertone of, “If you say it’s not, I’ll go ahead and do it”, and is a question which should be turned around and asked back as:

Why are you so relaxed – and even enthusiastic – about maybe raping someone?

You don’t get this in other contexts. You don’t get folks saying, “Well, I’m going to do this thing which may or may not kill somebody. It’s probably fine as long as it’s legal.” One of the reasons you don’t get this is that the law cares more about murder than it does about rape (while that does tend to depend on who’s being murdered, the same could be said for rape). Another is that we live in a rape culture, where it is acceptable to put pressure on consent in a variety of approved ways in order to coerce sex.

We can solve this apparent contradiction by clarifying what our questioner is actually worried about. They aren’t worried about raping. They are worried about social consequences of rape. They are worried about being named a rapist. They are okay with “maybe” being a rapist as long as it won’t come back to bite them.

Now we can understand the question fully through recognising that it’s not a question at all. It’s an act of kicking up dust around the whole question of drunken sex, a dust cloud which surrounds rapists as they rape and allows them to escape the social consequences because “it’s her word against mine”, or because, “drunken consent is a very tricky area”. They don’t need to worry about the legal consequences, of course, because most rapists don’t go to jail.

If you care about not raping, because you care about not raping, then the only way to be sure you’re not raping is to be sure you’re not raping. This means not having sex when you’re not sure whether it’s rape or not. This means that if you’re asking the question, “Is it rape if I…?” then you may not know the answer, but you know what you should do. Here’s a radical point of view for you: If you don’t care whether or not you rape, then I don’t care whether or not you’re innocent.

The last part of the question – or rather, the act of throwing up dust – left to address is:

What if both people are drunk? With your logic, doesn’t that mean they’re raping each other?

This one’s often asked with a special flourish, as one might say, “Checkmate!”, but the answer is simple. The perpetrator is the person who violated the other person’s boundaries.

Now it might be that there have been some deeply unfortunate liaisons in which both people have felt violated but gone along with what was happening because they felt less powerful than the other person. Verbal and non-verbal communication can get pretty messed up when drunk. But what usually happens when two people don’t want to have sex is that they don’t have sex. Drunken people who don’t want to have sex with each other successfully avoid having sex with each other all the time. Sure, people mutually regret drunken sex, but regret doesn’t necessarily mean an experience of rape.

It’s more likely that one person had the power to push on regardless of the other person’s implicit or explicit refusals, or that one person felt violated but unable to refuse, and potentially even obliged to feign consent. That might be because one person was more drunk than the other (it could be either: it’s easier to ignore a drunk person’s boundaries, but it’s also harder to set boundaries to drunk people). Perhaps one of them was even unconscious. Or it might be because one person is backed up by more and more powerful systems of domination than the other. What should happen when one person has that power is that they don’t draw on it. What can happen, when they don’t care about raping, or when they’re drunk (and don’t care about raping) is that they use it and push. On “mutual regret”, there is one more possibility; over time, perhaps one partner will realise that their regret is an indication that something was more deeply wrong with what happened, and gradually come to understand that the other person raped them.

We’ll go into systems of domination in more detail later on when we talk about the power spectrum model of consent, and revisit this question more fully.

Before we end this section, and with it this post – there’s more than enough here for two posts, and I’d like the chance to read through feedback to this one before I post the second half – I’d like to state that, yes, I am being very harsh on people asking the “drunken consent” questions. I’m doing that because these questions aren’t asked in isolation. They’re asked as part of a discourse of victim-blaming and rape apologism. Individuals may blunder in and ask them apropos of nothing, not intending to contribute to this discourse, but the net effect is the same as if they’d joined the many rape apologists lined up to minimalise and victim-blame every instance of rape.

These questions can be engaged with in ways respectful to, and supportive of, survivors of rape. I hope this article sets out one way in which that can be done.

I’m also discussing the subject primarily through the lens of men asking the questions, as reflects the heteronormative context of this discourse. When women ask these questions, it can be complicated. Some women may be looking for reassurance that what they experienced was not rape (Answer: It’s rape if you say it is). Others may be beginning to suspect that someone raped them but are unsure about whether they are allowed to claim that experience if they had drunk alcohol (Answer: It’s rape if you say it is).

Politically, I call it rape whenever a woman has sex and feels violated.

– Catharine MacKinnon, “A Rally Against Rape”, from Feminism Unmodified: Discourses on Life and Law

Others may be invested in this subject since they drink before sex because the social groups around them shame them as “sluts” for consenting to sex while sober. The subject of slut-shaming is something we’ll explore in Part Two: “Yes”.

Conclusions from Part One: “No”

“No means no” is an non-negotiable line; no feminist theory allows an undermining of “no means no”

As well as being a bottom-line, “no means no” is also a resistance against assumed-default-consent in women, a feature of patriarchy

Even if you respect a verbal “no”, you’re not really respecting it if you don’t create and nurture opportunities for your sex partners to give a “no” at any time before and during sex

Ambiguous sexual requests can help both parties save face, but they can also be used against women who say “no” – be aware of how this functions, don’t do it yourself, and call it out in simple, clear ways when you observe it – try not to get trapped by the surface logic of the situation

Sexual refusal can be implicit as well as explicit; implicit is actually much more common

In situations involving alcohol, concentrate less on legal definitions of rape and more on how willing you are to maybe rape someone (the answer to this should be “I am not”)

The second part of this article is now available and can be found here: Under Duress: Agency, Power and Consent, Part Two: “Yes”