# Lack of affirmative consent as rape? **URL:** \ **Category:** Great Debates\ **Created:** [August 18, 2009, 8:32pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884 "2009-08-18T20:32:09Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [August 18, 2009, 8:32pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/1 "2009-08-18T20:32:09Z")
I’ve been thinking about this a bunch lately. I’m not sure how common this scenario is, but basically when someone goes along with sex when they are too afraid to say no. Not in a scenario where a gun or a knife is employed or when a stranger grabs you in the bushes, which of course is always rape. I mean when it’s someone you meet under a somewhat normal course of events. Like in the “[My lady friend goes to rock concerts](http://boards.straightdope.com/sdmb/showthread.php?t=528571)” thread. > [@I am Concerned that my Lady Friend Enjoys Rock Concerts So Much](https://boards.straightdope.com/t/i-am-concerned-that-my-lady-friend-enjoys-rock-concerts-so-much/506868/1): > > As background, my GF and I broke up in high school after an older guy at a party cornered her in his house, made some moves, and then took her into his bedroom. She later told me she (then 18 years old) was terrified and just froze. Amazing or no, she stayed the night in his room, but later described the event as “close to rape.” A good friend of hers later told me that my GF later confided that she had been seeing the guy for several weeks, which my GF hotly denied. I couldn’t handle it and broke things off. This situation is clearly pretty vague but is it rape if it happened the way that the OP mentioned? I don’t think that not saying anything automatically means consent but if someone were genuinely afraid for their life, wouldn’t they say something? [Another case](http://jezebel.com/5259213/australian-rugby-group-sex-scandal-continues-to-generate-controversy)involves Australian rugby players who were having sex with a woman in a hotel room (two of them) when about ten other rugby players came in. Some of them watched and others joined in having sex. The woman didn’t say anything either way because she was too afraid but later she brought rape charges against them. > [@](#): > > In her interview with ABC reporter Sarah Ferguson, Clare made it clear that she only gave her consent to Matthew Johns and Brett Firman. Four men proceeded to rape Clare, while the six other players watched and masturbated, but she was unable to scream or fight back; “I thought I was worthless, and I thought I was nothing. I think I was in shock. I didn’t scream,” she said. I think that the guys should have made sure things were okay. At least asking, “Is it cool to join in?” Then again, couldn’t you argue that if she nodded or said yes it was because she felt intimidated by them? By that rationale, a man can never really be sure, though. Obviously it’s different when it’s one man versus a group. It does make me a bit uncomfortable, though, that just being afraid is enough to indicate lack of consent. I also found an anecdote on one of the Jezebel comments, where one of the [commenters pointed out](http://jezebel.com/5210091/reviewers-observe-and-report-is-so-revolting-the-rapes-no-biggie)that a scene in a movie disturbed her because it made her flash back to when she was date raped. > [@](#): > > Just to pick up on your last point, in my own case, I wasn’t so drunk that I passed out. I was just drunk enough that things spun out of control, and before I had my brain wrapped around what was happening, boom, unwanted dick shoved in my mouth. (Sorry if that is too much for anyone) And I was so surprised and just flustered that I didn’t do anything at all, I just sort of hoped he be fast and get it over with. > > I do think sometimes that if I hadn’t been drinking, I never would have even ended up kissing him, and that’s what led to all the rest. I think I find the last one disturbing because if she never indicated that she didn’t want to have sex, I don’t think the guy in question even knows that he’s a rapist. I’m not sure where we draw the line. I think that if you’re in a situation where you’re hooking up with someone, though, you have to make it clear what you do and don’t want because I don’t think someone’s going to ask at every step of the way. You don’t go from hanging out after the movies to dick in vagina within minutes without asking but I don’t think that if a woman who’s making out with a man puts her mouth on his penis without asking him is committing assault. Or that a man who starts fingering a woman without explicitly asking while they’re making out is assaulting her either. ---
**Author:** ![athelas](https://avatars.discourse-cdn.com/v4/letter/a/5e9695/32.png) [@athelas](https://boards.straightdope.com/u/athelas)\ **Post date:** [August 18, 2009, 9:06pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/2 "2009-08-18T21:06:18Z")
In thinking about the criminal justice system you have to not only think about how serious the damage to the victim is, but also about the standards of evidence and what that does to the accused. So, for example, even those who are not against the death penalty usually hold the prosecution to very high standards of evidence even when it’s clear that the victim has suffered harm. Given that the legal landscape is already very difficult for rape defendants, and how impossible it is to defend yourself against the charge that your partner changed her mind in the middle of the act, this strikes me as a bad move. For someone falsely accused of this “rape,” even the extreme tactic of videotaping consent before every instance of sex (as some athletes are said to do) would be an inadequate defense. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 18, 2009, 9:15pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/3 "2009-08-18T21:15:24Z")
There are billions of women in the world who have never indicated that they don’t want to have sex with me. Should I just assume that they all secretly want me, and have just never told me so? Mind you, there are many ways of indicating you want to have sex with someone without saying a word. ---
**Author:** ![athelas](https://avatars.discourse-cdn.com/v4/letter/a/5e9695/32.png) [@athelas](https://boards.straightdope.com/u/athelas)\ **Post date:** [August 18, 2009, 9:20pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/4 "2009-08-18T21:20:47Z")
And how will you prove that that nonverbal communication occurred, in court? ---
**Author:** ![Oredigger77](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/oredigger77/32/3181_2.png) [@Oredigger77](https://boards.straightdope.com/u/Oredigger77)\ **Post date:** [August 18, 2009, 9:20pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/5 "2009-08-18T21:20:48Z")
I think that without an express “no” or something similar it can’t be rape, at least in situations where people are capable of talking and understanding. I’m a big guy (6’6" 350#) and I’ve never had been with a girl who was afraid of telling my no or implying it. Or I should say that I’ve never known about it. I think unless there is a deep seated fear there is plenty of time during transition phases to say “no” or what I hear “Not yet”. It takes time to take off two people’s underwear and it has been used many times in my experience to stop the action. On the other hand I think that it infantilizes people if both parties have to stop at every transition and ask “Are you sure?” I’ve been a similar situation to the rugby player case. In college we were trying to get some girls to play strip poker (3 girls and about 10 guys). When we finally convinced the girls to play they said they wouldn’t play when they were so outnumbered by guys and made all but 4 of us leave the room. Sure it wasn’t 4:1 but I think if those girls spoke up it is reasonable to expect other girls to do the same, I mean really how hard would it be to tell the first “two I’m going home unless you throw your mates out”. Every guy I know would get into as many fights as necessary to clear the room to continue the action. Like you brought up, if a person is so genially afraid for their safety that they won’t speak up and give some idea that they are not a willing participant, how can we trust that we are getting a voluntary “yes”? The way I look at it at some point you have to trust the person you’re having sex with either to stop you and say they don’t want to do something or that they won’t lie to you when you ask. Personally as long as they seem into it I assume the first and if they start seeming hesitant I assume the second. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [August 18, 2009, 9:22pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/6 "2009-08-18T21:22:53Z")
> [@athelas](#): > > And how will you prove that that nonverbal communication occurred, in court? “Don’t get me wrong, I definitely find you attractive. However, until my attorneys have reviewed your signed consent form, I’ll have to zip up and go home.” ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [August 18, 2009, 9:30pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/7 "2009-08-18T21:30:37Z")
> [@Oredigger77](#): > > I think unless there is a deep seated fear there is plenty of time during transition phases to say “no” or what I hear “Not yet”. It takes time to take off two people’s underwear and it has been used many times in my experience to stop the action. On the other hand I think that it infantilizes people if both parties have to stop at every transition and ask “Are you sure?” I think that’s my problem with the last case, the oral sex one. It sounds like she wasn’t really into it, but she said it seemed easier to go along with it than to protest. She sounds like someone drunk out of her mind who wasn’t having a good time though I hesitate to call it rape. It just sounds like, “He didn’t ask and I didn’t say no.” The guy in that situation sounds boorish and I feel bad that the woman in that situation felt violated…but is putting your dick on someone’s mouth without asking specifically asking them assault? I mean, I know I’ve been making out with guys who then usually start to remove their garments or mine without asking explicitly. If I protest, and they ignore me, that’s clearly wrong. The fact that it’s a penis in the mouth does kind of make it harder to say no clearly. But if I were making out with a guy and he started putting his fingers inside me without asking, I think I’m out of line to claim assault because he didn’t ask in words first. It seems to infantilize the woman too much. ---
**Author:** ![Oredigger77](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/oredigger77/32/3181_2.png) [@Oredigger77](https://boards.straightdope.com/u/Oredigger77)\ **Post date:** [August 18, 2009, 9:43pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/8 "2009-08-18T21:43:51Z")
> [@Freudian\_Slit](#): > > But if I were making out with a guy and he started putting his fingers inside me without asking, I think I’m out of line to claim assault because he didn’t ask in words first. It seems to infantilize the woman too much. I agree with you, although I look at it from a slightly different place. At some point, to use your example, before he could get his fingers inside you (assuming we’re not talking about your mouth) he had to remove some clothing or at least get you to spread your legs. I think that is where the line is. I think there is implied consent in me running my hand up a girl’s leg and her spreading her legs now if I have to pry open her thighs I think that is a pretty firm implied no. I guess I just have never been in a situation where my penis sprang out of my pants and into someone’s mouth without a couple of steps in-between, unless I was drunk. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [August 18, 2009, 10:12pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/9 "2009-08-18T22:12:35Z")
I think it’s neither just nor practical to set a standard that requires men to be either telepathic, haul in a legal witness and forms for any romantic interlude, or both. I don’t think that requiring a woman to say “No” ( in a situation where the isn’t any overt threat at least ) is an unfair burden. It’s also quite insulting to her to constantly demand verbal proof of consent from a woman. You might as well outright say you expect her to lie and falsely claim rape. The fact is that people consent to sex and all sorts of other things without explicitly saying so all the time, and you aren’t going to change that. I also note the implied sexism in only assuming that the _ **woman** _ is being “raped” if she doesn’t explicitly say yes at every step. Of course a man who claimed to be too terrified to resist a woman who hadn’t even made a threat would be laughed at. And yes, a woman could certainly threaten a man if she wanted to; she _ **might** _ have a gun or knife. Just as that big strong man _ **might** _ choose to grab the woman. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [August 18, 2009, 10:38pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/10 "2009-08-18T22:38:28Z")
> [@](#): > > And how will you prove that that nonverbal communication occurred, in court? It’d be difficult if she disputed the claim, but then that would also apply to verbal communication. If two people are making out and one of them starts taking off clothes, that’s probably as good as a verbal assent. ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [August 19, 2009, 12:18am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/11 "2009-08-19T00:18:40Z")
In college (PSU, 1990s), we were informed frequently (during orientation, and after) by authority figures, women’s groups, etc., that we were to ask at EVERY step of escalating intimacy. Move to take a shirt off. “Is this OK?” Move to take a bra off. “Is this OK?” About to engage in [whatever] sex act. “Is this OK?” We were told, in no uncertain terms, that if we didn’t get a clear “Yes,” then we might be (even inadvertently) committing rape/sexual assault. It was kind of a joke at the time (you would ask you S.O. “Is this OK?” in self-mocking, wide-eyed tones), but I think it’s probably the right approach. The real problem, IMO, comes when there are drugs/alcohol involved. In those situations, girls could be giving consent all night long, then wake up the next morning and have no memory of the encounter. THEN what do you do? ---
**Author:** ![hansel](https://avatars.discourse-cdn.com/v4/letter/h/6bbea6/32.png) [@hansel](https://boards.straightdope.com/u/hansel)\ **Post date:** [August 19, 2009, 12:28am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/12 "2009-08-19T00:28:41Z")
So hypothetically, a girl I met at a party says to me “let’s go upstairs and fuck.” We go upstairs, and as we’re about to start coitus, she gets squicked out by something (say, my “I strangle the homeless for fun” tattoo). She wants to stop things, but she’s terrified of what someone with such a tattoo will do, so she passively submits. That’s obviously rape in the sense that she is no longer consenting to coitus. Does the affirmative consent I was offered at the beginning immunize me from guilt? Unless she’s continually chanting over and over “I consent to sex with you”, then affirmative consent is just as problematic as implied consent because after the affirmation it’s implied that the consent is continuing. ---
**Author:** ![Lamia](https://avatars.discourse-cdn.com/v4/letter/l/8e7dd6/32.png) [@Lamia](https://boards.straightdope.com/u/Lamia)\ **Post date:** [August 19, 2009, 12:49am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/13 "2009-08-19T00:49:25Z")
This may not seem like much of an answer, but it depends on what you mean by “rape”. In everyday conversation we might describe a situation as rape if it involves sex without consent or against the person’s will, but the law usually defines rape a bit differently. Unless the victim is mentally or physically incapacitated or underage, then force, threats, or intimidation are usually required for a situation to meet the legal definition of rape. The situation described by **Edwardian Prude** would not legally be considered rape where I live. But if the girl really did not want to have sex and did not resist only because she was frightened, I can understand that she would feel it was pretty darn close to rape. ---
**Author:** ![billfish678](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@billfish678](https://boards.straightdope.com/u/billfish678)\ **Post date:** [August 19, 2009, 1:04am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/14 "2009-08-19T01:04:44Z")
So, what we need here is that a woman (or man, yeah right) can FEEL raped, actually BE raped even, but that doesnt mean the man himself actually commited rape (or anything wrong for that matter). IMO that solves the problem, but does nothing for the if there is a victim, there must be a guilty party (who must be punished!) crowd. ---
**Author:** ![LouisB](https://avatars.discourse-cdn.com/v4/letter/l/dfb087/32.png) [@LouisB](https://boards.straightdope.com/u/LouisB)\ **Post date:** [August 19, 2009, 1:34am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/15 "2009-08-19T01:34:55Z")
Men, don’t have sex until you are least as old as I and then you will not care one way or the other. Seriously, I shudder to think of the times that my penis did all my thinking; I’m positive that I was simply accommodated many times, as in “Let’s just get this over with.” Back in **my** teenage years (1950s), girls just didn’t talk about it and when I was in guy school, I was taught that “No” meant “Maybe” and that “Maybe” meant “yes” and that “yes” removed all doubt. I never used force but God was I persistent. I’ve thought (and even wished) I could apologize to them all. ---
**Author:** ![Kyrie\_Eleison](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kyrie_eleison/32/7682_2.png) [@Kyrie\_Eleison](https://boards.straightdope.com/u/Kyrie_Eleison)\ **Post date:** [August 19, 2009, 1:53am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/16 "2009-08-19T01:53:38Z")
> [@toadspittle](#): > > In college (PSU, 1990s), we were informed frequently (during orientation, and after) by authority figures, women’s groups, etc., that we were to ask at EVERY step of escalating intimacy. I’m now envisioning a form of Zeno’s paradox in which it is provably impossible to have consensual sex. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [August 19, 2009, 1:55am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/17 "2009-08-19T01:55:04Z")
> [@toadspittle](#): > > In college (PSU, 1990s), we were informed frequently (during orientation, and after) by authority figures, women’s groups, etc., that we were to ask at EVERY step of escalating intimacy. > > Move to take a shirt off. “Is this OK?” > > Move to take a bra off. “Is this OK?” > > About to engage in [whatever] sex act. “Is this OK?” > > We were told, in no uncertain terms, that if we didn’t get a clear “Yes,” then we might be (even inadvertently) committing rape/sexual assault. > > It was kind of a joke at the time (you would ask you S.O. “Is this OK?” in self-mocking, wide-eyed tones), but I think it’s probably the right approach. Ugh. A woman who wanted that is one I’d avoid like she was radioactive. She’s clearly the sort of woman who thinks that men are as a default rapists. And probably the sort who’d accuse me of rape at the drop of the hat, quite possibly even if I jumped through all the hoops. After all, being a man I’ve “no doubt” raped some other woman even if not her. Being sent to prison will “teach me a lesson”. And “men are all rapists” anyway. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [August 19, 2009, 10:57am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/18 "2009-08-19T10:57:32Z")
At common law rape is a crime committed by the rapist. Its elements are drawn from _his_ (and at common law only men could rape) acts/ommissions and state of mind. The victim is irrlevent for the most part, except being the object by which he committed the crime. The issue is whether he undertook intercourse\* knowing or having reason to beliieve that consent was not given. If he did then its rape, if not its not. The above posters examples seem to have mixed up issues of law, fact and evidence. To take the rugby players example, the question of law would be “is such a situation capable of being rape”, the answer “yes, if the elements described in the above paragraph are there”. Question of fact would be “whether or not they had the requiste elements described above paragraph” and finally question of evidence would be “does the evidence available tend to convince the trier of fact that the elements are present”. \*Intercourse meaning penetration of the vagina. Only penile penetration. ---
**Author:** ![DigitalC](https://avatars.discourse-cdn.com/v4/letter/d/ebca7d/32.png) [@DigitalC](https://boards.straightdope.com/u/DigitalC)\ **Post date:** [August 19, 2009, 3:33pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/19 "2009-08-19T15:33:27Z")
> [@hansel](#): > > So hypothetically, a girl I met at a party says to me “let’s go upstairs and fuck.” We go upstairs, and as we’re about to start coitus, she gets squicked out by something (say, my “I strangle the homeless for fun” tattoo). She wants to stop things, but she’s terrified of what someone with such a tattoo will do, so she passively submits. > > That’s obviously rape in the sense that she is no longer consenting to coitus. Does the affirmative consent I was offered at the beginning immunize me from guilt? Unless she’s continually chanting over and over “I consent to sex with you”, then affirmative consent is just as problematic as implied consent because after the affirmation it’s implied that the consent is continuing. No, it is not “obviously” rape. You are confusing “consent” with “want”, just because she no longer wanted to have sex doesn’t mean she did not consent to it. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 19, 2009, 3:35pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/20 "2009-08-19T15:35:27Z")
I think that there should be a standard of reasonableness in each situation. 1. It is 2am, you have been out all night with this woman and she is giving you signals. You are proceeding slowly and she seems into it and not objecting to your advances. A reasonable person would think that absent an objection, she consents. 2. Add to situation #1, 10 of your buddies come over and wish to join in. There is no way that a reasonable person would think that she consents to this without an affirmative statement that she does. “Your honor, she didn’t say no, but in fairness she had a penis in her mouth and couldn’t speak” should not be an adequate defense. [Next page](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884.md?page=2)