Excellent article. I only wanted to share a story from my own experience. I'm only 23 at the moment and not much the wiser. However, as a young 19 year old and jumping into the "hook up" culture as they call it, I did experience a horrific night.
I was with a guy I had met a few times and who was friends with all my friends. One beer led to another and soon we were at his place with some friendly play. But things got complicated when I didn't want to proceed and a gray area happened. I had to ask and push repeatedly for him to get his unprotected penis out of me and when he finally did I just got upset yelled and left. I went to the doctor the next day for an std test as I was shocked and confused.

This falls under that gray area. Firstly, we weren't even naked. I was wear a skirt and undies! We were only making out. I felt that what he did was wrong and I felt really violated. Afterall we were just having sex. I just happened to be wearing accessible clothing that night and I must have been to drunk to have noticed that he had his fly un-done.

Long story, short.. I went to emerge days later after having symptoms, I told a nurse what happened and begged her for an std test as i had NEVER had unprotected sex before. She asked said I had been assulted and got me a doctor. I told the doctor the same story... the male doctor. He told me that "it sounds like a misunderstanding" and "had I not have drank so much and been with the man under under non-plutonic circumstances then this would not have happened" He said I would have no reason to press charges as it was not rape.. saying this while the nurse attempted to usher in a police man to talk to me.

I always thought it was my fault until about a year ago.

However I'm still a happy sexually active gal and nothing like that has ever happened since.

Oh, I forgot to add, that the entire reason I wanted to post that story was because things like this actually do happen! Even my friends didn't believe me. But they do happen. In the end, do the grey areas just continue to be ignore in favor of the male?

Oh, I forgot to add, that the entire reason I wanted to post that story was because things like this actually do happen! Even my friends didn't believe me. But they do happen. In the end, do the grey areas just continue to be ignore in favor of the male?

The fact that you were raped does not make you any different, or broken. The fact that nobody else recognized it as rape means that they've bought into myths, not that it wasn't a violation, or that they're irredeemable monsters.

-- ACS

frog, there's a special place in hell both for the asshole who raped you and for the "doctor" who invalidated your autonomy.

I try, I really really try not to pin the blame on just one sex for these things... but stories like this sometimes make me really hate the fact that I'm straight. They do make me glad I don't date anymore.

There is no such thing as a gray area where rape is concerned. If you did not enthusiastically consent to having someone's penis inserted into your body, it's rape. End of story.

I've been with my boyfriend for awhile now, and you know what he does when we have sex? He asks me if I want it before penetration. Every time, without fail.

If you never said yes, it was rape. Some things really are black and white.

Frog, don't doubt yourself. You were raped, the man who did that to you is a rapist. You were right to seek help, the doctor is a tool of the patriarchy.

Anyone know medical ethics well? Can this doctor face peer discipline for trying to discourage a sexual assault survivor from making a complaint?

There is no such thing as a gray area where rape is concerned. If you did not enthusiastically consent to having someone's penis inserted into your body, it's rape. End of story.

-- ACS

ACS, I've never heard of a law anywhere that didn't involve consent. Lack of consent equals rape. Perhaps you know something that could enlighten me?

And even aside from the law, how on earth could it be anything other than rape if she didn't consent? Where's the gray area here? 'Cause I'm sure as hell not seeing it.

I do think that getting severely drunk promotes "why did I do that?" sex. A good friend of mine had sex with a male friend one night when they were both very drunk and he came to her the next day absolutely terrified that he had forced himself on her--he couldn't remember getting affirmative consent. Luckily she remembered giving it, but they were both shaken by the experience. Neither of them was aware enough to be responsible about protection, and neither would have hooked up with the other under more sober circumstances.

That, however, is TOTALLY different from rape. When one person does not affirmatively consent (e.g. by clear verbal consent and/or enthusiastic participation) to sex, the other person has committed a rape. Period. There's nothing gray about it, no matter how much either person has had to drink.

This notion of "grey" rape is really kind of frightening to me. It does exactly the opposite of what we ought to be doing- it casts doubt on women who've been attacked by making it seem like there's this wide gulf of "maybe rape, but maybe not so much" when rape should really be a "yes or no" situation. If you don't consent, then it's rape. Period. End of story.

Your story emphatically points to this, frog queen. That these people didn't believe you and tried to make you think it was your fault? Disgusting.

You didn't consent, and in fact, said "no." Regardless of anyone's feeling about enthusiastic consent, if you said "no" how can anyone suggest that it was anything but rape?

So, yeah... I find the whole term "grey rape" really... I don't know... wrong? Wrong.

Further proof that we really need to focus on making people aware of exactly what rape is, and that it's not just some crazy guy jumping you in the bushes. Situations like frog queen describes are every bit a rape as the (largely mythical) guy in the bushes.

The legal definition of rape varies from state to state, believe it or not, but consent is part of every law to my knowledge.

It's the burden of proof that creates a legal grey area--the prosecutor (and by virtue of her testimony, the rape vistim) has the burden to prove that she did not consent. That doesn't mean she was not raped, it just means it's really tough to prove beyond a reasonable doubt, since you're basically trying to prove a negative.

ACS, I've never heard of a law anywhere that didn't involve consent. Lack of consent equals rape. Perhaps you know something that could enlighten me?

And even aside from the law, how on earth could it be anything other than rape if she didn't consent? Where's the gray area here? 'Cause I'm sure as hell not seeing it.

The difference between the law and reality isn't in the "consent", it's in the "enthusiastic." Almost every state has wiggle room within which coercion and blackmail are legal (or at least difficult to prosecute); in Idaho, for instance, you can threaten illegal but non-violent acts, because the law omits penalties for that sort of coercion -- something that I, and any sane human being, would call rape.

There is also the difficulty, in the criminal prosecution rape, of having to prove both an act and two mental states: mens rea on the part of the perpetrator, the sexual act itself, and the denial of consent on the part of the victim. The third element is a part of the crime that is present as a necessary condition in no other criminal offense. This makes the prosecution of rape in the Anglo-American justice system extremely structurally difficult, patriarchy aside*.

Even colloquially, there are situations that are grey, by which I mean, "morally difficult." As an example: same-sex couple, together for eight years returns home after a night of drinking, utterly blind drunk. Upon waking up the next morning, they will find that (a) they had sex, and (b) they have no memory of having given affirmative consent. Did a rape occur? If so, who raped whom? Was what happened even wrong?? Of course, the 20/20 hindsight solution is "this is a dark grey area; avoid it", but when deciding -- in retrospect -- whether someone has been sexually violated ... it's difficult.

-- ACS

* The fact that the development of Western legal theory largely ignored figuring out how to prosecute the most common forms of rape? Yeah, patriarchy did that.

legallyblondeez, I guess that's why the doctor was saying that there was no reason to press charges. Quite frankly I was more worried about contracting something than pressing charges.
Even if I had done so, what would have been done to this person? And I don't even want to wonder about the devestation I would have faced from friends, family and peers in my small town after doing so.
It sucks that this shit happens. But what do date rapist face really? especailly when its hear say to the police?

legallyblondeez, I guess that's why the doctor was saying that there was no reason to press charges. Quite frankly I was more worried about contracting something than pressing charges.

-- ACS

For me, the real problem with this "gray rape" argument is the way it re-inscribes the myth that women will "cry rape" after a sexual encounter they regret. Statistically, this hardly ever, ever happens -- and it's no surprise why. Women don't GAIN anything by accusing a man of rape. Often, they lose a lot.

"Hook-up culture" or no, there are going to be times, especially when you're younger and still figuring out your own boundaries and communication skills, and especially when alcohol makes both of those things harder, when, regardless of gender, you have sex and feel regret afterward. THIS IS NOT RAPE. Never has been, never will be, and I've never seen anyone first-person claim that it is. Only folks accusing other folks of claiming it is, in order to draw attention from the real stories of rape that no one wants to deal with (and that our legal system, as has been discussed, can't deal with), like frog queen's.

frog queen,

I think that it's terrible women like you have to face doctors adn law enforcement officers who don't believe you. I don't mean to discourage anyone from reporting rape by pointing out that it's difficult to send someone to prison for it though. If we don't report it, it will only be more difficult to agitate for changes in the legal system that take this stuff into account.* That doctor had no business making the decision that your rape wasn't worth reporting, if that's what he did. All rapes are worth reporting, and worth getting appropriate care and counseling, whether we can convict the perpetrator or not.

* I'm actually not arguing against the right to a fair trial here, before anyone gets up in arms. I'm just thinking a rape victim's credibility shouldn't be undermined by irrelevant crap (yay rape shield laws!) and that we could define consent as an affirmative act, rather than a lack of protest. Not to mention recognizing that economic and other non-violent forms of coercion vitiate meaningful consent every bit as much as threats of violence.

There's a difference between not consenting to sex, and not having the capacity to consent to sex. I'm critical of ascribing the term "rape" to the latter situation, where the person did consent but was drunk and hence deemed lacking capacity. That seems to be where Jaclyn Friedman is coming from. Am I misunderstanding her? And if I'm not, isn't the logical extension that we should criminalize drunk people having sex? Isn't that absurd?

JacklynF, thanks for that. That's what I was trying to illustrate with my original story about my friend, but you put it much more clearly.

As an example: same-sex couple, together for eight years returns home after a night of drinking, utterly blind drunk. Upon waking up the next morning, they will find that (a) they had sex, and (b) they have no memory of having given affirmative consent. Did a rape occur? If so, who raped whom? Was what happened even wrong?? Of course, the 20/20 hindsight solution is "this is a dark grey area; avoid it", but when deciding -- in retrospect -- whether someone has been sexually violated ... it's difficult.

With the exception that we were dead tired, not drunk, and we're an opposite sex couple, this actually happened to me.

My husband and I had sex when we were way too tired and should have been asleep, but, well... At some point I woke up and realized we were having sex -- or at least heavy foreplay -- again. But it wasn't like "I woke up and he was fully awake on top of me" -- it's more like I drifted awake to discover that we were both masturbating each other, and he was as half-asleep as I was.

We have actually established ahead of time an agreement to consent to sleep sex -- we are both allowed to try to wake the other one up by initiating foreplay, although I don't think it would ever go as far as actual intercourse before someone woke up -- so it wasn't nonconsensual. But if we hadn't pre-established such an agreement, what would this have meant? We both were *asleep*. Not even drunk. So who would have been to blame, from a legal perspective?

Of course, I don't actually think this falls in a gray area. If two sleeping people initiate sex with each other, I think you can say they consented up until the point where someone wakes up and says "no". The problem is when one person is conscious and the other isn't, not when both are asleep.

There's a difference between not consenting to sex, and not having the capacity to consent to sex. I'm critical of ascribing the term "rape" to the latter situation, where the person did consent but was drunk and hence deemed lacking capacity.

There is a distinction. Usually, that distinction is between first and second degree rape, not between first degree rape and allowable conduct.

That seems to be where Jaclyn Friedman is coming from. Am I misunderstanding her? And if I'm not, isn't the logical extension that we should criminalize drunk people having sex? Isn't that absurd?

The issue is: how do you criminalize having sex with someone who lacks the capacity to consent without criminalizing behavior that, clearly, should not be criminal? Leaving it up to prosecutorial discretion is a bad public policy idea -- but I don't think it's ridiculous at all.

-- ACS

Of course, I don't actually think this falls in a gray area. If two sleeping people initiate sex with each other, I think you can say they consented up until the point where someone wakes up and says "no". The problem is when one person is conscious and the other isn't, not when both are a sleep.

The problem with the idea of implicit consent is that allowing it causes unjust outcomes (Stranger A rapes Stranger B in his sleep) and that disallowing it causes unjust outcomes (Couple A+B initiates sex while unconscious.) Also, there's no obvious middle ground where that line can be drawn.

-- ACS

There is also the difficulty, in the criminal prosecution rape, of having to prove both an act and two mental states: mens rea on the part of the perpetrator, the sexual act itself, and the denial of consent on the part of the victim. The third element is a part of the crime that is present as a necessary condition in no other criminal offense. This makes the prosecution of rape in the Anglo-American justice system extremely structurally difficult, patriarchy aside*.

The third part is a condition in no other criminal offense because it's assumed when you press charges. If someone kidnaps me, it's assumed that I did not give consent when I press charges for kidnapping. If someone assaults me, it's assumed that I did not consent when I press charges.

Rape is the only situation where the victim's consent routinely seems to come under question, and that doesn't make any sense to me.

jane: I think that there are two situations that often get conflated when talking about drinking and sex. One situation is two people having a few too many drinks, and deciding to have sex. They wake up in the morning, and one or both of them think "Wow, that was a bad idea." That's not rape.

The other situation is where the woman (and it's pretty much always a woman) is past the point of consenting. It's not a case of waking up and thinking "Oh, that was stupid" it's a case of being so drunk you can't consent to anything. When a person is passing out, or can't make complete sentences, or is falling down, etc, s/he's in no condition to consent to anything.

That's how I usually see the distinction, anyway.

Just to be clear: I'm saying it's rape if one person has the capacity to give/receive consent, and the other doesn't. (This is also true, I believe, if one person has the capacity, says "no," and the other person is drunk and ignores and/or "doesn't hear" that "no." I don't know what the law says here, but as far as I'm concerned, morally, it's rape.) If neither party has capacity, that is a pretty murky area. Of course, determining "capacity" is murky, too.

The truth is, though, the number of women who are raped and don't say "no" is much smaller than most discussions of this would lead you to believe. Again -- this conversation about "what if she doesn't actually say no" is often a distraction from the underlying issues.

rape encompasses more than just the penis entering into the body. please remember that, regardless of the laws, rape includes many acts, including the insertion of a foreign object or other forced activities.

Just want to urge folks to go comment at TPMCafe...it seems they could use your knowledge over there!

The third part is a condition in no other criminal offense because it's assumed when you press charges. If someone kidnaps me, it's assumed that I did not give consent when I press charges for kidnapping. If someone assaults me, it's assumed that I did not consent when I press charges.

Rape is the only situation where the victim's consent routinely seems to come under question, and that doesn't make any sense to me.

The victim's consent routinely comes into question because sex is the only potential criminal act to which people regularly consent. That is to say: the idea that someone simply donated 800 dollars and an iPod to a man in a ski mask is utterly laughable. The idea that someone consented to sex with the captain of the football team is not laughable. Despite the low false reporting rate for rape, however, that reporting rate is not probative evidence in any particular rape case.

Add to this the fact that the evidence of rape is frequently identical to evidence of sex, and you run into evidentiary problems quite distinct from biased juries, incompetent cops, sleazy defense attorneys, and unwilling prosecutors.

I'm not downplaying the effects of patriarchal power structures -- they may have a greater effect on the prosecution of rape than the structural problems with prosecuting it -- but those things also exist, and will invariably cause victim-blaming defenses to occur, even in the absence of biased juries who (effectively) vote for nullification of rape laws when they vote not guilty.

-- ACS

Good point about consent only being an element in rape, and also that pressing charges is essentially a denial of consent.

Consent is a defense to certain other crimes--like if I press charges against someone who steals my car he can argue that I let him borrow it and introduce evidence that I consented for him to take it. I wish rape worked like that. The only explanation I can think of (and I think it's a poor one) for the difference is that sex is something we normally think of as consensual, whereas other crimes are not. But since I let friends borrow my car all the time, the explanation holds no water when it comes to crimes perpetrated by acquaintances--like the overwhelmingly common acquaintance or "date" rape.

There are grey areas of capacity to consent, but let's not confuse that with the existence of a grey area of when consent is necessary.

Jaclyn - what were you saying about not liking the term "gray" in reference to rape? Your thoughts (and those of roymac and ACS) on the subject certainly are not black and white. I'm not trying to be facetious. Just making a point about the semantics.

I sympathize with your story, having experienced something like it. But I respectfully disagree with your reasoning because...well...put crudely, I like to believe that if I want to get really wasted, and then get laid, I can do so without being victim of a criminal act.

As far as the hookup issue goes, my thoughts are that Sessions Stepp is a fossil. A well-intended fossil, but a fossil nonetheless. And hooking up has nothing to do with gray rape, except insofar as they both commonly involve alcohol. So if alcohol is the common denominator, I agree with the approach of increasing awareness/education, although I'm skepitical of the efficacy of any such awareness or educational program when it comes to binge drinking. But it's not like I have a better answer.

Jane-

I'm just really unsure where you get from me, or anyone else here, the suggestion that you can't get wasted and have sex without it being a criminal act. Have at it. Just so long as you're not too wasted to hear "no" and stop if whomever you're sleeping with wants you to.

Jane-

I'm just really unsure where you get from me, or anyone else here, the suggestion that you can't get wasted and have sex without it being a criminal act. Have at it. I certainly have, though I have to say I prefer sex (at least relatively) sober, since I can feel more. But that's neither here nor there so long as you're not too wasted to hear "no" and stop if whomever you're sleeping with wants you to.

Hi Jane,

Your response to my story sounds like you think I'm an ammature drinking.. hehe

Thats funny. Getting wasted and then getting laid is one thing, but I didn't really have time to decide whether I wanted to get laid.

Consent is a defense to certain other crimes--like if I press charges against someone who steals my car he can argue that I let him borrow it and introduce evidence that I consented for him to take it. I wish rape worked like that. The only explanation I can think of (and I think it's a poor one) for the difference is that sex is something we normally think of as consensual, whereas other crimes are not. But since I let friends borrow my car all the time, the explanation holds no water when it comes to crimes perpetrated by acquaintances--like the overwhelmingly common acquaintance or "date" rape.

The fact that the same word is used in two situations with such substantial differences makes the distinction rather unclear.

-- ACS

ACS--

That is a really good point about non-consent being an element of the crime as opposed to consent being a defense in most other crimes.

To the other posters: sadly, in many states, lack of consent isn't enough. Lack of consent + force is needed. Also, states disagree over how much force is necessary. In some states, it is only the forces necessary to accomplish penetration. In others, it is force above and beyond what is needed to accomplish penetration. (In the second group of states, the perp. can still be convicted of something--like battery or sexual assault, but not rape.)

A professor told me about a law review article once where a woman scholar argued that the "non-consent" element of rape existed because at the time rape first became a crime under the common law, fornication (non-adulterous sex outside of marriage) and adultery were also crimes. So if Jane and John are found together, Jane really did have an incentive to lie. Several hundred years ago.

When it comes to rape, people forget that all human beings lie for approximately two reasons. We have a motive for to lie, or we are pathological liars. This includes bar fights, contract disputes involving parol (oral) contract terms, people who pay of drug debts with property and then report it stolen, etc. The thing is that people with motives or who are pathological liars are usually caught out.

Good point about consent only being an element in rape, and also that pressing charges is essentially a denial of consent.

-- ACS

* Okay, maybe I'm second-guessing myself, but that might be inaccurate -- you may need to subdivide false reports into "false reports against real people", "false reports after actual sex", "false reports against nonexistent people," "reports labeled as false because of asshole cops," and "false reports not labeled as false for lack of evidence." Some of these would result in convictions and some would not.

Just to chime in on the legal definition issue: we went over a bunch of different rape statutes in my crim law class (I had such a cool crim professor -- very out-of-the-box thinker, lived with his partner (he never called her his "wife") and their kids, and really thoughtful about gender issues), and I'm fairly certain we went over a fair number where, definitely, non-consent was an ELEMENT of the crime, but I am pretty sure there were/are some states whose codes require(d), in addition to non-consent, physical harm/evidence of a "fight." I could be remembering wrong (or maybe things have changed in the 4 years since I took the class), but I'm pretty sure there are some modern laws with archaic provisions like that. Fucked Up.

Andrea, I have to question that logic. Okay, even if 2% of all rapes reported turn out to be false accusations, why does that mean that it makes sense to assume going into a trial that the victim is making a false accusation?

There are also false reports of car theft, abuse, assault, robbery, etc. In none of those cases do we assume that the victim gave consent and is lying, so why should we do so with rape?

When applied to rape, lack of consent is an element of the crime, and is required to be proven by the prosecution beyond a reasonable doubt.

Well, that's sort of the point of my criticism, isn't it? Why should the prosecution be required to prove lack of consent in the case of rape? In the preponderance of cases- as with any crime- the act of pressing charges suggests lack of consent. Yes, there will be false reports- there are false reports with any crime.

The fact that the same word is used in two situations with such substantial differences makes the distinction rather unclear.

The only difference, to me, seems to be in how the courts treat "consent." The concept of consent is pretty much the same in either case, though.

Andrea, I have to question that logic. Okay, even if 2% of all rapes reported turn out to be false accusations, why does that mean that it makes sense to assume going into a trial that the victim is making a false accusation?

Because the courts are required to presume the defendant innocent. A presumption of innocence can create something that feels like an assumption that the victim is lying; however, the courts don't deal with what is true, they deal with what can be proved.

Well, that's sort of the point of my criticism, isn't it? Why should the prosecution be required to prove lack of consent in the case of rape? In the preponderance of cases- as with any crime- the act of pressing charges suggests lack of consent. Yes, there will be false reports- there are false reports with any crime.

-- ACS

I'm quite sure that the "Oh, if only" response from victims goes back long before there was a hookup culture. It was probably worse 20 years ago because the judgment level was even harsher.

Minor point re burden of proof and weight of testimony.

These are two separate issues. Saying that the prosecution has to prove rape occurred, and the defendant is presumed innocent until proven guilty means something very, very different from assuming the victim is lying. One is an operation of law. The other is an intrusion into the jury's sole and rightful domain.

It is a matter of LEGAL FACT that the defendant is "presumed" innocent. What this means, very simply, is that the prosecution bears the burden of production and the burden of persuasion that the defendant committed the crime. This means the prosecution must 1) present evidence and 2) persuasively demonstrate how this evidence proves the defendant committed the crime. The burden of proof in criminal cases is higher than in civil cases, but this is a question of degree rather than having a whole different set of requirements. A jury has to think it's more likely than not that someone did something of which they're accused in civil court. A jury has to be absolutely convinced that someone did something of which they're accused in criminal court. But the type of evidence, and the type of argument, is no different. The jury just has to be MORE persuaded in the criminal context.

An important component of an objective jury of peers is that they have no particular feelings one way or another before the trial begins. Ideally they know nothing about the case until it commences. Ideally they are not predisposed to believe or disbelieve ANYONE. They base their ultimate decision on 1) what they believe the weight of the evidence to show and 2) what credibility they attribute to the witnesses and documents. Let's take a very simplistic example (this isn't realistic -- it would never actually happen, but here's the scenario for purposes of simplicity): A man is accused of rape. There is a trial, and the only evidence presented on either side is the victim/accuser's testimony that she was raped, and that it was the defendant who raped her. First thing: this is sufficient evidence to convict the defendant of rape, because he did not present any counter-evidence whatsoever. Thus, there is substantial evidence on the prosecution side, and zero evidence on the defense side. A jury could reasonably find that the defendant committed the crime. This is a LEGAL standard and has nothing to do with credibility. Legally speaking, an appellate judge will not inquire into a jury's determination of a witness' credibility. Thus, there is no requirement that a victim be DISbelieved from the outset.

The factual part is the jury's domain, and the law doesn't get to tell the jury how much to believe the witness. If the jury finds her highly credible, then her testimony, combined with the lack of counter-evidence, will be legally sufficient to convict the defendant. If the jury finds that she is not credible, the defendant will be acquitted (again, because this is the only evidence; it would be possible for the jury to find the victim not terribly credible, but still find that the defendant almost definitely committed the rape). But when the jury goes into the deliberation room, the law tells it NOTHING about how much credibility to give to the victim's testimony. There's no standard out there that says "rape victim testimony must be viewed with suspicion because the prosecution bears the burden of proof." No one tells the jury how much to believe her. The jury decides that on its own.

TLF's exposition on burdens is exactly why I don't see there being a huge disadvantage to falsely accused persons in rape cases if we shifted the issue of consent from an element to a defense. The credibility determinations would be exactly the same, just that the burden of production--not proof--would be shifted from asking the victim to prove a negative (lack of consent)to asking the defendant to introduce evidence showing that the activity was consensual. Honestly, in cases where there is no physical or other corroborating evidence I can't see it making any difference whatsoever. But it would bring rape in line with other crimes where consent is a defense, which would remove the implicit message that a woman is not raped unless she said "no" at just the right volume, time, using the right words, etc.

Because the courts are required to presume the defendant innocent. A presumption of innocence can create something that feels like an assumption that the victim is lying; however, the courts don't deal with what is true, they deal with what can be proved.

That doesn't answer my question at all. Of course the accused is innocent until proven guilty. That holds true in all charges. Again, though, nobody is expected to prove that they did not consent to letting someone kidnap them, hit them, take their car, etc. And all of those things can have false charges as well. The question is: Why should the prosecution, from the outset have to prove non-consent? If the prosecution doesn't have to prove non-consent in a kidnapping charge, why should it have to prove non-consent in a rape charge?

Ah!

I know how to word it better:

In most criminal cases, a crime is assumed to have occured, but the accused is assumed innocent until proven guilty.

In rape cases, it's not just that the accused is assumed innocent until proven guilty- the assumption is that a crime hasn't even occured until it can be proven. In other words, the victim is assumed to be lying until she can prove she was raped, not just until she can prove that the accused raped her.

The act of pressing charges doesn't retroactively prove that consent did not exist at the time of the crime, which is what the prosecution needs to prove.

Why should it have to retroactively prove anything is the point? Claiming that you were kidnapped doesn't retroactively prove that you didn't consent to go along with someone for however long. Pressing charges of assault doesn't retroactively prove that you didn't consent to fisticuffs. The act of pressing charges strongly suggests that whatever you're charging was not consentual. If the defense thinks that it was, then they can bring that up, and use that at as a defense. Just as someone accused of kidnapping can use evidence that you consented to go with them as a defense against a kidnapping charge. If it turns out that you've filed a false report, then you can be punished for that.

Question: If someone's innocent until proven guilty, how on earth do you convict a rapist?

I truly fail to see how it's possible 90% of the time to have definitive proof. It's your word against theirs, pretty much.

TLF's exposition on burdens is exactly why I don't see there being a huge disadvantage to falsely accused persons in rape cases if we shifted the issue of consent from an element to a defense. The credibility determinations would be exactly the same, just that the burden of production--not proof--would be shifted from asking the victim to prove a negative (lack of consent)to asking the defendant to introduce evidence showing that the activity was consensual.

If we lived in a society (and we should) where exchanges of consent were always understood to be explicit, then the law would make sense. Until we actually do, though, the change in policy reverses the presumption of innocence for rape -- which, in a lot of cases, I would support, but I wouldn't support a policy change that I wouldn't entrust to Chief Prosecutor Cletus in Biloxi.

-- ACS

I guess I'm assuming a lot of confidence in a jury's ability to assess credibility and follow the rule that where there is doubt, the defendant should not be convicted. Perhaps I should not be so naive, especially considering that my excperience as an advocate has thus far shown the exact opposite in the civil context.

I am looking for a way to eliminate the bias in favor of assuming consent in cases of acquaintance rape. Maybe that's not the way, but I still think it's odd that consent is an element of rape but a defense to other crimes. The more I think about it, it has to be that many other crimes leave physical and circumstantial evidence that negate consent (why did you hot-wire the car if it was given to you?) whereas sex and rape often look identical from the POV of a doctor, forensic examiner, and the people who saw you leave the party together.

I'm glad that we seem to agree that as a non-legal matter, consent should be explicit.

Fenriswolf- this is why 1% of rapes are reported, tried, and convicted.

Because there is a big difference between what you know and what you can prove in a court of law.

Also, many people believe the myths about what rape is. They blame themselves, for drinking,for not fighting back, for not saying no, for wearing that skirt, and write it off as 'bad sex'.

Myths like 'grey rape' serve to keep rape victims divided-'real' victims who were attacked with weapons by strangers in alleys, etc.-from 'not victims' who blame themselves (and face blame from friends and family and community, doctors among others) who feel that they should have said no, shouldn't have been drinking, shouldn't have been flirting beforehand, shouldn't have worn that dress...and write it off as 'bad sex.'

And there is a lot to lose by reporting it and coming forward as a victim of rape- ostracism, maybe divorce in the case of marital rape (and all teh accompanying trauma and drama, embarassment, being put on trial by the community (not to mention what the defense lawyer will do when you're on the stand).

Sorry if this is covering ground already covered in other comments.

I am looking for a way to eliminate the bias in favor of assuming consent in cases of acquaintance rape. Maybe that's not the way, but I still think it's odd that consent is an element of rape but a defense to other crimes. The more I think about it, it has to be that many other crimes leave physical and circumstantial evidence that negate consent (why did you hot-wire the car if it was given to you?) whereas sex and rape often look identical from the POV of a doctor, forensic examiner, and the people who saw you leave the party together.

I've put a lot of thinking into this, and one of the biggest problems I've seen is that moving terribly far from the Model Penal Code definition introduces problems with criminalizing behavior that shouldn't be criminalized or convicting people that shouldn't be convicted.

However, rape laws as they stand come, in many jurisdictions, dangerously close to being totally useless. I think the argument can be made that the situation is bad enough that changing things at random at least replaces intractable old problems with interesting new ones*.

-- ACS

* On the other hand, I'm somewhat conservative about monkeying with broad criminal categories like rape, simply because criminal law involves authorizing the state to commit acts of coercion that we would never authorize for any particular person, and, historically, the record of states in using their criminal codes for good rather than evil is ... mixed at best.

In what percentage of your sexual encounters would you be able to provide evidence of your partner's consent? Especially with long-term partners? In that case, rape is the court's starting position for any sexual encounter, which contravenes a presumption of innocence.

Well, again, strictly speaking, there is no starting position. Legallyblondeez makes a good point with her comparison to other forms of assault. I hadn't really thought about it, but she's absolutely right. I think probably (maybe?) the closest analogy would be kidnapping. If the prosecution introduces evidence sufficient to demonstrate the defendant confined the victim and transported him (I can't recall the precise definition of kidnapping, so I'm being very imprecise here), the burden of production shifts to the defendant to prove a defense/excuse/etc. Consent could be one ("he willingly got into the car. He told me 'I'd love to go to Virginia with you!'").

Keep in mind, what legallyblondeez is proposing would in actuality not have a lot of practical effect. It would still be a he said/she said (it always is). But it does remove the connotation, if you will, of the victim having to prove a negative. Which would hopefully have the effect of reducing the occurrence of victim-blaming. The only REAL difference -- and this is not a big one -- is that in virtually every case the defendant would be all but required to testify on his own behalf. This is kind of de facto what happens now anyway. The difference would be that where the defendant refuses to testify (for whatever reason), consent would no longer be an issue. That is to say, the defense of consent is not proven, and therefore if the act of rape (however it's defined in the statute) has been demonstrated, there will be a conviction.

I'm probably doing a terrible job of explaining this. Allergies and the recent time change (damn you, Congress!) have conspired to make me crazy sleepy and thus unable to think very well. But I really like your idea, lb.

Fenriswolf- this is why 1% of rapes are reported, tried, and convicted.

I don't know. I wouldn't report it more because of attitudes than techinicalities, if you know what I mean?

I meant my Q more in the purely theoretical sense (because I have no faith in legalities being followed in practice - technically you're not allowed to say "but she's a slut!" and defense lawyers always do), HOW are you supposed to convict someone?

By the letter of the law, it seems impossible. Except in violent cases, obviously. :\

I will preface this by saying rape is a crime overwhelmingly committed by men against women over power issues. Date rape is a real problem and false claims of rape are very rare. Further sober consenting male having sex with a passed out, non-responsive female is rape. That being said. I have a problem with assuming rape when both parties are too drunk to remember clearly. If we call it rape absent explicit , sober consent, why hasn’t the male been raped as well. Reverse the situation. Drunk guy, sober woman have sex. Has the male been raped because he did not consent? Should the woman now go to prison? (Or are we going to assume that all males always consent to sex?). I am not trying to in any way diminish the real crime of rape and date rape, nut point out that establishing a clear rule is exceedingly problematic .

Legallyblondeez makes a good point with her comparison to other forms of assault. I hadn't really thought about it, but she's absolutely right. I think probably (maybe?) the closest analogy would be kidnapping. If the prosecution introduces evidence sufficient to demonstrate the defendant confined the victim and transported him (I can't recall the precise definition of kidnapping, so I'm being very imprecise here), the burden of production shifts to the defendant to prove a defense/excuse/etc. Consent could be one ("he willingly got into the car. He told me 'I'd love to go to Virginia with you!'").

Take, for instance, armed robbery. If the victim consents to give his money to the armed robber, is it a legal act? No. It's an absurdity.

Except in very limited circumstances (boxing, UFC), simple assault is always illegal, even when consented to by both parties. Add or strip consent from the acts; it doesn't matter.

Rape differs in that consenting to the underlying act (sexual intercourse) without force or the threat of force is not illegal or absurd in itself. Strip the victim's lack of consent out of the crime and you've just criminalized sex.

Kidnapping is a relatively close comparison. Note, however, that in MPC jurisdictions, the victim's consent is folded into the definition of "unlawfully" transporting someone; consent is a portion of an element, not an affirmative defense. Additionally, MPC jursidictions (or at least Washington) has the bullshit definition of "without consent" that plague so many rape laws; that is, force or threat of force must be used.

Setting the mens rea to negligence, or clarifying it to negligence would accomplish many of the same things without taking a burden off the prosecutor that should remain on the prosecutor.

The only REAL difference -- and this is not a big one -- is that in virtually every case the defendant would be all but required to testify on his own behalf. This is kind of de facto what happens now anyway. The difference would be that where the defendant refuses to testify (for whatever reason), consent would no longer be an issue. That is to say, the defense of consent is not proven, and therefore if the act of rape (however it's defined in the statute) has been demonstrated, there will be a conviction.

-- ACS

I will preface this by saying rape is a crime overwhelmingly committed by men against women over power issues. Date rape is a real problem and false claims of rape are very rare. Further sober consenting male having sex with a passed out, non-responsive female is rape. That being said. I have a problem with assuming rape when both parties are too drunk to remember clearly. If we call it rape absent explicit , sober consent, why hasn’t the male been raped as well. Reverse the situation. Drunk guy, sober woman have sex. Has the male been raped because he did not consent? Should the woman now go to prison? (Or are we going to assume that all males always consent to sex?). I am not trying to in any way diminish the real crime of rape and date rape, nut point out that establishing a clear rule is exceedingly problematic .

-- ACS

If neither party was capable of consenting to sex, how did sex occur?

Being physically able to have intercourse does not mean that one has met whatever legal standard for consent applies in one's jurisdiction. For example, one could consider the hypothetical case of two 11-year-olds attempting to have intercourse.

I think Legallyblondeez hit the nail on the head in her earlier posts. The problem lies more with what constitutes consent. We cannot expect people to sit down and explicitly say they want to have sex every time. Many couples rely on body language to express their desire for sex. As for the ability to give consent, Jane raises a good point that it's absurd to ask for everyone to a) have their dates take breathalizer tests or b) not have sex while drunk. When both parties are drunk, and their judgment is blurred, how are they to know when "proper" consent is given, or that their partners are not inebriated the point of being incapable of giving consent? How can we be certain the accuser isn't lying? The Duke Rape Hoax has certainly shown that woman are capable of lying about rape, and that there's no shortage of people who will believe them.

ACS mentioned the 2% figure and I just have to mention that this figure IS NOT based on a scientifically valid, peer reviewed study. In fact, no serious study has been done to determine the true extent of false accusations of rape. That 2% figure comes from a book titled "Against Our Will" by Brownmiller(I believe), and was based of the observations of a police captain in one precinct in one city. However, DNA tests for forcible rape cases processed by the FBI show that 20% of those tests prove the primary suspect innocent. While this is certainly not reliable data for determining the true extent of false allegations of rape, it is the most valid marker we have.

The Law Fairy made an interesting post earlier in which a hypothetical rape scenario was outlined. Law Fairy, I'd like argue with you on this point because I've foolishly been led to believe that hear-say evidence is not enough to convict a person in criminal court. Proof has to be more than a person's word, otherwise our jails would be even more crowded. Furthermore, the burden of proof requirement was designed to offset jury bias, was it not? So that, in the case of he-said-she-said cases, guilt could not be so arbitrarily determined. I hope you'd care to elaborate and clear up this issue of proof.

Yeah, there's nothing me and my girlfriends enjoy more than just chillin' and making up rape allegations.

RoymacIII said:
In most criminal cases, a crime is assumed to have occured, but the accused is assumed innocent until proven guilty.

In rape cases, it's not just that the accused is assumed innocent until proven guilty- the assumption is that a crime hasn't even occured until it can be proven. In other words, the victim is assumed to be lying until she can prove she was raped, not just until she can prove that the accused raped her."

But even when a real live
Man spells it out for you, you don't get it, do you Ivy?

Your nom de plume is certainly apt; you bring me out in a rash.

The problem being that in other forms of assault, the addition of consent either (a) creates an absurdity or (b) doesn't matter a whit.

ACS, this isn't quite correct. Otherwise BDSM would be legally impossible. The armed robbery example is similar -- what's going on in the minds of the people involved makes the difference between a play/movie in which an armed robbery occurs, and an actual armed robbery.

Ivy, you're correct that hearsay evidence is generally inadmissible. However, the hearsay rule is one of those fun rules that has about 100 exceptions, all of which law students get to memorize over the course of a few weeks. Ahhh, memories!

The most relevant exception here is that the out-of-court declaration has independent legal effect. That is to say, if the words themselves constitute a legal act, the statement is admissible. This is why (for instance) oral contracts can be proven in court. Thus, the act of saying "yes, I want to have sex with you" is, in the context of rape, a legal ACT (it is the legally relevant act of granting consent) and therefore the statement is admissible.

As to whether or not hearsay evidence can PROVE rape/consent, again, this completely depends on the jury. Legally speaking, it is sufficient evidence to prove/disprove rape. It is up to the jury how much weight to give it, and how credible the witness offering the statement into evidence is.

Proof quite often is simply a person's word. Eyewitnesses to crimes offer some of the most valuable evidence we have in criminal cases. Relatively few criminal cases turn on things like documentary evidence (documentary evidence is MUCH more important in civil cases).

As for the jury bias issue, perhaps I'm not quite clear on what you mean. Voir dire examinations are ideally meant to purge jury bias. But the bottom line is that it's impossible to have an unbiased jury. Until we live in an unbiased society, it will never happen. The burden of proof has nothing to do with whether or not we think a jury will be biased; the burden of proof still operates in bench trials (where there is no jury, only a judge). The burden of proof is simply a legal determination as to who ought to be bound to do the footwork to prove some material fact. In GENERAL this falls to the party making a claim/putting forth an assertion ("She stole my car." "He breached a contract with me." "She told my boss I stole from her." "He raped me." Etc.). But the burden of proof can shift even within a given case depending on the specific facts of the case and depending on the policy interests underlying any given legal question.

ACS mentioned the 2% figure and I just have to mention that this figure IS NOT based on a scientifically valid, peer reviewed study. In fact, no serious study has been done to determine the true extent of false accusations of rape. That 2% figure comes from a book titled "Against Our Will" by Brownmiller(I believe), and was based of the observations of a police captain in one precinct in one city. However, DNA tests for forcible rape cases processed by the FBI show that 20% of those tests prove the primary suspect innocent. While this is certainly not reliable data for determining the true extent of false allegations of rape, it is the most valid marker we have.

The methodological problems with the study that Ivy cites is, of course, that the DNA tests are requested by the defense. Notably, only 20% of cases where the defense, on appeal, requests a DNA test result in an acquittal.

-- ACS

I have a problem with assuming rape when both parties are too drunk to remember clearly.

I'm not sure I understand why this is the sort of thing that keeps getting brought up.

Nobody that I've seen here is suggesting that it's rape just because someone has been drinking. In fact, it was said, rather specifically, that it's not the drinking part that is a problem. If a man and a woman get wasted and want to have sex, power to them. I don't know that anyone here is saying we should assume rape just because a woman has been drinking.

What I will say is that I think we really need to re-evaluate how we handle sex and drinking. Men and women need to realize that their ability to make informed choices is diminshed by drinking. That's a fact. Rape, again, is not waking up and thinking "Wow, that was stupid" it's:
Having sex with someone who is past the point of being able to consent. We can discuss when that point is, for sure, but it's not helpful to the discussion to treat "drinking too much/having a few drinks/a little bit drunk" as though it's exactly the same as "drunk beyond the point of making consent." We can start with the easy cases, and work our way down- it should hope that it's obvious to all of us that a woman who has passed out or is passing out is beyond the realm of making informed consent. And yet, there are men who will still take the stance that "Well, I'm going for it- she isn't pushing me off and she hasn't said 'no,' so she's consenting." Is there an area where we may find that it's hard to tell if there is informed consent?
Sure.
Ideally, we ought to recognize those situations, and we should be teaching men and women to avoid situations like that. If you're not sure if the other person is giving informed, enthusiastic consent, you should err on the side of caution.

Friedman indicated that 70% or so of rape cases involve drinking, and that it's the rapist who is more likely to have been drinking than the victim.

We cannot expect people to sit down and explicitly say they want to have sex every time. Many couples rely on body language to express their desire for sex.

Oookay. I'm doing my best not to take this as a strawman... has someone here suggested that we have to have an explicit contract between partners before they can have sex? Enthusiastic consent doesn't have to involve sitting down and saying "Do you want to have sex?" When a woman drags me to her bed while kissing me furiously, and then frantically takes her clothes off, I take that's enthusiasm.
If, however, I get a condom, and she says "no," then we'd stop.

it's absurd to ask for everyone to a) have their dates take breathalizer tests or b) not have sex while drunk.

Again, nobody is suggesting that, and I feel like that's been addressed tons of times already.

How can we be certain the accuser isn't lying?

I think that's the wrong question. How do we know that any given accuser of a crime isn't lying? The police investigate for evidence that there's been a crime and the DA decides whether they have a case. Why should we assume that women are going around lying about rape? Especially in a society that punishes the victims of rape, what do women get out of false accusations?

The Duke Rape Hoax has certainly shown that woman are capable of lying about rape, and that there's no shortage of people who will believe them.

Oh, for gods sake... One high profile case does not establish a pattern of women lying about rape. I could point to false murder accusations, or false kidnapping accusations, or false robbery accusations... the fact that people sometimes make false accusations of criminal activities is nothing new or unique to rape, so why are we treating it like it's something that only happens with rape? Why are we holding women to some weird standard where we assume they're all liars when they say they've been raped? That doesn't make any sense.

Further, if you want to use the Duke case as some kind of evidence about false accusations, it should be noted that none of them were convicted of a crime. So, by your own standard, justice won out, right? She made a false accusation, and none of the accused went to jail.

See how that works?

In what percentage of your sexual encounters would you be able to provide evidence of your partner's consent? Especially with long-term partners?

One hundred percent.

Seriously.

Maybe I just have a consent fetish, but even with long-term partners I'll ask if they want to have sex, ask if they like what I'm doing, tell them things I think will excite them, ask what they want.

Who are these freaks who say nothing at all the entire time?

We cannot expect people to sit down and explicitly say they want to have sex every time. Many couples rely on body language to express their desire for sex.

This, I think, is the Antioch strawman again. There are more choices than "sit down and explicitly say" (why must they sit down?) and "rely on body language" - or rather, these two categories encompass more than their representative examples.

It's a problem when we lump everything from enthusiastic participation to passive nonresistance as "body language" (with the concurrent assumption that body language is ambiguous, and we have to give an accused rapist the benefit of the doubt, so if the victim's not actively fighting then it's consent in "body language"), and dismiss verbal consent as being stilted contract negotiation rather than a whispered "Fuck me now."

I don't see why we assume that you can't expect people to explicity say they want sex every time. As a matter of fact, I think that would be a wonderful thing to encourage. Teach it in sex ed classes (the real ones, obviously the abstinence only ones won't). It's a wonderful way to ensure consent, and also to show that you care about what your partner wants.

I've said it before, but I'll say it again. Every time we have sex my boyfriend asks me if I want to. It never interrupts the flow, it gives me a chance to think for a second if I really want to right now, and it shows that he cares about what I want in the situation. I love it.

Law Fairy,

There are a couple of things in your post I need to challenge. The beginning of your post mentions the validity of words as proof and then point to verbal contracts as an example. I understand where you're coming from, except that we're talking about violent crime, which is always handled by criminal courts. The admission of verbal testimony, on part of the accuser, as proof only applies to civil court. You seem to create an analogy between a verbal contract for, say, buying a car and consenting to sex. First off, I'm not sure how many women would appreciate being viewed as creating a contract every time they consent to sex. It makes women, and men, sound like prostitutes. Second, rape is a violent crime. It is an assault. It has no business being addressed under the auspice of civil law. Criminal courts is where rape properly belongs and, under criminal law, the sole testimony of the accuser is not enough to convict. The accuser is biased.

Which brings me to the issue of eyewitnesses. Eyewitnesses are supposed to be objective observers supplying facts for the case. I know, it's a lofty ideal, but that's the premise it's founded upon (I think). In cases in which a violent crime has occurred, such as rape, a witness's testimony is admissible because they confirm/support the accuser's claim. Here, words are used as proof, just not the accuser's words. This is why documentary evidence is so important in civil cases, as you mentioned. The parties involved are biased and have a vested interest in a particular outcome. Any additional testimony will typically come from friends or family, which are biased as well. While there might be unbiased witnesses, it's not a violent crime and people are likely to ignore and forget what happened. Therefore, additional evidence is needed to obtain a conviction in civil court.

As for my jury comments, I was referring to the reason's why proof standards apply to criminal cases. I was thinking back to the environment of the early colonies, where justice was deliberated in smaller towns. There might be some members of the jury who have a grudge against the accused and want to see them suffer. Ergo, they will readily use the accuser's words to reach a guilty verdict. Of course, racism and sexism can do the same thing. However, I've thought of a better reason why the burden of proof should apply: the Salem witch trials. Here we had many people hanged and the only "evidence" submitted was the testimony of the accuser. Here, the only evidence offered to the jurors was hearsay, and their own biases and prejudices lead to the convictions of so many (presumably) innocent victims. In order to protect the rights of the accused, it's important to have higher evidentiary standards in criminal cases, to protect the accused, as much as possible, from bias. This is why rape shield laws are in place.

ACS,

I've just finished browsing the FBI's UCR tables on forcible rape and I didn't find your 8% figure anywhere. I examined both the clearance rates/percentages and arrest rates. The only figure which came close to matching an "8" was the arrest rate for forcible rape (8.6). However, this is not a percentage. Would you please post a link to the FBI showing where exactly this figure comes from. It would we appreciated.

As for the acquittal comment, that certainly puts things in perspective. That means that 20% of the time the person found guilty of rape is actually innocent. At any rate, my initial comment about your post still applies. To date, there has been no serious study to determine the true extent of false accusations of rape. All we can do is draw inferences from crime report data.

Here are the links to the tables I examined. I'd recommend looking at table 30 for the arrests and table 28 for clearance.

http://www.fbi.gov/ucr/05cius/arrests/index.html
http://www.fbi.gov/ucr/05cius/data/table_28.html

Ivy, the things you say all make sense.

That's not the point. If you want to change the evidence code, call your local representative. I warn you, though, you'll have a tough time changing it. These rules have been in place for a very long time.

The distinctions you bring up make sense (I don't agree with them a hundred percent, but they make sense). But the law still says what it says. Hearsay evidence is not always inadmissible, in civil or criminal cases. The evidence code (at least in federal court and in California state court) applies to both civil and criminal cases. There are a few examples, specifically outlined in that code, where the rule is different for civil and criminal cases. The legal act exception I discussed is not one of those places.

As for the evidentiary standards, I disagree that they "should" be different. They aren't and there's no reason to say they should be when we ALREADY have a higher burden of proof. Be careful not to conflate these two ideas. They're related but not the same. The burden of proof is HOW MUCH you need to convince the jury that your evidence is dispositive (in rare cases a dearth of evidence may be grounds to overturn a conviction. I don't believe it happens much but it's been a few years since I took crim pro). Evidentiary standards, on the other hand, work as a kind of "screening process" to ensure that evidence only gets to a jury/trier of fact if it meets some threshold of reliability. This threshold doesn't change depending on what the case is about. If we think people are likely to tell the truth about issue X, then theoretically it makes no difference whether their testimony is offered in a civil or criminal case. We tell the jury they have to be more convinced in a criminal case, and that's how we account for the potential loss of freedom at stake, which we perceive (rightly so, in my mind) to be more harmful than the loss of money.

Ivy, you said:

" We cannot expect people to sit down and explicitly say they want to have sex every time"

Why not? That's standard practice in BDSM, and check-ups during, and discussion after. Why can't you do that in a vanilla encounter?

In fact, not only should you do that, but you should have an open and frank discussion about what kind of sex you want to have.

It really isn't that hard, and it's actually very stimulating

Law Fairy,

I have no desire to change the evidence codes. I believe that evidence standards for criminal cases should be higher because the consequences entail a loss of liberty. My whole argument has been that the word of the accuser, or hearsay, is not sufficient, and should not be, evidence to gain a conviction. It's certainly reason to launch an investigation but that's it. Additional evidence must be admitted.

Jenna,

I agree with some of what you have to say. Couples should sit down and discuss their likes and dislikes about sex. This enhances the sexual experiences of both parties. However, your argument that we should explicitly ask for consent every time is, in my opinion, ridiculous. Sex would become incredibly boring if both partners had to begin every sexual encounter with the phrase, "You wanna have sex?" Experienced couples frequently rely on "code" messages and body language to signal their desire to have sex. Furthermore, in the event of misinterpreted signals, there's always the option of saying "no." As for it being stimulating, that's more a matter of personal preference.

You can't really draw a comparison between BDSM and vanilla sex. BDSM has many reasons, aside from potential rape, to have such check-ups. You have to make sure circulation and breathing are ok. You have safety words which the sub can use to signal their desire to end the session. This is because of the nature of these sessions. Painful pleas are common in BDSM sessions and special considerations and precautions must be taken. Frequently the sub is gagged so special question sessions are necessary to ensure you're not overstepping personal boundaries. If you'd like your partner to use such consent measures in your personal relationships, so be it; but it's all personal preference.

However, your argument that we should explicitly ask for consent every time is, in my opinion, ridiculous. Sex would become incredibly boring if both partners had to begin every sexual encounter with the phrase, "You wanna have sex?"

Let's clear this up in the most direct way possible:

"I want you to fuck me" counts as explicit, enthusiastic consent. You're creating a straw man here- explicit, enthusiastic consent doesn't mean stopping foreplay to have a conversation or using the exact same phrase every time. Explicit, enthusiastic consent- even if it's always verbal- can take many forms.

Experienced couples frequently rely on "code" messages and body language to signal their desire to have sex.

Which is great, until you start considering inexperienced couples, or miscommunicated/misunderstood/ignored body language. I'm not saying that I think you always need verbal consent- but I don't think that the claim that sex would be boring if you always obtained verbal consent holds any water.

Ivy, you write "You can't really draw a comparison between BDSM and vanilla sex. BDSM has many reasons, aside from potential rape, to have such check-ups."

So does vanilla sex. Sorry, but it is quite easy to incorporate explicit consent into a vanilla relationship. It is also the most respectful and caring way to approach a relationship.

I'm not sure why people are so very resistant to this concept.

I have no desire to change the evidence codes.

Okay.

I believe that evidence standards for criminal cases should be higher because the consequences entail a loss of liberty. My whole argument has been that the word of the accuser, or hearsay, is not sufficient, and should not be, evidence to gain a conviction. It's certainly reason to launch an investigation but that's it. Additional evidence must be admitted.

... I can't quite figure out if you're simply contradicting yourself here, or accusing me of getting the law wrong. If it's the former, well. You're contradicting yourself. Which, I hope you understand, is not a great way to make an argument.

If it's the latter, you are more than welcome to invest three or more years of your life and hundreds of thousands of dollars in direct and opportunity costs to bring yourself up to competency and prove me wrong :)

I have to say, I just... feel sad for people who think direct communication ruins or hinders sex. I can only guess that you are having very boring, repressed sex if you can't imagine all the ways in which direct communication can make sex hotter. Haven't you ever heard of talking dirty? Or, here's an idea: refuse to continue unless your partner describes exactly what ze wants you to do next. And what about just asking for what you want to happen next in a hot whisper in your partner's ear?

Are these ideas really so far out? Don't you care if your partner is having fun or not? And if so, don't you make sure that's happening through some form of communication, ongoing throughout the sexual encounter?

Law Fairy,

Look! I cannot explain myself any more clearly or concisely. The accuser's testimony is not sufficient evidence to gain a conviction in a criminal case. Period.

And, yes, I'm accusing you of getting the law wrong. I'll talk with my friends who have law degrees and discover if I'm wrong.

If you are having trouble understanding what I'm saying, then perhaps you should examine your own thought processes and see where you're making a decoding mistake.

"I'm not sure why people are so very resistant to this concept."-Jenna

People are not resistant, it's a matter of what constitutes consent and personal preference. As other posters have pointed out, even saying, "Fuck me", or talking dirty are ways of expressing consent. So are certain eye looks within experienced relationships. For some reason, most posters on this blog think people who argue with them on this point don't recognize this. So how does this fit into the topic of "gray rape?"

What happens is drunk people lose their inhibitions and begin sending signals, or misinterpreting them, and this can lead to a rape. So, in essence, if both parties are too drunk to give consent, and they have sex, then both parties are guilty of taking advantage of each other. They have raped each other. This is where the confusion sets in. Suddenly, the adversarial model goes flying out the window.

OK, Ivy. One more time. NO ONE here is saying that if two people get drunk enough that neither of them can give reliable consent, and then they have sex, that equals rape. NO ONE. Period. Enough.

Law Fairy,

I just called up my friend at it seems you're right. Some states have a one-witness rule, so a conviction is possible based on the accuser's testimony alone.

However, I'd argue that it's pretty shaky evidence and that's probably why the vast majority of rape cases end in a non-guilty verdict. It'd be just as easy for the accused to say the plaintiff is lying and being vindictive. With a person's civil rights on the line, is it any wonder only 6% of rape cases result in convictions?

What happens is drunk people lose their inhibitions and begin sending signals, or misinterpreting them, and this can lead to a rape. So, in essence, if both parties are too drunk to give consent, and they have sex, then both parties are guilty of taking advantage of each other. They have raped each other. This is where the confusion sets in. Suddenly, the adversarial model goes flying out the window.

-- ACS

* The FBI's false-reporting numbers are in-house. I can scan them in and show them to you, if you like? Alternatively, you can call the FBI at 304-625-4995 to get them. If you're interested in why these numbers are higher than they actually should be, you can read this, which goes into the methodology of the UCR, the subcategories of "unfounded reports", and the difficulties police departments have with properly unfounding crimes in general and rape cases in particular.

Ivy, no need to get huffy.

You didn't make it clear that you were disagreeing with me about my interpretation of the law. As a matter of evidentiary sufficiency, you're wrong. But by all means ask your lawyer friends. As a matter of practical effect, juries often disbelieve accusers (unfairly). But don't confuse the two. They are different concepts.

Ivy, right. That was more or less the point I was making, however imperfectly.

Why do you say it's shaky evidence?

"OK, Ivy. One more time. NO ONE here is saying that if two people get drunk enough that neither of them can give reliable consent, and then they have sex, that equals rape. NO ONE. Period. Enough."-JaclynF

Then what is "gray rape"?

"Ivy, no need to get huffy.

You didn't make it clear that you were disagreeing with me about my interpretation of the law."-The Law Fairy

No offense, but what else could I have been arguing about? If I get huffy, I apologize. With the way I've been treated on this blog, for simply having a different opinion, can you blame me?

ACS,

I'd love to see those figures. Why are they not posted on the FBI's website?

Then what is "gray rape"?

The WHOLE argument that Jessica is making and many of us are seconding is that there IS NO GRAY RAPE.

Actually, I'm lying and making my position look less viable than it actually is. In 1996, only 7.4% of forcible rapes were found to be unfounded.

In 2005, there were 92,619 forcible rapes reported in the United States. 5,311 of those were found to be unfounded, or 5.7%. Click the link in my last post for an explanation of why even those numbers are higher than they ought to be -- "false report", in the sense you're using, is a relatively uncommon subcategory of "unfounded report."

-- ACS

Then what is "gray rape"?

You mean the thing that was called a MYTH up at the top?

The thing that a bunch of us have been explaining is a poor concept all along?

That grey rape?

"Grey Rape" is the term that has been coined by some people to describe situations where the victim blames herself for the attack because she was "too drunk to prevent the rape" or because she's been made to feel like it was somehow her fault that she was raped.

It's spelled out pretty damned clearly in the article: "grey rape" is that place where young women go when someone they probably know lays siege to their most private parts and everyone assumes it was at least partly their fault.

"The WHOLE argument that Jessica is making and many of us are seconding is that there IS NO GRAY RAPE."-JaclynF

I get that, but what are people calling "gray rape"? Are we talking passed out drunk or very inebriated or what?

I ask for clarification because I've heard arguments which classify ANY drunk sex as date rape. Here, in Texas, a man commits date rape if he has sex with a drunk woman. However, for some reason, the converse is not considered date rape.

i think that when one questions the existence of a penis privilege (as ivy did in the inherited-wealth thread), one should mind the anatomical actuality, as mentioned many times on this thread, that a man who is so drunk he can't get it up is MUCH less likely to have penis-to-vagina sex without his consent than a woman is likely to be vaginally penetrated by a penis without HER consent.
which is not to say that just because a man has an erection that he wants to have intercourse. but still, mind it.

and all this bickery about two drunk people having sex, so who's the perpetrator who's the victim etc etc etc?
if two people have sex, two people had sex. if a person is raped, she did not have sex. she was raped.

With the way I've been treated on this blog, for simply having a different opinion, can you blame me?

I'm not saying that everything that's been said to you on this blog is entirely fair. But at the same time, you do need to be aware of your approach. Most of us here aren't bothered by disagreement -- but you do sometimes come off as unduly dismissive of feminist ideas. Some of us might jump a bit at first when a new person starts throwing around ideas that sound like MRA bullshit... this is because there are lots of legitimate trolls on sites like this who only come in to inflame and provoke, not to engage in a dialogue. Sometimes it's hard at first to weed out genuine disagreement from trolling/plain old immaturity and sexism. So to the extent you've been treated unfairly here, you have to understand that's because as feminists we get called lots of nasty names, a LOT of the time (in real and virtual life) and the sorts of things you say in some of your comments come very close to things we've heard from others with very very misogynist ideas.

That said, we all get worked up from time to time. These are big deal issues. I know I've certainly flown off the handle more than once. We're all entitled to blow off steam every now and then.

Particularly when we're dealing with issues of rape... I think that this is something that it's very difficult for men to understand. Men are raised in a different culture than women. When we hear stories about drunk girls getting raped, it resonates because every single one of us has seen it happen, whether to us or to a friend or family member. Many men look at this situation and immediately think "you mean we can't use social lubricant because drinking = rape?" and react on that basis. That isn't what we're saying, but the real message gets lost in translation because, frankly, a lot of men lack empathy and aren't willing to even try to exercise it in this situation.

Here's how a lot of women see it: sex is great and fun and awesome. There's nothing inherently bad about having sex when you've been drinking. If you want to have sex and it doesn't happen, that's a bummer but life goes on. If you don't want to have sex and it does happen, for the person who was raped, life stops and irreversibly changes, forever and ever and ever. One of my best friends suffers from PTSD because of a so-called "gray rape." In many ways, it has ruined her life. There is, quite simply, NO FUCKING WAY that the "bummer" of not getting laid compares, ever ever ever ever EVER, to the suffering she's going through. Yes, women like sex and often want it, even when drunk. But if you don't really REALLY know the woman you're with, and you aren't really REALLY convinced that she is actually and truly consenting, then don't have sex with her. This isn't rocket science. If getting locked away is so much of a possibility that you're worried that this "gray area" contains it, the answer is really really simple: just say no.

The way we see it, there is a simple and obvious solution to this. Men can be more careful. It is doable, it is respectful, and it doesn't ruin any lives. If there is even a QUESTION, then you don't do it, and the conversation is over. There really doesn't need to be so much hand-wringing over the specifics of precisely WHERE the line is drawn. For the purposes of any halfway decent guy, it's drawn at any hint of non-consent. I think a lot of us really just don't understand why this problem is any more complicated than that.

Put differently, all people need personal autonomy and the right to control their own body. We DON'T need sex, tonight, right now, with the hot drunk person. There's nothing at all troubling or problematic about erring on the side of caution to protect people's autonomy.

Just once I'd like to see a discussion about sex, consent and rape that doesn't degenerate into (a) talking about the minutiae of what is legally prosecutable, rather than what's morally outrageous; or (b) whether the case of two tipsy people having consensual sex is considered rape under the law. Are these really the only parts of the problem worth talking about?

The way we see it, there is a simple and obvious solution to this. Men can be more careful. It is doable, it is respectful, and it doesn't ruin any lives. If there is even a QUESTION, then you don't do it, and the conversation is over. There really doesn't need to be so much hand-wringing over the specifics of precisely WHERE the line is drawn. For the purposes of any halfway decent guy, it's drawn at any hint of non-consent. I think a lot of us really just don't understand why this problem is any more complicated than that.

LF, I swear, it's like we're reading each other's minds today, because that's exactly how I think about it.

Well said.

Roymac, I find that our minds often operate on the same frequency. One might even call it a "great" frequency ;)

Indeed.
And far be it for me to argue with that.

The way we see it, there is a simple and obvious solution to this. Men can be more careful. It is doable, it is respectful, and it doesn't ruin any lives. If there is even a QUESTION, then you don't do it, and the conversation is over. There really doesn't need to be so much hand-wringing over the specifics of precisely WHERE the line is drawn. For the purposes of any halfway decent guy, it's drawn at any hint of non-consent. I think a lot of us really just don't understand why this problem is any more complicated than that.

I'm a technocrat at heart, and actually enjoy working through the complicated solutions to intractable problems, but in terms of what is morally, rather than legally correct, you're absolutely right.

-- ACS

Law Fairy,

The reason so many object to this issue and debate it so heavily is because there is a lot of confusion about what is meant by "gray rape". Most men would agree that having sex with a woman who's passed out is rape. They wouldn't see any gray in the matter. However, there have been many young men who have been falsely accused of rape and been convicted under these situations. Like I said before, there's a law on the books here in Texas which explicitly makes drunk sex with a woman date rape, yet the converse is not true. There are qualitative differences between being passed-out drunk and very drunk; and men are being convicted for having sex with very drunk women. There seems so be little consistency in the way these standards are being applied.

Some have made the argument that men cannot be raped by women the same way (stellaelizabeth). Yet everyone has heard the story of a drunk guy waking up to a girl he'd never have sex with if he were sober. He was raped. While stellaelizabeth makes a good point about anatomy, this is where the blurry line begins. Some say if you can't remember giving consent then you were incapable of giving consent and were raped. Others are saying you have to be passed-out drunk before you can be raped. With such ambiguous stances, is it any wonder there is so much resistance on this matter?

Even if we constantly seek the permission of partners for sex, a man is raping a girl if she cannot remember giving consent. Yet, at the time, she explicitly stated her desire for intercourse.

These matters have to be qualified and operationally defined. To leave such an nebulous standard on the matter in unjust. Both parties must have the same mental picture when this topic is raised.

By the way, Law Fairy, I appreciate you willingness to engage in discourse on this topic. It is unfortunate that so many members of this blog are so prejudiced.

If that's the way Texas law works, it assumes a deplorable lack of agency on the part of drunk--but not incapacitated--women. I wonder what the definition of "drunk" is, but I will look that up on my own as Texas law isn't really the topic at hand.

I just hopped back in to agree with the proposition The Law Fairy set out and that roymac, Andreas, and probably innumerable other people here agree with as well: regardless of the legal intricacies, if you think what you're doing might possibly in any universe be construed as lacking in consent, DON'T DO IT. Not because it's illegal, but because respect for your partner's sexual autonomy is way more important than getting laid *right now*.

Incidentally, my husband and I use one or more phrases in the vein of "do you want ___" "does this feel good" and "are you ready" pretty much every time we touch each other in a sexual way. It never ruins anything, and when he asks it reminds me of two very big reasons I wanted to marry him in the first place--respect and caring.

Ivy, in fairness, everyone is prejudiced, you and I included. Again, this is a subject that resonates with women in a very different way than it resonates with most men, and it is important to remember this.

I'm having a little bit of trouble seeing what your point is, so maybe you can help me. As for the Texas law, I'm quite simply not familiar with it -- I'm only licensed in California, and I'm not a criminal lawyer. However, I just pulled up California's rape statute and it is gender-neutral (though, interestingly, there are two different statutes, depending upon whether the rapist is the spouse of the victim. I think this may be because it's counted as rape if you lead the person to believe you are his/her spouse and you are not). Drunk sex isn't necessarily rape in California, although if someone is "unable" to "resist" because of intoxication or anesthetization, and the perpetrator knew or should have known, it's rape. The case law, with which I am not familiar, would have to parse out "unable" and "resist." They might include plain old drunk sex, but I imagine it's a finer line than that.

You seem to take issue with the idea that rapists may be punished for having sex with someone who is "very drunk." Why? I can "get" there could be arguments about whether or not it's actually consent, etc. But what is inherently BAD about drawing a bright line rule that says, say, "BAC over X means it's rape." We have a similar bright line rule for drunk driving, even though plenty of people are perfectly safe drivers over the legal BAC limit. Just like most people don't take a breathalyzer test before getting behind the wheel, this doesn't mean taking a breathalyzer test from your partner before sex. It means using your judgment and erring on the side of caution. Just like if you drive "questionably" and are pulled over and found over the limit, you get arrested. If you have sex and the other person is over the limit, and you're "caught," i.e., the person reports it to the police (which, by the way, rarely happens), you get arrested.

Is anything inherently troubling about this? The clear answer is: you make a choice. You choose to take the risk that you won't get "caught" for drunk driving, just like you choose to take the risk that you won't get "caught" for rape. Both are in many cases bad choices and both have a non-zero possibility of causing real harm. The rape will still be harder to prove than the drunk driving, but if anything that advantages the (accused) rapist.

This could apply to both genders. Imagine if we had a law like that. You probably would not hear a lot of women crying foul because suddenly they have to be more careful about sex. Why should men react any differently? Or, if a lot of people don't like it -- again, they can take the risk that they won't harm anyone, and they won't get "caught." But if they choose to take that risk, they get to bear the consequences (possible jail time). Again, not getting to have sex you want to have is a bummer. Having sex you don't want is about a billion times worse. So the balance of the harms points to the clear answer: in "iffy" situations, just say no and wait until you're both sober.

Just a quick note: I understand this is not currently the rule. If it were, it would be more restrictive than the admittedly nebulous rules we currently have. Is the problem that the current rule is nebulous, or that it is too restrictive? If the problem is that it is nebulous, I guess my hypothetical would solve it. If the problem is that it's too restrictive, then I think that given the balance of harms I laid out I need a convincing argument why the current standard is too restrictive (because I would argue it's not restrictive enough).

I was using the word "prejudiced" in the conventional sense of the word, Law Fairy. I cannot tolerate anyone who refuses to admit when they're wrong, or will not consider the possible truth in any statement which is not parallel or identical to their own. I'm sure you'd agree with me there.

I agree with you that there has to be a hard line drawn. That's why I was arguing so much. I do not see your notion as feasible, however, as most rapes do not take place near breathalyzers. It does not seem like an enforceable law. While you form a good moral argument, this "err on the side of caution" stance is irrelevant in a legal sense. Crimes have to be clearly defined; otherwise, how will we know when they've been broken? Most criminals do take risks, but they are aware, at the moment, that what they are doing is wrong. As I mentioned before, nebulous laws lead to the prosecution of many young men who are probably just as much victims of rape as the woman. That's, of course, if we're using your BAC proposal.

We expect people to know not to drive drunk even if they didn't have a breathalizer machine handy. Why couldn't that be expanded to other areas?

I'm not advocating anything particular here (although I do think that TLF makes a lot of sense). I'm just curious why we couldn't use an already established standard.

Hate to harsh on the bright-line rule, but one problem would be that the accused rapist would not necessarily know the BAC of the alleged rape victim. I don't mean in a scientifically accurate sense--I mean that I don't generally keep track of how much others have had to drink, and I would have no way to gauge the level of drunkenness, since there is a wide range of behavioral responses to various levels of intoxication. With drunk driving, I know how much I've had to drink, what other factors might affect my intoxication level, and whether I feel drunk. None of that information is necessarily available to an outside observer. So if we call sex with someone who is BAC ___+ criminal rape, how do we deal with that?

Now if we make having sex while your own BAC is above a particular level illegal . . . well that would also capture a lot of consensual sex within the range, but it would be a level an individual can be expected to gauge. Also, it would be more appropriate considering the upthread assertion that where alcohol and rape coincide, it is more often the perpetrator who has been drinking.

It seems like one problem with the comparison between drunk driving and drunk sex/possible rape is that with drunk driving you are arrested in the middle of the act -- the police pull you over, do a BAC test, and arrest you. Whereas with rape, the police aren't going to be going around checking behind closed doors. So the rape will be reported after the fact, and there will not necessarily be any evidence of what the person's BAC level was at the time. Perhaps this just boils down to the same issues with proving rape that come up no matter what the law says (I have not had time to read all the previous posts in this thread so perhaps the burden of proof is a topic that has already been fleshed out).

Right, agreed it's not a perfect rule. But if we want a bright line rule... I dunno. It's not such a bad one as an off-the-top-of-my-head idea, I think :)

Maybe it could be that BAC__ creates a *rebuttable presumption* of rape. Thus, there's no strict liability standard like with drunk driving, but there's still a stronger indicator to the persons involved of what is and isn't acceptable. It adds a bit of fuzziness to the line (more than the strict liability standard I discussed earlier), but 1) it makes enforcement more consistent and predictable, and 2) it gives victims a sorely needed leg up. I think 1) serves some of Ivy's concerns, while 2) serves some of ours.

Oh, I wanted to include this too: while I understand the not-knowing-how-much-someone-else-was-drinking concern, I think really what this does is discourages random hook-ups. MORALLY SPEAKING, I don't care what people do in that respect. But on a pragmatic level and, even more importantly, on a public health level -- if this standard means a few less one-night-stands... well... my heart really isn't breaking. I'm no prude, but. If the gain is less rape and the loss is less casual sex... I guess that's a tradeoff I'm happy to make.

Right, agreed it's not a perfect rule. But if we want a bright line rule... I dunno. It's not such a bad one as an off-the-top-of-my-head idea, I think :)

Maybe it could be that BAC__ creates a *rebuttable presumption* of rape. Thus, there's no strict liability standard like with drunk driving, but there's still a stronger indicator to the persons involved of what is and isn't acceptable. It adds a bit of fuzziness to the line (more than the strict liability standard I discussed earlier), but 1) it makes enforcement more consistent and predictable, and 2) it gives victims a sorely needed leg up. I think 1) serves some of Ivy's concerns, while 2) serves some of ours.

The problem is that BAC is a piece of evidence that rapidly disappears. Let's take a fairly average case where a person is raped while blind drunk and blacked out, falls asleep, discovers the evidence of sex in the morning, and reports it to the police. You then have a law that sets a bright-line standard referring back to a piece of evidence that is no longer available, and the rape is unprosecutable -- when it would, perhaps, be a prosecutable rape according to current laws.

I think, in terms of the standard for rape, the standard should look something like this: "would a reasonable person believe that the complaining witness was able to knowingly engage in sexual behavior of her own volition at the time the defendant initiated it?" If the answer is no, you have the crime of rape.

-- ACS

As I've stated before, I doubt that the BAC standard would be possible; but some sort of physical standard of measure could certainly clear up the ambiguity. Perhaps the toxic byproducts of metabolized alcohol could be measured in a blood test to assess the level of inebriation of the prior night. This could be used to prove that a certain BAC had been crossed and the victim was legally incapable of giving consent. The rate at which people metabolize alcohol is pretty reliable and well understood (thank god for goldfish!). Granted, the level of inebriation will have to be higher than current driving requirements. Even legally drunk drivers are capable of consenting to a search. Of course, the best thing a woman can do is have a rape kit completed as soon as possible.

I think you may have started something, Law Fairy.