The Lady Garden

Tea and Strumpets

You know what’s not sex?

Dear sub-editors, and people who talk to the media,

We need to have a conversation. Because you need to start being really, really careful about how you speak, and write, and what you publish. Because if I read another sentence like this, I am going to throw something through a window, and then sit in a corner and drink an entire bottle of bourbon.

DOMINIQUE Strauss-Kahn and the maid who accused him of sexual assault did have what appeared to be non-consensual sex, but the maid’s history of lying means that charges cannot be pressed, prosecutors said today.

DNA testing “established that several stains located on the upper portion of the complainant’s hotel uniform dress contained semen that yielded the defendant’s DNA”, the Manhattan District Attorney’s Office said.

Do you know what’s not sex? Rape. Do you know what rape is? Non-consensual sex. You can’t “have sex” if its non-consensual. That’s assault. It’s like me saying I was consensually mugged.

I don’t want to talk about the “she’s a big fat liar, so we can’t make the charges stick!” aspect, because that has and will be covered by people with sharper legal minds than me. But I want to talk about the language.

I do things, in the privacy of my bedroom (and that one time in an alley near the waterfront) that, to many people, would seem violent and horrible. Believe me, I’ve had the brusies. But always, always, with consent. There’s safewords and limits, and endless conversations about what is and isn’t OK, and how you might feel about something, and how you feel after, and whether that thing was good. I’ve had people try to tell me that what I like is depraved, and believe me, sometimes, the morning after, when I am struggling to sit down, I wonder that myself. But I enter into that willingly, consensually, enthusiastically, and that makes it OK.

And calling what (allegedly) happened in that hotel room “non-consensual sex” suggests that it is something different, lesser, than rape. And why, as legal officials and the media, are we so keen to do that? If I read that sentence above right, he (allegedly) forced himself on her and then forced her to give him a blow job.

Let’s call that what it is, cos it’s not “having sex”. That requires consent, preferably vocally and enthusiastically. And every time we talk about a rapist “having sex” with someone, we make a really good thing bad, and a really bad thing slightly less horrible. Let’s not, OK?

Love and kisses,


12 responses to “You know what’s not sex?

  1. Emma August 23, 2011 at 2:38 pm

    What gets me (well okay, one of the plethora of horrible things about this that get me) is that, if you’re not taking her word for what happened, what then indicates “non-consensual sex”? And it seems to be the physical evidence, the medical examination she had. (Which, well, we can probably all fill in the blanks there, and it’s Not Pleasant.) So, if she has the physical evidence on her side, WTF?

  2. Deborah August 23, 2011 at 4:26 pm

    I can’t get my head around the idea of “having non-consensual sex”. The two ideas in the phrase are contradictory: “having sex” is sex with consent, which is the direct opposite of “non-consensual sex.”

    What’s the bet that some arsehole tries to press charges of making a false complaint?

  3. Carlist August 23, 2011 at 4:59 pm

    Deborah, it seems that you have issue with the phrase “non-consensual sex” and would like to see it deleted from the English language. I don’t want to criticise your position but I think this is a problem that’s broader than what you indicate here. The term “non-consensual sex” wasn’t invented by newspaper editors.

    Reading between the lines I think they use “non-consensual sex” because if they described it as “rape” they would be at a higher risk of DSK taking action against them for libel or something. I’m not even slightly familiar with the case law around this issue, which I’m sure is based on a huge amount of precedent, but that’s my stab in the dark.

    • tallulahspankhead August 23, 2011 at 5:49 pm

      Since I wrote the post, I’ll respond to this.

      How about, instead of “non consensual sex”, they’d written something like this:

      prosecutors say forensic evidence is consistent with sexual assault

      Given that the phrase in question was lifted directly from documents filed in court, and uses almost that exact phrase, prosecutors can’t be sued for defamation, and nor can media quoting the documents.

      So I have to wonder why they insist on using the phrase “have non-consensual sex”, when that’s not logically something two people can do.

      • Max Rose August 23, 2011 at 6:08 pm

        “prosecutors say forensic evidence is consistent with sexual assault”

        I suppose that is the difficulty: “consistent with” does not mean “proof of”, which means it would be difficult to pursue in court without a reliable witness.

        There could be a distinction between “non-consensual” and “assault”, when it comes to evidence. I suppose one could imagine (though I’d rather not) injuries that are highly unlikely to have been consented to, but no evidence short of audio or video tape could establish whether consent itself was given. But really, any non-consensual act is a form of assault.

        • Moz August 25, 2011 at 11:54 am

          I suppose that is the difficulty: “consistent with” does not mean “proof of”, which means it would be difficult to pursue in court without a reliable witness.

          See, this is where the wheels fall off for me. “reliable witness” my foot. I mean, the defence will claim she’s lying about not consenting, sure. But they’ve already established that some form of sexual interaction took place. So it should be on the defence to show that consent was obtained.

          But I suspect the real claim is that she’s just making the claim to extort money. So all the prosecution needs to do is establish that she’d be willing to accept less than the cost of defending the charges, surely? Otherwise the defense are just going out of their way to besmirch the reputation of the defendent. It is presumably not the case that the defendent leaves a trail of semen on hotel maids around the world that could lead to him having to make these payouts on a regular basis, so why not just pay out this once? It’s faster, cheaper and easier for all concerned.

          • Hugh August 25, 2011 at 1:04 pm

            “So it should be on the defence to show that consent was obtained.”

            Actually I believe as the law currently stands it’s on the prosecution to show that consent wasn’t obtained.

            This is something that anti-rape activists often talk about changing, but at present, the law continues to place the burden of proof on the accuser.

    • Deborah August 23, 2011 at 10:25 pm

      Sorry not to reply earlier: I’ve been out for the evening.

      I don’t have an issue with the phrase, “non-consensual sex”. But I’m finding it hard to combine “have” as in “have sex” with “non-consensual sex”, to get the phrase “have non-consensual sex”. I guess that the reason that the phrase confuses me is that I parse “have sex” as implying consent. It’s something that you choose to do, that you engage in with another person, or other people. So the phrase “have non-consensual sex” jars. YMMV on this one.

  4. Aaron August 23, 2011 at 5:38 pm

    I had this same complaint about a news story involving different people, but my partner mentioned that non-consensual sex is considered differentlegally. Neither of us thought that was a good thing at all, and she couldn’t remember the details, but it was something that had bugged her since she found out.

    All entirely anecdotal, obviously.

    • Hugh August 24, 2011 at 12:27 pm

      I have a sneaky suspicion that talking about “non-consensual sex” implies that there was no conviction or that the jury’s still out, but that “rape” implies there’s been an actual conviction. I’m not quite sure why since, as Deborah points out, they both describe the same thing.

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