Thread by @elmyra

[rape/sexual violence] Ok folks, I'm going to try and do a thread on why the "women should just say no more clearly/differently" argument is bullshit.

With academic references and everything. Because I (nearly) have a PhD in consent.

Here's a paper that it took me a very long time to understand:

Kitzinger, C., & Frith, H. (1999). Just say no? The use of conversation analysis in developing a feminist perspective on sexual refusal. Discourse & Society, 10(3), 293-316.

It tackles head-on the idea that "just saying no" would prevent rape. It looks at how refusals are performed in everyday conversation and in sexual situations.

In both cases, refusals are "dispreferred" conversational actions.

Think about someone inviting you for dinner. If you want to say yes you do it outright and clearly and immediately. "Yes, I'd love to, let's do it."

If you want to say no, you couch it, you mitigate it. "I'd love to, but..." You might even partially accept it. "Some other time."

Thing is, those things still mean no. This is a shared way of doing things in our culture, most people understand this. (There are caveats here for neuroatypicality.)

Importantly, men understand these kinds of indirect refusals in non-sexual situations.

So what's the difference between "Some other time" when it comes to dinner/cinema and "Some other time" when it comes to sex?

Yeah, there isn't one. It's still a no, just doesn't get heard.

That's not a problem with how women say no. That's a problem with men choosing not to hear no in certain situations.

And that's not going to get fixed by women saying no any differently.

Now that leads us neatly into:

Jamieson, L. (1996). The social construction of consent revisited. In Sexualizing the Social (pp. 55-73). Palgrave Macmillan UK.

This paper looks at how the criminal justice system constructs ideas of sexuality and consent through some of the defences against rape allegations it permits, such as the mistaken belief in consent defence.

The mistaken belief in consent defence is just what it says on the tin: "I thought she was fine with it." It's slightly different from another common defence, which is "She consented".

The latter makes an outright claim as to someone else's state of mind and consent. The former is basically, "Yeah, I may have raped her but I didn't *think* I was raping her."

Now put this together with "Men apparently lose all ability to hear refusals when it comes to sex" that we talked about before, and suddenly we have a great get out of jail free card.

Because if she said no and he chose to not hear it as a no, the court may well uphold his version of events, which is that he thought she consented and therefore it was fine.

Ultimately what this is all an expression of is a rape myth called the idea of "utmost resistance".

Estrich, S. (1986). Rape. The Yale Law Journal, 95(6), 1087-1184.

This is the idea that we still see reproduced in rape trials over and over that unless the complainant resisted to her utmost ability, she must have consented.

Of course the bar for utmost resistance is a. very high and b. moving ever upwards.

[a bunch of victim-blaming crap]

"Why didn't you say no?"

"Why didn't you move his hand away from you body?"

"Why didn't you scream?"

"Why didn't you leave?"

These are all expressions of the "utmost resistance" rape myth, which in turn enables the mistaken belief defence.

For an excellent blow-by-blow account of how this plays out in actual rape trials, see:

Ehrlich, S. L. (2001). Representing rape: Language and sexual consent. Psychology Press.

Ehrlich makes a couple of key points about how courts of law interact with rape cases that are worth elaborating.

1. The accused is frequently spoken of as if he had no agency. "His shirt came off."

Things just happen to him, he doesn't *do* them.

2. The complainant is spoken of as if she had unlimited agency and options and she chose not to take them up. Again [victim-blaming] she didn't scream, she didn't leave, she didn't say no clearly enough.

What is not considered are the restrictions on her behaviour. Was she afraid that if she did any of these things he might get (more) violent? If she screamed, would that attract help or more attackers?

These things are not considered. She is constructed as having had all those limitless unconstrained options and not having taken them up.

And as she did not display "utmost resistance" she must have consented.

So no, saying no more forcefully ain't gonna help us here either.

And those, frankly, are the straightforward cases. For a real headfuck, have a look at

Gavey, N. (2005). Just sex?: The cultural scaffolding of rape. Routledge.

But I'll come back to that another day.

In the meantime, if you see anyone arguing that "we should be teaching girls to say no" and "she should just have..." point them this way.

And if you found this thread helpful, buy me a coffee: ko-fi.com/elmyra