Consent Means Yes

By Deb Conklin

This week, Sojourners published a commentary “’Women Tend to Lie:’  How Society Silences Rape Survivors.” It brought back memories – painful memories. But for me the memories were not of being raped. (I am one of the fortunate women who have not been subjected to that form of assault.) Mine are memories of sitting in my office and reading police reports with statements from rape victims; of interviewing women* (and children) who had been assaulted and violated; of sitting in depositions/interviews as disgusting defense attorneys attempted to humiliate these women – asking them embarrassing questions about their intimate relationships, about their wardrobe, about their drinking; and watching them being humiliated again in the courtroom by these same defense attorneys, as self-righteous judges allow the questions, insisting that the character of the woman is always at issue in rape cases.

And the question that comes to me – and has come to me repeatedly over the years is, WHY? Why is the woman the one on trial in rape cases? Why do we insist that a woman demonstrate physical injuries to prove that she said NO? Why is rape the one crime that focuses on the character of the woman rather than the actions of the defendant?

We don’t insist that a man who wears an expensive wrist watch justify his needless flaunting of wealth if he is robbed. We don’t tell a man who is beat up by a couple of street punks that he had no business being on the street alone after dark. We don’t tell a man who was just t-boned by a driver running a red light that he should have been more cautious. So why do we insist that a woman who wears the wrong clothes, or walks home late at night, or stops at a pub for a drink after work is somehow at fault when someone rapes her?

Why? Because we start with the assumption that a man has the right to have sex when and with whom he wants – unless she makes it absolutely clear that she says, not just “No”, but “Hell no!”

I propose that we change the whole way we approach the crime of rape. I propose that we stop focusing on the word “No” and start focusing on the word “Yes.” In any context other than rape, consent means affirmative agreement, in other words, YES! Washington state laws define rape as engaging in sexual intercourse with another person where the victim did not consent to sexual intercourse and such lack of consent was clearly expressed by the victim’s words or conduct.  RCW 9A.44.060 “Consent” means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact. 9A.44.010(7) (paraphrase, emphasis added).

These definitions make it sound like someone must give affirmative consent to intercourse – otherwise it is rape. However, that is not how we apply the law. In practice the burden is on the woman to produce overwhelming evidence that she refused to have sex. “No” does not necessarily mean no. Apparently in the mind of some people “No” really means, “Maybe, if you push me hard enough and I don’t fight too vehemently.” The problem is that the law is not going to change until we demand it. Until we change the culture. We need to declare that consent means saying “Yes.”

I dream of a day when “No” means just that – lack of consent. I dream of a day when we respect women so much that when she says “I’m not really interested.” the subject is dropped. I dream of a day when having sex with a woman who has been drinking is presumed to be rape unless she agrees, after she sobers up, that she wanted to have sex. I dream of a day when the decision to have intercourse is made mutually and respectfully and not by putting more pressure on after the woman has said “I don’t think so.” I dream of day when either person, at any point, can say, “You know, I’ve changed my mind. This is not going the way I imagined. I want to stop.”

I dream of a day when sex is truly a consensual act between two informed adults, and anything else is considered offensive to our values – and to our laws.

* I am aware that men are also victims of rape. But trying to write this without referring to the person raped as a women meant an unreadable essay, or one in which people who are assaulted are repeatedly referred to as ‘victim’ – which continues the demeaning of such men and women. So I’ve chosen to use language which helps most people create a mental image of the point I’m trying to make – and reflects that an overwhelming majority of adult rape is men raping women. I apologize for failing to find a better solution to this dilemma.