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Sex, rape and the blurred lines of consent

Love and hate are flip sides of the same coin perhaps because of the volatility of emotions. Emotions are prone to change as they are driven by desires and coupled with preference.  Desires flow, then ebb over time and can change from one day to the next.  One day we love Cosby and the next, all our love for him can change when news break of him drugging women then raping them.  Someone can go from mentor and mentee to [sexual] predator and prey from one decade to the next because some desires like love, lust, and hunger not only change, but can also become blurred.  Sex can be consensual and good one day, then become non-consensual and sour tomorrow, making it rape. Rape and Consent have become strange bedfellows because of the rape epidemic on campuses and around the nation today.  It does not mean that non-consensual sex didn’t happen or that rape didn’t exist as abundantly as before.  It wasn’t reported for fear of shame on the girl, but also because girls were usually raped by someone they ‘knew’ so there was that fear also that rape would be hard to prove.  It may be for the same reason that the 30 or so women who have now come out against a father figure and public moralist or the very famous and lovable Dr Huxtable couldn’t do that two or three decades ago. Plus, before now, rape was associated solely with sexual violence.  The women who knew Cosby went to his home, and even accepted financial help from him, making it quasi-impossible to prove rape at the time they were allegedly raped. The accusations of rape heaved against Cosby proves that rape is no longer just violent, but non violent, too.

Rape has always been a huge a problem before now given that prominent leaning models for consent used to come [and still come] from porn, TV, movies, and one’s patriarchal cultural upbringing, which is not the healthiest education for sexual behaviors.  These means of sexual education positioned males as gatekeepers of consent and had set up a power dynamic that undermined consent as an ongoing conversation between two people.  Today, those means, especially porn, are as flourishing as ever and even more with Internet freedom and no age limits, but at the same time, the same Internet is also allowing space for women to speak up against rape and silencing it.  Simultaneously, we’ve come a long way out of hiding in shame over matters of sexual harassment and rape: from Anita Hill in 1991 to the mattress girl at Columbia currently.  Over time and because of the frequency of rape in colleges and sexual harassment in offices, rape has had to extend its definition to  ‘consent’ from both partners, but especially from girls since campus rape had grown exponentially.  Judith Shulevitz’s “Affirmative Consent” unzips this issue and whets our appetite on this indigestibility of affirmative consent where sex and rape are concerned:  http://nyti.ms/1NnQhdD

But, the lack of clarity around consent to have sex is a slippery slope, because it is difficult to evaluate and show consent before having sex and before deeming it rape.  Before the affirmative consent question flashed, the onus to substantiate rape was the girl’s exclusively; she had to convince the court that she didn’t ask for sex.  Women had to prove before this legislation that ‘no’ did not mean ‘yes’ as men and women both inside and outside of the court thought that the girl’s clothes and behavior were big factors in blaming them for rape.  Affirmative consent was impossible to prove pre-internet age, and still is even today, but much easier, at the same time.  Shulevitz argues that affirmative consent is anxiety producing and risks criminalizing poor communication.  Consent can indeed be a contraption as the 1988 film Accused [Jonathan Kaplan, 1988] proves.

Accused, which won Jodie Foster the Oscar for best leading role, illustrates the difficulty of  ‘consent’ very well.  Based on actual events, and on an actual rape, Sarah Tobias [Jodie Foster] goes to a sleazy bar, sexily dressed, where she and the men all drink, play pinball, then she puts on a one woman-show, then dances with one of them, and is raped by 3 of the men while others cheer and spur the men on:

Tobias has to prove that the rape was legit; in other words, she has to prove that she didn’t give the men ‘affirmative’ consent to rape her.  The film does not explore the blurry domain of sex, which turned into rape. Tobias has to convince the Court that she said ‘no’ although she had taken drugs that night and acted provocatively in the bar.  She was able to prove that all the seductive body language did NOT mean consent, despite that both lawyers thought she had a past, was ‘not uncomfortable flirting’ leading the men on.  Her behavior was NOT affirmative consent for sex and therefore the men couldn’t assume rape.

Like these men who raped Tobias, Cosby, too thought he was skilled in picking up non verbal cues that signaled a woman’s consent: “a pretty decent reader of people and their emotions in these romantic sexual things, whatever you want to call them” [NYTimes Graham Bowley and Sydney Ember, “Cosby detailed many affairs in testimony: sex, drugs and deceit described by actor” on 7/19/15].  Sex can go awry because of some idiotic men who rape and don’t or can’t read signs [like Cosby and others] or conversely, because some angry or spurned women cry harassment or rape, especially if they don’t like the person coming on to them.  There are innumerable examples of men raping in Shulevitz’s and others’ articles, but few of women ‘crying wolf’.  A recent episode of White Collar allows us to imagine this question of consent when the criminal Keller approached a woman at a florist’s shop to flirt with her, but she rejected him harshly and resolutely and was ready to cry for help.  Next scene cuts to a very handsome, well dressed, and suave Neal Caffrey who rescued her, and she was all smiles and flirtation, and ready to embark upon a second meeting, which she did.

Because of men and women of dubious and psychotic character, sex and rape have become conflated and we must now address this matter for the general good of all [women].  It has become necessary to protect our girls at colleges because the school cannot, because college personnel are busy protecting their football jocks, donations, and school reputation. Consent policies are great because sex is undoubtedly safer for our girls at college and elsewhere.  But affirmative consent is great only in theory in an ideal ethical world, but in practice the problem rests in reading body language, which as Cosby has shown is not easy to read.

Today, 27 years after Accused, consent is still as shaky because it is as hard to disprove intention or prove consent.  It was difficult to prove that Tobias’s conduct gave a clear ‘yes’ through every step of her seduction, and it was difficult for Cosby to fathom that his attention to these women was rape.  We don’t see the men asking Tobias if their actions were okay, although she does say no laughingly twice then continues. So how do we define ‘consent’ legally when it stands on such shaky and emotional grounds?

Affirmative consent, according to legislation, is defined as “affirmative, conscious, and voluntary agreement to engage in sexual activity” every step of the way.  In Accused, a real event, Tobias was conscious of the men’s actions and seemed okay, therefore there was voluntary agreement via flirting, kissing, gyrating, laughter, and scorn she heaps on her female friend whom she rejects because the friend is ‘jealous’. Tobias was clearly drunk or tipsy as most college aged males and females are at parties, and who become uninhibited and flirtatious. If this is so, then that would exclude all girls and boys under the influence of alcohol and drugs, because whatever occurs during sex would not really be conscious as per legislation’s definition.  Under the draconian rules of affirmative consent, it would be easy to violate the law of consensual sex, and will turn a lot of spontaneous people into sex offenders.

Instead of setting better repercussions against rape crimes, and meaning them by enforcing them, preparing colleges to handle rape criminally instead of being pacifists, and educating our girls and boys especially about sexual behaviors from young, and teaching and telling them to think intelligently and independently and to say when they’re scared or uncomfortable, we are codifying sex.  Codifying sex will undoubtedly help women against over-sexed psychos and perverts, but it will also reshape sexual mores as it eliminates intimacy, and kills desire and joy between two consenting adults.

Affirmative consent across the board, while necessary in some cases, could make real sex rigid and contract-like if one partner has to stop and ask every minute if what he or she is doing is okay rather than read his or her partner’s body response.  Not only will actions have to be given the green light during intimate moments, but desire, too will have to shut off and on.  The problem is that desire doesn’t always work like that, and in fact works quite opposite to affirmative consent.  Desire is there, or it isn’t!  And without desire, no meaningful sex!

With policies to regulate bedroom activities Big Brother wants ‘in’ in our bedroom, too.  Will privacy have to change rooms if it cannot occur in the bedroom?  If we continue to monitor sex, love, desire the way we are doing with data and information we may soon stop holding hands, and that would be a pity.  Social media is already changing the rules of love and coupledom, and now codifying sexual behavior threatens what’s left of intimacy, spontaneity, and desire, and could make desire and sex become extinct because of some dimwits for whom legislation is slack.  The other difficulty with affirmative consent is how to eliminate the possibility of misunderstanding when most people aren’t talkative during the delicate tango that precedes sex, and aren’t always good at decoding sexual signals.

What would sex and building relationships look like if intimacy, spontaneity, and desire are taken out of its substance?


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