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3) Was affirmative consent given by both participants and not withdrawn by either during the sexual activity?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.
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.
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.
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.