Explicit consent and “legitimate rape”: A binary approach to sexual assault

benfell

Todd Akin, official 109th Congress photo
Fig. 1. Todd Akin, official 109th Congress photo
It is possible to hope for three positive outcomes from the present uproar that has arisen in response to Todd Akin’s (figure 1) remarks about “legitimate rape” and his notion—apparently widely-shared among anti-abortion Republicans—that a woman’s body resists pregnancy from a “forcible” rape.[1] First, we can hope that this will contribute to a backlash against politicians who have exploited social conservatism as a means to power.[2] Already, we can see Republican politicians who have pushed further and further to the repressive right abandoning their support for Akin and pressuring him to withdraw as a nominee in a Missouri Senate race as the magnitude of public revulsion against his remarks has become apparent.[3] Clearly, even regressive politicians who have aggressively waged what some, including the New York Times editorial board, have called a “War on Women”[4] sense that Akin went too far—at least in an election year. Second, we can hope for a turning of a rising tide that seemed destined to inundate and annihilate abortion rights as increasingly conservative Justices have been appointed to the Supreme Court and as Republicans have launched a vicious assault on abortion rights in an apparent attempt to develop a test case to enable the Supreme Court to revisit its decision in Roe v. Wade.[5] Third, we can hope to re-open the discussion about consent, a discussion that most notably last arose with the Swedish accusations against Julian Assange and was lost in the appearance of duplicity on behalf of the United States that accompanies those as yet non-charges.[6]

It is this third possibility I will attend to in this posting because those on the left who rightly condemn Akin for labeling some rape as “legitimate” and thereby implicitly labeling some rape as not “legitimate” risk a charge of hypocrisy if they themselves are not scrupulous in their own sexual relationships. This hypocrisy arises from the ambiguity in sexual relations that Jaclyn Freidman and Jessica Valenti explicitly criticized, that sometimes leads to misunderstandings—and rape, as arguably may have occurred in the Julian Assange case. The fact that Friedman and Valenti have written a book advocating that all potential partners to sex should explicitly consent implies that the status quo includes a vast terrain in which people do sexual things to each other, and not always with certainty about their partners’ feelings about having sex. Indeed, it could be said that the initiation of sex may often be an attempt at persuasion, often an act of men toward women, with women being those to whom our society has historically assigned a sexual gatekeeping role, and therefore, given the standard of explicit consent that Freidman and Valenti call for, that even a light touch upon a shoulder could be construed capriciously as assault.[7]

This is the space, as the British Minister of Parliament George Galloway controversially observes, in which the acts Swedish authorities accuse Assange of fall into:

Even taken at its worst, if the allegations made by these two women were true, 100 per cent true, and even if a camera in the room captured them, they don't constitute rape. At least not rape as anyone with any sense can possibly recognise it. And somebody has to say this.

Let's take woman A. Woman A met Julian Assange, invited him back to her flat, gave him dinner, went to bed with him, had consensual sex with him. Claims that she woke up to him having sex with her again. This is something which can happen, you know.

I mean not everybody needs to be asked prior to each insertion. Some people believe that when you go to bed with somebody, take off your clothes, and have sex with them and then fall asleep, you're already in the sex game with them.

It might be really bad manners not to have tapped her on the shoulder and said, "do you mind if I do it again?". It might be really sordid and bad sexual etiquette, but whatever else it is, it is not rape or you bankrupt the term rape of all meaning. . .[8]

Apparently, Galloway’s interpretation is inconsistent with that of the British Supreme Court;[9] in any event, it drew sharp criticism from anti-rape campaigners.[10] This is as it should be; his comments are clearly inconsistent with Friedman’s and Valenti’s understanding of explicit consent.

But there is a difference between should and is and it is possible to argue that Friedman and Valenti are adopting a binary view of consent that rarely reflects the somewhat messier reality of human relationships. That said, we would, to be sure, be better off if men weren’t so commonly required to be the aggressors in seeking and advancing relationships, that is, if they are to find any relationships at all, and if women weren’t vulnerable to harsh judgments for asserting an interest in men they find attractive. Because our socialization is what it is, however, I find Friedman’s and Valenti’s openness about sexuality refreshing, and I wonder if all those who now criticize Akin and Galloway are themselves living up to Friedman’s and Valenti’s standard for consent.

If they aren’t, they’re hypocrites.

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