California just passed a new law (that applies to most college campuses) that defines sexual assault as a lack of affirmative consent. That means consent cannot be assumed from a person’s silence or intoxication. Thomas Millar at Yes Means Yes recently posted an extensive analysis of the law.
In Canada, this same basic model has defined sexual assault in federal criminal law since the early 1990s. (It gets a lot right in theory, but in practice many prosecutors, judges, and juries still rely on racist and sexist rape myths). Around the same time, Antioch College was nationally ridiculed for mandating a policy of explicit verbal consent. In 1993 the New York Times was sympathetic to the effort but cautioned:
To people used to associating sex with romance and romance with mystery, these guidelines look stifling. Each and every time? … Adolescents will always make mistakes — sometimes serious ones. Telling them what’s unacceptable, in no uncertain terms, is fine. But legislating kisses won’t save them from themselves.
More than 20 years later, I can see some real progress in the NYT’s reaction:
[The new California law] is not radical. Its underlying message is that silence does not necessarily equal consent, and that it’s better to be certain that sex is desired than to commit assault.
Sexual assault is rampant on campuses, and colleges have failed to respond adequately. “Yes means yes” won’t make these problems disappear. But the new standard is worth trying.
So, twenty years from skepticism about “legislating kisses” to “this is worth trying.” As Millar writes:
This Is Not A Revolution In Practice (But I Can See It From Here)
This morning my facebook filter bubble is full of impassioned articles defending Jennifer Lawrence and criticizing the victim-blaming attitudes that have emerged in response to the iCloud hack. On balance, it feels like maybe we’re maybe getting somewhere with understanding how to talk about and develop ideas of privacy online. Back in 2007, Disney forced Vanessa Hudgens to take the blame when her nude photos were leaked, and stated: “Vanessa has apologized for what was obviously a lapse in judgment. We hope she’s learned a valuable lesson.”
The defenses of Lawrence might indicate that we’re starting to understand that personal nude photos are meant to be private, and that distributing them without permission is a violation.
a “leaked nude” is a NON-CONSENSUAL form of sexual violation and ANYBODY who participates by viewing and sharing is part of the problem.
women’s bodies are NOT public property. we are human beings and we do not exist for other people’s sexual pleasure without our consent. anybody with an ounce of empathy should be horrified and disgusted by this.
And from Clementine Ford at Daily Life:
There are a few different issues that a criminal act like this brings up, but before I get into them it’s necessary to make one thing clear: If you deliberately seek out any of these images, you are directly participating in the violation not just of numerous women’s privacy but also of their bodies. These images – which I have not seen and which I will not look for – are intimate, private moments belonging only to the people who appear in them and who they have invited to see them. To have those moments stolen and broadcast to the world is an egregious act of psychic violence which constitutes a form of assault.
At the same time, I still see schools, parents, and prosecutors blaming teenage girls when classmates distribute their nude photos–shouldn’t we see minors as even less culpable than an adult celebrity? What’s going on here? There are s couple of problems:
1. Teen girls’ sexuality is often seen as deviant or as the result of victimization. Sexting girls are even sometimes blamed for contributing to the social ill of child pornography. JLaw doesn’t have this problem because she’s an adult; Hudgens was too, but was still part of the High School Musical franchise. As Anne Helen Petersen writes, these photos don’t really disrupt the JLaw brand:
They don’t tell you anything new about Lawrence. They don’t make you think differently about her. You know why? Because sexuality isn’t, and shouldn’t be, a dirty secret. In her public appearances and interviews, Lawrence has never attempted to make it so.
2. We’re much better at seeing violence when it’s perpetrated by strangers. JLaw’s photos were leaked by an anonymous hacker, while in most of the teen sexting cases, boyfriends and peers are the privacy violators. An ongoing problem with intimate partner violence is that we still tend to see it as a mutual dispute in which both parties are responsible.
What would it take to view teenagers’ who’ve experienced privacy violations with as much sympathy as we offer celebrities?
Another disturbing case of a teen’s sexual assault that was recorded, distributed, and the victim-shaming that followed. What would it take to move from a culture of victim-blaming to perpetrator-shaming? Of course, we are happy to ostracize sex offenders when we can see them as deviant strangers, as we do with sex offender registries, and that’s not productive. But when it’s an acquaintance, a boyfriends, a fellow partygoer, we pivot 180 degrees and blame the victim. There has to be a way to change this, so that when people learn about–or even see–a rape, the default, common reaction is to criticize the rapist, not the victim. Not to see him as a monster, but to see that he harmed someone and did a bad thing. It sounds pretty simple, and yet, it’s not happening.
In these moments, I am reminded of Sarah Projansky’s work on the ubiquity of representations of rape in film and popular culture. And I think this helps us understand that these incidents, like Steubenville, are not about teenagers or social media. The ideas about rape they demonstrate are absolutely endemic to our culture. The question is: how do we burn those ideas down?
The fact that Jada, the 16-year-old victim in this case is speaking publicly is astounding. Her bravery, confidence, and clarity about what happened to her is the only encouraging thing about this terrible incident. She says:
I had no control. I didn’t tell anyone to take my clothes off and do what they did to me. … I’m just angry.
If everyone thought about rape as Jada explains it here, we’d be a long way towards solving this problem. She shouldn’t have to explain these things to us. She shouldn’t have to be brave. But we all should all be angry. (edited)
Update: Important analysis from Robin Boylorn at CFC about the complications of celebrating Jada’s bravery:
While I join others in supporting and celebrating Jada’s bravery I worry that being proud of her stoicism is an improper response to the trauma she has experienced. Jada is 16 years old and not only has she been raped, but publicly exposed, outed, mocked, teased and threatened. Rape victims are usually afforded privacy and time in which to process the trauma. Jada, however, has been put in a public spotlight and interrogated about an event with consequences that far exceed the immediate backlash and immaturity of peers. Perhaps instead of being proud of her for being strong we should let her be visibly devastated, distraught, shocked, and inconsolable. Maybe instead of being impressed that blackgirls can withstand so much suffering and become role models for strength, we should be concerned about their emotional wellness, their vulnerability, their humanity.
… The problem with blackgirl strength is that it never lets up. Blackgirls don’t have the luxury of a time out or a break to breathe. The problem with blackgirl strength is that our very lives are stake and if we don’t learn to mask our pain we won’t know how to survive. The problem with blackgirl strength is that practice makes perfect and after while we have that strength, no pain, never let ‘em see you sweat ish down pat. The problem with blackgirl strength is that it doesn’t offer protection. The problem with blackgirl strength is that nobody ever tells us we don’t have to be strong and we don’t know how not to be. That is a problem.
In the latest absurd sexting news, prosecutors want to induce an erection in a 17-year boy and photograph it in order to prove he sent a picture of his penis to his 15-year-old girlfriend. This is truly unbelievable, but it’s reported in the Washington Post, Alternet, and elsewhere.
I have to agree with the commenter on Gawker who points out the ridiculous irony:
So sexting your girlfriend a picture of your junk is wrong, but sexually assaulting a minor and taking photos of it is ok?
There aren’t a lot of details about this case yet, but it appears that the 17-year-old sent it to her consensually and her parents are upset. The legal issue with teen sexting is that by taking a photo of his erect penis, technically he produced, possessed, and sent child pornography (of himself) and she also possessed it. Usually prosecutors will only pursue these cases if there is some clear harm in the incident. But at the same time, an estimated 7% of all child pornography production arrests in 2009 were for consensual behavior between minors with no aggravating factors. In other words, a couple hundred teens are being arrested each year for consensual sexual behavior.
This is unjust and absurd. In the US it’s currently unconstitutional to arrest same-sex couples for consensual sex. Why are we still criminalizing consensual teen sex?
I’m quoted in a CBS News article today.
Hasinoff cautions parents not to worry excessively about kids who spend a lot of time texting. “I don’t know that texting a lot is a particular problem,” she said.
“We need to think of cellphones as a way that kids communicate. You’d never say kids are talking to their classmate too much at recess, or that they used 1,000 words at recess, and that’s excessive,” she added.
… The study says parents may wish to “openly monitor” their kids’ cellphones. But Hasinoff said “that sends the exact wrong message.”
Parents should talk about the importance of privacy and serve as role models, she said. “We want to be teaching kids to respect the privacy of other kids and develop the sense that privacy really matters,” she explained.
Kids should also learn about the need to gain consent for any kind of sexual behavior, including sending someone sexually explicit photos, she added.
This article also illustrates the way that research gets translated into headlines. The study itself was careful to mention that different sexting behaviors were correlated with both riskier sexual behavior and condom use. And the authors noted that the number of young people who were sexually active was too small to draw any conclusions about that. But there it is in the headline, a conclusion: “In middle school, sexting linked to riskier behavior.”