Another reason why everyone needs to read “yes means yes”

this is from a recent post by Ophelia Benson. I suppose I could have posted that in the comment thread, but the conversation has moved on, I really didn’t feel like wading too deeply into a thread infested by D*vidB*ron. So, anyway, here’s the relevnt bit, from another MRA’s rant about how mean women are for saying he can’t cold-proposition them in an elevator:

The solution to such ambiguity is simple – as a way forward, women who attend atheist-skeptic conferences that are absolutely certain they don’t want to be hit on should wear a clearly visible “do not proposition me” sign on their backs. If not, maybe a colour-code can be designated for such women by the event organisers – let’s say, red – and then it could be announced that all women wearing red clothes should not be propositioned or approached by strangers. But will they do this? Most probably not.

note that fuckweasel says women should wear special clothing to signal a “no”. This is one of the things addressed in “Yes Means Yes”, namely the fact that women are considered to be in a constant state of availability. They needn’t signal a “yes” because they’re always assumed to be in a perpetual state of “yes” unless otherwise indicated. That is rape culture. Any woman who doesn’t signal strongly and unambiguously enough that she absolutely and decidedly doesn’t want to is considered to be saying “yes”. This is why it’s so damnedly difficult to convict rapists: the prosecution must actually somehow prove that the woman did everything conceivably possible (and then some) to say “no”, rather than simply prove that the woman didn’t say “yes”. Because the “yes” is assumed, while the “no” has to be “demonstrated beyond reasonable doubt”.
[/rambling]

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9 comments on “Another reason why everyone needs to read “yes means yes”

  1. Walton says:

    This is why it’s so damnedly difficult to convict rapists: the prosecution must actually somehow prove that the woman did everything conceivably possible (and then some) to say “no”, rather than simply prove that the woman didn’t say “yes”.

    Indeed. In England, the law was changed in 2003 specifically to address this problem. It used to be the case that a defendant accused of rape had a defence if he honestly believed the victim was consenting, irrespective of how unreasonable that belief was; the prosecution had to establish that he actually knew that the victim was not consenting. (This was known as the Morgan defence, after a case in the 1970s.) Obviously, this made it very easy for actual rapists-in-fact to be acquitted.

    Today, under the Sexual Offences Act 2003, a defendant only has a defence if he reasonably believed the victim was consenting; the defendant is expected to take reasonable steps to ascertain whether the victim consents. So “she didn’t explicitly say ‘no'” is not a defence; the defendant’s belief that the victim was consenting has to be an objectively reasonable one, in all the circumstances. There are also certain evidential presumptions; if, for instance, the victim was drugged without hir consent, or was unlawfully detained or subjected to a threat of violence, this creates an evidential presumption that xe did not consent, and the burden of proof falls on the defendant to prove the opposite.

  2. Walton says:

    (Not that the change in the law has entirely solved the problem: of course it all still depends on the interpretations of judges and juries, and how credible they find the evidence. And as long as we continue to live in a culture infused with sexist assumptions, and continue to use an antiquated and male-dominated legal process, it’s still going to be difficult to convict rapists. Even so, the 2003 legislation did make the burden on the prosecution easier to satisfy.)

  3. David Marjanović says:

    Even so, the 2003 legislation did make the burden on the prosecution easier to satisfy.

    Do you happen to know if the number of convictions rose at the same time?

  4. Walton says:

    David: I didn’t know the answer to your question, never having researched it, so I did some checking just now. According to the Crown Prosecution Service, the proportion of convictions in prosecutions for rape has risen somewhat in the last few years; though this isn’t necessarily all due to the 2003 legislation. (The proportion of convictions for domestic violence offences has also risen during the same time-period.)

    However, those statistics only relate to cases where the alleged offender is actually charged. In comparison with the total number of rapes reported to police, the conviction rate is much lower. According to the Fawcett Society and this article, the ratio of convictions to reported cases actually declined between the 1990s and 2004, with only 1 in 20 of the rapes reported in 2004 resulting in a conviction. This figure may be slightly misleading, as the total number of rapes reported to police also increased substantially during the same time period; however, it remains the case that the great majority of rape allegations do not result in charges being brought, much less a conviction. (And, of course, the British Crime Survey and similar self-report data-sources also consistently indicate that the overwhelming majority of rapes are never even reported to police in the first place.)

    I haven’t been able to find more up-to-date stats, so I can’t tell you if the 2003 legislation has had a long-term impact. But these statistics are pretty scary. Of around 14,000 to 15,000 rapes reported to police each year, only 700 to 800 result in a conviction; and studies typically indicate that around 75 to 95 percent of rapes are never even reported to police, so the actual number of rapes may well be somewhere between 50,000 and 300,000. The empirical evidence thus leads to the worrying probability that there are tens of thousands of rapes in Britain each year in which the perpetrator gets away with it. (And these statistics only include rape; we’re not even counting assault by penetration, sexual assault, or other violent sex offences.)

  5. David Marjanović says:

    Interesting, if depressing. Thank you!

    What’s the difference between rape and assault by penetration? Is that penetration with an object?

  6. Walton says:

    What’s the difference between rape and assault by penetration? Is that penetration with an object?

    In English law, the definition of “rape” necessarily involves penetration with a penis. So it is not possible, in law, for a woman to be convicted of rape. (The definition does expressly include a surgically-constructed penis, so a post-op trans male can be convicted of rape, though I don’t know if this has ever happened.)

    Rather, forced penetration with a foreign object constitutes the separate offence of “assault by penetration”, created under the Sexual Offences Act 2003. This is considered to be more serious than an ordinary sexual assault, and carries a longer maximum sentence.

  7. David Marjanović says:

    Thanks.

  8. DB says:

    I hope that blogger was joking, esp. given her choice of color. “Red” is the WORST possible clothing color to use for a negative signal. Many studies have proven that men and women find red to be a turn on. When shown two pictures of the same person, the one in which red it worn is chosen as more attractive. (Not to mention monkey-butts.) Also, cut and style of clothing means different things to different people.

    As far as rape goes, women have to become and be recognized as full fledged members of society before any real progress can be made. In Washington state both of our Senators are women (serving 20 and 12 years so far). The Republican challenging Maria Cantwell’s seat has said she is unqualified to vote on Plan B because “she isn’t married”. Women’s rights are moving backward currently and it scares the heck out of me.

  9. […] “why don’t women just wear buttons” idea came up. I’ve dealt with that crap before, and some of the less dense posters also pointed out that degrees of consent are every-changing, […]

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