Rumination on misogyny.

[Jim Lane]

24. What's legally relevant is not the person's own mind, but whether consent was expressed.

I'm not clear whether you're addressing rape in the context of a criminal prosecution in which the jurors must weigh conflicting testimony. Your post is open to that interpretation, so I'll explain why I think it's wrong in that context.

We would reject a defendant's argument that "Even though she said 'No' I could tell she really wanted it, so I went ahead." That amounts to saying that No means Yes, and I'm sure almost everyone on DU agrees that No means No.

The flip side of No means No, however, is that Yes means Yes. If she gave consent -- and was not under any coercion or incapacity -- then it wasn't rape. If she gave consent, but later states that she didn't really want it, we can sympathize with her situation, we can tell the man that he should be more attuned to a woman's attitude, we can think about educational campaigns to reduce the incidence of this -- but we can't convict him of rape. If you reject the No means Yes defense, you should also reject the Yes means No prosecution. "Oh, all right, go ahead, let's just get it over with" is quite unenthusiastic, but it's still legally effective consent.

That's why I disagree with your argument for giving her testimony more weight than his. What matters is not what she thought, but what was expressed between them. On that subject they are equally knowledgeable.

I'll reiterate that I'm talking about the legal context. In my personal life, if a woman said "Oh, all right, go ahead, let's just get it over with," I would not go ahead. Such grudging consent would be a complete buzzkill for me, no matter how ardent I had been five seconds earlier.