"The night after it happened, he said he thought I liked it because I rubbed his back. A back rub.
Never mentioned me voicing consent, never mentioned us even speaking, a back rub."
Much of the conversation around consent focuses on the phrase “no means no” and more recently shifted toward the phrase “yes means yes.” In fact, California enacted a consent law two years ago that states, “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”
While that law touches upon the idea of ongoing consent, the dialog surrounding rape still needs to become more nuanced to include rape that occurs after someone has said “yes.”
We spoke to a legal expert about four ways you can be raped or sexually assaulted even after you have consented to sex:
1. If he removes the condom after you've required it
In a recent essay on The Establishment, writer Carrie Cutforth describes a sexual encounter with a guy who continually promised to wear a condom yet ultimately pushes his unsheathed dick and her boundaries.
In her memoir “Not That Kind of Girl,” Lena Dunham writes about a similar incident when she realized in the middle of sex that a condom she thought her partner had put on was hanging from a nearby plant.
When one person agrees to sex with the requirement of wearing a condom and the other person doesn’t comply – either through force or manipulation – that is not only a violation of trust but also a sexual violation.
“In some jurisdicitons, sexual assault statutes cover penetration associated with fraud,” Viktoria Kristiansson, an attorney advisor for AEquitas, “The Prosecutors' Resource on Violence Against Women,” said in an interview with ATTN:. She added that depending on where you are, this conduct might not be covered under a jurisdiction's criminal statutes so you would have to consider pursuing a civil remedy, which could include suing.
“I think that’s a pretty significant occurrence...I’d imagine she would be extremely upset, have to get tested for STIs,” said Kristiansson. “It’s really traumatizing, time-consuming, and expensive, depending on the kind of insurance that person does or doesn’t have – it’s a big deal.”
2. If someone keeps asking you to have sex until you say yes
When someone says "no" multiple times, then says "yes," that is considered coerced consent, which isn't really consent at all. Sexual coercion is a tactic that perpetrators often use to violate consent and manipulate someone until they give in, employing pressure, threats, or guilt. In contrast, real consent gives someone the space and the freedom to say “no.”
“As a general idea, the presence of coercion negates consent,” said Kristiansson. “Whether or not the totality of the facts involved would bring that conduct up to a criminal level really depends.”
Sexual coercion is just one of the factors considered in the investigation of a sexual assault case. “Investigators look at the totality of facts involved – they’re not simply looking at the five or ten seconds or minutes or hours when the possible criminal penetration occurred,” said Kristiansson. “We’re looking at what happened before, during, and after an incident or series of incidents.”
She continued: “Human behavior doesn’t exist in a time bubble. The victim selection process by the offender is no accident and is important to consider – there are offenders who are going to select a victim that they can attack successfully and they feel won’t report or feel won’t be believed. So when we take a look at an incident that is reported where the weapon was coercion, then we’re going to look at all those other factors.”
3. If your partner forces you into a sexual act to which you didn't agree
This is not just a “whoopsy, wrong hole” situation. For example, if you agreed to one sexual act, e.g. vaginal sex, but someone penetrates your anus instead of your vagina, that can be rape. Saying “yes” to one sex act is not a blanket agreement to everything else. This could also apply to deepthroating. If a man physically forces your head down during oral sex, that can constitute rape since he’s forcing you to do something against your will (even if only for a few seconds).
“If you were not consenting to any other orofice being penetrated, then nobody has the right to penetrate it,” said Kristiansson. “Every human being has the right to say or to otherwise communicate whether it’s okay to have anyone else penetrate a part of their body.”
Even in a marriage, there’s no “implied” consent due to the length or perceived commitment of the relationship.
“We always need to get consent from each other to engage in any kind of sexual behaviour – this is true after 10 years of marriage and true for dating after 10 months,” said Kristiansson.
4. If consent is taken back at any point during sex
If someone agrees to sex, that person is also able to decide to not want to have sex later, even during sex. Earlier this year, Amber Rose schooled Tyrese and Rev Run this specific issue of consent:
“If I’m laying down with a man — butt-naked — and his condom is on, and I say, ‘You know what? No. I don’t want to do this. I changed my mind,’ that means no. That means f**king no. That’s it.”
"It doesn’t matter how far I take it or what I have on. When I say no, it means no.” – Amber Rose
In a Bustle article, the writer details a situation in which she was having sex that became painful then asked her partner to change positions. According to her, he refused and continued to have sex with her until he finished. In the story, she never says “no” but she did express her discomfort and pain.
“Withdrawing consent is the same thing as giving consent in the first place,” said Kristiansson. “Whether it’s saying ‘stop’ or a pushing away of the hands – whatever the method of communication is – someone is withdrawing consent.”
Why this is important.
While there is an obvious difference between some of the non-consensual sexual experiences described here and violent sexual assaults, it’s important to recognize that not all rape looks the same. Rape is any sexual activity in which one person doesn't give their full consent from the start, wants to withdraw their consent after giving it, or is incapable of giving consent in the first place.
“The idea that any of this is confusing, which continues to be perpetuated, is really just preposterous,” said Kristiansson. “When you peel back the layers on why people these scenarios are confusing, their answers would lead you on a path ending with gender bias.”
What exactly does this unfair treatment based on gender look like? Kristiansson described a few common ideas fueled by gender bias: “That girls can’t make up their minds or send mixed signals; that girls who dress a certain way are going to behave a certain way – all of which is victim blaming, focusing on the what the victim did or said rather than the offender’s behavior.”
Research has suggested that rape survivors may experience victim-blaming treatment from system personnel (termed “the second rape”). The study “Preventing the Second Rape” found that the trauma of rape extends far beyond the assault itself, as negative community responses can significantly elevate distress.
In a rape culture of victim blaming and slut shaming, shifting the conversation to include all forms of rape and sexual assault is essential to giving the proper weight and value to rape survivors’ voices and experiences.