Then, “What is consent?”


Last week in our class we read very intense articles about the court and law with regards to sexual assault and domestic violence. The Court case that really made my head spin, and think about the law very seriously was called Rusk v. Maryland in The Social Organization of Law by Judge Austin Sarat. In this article it used a very particular case as an example in how the law might be gendered and instead of focusing on the perpetrator, the courts focus on the victim in sexual assault cases.
A woman named Pat and her friend Terry went to a bar to have a couple of drinks. In one of the bars Terry was approached by a man who Pat assumed was Terry’s friend. Pat spoke to the man for a while and found out they had things in common. The night was becoming long and Pat wanted to leave because she had to wake up early for her two year old son. Terry did not want to leave. When Pat was getting ready to leave the same man she spoke to earlier approached her again in conversation. He asked if she could drop him off at his place on her way home. She said “yes”, but warned him away from any other ideas. To cut the story short, Pat dropped him off at his place. He insisted on her going up to his place, but she kept saying “no”. Like a child, he took her keys. Not thinking she would be sexually assaulted, she went after him to grab her keys back. After that he sexually assaulted her, Pat was very scared for her life, and after the crime was done he gave her back her keys.
In Court Pat mentioned that she did not physically resist due to her fear and she kept saying “no”, but because she was afraid for her life she went on with the act. At that time when the article was written, the victim had to prove that she fought the perpetrator off with force and resisted in order for the court to consider it “rape.” (I am currently using sexual assault to describe rape because I do not enjoy the word rape) The author pointed out,” Consent is not an issue here, only whether there was sufficient evidence of force or the threat of force.” So in a way, the court focuses on the level of resistance from the victim rather than the actions of the defendant and the topic of consent.
Force, as it is commonly understood, is an act of physical violence towards a person or an object. I do not understand why the Court insisted on reviewing such acts of force or resistance when considering the idea of consent?
So I looked up different definitions in what consent means. In Merriam- Webster, consent means, “to give assent or approval: agree.” Another definition is by Oxford Dictionaries the noun definition,” permission for something to happen or agreement to do something,” and in verb form, “give permission for something to happen and agree to do something.” Out of curiosity I looked in the Urban Dictionary and one of the many inappropriate definitions and examples where, “Getting permission for touching, kissing, or various sexual behaviors. Consent cultures is becoming a wider spread movement especially within feminist settings. If one does not have consent for a said act, the act is often considered sexual assault.” I was wondering what “consent culture” stands for because I have never heard of this particular phrase. In the Urban dictionary consent culture has two long definitions, but the basic thing is: the person has the choice and they are seen as a capable person to make their own decisions. Not one definition mentioned violence or resistance, but made it clear that it is a decision of a person.
Now tying this with Pat’s case, she said no: before they got in the car, in the car and in his apartment. It is clear she did not give consent. Did the man not understand what “no” meant? Or did he magically hear a “yes” instead of a “no”. What the court picked out was the fact that she did not run, fight back, or used aggressive force. To make it clear, the court did not really care if she consented because they mixed resistance with consent. To them fighting back meant “no,” rather than her saying “no” which meant “no” towards the defendant. Should the defendant be set free or go to prison because she said “no”, but did not fight back to mean no?
This is an old case and an old article and we are in the 21st century, but can it still be happening? In which the court does not really take to heart the victims “consent”, but look at the resistance of the victim for a possible ruling of “not guilty” for the defendant because resistance is more important rather than verbally saying no? Do people understand what consent is especially now that we have an understanding that every case is different? As well, there can be other factors involved for example drugs or alcohol to consider.
I truly believe that consent is a very important factor as well the condition that the victim was in at the time of the crime. I think it is ridiculous that back in the day or possibly some courts in the 21st century may think that resistance or fighting back means “no” and used to prove it was sexual assault, rather than having it said verbally. Words are powerful and language is how we communicate. People should understand basic words and courts should respect and acknowledge that. Not everyone fights, but use their language to protect, defend and consent.
“No” means no and “yes” means yes, it is not “No” means yes.

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11 Responses to Then, “What is consent?”

  1. Wunderkynd says:

    Great post!

  2. seancity971 says:

    Beautiful post, very well written. I think you are strong in posting about such a controversial issue but it is something that should be discussed more. I personally found connection with the post because I work for a company called Streetlight that helps saved child sex slaves in Arizona. We talk a lot about the importance of safe sex and not getting in bed with dangerous men. No certainly does mean no and no one should disagree. This is an issue of men and mens mindsets. If we can affirm in their head from a young age that sex is very serious and comes with many boundaries, I think that would have a huge impact on the number of abuses we see today.

  3. mernasyawish says:

    Great post! It angers me that victims of rape have to go through such a long and overwhelming process just to prove the horrific experience they had to undergo. It’s unfortunate that the court feels the need to question the victim more than the rapist. It doesn’t matter what a person’ precise definition of getting “raped” is! If one does not give consent to being sexually intimate with another, and that other person disregards their lack to give consent and continues on to be sexual, that IS rape. It is as simple as that. I like how you mentioned the story with the girl and her keys being taken away, many people would assume that she had other opportunities to run away and that it’s her fault for going after the guy, but really, it’s easy to assume that one wouldn’t dare to go that far to sexually assault someone, she just wanted her keys back, I think lots of women would do the same.

    • lgallar1 says:

      Thank you! I feel like this example helped get my point across that their are different circumstances and they should be looked upon not looked down upon. Every person is different and they will all act differently in face of danger. Our court system, who is there too defend us and prosecute the ones that hurt us or others in society, needs to see cases in rainbow colors not in black and white.

  4. jenny9213 says:

    I completely agree with you! It is unbelievable how “no resistance” means that they wanted to be sexually assaulted. Verbal resistance wasn’t even considered solely because it didn’t leave any marks on the perpetrator. It enrages me that these perpetrators be defended when the victim didn’t give their consent and then be attacked for not physically fighting. Like you mentioned, we all have different our methods of fighting. Some, to minimize the physical damage, will VERBALLY say no to the perpetrator and others will physically fight the perpetrator. They are both legitimate ways to deny consent!

  5. Tracy Encizo says:

    Great post and graphics! You articulated what I felt reading about the case and others dealing with this issue. I know many women, including myself, who have dealt with these issues and I hope I have raised daughters who are better prepared for them than I was.

  6. lgallar1 says:

    Thank you, I am very glad you enjoyed this blog post. I have not gone through this, but I know many people in my family who have. It is truly heart breaking to listen to their stories. I wanted to make this as powerful and deep because I want people to be aware and learn. I am sure your daughters are prepared and they have you to support and guide them.

  7. fallenstar66 says:

    Very well written post. In looking at the case you brought up, it is not surprising that they looked at the amount of force that the women did to determine whether it was assault. And that is because unfortunately, society has an old stereotype that I know many men follow and some women feed into, which is “When a women says no, she is really saying yes and is playing hard to get”. And though it is not the only factor, I believe it helps feed into this idea that even if a women says no, its ok to keep pushing because that it what she really wants and if that’s not what she wants, then she will attack the person. However, as you brought up in the court case, how can anyone determine what amount of force on the victims part justifies the label sexual assault? At the end of the day you can’t pick a definition that can be used in all cases, especially when every case is different and isn’t fair in the cases where someone is physically unable to fight back. This idea of a consent culture bothers me because it should be a given that when someone says no, they mean no and that is what a court should use to determine assault.

  8. smbockrath says:

    This is an excellent post that examines the different definitions of consent as it relates to sexual assault, and expresses outrage at how courts and our entire justice system is biased towards male perpetrators of sexual assault and against their female victims. I thoroughly enjoyed reading about your perspective! And while I completely feel the same amount of outrage and disgust, I want to think about what explains the laws and the biases of the courts that make cases like this one common. I believe the answer lies in the history of both the United States and the entire world, and the patriarchal foundations that every aspect of our society rests upon. While rape/sexual assault is illegal in most modern countries (and has been since pre-biblical times), these laws are designed to protect men who commit rape, not women who are victims of it. And this transcends the scope of just this case, or just specific judges; these problems stem from the patriarchal foundation of the American justice system. The clearest example of this in my eyes is the thousands of rape kits that go untested by local police departments every year. This woman was lucky in one sense, to even get her case to be heard in court, as many cannot even get that far (no one who is victim to sexual assault is lucky, but some see more justice than others). Women must correctly jump every hurdle to reach justice for the horrible act that they’ve endured. Consent is an important issue that we all need to understand in the context of sexual assault. But we must also understand that it is not just how we define sexual assault that is despicable in this country, but how the justice system treats victims every step of the way.

  9. dakotalarson says:

    I found your post very intriguing and interesting. Sexual assault, rape, and consent are very important subjects that should not be taken lightly. Before I begin, I want to note that because I did not read this case, my response post is solely based on your substantial post.

    It is clear that Pat did not give consent, and as you mentioned, I think it is wrong that the court did not take this into account and that in order to consider it rape, she had to prove that she fought back. I think this is unreasonable to ask because not everyone is going to react the same way. Because she was probably so scared and shocked, I do not think she was able to act with clear judgment and logic.

    However, I do think this could have been approached in a different manner, and perhaps none of this would have unfolded had Pat not agreed to drive Terry home. It seems that she had a gut feeling of Terry’s suspicious behavior, shown by the comment of warning him from any further actions besides driving him home. I firmly believe that listening to these gut feelings are extremely important, yet she probably ignored them to be a nice person. I easily think she could have gotten out of the situation by saying she really needed to go home but could call a cab for him.

    As far as her repeatedly saying “no” to going up to his apartment, to a certain degree, I think Terry already knew he could take advantage of her because she agreed to drive him home, making it a little late for her to sound too convincing. Furthermore, while “no” means no, I feel there are varying degrees based on your tone. She was probably very nervous and her voice was probably shaking.

    I am not saying that she was in the wrong in this situation, but I attribute her reaction to a lack of education and preparedness on how to respond. Since this post was written, ASU hosted an “I Always Get Consent” week in September, which addressed consent and education regarding sexual violence. I attended some of these events, which I thought were very interesting and helpful. In addition, before the start of the semester, we all had to take a mandatory Consent and Respect online course. I am glad to see that ASU is taking a stand on this issue and believe that if we educate citizens about such issues, it will give individuals power to take control of the situation.

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