I’m Jes A Girl Who Cain’t Say ‘No’…. Rape Culture and “Yes Means Yes”

Last September, California Governor Jerry Brown signed a new law mandating that California universities take certain steps regarding their sexual assault policies.  Many of the changes are common-sensical, i.e., a student who is intoxicated or asleep cannot be said to have “consented” to sex.  (This might seem like a no-brainer, but you would be surprised how many people wonder about that).

But the law, which went into effect a couple weeks ago, is not without controversy.  Most notably, it contains a clause which states that there must be “affirmative, conscious, and voluntary agreement to engage in sexual activity.”  It is more commonly known as the “yes means yes” standard, in which consent for sex has to be explicit. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” the law says.

Libertarians, naturally, went ballistic over the law.  More government intrusion, they cried.  Now the government is regulating how students are supposed to have consensual sex, they screamed.

Many liberals agree that the law is intrusive.  But they are divided over whether the intrusion is good or bad.  As Ezra Klein at Vox puts it, “If the Yes Means Yes law is taken even remotely seriously, it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and this is also the case for it.”

In other words, yes, it is a terrible law because it is intrusive, and yes, it is a good law because intrusiveness is the point.

It’s quite true that the law won’t stop rapists who will simply say (as they do now) that they had “affirmative consent”.  Instead of “he said, she said” fights over whether she said “no”, there will be “he said, she said” fights over whether she said “yes”, as critics point out.

And even a third criticism of the law is that it encourages harassment.  As some have quipped, if affirmative consent is the touchstone, then “50 Nos and a Yes…. Means ‘Yes'”  In other words, a “no” no longer ends the discussion.  But with the new standard, a women can be pursued and harassed until she submits with a resigned “yes” (if ever).

These are all valid criticisms.

But the intent of the law is to get college-age men to stop and think about whether they have consent.  They need to know that they can no longer rely on silence or ambiguity.  And while that may be a small step forward, I think there’s a good argument that any step is welcome.

That said, here’s my problem with the “yes means yes” standard: it assumes that men have a problem understanding “no means no”.  And I don’t believe that.  Neither do many others.  As Amanda Marcotte writes:

Men who have sex with non-consenting women know full well that they are having sex with a woman who doesn’t want it. No one rapes by accident. They just pretend, after the fact, that they didn’t know she was non-consenting in order to confuse the issue. See this classic piece by Thomas MacAulay Millar at Yes Means Yes, regarding research that shows that men have zero problem understanding the difference between someone saying “hell yes” and someone saying “I’d rather not”, even if those ideas are conveyed through “soft” language or even body language. The man who sticks his dick in a woman who is asking if she can go home now or trying to put her clothes back on or pulling her body away knows full well that she is not consenting. He is not confused. He just doesn’t care.

I think that’s probably right.  Most men are not stupid.  The myth of the “accidental rapist” — the guy who misread the lack of consent — is just that: a myth.  We get the clues when a woman isn’t interested.  We get them even if the woman doesn’t say the magic word “no”.  It’s just that bad guys don’t care about “no”.  And those same guys aren’t going to care about the lack of “yes”.

So if the issue is removing ambiguity for consent, “no means no” works.  As long as “no” is said, that is, which brings me to an illustrative story:

Several years ago I spent a week in Costa Rica with a girl I was dating at the time.  One morning, she went down to the beach by herself.  Less than an hour later, she came back breathless with a harrowing story to tell.  As best I can recall, this is what she said happened: She was collecting shells on the beach when this “local” came along and started helping her.  There was some hugging involved, which she dismissed as cultural friendliness.  At some point, they left the beach to go up to the treeline, where they sat and talked (although apparently not much, since he didn’t speak English and her Spanish was limited).  He began to massage her arms; he began to massage her cleavage. Then he said something about going to get some weed, and he would come back and they would smoke it together and carry on.  So he got up to leave, and that’s when she made her escape (if I recall, he tried to cut off her escape, but she eventually found a path away from him).

Now, as an important aside, I should point out that this girl was a lecturer on the subject of self-defense for women.  She actually went to college campuses and held seminars about sexual assaults and how to defend yourself.  So you can imagine that I had a hard time understanding the details of her story.  How, for example, did things get to the point where he was massaging her arms?  Why didn’t it stop there?  Was he overpowering her?  (No, he wasn’t)  Did she say “no” verbally, or by pulling away?  (No, she didn’t).  What did she do as he was rubbing her chest — smiling?  (She hemmed and hawed)

I may have missed a fact or two, but the key point — which was made more clear when she retold the story — is this: she didn’t say “no”.  Not by words.  Not by subtle gesture.  Nothing.  And that (naturally) confused me, because my assumption was…. if she didn’t even TRY to say “no” in any way shape of form, and she wasn’t being overpowered, and she wasn’t drunk or incapacitated, and she does this stuff for a living, then it really looks like she must have wanted it.  And I (unhelpfully) accused her of that.**

She insisted that wasn’t the case.  She was thinking “no”, but fully admitted that she didn’t say  “no”.  She didn’t do anything to indicate disinterest.  Naturally, I asked her why.  She answered me with a string of excuses… “I didn’t because I didn’t want to be rude”; “I didn’t because the situation hadn’t gotten critical yet”, and even “I didn’t because I thought it was a cultural thing”.  On and on.  All kinds of reasons for her NOT to speak up.  All kinds of reasons to let him continue with his behavior.  What gives?

But it wasn’t to be my only exposure to the not-saying-no issue.  Another friend of mine teaches physical education to junior high girls and reports the same thing.  These girls go to parties and boys start to pay attention to them (which these girls, understandably, like).  But then the boys, being boys, get frisky, and maybe the girls get more attention than they are comfortable with.  But they don’t have the skills to say “no”.  Or even, “I like it better when we just kiss” or whatever.

So now, my phys ed friend does a unit in her physical education class on assertiveness — something different from self-defense (which, while important, only comes into play when you are in trouble). She teaches how to avoid trouble in the first place, i.e., how to communicate effectively to a guy that he needs to “downshift”… without severing whatever good time you might be having with him and without making a scene.

Others who work with girls in high schools report the same thing:

Our IMPACT Personal Safety instructors, who teach at private high schools around Southern California, see a majority of girls who, at the beginning of our boundary-setting lessons, don’t want to hurt the feelings of the boys who ask them out or initiate sex.

Some women never learn this.  We live in a society where men can be assertive, but if a woman asserts “no” — even in a polite subtle way — she’s cold and/or a bitch.  Some women don’t like to put on the brakes or “hurt someone’s feelings.”

I believe that was the trap that my ex fell into when we were in Costa Rica.  Smart as she was about physical self-defense in the face of a full-on assault, she was an amateur about being assertive in the face of an everyday unwanted advance.  She was trained (and taught) in a world of fight-or-flight; but was clueless in situations dealing with the more mundane situation of a guy coming on to her — a situation which could have been easily defused without fight or flight.  So what happened instead?  Rather than listen to her feelings which (according to her) were saying “NO”, she made excuses — bad excuses — for HIS behavior (oh, it’s his culture; oh, he’s being friendly; oh, don’t make a scene) — as if those things were more important than her discomfort about a stranger’s unwanted physical advances.  And THEN she found herself in bad situation (which, fortunately, she handled with aplomb).

So obviously, politeness is NOT more important than unwanted advances.  But many women grow up learning differently.  It is implicitly taught.

“Don’t make a scene.”

“Don’t overreact.”

“Don’t be that girl.”

We see this all the time.  Take a young woman who wants to go out to a bar with her girlfriends.  She wants to be friendly and gregarious.  She’s fine with meeting men, and striking up a friendly conversation with them.  But it often happens that….

there sometimes comes a point in a conversation with a man where it becomes necessary to draw the line and indicate that you are in no way, by any means, at all interested in pursuing anything further. There are also times when it is clear that friendly conversation is not in the cards (i.e., those men who substitute grabbing your hips and attempting to “dance” with you for a polite introduction).

That’s Alicia Lynn Eberhart at Luna Luna in an article entitled “Stop Saying I Have A Boyfriend” (a great read, including the comments).  The article goes on about the various “inventive” ways that women go about saying “no” without saying “no”:

If you do a Google search for “how to avoid being hit on at a bar,” you’ll get several articles with “helpful” tips on skirting conversation with men you are not interested in. The majority of these list pretending to have (or actually having) a boyfriend/fiance/husband as the number one method for avoiding creeps (second to “pretending to be a lesbian” or “pretending to be crazy,” a la Jenna Marbles). In response to my complaints about men creeping on me at dance clubs in college, an ex-boyfriend of mine used to get cranky that I refused to whip out this cure-all excuse (one of many reasons he is an ex).

And she concludes with:

So what can we do? I think the solution is simple–we simply stop using excuses. If a man is coming on to you (and you are not interested–if you are, go for it, girl!), respond with something like this: “I’m not interested.” Don’t apologize and don’t excuse yourself. If they question your response (which is likely), persist–”No, I said I’m not interested.”

I think any discussion of empowering women has to take this approach. California’s Yes Means Yes standard is fine if only because it makes men “tune in” and puts them on notice.  And it is probably fine for women who, sadly, are unable to say “no”. And it’s fine on college campuses, but you can’t make that a real world thing.

More importantly, as Thomas MacAulay Millar writes, men DO know when women say “no”, even when women use subtle clues.  If that’s true — and I believe it is — then all women have to do is learn how to say “no” without making excuses or making apologies.  And ideally, I think that’s what we want — empowered women who know they CAN say no instead of passively acquiescing to men treating them in ways they find objectionable.  Men should be held accountable, which means that women have to hold men accountable as it is happening.

The bad men are counting on the fact that women won’t make a scene.  They are counting on the fact that women won’t be impolite.  That’s how achieve their conquests in the first place.”

UPDATE: It’s been suggested that when it comes to the Costa Rica woman, or the female students of my gym-teacher friend, that I am blaming the victim.  I’ll cop to the plea of being an unclear writer at times, and if this is one of those times,then I apologize.  I won’t edit what I’ve written, but I will add this update.

This post is about the rape culture.  I discuss empowering women, and what we teach our girls.  In doing so, and by focusing on women’s behavior, I certainly am not saying or even implying that women in general – or any woman in particular — bear responsibility for the culture we have, or the situations in which women find themselves.  Anyone who knows me knows where I stand on these issues.  Still, let me not mince words and reiterate: the men/boys discussed here are responsible for their behavior.  They are the ones accountable.  The victims described here are just that: victims — women and girls placed in a position that they should never have to be placed in, and it goes all the way from boorish behavior at a bar to outright physical assault.  We talk about women saying “yes” or “no” or doing THIS or doing THAT, but that does not and should place responsibility (and its cousin, blame) on any woman for what she does (or doesn’t do) in those situations.  The men are responsible and (as I stress) they KNOW what is going on.  They are not clueless.  Period.  Full stop.  If you are reading this differently, then chock it up to my poor writing abilities, and nothing else.

** I wasn’t going to mention this, but since my ex has made it a personal issue, thereby ignoring the whole point of the post, I’ll inform whoever reads this that there were many other factors at play during this time. Any pre-judgment of my actions is just as unkind and ill-informed as any pre-judgment of her actions. I will also add this: when it comes to integrity, infidelity, and infidelity-blaming, a person who does not occupy the moral high ground would be wise not to throw stones.

  4 comments for “I’m Jes A Girl Who Cain’t Say ‘No’…. Rape Culture and “Yes Means Yes”

  1. May 28, 2015 at 5:53 pm

    “I think that’s probably right. Most men are not stupid. The myth of the “accidental rapist” — the guy who misread the lack of consent — is just that: a myth. We get the clues when a woman isn’t interested. We get them even if the woman doesn’t say the magic word “no”. It’s just that bad guys don’t care about “no”. And those same guys aren’t going to care about the lack of “yes”.”

    I think that’s kind of true, but I also think it underestimates the human ability to lie to themselves, aggressively repress unwanted facts and maintain cognitive dissonance in the face of reasonable evidence.

    **trigger warning for sexual assault**

    (importantly the victim has given me explicit permission to discuss my behaviour with anyone I so choose – this might be because we have two almost completely separate circles or friends or because she feels she has emotionally wholly moved on from what I did / what happened)

    7 years ago I committed what I now consider to have been a sexual assault. Legally I don’t know if this is how it would be categorised here in Britain, but on two previous occasions I explicitly asked my ex if she was interested in prosecution, but she declined. I tried as best I could in this email exchange to open up a space for her to use words like ‘sexual assault’ or even ‘rape’ if she wanted, but in her language she felt that her boundaries were pushed and that she had felt uncomfortable, but that I no longer owe her anything as she feels fully healed. Obviously I’ve not contacted since I asked her for the second time whether she wanted to pursue justice.

    In short, it was towards the end of a two week visit I had made to see her in another country. I could tell that she was less happy than she had been and basically feared that she would break up with me and then I would never see her again. That evening she said she wanted to snuggle in bed, but wasn’t feeling especially sexual. We stripped down to our underwear and spooned in bed, with her placing my hands about her chest. After some time I moved my hands away, stroking her back, and she replaced them, saying ‘just hold me’. We spooned like this for five minutes and I eventually moved my hands away, stroking her back, slowly progressing to the point of touching her in a violatory way. She didn’t say anything or move away and obviously as we were spooning I couldn’t see her face, but later she said “Why does everything have to be sexual?” and it was clear that it was unwanted molestation, though she obviously didn’t use those words.

    What I did was utterly reprehensible and unacceptable and will rightly stain me for as long as I live. 7 years later I think about it daily and while I hope that voluntary work I have done has gone a little way to repaying the debt I owe, I freely acknowledge that I will always be the person who did such a horrible thing and that will always be 100% on me. I’ve informed everyone close to be about my behaviour and have referred myself to an accountability group for male abusers, as well as receiving weekly therapy. It doesn’t clear the past or what what I did forgivable, but hopefully I have some kind of place in society and I am glad and humbled that my victim has said that she wants me to move on and put my energies into productive work as she feels i no longer ‘owe’ her anything. To the extent of my knowledge she is doing well and that’s really amazing and important.

    At the time of the assault I was able to convince myself that I wasn’t *really* doing anything wrong and that I was being seductive, if not a bit *cheeky*. That may sounds like bullshit and I totally agree it was gross and delusional, but I also think it is important for prevention to accept that some perps are not thinking ‘I know she/he doesn’t want to do this and I don’t care’ or even ‘I want to make him/her feel scared and powerless and I’m aroused by the fact that they are not consenting’. I genuinely believed that I loved my victim in this case and desperately wanted her to continue loving me and receive confirmation that we were going to stay together. As such I was very able to use the myths of rape culture and the gatekeeper model of sex to tell myself that what I was doing was not ‘assault’ and was seductive and basically acceptable i.e. ‘by going slowly she’ll get into this’ and ‘she hasn’t explicitly said no really… that means it’s okay’ etc. etc. I think it’s definitely true that on a gut level I knew this was bullshit, but I also very very much wanted it to be true and so suspended disbelief and reassured myself with the knowledge that definitionally (i.e. under a traditional gatekeeper legal model of sexual assault) I wasn’t behaving criminality and since I’m not a criminal or a sex offender (my thinking at the time) then what I’m doing much be within the limits of morality and the law.

    Having spent a couple of years reading about feminism and self-reflecting I came to the acceptance that what I did *was* sexual assault. This also meant that I thought about other things friends had told me had happened to them, or they had done, or I had seen, or even had done to me, which technically were sexual assault or even rape, but no-one had talked about them as such. I thought about the guy in sixth form who constantly grabbed female students’ breasts, but how it was never remotely thought of as a crime… just banter basically – a kind of practical joke. Or when at a party two of my male friends badgered and goaded their girlfriends into making out in front of all the other guys, when it was pretty clear they didn’t want to. Or when my best friend grabbed my testicles while I kept telling him not to and wrestling his arm away. Or stuff female friends and acquaintances had told me about. Another male friend of mine saying he was going to use a condom and not doing so. A guy randomly putting his hands about a girl’s neck and strangling her while they were having sex out-of-the-blue in a non-kinky relationship, completely non-discussed. Another boyfriend of a different young woman who would grope her in public places like on the bus, but refused to get the signal that this wasn’t okay with her. Even weird stuff like my form teacher at secondary school when we were 13/14 insisting that the class play ‘spin the bottle’ even though lots of us were reluctant (note: he didn’t play himself). Lots of small memories from being younger than didn’t seem like a big deal at the time but retrospectively looked pretty creepy.

    And I think perhaps I did know more scummy guys that most… but I also think that not one of those guys see themselves today as a sex offender and have quite likely said in good faith that they ‘hate rapists’ or believe that all sex offenders should die. And I don’t think it’s a simple case of them knowing that they’re lying and tricking everyone. It’s much more about their internal definition of what constitutes sexual assault or rape.

    Which I guess it why it frustrates me that Lisak & Miller / McWhorter / ‘Meet the Predators’ is always, always used as the go-to study / article to prove that there’s a certain percentage of men who commit assaults and rapes (6% to 13%) and that the rest are all law-abiding decent human beings utterly removed from this sociopathic and predatory group. Because while I think there *are* many genuinely decent men (perhaps even the majority) I think it’s also true that a lot more men than 6% have committed boundary violations or offences that aren’t criminalised under ‘no means no’ but absolutely are under ‘yes means yes’.

    I could easily answer ‘no’ to all of Lisak & Miller’s questions. No force. No non-consensual intercourse without verbal consent. No sex whatsoever involving intoxication. Good – in the clear.

    But I know in my heart that I’m not. But it’s a matter of how men are able to rationalise it. A lot of people’s moral systems are based on what the law says and what they feel society sees as normal. So I genuinely think that a shift to ‘yes means yes’ will make a difference. Maybe not to that 6% or even 13% but for the adolescents and young men who don’t want to hurt anyone, but also don’t care enough about *not* hurting anyone.

    I think this absolute reliance on Lisak & Miller is comforting for many people – both for feminist women and for men who have committed previous abuse that doesn’t fall within Lisak’s incredibly restricted confines. It’s easiest to believe that there is a small, easily identifiable population of ‘others’ who can be stopped.

    And I think that small population is there, but I think more attention should also be given to the far more disturbing and problematic studies like Struckman-Johnson (2003) which are readily available but I’ve never seen discussed on any blog.

    ‘We investigated women’s and men’s reports of experiencing and using tactics of postrefusal sexual persistence, defined as persistent attempts to have sexual contact with someone who has already refused. Participants were 275 men and 381 women at Midwestern and Southern universities. More women (78%) than men (58%) reported having been subjected to such tactics since age 16; this difference was significant for the categories of sexual arousal, emotional manipulation and lies, and intoxication, and for two tactics within the physical force category (physical restraint and threats of harm). More men (40%) than women (26%) reported having used such tactics’
    http://www.ncbi.nlm.nih.gov/pubmed/12806533

    P.S. I firmly believe that intent is not magic and that I am 100% responsible for my past behaviour / the act described above. I also believe that people can ‘know’ and ‘not know’ things simultaneously, or avoid using language to name things at the time in their internal monologue, or convince themselves that someone is interested or they are being seductive (especially within the context of a previous romantic relationship) if society gives them the script to do this.

  2. June 29, 2015 at 4:38 pm

    Female reluctance and surrender is a cornerstone of human sexuality. I, for one, will ignore any law that endeavors to forbid me to channel Rhett Butler. And BTW it is my experience that 9 times out of 10, women don’t know when they are horny. They get cranky, they complain and nitpick like maniacs. Then they whine, eat, exercise, buy stuff, passive aggressively bang pots and pans in the kitchen at ungodly hours, and generally misbehave at every turn. What they don’t know is, they just need a good, hard fuck. A couple of minutes of intercourse and voila! Everybody’s happy again. if you don’t keep it up, however, they will digress back into the mindless acting out. Planning parties, holidays, trips, birthdays, and the increasingly popular filing of lawsuits crying about non-consensual this and sexual assault that – it can get out of hand if you don’t really keep after it at least a couple times daily. Indulge in the luxuriant lack of consent. Go ahead and accentuate the moment by choking her purple. Let them have their laws and their blog posts – we will be busy planting seeds into the unwilling wombs of the young. MUahahahHAHAHA!!!!

    • Ken Ashford
      June 29, 2015 at 4:52 pm

      Dude, you’re part of the problem. Good luck with your pathetic life.

      • January 6, 2016 at 9:19 am

        Not the strongest retort, but I guess it makes sense not to feed the troll, eh?

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