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Consent, Convictions, and the Ched Evans Case

by Dr. Jem Tosh

Below is the transcript from an unpublished interview I completed for The Psychologist:

Interviewer: The so-called ‘issue’ of consent has been in the news a lot lately, I’ve read some articles which have said young men in America are being explicitly trained in what constitutes consent for sex/sexual contact and what doesn’t. How would you define consent?

Jem: Research indicates that there is about as much confusion about the term ‘consent’ as there is about the term ‘rape’. What can seem a simple enough definition, becomes much more complex and multifaceted once put into practice. For example, often I come across justifications for coercive behaviour based on a single occurrence of ‘consent’ (such as verbal agreement early on during a sexual encounter). However, what can happen in coercive situations is that this verbal agreement is viewed as a binding social contract that cannot be retracted – thus a single utterance of ‘yes’ is used to ignore or disregard numerous signs of resistance, intoxication, and utterances of ‘no’ that may follow. This occurs within a context where young men are taught that ‘convincing’ a woman is required for a ‘successful’ sexual encounter, where ‘pick up artists’ teach men how to ‘overcome’ women’s sexual refusals, and where sexual violence is disbelieved or the punch line of countless ‘jokes’.

Interviewer: Do you think people need to be taught about consent? Is it really something that can be taught?

Jem: Teaching sexual consent is a step in the right direction, as it opens up discussion about the issue rather than people assuming that their own personal definition or understanding of consent is universal or the ‘right’ one. Promoting a kind of consent that is continuous, that involves regularly checking in with partners about sexual encounters is necessary to counter this problematic ‘norm’ that assumes once agreement has been given, women are powerless to stop the activity or to change their mind. What is more important, however, is that we promote a culture of consent, one where consensual sexual activity is celebrated more generally rather than compliance or ‘giving in’ to requests (or demands) for sexual attention. This is something that can be embraced by individuals regardless of their gender identity – it is important not to overlook victims of violence who do no identify as women (e.g. men, transgender, intersex and non-binary individuals). Unfortunately, too often sexual coercion is sexualized, with the titillation stemming more from non-consent than from violence. Revenge rape websites, where individuals post pictures or videos of sex with ex-partners without their knowledge or consent is one such example. The sexual bullying of women by taking pictures without their consent (such as the recent photo hacking scandal, or ‘creep shots’) to further blackmail or humiliate victims is another.

Interviewer: With regard the Ched Evans case, some have said that as he’s served his time he should be allowed to get on with his life, how successful is rehabilitation in rapists? Jem: ‘Getting on with their life’ after a conviction or an allegation of rape is a difficult topic as it often comes with a number of misconceptions. The first issue is that the vast majority of rapists will not be convicted of rape, statistics hover around the 5% mark – an extremely low and unacceptable number. So, what is often seen after a conviction or an allegation of rape is a refusal from those accused to consider their actions as coercive. This can be because it is viewed as a ‘norm’ in society (e.g. ‘but everyone does it’). This scenario means that men who rape can feel victimized, simply because they have been singled out and punished for a behaviour that they know (or assume) others do and get away with. What they fail to see is that the injustice is not that they were convicted, but that most sexually coercive individuals are not. Framing rape as the ‘norm’, as some form of ‘seduction’, or as a ‘joke’ only makes it more jarring and unbelievable when someone is finally caught. We can see this with the Ched Evans case, where a conviction was successful and he has made apologies to the victim, but he maintains his innocence. For rehabilitation or genuine change to occur, perpetrators must first acknowledge that their actions were coercive, or they are at risk of repeating them. A culture that promotes consent would send a clear message that rape is not acceptable, and that it should never be considered ‘normal’.

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