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SEX WITHOUT AN EXPLICIT ‘YES’ — IS IT ALWAYS RAPE?

We approach this subject gingerly…VERY gingerly.

Anyone who sexually assaults another should pay a very high price.  However, there are he said/she said situations with an element of genuine doubt.   A determined litigator must fight hard for such a client.

In that vein, Mr. Cathy Young’s controversial comments in the Sunday Washington Post OUTLOOK for 28 June can assist creative defense counsel.

She essentially argues that the pendulum has swung too far, calling every amorous intercourse rape unless it involves knowing, continuous, and sober female consent.

Ms. Young muses about reactions typically following unwanted intimacy.  They range from “it was a mistake” to “it’s complicated ” to “I was raped.”  Yet today, young women are encouraged to reinterpret all these experiences as sexual violations — evidence of a persuasive masculine rape culture.

Often, both parties were too intoxicated to remember what really happened.  Is the male guilty of rape in such cases since “sober consent” was absent?  What about a woman who eventually yields fully to unwanted overtures – is she the victim of rape?  Could she have safely said no?  Is her complaint triggered by “morning after” guilt?  

Ms Young questions the view that consensual sex is always under control — the result of a rational, fully autonomous choice.  Don’t many other possibilities occur during intimacy?  Some involve enthusiastic consent; some involve reluctant “going along with.”   A woman might agree to have sex to please her partner despite not being in the mood…only to become enthusiastic later.  A young woman raised in the church might be sexually eager, yet emotionally ambivalent.   Another might be torn between desire and practical reasons not to act, such as fear of pregnancy or disease.  Still another may intentionally drink to quiet her scruples.   And another may be a romantic, hoping to be coaxed into “surrendering to temptation.”

For Ms. Young, consenting young adults make mistakes.  Should that necessarily lead to allegations of rape?  In her view, society cannot guarantee that every sexual act will be free of emotional pressure.  She argues that ambivalent situations caused by misunderstanding, pressure, or insensitivity do not automatically make the woman a “rape survivor.”

Ms. Young warns of extremists who would criminalize every instance of bad or uncomfortable sex, thereby cheapening true sexual violence. She pleads for sexual ethics based on honesty, respect,  and communication without turning every  inept male’s lapse into a crime.

We suggest that many of her observations could be turned into useful voir dire questions.  Some initial attempts —

1.     Are you open to the fact that it might be rape …or it might be something else?

2.     Do you believe all sexual experiences that don’t turn out well should be viewed as possible military offenses.

3.     Have you ever watched movies where the male is the aggressor and he  gets pushed away.  He keeps trying until the girl relents.

4.     Do you know what a “Harlequin romance” is?

5.     She didn’t say “no.”   On that one matter alone can you say it’s rape?

6.     A woman eventually goes along with overtures that at first were unwanted;  is that rape?

7.     Is it rape if a man knowingly pressures a woman?  What if she could safely say no?

8.     Do you agree that certain sexual conduct might be appalling — but  not necessarily criminal?

9.     Have you ever heard of someone who felt guilt-tripped for giving money to a freeloader?   Now about giving away that money – the panhandler is not guilty of robbery is he?    Why not?

10.  It may be awhile since you dated, but what standard applies today – does “no really mean no?”

11.  Is it NOT rape only when there is continuing, clear,  and sober female consent?

12.  In your opinion, is consensual sex always under control?  Do people sometimes play-act, lose inhibitions, or fantasize?

13. Do you agree that some people might engage in sexual, playful, or even raunchy bedroom talk and activity?

14. Do you agree that a person might NOW say “what was I thinking?” but the sex was actually consenting at the time?

15. Some people see only two things — 100% enthusiastic consent…or rape.  Do you agree that in real life, there are many other choices? Like going along with it?

16. So do you agree that some people might not be in the mood but later become enthusiastic about having sex?

17.  Put aside “political correctness” — do you think there still might be some 1950’s type women who act coy or play “hard to get”?  Women who  — for whatever reason  — want to be coaxed into “giving in to temptation?”

18. If both parties are intoxicated, does the man carry the blame?

19. Do you believe there is a difference between actual sexual violence and bad or uncomfortable sex?

20.  Some sexual situations stem from misunderstanding, pressure, or insensitivity.  Are these necessarily rape?

To repeat for emphasis, we are not suggesting gamesmanship or minimizing the reality of rape.  But as Ms. Young suggests, not every intimacy “gone wrong” is rape.  Each case must be weighed painstakingly and with compassion.


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