I usually put bit of considered thought and time into these blogposts (believe it or not) but today I need to say something quickly, and something so stupefyingly obvious and easy that it doesn’t require much preparation. I want to say this quickly because thanks to the Metro and the BBC, I sense a swelling wave of comments and blogs across the internet saying “OMGZ, in Britain you can be convicted of rape even if you have consent!” So let’s get this out there quickly just on the vague chance it might make someone think twice.
First, the facts. The High Court has ruled in a case where a woman consented to limited sexual contact. To be explicit, she agreed to sex on the specific condition that her partner didn’t ejaculate inside her. The court heard that shortly after penetration – and without giving the woman any chance to object – the man had said he would be “coming inside her” and added “I’ll do it if I want”. The CPS prosecutors had decided not to charge him as it would be “impossible to prove” that the man’s decision was not “spontaneous” and “made at the point of ejaculation”. The woman challenged this ruling and won. The ruling says:
“She believed that he intended and agreed to withdraw before ejaculation. (He) knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. In short, there is evidence that he deliberately ignored the basis of her consent to penetration as a manifestation of his control over her.”
(Please note, this is not a criminal trial, we have not heard the man’s defence as yet. These are allegations, not accepted facts.)
The headlines in the Metro: Sex with consent ‘can still be rape’ and BBC Sex consent could still lead to rape charge, judges say are dangerously misleading and potentially highly damaging to public understanding of consent and rape. So for the benefit of anyone who struggles with these concepts, let me offer a full and extensive list of reasonable working definitions of consent.
1. If you do something to someone’s intimate bits (or with your intimate bits) which you know s/he has not consented to or is unable to consent to at that moment, you are committing an act of sexual assault or rape.
There. That’s it. In practice this means that if s/he says “I’ll do this but I won’t do that” it means you have consent to do this but not do that. If s/he says “I’ll put this here but I’m not having it there” then you have consent to put it here but not put it there. If s/he says “I’ll do this but only if you wear that” then you have consent to do this, if and only if you are wearing that. (I’m mostly thinking of condoms here, but I guess the same principle applies to the pirate outfit. Whatever pushes your boat, you’re still the skipper.) If you ignore this very simple principle, and proceed with an act which your partner has not consented to, you are committing an act of sexual assault or rape. Oh, and if you do ever find yourself uttering words along the lines of “I’ll do it if I want” then – BIG FUCKING CLUE – you’re a rapist.
That’s what I say. That’s what the law says and it’s what any reasonably functioning moral compass says too.
Please note, before the flood arrives, I quite appreciate that, in practice, attaining prosecutions for rape and sexual assault for incidents like this will often be all but impossible. I fully appreciate the fuzzy boundaries that often exist between seduction, persuasion and consent. I’m not saying the man in this particular case is guilty, his case has yet to be considered and he is innocent until proven otherwise.
I am saying that for all the tortuous debates around the legalities of rape and consent, the principles are really bloody simple. The High Court today has provided welcome confirmation that the principles are really bloody simple. The headlines today gave precisely the opposite impression, and that is hugely irresponsible and very worrying.(Note to commenters. As usual, I’ll trust you to comment and discuss matters with civility and respect for those who may be personally affected by these issues. But I’ll warn you, I feel strongly about this shit and if you are planning on disagreeing to any great extent about the main points here, be prepared for the proverbial ton of bricks. Thanks)