Which double standard? The people from whom I have generally heard this interpretation of the law are those trying to claim that rape laws overprotect women.
If that is what the law says then that’s what it says but sounds absurd to me.
To me that would be like you coming up to me and asking if I would be ok with you pouring water on my head, I stare at you dumbfounded so you decide that my silence equals an ok and dump a glass of water on me.
How consent for anything could be anything other than an affirmative action only I cannot even speculate on. It boggles my mind.
Apparently not considering what Villa said about the law.
Those are tough questions. Seems to me in the absence of any other evidence you end up with a he said/she said claim and that is not enough for a conviction or probably even an indictment. She may well have been raped but I do not see a reasonable way to go forward on that one without more evidence.
If there were evidence of physical abuse (e.g. she resisted) or neighbors heard her scream or what have you then things change drastically and you have to judge each case on its own merits.
I am not sure the meme of the raped woman getting a second round of horrible abuse at the hands of defense attorneys and the papers still holds. I am not saying a rape trial is ever easy for the woman but pretty sure states have curbed many of those excesses and I do not think the papers generally go on for painting her as a trollop. Seems to me more the presumed rapist is the one who curries public hatred.
The alcohol thing changes the situation, of course. If someone is drunk, then consent/absence of consent is viewed differently, just like if someone is 12, however much they say yes, consent has not been given.
I agree with miss elizabeth though on practical grounds. Those cases simply aren’t going to get prosecuted, even if they technically were rape. To throw the cat among the pigeons, though, I would imagine there would be far more chance of prosecution if both the victim and perpetrator were male.
And yes, I think the present state of rape law is absurd. I even wrote my law review note on it (which is why I have various rape cases committed to memory, not just a dangerous obsession with the topic.)
I was wondering about that. Its been informative.
If you want to read the article (shameless self promotion) let me know and I can send you a citation (assuming you have Lexis/Westlaw/HeinOnline access).
Damnit. I did have those cases committed to memory just from pure interest in the topic. I suppose I am dangerously obsessed. 
It depends a lot on the social status of the alleged victim. A college student who accuses someone of rape is likely to be more kindly treated by the public than a stripper who does the same thing.
Your experience might be very different than mine, but I find that most sex starts with making out, not negotiating a verbal agreement. It’s usually a little dance of escalating things from there. In that case, there may simply be no opportunity to discuss the matter.
“Do you want to have sex?”
Seems pretty easy to me. Obviously you can replace “have sex” with multiple other expressions depending on the mood. I’d think “should I get a condom?” would be pretty good in that situation too.
Erm… isn’t the entire dance an opportunity to discuss the matter? When in doubt, take a breath and use your words.
I would maintain that an affirmative action that you want to have sex does not need to be spoken. If the woman is pulling me in for a kiss and eagerly tugging my pants down I have always felt it safe to assume her affirmation for wanting to get busy has been given.
And in my opinon, you’d be absolutely correct.
But if you’re dealing with someone you have no previous sexual relationship with, who may or may not be somewhat incapacitated, absent spoken consent OR evident enthusiasm, I’d say it might be best to do a little check-in.
That was not the case for awhile with the 2006 Duke Lacrosse team. IIRC the boys were getting crucified for awhile. This would not bear out your judgment.
That’s assuming she even gets that far. I imagine many women don’t get further than their (usual) first point of contact – the police.
This kind of response always makes me feel so weary.
There is a huge difference between being certain you have the consent of the people you have sex with and " negotiating a verbal agreement". There are lots and lots of ways to ensure enthusiastic consent; some verbal (“do you like this?” “is this good?”) and some physical (slow down for a minute and see if your partner escalates or continues). You can be creative or blunt, but the thing is, you should be sure.
If you’ve been with someone 10 years, being certain they consent is often very easy. With someone new, there is no harm in slowing down for a second so you know she’s happy with where things are going. Most people think a little bit of talk is sexy; there’s no reason it has to spoil the mood.
That’s what Susan Esterich says in “Real Rape.” Reading that made me realize just how hard it is to get any case prosecuted. Kind of hard for me to believe that so many iffy cases of rape are resulting in convictions seeing how skeptical judges often are of women in cases where the force is fairly obvious.
If the dance is done correctly, there’s little doubt. If a woman is ticking her tongue down my throat and grabbing my package, I usually take that as a yes.
A yes to what though? A yes to “I would like to tickle my tongue down your throat and grab your package” or a yes to “I want to have sex with you?”
Great! You are certain you have consent before sex. Awesome. That’s all anyone said you should do.
If you are sure, good. If you aren’t sure, get sure. If she is hesitant, says no, can’t respond, seems upset, whatever- stop. That’s all. It’s not some overly legalistic, crazy standard. It’s just “be sure you have consent before sex.” The term feminists usually use is “enthusiastic consent,” which just means the woman isn’t coerced or something.
A yes to escalating it to the next level, such as removing various bits of her clothing.
And keep in mind that she’s testing me for compliance at the same time.