I set out to attempt to prove that consent is a social and legal construct rather than simply “common knowledge”. Consent has never been clear, but as it is defined today, consent is the constant expression of agreement. The constant expression of agreement is actually impossible, and therefore, every sexual act is rape.
However, after reviewing my sources and attempting to make causal claims about it, it became clear to me that data was extremely scarce and lacked uniformity. As Prof. found in his own research of the topic, the FBI recorded 85,593 rapes in 2010, yet the Centers for Disease Control and Prevention reported nearly 1.3 million incidents. Both had differing definitions of rape that made an enormous difference in how many rape cases are believed to have occurred. Based on prof.’s suggestion and my own speculation, I have decided to adjust my argument.
…You could identify the disagreement about rape’s definition as the cause of the wide disparity in rape statistics (DEFINITION, CAUSATION), leading to the inevitable problem that nobody’s numbers can be used to draw any general conclusions (REFUTATION). Then you use the test case of the BJS numbers to prove your point: THERE ARE WAY MORE RAPES than can be counted by the “forcible penetration” definition, so we shouldn’t be impressed by the BJS chart that forces the narrative of a radical reduction in rape over time.
This is precisely what I plan to argue: No one’s number’s can be used to draw accurate conclusions about how many rape cases actually occur within a given year. This is due to the incredible disparity in rape statistics. In particular, the numbers used by the Bureau of Justice Statistics, which report that there has been an overall decrease in rape cases since 1973, should not be given any weight because it is likely that there are way more cases of rape than the Bureau reports. If you use a broader definition than the “forcible penetration” one, the number of rape cases in a given year skyrockets from the number reported by the Bureau of Justice Statistics. This is evident when reviewing the sheer difference in number between the cases reported by the Bureau of Justice Statistics and those reported by the Centers for Disease Control and Prevention.
1. Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada
Helpful quotes for my argument: “Based on my analysis, I argue that wife/partner rape is informed by societal and cultural beliefs about sexuality, intimate relationships and marriage, and rape myths. Although my study reveals that rape mythology and stereotypes are not as explicit as they have been historically, a little digging under the surface and some unpacking of the views and arguments presented by my interview group reveal the extent to which myths and sexism continue to inform the legal prosecution of wife/partner rape as well as the failure to prosecute it in many cases.”
-Ruthy Lazar (author)
The Essential Content of the Article: The author essentially argues that few studies have actually looked at how rape cases are processed in court. She notes that the arguments used in court for these cases are fueled by underlying themes of sexism and myths about sexuality and rape.
What it Proves: This article contributes to my argument by proposing that societal views affect the legal interpretation of rape. This will be useful to prove that the definition of rape is actually constructed by society and is not universal.
2. The Discursive Reconstruction of Sexual Consent
The Essential Content of the Paper: This paper argues that in legal settings, although the complainant has the opportunity to tell their side of the story, the complainant often feels as though he/she has not truly had the opportunity to explain the situation in his/her terms. The paper argues that this is because the case is always framed by the people asking the questions in the debate. The paper further argues that the case is framed in a favorable way for the defendant because of societal views that a misinterpretation of verbal and nonverbal cues between women and men is not intentional rape on the man’s part, and therefore, the defendant is innocent.
What it Proves: This proves that the legal definition of consent varies depending on the courtroom. Even if an agreement has been reached on what the legal definition of consent actually is, it is very difficult to decide whether or not that definition has been met in the case (whether or not that legally defined consent was actually given.)
3. Re-examining the issue of nonconsent in acquaintance rape
(By Donat, Patricia L. N and White, Jacquelyn W)
The Essential Content of the Book: This book examines consent as a social construct. It explains in detail the effect of cultural attitudes, cultural metaphors, societal myths, sexual scripts, and the legal system on the definition of consent and rape.
What it Proves: The book proves that relationships are defined by those same cultural attitudes, cultural metaphors, societal myths, sexual scripts, and legal systems and therefore they define consent and rape.
4. Understanding the Unacknowledged Rape Victim
(by Kahn, Arnold S and Mathie, Virginia Andreoli)
The Essential Content of the Book: This book seeks to explain how some victims of rape do not consider themselves to be rape victims even though they experienced what would legally be considered rape. It argues that personalities, sexual attitudes and experience, affective reactions, reactions of peers, use of alcohol or drugs, and counterfactual thinking affect whether or not a victim will consider him or her self to be a victim.
What it Proves: This book proves that certain circumstances of rape are not considered rape even by the victim himself/herself. The person’s personality and experiences can alter what he/she considers to be rape. A person’s interpretation of the definition of rape can be altered by the legal or social definition and therefore even when a person has been victimized, he/she may not even consider it to be a victimization. This helps to prove that rape’s definition is relative and not universal.
5. Rape culture is normalized across college campuses
The Essential Content of the Article: This article argues that college students are desensitized to rape and therefore perpetuate rape culture. It states that “rape is about power, control and dominance.”
What it Proves: This article proves only that the author feels very strongly about rape and defines it much differently than others do. The author blatantly makes the statement that all rape cases are caused by “power, control and dominance”, but offers no factual proof of this statement. This article aides my argument solely because it proves that the definition of rape varies greatly from person to person.
Additional 5 sources:
1. Intimacy Without Consent: Lynching as Sexual Violence
The Essential Content of the Book: This book seeks to show that lynching has a tendency to involve not only violence, but also sexual violation of the victim, regardless of the victim’s gender. In addition, the race of the victim plays a large role; if the victim is black and male, the case is treated very differently than if the victim is white and male.
What it Proves: This proves that because cases of sexual assault are taken more seriously if they involve the violation of a female, especially a white female, legitimacy of rape is defined by a person’s gender and race. This will help prove my point that consent is socially constructed because factors such as race and gender should not matter if every person is equally capable of giving consent.
2. Party Rape, Nonconsensual sex, and Affirmative Consent Policies
The Essential Content of the article: This article shows that many college age men do not consider forcing a woman to have sex to be rape. 32% of college age men said that they would force a woman to have sex, while only 13% said that they would rape a woman. It also shows that the law tends to favor these often otherwise successful young men over their victims.
What it Proves: This proves that rape is defined differently depending on how you ask. Men view forcing a woman to have sex to be different from rape, when in reality, they are the same thing.
3. Concubinage and Consent
The Essential Content of the text: The text explains that wives and slaves in Islamic history had very different rights, even though slaves could be married off without their consent. Slaves could be treated far worse than wives and it would be perfectly permissible. However, their husbands needed to treat them better than their owners did.
What it Proves: This shows that what was considered acceptable in some situations was completely unacceptable in others. The law allowed for owners to rape their slaves, yet their husbands could not perform the same act under the same circumstances, or it would be considered illegal.
4. ‘Talk, Listen, Think’: Discourses of Agency and Unintentional Violence in Consent Guidance For Gay, Bisexual and Trans Men
Helpful quotes: “You don’t have to say no in words. Many people who are threatened, frightened, tricked or stopped from escaping feel so scared that they choose not to say anything and not to ‘fight back’. This is a way people survive sexual attack. The law says that your consent has to be given /freely/.” (Galop, Help & Advice, Your Rights & the Law, Consenting To Sex, Some Questions About What Consent Means)
The Essential Content of the article: This article explains the focus on men in the explanations of sexual assault and consent made by Galop. It helps to put into words the traumatic experiences people in the LGBT community have.
What it Proves: This article proves that there is always a neglected race, gender or sexual orientation when it comes to defining rape and consent. Because one type of person is always left out, the definition of consent always falls short of its intended meaning. In this way, the definition of consent is not universal. This helps my argument because it proves that for certain types of people, legal consent cannot be given.
5. R.v.A. (J.) And the Risks of Advance Consent to Unconscious Sex
The Essential Content of the Article: This article describes the risk of agreeing to sex before one of the partners becomes unconscious. It explains that any misunderstandings in the advance consent or mistreatment of the partner during the unconscious sex could result in rape and therefore unconscious sex should be automatically considered rape.
What it Proves: This proves that consent is impossible to define in exact terms. The partner could agree to the unconscious sex before the act and yet it could still be defined as rape.