Violence vs. Consent? “What Counts” as Rape and Sexual Assault

Thanks to WikiLeaks founder Julian Assange, a lot of folks are once again talking about “what counts” as rape. If you haven’t read Jill’s excellent piece about the legalities of consent in this case and in the U.S. at large, I highly recommend you do. Then wander over to the New York Times to check out this article about sexual assault laws in Sweden, and how differing gender politics/views of feminism have impacted their definitions of rape and rates of reporting.

But instead of adding my voice to the choir on the Assange situation, I’d like instead to shift the conversation to a far lower-profile (triggering) campus case at Winona State University in Minnesota. There a student has been charged with “nonconsensual sexual contact,” and though he says he has said he “screwed up” and “understands what he did,” he seems unable to put a name to the “screwed up actions,” and frankly still doesn’t seem to think he did anything all that bad.

So what did he do?

Pearson began kissing her and touching her over her clothing, but she told him no and pushed his hands away, court documents show. They continued kissing, and Pearson again tried to touch the woman. She continued to say no.

As the incident escalated, the woman said she told Pearson she was uncomfortable with things he asked her to do, but he continued to try to persuade her. She told him to stop while they were having sex, but he told her to shut up, according to the criminal complaint.

Based on that description, I’m actually surprised he was only charged with “nonconsensual sexual contact.” It’s hard to tell from the story, but looking over Minnesota law, that charge seems to fall under Criminal Sexual Conduct in the Fifth Degree, which refers to the “intentional touching by the actor of the complainant’s intimate parts…committed without the complainant’s consent…and committed with sexual or aggressive intent.” What happened here seems to be more than “intentional touching.” Certainly the accusation fits the bill for Minnesota State Colleges and Universities’ definition of sexual assault (the link to WSU’s policy wasn’t working, although the school falls under the MS system).

But was it rape? The accused doesn’t think so, and his reasoning is extremely distressing. As he told the complainant in a taped phone call:

“Rape is like when I hold you down and I like punch you in the f— face and I rip off your clothes,” Pearson said during the call. “Rape is like you’re wiggling and trying to get out and you have nothing to do.”

So, it’s only rape if it’s accompanied by extreme physical violence? You can bully someone into sex by persistently ignoring their desire for you to stop, or not touch them in a particular way, and telling them to “shut up” when they protest, but until you have to forcibly restrain them, you’re in the clear! How horrifying.

The idea that rape and sexual assault is defined by “violence” (in the most traditional sense of the word) and not consent is something I forget still persists, since it seems so intuitively disturbed to me. It returns again (and again, and again) to this notion that sex is something that one person is trying to “get” from their partner (as opposed to “have with”) and doing whatever you have to do to “get it” is totally reasonable! Unless of course you’re physically violent, or purposefully incapacitate someone, maybe there’s a case for rape. But the other person not wanting to?? That’s just a little obstacle on the road to sex. Plenty of ways around it.

This prevalence of this idea becomes particularly clear in our reluctance to classify as rape/assault situations where a person consents to some sexual activity, but not all. Or (to bring it back to the alleged Assange case) consents but then changes their mind and has the audacity to think that the person they are with will respect that decision. But sadly no, what that person wants isn’t the issue for a lot of people when it comes to sexual violence. It’s how difficult they make it for the other person to gain access to their body. And what a disgusting way to frame it.