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Catriona MacLennan: Consent is not a grey area

In no other area of life are people expected to repeat refusals over and over again, and to continue physically resisting in order to say 'no', writes Catriona MacLennan

Sexual consent is not hard to understand, murky or a grey area.

By saying it is, we are allowing rape to flourish.

Part of the backlash against the #MeToo movement is the idea that male-female personal relationships are complicated and individualistic and susceptible to misunderstandings.

This response is epitomised in the reaction to a recent story in the United States publication babe.net about Grace’s* unwanted sexual contact with actor and comedian Aziz Ansari.

Babe published a detailed account of Grace and Ansari’s evening together, reporting Grace’s repeated statements that she did not want to engage in the behaviour, and her repeated physical moves away from him.

Ansari in response released a statement saying “by all indications” what happened was completely consensual and “everything did seem OK to me”.

Some readers criticised the story, arguing it detracted from the message of #MeToo as what Grace had experienced was not forced or non-consensual and was just part of differing male and female interpretations of situations.

French screen legend Catherine Deneuve joined the backlash against #MeToo, asserting that rape was a crime “But insistent or clumsy flirting is not a crime, nor is gallantry a chauvinist aggression.”

The problem is that, in no other area of life, are people expected to repeat refusals over and over again, and to continue physically resisting in order to say "no".

Generally, people understand and accept a single, verbal “no”.

Yet we are invited to believe that, when women say “no” about sex, it’s either not clear to men, or women don’t actually mean “no”.

This attitude pervades all parts of society, including our legal system.

Its absurd end point is illustrated by an English case we were taught at law school.

Aotearoa has the highest report rate of intimate partner violence in the developed world.

In DPP v Morgan, Flight Lieutenant Morgan had been drinking with three junior colleagues. He took them back to his home and invited them to have sex with his wife.

The men said that Morgan told them his wife would say “no” and protest, but she was “kinky” and her protests meant she was enjoying herself.

The four men dragged the woman out of bed and each man raped her, while the others held her to prevent her from getting away. They clamped her nose and mouth to choke her until she stopped struggling.

The three colleagues were charged with rape and Morgan was charged with aiding and abetting the rapes since, at the time, a husband could not in law be convicted of raping his wife.

The men were convicted by a jury, but on appeal the House of Lords held that an honest but mistaken belief that the victim was consenting provided a complete defence. It did not matter how unreasonable the belief was, as long as it was honestly held.

This is a departure from the normal principle that a belief must be reasonable.

The men’s convictions were nevertheless upheld, but R v Morgan remained the law in England until 2003.

It was accurately described by feminist legal scholar Jennifer Temkin as a “rapist’s charter”.

R v Morgan was in 1976, but more than four decades later we are still saying men are confused when women say “no” to sex.

Why would this be true?

It’s not true that these men don’t understand the woman’s refusal: rather, they don’t think it’s important and are happy to disregard it.

In the workplace or on the sports field, men told “no” by their bosses or coaches have no trouble understanding the refusal.

We would think it ridiculous to require an employer or coach to verbalise a denial repeatedly and, on top of that, to make it physically obvious.

By requiring women to do this in relation to sex, we are perpetuating rape culture.

In the same way, the description of some rapes as “date rapes” undermines criminal behaviour and minimises the woman’s ordeal.

Some men are determined to have sex with a woman, irrespective of whether or not the woman consents.

It’s not true that these men don’t understand the woman’s refusal: rather, they don’t think it’s important and are happy to disregard it.

Repeated verbal requests for sex and the ignoring of the woman’s refusal are sometimes followed by physical coercion.

So, if a woman stops struggling, it is not because she has suddenly been persuaded by the man and wants to have sex with him.

It is because she has become acutely aware of what a dangerous situation she is in.

We don’t have any way of identifying a man who will beat or kill us, as opposed to a man who will disregard our refusals but not physically compel us.

So we become silent and unmoving because we are just trying to survive the situation.

It really is true that men are afraid women will laugh at them, but women are afraid that men will kill us.

And we have good reason for this fear: Aotearoa has the highest report rate of intimate partner violence in the developed world.

*Grace is a pseudonym.

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