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Not the kind of people you want sitting in on your rape trial.
“No means yes”: It’s not just for Yale frat guys, celebrity defense attorneys, and the citizens of opposite land. Nope, that line of reasoning is also a pretty common one among old, privileged ladies, and other groups you may expect to find sitting on the jury of your rape trial!
Last month, Dan Kahan of Yale University Law School released a study examining the cultural factors at play in popular reactions to rape cases. Kahan’s research question was straightforward: If a person voices “repeated verbal objections” to a sex act, is it rape?
In other words, who among us thinks that “no” really means “no,” and who thinks that “no” is just a handy excuse for loose women? As it turns out, knowing that “no” means “no” has little to do with your gender, and a lot to do with what you think about gender.
People Who Think “No” Means “No”: Men and women with an “egalitarian” worldview which “judges the character of men and women by a largely unitary measure, and treats female sexuality as a legitimate expression of individual autonomy.” Makes sense, right? Not to some:
People Who Think “No” Means “Maybe”: As it turns out, people who can’t tell the difference between “yes” and “no” are nevertheless very invested in maintaining differences between “men” and “women.” The people most likely to believe that a rape victim actually consented, even though she said “no”? Those with a “conservative, traditional, and hierarchical” worldview, marked by “highly differentiated and stratified gender roles.”
Among this group, older women were the most likely to pooh-pooh “no means no”: “Overall, women were no more or less likely to favor conviction than were men. However, women who subscribed to the hierarchical cultural style—particularly older women who did—were more inclined to form a pro-defendant view of the facts.” And Sady of the the brand-spankin’ Tiger Beatdown and I think that requires a Sexist Beatdown.
BUT FIRST, some background: Kahan based his study on the Ironically Fucked-Up Rape Case of the Century, Commonwealth v. Berkowitz. The case surrounded a college sophomore girl and a college sophomore boy who got to know each other—-platonically—-through a “sexual-assault awareness lecture” entitled, I’m not fucking kidding, “Does ‘No’ Sometimes Mean ‘Yes’?”
Only weeks later, the content of that lecture would be tested when the girl entered the boy’s dorm room, and they got to talking:
Before the victim could leave appellant’s room, however, appellant asked her to stay and “hang out for a while.” She complied because she “had time to kill” and because she didn’t really know appellant and wanted to give him “a fair chance.” Appellant asked her to give him a back rub but she declined, explaining that she did not “trust” him. Ap-pellant then asked her to have a seat on his bed. Instead, she found a seat on the floor, and conversed. . . . During this conversation she had explained she was having problems with her boyfriend. .
[After a few minutes, the defendant] moved off the bed and down on the floor, and “kind of pushed [the victim] back with his body. It wasn’t a shove, it was just kind of a leaning-type of thing.” Next appellant “straddled” and started kissing the victim. The victim responded by saying, “Look, I gotta go. I’m going to meet [my boyfriend].” Then ap-pellant lifted up her shirt and bra and began fondling her. The victim then said “no.”
After roughly thirty seconds of kissing and fondling, appellant “un-did his pants and he kind of moved his body up a little bit.” The victim was still saying “no” but “really couldn’t move because [appellant] was shifting at [her] body so he was over [her].” Appellant then tried to put his penis in her mouth. The victim did not physically resist, but rather continued to verbally protest, saying “No, I gotta go, let me go,” in a “scolding” manner.
Ten or fifteen more seconds passed before the two rose to their feet. Appellant disregarded the victim’s continual complaints that she “had to go,” and instead walked two feet away to the door and locked it so that no one from the outside could enter. . . . The victim testified that she realized at the time that the lock was not of a type that could lock people inside the room.
Then, in the victim’s words, “[appellant] put me down on the bed. It was kind of like—he didn’t throw me on the bed. It’s hard to explain. It was kind of like a push but no. . . .” She did not bounce off the bed. “It wasn’t slow like a romantic kind of thing, but it wasn’t a fast shove either. It was kind of in the middle.”
Once the victim was on the bed, appellant began “straddling” her again while he undid the knot in her sweatpants. He then removed her sweatpants and underwear from one of her legs. The victim did not physically resist in any way while on the bed because appellant was on top of her, and she “couldn’t like go anywhere.” She did not scream out at anytime because, “[i]t was like a dream was happening or some-thing.”
Appellant then used one of his hands to “guide” his penis into her vagina. At that point, after appellant was inside her, the victim began saying “no, no to him softly in a moaning kind of way … because it was just so scary.” After about thirty seconds, appellant pulled out his penis and ejaculated onto the victim’s stomach.
Immediately thereafter, appellant got off the victim and said, “Wow, I guess we just got carried away.” To this the victim retorted, “No, we didn’t get carried away, you got carried away.” The victim then quickly dressed, grabbed her school books and raced downstairs to her boy-friend who was by then waiting for her in the lounge.
Once there, the victim began crying. Her boyfriend and she went up to his dorm room where, after watching the victim clean off appellant’s semen from her stomach, he called the police.
The defendant testified in his own behalf. He admitted that he initiate[d] the first physical contact, but added that the victim warmly responded to his advances by passionately returning his kisses. He conceded that she was continually “whispering … no’s,” but claimed that she did so while “amorously . . . passionately” moaning. In effect, he took such protests to be thinly veiled acts of encouragement.
Kahan’s study presented an almost identical account to study participants, and asked them to judge whether the incident constituted rape or not. 58 percent of people surveyed said they would have found the boy “guilty of rape.” 42 percent would not have found him guilty.
AMANDA: Hey, would you like to chat now? Remember: In this chat, “no” means “maybe.”
SADY: as it should! i, personally, like to SAY “no” so that my chat partner will not believe i am enthusiastic about the chat that i totally actually want to be chatting.
AMANDA: I generally restrict using “no” and variations on it, such as “stop,” with undergraduate rapists whom I have never met before, in order to ensure that the Pennsylvania Supreme Court nows that I truly maybe wanted it.
SADY: right? so, this case. around which this study is based. is actually like some terrifying cartoon of sexist assumptions. girl goes into dude’s room. girl has been friendly with dude. dude proceeds to initiate sex, to which girl says no. sex continues on apace. which is rape, right? but instead there are all these discussions of whether she tried to unlock the door or whether he shoved her onto the bed HARD enough to constitute “force” (did she bounce?) and the “no,” although admitted to by both parties, actually DOES NOT COUNT AT ALL.
AMANDA: Did she bounce. That’s the really, really weird thing about this case: All the assumptions about what makes a “real” rape are totally fucking insane! and the one sane assumption—-that if she says no, it means she doesn’t want to have sex—-is discredited
SADY: right. and at one point, they mention that it was determined that the “no” meant lack of CONSENT, but did not thereby qualify the act as RAPE, since rape requires force and also that you not be married to your rape victim. so the question is, then: why isn’t “no” enough? why is “no means no” a problem, and for whom? and the answer is… um, older ladies, apparently.
AMANDA: yeah: the answer is older, privileged ladies that i imagine to be stroking gigantic white cats while informing rape victims that they actually wanted it . . . in order to hold on to their social privilege, and the diamond-encrusted tiaras that go along with it, or whatever. these older ladies are really interesting to me, and i was trying to figure out what exactly about their cultural circumstances made them want to decide this case this way?
SADY: right. like, one SAYS no to the gentleman, dear, that he might not think you a harlot. whilst you have the sex that you said “no” to because you wanted it. oh, and also, if you say no AND MEAN IT there’s no way for the dude to know that! because you SHOULD be saying no ALL THE TIME!
AMANDA: And also, implied, I think, is that if any women actually say NO and mean NO, then the women who say NO and mean YES will be considered sluttier than the rape victims. WHICH IS FUCKED UP.
SADY: UH HUH. and, like, if you want to play an incredibly hot erotic sexy game of saying “no” to sex every time you want sex, whatever. for me that is like playing a game of Let’s See How Close I Can Stick My Face To This Chainsaw every weekend. but what are the odds that a woman who says no and means yes is going to then up and take her case to a rape court? for funsies? like, that is pretty time-consuming and awful, actually! i doubt anyone is THAT invested in maintaining her reputation as a non-sex-liker! so why should it affect the construction of the law? AT ALL?
AMANDA: beats me. the really scary thing is the assumption that because these jurors will decide based on their cultural attitudes and NOT the law, it doesn’t matter WHAT the law says rape is
SADY: right, which is what the study seems to confirm.
AMANDA: however, in this particular case, the jury did decide to convict the dude of rape, and then the penn. supreme court decided 7-0 to reverse it … based on the law. or … based on their weird cultural assumptions? perhaps there were some hidden Privileged Older Ladies on the bench?
SADY: it really strikes me that the basic assumption here (in people who assume that “no means no” is a bad thing) is that dudes go around accidentally raping ladies ALL THE TIME and shouldn’t be punished for it.
AMANDA: yeah. oops!
SADY: like, the idea is that dudes can’t interpret the word “no” correctly, because they are less smart than your dog, and therefore should they accidentally rape someone who is saying “no” a lot you have to give them the benefit of the doubt. like, better luck next time, timmy!
AMANDA: even though, chillingly, the accused and the victim got to know each other in a sexual assault awareness lecture titled “Does ‘No’ Sometimes Mean ‘Yes’?” you really have to wonder how the lecture resolved that question
SADY: Oh, GOD. “in conclusion, no means no except when that is inconvenient for you personally! hope this helps!”
AMANDA: like, if the lecture concluded, “No, No Doesn’t Sometimes Mean Yes,” the attendees could have said, well yes, but what if No actually means Yes in your conclusion that No Doesn’t Mean Yes?
SADY: ah, the timeless “but I WANT ice cream” logical maneuver.
AMANDA: it’s terrible, because “no means yes” has always struck me as some sick dirty joke that people tell, but now i see that it has affected the actual reasoning of juries. the main point to take away from this is that jurors need to stop taking their jury duty vacation as an oppportunity to punish women that they think are sluts. if i were a lawyer, i would start asking that question in jury selection.
SADY: ray of light here, though? younger, more sexually active folks of both genders were more likely to grasp the meaning and validity of “no.” like, apparently if you get that women CAN consent to sex, you’re more likely to not have sex with them until they DO!
AMANDA: yeah. totally.
SADY: which, you know. the slut-punishing vigilante squad aside, makes me feel hope for this new generation, and their ability to understand words you learned when you were two years old.
AMANDA: this study was extremely depressing. i at least thought that the “she wanted it” defense would at least concede that admitting that she actually said “no” would be bad for their case. you’d assume the rapist wouldn’t admit that! but when he does, the Old Privileged Ladies seems almost more likely to believe him
SADY: well, you know. he’s a poor young man! led astray by that permissive harlot! and so on, and so forth.
AMANDA: no bouncing, so what can you do
SADY: right. NOT ENOUGH PREMARITAL FORCE-BOUNCING, that’s what was wrong with this case. so, here’s my advice to the world: however you feel about “no,” can we hope, maybe, that you are MORE excited to get a “yes?” Because that, I think, is what you should be aiming for. “Yes, I would like to have sex with you.” That, I would assume, is a statement that we can all agree is a positive.
AMANDA: . . . Maybe!