13:11, February 26 202 0 theguardian.com

2020-02-26 13:11:03
Consent forms don’t capture the reality of rape – and place the burden of proof on victims

Despite the weight of evidence and the sheer number of accusers, it still felt somehow impossible that Harvey Weinstein would ever have to pay for his sexual crimes with anything but money. The consequences of his predation were so brazenly evaded that, in spite of the cultural upheaval of the last few years, it seemed plausible he would walk away a free man.

In the wake of his conviction in New York of rape and a criminal sex act, questions will arise once more about the intricacies of consent. Weinstein has always maintained that his encounters were consensual, and that, at worst, the women he attacked were knowingly engaged in exchanges that would professionally reward them.

Weinstein’s cartoonish, outspoken lawyer Donna Rotunno made her own contribution to the discourse in an interview with the New York Times. She said she had never been sexually assaulted “because I would never put myself in that position”. If she were a man “in today’s world”, she added, she would ask women to sign consent forms before engaging in sexual acts.

Placing the burden of preventing rape on to its potential victims isn’t new. Anti-rape gadgets appear regularly in the media, but rarely make sense in real life. These include glorified versions of a chastity belt (complex-sounding underwear that tightens itself to the body when its wearer activates a string), various products such as drinking straws and nail varnishes that change colour when exposed to date rape drugs, and wearable panic buttons. Like these products, the idea of sexual consent forms is useless.

Sex simply isn’t static in the way prior agreement would require it to be – each encounter is an ongoing, evolving exchange. Things can change course quickly in the heat of the moment.

For this very reason, campaigners tend now to call for positive affirmation – a “Yes, I want to” – rather than assuming that silence equates to consent. Many people will know how difficult and uncomfortable it can be to extricate yourself from a situation that has escalated rapidly and non-verbally – that doesn’t just go for those of us who have experienced assault, but for everyone who has had to negotiate the messy, subtle dynamics of intimacy. Agreeing in advance about who does what to whom does not reflect the reality of sex. That we might consider it more acceptable to thwart the human sexual impulse than to ask men to stop raping women is a pretty sad state of affairs.

The idea that negotiation and contracts would prevent rape suggests a world in which perpetrators are merely confused,, out of touch or not being communicated with effectively. While there are indeed misguided and inexperienced men who need to be taught that it is not OK to wheedle and cajole reluctant women into sex, there are also plenty of wilful, knowing rapists.

Formalising access to a woman’s body takes us back centuries, to a culture obsessed with maintaining a strict economy of purity. Historical “seduction laws” were ostensibly used to protect both a woman’s right to her body and a man’s good name. The point of sexual liberation, when it came, was that people of all genders should be able to meet as equals and have sex because both parties desire it. That rape still exists is not a reason to abandon this ideal, or the sexual autonomy of women.

One of Weinstein’s victims described him as having a Jekyll and Hyde personality, and said that: “If he heard the word ‘no’, it was like a trigger for him.” Given the years he spent buying off and otherwise silencing his victims, Weinstein was clearly aware that he was committing crimes. The most fundamental rebuttal to the idea that sex should be contractually agreed upon before it’s had is that some men are not just confused by modern mores, but in fact enjoy raping women. They are excited not just by sex, but sadism.

Megan Nolan is an Irish writer based in London. Her debut novel, Acts of Desperation, will be published by Jonathan Cape next year

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