Questioning Consent
Say Jane and John have intercourse. They discuss nothing before or after regarding whether or not they give consent. Is there consent? Now assume they’ve had consensual sex before. Now is there consent? And if Jane and John are married, does that mean they have both consented? What if I told you Jane was completely drunk? Consent still? Now how about if John was equally drunk?
If John and Jane did have perfectly consensual sex without saying a word, what if John then says he does not consent? Is consent revocable? If so, is it revocable only during sex or after the fact as well?
Consent is one of the most ambiguous concepts for humanity to define. Unlike murder and assault, rape is surrounded by far less intuitive boundaries.
While The Centers for Disease Control and Prevention take into account incapacitation due to the influence of drugs/alcohol, the FBI considers rape to be “penetration, no matter how slight” and ignores drugs/alcohol in its count. The result is that the FBI counted only 85,593 rapes in 2010, which is markedly different than The CDC’s count of 1.3 million.
Wikipedia explains the problem in its own terms even as it reports this data in its article titled “Rape Statistics”:
Inconsistent definitions of rape, different rates of reporting, recording, prosecution and conviction for rape create controversial statistical disparities, and lead to accusations that many rape statistics are unreliable or misleading. In some jurisdictions, male-female rape is the only form of rape counted in the statistics. Countries may not define forced sex on a spouse as “rape.”
The article, “Denying Rape but Endorsing Forceful Intercourse: Exploring Differences Among Responders”, in the book, “Violence and Gender, Volume 1, Issue 4”, contains a table that further illustrates the ambiguity of rape’s meaning. Table 1 indicates that 31.7% of the participants in the survey would be willing to force a woman into sexual intercourse, yet only 13.6% of the participants would rape a woman.
The further the definition of consent is considered, the more unclear it seems. Inversely, the definition of non-consent becomes ever clearer.
But how can non-consent be clear if consent is so difficult to define?
Simple; because consent is invalid if it is not constantly expressed in a clear and explicit manner, non-consent is any situation in which this is the case.
The video “Tea and Consent” on consentiseverything.com claims that consent is ‘as simple as tea’. It uses the analogy of making someone a cup of tea to explain consent and non-consent. The video states that “unconscious people don’t want tea,” further explaining that even if the person was awake when asked if he/she wanted tea, this does not mean that he/she wants tea while unconscious. According to the video, consent given before the person became unconscious is invalidated as soon as the person falls asleep.
But has every person that has ever been unconscious during sex considered it to be rape?
The website offers at bulleted list of ultimatums about consent:
Make sure the other person is participating freely and readily. You can confirm if you have consent both verbally and by checking the other person’s body language. Someone on drugs or too drunk to make decisions doesn’t have the mental capacity to give consent. If someone is on drugs or seems too drunk to consent, or you’re not sure, stop. Wait until they are sober and ask them again. Somebody who is asleep or unconscious cannot give consent. Other things can also affect a person’s capacity to consent. Examples include a serious mental health problem, learning disability or a head injury. Having capacity means the person can make and communicate a decision, understanding the consequences and knowing they have a choice. If they cannot do this they cannot give consent. Your partner has the right to withdraw their consent at any time. Once consent is withdrawn you must stop engaging in sexual activity immediately.
But what if someone does not realize that his/her partner is not sober? And what if a person’s consent is withdrawn, and his/her partner stops, yet the person still charges for rape?
The video also claims that nothing short of an enthusiastic “Yes!” qualifies as consent. Anything along the lines of “okay” or “sure” would therefore not be valid. But again, has every person that has answered in such a half-hearted manner felt as though they were raped?
The only way to be certain that every case is treated similarly and fairly is to use the aforementioned definition of consent (clear, constant expression), which would create a very structured, almost robotic approach to one of the most human acts in existence.
The alternative to such a restrictive definition is to choose one of the many definitions of consent and apply it as objectively as possible. However objectively it is applied, it is nearly impossible to be consistent from case to case, and very difficult to be fair to every party involved. Although a restrictive definition is impractical in its application in daily life, it would certainly simplify and standardize court rulings on the matter.
References
Edwards, S. R., Bradshaw, K. A., & Hinsz, V. B. (2014, December 15). Denying Rape but Endorsing Forceful Intercourse: Exploring Differences Among Responders. Retrieved March 18, 2018, from https://www-liebertpub-com.ezproxy.rowan.edu/doi/full/10.1089/vio.2014.0022
#Consentiseverything. (n.d.). Retrieved March 18, 2018, from http://www.consentiseverything.com/
Rape statistics. (2018, March 15). Retrieved March 18, 2018, from https://en.wikipedia.org/wiki/Rape_statistics
Rowan Counterintuitive 
I used perhaps too many rhetorical questions in this rebuttal. I’ll ask for other feedback, but for the workshop I would like to analyze the sentence, “But how can non-consent be clear if consent is so difficult to define?”
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Thanks, DK. I’ve noted your Reply and copied your workshop “paragraph.”
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My bad, I didn’t realize it was supposed to be a paragraph. Instead, I’d like to analyze the paragraph, “The video also claims that nothing short of an enthusiastic ‘Yes!’ qualifies as consent. Anything along the lines of ‘okay’ or ‘sure’ would therefore not be valid. But again, has every person that has answered in such a half-hearted manner felt as though they were raped?”
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One could certainly say you’ve asked too many Rhetorical Questions. I wouldn’t, but one could. These questions you’re asking have a different purpose than the usual RQ. They invite USEFUL questions in the minds of your readers, not challenges to your own point of view. Their purpose is to illustrate that the answers are not easy.
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Regarding this sentence
I need some specificity here. Surrounded by boundaries doesn’t get me there.
—Is “consent” ambiguous? Or is it just impossible to confirm?
—What’s different about rape, compared to murder and assault? Not the intuitiveness of boundaries . . . it’s that the murder victim doesn’t consent, and the assault victim doesn’t consent, and the rape victim doesn’t consent. Oh, wait. That’s not a difference either.
—What’s different about murder and suicide is that both parties might consent to suicide. What’s similar about a boxing match and rough sex is that both parties might consent to a boxing match and both parties might consent to rough sex. What’s different about rape and lovemaking is that both parties consent to lovemaking. Make your own pairs with assault and boxing, or others.
—What’s different about consent in lovemaking and a boxing match? Nothing. It’s possible for one of the combatants to withdraw consent in both cases. In rough sex too. That’s the purpose of the “safe word.” If we’re to follow the letter of the new unspoken protocol, every couple who wants to be assured of not violating compliance will want to have a safe word to employ when one of the participants is “just not feeling it anymore.”
—Random thought: in boxing, it’s possible for the referee to withdraw consent on behalf of a boxer who is no longer deemed smart enough to call things off for himself. He consents before getting into the ring to subject the judgment of his “fitness for fighting” to the referee, but he might still want to argue that judgment in the heat of the bout. Or vice versa: he might WISH the referee would call things off. Is his consent ambiguous? No. But our ability to know his state of mind IS VERY AMBIGUOUS.
That’s the trouble with the “all consent all the time” definition of consensual sex. Our inability to know the mind of our partner.
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Regarding your question, “Is ‘consent’ ambiguous? Or is it just impossible to confirm?”:
I was unsure at the time exactly what I was attempting to prove, so I definitely shifted back and forth between the concept that “consent is ambiguous” and the concept that it is “impossible to confirm.” I think I confused the concepts because I was considering them to be the same thing. I’ll make sure to keep the distinction clear in the future.
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Yes, of course, they might both be true in any episode, but they’re not identical.
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By the time I finished reading all the way through, I concluded that, yes, in fact, you have asked too many rhetorical questions. They’re valuable to start the conversation, but you’ll need to use declaratives to deliver your conclusions.
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Regarding
Does drug or alcohol use account for an overcount of 1.2 million?
And, unless I’m reading your comparison wrong, if the FBI counts penetrations regardless of circumstances, wouldn’t that make them MORE LIKELY to count a drunken penetration of a sleeping partner as rape?
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I definitely misinterpreted the data here. In my rewrite, I suggested attributing the difference in count to other factors, like the CDC’s concern for patients compared to the FBI’s concern for crime data.
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