"You did hear me." - Miscommunication and Rape. A short reply to Rosie Warren

Rosie’s piece on the International Socialism Network website entitled 'On Believing Women Who Allege Rape' can be found here.

It’s worth saying that I absolutely commend what Rosie is trying to do with her discussion on miscommunication. First, she’s attempting to shift the blame for supposed miscommunication from the woman, to the man. She writes:

“While it may indeed be the case that there has been a misunderstanding, it is surely the man who has not understood that this is rape, rather than the woman who has not understood that it is not." 

As Rosie correctly argues consent is something that is given actively, enthusiastically and consciously and therefore cannot be something a woman gives unintentionally. Secondly she’s analysing how mythologies about rape can have an effect on how some men relate to consent. The effect being that some men have a much skewed notion of what consent actually is. This often culminates in men having sex with women without the woman’s consent: up to 95,000 rapes are estimated to happen each year and The Haven’s reported in 2010 that 23% of women living in London have been made to have sex without them wanting to.

A caveat is important: the source of oppressive understandings of consent is not that there are a few men who just so happen to be bad apples. Nor is it the case that the way of the world dictates that some men are destined to harbour oppressive ideas. It’s important to stress the structural sexism that moulds sexual relations between men and women and argue that these structures lay the basis for defining abusive relations between men and women. Ultimately, this is where the blame lies; it is not the case that men are naturally abusive and not merely a matter of men being alienated.

However, there are, I believe, negative implications to the way in which Rosie discusses miscommunication and several objective and political reasons why I think her emphasis on it in the latter parts of her piece is far too much. I would argue that the question of miscommunication is not one we should even be acknowledging.

Firstly, if a man is unsure about whether consent has been given, but proceeds with sex anyway, it means he is perfectly comfortable with maybe being a rapist. If he thinks but does not know he got consent, or, isn’t sure but reckons it was likely, or, is hesitant in any way he has accepted the possibility that there was not actually consent. This may be the case even if he leaves the experience without believing himself to be a rapist (or not actually being a rapist). I mention this only because when some men claim there was miscommunication, but they proceeded with sex anyway, it is quite telling that they were willing to continue while not being sure they had consent.

David Lisak and Paul Miller discovered something incredibly important and telling about rapists on a particular campus in 2002: the majority of rapists are repeat offenders. Specifically, 63% were repeat offenders. They found that of the men studied 6.4% met the criteria for being a rapist. Crucially, the rapists interviewed were responsible for 28% of all violent and sexual crimes against women and children recorded in the study. This means a very small group of men are responsible for a disproportionately large bulk of sexist crimes against women. Other studies have found similar results. My conclusion when faced with findings like these is that if you’re repeating an offence then you know exactly what you’re doing: you’re a conscious predator. Rosie rightly pointed out when discussing this informally that it might not be the case that they are conscious predators. Rather, it may just be the effect of sexist ideas - mixed in a deadly broth of alienation – that perpetually causes some men to abuse women.

There are several things that complicate this line of argument, however. To begin with, most rapists are not only repeat offenders but also have a thought out methodology for carrying out their rapes. Rapists try very specifically to achieve two things. They need to weaken resistance; this is often done with the deliberate use of alcohol and drugs. But also they need to place themselves in situations of privacy so there can be no witnesses to what has happened. It’s by doing this that rapists put themselves in situations where it’s one word verses another; something they are conscious puts them in a favourable position when it comes to accusations being brought before the law. Not only does weakening resistance and maximising privacy mean evidence will often be scant, but the one word verses another dynamic allows the rapist to mask their disregard for consent behind myths such as “I thought she consented as we had sex before” or “I thought she consented because she was flirting all night.”

Since most rapists behave like this it calls into serious question Rosie’s emphasis on miscommunication. Most rapists behave exactly like predators: they plan their attacks and have a methodology they use to carry it out. This is why if you look at the rapes of repeat offenders there is, more often than not, strong similarities between how the rapes have occurred. This doesn't suggest to me a paradigm of miscommunication; it suggests a dichotomy of predator chasing prey.

Importantly, a 1999 study by Kitzinger and Frith found that, actually, men have no problem understanding soft refusals (those that don’t actually include the word ‘no’) as genuine refusals in contexts outside of sex: for example, “I’m tired.” Are we to assume that an erection means a man loses his ability to understand the kind of refusal that, usually, he comprehends with no difficulty? This would be a bleak view of men in general and an apologetic view of rapists. Kitzinger and Frith came to the conclusion that the problem with rapists is not that they misunderstand consent. They hear the no perfectly clearly: the problem is they actively ignore it. I agree. But in conjunction with the discussion thus far (the repeat offending and the use of a methodology) this applies to most, if not all, rapists. This means to me we ought to be characterising rapists in general as predators.

Lastly, what are the implications of an emphasis on miscommunication? In British law the definition of rape contains mens rea: i.e. “guilty mind”. This means that in order for someone to actually be a rapist within the law the the man must either believe the woman is not consenting, or, his belief that she was consenting was unreasonable. For me, given mens rea, an emphasis on miscommunication becomes concretely problematic as it robs some women of a meaningful legal foundation to bring cases forward to the police. If miscommunication is something we argue is real and genuinely does mean there are a chunk of cases where miscommunication leads to rape then it seems to me this supposed miscommunication can be used as a way of claiming the man did not have a “guilty mind” and, in fact, his belief that there was consent was wholly reasonable.

In essence miscommunication becomes the defendant’s defense. But I argue that miscommunication is not something that actually applies to the vast majority (if not the totality) of rapists. So, arguing that miscommunication is something we need to make political considerations of obscures the very real fact that most rapists are conscious predators. That kind of argument also invites miscommunication to be used as a defense and a way of avoiding being proven to have had a "guilty mind". If the British definition of rape did not contain mens rea then all that would matter was that the sex was non-consensual. Indeed, I agree with Rosie’s definition of rape as solely non-consensual sex without mens rea. But when analysing rape we also have to be mindful of how our analysis translates to the law and due process. Arguing that miscommunication has any substantial significance when analysing rape opens a space for rapists to claim their belief there was consent was reasonable because there was objective miscommunication. Therefore, I argue notions of miscommunication should be rejected not solely because what we know about the profile of rapists suggests the majority of them are conscious predators but also because perpetuating this notion creates a layer of rapists who, reasonably, just did not understand and this cuts off the victims of such rapists from having a meaningful position to take their case before the law.

I’ll stress though, Rosie’s article is very welcome and very good and every person who cares about fighting rape and women's oppression should have no problem searing the following into their brains and arguments:

“The statement that we believe someone alleging rape is not only an important act of solidarity, but is also, given what we know about the nature of allegations, the only logically coherent position to take.”