The dictionary at dictionary.com defines consent as “permission, approval, or agreement; compliance; acquiescence”, “agreement in sentiment, opinion, a course of action, etc.”, and “accord; concord; harmony”. What the dictionary fails to state is the definition of consent as it relates to law, particularly laws regarding rape.
Rape itself is defined by the same website as “unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body part, or foreign object, without the consent of the victim.” However, if you consider how the law defines rape, it sheds a very different light; in fact, until recently, rape could only be a man against a woman, and the woman could not be the man’s wife. Certain factors also contributed to whether or not an offense was considered rape; as the Free Dictionary states, “women who were raped were expected to have physically resisted to the utmost of their powers or their assailant would not be convicted of rape.” In the modern era, society uses the more inclusive definition stated at the beginning of this paragraph. Even the up-to-date definition does not explicitly cover everything, though. Because consent has the ability to vary from court-to-court, so does the definition of rape.
Not only do societal views define rape, those same views formulate the laws that define rape. In approximately 1780 B.C., people believed that only virgins could be raped; this was reflected in their laws, which stated that rape of a virgin was property damage against her father. For most of history, it was also agreed that only women could be raped. Men were only recently included in the definition of rape. In 1290, the definition of rape changed; without a woman’s consent, she could not get pregnant. Basically, if you get pregnant from rape, it was never rape to begin with. The definition was altered again in the 1300s. The intensity of the punishment was affected by how promiscuous the woman was; a virgin was more legitimate in her charge of rape than a whore was. At the end of the 1300s, the definition of rape changed yet again. Virgins were no more credible than other women, and girls younger than 12 could not consent. In 1670, it was concluded that a man can legally rape his wife, because the marriage contract forfeited his wife’s right to consent. Sir Matthew Hale, an English judge and lawyer at the time, stated, “[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Furthermore, race was a deciding factor; black women could not be raped, or at least if they were, the law did not care. It was decided in 1814 that rape could be determined by pregnancy; if a woman was raped, she could not become pregnant. Samuel Farr, an English physician at the time, decided that a woman could not become pregnant without an orgasm, and rape could not occur if there was an orgasm. In his Elements of Medical Jurisprudence, he says, “For without an excitation of lust, or the enjoyment of pleasure in the venereal act, no conception can probably take place. So that if an absolute rape were to be perpetrated, it is not likely she would become pregnant.” In the 19th century, it was agreed that if the woman did not actively resist her rapist, she was not raped. Throughout time and across different places, the definition of rape changes. Although the modern definition of rape is much more inclusive than, for example, the definition from 1780 B.C., it is likely that the definition will change yet again in the future.
If consent is an “agreement in sentiment”, then what exactly constitutes this “agreement”? That question can be extremely difficult to answer; it is the reason why many feel they have been wrongly convicted, as well as why many victims feel that they have not received adequate justice. The problem is that consent is not always explicitly voiced. For example, it is likely that not everyone outright asks their person of interest, “do you want to have sex?”, but rather goes through the motions, seeking nonverbal cues to express their intentions. Nonverbal cues are vague and easy to misinterpret, however. Discomfort may look like consent to a less socially observant person. The unobservant person can now be charged with rape simply because he could not pick up on the subtle nonverbal cues of his partner. At the same time, his partner could have believed that her discomfort was clear and obvious and did not need to be stated aloud.
Even when consent is clearly stated, it may not be consensual to the victim. The victim may feel as though the consent was forced from her and therefore not true consent. In this instance, a man may feel that he is justified in continuing with a sexual act, when in reality, his partner does not consent to it. Therefore, it can be concluded that consent can never actually be given.
Every sexual act is rape. A person could clearly and explicitly tell her partner “yes”, but if for even a moment she doubts her feelings or feels any amount of discomfort, the consent is void and she could consider the situation to be rape. No one is capable of stating “yes” in every single moment of a sexual act. The second a man’s partner stops saying “yes” to take a breath of air, his partner has relinquished her consent. And a sexual act without consent is rape. It is especially true that every sexual act is rape because the modern definition includes people of all races and all genders. In the past, it could be argued that almost nothing was rape. Unless you were white and a virgin, you could not be raped in the 1780s B.C. Slowly, more people were included into the definition of rape, until it included the wide range of cases it now encompasses.
Eichelberger, E. (2017, June 25). Men Defining Rape: A History. Retrieved February 14, 2018, from https://www.motherjones.com/politics/2012/08/men-defining-rape-history/
Consent. (n.d.). Retrieved February 14, 2018, from http://www.dictionary.com/browse/consent
Rape. (n.d.). Retrieved February 14, 2018, from http://www.dictionary.com/browse/rape?s=t
Rape. (n.d.). Retrieved February 14, 2018, from http://criminal.findlaw.com/criminal-charges/rape.html
Rape. (n.d.). Retrieved February 14, 2018, from https://legal-dictionary.thefreedictionary.com/rape