Beyond 'No Means No': Redefining Date Rape

Article excerpt

Earlier this year, four young men in the New York suburb of Glen Ridge, N.J., were tried on charges of sexual assault. No one accused the four of using force or threatening the 17-year-old victim.

By all accounts, the girl had voluntarily accompanied a group of young men to a basement and performed several sexual acts at their request. At the trial, she explained that she had complied because she had been promised a date with one of them and "didn't want to hurt their feelings." The teenager is retarded -- functioning, according to experts, on the mental level of an 8-year-old.

The jury convicted three of the defendants and found the fourth guilty on a lesser charge, clearly accepting the prosecution's argument that the girl was incapable of valid consent. But while feminists generally applauded the verdict, some were unhappy with the emphasis on the victim's infantilism and innocence rather than her mistreatment. It would have been much better, wrote Karen Houppert in the Village Voice, to "admit that [she] is like any woman -- she can be sexually active and still, in a particular instance, be sexually assaulted."

Does this mean that an adult, mentally competent woman could claim rape if she had sex with a man because she didn't want to hurt his feelings? To many rape awareness advocates, that's not necessarily an outlandish idea. A much-publicized 1989 survey by the Stanford Rape Education Project included "psychological coercion" -- described by a university official as being "belittled, shamed, or pressured, either verbally or emotionally, into an unwanted situation" -- in its definition of sexual assault. While the study found that one-third of female Stanford University students had been forced to have sex against their will, psychological coercion accounted for the overwhelming majority of these incidents: Only about 5 percent of the women surveyed said they had been forced physically and 6 percent reported "coercion due to drugs or alcohol."

"Force or coercion can come in many different ways, [such as a man saying,] |If you don't do this, I will tell everybody you did anyway,'" says Ruth Anne Koenick, coordinator of sexual assault services at Rutgers University in New Jersey. "For some people, it's a terribly hard thing to get [no] across." Like many other rape awareness advocates, Koenick favors a standard of sexual conduct that would go a step beyond "No means no" to emphasize explicit, affirmative consent to sex. As Rutgers University student and Women's Support and Resource Center volunteer Kelly Gifford puts it, "The absence of a no doesn't mean yes."

This new concept of sexual assault also was endorsed by the Harvard University Date Rape Task Force. In its 1992 report, the task force recommended that "sexual intercourse ... without the expressed consent of the person" or sex with someone incapable of "reasoned consent" because of alcohol or drugs be defined in campus disciplinary proceedings as rape. Yet even at enlightened Harvard, the definition was challenged by some members of the Undergraduate Council as too broad.

After an emotional debate, the council proposed a definition requiring "the expressed unwillingness of the victim." (A slightly amended version is expected, pending the agreement of task force members, to become the basis of official policy guidelines.)

The students' dissent, however, went only so far. Council Chairman Malcolm Heinicke, who led the moderate faction, thinks that expressed consent is "definitely a good ideal" but that it should be enforced through mandatory workshops, not penalties: "It is very important to send a message that if you're having intercourse with someone for the first time, go to excessive lengths to make sure everything's okay." (One need not be Camille Paglia to be turned off by this white-bread vision of sexuality.) And even "expressed unwillingness," which can mean a tentative indication of reluctance at any time prior to sex, still encompasses many acts that would be generally regarded as perhaps insensitive but not criminal. …