Do we really still not get that “no means no”?

600px-Only_Yes_Means_Yes_Campaign-300x300Understanding “no means no” is an important step in eliminating rape culture. It’s a simple enough concept. If someone says that do not want to have sex, they do not want to have sex. You should stop trying to have sex with a person who says they do not want to have sex. Easy, right? Tell that to the judge.

No, really. Tell that to this Swedish judge. From The New York Daily News:

A rape suspect has been freed in Sweden, after he convinced a court that a women’s screams of protest were part of a kinky game and even though she had said she did not want sex.

The 27-year-old told police that his female companion enjoyed rough sex. The woman screamed so much that she lost her voice.

The man told investigating officers that “I recognised the way she said no as part of the sex; I recognised it from other girls,” The Local reported, citing Sweden’s Metro newspaper.

The pair met through a mutual acquaintance at a restaurant and went back to his apartment.

The couple kissed, but the woman said she made it clear she did not want sex.

“I expressed very clearly that I didn’t want to, so there was no way he could misunderstand me,” she told police.

And the judge’s rationale for acquittal? “If the thought had not occurred to him, that she did not want to have sex with him, then he didn’t have any intention to do what he did.” Now, as Tracy Clark-Flory notes over at Salon, “an Amnesty International report on sexual assault in Nordic countries put it, ‘To convict a person of a crime it has to be proven that the person was acting with intent; i.e., that he intended to commit a crime or realised that the act actually constituted a crime.'” According to Swedish law, the judge is correct. Morally and ethically? This is some sick shit and the law needs to catch up.

Ending rape culture will require moving to a conversation about enthusiastic consent, about toxic masculinity, about sexual boundaries, about power and domination, about sexual aggression, about kink. There’s a whole advanced class we should have graduated to by now–one that would shift us from rape culture to consent culture.

But we can’t even get “no means no” right.

MychalMychal Denzel Smith is a Knobler Fellow at The Nation Institute.

Mychal Denzel Smith is a Knobler Fellow at The Nation Institute and contributing writer for The Nation Magazine, as well as columnist for Feministing.com and Salon. As a freelance writer, social commentator, and mental health advocate his work has been seen online in outlets such as The New York Times, The Atlantic, Salon, Al Jazeera English, Gawker, The Guardian, Ebony.com, Huffington Post, The Root, and The Grio.

Mychal Denzel Smith is a Knobler Fellow at The Nation Institute and contributing writer for The Nation Magazine, as well as columnist for Feministing.com and Salon.

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Join the Conversation

  • http://feministing.com/members/daireen/ Amanda M.

    OK, look. I’m kinky. I like rough sex. But you know what? My partner knows to check in every so often to make sure everything is still hunky-dory. If we know that “no” is going to be on the table, then we chose another word to mean no, like “stop” or “hold up a sec” or hell, “ONOMATOPOEIA” to really quash the mood.

    Hey Swedish dude? Kink: You’re Doing It Wrong™.

  • http://feministing.com/members/ermalex/ Robert

    No judge, it wasn’t theft. I could tell they wanted me to take their car by the way they kept shouting “Help, that a**hole’s stealing my car!” You literally can’t get convicted of anything by this logic!?

    This ruling makes every rape ever legal in Sweden so long as you say “Well, I didn’t know I couldn’t”. Sickening.

  • http://feministing.com/members/andejoh/ John

    In the United States you have to proven criminal intent to convict also. I suspect that’s the case with most if not all of the developed world and I’m not prepared to say that it’s wrong, but in the U.S. there is also the negligent standard of criminal intent. If somebody should reasonably have known that their actions have a strong possibility of hurting someone (ie they’re reckless), they could be convicted under this standard. If they didn’t agree on a safe word, I would think that would satisfy this standard. If Sweden doesn’t have this standard, they should.