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Is this rape? Consent? Something else?

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I saw this question on Facebook. The author has tried to make an example that is as close to the line of "ambiguous consent" as he could devise I wondered how  folks on the forum would answer:

Quote

 

Here's an exercise. I'm going to tell a story. You tell me if the woman in the story was or wasn't raped. Obvious trigger warning.

Sally was fresh out of high school, didn't do drugs or drink. She met Chris and told him that she did not have sex outside of a relationship. She explained that kissing and touching was fine but no oral or penetration. Chris acknowledged this and they hung out for about a week before going to a party. Right before the party Chris asked bout sex again. Sally gave him the same boundaries. Sally of course, drank water at the party. When they got back to Chris's place, they watched a movie, after the movie was over, Chris turned the TV off. The room was pitch black. 


The two began kissing and touching. Sally was still mostly clothed when she felt Chris...enter her without warning. She wanted to say no at first but she was super shy and kind of intimidated. She froze up. 


A million thoughts went through her head. Maybe this is his way of saying he wants to be with me? That was the agreement anyway. 
It was very painful but Sally stuck it out. 


The next day after they went their separate ways, Sally tried to call Chris. 
She never heard from him again. Sally didn't press charges, but the incident damaged her psychologically, severely.

...  ... if you were in her shoes, what would you say happened?

 

 

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Mostly clothed + enter without warning = crotch area intentionally exposed by Sally, which Chris naturally interprets as consent. Ensuing sex is awkward and undesirable to Chris thanks to Sally, and thinking this is what's normal for Sally he quickly loses interest. Chris sticks it out to the end so as to not hurt Sally's feelings, who is obviously socially stunted. Chris later decides the kindest thing to do is cut off communication quickly and totally.

No rape.

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22 minutes ago, JASKN said:

Mostly clothed + enter without warning = crotch area intentionally exposed by Sally, which Chris naturally interprets as consent. Ensuing sex is awkward and undesirable to Chris thanks to Sally, and thinking this is what's normal for Sally he quickly loses interest. Chris sticks it out to the end so as to not hurt Sally's feelings, who is obviously socially stunted. Chris later decides the kindest thing to do is cut off communication quickly and totally.

No rape.

Bravo.

*slow clap*

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18 minutes ago, JASKN said:

Mostly clothed + enter without warning = crotch area intentionally exposed by Sally

Nah, that just means he ignored her obvious wishes. If he was inclined to think that, he can ask to see if she changed her mind.

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1 minute ago, Eiuol said:

Nah, that just means he ignored her obvious wishes. If he was inclined to think that, he can ask to see if she changed her mind.

Maybe 30% of all communication is verbal.

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Only thing getting raped in this story is common sense. First off, if the guy's penis cuts through clothes, that's quite the medical wonder he's got there.

Second, the behavior being described here (she wanted to say no but didn't) is a symptom of severe mental disability, not "shyness". The very first thing for the state to do, in that case, would be to immediately place her in the custody of a guardian, who would then have to give consent before she even leaves the house, let alone goes on a date.

Then, we can talk about whether the guy knew that she was incapable of saying no, or not.

But, as long as this story is about an emancipated adult, of course it's not rape. Why would shyness cause someone to get raped, be aware of the fact that she's being raped, and keep that piece of information to herself? I know shy people, and if I were to even so much as slap them a little, they would express their displeasure. In fact, I wouldn't even have to slap them...if I just walked up to them and poured a glass of water on their had, guess what: they would work up the courage to tell me that they didn't care for that. So I'm pretty sure they wouldn't sit silently through a rape.

Edited by Nicky

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3 hours ago, JASKN said:

Maybe 30% of all communication is verbal.

Actions that involve a person's body deserve more attention than just how people normally communicate. Exactly because there are conflicting displays of interests on her end is a pretty good reason to stop and ask beforehand. Resistance or not isn't what makes for consent. Why should we try to "locate" her reversal of consent based on anything except what she already stated - why should we try to find how he -might- construe her consent? Why not stop at her -definite- refusal to consent a few hours before? 

1 hour ago, Nicky said:

Second, the behavior being described here (she wanted to say no but didn't) is a symptom of severe mental disability, not "shyness".

Social anxiety, anxiety about sex, PTSD are at least three possibilities that aren't just severe mental disabilities. Shyness is a dumb word to use, yeah, but these three examples would make sense. These are things where people really would sit silently.

The important point is that her lack of consent was already clear. 

Edited by Eiuol

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Well, the obvious question to ask is whether or not Sally struck Chris with a tree branch earlier in the day...

But seriously, if real-life Objectivists operate on the understanding that they can disregard explicit consent  -- because "maybe 30% of all communication is verbal" -- and have sex with women who have repeatedly told them "no," leaving those women feeling as though they have been raped, then they will wind up in prison.

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6 hours ago, Eiuol said:

What's the ambiguity? That she didn't resist?

The author of the example wanted to present an example that he would call rape, but was using it as a litmus test. So, he was trying to come up with an example that might be consider a borderline type of case. 
Any thoughts on how one would alter the example to make it truly borderline and ambiguous, in your view?

Edited by softwareNerd

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5 minutes ago, softwareNerd said:

The author of the example wanted to present an example that he would call rape, but was using it as a litmus test. So, he was trying to come up with an example that might be consider a borderline type of case. 
Any thoughts on how one would alter the example to make it truly borderline and ambiguous, in your view?

softwareNerd, I'm curious. Based on your framing of the OP, I gather that you do see this as an "ambiguous" case. So, all right, may I ask? Where do you find "consent" given in the original scenario?

Chris asked Sally whether they could have sex and Sally consistently said "no." He proceeded to fuck her anyways, against her explicit instruction (and their mutual agreement). So where do you find consent -- even "ambiguous" consent -- in that?

Others have seemingly pointed out that Sally was undressed to the point of allowing the penetration... but Chris and Sally were engaged in other activities, by mutual consent (e.g. "touching") that might well account for that. To wit, in my youth, I once dated a girl who had drawn the line at penetration, but manual and oral play were allowed. Her panties were often removed to accommodate that, and we reached that point in part because of the trust I had earned by asserting that I would not do anything that she had not agreed to. I suppose that if I had decided on it, in the dark of night, I could have "surprised" her against our agreement. But I would never have done such a thing (and to think of it, even in retrospect, disgusts me; and it certainly would have been rape).

Is it that Sally did not "fight back"? Is that where we find consent? If a person robs me, and I comply with their demands (perhaps feeling intimidated), then have I consented to the transfer of property? Is it only robbery if I wind up with the robber's skin under my fingernails?

Chris knew Sally did not want to have sex; they had discussed and agreed as much. I don't see where she consents to what Chris does.

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4 minutes ago, DonAthos said:

softwareNerd, I'm curious. Based on your framing of the OP, I gather that you do see this as an "ambiguous" case. So, all right, may I ask? Where do you find "consent" given in the original scenario?

As I said to Eiuol, the original poster was trying to come up with an example that was borderline, yet one that would be a litmus test where he and those who passed his test would call this rape. 
I'm curious how you would alter some facts in this example to make it borderline/ambiguous. Or is that something that cannot be done?

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26 minutes ago, softwareNerd said:

The author of the example wanted to present an example that he would call rape, but was using it as a litmus test. So, he was trying to come up with an example that might be consider a borderline type of case. 
Any thoughts on how one would alter the example to make it truly borderline and ambiguous, in your view?

The only example of ambiguous consent I can think of is if both parties are drunk/under the influence. Neither side is able to consent in a meaningful way that I see.

 

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Is this Bizarro Land? Since when is verbal communication some kind of golden razor? People are ambiguous, change their minds, lie, say only a portion of what they mean, use inflections unfamiliar to others, shade with personality, etc.... especially with sex.

Methinks some triggering is afoot.

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13 minutes ago, Eiuol said:

The only example of ambiguous consent I can think of is if both parties are drunk/under the influence. Neither side is able to consent in a meaningful way that I see.

Is that ambiguous or is it "not rape"? 

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1 minute ago, JASKN said:

Is this Bizarro Land? Since when is verbal communication some kind of golden razor? People are ambiguous, change their minds, lie, say only a portion of what they mean, use inflections unfamiliar to others, shade with personality, etc.... especially with sex.

Verbal takes precedence here because it isn't ambiguous. It's okay to misinterpret or use ambiguous communication when asking for directions to the subway, but that's not okay if you want to figure out if someone consented. This is about a person's body, not crashing a wedding or misunderstanding that you weren't invited to that birthday party.
 

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1 minute ago, softwareNerd said:

Is that ambiguous or is it "not rape"? 

I honestly don't know. Probably not rape but I am unsure.

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2 minutes ago, Eiuol said:

I honestly don't know. Probably not rape but I am unsure.

Do you mean you aren't sure how to classify that from a legal perspective, or that you'd need more facts?

If it were to be legal rape, who would be raping whom? Would it always be the man raping the woman, or would it be the person who is less drunk? 

Edited by softwareNerd

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12 hours ago, softwareNerd said:
Quote

She met Chris and told him that she did not have sex outside of a relationship. She explained that kissing and touching was fine but no oral or penetration. Chris acknowledged this and they hung out for about a week before going to a party. Right before the party Chris asked bout sex again. Sally gave him the same boundaries.

 

This is pretty straightforward. Granted, it is a verbal contract, not a written one, but the terms had not changed, per the two explanations.

12 hours ago, softwareNerd said:
Quote

The two began kissing and touching. Sally was still mostly clothed when she felt Chris...enter her without warning.

Here we go from the descriptive narrative of an outsider, to Sally's narrative.

Chris knew she did not want to have sex outside of a relationship. His initiation of the act implies acceptance of her explicit identifications of the boundaries, I suppose, but had Chris wanted to take it to that level, stating it explicitly would have made her cognizant of the fact, rather than the need to switch to Sally's thoughts (which, if left unspoken, no one would be aware of them but Sally.)

 

I understand that verbal orders don't go and that a verbal contract is not easily recognized in a court of law.

This supports the undermining of verbal communication, under the guise of placing the focus on "is this rape or not". Sadly, the person positing the original question may honestly think that is what this thought experiment sets up, without being aware of unwittingly undermining the value language plays on a deeper level.

Edited by dream_weaver

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1 hour ago, softwareNerd said:

As I said to Eiuol, the original poster was trying to come up with an example that was borderline, yet one that would be a litmus test where he and those who passed his test would call this rape.

Meh, I'm not so concerned with the original poster (though I'm ignorant of his details) -- I don't really care whether I pass some random person's "litmus test," lol.

But sussing out the boundaries of what does and does not constitute rape seems to me to be a meaningful question, and a particularly relevant one in 2017. I also believe that the Objectivist community may generally need further reflection on this topic. So I was interested in your take on the scenario, and especially since you were the one who had created the thread. You ask in your thread title whether this is a case of "Rape? Consent? Something Else?" Fair enough. Good question. I say it is rape, but what say you? If you think there's the possibility of "consent" here, where do you find it? At which point does Sally consent to have sex with Chris, and by what means?

1 hour ago, softwareNerd said:

I'm curious how you would alter some facts in this example to make it borderline/ambiguous. Or is that something that cannot be done?

I agree with Eiuol that introducing altered states of consciousness muddies things. I wouldn't want to try to make sweeping pronouncements beyond that, and speaking of which...

50 minutes ago, softwareNerd said:

 Would it always be the man raping the woman, or would it be the person who is less drunk? 

Certainly it's not necessarily the man raping the woman. In the case where two people are intoxicated, I'm not convinced that there's necessarily a rapist and a victim (and that we need to determine who was "less drunk" to know which was which).

55 minutes ago, JASKN said:

Is this Bizarro Land? Since when is verbal communication some kind of golden razor? People are ambiguous, change their minds, lie, say only a portion of what they mean, use inflections unfamiliar to others, shade with personality, etc.... especially with sex.

Methinks some triggering is afoot.

Perhaps you are triggered -- it isn't for me to say -- but let's try to keep things productive nonetheless.

It's true that people are often ambiguous, change their minds, lie, etc., etc. But in the scenario we're discussing, as described in the OP, Sally and Chris had a clear understanding of the boundaries. This isn't a question of "unfamiliar inflection": Chris asked about their having sex and was told "no." He went ahead anyways.

And I would again advise Objectivists to take heed -- not in Bizarro Land, but in actual, real-life America in 2017 -- that disregarding it when a woman says "no," pressing ahead because you believe yourself to have read some nuance in her non-verbal communication, is a good way to end up in prison for rape.

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Contrary to decades of feminist teaching, the moral of this story is that women are not responsible enough to say "no" even when in unexpected physical pain.   

Objectively, it is not too much to ask that an unwilling women say no and make other motions of physically resisting unwanted advances.  As this story has a complete absence of any sign of resistance at all, it can't possibly be rape.

The given setup has "She met Chris and told him that she did not have sex outside of a relationship. "  What is a "relationship"?  They were together for week, I guess that's good enough nowadays in the age of Tinder hookups.  

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42 minutes ago, Grames said:

Contrary to decades of feminist teaching, the moral of this story is that women are not responsible enough to say "no" even when in unexpected physical pain.   

Objectively, it is not too much to ask that an unwilling women say no and make other motions of physically resisting unwanted advances.  As this story has a complete absence of any sign of resistance at all, it can't possibly be rape.

The given setup has "She met Chris and told him that she did not have sex outside of a relationship. "  What is a "relationship"?  They were together for week, I guess that's good enough nowadays in the age of Tinder hookups.  

Wow, this is so fucking dumb, I can't believe you're not trolling.

You do realize that victims of sexual abuse and rape are often traumatized and can go into shock even while having consensual sex let alone going through another rape?

You seriously need to pull your head out of your ass if you think any part of Chris' behavior is ok. Imagine if you told me that I'm not allowed to take your car, but that later you leave your car keys in front of me on the table. Should I interpret this as your consent to take and keep your car?

I guess now I know why California passed those ridiculously restrictive new rape laws. It's because of creepers like you.

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6 hours ago, DonAthos said:

If you think there's the possibility of "consent" here, where do you find it? At which point does Sally consent to have sex with Chris, and by what means?

That's the crux of the example, and when I read it, my first thought was that there's an unexplained  gap in the narrative. We suddenly find the guy's penis inside the woman's vagina. If I were a juror, I'd want to roll the tape back about a minute and understand what actually took place. 

How does one approach such an example: does one try to hypothesize the possible realities? Or does one scan for consent within the example as presented? We know that rape is not a synonym for a lack of consent. I mean: lack of consent is clearly a crucial aspect, but what else? Lack of consent to what? Not to the use of a car (to be silly about this), Well... to sex. 

But...what is sex? I should apologize for sounding like Bill Clinton, but that's a legit question in a forum like this, where members want to dissect things minutely. Is the penetration of a vagina by a penis a crucial aspect in rape? I assume we can all agree that if he turned her over and penetrated her anally, that would be rape too? So, is some type of penetration essential? 

The example says they agreed no oral. So, what if he slipped down and started licking her clitoris? Would that be rape? What if she had slipped down and started giving him a blowjob? Would that be rape? 

Edited by softwareNerd

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