Men's Rights


This article was written on 29 Sep 2013, and is filled under Legal, Social.

Is there room for a dialogue on consent and rape?

by Signature

Editors: MRMod3, Oneiorosgrip

This article was inspired in part by the discussion on a recent Joe Rogan podcast with Stefan Molyneux, and also by the recent controversy regarding the “Don’t be that guy/girl” poster campaigns.

The fact that people even pose the question “Is rape worse than murder?” suggests that our society takes the act of rape very seriously. Even in war, the rape of “enemy” civilians by soldiers results in public outcry. It cannot be denied that rape is considered a very serious issue by every western nation.

So then why is it that feminists decry the western “rape culture”? If rape is taken so seriously, how can anyone believe that a rape culture exists?

It is because not everyone agrees on what constitutes rape, and because those who want to change the legal view of rape know that an emotional appeal, such as accusations of rape apologia and support of the “rape culture”, are effective tools at changing public perception. It is precisely because rape is taken so seriously by society that these accusations are effective, and the very use of them provides the necessary evidence to prove the assertions of the existence of a culture that supports and glorifies rape to be wrong.

We do not live in a “rape culture”; we live in a culture that cannot agree on what activities should constitute rape. And those are very different things! To deny otherwise is to again make an appeal to emotion, nothing more.

But those that decry the western rape culture do have a number of valid points to make. Their tactics aside, they have a good point that global perception of rape is changing, and our culture should be willing to revisit the definition of rape. Laws are the (supposedly) collectively agreed rules a nation wishes its people to follow, and if a significant portion of the people want change then there should be room to open such a dialogue.

On the side of feminist groups, the concept of consent is central to the proclamation of rape.

The American FBI defines rape as:

Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

Alternatively, Canada does not define “rape” in the legal code, but rather encompasses rape under sexual assault. However, the concept of consent is presented in context with sexual assault as:

273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

In the UK, rape is defined as:

(1)A person (A) commits an offence if—
(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b)B does not consent to the penetration, and
(c)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

In all three cases, consent is the central issue. Thus, rape, or sexual assault if you are Canadian, is committed if certain sexual acts are performed without consent. Since all three of these nations consider consent to be the central factor in determining rape, it is clear that if there is a disagreement about what activity constitutes rape, then this necessitates an understanding of the concept of consent from the dissenting parties.

Before addressing the issue of consent, however, let’s focus first on the definitions provided by the UK and the US – that penetration of the vagina, anus or mouth are required sexual acts for qualification as rape. If penetration is required for rape, it is very clear that rape is a crime that can be committed entirely by men (or rather, people with a penis) in the UK, or predominantly by men in the US, except when women use an object to penetrate another person. It cannot be questioned that the definitions used by the UK and the US identify “rape” as a male-gendered crime.

This should strike readers as outrageous. In no other crimes are the gendered words “A person (A) commits an offence if he (or she)” used. (I will retract that statement if people can prove me wrong.) In this way, Canada appears to have the most egalitarian solution to rape laws, where the gendered “rape” has been encompassed under “sexual assault” and refers to all sexual activity that is performed without consent of a participant.

Before the issue of consent can be addressed, the issue of who is required to give consent needs to be addressed. In the US and the UK, the law makes it clear that consent is something that only women must provide. Men give consent by default, or rather violation of consent is not considered rape (it may be considered something else). This results in the perception that the penis is a uniquely dangerous body part which is a near-requirement for the crime of rape (barring penetration with another object).

Many within the so-called manosphere (1, 2, 3 to name a few) argue that sexual contact with the penis without consent of the male should be considered rape, particularly envelopment of the penis. Clearly feminist groups understand that there can be physiological responses to sexual stimulation that are independent of whether or not consent is given. An erect penis, being a physiological response and not a mental response, is thus not consent, and interaction with a penis (however erect) without consent should be treated as legally identical as similar interaction with a vagina (however self-lubricated the physiological response) without consent. However, I will not accuse those who disagree with me of being rape apologists.

Thus, I argue that any person who disagrees with the inclusion of envelopment without consent under rape laws is not concerned with gender-equity equality, and thus cannot claim to be egalitarian. The neglect of inclusion of envelopment under proposed changes to rape laws would also indicate a group’s lack of concern for male issues. Any group of feminists that does not address these issues when advocating for changes to rape laws is thus indicating that they are gender feminists, and not an advocate for gender rights equality.

With that issue addressed, let us return to the concept of consent. Focusing on the Canadian law, as it is more explicit about the nature of consent, consent is not given when (in my words):

  1. Someone other than a participant has declared consent.
  2. The complainant is incapable of giving consent.
  3. The complainant is induced to given consent through abuse of positions of authority/trust. (ie: coercion)
  4. The complainant rejects the sexual activity prior to the start.
  5. The complainant rescinds consent after sexual activity has started.
  6. Consent is not obtained (ie: consent must be given).

Additionally, the following conditions are not a defense against sexual assault:

  1. A person mistakenly believed consent was provided due to their own intoxication.
  2. Reckless or willful blindness (not sure what this entitles)
  3. A person did not first take steps to ascertain the consent.

Thus, it is clear that being married does not imply consent (no one has an obligation to provide sexual contact during marriage); that consent must be given (it is not automatic) and thus participants must be capable of giving consent; that consent can be rescinded once given; and that consent given under coercion is not valid. A person may disagree with one or more of these points, but they cannot deny that this is the law. One of the interesting aspects of the Canadian law, however, is that consent can be either vocal or implied. Enthusiastic consent is not required. Additionally, the law is not clear on what defines “incapable of giving consent”, clearly leaving the interpretation up to a judge to determine.

There is a campaign currently underway in Canada called “Don’t be that guy” that is attempting to alter public perception of consent. A number of posters have been produced that are aimed at addressing the perceived confusion about consent. While the one-sided gendered nature of these posters indicate that the concern over rape is clearly garnered towards penetrative sexual assault (ignoring the case of envelopment assault), the central issue of the poster is the nature of consent when alcohol is involved (or any other chemically altered state of mind). Canadian law is clear about three of the four posters listed on the website:

  1. “Just because she isn’t saying no, doesn’t mean she is saying yes” does correctly educate people that sexual activity without active (not enthusiastic) consent is illegal.
  2. “Just because you help her home, doesn’t mean you can help yourself” does correctly educate people that driving a person home is not considered (implied) consent.
  3. “Just because she is drunk, doesn’t mean she wants to f**k” does correctly educate people that the state of drunkenness is not considered implied consent.

And the fourth poster, “Just because she is drinking doesn’t mean she wants sex,” is simply a statement that drinking alcohol does not mean consent is given. (Does someone really need to be told this? That is like saying “just because he is walking around outside, doesn’t mean he wants to be mugged”. It is insulting to imply that this needs to be said to the general populace, as the defense “well, she had a beer, of course she wanted to have sex with me” is not commonly considered.)

If these were to be taken as general guidelines on avoiding legal issues resulting from potential sexual activities, then it would be fine, provided it were given in a gender neutral fashion (there is no reason it can’t/shouldn’t be, considering Canadian law is not gendered in its definitions of consent/sexual assault). But it misses the law a little bit. First off, Canadian law makes it clear that implied consent is valid. Thus, one could just as easily state “Just because she isn’t saying no, doesn’t mean she isn’t saying yes” and still be correct under the law (one can advocate for change to that aspect of the law, but one must accept that that is, in fact, currently the law). Secondly, Canadian law does make it clear that no consent exists where a person is unable to give consent, but does not clarify what this entails. A judge would need to address each case individually. And thus it is not clear under the law that a person who is drunk cannot given consent – a person who is drunk may or may not want to “f**k”, and a post hoc analysis would be required to determine whether that consent was valid, if a complaint is made. Again – one may disagree with these laws and want to see change, but the law is clear.

Since the application of the laws are left to the discretion of the court system, what these posters and advocations appear to be is an attempt to sway public perception – and thus the judicial perception – of what constitutes “incapable of giving consent”. That is their right to do, even if others disagree with the purpose (we all have the right to publicly state our opinions), but it should be clear that this is what they are doing. The posters/campaign should not be taken as accurate descriptors of the law. Dissent and criticism of the campaign is thus perfectly valid, and should not be interpreted as rape apologia, since the campaign does not correctly address legal rape, it only gives guidelines to follow to avoid legal issues when having sex.

I mentioned previously the concept of enthusiastic consent – this is another issue where feminist groups are advocating for change, which is, again, their right to do (just as I have the right to disagree). Hopefully a requirement of enthusiastic consent would make determining legal cases surrounding sexual assault and rape much simpler to address in the courts (reductio ad absurdum: “I have the written sex agreement right here, your honour.”). Some (both men and women) will argue that enthusiastic consent reduces the passion and emotion involved in the carnal act of sex, it suffers from the same possibility of post hoc rescinding, and it would have no effect on the cases where the victim has clearly said “no” (already illegal). However, I am not aware of any western country that currently uses this standard for consent. And thus, since it is not defined as legal consent, objecting to it cannot be considered rape apologia unless the purpose of the accusation is to force compliance through public shaming – an indisputably abusive act.

Rape apologia is a serious accusation, and should be taken seriously. Misuse of it, much like the boy crying “wolf”, diminishes its effect in helping people in very serious situations. Rape apologia is thus only when a person is defending the actions of a person who has actually committed legal rape, and not when a person defends something that disagrees with a non-legal definition of rape.

I wish to restate this point: It is not rape apologia to defend a person who has not committed legal rape or defend acts which are not considered legal rape. One consequence of this is that it isn’t rape apologia to defend a woman who forces a man to penetrate her in nations in which that is not considered rape. Those who wish to see envelopment added to the laws as a potential form of rape (such as myself) will have to use another term to describe our abhorrence of a person who defends such actions, in order to stay rhetorically consistent.

In the same vein, a rape culture would be one in which the culture itself glorifies acts which are legally considered rape. Glorifying sexual acts which certain people think should be considered rape is not indicative of a rape culture, but rather a disagreement within the society of what constitutes rape.

And lastly: accusations of rape culture and rape apologia should be taken very seriously, and should only be used in cases where people are glorifying or advocating for actually illegal acts.

Rape should and is taken very seriously by society. Rape is a seriously horrendous act that takes away the legal right to bodily autonomy from its victims. But social dialogue about the nature of consent should not be silenced by appeals to emotion. It would be a moral crime if our society changed to the point that a person who has sex after having a few drinks is considered similarly victimized as a person who is forced into sexual acts at the point of a gun, or other horrendous act.

Maybe feminists, instead of trying to include other activities under the umbrella of rape, should advocate for a new class of crime that includes sex without enthusiastic consent. And then society can judge that crime on its own merits, independent of appeals to emotion that are necessarily involved when trying to associate these activities with the horrific crime of rape.

Edit: It has come to my attention that “implied consent” is not always valid in Canadian law. In R. v. Ewanchuk, the defense of “implied consent” was measured against the requirement to reasonably ascertain consent, which was mentioned in this blog post. Regardless, the discussion of “implied consent” in this article was not referring to an instance in which a person has clearly said no, as in R. v. Ewanchuk, but rather the instances where consent is non-enthusiastic. A nod or a verbal “yes” is obviously consent, but I do not believe R. v. Ewanchuk ruled out implied consent in a situation where, say, a girl takes off her own clothes and straddles a guy. In an enthusiastic consent scenario, such a situation would still be considered rape because the woman never explicitly stated “yes” (recalling that apparently men do not have to give any form of consent).

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