It's actually not that hard (no pun intended)

Disclaimer: there's some graphic imagery used here so if you're a delicate thing who doesn't like to have honest discussions of sex and rape, then don't read. Similarly, if you're under the age of 18, read only with your parents' consent. This post is for grown-ups. 

My friend Mary asked my opinion on this disturbing story, in which "[a] California appeals court overturned the rape conviction of a man accused of pretending to be a woman's boyfriend when he snuck into her bedroom and had sex with her, concluding that the law doesn't protect unmarried women in such cases."

The court found that the law from 1872 only addressed women who have sex with someone impersonating their husbands, not boyfriends or other non-married partners.

The case will be retried, but I am overall disgusted with this case.  First, if the linked story's video telling of the story is accurate, there are two additional reasons this episode constitutes sex.  The first is he had sex with a sleeping woman!  She "woke up to the sensation of having sex."  So she didn't consent. You can't consent if you're asleep.  That's part of the whole consent thing. You have to be conscious and able to make a decision.

This is the theory that will be retried now that the original conviction has been overturned.

But even without this theory, the story says that at some point, the victim started fighting with the man and he continued to have sex with her.  That's rape.  A woman has a right to withdraw her consent.  A guy doesn't get to "finish up" just because a woman started to fool around or even have sex with him. Once she says no, she says no. Everything after that is against her will and is forced.

And this brings me to one of my favorite ranty subjects: the apparent need of the GOP to continually treat women as less than human beings.   Tennessee state legislator Douglas Henry reportedly once said:

"Rape, ladies and gentlemen, is not today what rape was. Rape, when I was learning these things, was the violation of a chaste woman, against her will, by some party not her spouse."

Thank you Senator Henry for encompassing all that is wrong with the GOP's understanding of rape in a single sentence!

First, did a 21st Century legislator in the US actually use the phrase "chaste woman"?  Cause I think the Egyptian military, the Iraqi judiciary, and certain Afghan governors are recruiting if you'd like to join them in their hunt for all non-virgins ripe for the raping. Er, I mean, sexing because apparently you can't rape a non-virgin, right Senator?

I do have to wonder if the Senator could tell us when a lesbian stops being chaste?  I mean, if chasteness is all about whether one's hymen is in tact, and one can presumably be fingered and engage in lots of other types of sexual contact without breaking the hymen, does this mean lesbians, unlike their heterosexual partners, have more leeway for sex with their non-married (thanks to people like you) partner while still retaining their chaste-ness?  On the other hand, a 14 year old girl whose hymen is broken on a bicycle or while horseback riding can presumably be attacked by any guy on the street and it's totally fine? 

And does this mean that heterosexual women have to stick to oral sex in advance of marriage just to stay chastey enough to not be rape-worthy?

Second, apparently rape only happens to women?  Senator, you're an idiot. This doesn't deserve espousing, other than to point to Jerry Sandusky and say that what he did was rape. It was also gross sexual imposition of a minor and child abuse. But it was also rape.

And third, apparently you can't rape a spouse under the Douglas Henry / Phyllis Schlafly idea that marrying someone is an automatic consent for them to put whatever they want from their body into or on whatever they want in your body regardless of what occurred in the time immediately before or during.  Found out your husband was cheating on you and contracted HIV/AIDS? Oh well. You married the a$$hole, so you consented to the sex he then forces on you. Your husband beat you immediately before having sex with you and you said no? Well, that's kind of your fault because 20 years before you said "I do." Found out your husband had a whole second family in another city? Doesn't matter - he wants sex and you've consented to it. Found out your husband is actually a super secret spy sent from the future to destroy America and you're trying to escape for your life? Well, you can but only after he's finished sexing you all he wants.

The only thing missing from Henry's declaration is a suggestion that certain types of women deserve to be raped because of how they dress or how much alcohol they have.

Okay, now that the sarcasm is out of my system... Rape is actually not that complicated of a concept. It's having sex with someone without their consent.  Legislators sometimes want to make it more complicated than that - and sometimes they need to make it more complicated so that judges and juries understand that, actually, it is rape even if it's not a penis that's inserted, and an unconscious person can't consent, and your wife isn't a cattle, and, oh yeah, it's not consent if you're impersonating the person they would consent to have sex with.

But ultimately, rape isn't complicated. Did both parties to a sexual encounter consent? If yes, then it's not rape. If no, then it is rape.

That pretty much covers it.

Please note that I did not say "sex" but a "sexual encounter" because it can be rape if it's oral, anal or vaginal, with a penis or a hand or a pencil or a stick.  (This suddenly feels like a really graphic Dr. Seuss book for me. I suddenly want to say things like "It can happen in a car, it can happen at a bar." Both of which are true, but still...)  It's all rape.

So again, did they consent?  If someone can't consent, they didn't consent. This covers drunk women (if they can't sign a legally binding contract; they can't agree to have sex with you), unconscious women, sleeping women, minors, and those for whom a mental or physical disability means they cannot express valid consent.

Consent is a person specific thing.  Just like in contract law, if I agree to purchase 100 widgets from Fred Smith, that doesn't mean I'm bound to purchase 100 widgets from every Fred Smith or from every widget seller.  If a woman (or man) is consenting, it's about entering into an agreement between her (or him) and the specific people they are consenting to have sex with.

If a woman consents to have sex with someone else, that's not consent for you. This covers the whole "chaste" woman issue, but also the "pretending to be your boyfriend" issue.

And no, the theory that it would have been their wish if they were conscious is never a defense, village idiot from Steubenville.

Quite frankly, I don't understand any one who thinks there's some other standard or defense or that some women 'are asking for it." Let alone that that "asking for it" can be found in someone's drunkenness.

By suggesting any other standard, you are saying women do not have the same right as men to act as adults. As an adult, I have a right to drink. I'm over both 18 and 21, the drinking ages in the UK or US. I am entitled to go to a bar with as many men as I want and drink as often as I want and as much as I want.

How do I know this?  Because my male counterparts get to do it.

If they stumble down on the way home and get robbed, no one says they were "asking for it."  They might not be surprised by the depravity of humankind towards one another, but the perpetrator will be arrested and prosecuted and the victim will be entitled to compensation.

If they want to drink until they can't say a single coherent word, their friends are expected to take them home and put them to bed. Without forcing their penis in the drunk guy's mouth or anus.

As a grown-up, I'm entitled to the same respect. Anything less and you are saying that women are inherently unequal from their male counterparts. And I don't mean biologically different; I mean you think women are essentially mentally incompetent to the point of being no different from an animal.

Because I get why we don't prosecute bulls for having sex with cows without their consent. For starters, we can't understand either the bulls or the cows to know whether or not they consent. And we're not really convinced that they understand each other or understand the concept of consent. We don't know if they can consent, much less how they would communicate that consent both to the bull and to us so we could take measures to stop it or prosecute it. Oh, and we're eventually going to kill the bull and/or cow anyhow (sorry Rachel), so prosecuting the bull seems like a waste of time and money.  (And where are we going to put them? They're already kept in fenced-in areas!) 

I, on the other hand, am not a cow.  I am a human being.  I have the capacity to give consent and the capacity to be understood by other human beings as to whether I give consent or not.  Even in countries where I don't speak the language, I have the capacity to give or not give consent.  When the taxi driver in Istanbul ended our 10-15 minute ride with "you, me, hotel" and a rubbing together of his index fingers, I was able to say no.  And get out of the car.  I also could have said yes.  But I didn't.

And he was never confused by whether I was consenting or not. I laughed at him, shook my head, said no and got out of the car. While he looked disappointed, he never seemed to think my "no" was actually "yes."  He never thought my laughing at him meant "I'm actually meaning yes when I say no."  And when I got out of his car, he didn't feel entitled to chase me into public and have sex with me anyhow.  Because he understood that I wasn't consenting even though we could only speak about 60 common words.

So why do we still treat women as if they don't have that capacity? As if they can't consent or can't communicate that consent in a way that is understood by the listener?

And tell me Tennessee, how friggin hard is it to stop voting for someone who treats your daughters like cattle?  Because it's guys like this that feed into the culture that says what happened in Steubenville is okay.