"Girlfriends of the Court"

What’s so hard about consensual sex?

In law, legal rights, women on August 22, 2012 at 12:56 pm

Ahhh sex.  There has been an unusual global confluence of sex and public life in recent weeks, culminating in an extraordinary display by political leaders and aspiring political leaders around the world.  This has caused me to ask: what sort of man wants to have or defend non-consensual sex with a woman?

Without going into too much detail about criminal law, in the broadest terms and as pointed out in this language blog, rape involves non-consensual sex.  (In legal terms, see eg Qld Criminal Code.)

So, if a woman is asleep, she cannot consent.  The fact that she may have consented before does not imply consent.  (Again, see eg Qld Criminal Code.)

So, if a woman is inebriated, her capacity to consent is at best impaired.  If a man has sex without her consent, he is at fault.  Not her.

So, if a woman is not a woman but a girl, she is a minor for the purposes of the law, and cannot consent.  In the same way, children are considered to lack capacity to make contracts and to commit criminal offences.  There are exceptions to these cases, but in general terms, minors are not considered to have legal capacity.  (See eg in Queensland.)

So, if a woman becomes pregnant as a consequence of non-consensual sex, she has still been raped because it is consent and not pregnancy that determines whether a rape has occurred.

So, if a woman says no, in fact, she means no.

Women have a right to bodily integrity and personal safety.  Women are entitled to withhold consent to sex, and to have this withholding respected – in spite of what the leader of the opposition, Tony Abbott, may say.  The law recognizes this right through the law of rape.  The law of rape is not designed to trap and emasculate men.  It is designed to enforce societal norms associated with women’s bodily integrity and safety.  These norms reject non-consensual sex.

Sexual relations and relationships generally are difficult to navigate.  Surely though, surely, men are able to conduct themselves in a respectful way.  What can be so wrong with, or so hard about, a mutual, rather than a unilateral, sexual encounter?  Let’s take a stand for effective communication and emotional intelligence in working out whether a woman has consented or not.  And I guess, if it’s not clear, then as Ben Pobjie points out in this helpful guide, don’t have sex.

Why then are so many men standing up for non-consensual sex?

Image courtesy of http://redlegsinsoho.blogspot.com.au/2010/09/vintage-dating.html

Kate Galloway teaches law at James Cook University. Follow her blog at Curl, and on twitter at @KatGallow

  1. The fundamental truth is that those we repeatedly see making ever finer distinctions such as seeking to articulate differences between legitimate and illigitimate rape do so for one reason only – they have no genuine commitment to consensual sex.

    • Thanks for your comment Coco. Sadly I think that you may have a point.

      • As a now aged gay woman who has had many female lovers throughout my life, I have never encountered any lack of clarity over consenting/not consenting. I have never needed to [to use Galloways term] “insert” anything into a sleeping, unconscious or drunk female. As a result, I have never needed her to be conscious to say no in vehement terms. I have never found consent is “almost always” implied. This is because I do not assume I am so devastatingly desirable [or more accurately my needs over ride her sovereignty over her body] that she loses her rights over her body simply because she has slept with me in the past or may be temporarily not in a position to exercise positive consent. I have never found it in any way onerous to negotiate what will and will not happen each time. In fact, like respect and recognising human dignity and free will in all aspects of human life – it actually adds to the experience in a way that taking what you want, when you want irrespective of clear current consent cannot. It is not the terrible burden that many make it out to be.

      • Coco you have encapsulated my feelings about this. Mutuality, respect, concern are central to relationships. Men I speak to believe likewise, and do not feel a burden. Thank you for sharing these thoughts.

      • Some think so little of the human right to sovereignty over our own bodies that sex is treated like it’s a season pass to the cricket. They are automatically entitled to be let in any time they want because they think one trip [or a marriage certificate] entitles them. Wonder if the same narcissistic sense of entitlement works on other acts that meet definitions found in the Crimes Act.
        Does letting someone drive your car once or twice under particular circumstances mean they can come around while you are sleeping and take it when they want? You loan someone your computer a couple of times or for a few months – does that mean they can then take it whenever they feel like it?
        Surely a human beings dominion over their own body is even more precious than material possessions. I bet the same people defending sleeping insertions would be on their high horses if they were on the receiving end of the same reasoning over their car or computer.

  2. Obviously the notion of consent is an a priori good and sounds really great on paper (and is great! Obviously!). However, in interpersonal relations, the notion of consent becomes substantially more ambiguous. For instance, consent is often implied when engaging in sexual action, rather than explicitly stated… because nothing is sexier than asking, “hey baby… you mind if we… y’know… did it?” Obviously non-consent becomes really clear when the word “no” comes around, making a clear boundary. But in a very common scenario- two people meet in a bar and wish to engage in some activities together, how does one define “drunk”, since you seem to think that drunkenness removes the ability to consent? Do you expect men to carry around a breathalyzer and ask their dates to blow (no pun intended) every time before they engage in sexual activity? The issue is, in most cases, the ongoing relational status of two people implies consent. Because consent is almost always implied until it becomes explicitly removed. This isn’t because people are pigs, it’s because of the way interpersonal communication occurs. Should this be changed? Perhaps, though it might get a bit onerous having to ask my wife every single time…

    Also- I don’t particularly understand why the tenor of this whole meta-discourse we have surrounding rape always puts the burden of consent upon men. Notice there aren’t any women getting thrown in jail for having sex with drunk men? Statutory rape is also significantly more underreported when the victim is male as well. Male rape occurs a lot more often than we want to talk about, simply because we assume male physiology implies consent.

    • Thanks for your comment. Yes, it is difficult, as I acknowledge in the post. This is why it requires emotional intelligence to work out the context. My point is that to some, namely the public figures cited, it’s not obvious. I agree, these principles absolutely apply to women also. The context for this discussion is the statements made recently all of which involve men’s responsibility to women. Importantly also, the ‘legitimate rape’ comments that use pregnancy as a gauge of whether rape occurred. This is of course, unique to women.

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