Consent

[flexibeast]

moominmuppet brought my attention to the following appalling piece of news - Court: Woman Can't Say No After Start Of Sex:

An appellate court said Maryland's rape law is clear -- no doesn't mean no when it follows a yes and intercourse has begun. . . .

The appeals court said that when the jury asked the trial judge if a woman could withdraw her consent after the start of sex, the jury should have been told she could not. The ruling said the law is not ambiguous and is a tenet of common-law.

!!!

This decision seems to me to be saying: "Once you consent to sex, you no longer have the right to make decisions about what happens to your own body." If Maryland's law is so "clear" on this point, then Maryland law 'clearly' needs changing.

i am disgusted and outraged.
 

Comments

[flexibeast.livejournal.com]

So, sorry, because you've commented and then deleted some of those comments, i'm not sure what your overall position is here?

[happyevilslosh.livejournal.com]

Summarised:
I don't think that it should be considered rape, as it would make it too easy to abuse.
Sexual assault I could see it being however.

[flexibeast.livejournal.com]

Okay, so how do you define 'rape', and how do you define 'sexual assault'?

[happyevilslosh.livejournal.com]

Well rape is unwanted sex, and sexual assault as assault of a sexual nature, in essence rape is a type of sexual assault.

However, say a woman wants to screw over a guy, takes him home, says yes, starts having sex, changes her mind, says no, accuses him of rape regardless of how quickly it stopped. I don't imagine there'd be much evidence of it from a legal stand point and it would come down to her words vs. his.

However if you said yes, then changed your mind and said no, presumably there would be bruising or assault marks of some sort as the person tried to get away thus making it assault.. Although arguably it would also be tell-tale signs of aforementioned style of rape...

I'm not sure, it's a tricky one.

[flexibeast.livejournal.com]

Well, i would argue that once someone says "No" to a sexual act, then from that point on, consent has been withdrawn, and by your definition, the act would then become rape.

People can withdraw their consent for all sorts of reasons. They might have felt comfortable at first, but then feel that "something isn't right", and want to stop. They might believe that they have only consented to one form of sex, not another, and unsurprisingly then want to withdraw from the whole act altogether when someone tries to force them into that second type of sex. Or they may have had difficulty saying "No" in the first place - because they just want the "Come on baby, you know you want it!" harrassment to stop - and it's taken them a while to finally pluck up the courage to clearly say "No!"

Basically, not everyone knows how they are going to feel about something before they do it. i believe that all adults have had an experience of enthusiastically getting themselves involved with something - not necessarily sexual - that they quickly discovered they didn't actually enjoy, for whatever reason.

i also want to note that it's incorrect to assume that all people will deal with non-consensual sex by struggling to get away. When one is facing being overpowered by someone, one can easily conclude that one might make things worse by struggling to get away. So many people acquiesce, hoping that the experience will end as soon as possible, rather than running the risk of causing further damage to themselves by trying to escape the situation. (And i should say here that when i had the experience of someone fondling me sexually whilst i slept, i quickly withdrew from the situation - but that was basically a no-risk option for me at the time.) i constantly hear of such situations via a close friend of mine, who was (by your definition) raped, and whose job involves speaking with a lot of women who have experienced sexual assault and rape.

Societal and cultural expectations of people - often based on gender - means that simply saying "Yes" or "No" is not necessarily as easy as it might seem.

[happyevilslosh.livejournal.com]

I don't disagree with anything you're saying. I'm more thinking that in the event someone does "acquiesce, hoping that the experience will end as soon as possible" it would be essentially impossible to prove rape after the fact, and I can understand the courts not wanting to get into the sort of his word vs. her word that would result from that.

[flexibeast.livejournal.com]

Well, technically, of course, all parties involved (regardless of gender - men get sexually raped and assaulted too) are under oath to tell the truth, so the question "Did not the plaintiff say 'No, stop!' to you?" should be enough to determine whether consent was or was not given and/or removed. (The acquiesence i was thinking of takes place after the victim has already said "No", but the perp continues anyway.) Obviously, though, to think that people don't perjure themselves in such a situation is naïve at best, which does make things more complicated. Ultimately, due to presumption of innocence, it means many actual perps go free. In fact, the friend i referred to in my last comment knows that so many victims of sexual assault, rape and abuse see their attacker getting light-to-non-existent sentences that she's actually starting to think that defendants in such cases should be presumed guilty until proven innocent. Which, although i understand where she's coming from, i strongly disagree with.

At the same time, i do think that our society needs to get away from the "The victim is obviously making it up / The perp is obviously lying" dichotomy that almost inevitably arises in these cases. i think our attitude should be "The accused is innocent until proven guilty, but the accusations must be taken seriously and with respect for the plaintiff."

[cheshire-bitten.livejournal.com]

I am sorry, easy to abuse the right to decide what happens to your body? The fundamental right to decide who you have sex with and when, on any basis sound or otherwise, the right to realize that you made a bad choice and back out?

[happyevilslosh.livejournal.com]

No, easy for unscrupulous people to abuse the system to attack others whom may or may not abuse it.

As hierodule point out later down in the other thread, rapists as it is don't tend to be charged with much, if at all, and I imagine that's with pretty solid evidence. Now take even if you take the above as law, in a system where people are innocent until proven guilty and it's going to be essentially useless.

At best things like this it should be a case-by-case basis, at worst it should be as it is.

Ideals are a wonderful thing to have but eventually you have to consider the reality of implementing them.

[cheshire-bitten.livejournal.com]

This as far as I am concerned is a red herring, it is not particularly hard to implement a law which requires positive consent from all parties at all times nor is it hard to live a life where you check first for positive consent and continue to check for consent throughout the sex what it is very hard to do is prove sexual assault in this legal system, which is a pity and is not helped by ruling such as this which in my view blur the issue.

[happyevilslosh.livejournal.com]

What I'm trying to say is perhaps you should be focusing your attention on how to correct the legal system sexual assault problems or whatever else will help before worrying about what strike me as particularly impotent laws, like this one. Because until the things around this law change, whether or not this law stays or goes wouldn't seem to me to make a massive difference.

[cheshire-bitten.livejournal.com]

I think that the attitudes behind this law are one of the big problems with the current sexual assault laws that sex is seen as special and that any level of consent at any time is seen as full consent for everything, I think this is part of the problem and needs to be fixed, also just personally as someone who has sex I _do not_ think this is a small part of the law if my consent to one kind of sex or sex at some time can be legally taken as consent to all kinds of sex at all times.