Did I Consent?
There's a wide spectrum of coercion between enthusiastic consent and brutal force, and many people are unsure where's the line between an unfortunate misunderstanding and a violent felony. Some internalize the blame and hold themselves responsible even for things that were entirely out of their hands. Others prefer to blame someone else, even for things that were within their control. Unwanted sexual intercourse can be traumatic no matter if you were forced or reluctantly agreed. It can leave long-lasting impact: anxiety, depression, loss of trust towards people, problems with sexuality, etc. If you experienced unwanted sex and struggle with these (or any other) issues, you deserve support and sympathy, regardless of how the incident might be classified legally. However, legal status of things does matter if you're planning to accuse the other person of rape. This page does not constitute legal advice because laws vary slightly depending on your location, but might give a general idea about what consent is and isn't, by illustrating the concept with real life examples. All names and identifying details have been changed for privacy reasons.
Rape means non-consensual intercourse:
Up until 2010 rape was legally defined in the US as "carnal knowledge of a female forcibly and against her will." This definition worked for a while, but had to be updated due to a few bugs. First, men get raped too. Second, anal rape (of a man or of a woman) isn't any less of a crime than vaginal rape. Third, many rapes do not involve direct physical force: there's no point in wrestling against someone twice your size. And fourth, some people can't make or voice their choices (e.g. those in coma). All of these scenarios used to be prosecuted as sexual assault rather than rape, which resulted in skewed statistics and disproportionate sentencing. For example, violent penetration of a senior suffering from Alzheimer's didn't count as rape, just because he was penetrated anally and unable to object due to his mental state. In 2010 the legal definition has changed to include these scenarios too, and now rape is defined as "penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim."
Consent means voluntary agreement:
Consider this scenario: a homeless guy pestered me until I gave him a dollar. I might regret it and feel that he was a jerk, but what happened wasn't robbery. He didn't take my dollar by force, I agreed to give it him, no matter how grudgingly. That's what consent is, voluntary agreement.
Some people can't give consent by law:
Minors, inmates, the unconscious, and vulnerable adults are legally incapable of giving consent; sex with them is always charged as statutory rape, even if they seemed willing and eager. For example, 34yo Becky has Down's Syndrome and an IQ of 48. Her care provider Joanne suggested they play a special game. Becky agreed because she likes checkers and jigsaw puzzles. The special game involved Joanne sticking things up Becky's privates. Becky never said "stop" and never told anyone because she was confused by the experience and felt ashamed and scared of getting in trouble. That's rape, because Becky is a vulnerable adult, and it's illegal for her care providers to have sex with her.
Consent can't be forced (physically or otherwise):
27yo Renata is an illegal immigrant, working as a babysitter and supporting her parents back in Ecuador. She was caught by the INS, and the officer threatened to deport her unless she gives him oral sex. Renata agreed, sustained no injuries, and never reported this incident to the authorities because she believed that was prostitution. It would have been prostitution if she approached the INS officer offering oral sex in exchange for permission to stay in the US. However, that's not what happened. He used blackmail to force Renata into this arrangement, it wasn't her choice. That was rape.
Consent doesn't always coincide with how you feel:
Jenny and her boyfriend Mark were having a fight; Mark said he needed space and went to sleep on the couch. Jenny went to bed, but kept thinking about their fight and couldn't fall asleep. She went to the living room, woke up Mark, and initiated sex. He said "no" initially but then reluctantly agreed and they had an intercourse. After that Mark stayed on the couch, and Jenny went back to bed. The next morning Jenny called the police because she felt she was raped by Mark: she didn't really want to have sex, she only initiated it to reconcile their fight, and she believes that unwanted sex means rape. However, the police felt differently about it: rape isn't unwanted sex, it's non-consensual sex, and consent isn't about how Jenny felt, it's what she communicated to Mark. Mark wasn't charged with any crime. Jenny, on the other hand, was lucky escape rape charges, because initially Mark said "no", and in some jurisdictions coercion counts as rape.
Consent can be expressed or implied:
24yo Rebecca has never dated anyone and is painfully shy. To gain confidence, she sought out a one-night-stand with Jorge: responded to his dating ad, exchanged nude selfies with him, and drove to his home at night with a bottle of wine and a pack of condoms. They drank the wine, made out, undressed, and got in bed, but then Rebecca froze and didn't say either "yes" or "no". Jorge assumed she was shy and needed him to take the active role, so he proceeded with the intercourse. Rebecca felt traumatized, and deserves sympathy and support. Had Jorge been a better partner, he would have double-checked if her lack of enthusiasm was due to shyness or if she was having second thoughts. However, this wasn't rape because Rebecca clearly communicated her initial intention to have sex, and never told Jorge that she changed her mind and wanted him to stop.
Consent refers to each separate encounter:
42yo Emily was having a migraine and told her husband David that she wasn't in the mood for sex. David brushed it off because she's his wife, they've been having sex for twenty years, she agreed to it when she said her wedding vows. Emily didn't kick or scream because it would be pointless, David is twice her size. She laid there motionless staring at the wall, and repeated "no" a few times. When he was done and fell asleep, she called 911. David was arrested, because ignoring your partner's "no" is rape, no matter what they said or did prior to that, even if you've had consensual sex many times before.
Consent can't be withdrawn retroactively:
When 37yo Lisa caught her boyfriend Jim cheating, she called the police and told them he pressured her to give him oral sex about eight months prior. It's possible that he did, but Jim was never charged with any crime. There was no evidence of either guilt or innocence, and the police had to assume Lisa was OK with that incident at the time because she continued dating Jim for eight months after that without any complaints. You can change your mind at any point before or during sex, and if you say "stop" your partner has to respect it; however, you can't agree to sex at the time it's happening and then accuse your partner of rape because you changed your mind after the fact.
Drunk sex vs. rape:
22yo Jess was sitting in a mud puddle by the side of the road and giggling to herself, because she got high at a party, decided to take a walk alone, and got tired. A car stopped by her, someone dragged her inside, had an intercourse with her, threw her out, and drove away. That was rape, even though at the time Jess responded to it with more giggles, she never said "no". Jess was clearly in no condition to say anything; someone took advantage of her vulnerable state. There are no legal specifications as to how high one's blood alcohol/drug level needs to be to render them unable to consent - but most people don't carry the equipment to measure it either, so these things are guesstimated and the concept of "reasonable person" is used in courts. I.e. any reasonable person would see that Jess was incapable of consent, thus what happened to her was rape. On the other hand, if she were intoxicated but still walking and talking coherently, a reasonable person might assume her capable of consent; sex under the influence is not a crime per se.
Lack of recollection:
If you don't remember what happened, it means that you could have been raped. It also means that you could have engaged in consensual sex. Or that you raped somebody. It's a very uncomfortable feeling, when you wake up and realize you've had a sexual intercourse the night before and know that you never would have agreed to it if you were sober - but that doesn't automatically prove you were raped.
If you think you might have been raped, it's a good idea to step by a police station and talk to a detective there. They'll hear you out, ask you questions, and help you figure out what happened to you and what can be done about it now. It's free, and you won't be in trouble even if it wasn't rape, as long as you're being truthful. Either way, whether the incident fits the legal definition of rape in your jurisdiction or not, you deserve sympathy and support, and have every right to reach out for it. We're truly sorry you had to google this page and hope you find the help you're looking for.
~ Menachem Mendel Schneerson
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