I'm limiting my discussion to the rape of a woman by a man, because this is my experience. I don't want to get out of the realms of my experience as I don't want to speak untruths.
There has been talk about various feminist theories suggesting that sex inherently is an act of violence, although the contention that Katherine McKinnon stated "All sex is rape" is actually false. I'm not writing as a feminist here, but I wanted to highlight the fact that the physical element of the crime of rape is always present in consensual heterosexual penetrative sex, as rape is the hijacking of the natural act of penetrative sex. This act is turned into a crime by the unwelcome addition of violence or some level of coercion. It's proving that the sex act has crossed that line which is the essential element of the offence.
Some people see rape as an assault or an attack. This clear thinking is easier if the situation involved violence, which can be plainly seen on the victim. It's fortunate, at least in the terms of prosecution, when the situation is so clear cut. The definition of rape used to be against the "will" of the victim, meaning that to prove that they did not consent they really needed to prove that they had put up some kind of fight. Luckily the law was changed with the Sexual Offences Act 2003 and now a victim does not need to prove this, although as I was saying above a decent struggle leads to a clearer-cut case. The problems start when the only thing tipping the balance between bad sex or rape is the proving or disproving of consent.
There are several elements here which make the offence of rape unique and which make it very difficult to assess whether, and to prove that, a crime has actually been committed.
Rape is a serious assault. Other assaults of a similar gravity don't have the same element of consent attached to them. There is no get-out clause for the perpetrator. The question is whether they did the act, and if so, whether they actively intended to do the act, basically the physical and mental elements need to be proved. This isn't enough to prove rape though. Yes the man in question could be found to have had sex with the victim and he could be found to have intended to have sex with the victim. All this means is that two people had sex. This is where rape has to go beyond the requirements for other offences, where it has to be asked whether the victim consented. The crux of the whole thing is that question of consent, putting the burden onto the victim to disprove the defendant's contention that consent was given.
Now I want to talk about "consent", from the point of view of a woman who has been raped. I'm not trying to represent all situations. I was raped in 1995, when it was still permissible to question the victim on their sexual history to discredit them. I actually didn't have a history with the attacker, but I had been sexually active with his girlfriend ("G") on an earlier occasion where we had engaged in sex together with a different man a few months before (a "three in a bed"). She had then asked me if I would sleep with her and her boyfriend (the perpetrator, "P") at the same time. I think even before a court had heard whether I'd answered "yes" or "no" to that proposition they would have heard enough for me to be labelled as a promiscious woman who was likely to have consented.
I have to say I'd not said yes or no to this question, I'd said I'd like to meet him and I'd decide then. I met him and I hated the look of him instantly. I did not fancy him and I did not want to sleep with him. I was shocked by how he looked, he looked like a bit of a wreck actually, like he did too many drugs.
Unfortunately this was on a night of a big party - New Year's Eve - and the type of situation with 19 year-olds where there would be a lot of people coupled off by the end of the night and it was almost expected that a girl would be "up for it". I have no idea as to whether he had been told (by the girlfriend) that I had already said yes, but really it's not good enough to take a third party's word as to consent, so I'm not prepared to let him have that excuse.
There is an adage in the criminal law of assault that "you take your victim as you find them". This means that an intentional blow to the head to a person with a weak skull, which kills them, cannot be defended on the basis of the weak skull. If you intend to cause the harm then you should take the consequence. Why should rape be any different? If your victim is a girl who's drunk and vulnerable and who is less likely to scream "no" and who is more easily intimidated, that shouldn't be the victim's fault. I found myself exactly in that position, the position of being a weak victim because I didn't appear to do enough to stop it, a weak witness to my own fate. In a simple conflict between his version of events and mine I was the weak party.
Two things happened that night. P assaulted me in a bathroom, barging in when I was on my way out and pushing me in and repeatedly removing my clothes, as fast as I was putting them back on again. I wasn't asked whether I wanted sex. It was assumed. He could well have had some steamy sex scene from the movies in his mind whilst this was going on for all I knew. I thought to myself maybe he'd just got the wrong end of the stick and he'd soon realise his mistake when he saw my actions were trying to prevent the sex happening. But I was not being particularly firm in my defence against him. I just tried to be quicker than him, tried to make sure that he never got the clear chance to penetrate me before I'd pulled my clothes back on again. And this did work as someone wanted the toilet, it all got interrupted, and I presumed I'd diffused the situation and in my drunken state thought that he'd realise that he'd got the wrong impression. Crisis over with no conflict?
I was niave to think it would stop there, but niavity of the victim should not be a defence to a crime. People who walk through dark alleyways or the kids who always go into the basement in horror films are still subjected to a crime when they get assaulted or killed.The fact that they were being niave in not knowing the danger isn't a defence. A crime committed is a crime regardless of whether the victim could have avoided it, and in some ways we're getting into the wonderful power of hindsight anyway.
Later the same night I was in a vulnerable position, being drunk and alone with G. I couldn't say whether they'd planned it, I couldn't say what had happened between him and her and what discussions they had. I can't know for sure whether she "lined me up" or whether she was just a different kind of victim in all of this. So before I knew what was going on I was no longer just with her, but he was there too. The thing which puts me in a bad light was that at this point I was engaging in sexual activity with her. I was comfortable with her and we had been there before and it seemed a natural thing for us to do when we were alone together again. I'd made an informed decision to be with her and only her, not him, I wasn't consenting to the three in the bed scenario by being with her, but I'm sure the situation in itself would have given the defence a field day. I wouldn't have had a very good case I'm sure, I'd have had difficulty proving that he'd raped me, but that's not what I'm wanting to achieve here. A conviction wouldn't have made much difference to me, but what I do want to do is to share my thoughts about what really happens between the perpetrator and the victim.
I was on the back foot. I was already involved with his girlfriend and I was in a vulnerable position, easy for him to take control. That being precisely what he did. I can't remember now whether I noticed him coming into the room and taking his clothes off, I just can't remember how he ended up on the bed between us joining in, but I was penetrated before I had a chance to say yes or no, even if I had been asked. At this point, maybe he could have argued that I'd not expressly told him off for his advances in the bathroom so he'd assumed that I would have consented to sex, but consent isn't a flag which you hoist above the house for the night, it's something which needs to be ascertained every step of the way and which can be taken away as quickly as it can be given, so again this assumption shouldn't be a good enough defence.
Again not being totally sure as to what had been agreed between them I can't say whether she just went away shortly after because her role was done, but I assumed at this point that when the girlfriend left the room suddenly that she'd got jealous or upset at seeing him with me and had stormed off. I was then on my own and already involved in sex, which I didn't want and to which I hadn't consented. I at this point asked him to stop. Several times. I tried to get away up the bed. But he didn't stop and I was sort of wedged up against the headboard after my earlier efforts at escape, with no room for maneouvre whilst he was steering from the inside. I was pinned, also with his weight on top of me and caged at either side by his arms.
I remembered G's words when she excitedly asked me to sleep with her and her boyfriend, "you'll like him, he's really big! The biggest I've ever been with!". At this point I really wished he wasn't because I just could not get away once he was deep inside! I felt desolate that what she had considered to be a winning argument had turned out to be my undoing.
So what options are left to the woman in this situation? Do you kick him somehow? Scream at him? rip his eyes out? If you're that sort of brave woman who gives these things a go then maybe. But really if you're that brave sort of person you'd have already put up that fight by this stage, and maybe you'd have never ended up here in the first place? Alternatively you could have lost and you could be a worse position right now. It's hard to imagine what worse position there is when you're being raped, but you kind of know that anything's possible because only a few hours before you wouldn't ever have imagined this happening to you either. You lose all ability to think that things will turn out ok. Lines have been crossed, lines which you thought were always clearly marked out. You have no idea what else could happen and you get to the point where you don't want to find out. When you look back after the event then you know how much danger you were in, but you don't know at the time - this is the same for all victims of any violent or aggressive act. It's not unreasonable for a victim to do nothing in their defence. How can you ever be sure you're going to do the right thing?
Now here's the dirty little secret, and the point which I wanted desperately to get round to, so I hope that I make my point well. Here goes. As far as my experience is concerned I did consent... in the end! What happened to me was not a complete sexual act which was against my consent all the way through until its bitter end. This would have been too harrowing an experience to let myself go through (I suppose I'm talking about 20 minutes here). Being tensed up and desperate for flight would have made it excrutiating. It would have been more painful than it already was. Plus the more I could do to help him get his satisfaction the quicker it would be over. So I disengaged my brain and I gave in. I gave up. And I'm making a huge leap here, an assumption, when I suggest that there is a point where every victim accepts their fate. A point where the compulsion is no longer to avoid the situation happening but to try to mitigate its effects as much as possible. The issue becomes survival and protection. You even start helping him. I helped him find the places he wanted and to do the things he wanted. I acquiesced because I no longer had any other choice.
The fact that I consented in this way, the fact that I used my own hands to guide his penis into place to make it feel more comfortable, the fact that I arched and helped him do what he wanted - all these things added up to me finding it impossible for many years to accept that I really was raped. I hope you can appreciate where doubt can creep in? You've only got your own version of events. It's hard to accept that someone would want to violate you so you try to find other explanations to make the experience less horrific. You were perhaps partially to blame, the old "leading on" scenario etc, although I've tried to answer how this should not be a defence already in this piece. It's not black and white and I know from my own experience how destructive it is living in the grey place in between.
Maybe you're all judging me now? I'd genuinely be interested to know in your comments. What would you have said if you were in the jury?
Maybe a victim who'd studied the law or knew how the judges applied the tests used to assess whether the defendant had a reasonable defence would know exactly how the issue of consent works in the law? But the victim will know exactly that moment when her spirit was broken and when she consented to what was happening, and she may start to doubt, as I have done. Some will survive this and remain steadfast, others will drift into the realms of "bad sex" and won't ever come back.
No other offence can be dismissed like this.
No other types of victims will be able to talk themselves out of being a victim.
You're not going to suddenly say that you just offered your purse to the mugger, or that you invited the burglars in. But doubt sets in to the rape victim's mind and only the strongest ones will survive this long enough to pursue justice.
I'm not sure that the definitions need changing. I think huge improvements have been made with the removal of the defence of "a genuine though unreasonably mistaken belief as to consent" by the 2003 Act and the requirements now for the defendant to prove that there was consent. If interpreted correctly and vigorously then the law in this area should work.
The problem to my mind is that young girls need to be aware precisely of their rights and what they should be able to expect from the men who proposition them. They should be asked clearly whether they consent and they should be aware that they can retract that consent at any time. Ultimately though they need to be reassured that if they finally consent to the rape, finally accept that it is happening and play along, that they are not consenting to sex - the distinction needs to be made clear.
Comments welcome...I want to make sure I've understood all the issues here, so if you have any objections to what I've written or anything further to add in support then please let me know.
Acknowledgments:http://www.rapecrisis.org.uk/law/definitionofrape.html
