BBC’s ‘Is this Rape?’ – A response: defining sexual assault as a way to end rape culture

By

A recent documentary was released by the BBC called Is This Rape? Sex on Trial. The documentary featured a group of young people evaluating a video scenario in which a young man began having sex with an ex-partner while she was sleeping. In the clip she eventually woke up but didn’t move or respond in any way. It seemed unclear to many of the group participants whether or not there was consent, although all of them agreed that the act was wrong in one way or another. The documentary featured group and individual discussions on whether or not the circumstances qualified as rape or not.

Predictably, the documentary elicited a variety of responses from the public, experts, and lawyers. As controversial as the documentary may be, it opened up a conversation that is largely avoided. Sidestepping topics such as these can perpetuate the silence and shame victims of sexual assault feel. It is increasingly important to create a culture in which those who have been through traumatic experiences are heard and validated. Consistently bringing justice on perpetrators is a way to keep the blame off victims and show a society’s rejection of rape-supportive culture.

The problem is in the definition. Can someone, as a teenager in the documentary wondered, commit rape but not be a rapist? The idea is a paradox. Someone who rapes is by definition a rapist. According to the CPS’s Sexual Offences Act of 2003, types of sexual crime are defined as follows: rape; assault by penetration; sexual assault; and causing a person to engage in sexual activity. The rather vague guideline on judging consent reads as follows:

‘Person (A) is guilty of an offence if she/he: acts intentionally; if person (B) does not consent to the act, and (A) does not reasonably believe that (B) consents.’ (The Crown Prosecution Service 2003)

This short definition appears to be missing some of the nuances that exist in sexual assault cases. For example, what if ‘Person (B)’ does not give consent but ‘Person (A)’ thinks they did, or what if ‘Person (A)’ acts without consideration? Herein lies the problem. These vague lines make it easier for perpetrators to justify their own actions. We must also ask if it is possible to ‘negligently’ assault someone, regardless of how unpleasant the question may be. In the documentary, a common made by the evaluators was the need for another term. A term or legal definition like ‘manslaughter’ is to ‘murder’.

14193819803_a72b39de6b_z
Image: Wolfram Burner via Flickr

To make matters more complicated, there is a variation between different nations’ and cultures’ evaluations of morality and sexual interaction. In an increasingly global world, it becomes easy to accept a relativistic approach to the issue. In other words, it becomes conceivable to write off the behaviour of a sexual assailant because their understanding of consent may be different. The historical backdrop of sexual violence is global and undeniable. Rape has continued to go unpunished and has even been encouraged in some instances by way of semantic justifications and cultural acceptance of violent behaviour. It becomes compulsory for moral relativism, or the idea that an individual chooses what is right for themselves based on their sociological background, to be rejected. A universalist approach must be taken if the problem of rape culture is to be resolved. Someone who rapes is always a rapist by definition, no matter the validity of their objections (not to say that false accusations never occur and that innocent people should be condemned – these are, simply, very rare).

Rape and rape culture are precipitated by a lack of understanding of how consent is defined and the excuses we accept for those who use ignorance as an excuse for their immoral behaviour. Consensual sexual relations require clear communication. It may not always feel ‘sexy’ to verbally confirm someone’s consent, but it is often necessary if a person does not respond in a physically receptive way.

Because of the confusion, I offer some definitions which are backed up by laws, precedents, and moral guidelines from many countries around the world (WHO, UN, CPS, FBI). If someone is unable to understand and communicate, they are unable to consent. A sleeping person, like in the video, cannot consent because they cannot communicate while asleep. A non-response is not an indication of consent either and is often a sign of fear, shock or some type of impairment.

According to a study out of Virginia Commonwealth University, those who commit sexual assault often do not experience reflexive empathetic emotion. This means perpetrators are significantly “incapable of understanding the meaning of sexual violence to [their victims]”(Scully 1988). The public and those who have been convicted of sexual crimes need clarification regarding what sexual assault is and its devastating effects on victims. With more clear definitions of crimes like rape, sexual assailants will stop feeling at home in what was once a culture of rape and what could be a culture of empathy. “They didn’t mean to”, “boys will be boys”, “they didn’t mean anything by it”, or “they thought _____” would become adages of the past.

The young man in the scenario shown in the documentary said he felt like he had done wrong but had not committed rape. Unfortunately, there is no getting around the truth. As much as a viewer may have pitied or even identified with him, he is no less guilty and the victim is no less traumatised. While difficult for some to accept, the answer – according to officials and experts around the world – is simple: no consent? It’s rape. Always.

Featured photograph: Chase Carter via Flickr

Leave a Reply

Your email address will not be published.

 

This site uses Akismet to reduce spam. Learn how your comment data is processed.