When my boyfriend coerced me out of my virginity at the age of 19, I didn't say "no" or "stop." But I didn't say "yes," either, and I squeezed my thighs together so tight and, when he left that night, I cried for hours. Despite this, I didn't consider it rape. Didn't consider it anything more than a shit move by someone who was slowly revealing himself to be a shit guy. But when I ran into him five years later, I still shook uncontrollably, bile roiling at the base of my gut.
Issues of rape, sexual assault, and consent have been prominent in the public conversation these past two years. Rolling Stone published "A Rape on Campus," and then retracted it when many parts of the story were called into question. Jon Krakauer published Missoula, a painstakingly reported piece of narrative journalism on a series of sexual assaults at the University of Montana. In the wake of these pieces and others, it seemed everyone was suddenly talking about consent: what it meant, how it might be conferred, and who was responsible for it.
And then, after years of silence, women began to accuse Bill Cosby of sexual assault. Over time, more and more came forward. The list of women who have accused Cosby now amounts to more than 50.
According to the Justice Department's National Crime Victimization Survey: 2008-2012, 68 percent of sexual assaults are never reported to the police. In many cases, women simply wait too long to report, at which point the statute of limitations for the crime runs out. In other cases, the decision not to report is a purposeful one. There has been much discussion lately as to why the women who have accused Cosby waited so long to speak out. Conspiracy theories. Victim blaming. Doubt and outrage. These reactions themselves are among the many reasons so many women choose to remain silent.
But this particular case aside, rape can be a slippery thing. Sexual assault can be a slippery thing. Consent can be a slippery thing. Or at least it can sometimes seem so to those who are grappling with what they have experienced. According to research published in Violence and Gender in 2014, many male college students report that they have never committed rape, declarations that come into question when we learn that these very same men are not actually aware that the sexually aggressive actions they've engaged in do, in fact, constitute rape. Meanwhile, according to a 2007 Department of Justice survey, 35 percent of sexual assault victims didn't report their assault because it was "unclear that it was a crime or that harm was intended."
The fact that the definitions for rape and sexual assault differ from state to state and organization to organization only adds to the confusion for both victims and those who seek to prosecute these cases. The ideal fix would be for an overarching governing body to develop definitions that could be adopted by every state's legislature; meanwhile, we need effective education on consent and healthy sexuality—not just for children, but for everybody.
HOW WE DEFINE SEXUAL ASSAULT
The Rape, Abuse, and Incest National Network is the largest organization in the United States devoted to fighting sexual violence through programs intended to prevent sexual assault, support victims, and seek justice. The organization defines sexual assault as "sexual contact or behavior that occurs without explicit consent of the victim." For the definition of rape, RAINN quotes the Federal Bureau of Investigation: "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."
This definition was developed in 2012 as part of a collaborative effort between various representatives of law enforcement and victim advocacy groups. It is a definition that is far more effective than previous iterations, yet it exists solely for the purposes of the FBI's Uniform Crime Reporting Program, which collects and publishes data on the scope of various types of crime in the U.S., including rape.
Then there is the definition of sexual violence developed by the World Health Organization, which is actually folded into the group's definition of overall intimate partner violence (IPV). IPV is defined by WHO as "any behavior within an intimate relationship that causes physical, psychological or sexual harm to those in the relationship." Sexual violence itself is said to include "forced sexual intercourse and other forms of sexual coercion."
Other government health organizations have even briefer definitions. The Centers for Disease Control and Prevention (CDC), for example, define sexual violence as "sexual activity where consent is not obtained or not given freely." The Office on Women's Health—part of the U.S. Department of Health and Human Services—defines sexual assault as "any type of forced or coerced sexual contact or behavior that happens without consent."
Unfortunately, how you choose to interpret any of these definitions—or how carefully they were crafted—makes no difference if you are considering whether or not to bring charges against the person who has assaulted you. In such cases, whether or not something counts as rape or sexual assault differs from state to state.
In New Jersey, for example, aggravated sexual assault in the first degree is defined as "committing an act of sexual penetration with another person" under a set of possible circumstances, including the use of "physical force or coercion," and with severe personal injury sustained by the victim. "Severe personal injury" is further defined to mean "severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain." The punishment for such a crime is 25 years to life in prison, and there is no statute of limitations.
In trying to parse whether or not you have been truly assaulted, however, who is to say whether or not your mental anguish is “incapacitating”? How long does your pain have to linger before it is considered “chronic”?
Or there is Pennsylvania, which does have a statute of limitations (12 years for most types of sexual assault). The state also has different definitions for rape, sexual assault, indecent assault, aggravated indecent assault, and sodomy. If that list alone makes your head spin, at the very least their definitions contain a common denominator: the issue of consent or coercion.
Indeed, the issue of consent and coercion seems to be the one question we can turn to no matter which definition we're considering, and which entity has developed it.
WHAT COUNTS AS CONSENT?
Because of the alarmingly high incidences of campus sexual assault—the scope of which it seems we have only recently begun to recognize—there has been a strong push for the incorporation of consent education in high school sexuality education courses. And not just consent, but "affirmative sexual consent." In a shift away from the common refrain that "no means no"—a mindset that can place the onus of sexually aggressive behavior on victims who were perhaps too terrified or paralyzed to express their dissent—the definition of consent is evolving. Instead of "no means no," "yes means yes," which means that explicit consent—a "yes" that rings out loud and clear, body and soul and full-throated voice—must be given by both parties.
On October 1, 2015, California became the first state to require this form of education in state high schools. And colleges are following suit. According to Inside Higher Ed, by 2014 more than 500 colleges were using an "affirmative consent" standard in their sexual assault policies. And groups on campus are developing educational offerings and advertising campaigns to spread the word, and the concept. Consent is Sexy raises awareness of affirmative consent through posters, workshops, and other student-run events. UltraViolet, a group that combats sexism, created mock pornography shorts showing that getting a clear yes doesn't have to detract from the moment. And on graphic-heavy social media platforms such as Tumblr, sites like Sex Ed Plus and Sex, Etc. are disseminating eye-catching graphics that make the point that consent is mandatory.
If you think the concept of consent is common sense, and that all of this effort is for naught, guess again. According to a recent Washington Post-Kaiser Family Foundation survey of current and recent college students living on or near a campus, many students' understanding of consent is still fuzzy. Eighteen percent of college students still believe someone has consented to sex as long as they haven't said "no." And 22 percent of students believe someone has consented to "further sexual activity" if they have merely engaged in foreplay such as kissing or touching.
It is because of this confusion that it is still so easy to question victims' testimony, no matter how prominently consent figures into various states' laws. It is why victims are still forced to play an often losing game of he said/she said. Or as the New York Daily News so effectively pointed out in the context of the Cosby case: "With the toll of Cosby's alleged victims standing at more like 60, the weight of the evidence is actually 'he said-she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said, she said.'"
WAS IT RAPE?
So was it rape all those years ago? Did I experience rape? Have you experienced rape, or perhaps some other form of sexual assault?
According to RAINN's website, which features a "Was I Raped?" page, there are three important pieces of information to take into consideration if you're unsure:
- Were both participants old enough to consent?
- Did both participants have the mental capacity to consent?
- Did both participants agree to take part?
If, after answering these questions, you're still unsure, there are further frequently asked questions that tackle seemingly gray areas, such as those instances wherein one did not resist physically, or wherein the assailant was a romantic partner.
As for me? Well, I didn't say "no" or "stop."
But I didn't say "yes" either.
And I squeezed my thighs together so tight.
And, later, I cried for hours.
So why am I still confused? How can this become less confusing for me and for all of us? Is it possible that we will someday overhaul our sexuality education curricula in a way that minimizes uncertainty, even in cases where the legal system is still scattered?
Why is that word—"rape"—still so hard say? Why am I so reluctant to apply it to my own experience?
And I still wonder: Am I perpetuating the problem?