Consensual sex and rape – it’s really very simple

If you do something to someone’s intimate bits which you know s/he has not consented to or is unable to consent to, you are committing sexual assault or rape

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When browsing online media, one occasionally senses the rumbling and shaking of the terrain as a new myth is born, wobbles to its feet, and prepares to stomp its way across blogs and comment boxes for years to come. There was just such a genesis today. “OMGZ, in Britain you can be convicted of rape even if you have consent!”

The High Court has ruled on a case where a woman consented to only limited sexual contact. To be explicit, she agreed to sex on the specific condition that her partner didn’t ejaculate inside her. The court heard that shortly after penetration - and without giving the woman any chance to object - the man had said he would be "coming inside her" and added "I'll do it if I want". The CPS prosecutors had decided not to charge him as they believed it would be impossible to prove that the man's decision was not "spontaneous" and "made at the point of ejaculation". The woman challenged this decision and won. The ruling says:

"She believed that he intended and agreed to withdraw before ejaculation. (He) knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. In short, there is evidence that he deliberately ignored the basis of her consent to penetration as a manifestation of his control over her."

(Note, this is not a criminal trial, we have not heard the man’s defence as yet. These are allegations, not accepted facts.)

The headlines on the front of the Metro: Sex with consent ‘can still be rape’ and BBC: 'Sex consent could still lead to rape charge, judges say' are potentially highly damaging to public understanding of consent and rape. It seems strange that this still needs to be spelled out, but let me offer a full and extensive list of reasonable working definitions of consent.

If you do something to someone’s intimate bits (or with your intimate bits) which you know s/he has not consented to or is unable to consent to at that moment, you are committing an act of sexual assault or rape.

There. That’s it. In practice this means that if s/he says “I’ll do this but I won’t do that” it means you have consent to do this but not do that. If s/he says “I’ll put this here but I’m not having it there” then you have consent to put it here but not put it there. If s/he says “I’ll do this but only if you wear that” then you have consent to do this, if and only if you are wearing that. (I’m mostly thinking of condoms here, but I guess the same principle applies to the pirate outfit. Whatever pushes your boat, you’re still the skipper.)

If you ignore this very simple principle, and proceed with an act which your partner has not consented to, you are committing an act of sexual assault or rape. If you should ever find yourself uttering words along the lines of “I’ll do it if I want” then I’d say that’s a pretty strong clue you are raping or abusing someone.

That’s what I say, and it’s what the law says. I would suggest it is what any vaguely functioning moral compass would say too.

In practice, securing prosecutions beyond all reasonable doubt for incidents like these may often be all but impossible. It is true that fuzzy boundaries often exist between seduction, persuasion and consent. I recognise the occasional paradoxes and ambiguities thrown up by situations such as sex by deception, including gender deception. I’m not saying the man in this particular case is guilty, his case has yet to be considered and he is innocent until proven otherwise.

I am saying that for all the tortuous debates around the legal complexities of rape and consent, the principles at stake are really bloody simple. The High Court today has provided welcome confirmation that the principles are really bloody simple. In my view the headlines, however, are capable of giving precisely the opposite impression, by suggesting that consent is some kind of vague, unknowably abstract concept. That is very worrying.

A version of this blog appeared first at Heteronormative Patriarchy For Men http://hetpat.wordpress.com