Content Note:  This post isn’t graphic or personal, but it is about rape and the legal system.

I’ve been kicking around this idea about how “beyond a reasonable doubt” applies to rape cases.  In the American (USian) justice system, we have this idea that “beyond a reasonable doubt” requires physical evidence of a struggle to prove that the victim really didn’t want sex–zir word is not sufficient evidence of this.  In other words, when sex has occurred, even if a party to the sex says it was rape, the default assumption is that the sex was consensual.

We don’t do this for other crimes.  If Bob says Joe stole his TV, and Joe is found to have the TV, we don’t assume that Bob actually gave Joe the TV and therefore no crime was committed, and we certainly don’t assume that Bob probably gave Joe the TV with the intention of framing him for theft, or that Bob gave Joe the TV and then regretted it and therefore accused him of theft.  (We don’t say that Joe couldn’t help himself because Bob went and owned a TV right in front of him, either, but that’s another topic.)

Comparing rape to property crimes isn’t really accurate, though, given that sex is an activity, not an object.  I think a better analogy might be battery.  Let’s say Joe and Bob both participate in a combat sport–maybe boxing.  If Joe and Bob are in court because Bob punched Joe in the face, a jury’s default assumption is not going to be that Joe asked Bob to punch him.  Even if Joe and Bob have punched each other before in the context of boxing, the default belief is that assault is not consensual, so it’s far easier for Joe to get a conviction than it would be were it a rape case.

(A quick note about false accusations of rape:  they’re difficult to measure, but there isn’t evidence that rape is more often falsely reported than other crimes are, or that false accusations of rape are more likely to result in a conviction than false accusations of any other crime.  See Shakesville’s post on rape culture .  I’m not interested in proving this exhaustively, and if you’re interested in arguing about this using the existing data then go ahead and fuck right off, thanks.)

So anyway, I was thinking about Twisty Faster’s Wacky Consent Scheme the other day, and I had this not-very revolutionary idea about how the “beyond a reasonable doubt” standard of proof for criminal cases should work for rape cases.  Basically, if you have proved (beyond a reasonable doubt) that:

  1. Alleged!Victim and Alleged!Rapist had sex, and
  2. Alleged!Victim says it was rape,

and the defense is consent, then the responsibility for proving consent falls to the defense.  Just like if the defendant were found with Bob’s stolen TV, or if the defendant admitted to punching Joe in the face, the defendant must demonstrate that Alleged!Victim wanted the sex.  Not resisting hard enough to leave physical evidence does not demonstrate consent, any more than not having injuries after your TV was stolen demonstrates that you actually gave the TV as a gift.  Not screaming “NO” so that some third party can hear you does not demonstrate consent, any more than not screaming “NO” demonstrates that you wanted to be punched in the face.

What would count as evidence of consent?  Off the top of my head, a third party heard Alleged!Victim screaming “Yes!” throughout the entire act, Alleged!Victim had a motive and a previous conviction for making a false police report; Alleged!Victim told a third party zie planned to make a false police report; there is written evidence from after the fact that Alleged!Victim consented to the sex (obviously, while sober); there is written evidence that Alleged!Victim planned to make a false report.  So not nothing, but not “they went out for dinner first” either.

Sadly, given the rape culture we live in (read that Shakesville post!), this is unlikely ever to be implemented.  So what can you, my (imaginary) reader, do to reduce the incidence of rape?  Simple:  before you have sex, makedamn sure your partner wants to be there.  Go ahead and say “Do you want to have sex?”, making it clear that “No” is an acceptable answer, and if don’t get a yes, don’t have sex.

If you’re worried, this is likely to protect you from “false” accusations of rape, as well.