Jewish Journal

Making a Mistake is Not Rape

by Tamara Shayne Kagel

February 25, 2011 | 10:38 am

A District Judge has ruled that Julian Assange will be extradited and so he leaves to face his accusers.  As a news junky, I’ve been fascinated with Assange for months and so I’ve been following his rape case rather closely. Or I guess I should say, alleged rape. There are two good articles on the subject that shed more light on the issue in Salon and The Daily Mail.

Although no one will ever really know what happened, from all the leaked documents and excessive reporting out there, it seems like Assange started to have consensual sex with Girl 1 (whom he was staying with and who organized the event he was there for), the condom broke, and he continued – she may have asked him to stop and he may have used his body weight to pin her down to finish. Girl 1 threw Assange a party the next night.

Three days later he had sex with Girl 2, one of his groupies at her apartment with a condom. He slept over and the next morning she was asleep when he started having sex with her. Presumably she woke up and assumed he was wearing a condom again but he wasn’t. Girl 2 wanted to stay in touch but was hurt that the encounter turned out to be a one night stand. Soon after, Girl 2 called Girl 1 for Assange’s contact info because of her fear about STDs and the two ended up confiding in each other. They went to the police station together to report the assaults.

Was this rape? It appears the answer to that question will be different in Sweden than in America. In Sweden, if the consent to have sex was given on condition that a condom be used and then the man didn’t use one, this is rape (albeit in the least serious category of three). In America, rape in many states can only occur if there is force, so if consent has been given, it probably can’t be verbally revoked. New York is a notable exception to this.

If you have already started the act of sex, and then the girl changes her mind and says stop but he continues, should this be rape?

Although many legal scholars have argued that America’s rape laws are antiquated and should be more akin to the laws in Sweden, I’m not sure that this is necessarily true. If we did have a rape law on the books like that, how forcefully does the girl have to revoke her consent? Obviously, it’s easiest if she’s kicking and screaming and desperately trying to get away, shouting “Stop!”

But what if consent has been given, the condom breaks and she says something like “we should stop this.” If the man continues, should that be rape? If the girl whispers “stop” one time, but doesn’t physically try to get him to stop and he continues, is this rape? Or say the man is wearing a condom and ten minutes into the sexual encounter, the girl says “stop,” he thrusts only one more time to finish and then it’s over. Is he a rapist?

These scenarios really bother me and despite my strong feminist leanings, I’m probably in the camp that says no, this isn’t rape. I know I’m supposed to talk about how a woman’s right to say no is limitless and anything less than full consent at every moment is rape, but this completely ignores the primordial context with which these verbal protestations are taking place.

Sex is an expression of our most basic animal instincts especially for men and I’m not sure a woman has the right to incite those instincts right up until moments before the apex of a physiological expression and then tell a man’s brain to take over and resist every animal urge in his body.

Before you all get your panties in a bunch about how I’m making an argument that men should get away with rape, let me be clear, rape is one of the most evil violative acts in the world. I’m not making an allowance for it or anything like it whether there’s a weapon or it’s date rape or she has given consent before. Of course women have the right to say no to sex – my question is: how strong does the no have to be? and is it physiologically realistic to be able to say no seconds before the sex is over?

We don’t have the right in this country to provoke people to their breaking point. For instance, the constitution protects free speech but does not protect “fighting words,” as in there are some things which it can be illegal to say to someone if it’s likely to cause an immediate breach of the peace. It’s understood in our legal doctrine that there are somethings which can be said which are so likely to cause a violent result that you lose the right to say it. Should there be a parallel in sexual assault laws? Is there some point of no return during the act of sex where it’s almost unreasonable to ask a man to stop?

I’m sure most of you will disagree with this suggestion and say that even up till the millisecond before climax, a woman has the right to say no. And although I’m on the fence, even if I concede that you’re right and I agree that no matter where in the sex act the couple is at, if she says no, it’s rape, it still leaves open the question of how strongly does she have to say no? What if the sex has started, the girl says clearly she wants to stop, but then the man says “are you sure” and then she doesn’t say anything again? These scenarios are endless and I have a real problem lumping these men into the sexual deviant category of rapists we all agree are evil.

If a girl merely says “we should stop” and he doesn’t, that’s not rape. That’s a woman who’s making a mistake and doing something she’s going to probably regret but that’s not rape.

I’m sure the truth in the Assange case has yet to fully come out, but if the case hinges on whether or not the woman merely asked him to stop or instead told him to stop or just suggested he stop, I worry we are headed down a road that gives truth to the adage that “in Sweden, a man needs a woman to sign a release in order to have sex with her.” I agree that No means no. But what does Yes…I mean well…I mean wait I’m not sure but I don’t think we should do this mean?

Tamara Shayne Kagel is a writer living in Santa Monica, CA. To find out more about her, visit www.tamarashaynekagel.com and follow her on twitter @tamaraskagel. © Copyright 2011.

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Tamara Shayne Kagel is a twenty-something fixture on the Los Angeles scene currently living in Santa Monica.  Currently, Tamara is a successful freelance writer (just ask her...

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