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The hysterical rape debate

By Justin Mackie

In May this year Kenneth Clark, the UK justice secretary, while defending a government proposal to half the sentences of offenders who plead guilty from the outset, was drawn unwittingly into the rape debate. The proposal he was defending did not specifically relate to sexual offences but the emotive allure of linking the story to rape was too strong for the British media to resist. During his appearance on BBC radio Five Live, the justice secretary refused to agree with the proposition that “rape is rape”.

It would difficult to exaggerate the hysteria which ensued. With self-righteous indignation the leader of the opposition, Ed Miliband, called for Clark’s immediate resignation while sanctimonious columnists, of every persuasion, spilled pages of ink reminding us all that rape is rape and that it is a very serious crime indeed!

This hysterical response was triggered by Clark (perhaps a little clumsily) making the obvious, and self-evidently true point that some rapes are more serious than others. What he hadn’t understood is that in this climate of rape hysteria this is exactly the kind of point you are not allowed to make. Unequivocal condemnation is all that is permitted. Anything less (for example pointing out nuisances in the debate or acknowledging its complexity) is construed as insensitive and unacceptable (or even, in extreme instances, as tacitly condoning rape). This is frankly ridiculous and hope (I suspect in vain) that this contribution will be spared these vulgar aspersions.

As an example of what happens when people lose sight of the complexities around these issues look no further than the catastrophically embarrassing Sexual Offence Prevention Policy of Antioch College, Ohio published in 1993. Attracting international attention at the time this policy required students, among other things, “to obtain specific verbal consent to each new level of physical and/or sexual contact/conduct”. With what I can only imagine is the textual equivalent of trying to keep a straight face Mark Cowling, in his book Making Sense of Sexual Consent produces a table detailing seven questions one would need to ask (following the Antioch code) to lead to consensual breast kissing:

1. May I touch your breast through your clothes?
2. May I remove your overcoat?
3. May I unbutton the top two buttons of your blouse?
4. May I put my hand inside your bra?
5. May I take off your blouse?
6. May I take off your bra?
7. May I kiss your breasts?

The Antioch policy manages to be both funny and depressing at the same time. It is funny because it is so incongruous and absurd. And it is depressing because it attempts to reduce something as natural and beautiful as sexual intimacy into a kind of crass checklist. But more importantly it mischaracterises the nature of sexual interaction. Sex (and I use the term here to include both actual sexual intercourse and the prelude to it) is an ongoing, organic and (thank the heavens!) mostly silent negotiation. Boundaries aren’t negotiated up front but are rather tested moment to moment. Sex is not, and cannot be reduced to a series of definable stages with permission sought and granted for each one in turn. The boundaries that exist are often uncovered by stepping over them (ie they are discovered precisely because they are breached).

The Antioch Policy also embodies a myth, prevalent in the context of sexual offences, which is that sexual participants always know their own minds. That is, they engage in the behaviour either willingly or unwillingly. There is either consent or there is no consent. Quite why this has become received wisdom is difficult to fathom. I suspect it is the kind of nuance which people, in this climate of rape hysteria, have chosen to shut out of the minds. There is nothing odd about the idea of feeling ambivalent or unsure about doing something. We often do things without knowing our own minds. We might have an uneasy feeling about something which hasn’t quite yet crystallised into a full-blown objection. We might be indifferent about something happening and, depending on how it goes make up our minds about it after the fact. I don’t mean to suggest (although this does happen) that people are doing this deceitfully or fraudulently. I am merely pointing out that in all areas of our lives our attitude to certain activities can be inherently ambivalent — our minds are not always fully made up. Why should sexual interactions be any different?

I suspect those who decry the recognition of certain kinds of “date rape” as “actual rape” have something like this objection at the back of their minds. That is, the aggrieved party, ambivalent at the time and feeling hurt or exposed or unhappy about what happened decides, ex post facto, that he did not consent.

Another myth, peddled by campaigners like Jennifer Thorpe (a regular contributor to the Mail & Guardian’s Thought Leader), is the slogan “no means no”. This is always presented as some kind of incontrovertible truth but is patently false. It is trite that “no” often does mean no but it can also mean “not now”, “not just yet”, “not like that”, “go slower”, “keep doing what you are doing but don’t escalate it”, “I’ll need more persuading” (pause for sharp intake of breath) and many more. “No” can have countless shades of meaning depending on the circumstances and it is unhelpful oversimplifying things in this way. Perhaps anti-rape campaigners are of the view that the general public is stupid and needs a simple message to hold on to.

But whatever difficulties campaigners may have getting their tone right it is nothing compared to the difficulty legislatures face in making laws to regulate intimate human conduct. The law and intimacy make miserable bedfellows. Regulating the finer aspects of sexual conduct by promulgating legislation is like trying to pick a rose with a lawnmower. The result is not going to be very satisfactory. To take an example at random, if the sexual awakening of Laurie Lee under the wagon in Cider with Rosie were to take place in modern day South Africa both children could be charged under section 15 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32, 2007. To take something so exquisite, so beautiful and perfect in itself, and categorise it in this way is depressing to say the least.

The truth is sexual encounters (particularly ones on the fringes of legality) are often horrendously complicated. Sex may be messy, but the sexual negotiations can be even messier. Isn’t it time we acknowledge this instead of stifling the debate it in an unhelpful atmosphere of hysteria?

Justin Mackie is a final year law student at the University of Cape Town currently writing a research project on the meaning of consent in the context of sexual offences.


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  1. Haiwa Tigere Haiwa Tigere 6 September 2011

    Justin you got balls to say these things.
    The people here have been cowed by the hysteria they will shut you down soon enough.
    Whoopi Goldberg was promply shut up when she talked about “rape rape”. They will shut you up too.
    Watch out that research grant may be withdrawn. but hell you speak the truth

  2. Robard Robard 6 September 2011

    Couldn’t agree more, though there is something to be said for clear boundaries. The current hysteria can probably be traced back to the onset of sexual liberation and the decoupling of marriage and sex. In days of yore many men were pressured into marriage after having deflowered a virgin, but since females have lost the leverage of societal shaming they have increasingly resorted to spurious rape accusations.

  3. Khadeeja Khadeeja 6 September 2011

    I don’t understand how there is anything ‘hysterical’ about rape given that we are the number one country of rape crimes in the world.

    Complicating the judgements on rape with the nuances of sex is giving more ammunition to the rapist.

    And, yes, saying no should mean no. Otherwise how do we negotiate the plethora of non verbal cues and aspects of sex and intimacy you so delicately convey?

    The notion of want is tricky indeed but rape is straightforward and engaging in the ‘nuanced’ arguments doesn’t reduce a gruesome reality so far from hysteria.

  4. Judith Judith 6 September 2011

    I find your article pejorative and not at all appropriate to the debate on rape. You are calling the debate “hysterical” which firmly places you in the camp that believes that women do not know what they want. Given SA’s rape statistics, your comments do more harm than good.

  5. Chris Chris 6 September 2011

    I’m all for encouraging debate in such matters,however your article offers nothing to help victims of sexual violence. Rather, it reads more like an attempt to validate the vile, sexist excuses rapists often try to make to defend their criminal actions.

  6. Reasonable Reasonable 6 September 2011

    wouldn’t life be less complicated if people just had sex with the ONE they are married to?

  7. Thamsanqa Thamsanqa 6 September 2011

    I’m left more confused as to what rape is

  8. TumiM TumiM 6 September 2011

    Interesting… At most. You make one good point, sex is an incredibly complex thing… But, why on earth would anyone think its a good idea to reduce the sentence of someone who admits to rape outright? So one’s defense council might say ‘look, there’s all this evidence, I would advise that you confess, that way u get a reduced sentence?’ Whichever ‘lawnmower’ you use, there will be a margin of error… I know that I, would much rather err on the side of justice for those who have been violated, than to potentially create a loophole for sexual offenders. The bulk of women already don’t report violations, especially by their partners! You can have an intellectual discussion about beautiful child sex (in the climate of hiv and children who are parents); and little teasing games between two undecided adults all you like… But the fact remains – the issue of relational power and its impact on the validity of ‘consent’ is even more complex… This is why we MUST be simplistic in our approach to deal with sexual violence. Not just with potential perpetrators. But also with potential victims. NO MUST MEAN NO.

  9. Morena Morena 6 September 2011

    This is a better reasoned article than Justice Mogoeng’s summarised version published on these pages the other day. I do not buy into the whole comparative analysis suggestion of one rape being less severe than the other, for purposes of arriving at a suitable sentence, because in essence mitigating factors taken into account often have to do with the woman/girl (i.e. she wore panties and a se through nightie; she played around with her friends and at sweets; the man used a condom; she did not scream; she asked for taxi money afterwards; he took her home; he is her father, brother, friend, teacher, pastor; he only penetrated her with one finger; he has a small penis; he did not ejaculate). The thought of these and other outrageous facts being considered as mitigating factors is nauseating. The complexity in the evaluation of the evidence and the attribution of varying degrees of weight on the facts is self-created and points to an entrenched patriarchal attitude toward the rights and dignity of women in particular and the indifferent treatment of victims of sexual valance in general No means no until the woman says yes, not until she is made (forcefully) to say yes; and here force does not of necessity entail physical force or violence, duress and other forms of undue pressure would qualify.

  10. Morena Morena 6 September 2011

    I would not characterise people advocating for the protection against sexual violence and rape to be hysterical, unless of course we intend legalising or decriminalising some form of sexual violence.

  11. Jennifer Thorpe Jennifer Thorpe 6 September 2011

    Lets consider another example – you want to buy a car.

    Your first step is to look online to see what’s available. Second, you visit a dealership to look. Third, you test drive a car. Perhaps you even take the dealers card. Perhaps you even promise to call her back. Perhaps you go back, and this time they think it’s for real, you must want a car.

    But they ask you, do you want one? And you say: no.

    Or for example, you are going to a doctor for a check up. They test your breathing, your blood pressure, and then they tell you that they’d like to do a rectal exam. And you say: no.

    In both of these scenarios no could mean: not now, slow down, I need more persuading. But the base action is to respect the no. It is not to assume that you mean for them to continue.

    Sex is an interaction between two people, who need to respect each other’s yes and no’s for it to be consensual. If someone’s no is not respected, and if someone’s no is doubted but the other person doesn’t ask what they mean and instead continues, this is rape.

    There is no hysteria. With over 60000 reported incidents of rape last year, and probably at least five times unreported, I think my concern about the boundaries of consensual sex is valid.

  12. Thandinkosi Sibisi Thandinkosi Sibisi 6 September 2011

    Some claim to be “confused” (Thamsanqa above for example.)

    However I think you are making a point that was made in a book on “straight and crooked thinking”. Other books on “Applied Logic” also make the point that life is complex and in reality there is no fundamental difference between a “crook” and an “honest person”.Of course you cannot make that argument without encountering hostile reactions.Although no one would argue with a straight face that that you are “either tall or short”, many would argue forcefully that you are either a crook or an honest person.

    In the context of sex; “getting laid” (for want of a better expression) is about looks , touch , body language as well as all other forma of non -verbal and verbal “negotiation”.Indeed we hear a lot about “date rape”? However , I would imagine “date rape”(or spouse rape) does not involve a man holding a knife or gun to his girlfriend/wife and demanding “sex or else!!!”. It is more likely to involve subjecting the woman (it is usually women who are raped by men rather than the other way round)to subtle and not so subtle pressure to “consent” to sex (emotional blackmail, threats or even mild force).

    “Gang rape” by total strangers is a different matter altogether! As with all forms of human interaction , it is obvious that there are several shades of grey between so called “consensual sex” and “rape. Put differently “some rapes are worse than others”

  13. Josh Josh 6 September 2011

    And, I have a sneaking suspicion that Mr Mackie is about to be vilified and accused of being a “rape supporter” or some other equally ridiculous term.

    I for one would like to celebrate the author’s bravery in risking a thorough tongue-lashing to introduce a degree of common sense to this discussion. Bravo, sir.

    To those who intend on haranguing the author: Rape is always wrong. But lashing out at everyone in a debate who disagrees with you just classifies one is ignorant and small minded.

  14. kathryn kathryn 7 September 2011

    To say that it is a myth to say that ‘no means no’ is to do worse than tacitly condone rape, it is to encourage an attitude of forcing one’s own willful interpretation (and self) on the other. Slogans like ‘no means no’ are directed at those who do not take rape seriously — indeed, who regard it as ‘hysterical’ — in order to make them wake up and stop damaging lives.

    As for the Ken Clarke debacle — it was right that he came under fire for his remarks. Not only because he implied that not all rape was serious (he later apologised for a poor ‘choice of words’), but because he revealed himself to be ignorant of his own country’s laws regarding sexual offences — despite being the Justice Minister! Clarke declared that consensual sex between a 17 year old a 15 year old is classed as ‘rape’ by the law, when it is not. For more, see

  15. Isabella VD Westhuizen Isabella VD Westhuizen 7 September 2011

    A breath of fresh air what wonderful clear thinking. Stand back for the reams of moral outrage. Modern liberals can tolerate anything except a contrary opinion. Jennifer will be in full cry

  16. Isabella VD Westhuizen Isabella VD Westhuizen 7 September 2011

    @ Reasonable
    According to Jennifer if you walk half naked through the Point you are not asking to be raped and a man cannot have sex with his wife who has a headache as that is rape.

  17. Sharon Sharon 7 September 2011

    A brave piece of writing-I suggest you watch your back. There will be a long queue of people waiting to put a knife in it.I share your concern about ambivalence turning to lack of consent in the cold hard light of the morning after. I have also often wondered if we should consider concealing the identity of the alleged rapist during the trail/investigation? After all, the stigma of being accused of rape is for life, even if you are acquitted.

  18. Dan Dan 7 September 2011

    Sadly you are quite right. It’s not only hysterical, it’s moved over into the truly surreal. We now have supposed feminists going against the notion that women are free, thinking adults capable of making their own choices and accepting the consequences thereof. No, now they must be able to change their minds afterward. They must be able to use intoxication as an excuse. Some have even suggested you should get consent in writing. You’d think it was something from Monty Python if they weren’t clearly deadly serious. That is the level of disdain these people have for women and the infantile level of understanding they have for the intricacies of human interaction.

    You’ll also notice a very sexist undertone to all this because the rules all only apply to whether a woman has given consent, not the reverse.

    The simple reality is that what is called date rape is almost impossible to prove. And it will remain so as long as we maintain a sensible adult approach to the law, i.e. that someone is innocent until proven guilty and that strong evidence must be provided to prove guilt. Sorry, but the word only of the alleged victim is not sufficient. Allowing that alone is a very dangerous road to go down.

    Rape does happen in marriage. Violent rapes happened regardless of whether people supposedly only had sex within marriage (more a myth than reality).

  19. Arthas Arthas 7 September 2011

    @Isabella: “and a man cannot have sex with his wife who has a headache as that is rape.”

    Maybe you can direct us to where she said this? Anyway, if a wife says no, and her husband goes ahead when she isn’t consenting, then you meet the legal requirements for rape: intentional unlawful sexual intercourse with a woman without her consent.

  20. Khadeeja Khadeeja 7 September 2011


    Nobody ever asks for rape.

    And yes, a man cannot force his wife to have sex if she doesn’t want to.

    Saying anything else is a violation of basic human rights.

    Last time I checked, this double standard of asking for rape only applied to women.

  21. Khadeeja Khadeeja 7 September 2011

    Oh and also Isabella- as much as you would like to believe that this article is the “contrary opinion” it is the type of opinion used to inform the mindset of the rapists who rape women once every 17 seconds in South Africa.

    So there is very little “contrary” about suggesting that no doesn’t mean no.

    A woman should be free to make decisions over her body without having to explain it to anybody. So should men. What type of society do we live in where you can say that certain actions give license to rape?

  22. Isabella VD Westhuizen Isabella VD Westhuizen 7 September 2011

    Violence against women is real. I see that every weekend. It is usually women in the most vulnerable parts of society who bear the brunt of it. So Jennifer has a valid concern. However a few posters have hit the nail on the head. Modern feminism in making sex a matter of lifestyle choice and removing the pre-existing social constraints have unwittingly exposed women kind to even more sexual violence.
    Listen to Emminem or Snoop Dog. Fifty years ago when the bounds of morality were more defined such misogony would have been unthinkable yet now it is run of the mill. In fact Emminem won some awards for thsi and is regarded as a significant cultural icon. So who is to blame.
    I would assume by the time a young man has his fingers inside a young girl’s blouse or his penis in her mouth then it is a bit late to say oh on second thoughts I don’t wish to have penetrative vaginal sex with you at this moment in time. Get real.

  23. MLH MLH 7 September 2011

    I like the idea of the seven questions.
    Among the young and inexperienced, there will always be some who don’t know exactly what to expect; how can they know what they are agreeing (or not) to? For some at least, the ritual of seven questions could cool their misguided ardour.
    Experience with a sweet, gentle man is also unlikely to set anyone up to understand the lusty, selfish behaviour of someone far different.
    Quite honestly, do many of us really know to what we are disagreeing or agreeing? Women fall in love and marry men who only later turn into obsessive, jealous tyrants who aim to punish and humiliate. At what point in the relationship must the woman say ‘no’ to be taken seriously? At what point in some encounters does sex become rape?
    And were anyone holding a knife to my throat, with a few onlookers goading him on, forgive me if I failed to say clearly to each, as he took his turn: ‘No’.
    I agree with all Jennifer Thorpe said. It simplifies the issues, but if anyone can write the text book on this, I’m sure we could all learn from it.

  24. MLH MLH 7 September 2011

    But then, I’m all for Isabella’s points of view!

  25. Robard Robard 7 September 2011

    Surely there is a case to be made for distinguishing between stranger rape, date rape and rape in marriage? The argument about boundaries only really applies to so-called date rape, and the figure of 60 000 rape cases a year is rather meaningless unless one can make such a distinction.

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