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Acquaintance Rape/Non-Stranger Rape
What Does Consent Mean?
It's difficult to talk about sex even while engaging in sexual activity. Unfortunately, both men and women are socialized to believe certain things about the other, with disastrous results. One belief is that sexual foreplay implies consent to engage in intercourse or other forms of sex. But if a person -- male or female -- has not explicitly said, "Yes, I want to do this," it is wrong to assume consent has been given. Thus, you may be presumed to have committed sexual assault. Regardless of your mental state, and whether or not anyone involved has been drinking or using drugs, sexual intercourse without consent by both partners is rape. When you aren't sure, ASK. If the answer is not clear, remember that ambivalence is an answer, too. It usually means, "I'm not ready yet, even if I might want to one day." It's OK to talk about that. Err on the side of caution.
Researchers Alan M. Gross and Nathan C. Weed of the University of Mississippi demonstrate that men often ignore very clear communications from women that they do not want to participate in sexual activity. “In their attempts to escape being raped by a date, women display many powerful and salient refusal behaviors (e.g., crying, physical resistance, verbal resistance) that are ignored by their partners.”
While a man may mistakenly interpret a woman’s friendly actions as interest in sex and be frustrated, confused, embarrassed or disappointed when he finds out that this was not her intent, this does not justify sexual assault. The normal responses to this sort of misunderstanding would be the same as to any other: the man may get angry and leave; he may try to clear up the confusion; he may ask “why not?” The response to a misunderstanding is not to attack the person whom you’ve misunderstood.
Assertively and clearly stating what your desires are, particularly during the intrusion stage, may help a person to stop the testing behaviors and deter the assault from escalating. However, it is always the perpetrator who is responsible for his/her own actions.
Consent While Intoxicated
The Rape Crisis Advocacy Project, which is located at the University of Virginia School of Law, completed research on Virginia laws in 2005 about consent and intoxication. The results of their research are as follows:
Q. Can the defendant’s own intoxication be asserted by a defendant in a rape trial to negate the requirement of intent?
A. No. Voluntary intoxication is never a defense against rape allegations. Jordan v. Commonwealth, 181 Va. 490; 25 S.E 2d 249 (1943) (“Voluntary drunkenness is not an excuse for crime or attempts to commit crime.”)
Q. Can intoxication of a complaining witness be used by a prosecutor to show that the defendant used the complaining witness’s “mental incapacity or physical helplessness” to engage in sexual intercourse without his or her consent?
A. Yes, but only when the evidence is sufficient enough to show that he or she was so intoxicated that she was “physically unable to communicate an unwillingness to act.” Otherwise, evidence of physical non-consent is necessary.
A victim’s intoxication is most relevant to try to show that the conditions of §18.2-61A(ii) have been satisfied (i.e. that the defendant exploited the mental incapacity or physical helplessness caused by the victim’s intoxication). “Mental incapacity” and “physical helplessness” are defined differently by statute. Va. Code Ann. § 18.2-67.10 defines “mental incapacity” to mean “that condition of the complaining witness existing at the time of an offense under this article which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known.” Va. Code Ann. § 18. 2-67.10.3. “Physical helplessness” means “unconsciousness or any other condition existing at the time of an offense under this article which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known.” Va. Code Ann. § 18.2-67.10.4.
Source: The Rape Crisis Advocacy Project (RCAP), Public Service Center, University of Virginia School of Law, 2005.
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