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(Trigger warning: Rape)

Is consent for sex something that’s assumed?  Or is it something we must actively obtain when we are initiating it?  Here’s what the Connecticut Supreme Court decided in the last few weeks:

The state Supreme Court Monday threw out the conviction of a city man found guilty of sexually assaulting a severely handicapped woman.

In a 4-3 decision, the high court ruled that despite evidence the 26-year-old woman cannot speak and has little body movement, there was no evidence she could not communicate her refusal to have sex with the defendant, Richard Fourtin Jr. As a result of the ruling, Fourtin goes free and cannot be tried for the case again.1

So, obviously Richard Fourtin Jr.’s defense was: “She didn’t say no./She didn’t fight back.”
The state Supreme Court went on to say:

Women are assumed to be in a constant state of consent unless they explicitly state otherwise.2

Did you already get past the gross urge to puke, head desk, and rage?  It’s okay.  Get it out of your system.  The level of how problematic this is makes me want to run for the hills.  But I’d be a liar if I said that this shocks me.

What if I rephrased the state Supreme Court’s statement to:

Women are assumed to be in a constant state of free access.  Yeah, everyone, just go ahead and try raping that lady.  You have total access unless she says no and fights back.

Sure, I paraphrased that.  But it’s the same message.  It’s still the same implication.

Sometimes sex and women are seen as a commodities, still problematic, but for all intents and purposes, I’ll use this model.  So, what if I rephrased it in this way:

Everyone’s houses and cars are assumed to be in a constant state of access.  So, do feel free to enter any house or car without the owner’s permission unless the owner says no and puts up a struggle.

Now I don’t agree with comparing women to houses and cars.  It unnerves me when anyone uses the fallacious “building demolition” analogy.  But the state Supreme Court’s ruling is based on the commodity model, and based on this model the assumption of other people being in a constant state of consent still makes no sense when paralleled to the prior analogy.  It doesn’t make any sense no matter how we change the context.  Affirmative and enthusiastic consent is a standard we have in all aspects of our lives except when it comes to sex for some reason.  Outside of rape, isn’t it better to have sex with someone you know who wants it completely?  Silence isn’t a yes.  It’s definitely not a, “Oh, I want this.  I want you.”  It’s just compliancy to avoid hurting feelings, arguments, or even violence.  It’s not consent.

Ruling on this lack of a no instead of on the absence of consent puts all the responsibility on the victims to say no instead of on the rapists to refrain from raping. It insinuates that victims are expected to say no to someone potentially dangerous, and even to get physically violent, ignoring the very high risk of possibly being injured further or, you know, killed.  It is an example of rape culture and, at the same time, perpetuates it.   “No means no” is not enough, it’s not efficient.  We should be promoting “yes means yes.”  Hell yes and nothing less.

SOURCES:
1http://www.ctpost.com/news/article/Supreme-Court-sets-accused-rapist-free-3910077.php
2http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR307/307CR83.pdf