Feminists have gotten a lot of traction out of the Steubenville rape case. Unlike many of the other prominent cases that caught the nation’s attention, this case had no wiggle room and ended with two convictions. The boys recorded themselves assaulting the girl. They and others traded the video and pictures. There was no question even from the photos that the girl was intoxicated and could not consent.
This provided the ammunition many feminists look for when talking about sexual violence against women. Many feminists talk about consent in broad terms, but this case provides them an example of someone clearly not saying “yes” and clearly being incapable of saying “no.”
All of the conversations about consent have revolve around the idea of “affirmative consent”, the notion of males getting a verbal “yes” from females. As Thomas MacAulay Millar puts it:
Some folks call that “enthusiastic participation” and some call it “affirmative consent” which sort of sounds more technical, but when you’re getting busy with someone, it sounds like “Yes!” “Take your cock out” “I want to touch it”, “I want to suck it.” Which is way hotter than just laying there, right? So how do you get that? Ask.
There are a number of problems with that logic, starting with the pesky fact that most people, men and women, do not ask for or give verbal consent to engage in sexual activity. The other is that, just like cases without verbal consent, there are usually only two people there to witness the act. Even if one got “affirmative consent”, short of recording it one would lack any proof that one got it. The only counter argument to this is that no woman would ever claim that consensual sex was nonconsensual, which is untrue.
Yet what Miller is really getting at is the notion that sex is transactional. One person offers/requests something and the other grants it. That is generally the nature of most human interaction. One person wants something from the other, and other either gives or denies it. Jill Filipovic disagrees with that transactional nature:
The underlying assumption is that sex is a transaction service women provide for men, and that smart and virtuous women will trade sex for something else they want – marriage, commitment, decent treatment.
When sex is perceived a commodity that women have and men get, our laws, our courts and our juries similarly use a transactional model to assess sexual assault. The baseline is that men always want sex, and women are in the position of withholding or relenting. While most state laws have been updated to reflect the fact that sexual assault turns on consent, the presumption remains that men will naturally try to “get” sex at all costs, and so the onus is on the woman to clearly and forcefully express her refusal to partake in any sexual interaction. Sex isn’t a thing that both parties should have to say “yes” to; it’s a thing that women have an obligation to refuse. Sexual assault charges are routinely dropped or not filed in the first place, and defendants are routinely found not guilty, if a victim didn’t clearly enough say “no”.
That is a very skewed view of how sex between men and women actually works. Even her preceding explanation about the cause for such transactional sex is problematic. That Western religion distorts sexual activity is beyond question. Western religions consider masturbation sinful. If touching yourself is an impure act, imagine how those religions would view people touching other people’s bodies, let alone putting their body parts on or in other people’s bodies.
However, the notion that women have an obligation to say “no” to sex is untrue. Likewise, the notion that cases are dropped, dismissed, or result in acquittal solely because a woman did not say “no” is untrue. Filipovic is a lawyer, and one would think she would know better than that.
The law requires the state prove a crime occurred. If the state cannot find evidence supporting their theory and cannot convince a jury or judge of their version of events, the accused must be acquitted. If the state lacks the evidence to support their charges, the case must be dismissed. If the state lacks evidence to support arresting someone, it cannot file charges. That some victims feel that no one will believe and therefore will not report their assaults is a terrible thing that we should fix. However, that has nothing to do with the state’s burden of proof.
It would seem then that Filipovic takes issue with that burden of proof, specifically that female victims should have to proof they did not consent. Filipovic’s answer to this “problem” is to make “affirmative consent” part of the law:
A shift to a legal model of affirmative consent could help change that. With affirmative consent, there’s less grey area. The baseline assumption is that sex acts must be entered into with a meaningful “yes”. Rape victims would no longer have to prove that they vociferously objected to sex, just like a robbery victim doesn’t have to prove he verbally told a thief not to take his belongings. An affirmative consent model assumes that women are sexual actors, too, and that men have agency beyond simply trying to get sex at any cost.
Legally, this would mean clarifying the meaning of “consent” in our penal codes to make clear that the question isn’t whether a woman voiced her lack of consent, but whether the sex was mutually consensual. In practical terms, that will probably mean that if a defendant uses consent as a defence to a sexual assault charge, he would shoulder the burden of demonstrating that the defendant affirmatively and meaningfully consented – not that she just didn’t say no, or that she was competent enough to say no if she wanted to.
Let us start with the basics: First, the law already recognizes that sex must start with consent. That is why all 50 states have rape/sexual assault statutes stating something akin to “a person commits the crime of rape if the person engages in sexual activity with another person without the consent of that person.”
The law does not require that the victim prove that they “vociferously objected to sex”, only that they did not consent. In some cases, the law itself declares the person incapable of consenting, as in cases of minors, the mentally disabled, or the intoxicated. In those cases, the state only has to prove that the sexual activity occurred and that the victim met that criteria. In both situations, the cases hinge on proving that the person making the complaint has a valid reason to make the complaint.
Filipovic’s robbery analogy fails because in robbery cases the complaint does have to prove they did not allow the accused to take the item. She tries to get around that obvious element of the law by hinging her argument on verbal consent, but legally speaking, the nature of the consent is irrelevant. If one sends someone a text message stating that the person can have a particular item and that person later takes that item, that one did not verbally say “You can have it” does not make that person a thief.
Filipovic claims that her new model will recognize that women have agency, yet it does not. It instead assumes that short of verbal consent women are incapable of giving consent.
Second, the issue of “voicing” consent is a problem. Sex is not a simple transaction. People often do not explicitly state, as Miller suggested, “Yes!” “Take your cock out” “I want to touch it”, “I want to suck it.” Most often, people simply engage in sexual activity by reading each other’s body language. Likewise, some people say the opposite of what they want. Some may say, “No,” “Not there,” “Don’t touch it” when they really want people to continue the sex.
Rape cases do not just deal with whether the sex happened or whether it was consensual, but also whether the accused could or should have reasonably known the other person did not consent. If a person never says no and never does anything to show they do not want to continue with the sex, how would the other person know? Many rape cases boil down to this, and that is partly why some of them result in dismissal or acquittal.
What Filipovic wants to do is put the burden on the accused to get the “yes”, which leads to the third issue with her proposal: presumption of guilt.
Filipovic’s position would force the accused to prove their innocence, i.e. to prove they did have verbal consent. That would violate the 5th, 6th, and 14th Amendments of the United States Constitution. It would also run against Coffin v. United States, a case from 1895 that affirmed a person’s right to the presumption of innocence.
The state has the burden of proof for a reason: they are the ones bring the complaint. To argue that the accused must prove that they had consent assumes that no consent was given. However, the accused is not making that claim; the accuser is. Therefore, the accuser must show that they did not give consent. In other words, the accuser must show that they were wronged. Putting the burden of proof on the accused forces the accused to have to prove a negative.
This is so obvious that Filipovic spent most of her article on the “history of rape” rather than explaining her new proposal. Indeed, when asked on her own blog to explain it, the best she could come up with was:
The prosecutor has the initial burden of proof, yes. And even with an affirmative consent model, it would still fall on the prosecution to provide evidence that the victim did not say “yes” (the evidence could be her testimony, among other things).
No, it would not. As noted above, the new model assumes that consent was not given, so the state has nothing to prove. Once the person says “I didn’t consent” that is the end of the state’s burden. Filipovic realized this and tried to explain:
In some jurisdictions, consent (or an honest or reasonable mistake as to consent) is an affirmative defense to sexual assault. In cases where an affirmative defense is raised, the defense has to provide evidence supporting their contention. This would essentially extend meaningful consent as an affirmative defense, which the defendant would have the burden of providing, instead of just making the argument that “she didn’t say no.”
When asked to give an example of such a case Filipovic remained silent. That is likely because there are no examples in modern American law of a person being required to prove they did not commit an act. The only examples of affirmative defense Filipovic will find are cases in which a person is countering the state’s argument. In other words, the state argues that the girl was intoxicated and therefore raped because she could not consent, so the defense argues that the girl did consent and adds that she was a heavy drinker, therein implying that she could consent while intoxicated.
Another example would be the Jodi Arias case. The state claims that she premeditated the murder of Travis Alexander out of jealously. Arias counters that by claiming she killed him in self-defense because he was abusive and attacked her. The defense does not have to put on a case at all. They can simply pick apart the state’s witnesses and evidence on cross examination.
People typically choose an affirmative defense when they agree the act occurred but disagree with the state’s position on how or why it occurred. Even then, if the defense fails to prove their case, that is not grounds for a conviction. Only the state has the burden of proof. So if the jury does not buy Arias’ self-defense argument because her attorneys poorly presented it, they cannot use that against Arias in making their decision. They must address whether the state proved its case beyond a reasonable doubt.
This is basic law. This not something one needs a degree for. This is something that one can find out watching old Muppet Babies cartoons. Yet, the idea of forcing men accused of rape to prove they are not rapists is so appealing to some feminists that they try to defend violating people’s rights to due process. As Miller states on Feministe:
It no more shifts the burden to say that silence is not consent than it does to say unconsciousness is not consent.
Yes, it does. Unconsciousness is a physical state of impairment. An unconscious person cannot give consent. A silent person, however, is not necessarily impaired. One can be completely conscious, aware, capable, able, and consenting and never state a word.
Miller tried to better explain his theory:
Right now, in Ohio, “substantially impaired” means incapable of legal consent. In New York, “physically helpless” means incapable of legal consent. In every state, younger than some specified age means incapable of consent. The State proves the absence of consent by proving these conditions.
Miller fails to understand his own argument. Each example he gives implies that a person experiencing them cannot give consent because they literally cannot physically or verbally communicate anything or that their mental state is such that they lack the ability to understand what they are consenting to. Silence, however, does not present the same issue. A person can remain silent and fully consent to an act.
I won’t speak for Jill, but amending the substantive law to say simply “consent may not be presumed because the victim failed to verbally articulate refusal” would mean that the State would still have the burden of proving nonconsent, and would have to put on competent evidence to show that the victim (1) didn’t, or (2) was not legally capable of consenting.
It would if the accused did not have the burden of proving there was consent. By forcing the accused to prove there was consent, the state’s position becomes a given. In other words, if one argues that the accused must prove they got verbal consent, one assumes that they did not have consent to begin with. If one questions whether the accuser gave consent, there is no reason to demand the accused prove they got consent. Both answer the other question, so you cannot have both models in the same case.
Let us use Steubenville an as example. If one puts the burden on the accuser to prove she did not consent, proving that beyond a reasonable doubt means the boys are guilty. If one does not prove it, the boys must be acquitted. If one puts the burden on the accuse to prove the girl did consent, proving that beyond a reasonable doubt means the boys obviously are not guilty. If one does not, … well it gets tricky. Have we proven they committed crime or only shown that they cannot prove they did not commit a crime? That is the other glaring problem with Filipovic’s model.
In normal cases, if the state fails to prove its case the accused walks. In the new model, what happens? Failure to prove you did not commit an act does not mean you did commit the act. What do we do? Do we convict anyway? Oddly enough, this very problem is the reason why the state has the burden of proof. This is why the accuser has the burden of proof. As a lawyer, Filipovic should know this, and it is doubtful she does not. She just wants more rape convictions and does not appear to care about the immorality of her new proposal.
The Feministe comments are a wonder to read because dozens of people realize the problem with this new proposal. It is wrong on a fundamental level and they know it. But they want this new proposal because it fits into their ideological perspective, so they try their hardest to make it work, even though the very examples they give show that the logic is fundamentally flawed. Miller tried to explain “affirmative consent” before and could not do it in any concise, coherent, or gender neutral way.
The problem here is not the law. Rape statutes work the same way assault and theft statutes do. They require the person making the complaint, via the prosecutor, to prove the incident took place as they say. This works, and scores of people end up in jail and prison for it. It works so well that there are even innocent people imprisoned. The problem is that rape cases are hard to prove because there is typically little to no evidence outside of the two parties’ testimony. That is not a conspiracy, just the reality of the situation. Forcing the accused to prove their innocence will not change that. It will still be one person’s word over the other.
That may be a hard pill to swallow, but one cannot try to side-step that by flipping the burden of proof. Just because you cannot prove a rape happened does not mean you get to make someone prove they did not commit rape. Forcing people to prove their innocence is an unfair, often impossible burden, which is precisely why the United States Constitution prohibits the courts from doing that.
Where Filipovic has a point is that if someone argues that there was consent they should have to proof that position. However, affirmative defense is already part of the law. Anyone who argues it must provide evidence supporting that argument. That is why Jody Arias’ defense team put domestic violence experts and psychologists on the stand. Yet that defense does not remove the state’s need to prove its case. The difference between that and Filipovic’s model is that the latter would be the default in rape cases.
Once the state established that consent was not given by proving the accuser filed charges, the burden of proof would immediately shift to the accused. That is unfair, immoral, and unconstitutional. More so, it would not prevent rape. It would only make it easier to convict people charged with rape, whether they are guilty or not. That may not bother many feminists, but it should given that most women do not ask for men’s consent.
All that said, I would be remiss not to mention the grand irony of Filipovic arguing that the lack of verbal consent constitutes rape. This is the same woman who argued a few months ago that a woman having sex with her sleeping boyfriend was not rape because “he was sleep-walking, she thought he was awake.” This is the same woman who defended her rape apologist position while presenting herself as a victim.
Just so we are clear: Jill Filipovic wants to change the rape statutes in the United States to include “affirmative consent” so that the absence of a verbal “yes” becomes indicative of rape after arguing that someone who assumed they had non-verbal consent did not commit rape.