After my last couple of responses to people asking this question last night I got a whole handful of additional questions describing various situations and asking the same. In the interest of addressing all of these questions and future questions of the same nature, I would instead like to provide some general statements and resources.
A great place to start this conversation is with RAINN’s Was I Raped? guide. This begins by clearly stating the legal definition or rape and sexual assault and then goes into some questions you might want to consider:
There are three main considerations in judging whether or not a sexual act is consensual (which means that both people are old enough to consent, have the capacity to consent, and agreed to the sexual contact) or is a crime.
1. Are the participants old enough to consent? Each state sets an “age of consent,” which is the minimum age someone must be to have sex. People below this age are considered children and cannot legally agree to have sex. In other words, even if the child or teenager says yes, the law says no.
In most states, the age of consent is 16 or 18. In some states, the age of consent varies according to the age difference between the participants. Generally, “I thought she was 18” is not considered a legal excuse — it’s up to you to make sure your partner is old enough to legally take part.
Because laws are different in every state, it is important to find out the law in your state. You can call your local crisis center or the National Sexual Assault Hotline at 1.800.656.HOPE to find out more about the laws in your state.
2. Do both people have the capacity to consent? States also define who has the mental and legal capacity to consent. Those with diminished capacity — for example, some people with disabilities, some elderly people and people who have been drugged or are unconscious — may not have the legal ability to agree to have sex.
These categories and definitions vary widely by state, so it is important to check the law in your state. You can call your local crisis center or the National Sexual Assault Hotline at 1.800.656.HOPE to find out more about the laws in your state.
3. Did both participants agree to take part? Did someone use physical force to make you have sexual contact with him/her? Has someone threatened you to make you have intercourse with them? If so, it is rape.
It doesn’t matter if you think your partner means yes, or if you’ve already started having sex — “No” also means “Stop.” If you proceed despite your partner’s expressed instruction to stop, you have not only violated basic codes of morality and decency, you may have also committed a crime under the laws of your state (check your state’s laws for specifics).
A lot of these questions seem to fall into that third point- did you consent to it? Since sometimes consent can seem like a gray area, it is just as important to discuss what isn’t consent as what is. Saying nothing is not consent. Coercion is not consent. “Maybe” or “I don’t know” is not consent. Wearing a revealing outfit is not consent. When you ask for consent, you want an enthusiastic yes or some variation of it that is freely given.
When there is not consent, it is rape.
If you have any more questions about this, feel free to email me at firstname.lastname@example.org or to send your question to me via Tumblr.
Here are some additional resources that I would encourage anyone with questions about rape, sexual assault, sexual abuse, or consent to take a look at: