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Can you consent to rape?


Paul Barclay promoted the ‘Sex, Sport and Power‘ episode of Big Ideas with the question “Is there a grey area between consent and rape?”.

Predictably the online commenters were apoplectic over Barclay’s incendiary promo and completely missed what his guest, writer Anna Krien, actually had to say. Which is a shame, as Ms Krien’s thoughts on sexual assault are a bit more nuanced and developed than his scandal mongering introduction would suggest.

Yes, she did touch on the question of what happens when a young woman seeking sexual adventure finds herself in a situation that is slipping out of her control. Trying to balance the possible consequences of calling a halt with the risk of allowing the situation to develop without protest. Questioning whether it was possible for listeners to understand that someone might comply with something they had not consented to even if not actually threatened.

But Krien’s book, Night Games, is primarily informed by the months she spent following a sexual assault case involving several premiership footballers and a teenaged girl.

How difficult it is to prove in court that the victim was not consenting and that the offender(s) knew she was not (pre-conditions for a rape conviction in several Australian jurisdictions).

How when a mob of pumped up celebrity athletes appears unexpectedly in a room containing an isolated young woman that ‘consent’ can seem an inadequate question.

Does rape really hinge on consent?

“No means no” may not always be true, but would it help even if it was?

Are we hung up on the wrong question here?

Then just when I was about to pump the air and shout “Yes!”, she fudged the answer.

I expect she handles it better in her book.

Because Anna Krien told Radio National listeners that the real question of rape isn’t consent. Its informed consent.


So the footballers file into the room and describe to the girl exactly what it is they intend to do to her.
And if she nods her head then what happens over the next hour or so isn’t sexual assault?

No Ms Krien. Non-abusive sex is not about informed consent.

Its about empowered consent.

Good sex is a question of communication, but not all sex is good and not all bad sex is rape.

Ethical sex is a question of power.

You can only give consent inasmuch as you have the power to deny it.
And you can only receive consent from someone you do not intimidate physically, socially, emotionally or intellectually.
Where either of conditions are not met there is no sex, only violation.

And neither of those conditions can ever be completely met.
Which is why Andrea Dworkin will always be right.
Though we try to make her as wrong as we can.

Its also why I will never be able to look squarely into the bathroom mirror and say “You are not a sex offender”.
Because I can look into my sexual past and ask “Was she able to refuse consent?” without getting a satisfactory answer.

Of course the courts wouldn’t want to start encouraging analysis of power.
They have enough trouble maintaining their illusion of legitimacy as it is.

But what if we started encouraging kids to ask not just whether she said no, but whether she could have said no?
Would they grow up as fucked up as we are about sex?

Or is that just me again?

There is still an elephant in the room here that no-one is talking about.

Some people actually like to be raped. They contrive to have it happen.

No I’m not flogging that old moronic, misogynist non sequitur about rape fantasists.

I’m talking about the men and women who refuse to accept full responsibility for their own sexuality.

The ones who deliberately get drunk or pretend to be so they can ‘forget all about it’ the next day.

The ones who want to be seduced or conquered or obliged to please someone else.

The ones who close their eyes and think of Britain or are repaying a good night out.

The ones who are forced to by their hormones, by their background, by their gender,
Their orientation, their weaknesses, their desires, their disease.

The ones who not only allow themselves to be sexually disempowered, they insist on it.

They’d be asking for it, but even asking would involve too much agency for them.

Power can be pretty scary. Especially if you see the responsibility that comes with it.

Should we deny these people their sexuality?
Pathologise them?

They are the victims.
They are the violators.
They are the sex criminals.
They are us.

What is rape?
What is consent?
What is sex?

Can we ever make Andrea Dworkin wrong?

  1. Anonymous permalink

    Okay, restarting out of fear and angst.

    I wrote a reply, but hated it. I hated it because of the amount of times I had to use the word rape to denote occurrences that don’t even rate the same tone of voice, let alone the same word.

    Conclusion: We need new words. There’s a huge difference between bullying and a strong negotiating position, well, at least linguistically. There’s a big difference between playing with the odd match and burning houses down, unless you label both pyromania. We need better language for a circumstance that isn’t nearly as black/white as it is so often portrayed.


  2. I think we have plenty of words to denote dysfunctional sexual interactions.
    Sexual objectification, exploitation, manipulation, abuse, assault, torture …

    But I agree that English seems to lack the words needed to describe all the nuances of ‘consent’. I wasn’t happy with the term ’empowered consent’ but it was the best I could come up with.

    I think the BDSM community has a better handle on ‘consent’ than most, but it still falls short of what we need to describe the various levels of agreement between sexual partners.

    The real problem is that the terms are so contested.

    A very intelligent blogger I follow recently tied herself into logical and ethical knots trying to insist that an undisclosed undercover cop was a ‘rapist’ whereas an undisclosed transgender person was not. An Israeli court even convicted a man of rape because he did not correct his partner’s false assumption that he was Jewish rather than Palestinian.

    I hope you can find the words to express what it was you were trying to say and have another shot at commenting on it.


  3. Rexie permalink

    Some people actually like to be raped. They contrive to have it happen.

    As is sex without love and bonding is perversion, and this is heights of perversion – making it happen!

    I think people who have made love to each other because life would be incomplete without experiencing that union would never probably ever have sex for pleasure. But for that, one must have experienced such a union. (The only flaw in my thinking is that adultery can slip through the cracks, in case you find someone where heart gets engangled 😦 I’ll work on improving this union theory.)


    • When I say people contrive to be raped what I really mean is that they refuse to take responsibility for their own sexuality and so insist on situations where the option of consent is partly or entirely taken out of their hands.

      I’m not sure it necessarily means there is no love or bonding. I think asexual people or people who refuse to accept their sexuality can be in love with their sexual partner, even if they are just ‘lying back, closing their eyes and thinking of England’. (If Victorian women really did think about Queen Victoria during sex it’s no wonder so many of them professed to find it a tiresome duty).


  4. I’m trying to grok what it is about “some people actually like to be raped. They contrive to have it happen” that is sitting so poorly with me. I think it’s that while I think I see the point you’re making – people who do not or who are not capable of taking responsibility continue to keep themselves in a position of being unable to give empowered consent.

    For me, I think it isn’t that they *like* to be raped. It’s that they don’t know how not to be.


    • Yeah, I was probably being a bit over-provocative using ‘like’, but I don’t think it’s that they don’t know how to avoid it either. The people I’m thinking of just don’t want to take responsibility for their sexual activity and prefer to keep the option of post-hoc denial of consent open – at least to themselves. They like sex. They want sex. It’s responsibility for it they’re saying no to.

      Back in the 50s it would have been largely a matter of “good girls only do it as a duty to their husbands” type of thing but now it’s more likely to be because they’re cheating on a partner or doing something else that’s still considered transgressive (at least to them). I suspect the rise of the new chastity movement among religious groups is probably causing a resurgence of the “I’m trying not to but just aren’t able to resist” approach. Not to mention unwanted pregnancies and STDs.

      Not that it’s exclusively a girl thing. Guys can retreat into stereotypical male dominance because it seems easier than thinking about what we want and how to go about negotiating it too. And following that kind of cultural script isn’t a good path to sexual responsibility either.


  5. Reblogged this on Neurodrooling and commented:

    I’m reposting this old one because I think the unfortunately hashtagged #MeToo movement has given it new currency.

    I should probably point out that this post was largely prompted by the traumatising reassessment of my own sexual history that came in the wake of my work developing non-judicial community-based responses to sexual assault, some involving colleagues within the Sydney progressive/revolutionary activist community.

    Years earlier I had painfully come to realise I was a victim of sexual coercion and assault, albeit relatively minor ones. I was now forced to come to terms with the fact I may also be a perpetrator of such actions and that I may never understand the impact that had on my sexual partners who may have been less than completely willing.

    This post was also an attempt to accept responsibility for both employing and succumbing to sexual coercion, though I’m fully aware some will choose to interpret it as victim blaming.


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