Sex Contracts and Withdrawing Consent

Via Twisty, this story from Time Magazine (bolded emphasis mine):

A Time Limit on Rape

If a woman consents to having sex with a man but then during intercourse says no, and the man continues, is it rape?

The answer depends on where you live. The highest courts of seven states, including Connecticut and Kansas, have ruled that a woman may withdraw her consent at any time, and if the man doesn’t stop, he is committing rape. Illinois has become the first state to pass legislation giving a woman that right to change her mind. But in Maryland–as well as in North Carolina–when a woman says yes, she can’t take it back once sex has begun–or, at least, she can’t call the act rape.

Much of the fine detail in the case concerns what is a reasonable timeframe for complying with the request to stop during the act of sexual penetration, which is not an entirely unreasonable thing to debate. More unreasonable, and frankly offensive, is the idea expressed by the Maryland appellate court (in overturning an earlier guilty verdict hinging on withdrawal of consent) by describing their view of the “essence” of rape: once penetration has been consented to, whatever happens afterwards, consensual or not, can’t be called rape.

It was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male’s interest in a woman’s sexual and reproductive functions, any further injury was considered to be less consequential. The damage was done.

It’s important to note that the appellate court still regards continued penetration after consent is withdrawn as a from of sexual assault, but according to the law sexual assault is considered a much lesser offense, so having rape charges dropped down to sexual assault is a big difference in possible sentence. Now, I get that in legal precedent penetration is the sine qua non of rape, but is that still an adequate standard? Surely in general understanding, rape is now regarded as sex without consent, not just the initial penetration without consent. Isn’t precedent in the law considered to be an evolving standard, not a static or stagnant one?

Of course, some people don’t get consent properly anyway: the idea that even if someone intends to have sex, and begins to have sex, they really should have the right to say “stop” at any time and have their withdrawal of consent respected and complied with is beyond them.

Mel Feit, executive director of the National Center for Men, a male-advocacy group based in Old Bethpage, N.Y., says biology is a factor. “At a certain point during arousal, we don’t have complete control over our ability to stop,” he says. “To equate that with brutal, violent rape weakens the whole concept of rape.” His group has created a “consensual sex contract” to be signed before intercourse

As Twisty’s commentors point out in various ways, such a sex contract wouldn’t mean that consent could not be withdrawn if circumstances during sex change to anything not stipulated in the contract, such as one partner feeling pain, fatigue, nausea or even some inexplicable sudden loss of desire (possibly due to the other partner revealing themselves as the sort of arsehat who belongs to the National Center for Men).

Jess2‘s comment at IBTPsums it up:

Pick any other situation”“ someone refusing to let go of your hand during a handshake, someone you invited into your home refusing to leave, a caregiver refusing to give back the child you freely put in their care”¦ anyone can plainly see in those situations that it is perfectly possible to withdraw consent and expect the other party to comply.

I’m not entirely against the idea of a properly negotiated sex contract prior to sex taking place. People in general should definitely talk more about their expectations of sexual relations before actually engaging in them, despite that being so “unromantic”. How else do couples share their sex-risk history, negotiate responsibility for contraception, and set boundaries about which sex acts are in or out (so to speak)?

But the idea that a sex contract might be seen as negating the right of a person to decide at any time that they want their partner to stop having sex with them: I’ll always be against that.

Related:
Obstreperal Lobe Engaged
Consensual Sex Contract vs. Consexual Creed