Was it rape? Here is a simple test.

Between Rolling stone articles, new mandates from the President, a certain celebrity revelation, pundit rants, paranoid internet ravings, and general political stupidity, there has been a lot of talk in the media about rape and how to tell if a person really was raped. As a public service to society, I have created a simple and concise test to determine if a rape has occurred. This test consists of 3 questions, and can be used in any civil or legal discussion involving rape.

The questions are:

1) Did the sexual act occur?
2) Were both participants free of threat, coercion, impairment, and legally capable of giving consent?
3) Was affirmative consent given by both participants and not withdrawn by either during the sexual activity?

Three easy questions.

It’s really that simple. No need to ask about clothing, prior behavior, etc., just ask those 3 simple questions. If question 1 was answered with a “yes” and either questions 2 or 3 were answered with a “no,” then the rape occurred. If all questions are answered with a “yes” then no rape occurred. It really is that simple. No conversation is needed about legitimacy, regret, clothing whether or not someone made a good enough attempt to fight someone off, etc.

Seriously, it is just that simple.

There actually should be no further explanation needed. But if you need to understand it better, I’ve explained things in depth below.

Question 1
The answer to question 1 is easy to establish. In many cases the participants will have memory of the act. In cases where a participant may have been unconscious, there are often reliable signs that the sex occurred, such as clothing put on wrong, bruising, etc. People may object to this being reliable because people could lie about the sex occurring or not occurring. But when you consider that false rape claims are actually extremely rare, and that most rapists consider what they do to not be rape, but to be normal sex, there is a high likelihood both parties will answer honestly. This question can also be used to protect against misidentification (which is actually included in the false allegation statistic, reducing the actual rates of false claims even lower), as sex is a pretty definable act and occurs in a specific time and space, and a person could easily prove they were elsewhere at the time. In the recent Rolling Stone fiasco, in which the rapists were misidentified as a certain fraternity. The fraternity defended itself successfully by proving they were not the ones who did because they could prove they did not have sex with her.

Question 2
The answer to question 2 is also easy to establish. Was the victim intoxicated? Was the victim given a drug to lower his/her inhibitions or knock him/her out? Did the perpetrator have to hold him/her down? Was their a threat of violence if he/she resisted? Was there an abuse of authority that threatened other consequences if the victim attempted to resist (principals who can threaten students with expulsion, etc.). Basically, were both parties capable of saying “yes” or “no” in a competent manner, and could they say “no” without fear of any consequences?

Now there are those who might have some objections to the conditions of question 2, especially around drugs and alcohol. However, these conditions are part of legal definitions for rape, so there isn’t much of a debate to be had. Remember how I have pointed out that most rapists don’t consider what they do to be rape? Well if you have an issue with this, you really need to reexamine a few things.

Question 3
The answer to question 3 should be the easiest to establish, and disturbingly, this is where people have the most trouble with the 3 questions. Essentially, the rubric here is whether or not both parties said “yes.” we aren’t looking for a lack of a “no” we are looking for an explicit “yes.”

It has often been asked, “won’t stopping to ask ruin the mood?”

Seeking explicit consent can not only be worked in seamlessly, if you do it right, you can actually make the sex better. Now if you are lucky, your partner will enthusiastically communicate a desire for sex before any activity begins. In which case, you are good to go, and there is no need to worry about the rest of this explanation.

Also, *high five.*

If that was not the case, something as simple as looking into a partner’s eyes and whispering “are you ready?” and waiting for that verbal “yes” or an affirmative nod does not break the flow. But if you really want to be sure, there is a little technique called “foreplay” that whips your partner into such a sexual frenzy that they will actually shout out their desire to have sex with you.

Seriously, that happens a lot if you are doing things right.

Now there are specific non-verbal ways of giving consent. These are made up of behaviors that are initiated by your partner. When a partner undoes his or her pants, that is an explicit communication communication of consent that he or she will let you help take their pants off. If you start unbuckling their pants, and they don’t fight you, that is *NOT* an explicit communication of consent, because lack of a “no” is not the same as consent, and it is at that point you would need to seek consent before you continue. Other forms of non-verbal consent deal with active presentation, and active acceptance. If your partner actively gets naked for you during sexual activity, they are consenting to your contact with their naked body. If you partner actively presents him or herself into a known sexual position, they are most likely granting permission. If you are a male, the most clear and explicit way your partner can express consent is though the “guide in” technique. This is when your partner takes your presented penis in hand, and guides it to the desired sexual orifice.

Now, what is NOT consent is assumed consent. A person may be wearing alluring clothing consisting of very little material, but if he or she is not actively taking said clothing off for you, he or she is not giving consent for that clothing to be removed. Likewise, not putting up a fight is NOT consent. Maybe your partner is just being a cold fish. Some people do that. If that is the case, the sex is going to suck, and you deserve better, so have some respect for yourself and let them know you have standards by insisting on active consent. But the real and frequent danger here is that your partner, if not resisting, might be in a terrified state. She/he might not be resisting because she is afraid you are going to hurt her/him. If you used force, pinned her/him down, or rushed the process because you didn’t want to lose a moment and have her/him change her/his mind, you didn’t seek consent, and she/he is probably now giving up in hopes you won’t hurt her/him further. That is a problem and you need to revisit rule #2. And even if you didn’t intend to rush him/her, pin him/her, or force him/her, if he/she is not resisting, but not actively engaging, then something is wrong. He/she might have a history of being assaulted and something you unknowingly did triggered the trauma. That triggering was not your fault, but proceeding without continued active consent will be your fault. Maybe he/she just changed her mind, which he/she is allowed to do midway, and is to scared to know how to say stop, so he/she just stops activity. If that is the case, you need to make sure there is no problem and seek consent again before you continue. If there is no problem, you’ve only risked a pause, and its been my experience that most partners become more trusting and more active later on (also the sex gets better) if you take the time to check on issues like that.

So those are the 3 simple questions explained in depth.

If there is any question about a rape’s legitimacy, just ask those 3 simple questions.

If you are terrified of that extremely miniscule chance of having a false rape accusation made against you, just make sure you are able to show you’ve answered those 3 simple questions properly before sex and you should be safe.

If you hear a rumor and are unsure, just ask those 3 simple questions.

If you see a sensationalized account in the media and are wondering which side to take, just ask those 3 simple questions.

And is really is that simple.

Categories: Uncategorized | Tags: , | 20 Comments

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20 thoughts on “Was it rape? Here is a simple test.

  1. Macy

    I think this is a well done piece. I am a female and I am seriously considering sewing my vagina closed. I feel I have been betrayed by my private parts and I just don’t want to be violated anymore. I’d rather be unfuckable then to walk around in constant fear anymore. But to those of you who enjoy sex, I understand the need for such an article. I wish all dudes would be so considerate as to follow these guidelines and a big thank you to those of you who do. However I don’t feel like you are the majority.

    • I want to point out that it is very common for a person to blame themselves, or an aspect of themselves, for the trauma committed against them. Part of this is because society tends to blame the victim, and with enough pressure, victims can start to believe them. But a huge part of this is because all people need to feel the world is safe and that dangers are controllable. Events that induce trauma are so traumatic because they directly attack this belief of safety, and people are drawn to reestablish that sense of safety. But because you can’t control the actions of others, only your own actions, the subconscious can be drawn to accept the blame, because then it believes that you can work harder to not be abused in the future, and a sense of control over danger is restored, in a way.
      However, I would encourage you to talk to someone to see if you can work on helping to give the responsibility back to your abuser. Accepting responsibility for what is not your fault can lead to a toxic build up of inappropriate shame, and you deserve better. In addition, part of you rightly believe you are not responsible, and this will cause a perpetual conflict that will keep the trauma unresolved, and you deserve to find peace. On my “About” page there are links to sites that help with sexual assault recovery, I would encourage you to contact them. You did not get traumatized by yourself, you should not be expected to heal from the trauma by yourself.
      Finally, I would point out that rapists make up only about 8% of the male population. If you feel that you do not want to engage in relationships at this point in your life, that is your right and your prerogative. But if that were to change, and if you began to feel a draw to relationships again, it will be possible to find a partner who will respect you and will seek your consent before sexual activity because non-rapists outnumber rapists over 10-1.

  2. Jeff

    My girlfriend cries towards the end and after sex. I mean she really cries almost hysterically. When I ask her if she is okay, she says that having sex just makes her really emotional. We are both in our mid 30’s and have been together about a year. I care for her deeply. She is lovely. I know I’m not raping her but I don’t want to hurt her at all. It truly pains me to see her like this when she cries. She holds onto me really tight wrapping her arms around me and I just hold her back. Once she said she was crying because she is not sure she deserves me. I assure her she is a good person worthy of love. She mentioned a few times before having been sexually abused when she was a kid. She is in therapy for this, and I go when she invites me. I’m hoping I’m not doing anything wrong. But I’m not sure.

    • Always remember that you are only responsible for your decisions. So long as you are being clear with the consent, you are not doing anything wrong. When in doubt, ask her.
      When someone you love is dealing with an issue as big as this, it’s easy to want to make it go away, to find the magic words to make her feel better. You want this because you love her and her pain hurts you. But because this is so big, there are no easy answers, and you can start to get frustrated and feel helpless yourself.
      The best thing you can do is to just do what you are already doing to support her in her healing. Her feelings of shame, “badness,” etc. are sadly typical for early abuse victims and are not your fault. Continue to listen, continue to support her in therapy and continue to go when asked, and continue to hold her. Also continue to be patient with her, realistically, her healing could take years, and you can’t rush it, so don’t blame yourself when things don’t happen quickly. If you have any questions, such as those surrounding sex and consent, you may want to bring those up in the next joint therapy session where it is safe and you have the therapist to help act as a guide.
      I would also point out that there is no shame in getting your own therapist, even if it were for a short term therapy, to help with your own concerns. There is a phenomenon known as the “secondary victim” which is common with situations involving abuse. As mentioned before, it is possible to adopt the feelings of helplessness and doubt because of your own love and empathy. Having someone to be there for you to put things on perspective and help you to develop self care routines could be helpful in the long run.
      But in the end, just remember that you are only responsible for your decisions. You are not responsible for making her better, you are only responsible for making sure you are as supportive as possible while on her healing journey. You can do everything perfectly right for her, and she will still have her pains, because those pains were caused by someone else a long time before you met her.
      Finally, this might be helpful, or might be totally worthless to bring up, you will have to gauge it with her, and possibly her therapist, but love is not about being worthy. Love is about loving and being loved.

      • Jeff

        My girlfriend and I were watching TV this afternoon. She suddenly started screaming and covering her face. I knelt down in front of her without touching her. I told her I was here for her. And to try and hold onto the present. She was shaking and crying screaming in what seemed like pain and terror. I felt helpless. I just wanted to wrap my arms around her but something was telling me not to. She seemed to be afraid of me. Eventually she latched onto me at which point I held her back. She said she felt afraid to talk much about it. But she did reveal some horrific things. I don’t want to hurt her by doing the wrong thing. I also feel a huge amount of rage that she had to endure the things she did. Also I noticed that when we are being intimate her face sometimes goes blank. I have to call her back to me. I know she is frustrated with her slow progress. As I said, I feel very helpless.

  3. I would again suggest that you might benefit from seeking out your own supports and therapy to help you as you walk this path. As I mentioned before, vicarious trauma is a real threat when someone you know has been victimized, so much so that it is now a recognized as a trauma for the purposes of diagnosing PTSD in the new DSM V. This is going to be a struggle, and you will need real supports to see it through, more supports than can be given through a conversation in a comments section. There is no shame in seeking support while helping someone else. Most therapists, including myself, spend some time in therapy because it does take a lot out of someone to be a helper and a healer. This kind of support is how we all keep from burning out.

    Also, I would also point out that part of the reason you feel helpless is because you are trying to figure it out on your own. People who work with trauma have to go through extensive training to learn to know how to work with trauma competently. I had 2 semesters of graduate coursework specifically working with trauma and crisis, plus I volunteered on my school’s sexual assault and domestic violence response team, each team requiring 40 hours of training to begin. What this means is that you should not beat yourself up for what is an unreasonable expectation of perfection when it comes to helping your girlfriend. Unless you have had the training, it is not realistic for you to expect to know how to handle these issues. This is why it is important to keep working with both her therapist, as well as finding one you can work with for your support. both her therapist and your own will know the situation intimately enough to work with you to develop the proper plans that will allow you to effectively support her and yourself.

    If you have insurance, you can check with your provider for therapists in your area that are covered by your plan. you can also check your state board of psychology’s website for referral information. In addition, on my “about” page there is a link for RAINN, and they may be able to help you with some guidance and support.

    But please, again, consider getting your own therapeutic support. No one is able to care for another without having a stable support network for themselves. Anyone who is trying to help s loved one dealing with trauma needs additional support. No one can do this sort of thing alone, and you set yourself up for failure if you try.

  4. Rebecca

    The guy I have been seeing for a few months is great. We agreed together to have sex. We’ve done this several times. I made it known that it is very important to me not to get pregnant. Friday night we were having a great time. I suddenly realized he wasn’t using a condom when he entered me, and I stopped him. He reluctantly put one on. It made me uncomfortable that he tried that without asking me. He said he thought about it before he did it. I’m so sad. I don’t want to make a big deal. And I still want to see him. But I felt so safe and protected before he did that. Now I feel like I have to watch him.

    • Rebecca,
      First of all, I am sorry you have had to go through this. This was a huge violation and your feelings of sadness, anger, etc. are all warranted. I wish I were in a position to give you advice on this and what to do, but sadly I can’t. The one thing I can do is ask if you think that this violation of trust will be his only violation, or if you think that this is part of a larger pattern. You have every right to set the boundaries when it comes to your body. He violated those boundaries, and that is a big deal. It is your right and prerogative to decide whether or not to forgive and give him a second chance. However, despite what you feel for him, is he truly loving you back if he is showing a pattern of violating your boundaries?
      But again, I am not in a position to truly understand the whole story, so I can’t know if he has learned that what he did was wrong, and I can’t predict if he will or will not repeat this violation. All I can do is remind you that you have the right to set the boundaries for your body, and any partner you have has to respect those boundaries.

  5. Dear Dr. Zack,
    When my girlfriend and I have sex she calls me daddy sometimes. She also likes to have her bottom spanked to get her in the mood. I want to make her happy and to please her. The spanking is sometimes harder because she likes it that way. I’m a professional guy. I’m about 5 years older than her. When she seems to regress in age she gets very aroused. I know she has some sexual abuse in her past. She told me that it didn’t always hurt but sometimes felt good. We talked and she said that she is not recreating the abuse, but rather just playing. I should say this, this is about half of our sex life. Otherwise she is very adult. My girlfriend suddenly cries and yells out when we have sex sometimes. I’m trying to remain supportive. But I want to feel good. Not like I’m hurting her and certainly not raping her.

    • In this case, you can still apply the 3 simple rules. From what you described, she gave and maintained consent. And that is the key point. It does not matter how weird or deviant the sex is, as long as both parties are consenting, there is no rape. And that is always the point. Get consent, maintain consent, and then be as freaky as you both are willing to consent to.

      • Becca

        I don’t know what to do. Maybe nothing. I said no. But he kept on. I wasn’t strong enough. And it felt good. I got wet and I came. I didn’t want to. It just happened. He says I told him yes with my body language. That I wore yoga pants and it was too revealing. I was going to the gym in them later. He called me a slut. I’m not a slut. Maybe I’m a slutslut. I don’t know.

      • I can’t tell what to do or not do. Those choices are yours.
        I do need to point out that you did not give consent. This is not your fault. The fact that you had a physiological reaction does not cancel out the fact that you did not give consent.
        I would suggest you call a rape crisis center. If you don’t have one local I do put links to national groups in my about page. You need more support than I can give here so please contact those organizations or you local rape crisis center.
        This wasn’t your fault.
        You did nothing to ask for this.
        There is nothing wrong with getting help and support from the experts when dealing with this

  6. Sammi

    My dad smacks my bare butt with a ruler for getting grades that are c’s or below and if I eat junk like candy. I’m a girl. I wanna know if it’s rape. I was like thinking I’m too old now to get smacks. I told my mom I’m embarrassed and she don’t care to say anything. Is it rape of someone touches ur bathing suit area? I think that’s what my guidance counselor told my class one time when I was younger. Well my butt is bathing suit area. So please help me to stop getting this treatment. It’s really hurts me and upsets me.

    • Most definitions of rape require actual genital stimulation or penetration. From the description present, this circumstance would not be considered rape.
      There are other issues in play, and I would suggest that if you are close to your guidance counselor, that maybe you talk to him/her and she can help you figure out what might be the best way to handle the situation at home.

  7. Sammi

    I am scared cause I don’t want my dad to get mad or in trouble and I don’t wanna get in trouble. My friend said they can take me away. I don’t want to be taken away. Maybe I can do better?

    • This is really something you need to talk about with a trusted adult that you have near you. There are a lot of factors and details in play. They best I can say is that a close teacher, a guidance counselor, your doctor, or other close and trusted adult would be able to help you a lot more than I can from across the internet.

  8. Sarah

    He didn’t. He didn’t touch me. He didn’t touch me. Dr. Zack, please, make this stop. I can feel my face burning and my heart pounding. Stop. She doesn’t feel anything. I’m sorry. I’m sorry. It’s all a blur. Everything, spinning. Calm down. Please you need to calm down.

    • Dear Sarah,
      The best I can do is direct you to a supportive program. the RAINN network can be especially helpful with this.
      You need more support than I can provide in a comment section discussion. The people at RAINN are a good crew and they can be more directly helpful than I can

      • Sarah

        I feel lost and alone and too afraid to get real help. He didn’t touch me. No. She won’t look. And she won’t move.

      • this is the phone number for the national sexual assault hotline
        give them a call. just talk to them. they can help you better than I can here

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