Do you have to say NO for it to be rape?

I was talking with some family members a while back about rape and something scary became apparent. Most people think that there is a grey area between yes and no, and that sometimes even when you say no, people are still sympathetic to the person who continues to have sex with you anyway. We were talking about a heterosexual relationship between a boy and girl, where the one partner wants to have sex and the other doesn’t, but they do have sex. I said — it’s rape. They said — it’s sex. I became alarmed.

The difficult thing is that in these situations it’s just the two of you. There is nobody recording to hear you say yes every time you say sex, and sometimes people don’t say yes or no. Sometimes sex is not as clinical as “can I insert my penis into your vagina” and a response of yes making it consensual and a response of no making it rape. Sometimes people don’t talk at all, but that doesn’t absolve them for raping someone. Their argument was that in these situations there is a grey area — that sometimes a girl might say no and mean yes. Or that sometimes the girl might lie their passively. Or that if a girl didn’t take the action to extricate herself, then she shouldn’t cry rape the next morning. There argument was that the woman was not the one without the power. I became more alarmed.

I could hear the growing power of rapists and their defence in my ears as though they were all shouting “we’ll get off”. Ordinary South Africans feel that there is this space between yes and no. That sometimes a no is a yes, and that sometimes a silence is a yes, and that if a woman doesn’t fight to the death to get away, she is somehow at fault. We are failing rape survivors by thinking these things.

If you have sex with someone and they a) say no OR b) push you away OR c) try to close their legs or twist their body away from you OR d) do not participate in the sexual act you should STOP what you are doing, brave the awkwardness and ASK — is everything ok? Do you still want to have sex?
Just because a person says no but does not kick and scream and run away, OR if a person does kick, and scream and tries to run away and fails and thus is there and has sex, this does not mean that that person has consented to having sex, and doesn’t mean that s/he has not been raped, and s/he is entitled to lay a charge of rape against you whether you have never had sex before or you have had sex a thousand times.

Rape is a complex charge to lay against someone. It is made all the more complex in situations where you have had sex with the person you accuse of raping you before. It is made more complex by the number of men and women who use physical cues to indicate when they do and don’t want sex, rather than saying “yes” or “no”.

But I think it’s pretty clear when the sex you’re having is something that you want to be involved in or not, and that someone doesn’t always have to say NO for you to know that you’re raping them.