by BETTINA ARNDT – HOW quickly can men respond to a female red flag? That’s a critical issue highlighted by our new affirmative consent laws, where not only is consent required throughout sexual activity, but women can pull the plug whenever they feel like it.
And men are expected to snap to attention. Easier said than done, you might say. Well, that’s the issue.
- An alleged victim who revokes consent by saying “wait” is not being clear.
- What is “wait” supposed to mean?
- Surely, she could simply be saying, “slow down and wait for me”.
Most judges seem to assume that there’s no problem in expecting an immediate retreat from the male in response to the female revoking consent.
Never any consideration of whether he even noticed the red flag, or realised what it was, or whether she was waving it clearly, or maybe that he might have been frozen, rendered immobile due to surprise and shock.
FASCINATING
There’s a fascinating article on the legal issues at play here: “Consent Interruptus: Rape Law and Cases of Initial Consent,” by University of Western Australia Assistant Professor of Law Theodore Bennett.
He explains feminists resist any notion of allowing a reasonable time to withdraw after revoked consent, objecting that this “primal urge” argument perpetuates the myth of the unstoppable male who can’t be responsible for his rampant sexuality.
Kansas State University feminist scholar Lois Pineau says the claim that men don’t have immediate control is “factually unfounded”.
Not so fast, says an Australian expert in Human Factors and Ergonomics (HFE, which is the science of how humans behave and interact with each other in various environmental contexts.
I’ll call him “Anton Crabtree” – he’s disguising his identity due to academia’s tricky ideological climate.
Dr Crabtree also has expertise in aviation medicine, which is the area we usually associate with HFE, given its vital role in investigations of human error in situations like plane crashes.
He makes a compelling case that this type of examination of neuro-cognitive and physiological limitations also has a bearing on whether men crash and burn in the bedroom.
“The absence of the rigorous assessment and well-established scientific considerations of Human Factors analysis is a glaring omission to any claim of a fair system of justice for persons accused of sexual assault after revoked consent,” writes Dr Crabtree in the academic paper he is preparing.
I’m including a draft of this groundbreaking research article here and hope you will help circulate it and ensure it receives proper attention – particularly in legal circles where there is such a dire need for education to address the ongoing injustice occurring in these cases. This research should also have a place in the sexual consent courses being taught in our schools and universities.
UWA’s Bennett describes a case involving a blind man (a Mr Morton) who was charged with sexual assault after being set upon by three young girls. They pulled down his pants and a seven-year-old then commenced fellatio without his consent. The judge commented this “did not occur as the result of any voluntary act on his part.”
CONTINUE
Yet Morton was convicted because he failed to extract himself quickly enough. The law deemed that this was sexual assault because he “voluntarily” allowed the act to continue “for a few seconds” by not moving.
Morton testified that because of his impaired vision he tended to freeze in response to unexpected events.
Dr Crabtree comments that Morton’s experience “would be a genuinely startling event and freezing is a normal non-volitional reaction to startle. Additionally, even when he had recovered sufficiently to make a neuro-cognitive assessment, he would be justified in his fear of being bitten if he moved.”
Dr Crabtree points out the startle or freeze response is well recognised as an involuntary reaction to a sudden, sharp, unexpected stimulus.
This would apply not only to Morton’s dilemma but to any man enjoying a consensual sexual experience who is suddenly told the deal is off. He’s now having non-consensual sex. Which means rape. Which could mean prison.
Dr Crabtree explains that after the initial shock, it takes time for a man’s body to be capable of the much slower cognitive assessment and decision-making process required to process that troubling message, particularly when his body is subject to the sensory overload associated with high levels of sexual arousal.
He explains: “At high levels of sexual arousal, males are subject to sensory overload, where their psychological/physical resources are focused on their growing excitement. It may take very clear, repeated, and even forceful intervention for the male to perceive consent is being revoked.
UNREALISTIC
“It is unrealistic to assume a man at such a time is in full control of his neuro-cognitive processes, and physical responses.”
It is Dr Crabtree’s view that instantaneous withdrawal will rarely be possible in these circumstances.
He argues women should be required to make sure their message revoking consent is not only sent but received and understood – “even if this requires clear repeated and escalating intense words and actions”.
Yet Theodore Bennett’s summary of relevant case law mentions an alleged victim who revokes consent by saying, “wait”.
What’s that supposed to mean? Surely, she could simply be saying, “Slow down and wait for me”.
There’s also a 1988 case where the complainant says, “Quick, it’s them” when she hears the sound of her mother’s car. As Theodore Bennett explains this could mean “quickly finish” rather than “quickly withdraw”.
Note that there’s active discussion amongst American legal scholars regarding a legislative requirement that revoked consent must be effectively communicated, but no apparent interest in this issue in Australia’s feminist-led legal community.
REVOKED
It received absolutely no attention from the trial and appeal judges involved in Australia’s most famous revoked consent case, involving Kevin Ibbs, a Perth man who became known as the “30 Second Rapist” because he was convicted of sexual assault after continuing for 30 seconds after his partner revoked consent.
In fact, the whole thing was a set-up, with Ibbs’ wife arranging for her best friend to have sex with him and then revoking consent – to get him sent to prison, so that she could end up with the marital home.
It worked – Ibbs ended up in jail.
Eventually, his conviction was quashed, he was acquitted, and the two women were briefly imprisoned.
By then, Ibbs had lost his reputation, his business and all his assets. He eventually committed suicide.
The woman in this case revoked consent by announcing very late in the proceedings that it was “not right” because Ibbs’ wife was her best friend. In no way was this a clear statement that she was withdrawing consent.
Yet the judges fluffed around with pronouncements about the “reasonableness” of the 30 seconds he continued in the saddle, arguing Ibbs’ response should have been “nearly instantaneous”.
We can expect to see much more of this blatant injustice, as these affirmative consent laws really start to bite.
These are more examples of gross unfairness as we ignore the science on the male capacity to instantly pull the plug.PC
Thank you Bettina. A thought provoking article. I am in fear of my 20 year old son in this ridiculous world. But heres an interesting thought. What if the Male (?) withdrew consent midway through but the lady held him close with her legs. Is that rape , as defined? Just wondering if it goes both ways.
C’mon guys – it’s not that hard a problem to fix! Just record all intimate acts and store safely away for possible future court appearances. And remember to smile as if you’re enjoying it!
PS Don’t show your Mum!