Animal: The Autobiography of a Female Body - Sara Pascoe (2016)

CONSENT

The Dangers of Assumption

I had a best friend at drama club, and when she was about fourteen she found an old diary of her mum’s. She got very upset, and snuck it out of the house for me to read. It was terribly written but I admired the handwriting and – oh, I’d missed the point. Several of the entries were written during her mother’s pregnancy. My friend was INSIDE HER and not born yet, this was so WEIRD, imagine a world where you don’t really exist but people can write diaries about you being inside them and – oh, I’d missed the point again. Her mum was very sad about being pregnant. Shit. And she said that the baby was ‘the result of a rape’. Oh really shit.

My friend had always felt like her mum didn’t love her. They always rowed, but we were fourteen, so that was normal. We’d previously theorised that all mums were really jealous of their teenage daughters because of our youth and talent and vivacity and that’s why they behaved like such unreasonable bitches. Except now we were holding some other explanation in our hands. It was very dramatic. We sat in the park and read bits out to each other. Like we were emotional detectives, putting her mother’s behaviour together retrospectively. Then I suddenly realised:

‘That means your dad is not your real dad—’

Oh my god, she wasn’t even related to her own father. This was even more serious than we’d realised. We decided to start smoking, because of stress, but didn’t have any cigarettes. We looked for butts on the floor for a while and thought about setting fire to the diary as a symbolic gesture. My friend got quieter and quieter as I attempted to rub sticks together and spark a flint. Then she wanted to go home and then she went.

When we next saw each other, she passed me a note. ‘He is my dad. It was him.’

I don’t know what my friend’s life would have been like had she not learned this information. It could have been exactly the same, unfocused and self-destructive. But it makes more sense for her to blame her horrible beginnings. Her mum told her what had happened: she’d been asleep, said no, he’d forced her. She had no proof that it was that time she conceived, she just really believed it was. But she loved her daughter, and it wasn’t her fault.

After about two weeks it rarely came up again. My friend still sees her dad. I never asked if she talked to him about it. I was teeming with questions I knew it was inappropriate to ask.

HOW can a man force a woman? Did he get a weapon? Did he hit her? Did she call the police? Did she bleed? Who cleaned it up? How did it feel? I always imagined like razor blades or a rat biting. Did it happen again? Did he say sorry? Was it like a werewolf on a full moon, and then he went normal again afterwards? Is that why she divorced him? Why was he still allowed round for dinner and Christmas and things? Did he even go to prison?

I asked my mum a loose, general question about what happened when wives said ‘no’ to their husbands. She proceeded to tell me a lot of stuff I never wanted to know about times she’d let my father have sex when she didn’t want it, great, and then told me that rape within marriage had only been possible for the last four years. I misunderstood what she meant.

SARA
Men were nicer in the old days?

MUM
It was legal.

SARA
How was that?

MUM
Husbands were allowed to do whatever they wanted to their wives. They owned them.

Then she pulled a facial expression which combined ‘See what an awful world we live in?’ ‘See what bastards men are?’ and ‘Interesting, isn’t it?’ (I have inherited that facial expression and pull it when reading ‘Everyday Sexism’ tweets out to my boyfriend.)

If you thought the ‘contract’ in Fifty Shades of Grey was offensively restrictive, you’re not going to get on with his more binding and less respectful older brother, ‘marriage’. Getting married is culturally universal. It’s where the powerful urges of pair bonding led us. Falling in love, as we have seen, changes our brain chemistry and affects our bodies. Strong emotions and high sex drives ensured the reproductive success of our very early ancestors and continued to aid sexual selection during the millions of years when we were developing a conscious mind. So we became an animal that could communicate in a complex way, in order to better satisfy our animal instincts and intuitions. As explored in the ‘Love’ chapters, we know that lots of human relationship behaviours stem from protecting our genetic lineage or resources for our offspring. And the story of our evolution ends, like most stories, with a wedding. Marriage: the male attempt to own and restrict female sexuality, written down.

I’ve only been to two weddings. That’s weird, isn’t it? What with my loud opinions about it being outdated and patriarchal, you’d think I’d get invited more. The first wedding I went to was my best friend Katie’s. I love her. I love Ben, her husband. There were about thirty of us in a registry office in Marylebone and they’d asked me and Vanessa to say something, but we decided to sing instead. We wrote a song about their first date from the perspective of the taxi driver who had taken them home that night. He had stopped the car and taken a photo of them, because he said he knew they’d be together forever. How romantic is that? And so Vanessa sang about this taxi guy and the picture he took, and I tried to join in but I was crying too much. Katie’s mum had to bring me tissues after snot fell onto my guitar. Everyone was laughing at me and I was pleased, because I am a comedian. I’d kept it together as they said their vows, but when I stood up at the front and saw Katie sitting holding Ben’s hand, newly married, their hopeful faces liquefied me. They were shiny with happiness and I was due on my period and I couldn’t deal with how beautiful and good it was.

I’m telling you this so you don’t think I’m a heartless, unfeeling bitch as I dismember this ‘marriage’ thing so many of you venerate. Most modern people choose marrying as an expression of love towards someone they consider their equal – lovely stuff. But historically, apart for a couple of rare matriarchal tribes, the basic of format of wedding ceremonies goes like this: male relative takes woman who belongs to him and ‘gives her away’ to a man who is buying her in exchange for a dowry. Of course the whole thing is livened up with organ music and pretty dresses so that’s probably why you didn’t notice all the ‘women as property’ stuff. Traditionally, in western religions, the new wife will take her husband’s surname as she is now part of his family. She is under his charge, he has sworn to provide for her (hence why divorcing people often get some of their spouse’s money) and she has vowed her own body in exchange. It is now his. The transaction is very similar to buying a donkey, but with more dancing afterwards.

Don’t start getting defensive, thinking ‘That’s not what my wedding was like.’ Obviously people write their own vows now, and keep their surnames or give themselves away. I’m talking loosely about the inherited framework. I’m afraid of upsetting you because I know how marriage-geared many people’s ideals of happiness are. STOP CRYING, YOU ARE STILL ALLOWED TO LOVE WEDDINGS IF YOU WANT TO.

The second wedding I went to was with John. We had only been together for a couple of months and I really didn’t want to go, but I did because I’m nice and I couldn’t get out of it. John and I had already had a conversation about how I didn’t want to ever get married and he agreed with me. (I always like to impress boys at the beginning with how relaxed and non-committal I am. The intense jealousy and whiplash PMT is a nice surprise for six months in.) This ceremony was Christian where Katie’s had been humanist, and so I could see the historical origins a lot more clearly. Like bridesmaids: maids, as in virgins. A wedding was a useful time to show off all the unmarried (thus un-sexed-up) women of the family in case some guy in the congregation fancied one of them and another wedding could be arranged. Even more surprising, to me, was that after the ceremony the groom did a speech and the father of the bride did a speech and the best man did a speech, and the bride herself just sat there listening to men speak about her and on her behalf.

I kept thinking about this afterwards. I can completely understand that women might not want to speak at their weddings nowadays, that it’s choice rather than expectation. Katie did a tight ten at her reception and even improvised a great joke about how I’d tried to upstage her by crying too much. HA HA HA, she was joking, we are best friends. But what struck me was that until very recently, for the majority of all the women who have ever lived and married, that day was not a happy one. Or at least not for them. Most women did not sit next to a man they had chosen and fallen in love with while he made their closest friends and family roll about with jokes about how drunk she was when they met. Instead she sat beside a husband chosen FOR her, by her parents or elders, who that night was going to take her virginity whether she protested or not. Might be best not to allow her a speech then, bit of a downer:

BRIDE
Thank you all for coming, it’s great to see so many of you here to celebrate a world in which girls cannot survive without male protection and income. Please charge your glasses and toast my new husband, who’ll attempt to make me bleed during sex later as proof of my maidenhood. Cheers!

I tried to do stand-up about this, and about how maybe that’s where the idea that women weren’t funny came from. But it was tonally very upsetting and that’s a bit of a no-no in the comedy game. And also at John’s friend’s wedding.

From the age of fourteen up until I was thirty-two I was vehemently anti-marriage, because of where it came from and what it represented. And then good old homosexual people came along and changed my mind. In 2014, England, Scotland and Wales all made same-sex marriage legal. And you know what is so great about that? They reinvented the ceremony. Same-sex marriage is untarnished by history and archaic institution. Sure, people can still pick elements of tradition and spectacle to include, but they are building their commitments on fresh ground rather than the blood-speckled lino of heterosexuals. A same-sex relationship is not burdened with the expectations of stereotypes or outdated gender roles. There are no preconceived ideas about who will earn the most money or who will bear the children, who will clean the kitchen and who will fix the car. They decide for themselves. And so I think it’s only fair that gay marriage be opened up to straight people. You and your beloved could simply decide whether you wish to become husband and husband or wife and wife, and make a lifelong commitment. HOORAY! A union of true equals. THANKS, GAY RIGHTS ACTIVISTS, you are teaching all people who love each other how to do it better.

But that’s the future. Back to the past: in England, until 1991, wedding vows were considered unlimited, never-ending, can’t-take-it-back consent. And a woman’s body was something her husband used to procreate and she could not refuse him. He had ‘conjugal rights’. This had been written in law since 1736, when a guy called Sir Matthew Hale claimed: ‘The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.’

When I picture Matthew Hale saying this, he has beady eyes and an awful moustache and does evil laughs at the end of his sentences. I try to be compassionate and think ‘Maybe he wasn’t a bad man, perhaps he rode his horse carefully when passing children and always gave great Christmas presents?’ He was a product of his culture and its expectations, as we all are. But then I remember his words were used against women abused by their husbands for over 250 years and the moustache stays on.

In 1976 the Sexual Offences (Amendment) Act created a statutory definition of rape as forced sex outside of marriage. Outside. The wording itself protected husbands from being accused. In 1984 the suggestion that wives should also be protected was rejected by the Criminal Law Revision Committee. They said that rape was not just ‘sexual intercourse without consent’, the circumstances must be ‘peculiarly grave’, and that in the case of wives who will have had consenting sex with their husband previously, they never could be. If he was violent during the assault that was an offence with which he could be charged, but ‘the gravamen of the husband’s conduct is the injury he has caused not the sexual intercourse he has forced’.

Written down. In the law. You can’t steal something that’s already yours.

Over the next seven years, the law was contested by brave wives accusing their husbands and fighting all the way up to the high courts for their right to say ‘no’. There were exemptions made for wives who no longer lived with their husbands (R v. Clarke) and for forced sex that was non-vaginal (R v. Kowalski) and finally, in 1991, the House of Lords finally ruled against Hale in a marital rape case (R v. R). No more evil laughing for him.

What’s so brilliant about the British legal system is that because statutes can be altered or overturned by lawyers fighting individual cases the law can, in theory, evolve to reflect the fluid morality of society, to adapt with culture and new ideas. But isn’t it galling that it took so long to protect married women? This very basic human right was created within my lifetime and is still not extended to all the world’s women. Below is a list of countries where rape within marriage is currently not a criminal offence. Feel free to check up on this and tick them off as planet Earth gradually becomes a more bearable place to be female.

Country

Can wives say ‘no’ 
to sex yet?

Country

Can wives say ‘no’ 
to sex yet?

Afghanistan

 

Malawi

 

Algeria

 

Mali

 

Bahrain

 

Mongolia

 

Bangladesh

 

Morocco

 

Botswana

 

Myanmar

 

Brunei Darussalam

 

Nigeria

 

Central African
Republic

 

Oman

 

China

 

Pakistan

 

Dem. Republic
of Congo

 

Saudi Arabia

 

Egypt

 

Senegal

 

Ethiopia

 

Singapore

 

Haiti

 

South Sudan

 

India

 

Sudan

 

Iran

 

Syria

 

Ivory Coast

 

Tajikistan

 

Kuwait

 

Tonga

 

Laos

 

Uganda

 

Lebanon

 

Yemen

 

Libya

 

Zambia

 
             

The recentness of these changes reminds me that we are at the beginning of a process, rather than the end. I believe bodily autonomy is an obvious and basic human right but our country and courts are governed by people older than me, who grew up in a culture where men did effectively own women, and this has ramifications. Shifts in attitudes percolate through the populace slowly, at glacial speed, and the result is that many of us hold different beliefs all at the same time. Of course we all think we’re objectively correct too. There was a man outside Lewisham shopping centre the other day, he had pamphlets and a loud hailer and I was avoiding eye contact like everyone else but I was listening, and as I passed he said, ‘If we don’t follow the Bible and what was written down, then everyone is just making morality up for themselves.’

And I thought, ‘Yes, duh,* that is exactly what morality is. We all invent it for ourselves depending on our experiences.’ The problems begin when we believe our personal moral code can be applied to all other people. We judge and we subjugate and we become wrong because we can only ever see our own little slice of the picture. And the dangerous result, in this context, is that you and the person you’re having sex with may have very different conceptions of what rape is.

In Great Britain, the law no longer sanctions men controlling women’s bodies but there is residual misunderstanding about ‘intimate rape’. The first fallacy is that it is much more bearable than stranger rape. That if you’ve had sex with someone before, then being raped by them isn’t as bad. This is empathy failure. Or perhaps the difficulty of envisaging a situation that you haven’t experienced. I think if anybody tried to imagine, really literally imagine what it is like to have someone you trusted, someone that you love, or have loved, someone who knows your vulnerabilities, who is supposed to care about you – when it is that person who brutalises you, who ignores your protests, who knows that he is hurting you and doesn’t care, then there is a whole other emotional level to the physical trauma. Do you think it is better to be punched in the face by someone you like? Do you stand there as they thump you, thinking, ‘Well at least it wasn’t my enemy’? It’s a different kind of ordeal to an attack from a stranger, not a lesser one.

The difficulty with gradients and comparisons is that victims on either side of the spectrum have their experiences misunderstood and undermined. With marital rape, and the unwillingness to prosecute it, there’s a similar failure of comprehension. Marriage does not mean the rape is less painful, cruel or abusive. It is not a more tender experience. It often means that you’re trapped with your rapist afterwards. You may be economically dependent on him, with no chance of escape. No door to close to keep yourself safe from future attacks.

What keeps surprising me is how relaxed some people seem about men using women’s bodies. Like there’s something ‘natural’ or understandable about it. I’ll give you an example. In 2010, a warrant was issued by Swedish police for the arrest of Julian Assange. The case gained a lot of publicity because of Assange’s pre-existing notoriety as the co-founder of the WikiLeaks website. He was accused of rape by one woman and of molestation by another. In both cases the alleged assault took place AFTER consensual sex. In the first account, a woman who willingly had sex with Assange one night, at her apartment, awoke the next morning to find that he was having penetrative intercourse with her against her will.

There is no way that this isn’t an incredibly complicated moral issue, right? Some couples find it very sexy for one to begin foreplay while the other is asleep. I am pretty sure that almost everyone has had sex that began with one or other of you asleep, OR BOTH? Would that be possible? Somno-sex? I tried to find out online but I’m in a Costa coffee and their wi-fi filter just told me off for being filthy. I can imagine two scenarios: I can imagine a one-night stand where in the morning, I am awoken by the guy getting sexy with me again and I’m fine and I like it. And I can imagine the exact same thing occurring and it being deeply wrong. This would have nothing to do with what he looked like or how great his moves were, it would depend merely on whether I wanted it. It’s so dangerous.

There is no possible way someone can consent while they’re asleep. Even if you wrote a note and left it on your chest –  ‘shag me awake please’ – you might have changed your mind by the morning. You can’t give consent in advance, you can’t predict how you will feel in the future.

I spoke to John about this, because I can’t stop thinking about it, and he was like, ‘If you were asleep and I started sex with you it would be okay,’ but would it? If I woke up and wanted him to stop and he didn’t, if I tried to push him off, if I said I wasn’t interested and he still carried on, then it would be – I don’t have the right words.

I’ve only experienced something similar to this once. I’m embarrassed to tell you, I only ever told one person and they didn’t react well, and I never spoke about it again. I’d been on a few dates with a guy, he wasn’t my ‘boyfriend’ yet, but we had slept together about three times and all was going very well. He was super-clever and liked walking around London and I was very impressed with him. At his house, we did not have a condom and I was almost due on my period and said we could sleep together if he pulled out. I KNOW THIS IS TERRIBLE AND WRONG AND I DESERVE MY MILLIONS OF STDs AND WARTS. Very irresponsible and I hate myself. Anyway, towards the end of the completely consensual and enjoyable sex, I realised he was about to come and said something sexy and adamant like ‘MAKE SURE YOU PULL OUT OF ME’, which he ignored, and I panicked. I realised he was going to do it anyway, and I tried to get out from underneath him and he pressed me down and smothered me while he ejaculated.

From realisation to panic was a very short amount of time, probably four seconds. And then being physically restrained by him while he finished was probably fifteen. Less than twenty seconds in total. And it was deeply emotional. I was so upset and furious. I left his house, it was very late and I was the opposite side of London from home and I had no money for a taxi and I was scared and all I knew was that I never wanted to see him again. It was only twenty seconds of unwanted sex. It wasn’t a stranger jumping out from a bush, he didn’t beat me around the head. What right did I have to become hysterical? To shout at a guy, to feel betrayed and used by him? Two weeks later he wrote me an email saying sorry and could he take me on holiday to make it up to me? And I knew that he didn’t know what he’d done wrong.

I am remembering this now because the fear my body felt at the time was so extreme and devastating. I was full of hatred and I was powerless, when moments before I had been sexual and willing. I was disgusted by what had happened to me and I felt separated from my body. Meat-like. So I can easily envisage how consensual sex in the evening can be followed by rape in the morning. Unwanted sex does not become tolerable with the memory of a previous session. Drowning isn’t easier because you’re usually a strong swimmer. That flailing loss of control, desperate for air, is a good analogy for this, because the panic is similar. Or at least that’s how I’d describe it.

But many people of both genders find it impossible to empathise with intimate rape. Our personal experiences limit what we can predict feeling in a given situation. We patch together projections of imagined emotions based on what we have seen and felt in our lives already. We all know that knives are scary, so if I tell you I was mugged by someone holding a machete, you can understand my terror. But if I tell you I was mugged by someone with no weapon but I still gave him all my money and was scared for my life … then maybe you fail to sympathise. I was stupid or weak, I did something wrong. You might walk away muttering, ‘Wasn’t really a mugging at all, I dunno why she’s so upset about it.’

Which was how George Galloway reacted to the claims against Julian Assange. In a podcast the politician went on record to say: ‘Even taken at its worst, if the allegations made by these two women were true, one hundred per cent true, and even if a camera in the room captured them, they don’t constitute rape. At least not rape as anyone with any sense can possibly recognise it. And somebody has to say this.’

It is clear that Galloway really believes this. He is not trying to be incendiary or hurtful or offensive, he feels he is bringing common sense and objectivity to the matter. ‘Somebody has to say this,’ he claims. Well, now somebody has to listen carefully to the definition of rape as a criminal offence. 

In Sweden, where the allegations arose, a rapist is defined as a person who ‘forces another person to have sexual intercourse or to undertake or endure another sexual act that, in view of the seriousness of the violation, is comparable to sexual intercourse’. In 2005 the Swedish penal code was extended and clarified so that ‘this also applies if a person engages with another person in sexual intercourse or in a sexual act by improperly exploiting that person, due to unconsciousness, sleep, serious fear, intoxication or other drug influence, illness, physical injury or mental disturbance, or otherwise in view of the circumstances, is in a particularly vulnerable situation’. George Galloway may not recognise the allegations against Julian Assange as rape but the Swedish legal system most certainly does.

‘Sleep’, it says. In between ‘unconsciousness’ and ‘serious fear’, recognised as a state in which someone cannot properly give their consent. Oh but that’s in liberal old Sweden, maybe the confusion has arisen because our British legal system has a different definition and putting your erect penis in sleeping folk is okay here … let me check … okay, so looking at statutory law, since 1956 rape is ‘unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it’, when either the rapist ‘knows that she does not consent to the intercourse or he is reckless as to whether she consents to it’.

IS RECKLESS AS TO WHETHER SHE CONSENTS TO IT. Having sex with somebody who is asleep, and who can in no way communicate assent, is reckless, isn’t it?

Am I crazy?

If you’d had sex with someone who was asleep, and I asked, ‘How do you know whether they wanted to have sex with you?’ what could you possibly answer that would persuade me you cared whether they consented or not?

In his podcast, Galloway said that waking up with someone inside you is ‘something which can happen, you know’. CAN IT, GEORGE? How many times has that happened to you exactly?

Our enemy here is the banality of unwanted sex. If it’s common for one of the partners in a relationship to go along with sex they aren’t into, if it’s considered harmless for a woman to allow a man to have sex with her when she is not aroused, then the women who do complain, as in a case like Assange’s, are seen as moving the goal posts. The boys get exasperated and whiney: ‘You can’t tell us off now, this is the way it’s always been,’ or ‘Don’t pick on me, everyone else is doing it!’ The criminality is perceived as unfair or unreasonable because the act is something that some men consider their right. As is seen with Galloway; he believes that his own personal definition of rape is superior to the law. Of Assange’s behaviour he said: ‘It might be really sordid and bad sexual etiquette, but whatever else it is, it is not rape or you bankrupt the term “rape” of all meaning.’

‘It is not rape,’ he tells us. Despite the fact that, according to the legal definition I have quoted above, it clearly and really is. Galloway hears of an alleged assault and rather than realising that his preconceived notions of consent are wrong, he chooses to denigrate the women who accuse men in these circumstances. And in the most powerful way possible: they ‘bankrupt the term “rape” of all meaning’. He proposes that these women are undermining the experience of ‘real’ rape victims. 

This may seem like a personal attack on George Galloway and his opinions, but I’m using him as an example of how ALL OF US have a subjective definition of what we consider rape. And we ALL occasionally judge or dismiss cases that we hear of in the media or general gossip. We all victim-blame based on our own subjective moral values.

If you’d like to see this in action, bring up Ched Evans next time you are with a group of friends and be surprised and astonished at their reactions. You can read this bit out first if you want, so that everyone is dealing with the same information:

In May 2011, footballers Clayton McDonald and Ched Evans went out in Rhyl in north Wales. McDonald met a nineteen-year-old woman in a takeaway and she went in a cab with him to a hotel room, booked in Evans’s name. McDonald sent a text to Evans saying ‘got a bird’, and he and the woman began having sex. When Evans returned to the hotel room, he also began having sex with the woman. Two friends outside the window attempted to film this on their phones. At some point McDonald left. Evans continued to have sex with the woman, but eventually left too. Neither man ejaculated. The woman woke up alone a few hours later. She did not have her phone or handbag. She contacted reception to call her mother, who came and picked her up. Later that day she returned to the hotel asking to view CCTV recordings, and staff told her the room she had slept in had been booked by footballers. That night she contacted police to claim that her drink had been spiked, as she had no memory of events. The police traced the room booking and arrested McDonald and Evans on a rape charge. (McDonald was found not guilty during the court case.)

Now discuss! 

Honestly, you must. I had this case buzzing awfully around my head for months and every time I spoke about it to someone, they illuminated a new perspective. An angle I hadn’t thought of, a fresh understanding of human behaviour. I heard alternative combinations of anger and compassion, and I found I could never predict what a person might say. Most importantly, I realised, none of us agree on what consent means. Some of my friends strongly empathised with the footballers because it was a situation they could imagine themselves getting into when they were very drunk or much younger. Two of my friends were very harsh towards the victim for a particular reason; one who’d been photographed naked after passing out on a one-night stand and the other who had been tricked into having sex with a man she thought was someone else after falling asleep. Both claimed the Evans/McDonald case ‘wasn’t rape’ because theirs hadn’t been. Their coping strategy was self-blame. Their thought process was ‘I left myself vulnerable’ rather than ‘Someone took advantage of me.’ Conversely, I have friends who think all sex offenders should be chemically castrated, and that includes the little shits filming outside the window and in fact maybe we should put all sportsmen in prison as soon as they turn professional since none of them seem very respectful of women. So there was a real range of impassioned responses.

There is a website, www.chedevans.com, which attempts to clear Evans’s name while discrediting the victim. It refers to various aspects of the case. There is CCTV footage of the nineteen-year-old arriving at the hotel with McDonald; she is carrying a pizza box, which she forgets and then turns back to get. This was shown to the jury as evidence that she ‘knew what she was doing’ – that she was not unconscious and being dragged. Both McDonald and Evans claimed that the woman was asked if Evans could ‘join in’ but each said it was the other who asked. And because the victim has no memory of events, she could only testify as to what she can remember, which is her evening up to being in the takeaway, and then waking up in the morning. Further evidence was given by the hotel receptionist who listened outside the door while the sex took place and heard a man asking ‘playfully’ for oral sex.

It’s all so gross and horrid, but how would you approach this case if you were a lawyer? How would you pronounce if you were on the jury?

This case illuminates how a man can rape without knowing it. Or rather, without considering his behaviour to be rape. There is a victim, whose life is deeply and irrevocably affected, and there is a man, Ched Evans, who, despite being found guilty by a jury of his peers, still shows no repentance. He absolutely and resolutely believes that he did nothing wrong. And so do his supporters, his family and his fiancée. They have all the same information as you and consider him an innocent man. On the website there is a tab labelled ‘Feedback from a very brave lady’, which contains a letter from a woman who was raped and failed to get a conviction in court. She says, ‘This girl is the reason why me and plenty other girls who are VICTIMS don’t get justice.’ In an echo of Galloway defending Assange, the website claims that this and other letters show ‘a clear message that Ched’s conviction and the complainant’s actions demean and diminish the act of rape’.

It is not a Welsh nineteen-year-old’s fault that our legal system is not set up to try rape and sexual assault effectively. It’s not her fault that other women are raped. It’s not her fault that shame makes so many women hate themselves and each other instead of their transgressors. She is not ‘lucky’ that her rape was not violent and she is not ‘lucky’ that her case got a conviction where so many fail.

Why is it so difficult to understand that forced sex is a spectrum, with a wide-ranging variety of perpetrations? If you had your house burgled, would you feel affronted that someone else wanted to prosecute their pickpocket? Even if they’d been really drunk when it happened? We don’t have these attitudes towards other crimes; we all agree that property is property and theft is theft. I would argue that lurking underneath sex crimes is the enduring, subconscious belief that women’s bodies exist for male procreation and pleasure. That they are never really ours, despite what we’re told. And we are told nowadays – it’s a huge part of feminism. We tell each other. My mother told me, as did books and magazines and teen television. Like a mantra: My body is my own. MY genitals, MY reproductive rights and MY pleasure, all mine.

But did anyone tell the boys? Were they repeating ‘their bodies, their genitals, their reproductive rights and their pleasure’ throughout their adolescence? As discussed earlier, throughout modern history male sexuality has been celebrated and accepted while female desire has been denied and suppressed. Consequently male sexuality is perceived as instinctual, natural, something outside of their control. Intimate rape can be dismissed as an automatic response or passion: ‘He was too aroused to stop’ or ‘He was drunk and couldn’t control himself.’ We admit this slice of animal behaviour as unfortunate yet to be expected. But the conscious brain is always aware, no matter how aroused or drunk someone is. Defecation is as strong an urge as ejaculation, yet society has taught humans of all genders to be fiercely private and respectful about this and not plop it all about like horses. Sane men do not lose control and begin masturbating in front of everybody at the party; they remain aware of right and wrong, of embarrassment and propriety, even when intoxicated. Respect for women’s bodies, whether they be asleep, or naked or drugged, should be learned like toilet training.

It has to be taught. It’s too dangerous to presume consent is obvious and that anyone who gets it wrong is a bad person. This needs deep thought and conversations. And alcohol is a very complicating factor. There is a point of drunkenness where people are considered unable to give consent to various things, including sexual contact. There are multitudes of warnings aimed at young women, shouting about the dangers of being wasted and vulnerable, while there is virtually nothing aimed at educating young men. And so you get cases like Ched Evans’s, where the defendant doesn’t even know that he has done wrong.

KNOCK KNOCK

Sorry about this, I’ll have to get that, I’m having a sofa delivered and—

SARA jumps up and opens the door.

SARA
Oh. Hi Jeremy, I thought you were my sofa!

JEREMY
No, it’s me, Jeremy. Your next-door neighbour. I heard you through the wall saying that if someone is drunk, I mean, if a woman I’m with is really drunk, then maybe I shouldn’t have sex with her—

SARA
Is this the first time that’s occurred to you?

JEREMY
I’m not a bad guy, but what’s the difference between drunk and too drunk?

SARA
Listen up, Jez, I was going to outline it to everyone anyway. Lucky I got that law A-level, hey?

JEREMY
I thought you failed law—

SARA ignores stupid JEREMY and says the following with her hand on her hip.

SARA
Here is how it works. To be convicted of a crime under British law, two things have to be proven beyond reasonable doubt: actus reus and mens reaActus reus is the action of the crime, the physical aspect. So in a rape trial, proof that the sex (or penetration with an object or some other forced sex act) occurred is required. In R v. Evans, Evans admitted to the sex. This is common in rape cases as the defence is not usually that the intercourse or sex act didn’t take place, rather that it was consensual.

JEREMY takes notes and is nodding.

SARA
Mens rea is the mental element, the intention to commit a crime. It’s the difference between accidentally hitting Tim while putting on your coat (the act is there but no intention) and Tim being bloody annoying today so while putting your coat on you gave him a smack in the mouth. Tim’s face hurts exactly the same whether you meant it or not, but if you did it on purpose then it’s a crime.

And now we see the whole twisted, tangled-up impossibility of trying rape. Victims are called liars by defence teams, told they wanted it, accused of being hypersexual, being fantasists, wanting to be beaten, turned on by knives, horny about gangs, etc., because this creates doubt in their testimony, and any doubt = no conviction. There are often only two witnesses (the victim and the rapist) and it is very very difficult to prove that either account is true. Our legal system is built to protect the innocent from wrongful conviction, and so instead the guilty go free.

But as we have seen, the statutory definition of rape includes more than mens rea. You don’t have to have intended to rape someone; you can be convicted if you have been ‘reckless as to whether she consents’. And it’s here that all our assumptions and expectations diverge.

Here is an example from my life. I thought, drunk at a party, that if I got into a bed and fell asleep that I would be left alone, that I was safe and amongst friends. My friend assumed that my being passed out fully dressed in his bed was a sign of sexual interest and that he could remove my trousers and underwear and start going down on me. This was my friend, I don’t think he is a nasty person, but I also don’t understand how he walked into that room and –  that’s it, I can’t comprehend what went through his mind, how he came to think that was appropriate behaviour, WHAT ON EARTH MADE HIM DO THAT? He was drunk. I was drunk. But we are the same age and have grown up in the same city, influenced by the same culture, yet we do not seem to agree on the rules.

And so with Ched Evans. He walked into a room where his friend was having sex and assumed he would be welcome too. Clayton McDonald expected him and had sent him that text. Men get aroused by watching each other have sex; this is animal behaviour. McDonald’s consent towards Evans is clear, but what about the female partner? For all of the claims on the website defending Evans of the victim writing tweets about ‘winning big’ or being after the footballer’s money, there is nothing at all to signify that the woman ever desired or planned to have sex with Evans. He was reckless as to whether she consented or not, and that is why he was convicted.

Now, British law does not allow intoxication as a defence. If you were drunk when you punched poor old Tim, then that’s your responsibility. You chose to get so inebriated that people around you were endangered. You’re in charge of your own actions. If Tim was pissed when you hit him, it is still YOU that was at fault. Do you see?

JEREMY
Yes.

SARA
Sorry, I forgot you were here. What I am trying to say is that the onus should be on teaching young men how not to rape people when drunk, as it is they and only they who are legally responsible. 

JEREMY
Yes, I got that. Anyway, better go, I think I can hear my cat calling me—

SARA
Please stay, I think I have an idea …

JEREMY sits down politely and listens like a good boy.

SARA
Being drunk is the new married. It’s viewed as a form of agreement or pre-consent and victims of sexual assault are seen as complicit in their experience. ‘Oh, did you drink wine near penises? Well what did you expect?’ It was Ched Evans who should’ve known there was such a thing as being too drunk to consent. His website should be blaming his school for insufficient sex education. He should be railing at a lad culture that shouts ‘Any hole’s a goal’ at teenage boys and encourages them to see women as conquests rather than people. And he should be helping other young men avoid prison by educating them about how not to unwittingly rape someone. So this was my idea: do you remember ages ago when Tony Blair tried to bring in sexual consent forms?

JEREMY
IT WAS AN ILLEGAL WAR!

SARA
I’m not getting into that. In the early 2000s there was political discussion about consent forms being a way to combat rape, and although they never really took off there are lots of websites that do help people create them (if you are interested). But I thought, what about if we all had a virtual one in our heads. So that if we are with a partner who is highly intoxicated, we ask ourselves, ‘If I was to get out a six-page legal agreement and ask them to read and sign it, would they be able to? Would they be able to focus on the wording, hold a pen, flick through the pages?’ If the answer is no, then you my friend have found yourself a non-sexual partner to sleep next to respectfully. GOODNIGHT and I hope they don’t puke on you. And here is an interesting fact to remember, Jeremy: when the level of alcohol in a person’s blood goes over 0.08 per cent, they become unable to form long-term memories. This is why some people can seem to be functioning and yet not remember anything the next day. And you can spot this if a drunk person repeats themselves or forgets what they’ve already told you – this probably means they are in a blackout state. You can give them some water and not have sex with them. I also think that sex education with young people should involve hearing from those who have been assaulted. I think if boys and men empathised with certain experiences – being filmed without your permission, being flashed at, as well as violation and rape – then they’d be better equipped to combat the predatory culture that currently shapes them. Wouldn’t they be less likely to slip a drug into a girl’s drink if they had heard, as a fourteen-year-old, from someone whose life was ruined by a drug rape?

SARA walks around, flailing her arms and pretending she is a lawyer.

SARA
Boys have to be taught to forget ‘consent’ and wait for enthusiasm. Sex is not something males do to females; it is something people do together. One partner’s arousal and desire should be mirrored by the other, and in heterosexual sex, like in all animals, receptivity should be signalled by the female – and never taken for granted. Now get out, Jeremy!

JEREMY leaves thinking sex education needs to be revolutionised in the UK. SARA knows she is being quite lecturey at the moment but she has all these opinions on this and it feels so important. She does some hula-hooping to calm herself down, then winks at you and beckons for you to follow to the next bit.

* My inner monologue is late nineties.

 Sweden was one of the first countries to legislate against marital rape, in 1965.