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Friday, March 29, 2013

Steubenville rape trial forces us all to re-examine the meaning of consent.

Beyond ‘No means no’

by Beth Lyons
Last week, many of us turned 
our attention to Steubenville, 
as we awaited a verdict in a 
horrific rape case involving a 16-
year- old female victim and two male perpetrators, ages 16 and 17.
The young woman was incapacitated by alcohol consumption after 
a night of parties. She was assaulted multiple times in multiple 
ways, and her perpetrators shared video and photo documentation 
of the assault via social media. The perpetrators remained 
unaccountable for a period of time, largely protected by their status 
as athletes in a small football town. Ultimately, two young men 
were found delinquent (American court’s version of "guilty" for 
juvenile offenders) and will face time in a detention facility.
While this is an American case, it does draw attention to 
problematic beliefs relating to sexual assault that are not limited to 
the United States. There’s a lot to unpack (and be appalled by) in 
this case, but what I want to dig into is the reasoning behind the 
young men’s defence as it was presented in court.
The enthusiastic consent model also emphasizes that consent isn’t something that is given once and is then considered to be a done deal, but that it is state that must be maintained.
The defence argued that the young men were not guilty because the young woman didn’t "affirmatively say no." There was no denial that the activities occurred (social media prevented the defence from taking that route) and there was no claim that she had actively consented to the activities. Instead, the defence argued that it wasn’t rape because she didn’t say no.
This sparked outrage amongst many.
The fact is, the victim was intoxicated to the point of being unable 
to walk and had thrown up on herself. In other words, she was too 
drunk to say anything, including a clear "no."  Did that mean she 
consented? No, it meant that she was in a state in which she was 
incapable of giving consent.
The defence that was presented in this case sharply throws into 
focus a serious problem with our current model of sexual consent. I 
am not referring to legal interpretations of consent in the United 
States or in Canada, but to Western society’s general understanding 
of consent, which is that "no means no."
As a millennial, I grew up hearing "no means no" and I absorbed a 
belief in that adage into my bones. I am grateful for "no means no" 
and how commonplace it was by the time I arrived at university. I 
believe that the proliferation of that message was incredibly 
important in bringing acquaintance rape out of the shadows and into 
our collective understanding and public discussion of sexual assault. 
I also know that it isn’t enough.
No does mean no, absolutely and incontrovertibly. But if we rely 
solely on "no means no," we encounter problems. Most of us realize 
that the absence of a "no" does not equal consent. However, the 
idea that it’s not really rape unless the victim explicitly said no and 
fought back is still pervasive. In the case of the Steubenville rape 
defence strategy, we see "no means no" extrapolated to a 
frightening extreme: if "no means no," then everything else — 
including the absence of a no — means yes.

One possible solution to this is to combine "no means no" with "yes 
means yes." The "yes means yes" model is championed most 
prominently by American feminist activist and educator Jaclyn 
Friedman. "Yes means yes" is a slogan that represents a larger 
conception of sexual consent, known as enthusiastic consent. Under 
this model, the "no means no" message is always complemented by 
the accompanying idea that only "yes" means "yes."
The enthusiastic consent model also emphasizes that consent isn’t 
something that is given once and is then considered to be a done 
deal, but that it is state that must be maintained. Friedman explains 
that we’ve been taught to think of consent as a light switch — you 
flick it on and that’s it, it’s on!
In reality, she explains, we need to think of consent as water in a 
pool. If you want to swim, you’ve got to be in the water. If you’re 
engaging in sexual activity, consent has to be your environment; it 
has to surround and envelope you. This means constantly checking 
in with you partner; it means never assuming that because you’ve 
engaged in one sex act, all sex acts are fair game. It means 
understanding that consent can be withdrawn.
This approach to sexual activity sounds onerous to some people. 
Some scoff and ask if enthusiastic consent means you’d have to 
formally ask for consent for every single kiss you plant on your 
significant other.
To them, I say, "Come off it." The enthusiastic consent model isn’t 
about miring down sexual activity in verbal contracts and 
agreements; it’s about making sure that the people you’re engaging 
in sexual activity with are stoked on it. Who doesn’t want that to be 
the condition under which they’re engaging in sexual activity?!
Centring the "yes means yes" model right next to the "no means no" 
has transformative potential not just for individual sexual 
encounters, but for society as a whole. Imagine a whole generation 
growing up being taught that consent (and sexual activity) isn’t a 
thing that you get and run with, but something that is a continual 
process that needs to be maintained and valued.
Now imagine that generation as our law and policy makers, as our 
social commentators, as our school principals. In this future, we 
may never have to hear about what a victim of sexual assault was 
wearing or what their sexual history is or if they fought back hard 
enough. In this future, we may never watch another young woman 
who was too intoxicated to walk or talk answer the question “Did 
you actually say no?” This is a future I want.

About Beth Lyons

Beth Lyons is a program manager with 

YWCA Moncton. Her column alternates 

with that of Jody Dallaire and also focuses 

on social justice issues and women’s issues.
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