Legal Rape + Affirmative Consent

By Alden Wicker

This issue of rape has been so much on my mind lately.

How could it not, with the Rolling Stone “UVA Rape” story, and the ensuing melee when Rolling Stone’s reporting was deemed faulty. There’s the whole issue of Cosby going on a decades-long rape spree because all of his victims were too scared to speak out. And then there’s Lena Dunham, who revealed how a college guy had such violent sex with her while she was drunk and high that he injured her. She has since incurred the wrath of the internet, because what happened couldn’t have been rape. It was just a big mistake that she brought on herself, right?

This is why women can’t talk about rape.

I read stories about rape, and I want to think that I’m the kind of woman who would scream. I would scream during and I would scream after. I would go to the police and yell and demand justice. And fuck the trolls who don’t believe me. Because I need to stand up for myself and the other women he might rape.

But there are two problems with this pet theory of mine: A man had sex with me against my will. And I let it go.

The Grey Area

A little over four years ago I went on a few dates with a guy who had attended my same college. We had consensual sex a few times. Then I decided he wasn’t right for me. He worked in finance and I don’t really like that whole culture (entitled takers, from what I’ve experienced). He wasn’t very good in bed (more on that later). Also, his plan was to buy a big house in New Jersey and have his wife stay at home with the kids, while my plan was to find a partner in crime who would do creative things with me in the city. So I broke it off.

About a year after that in March of 2012, I was out with a girlfriend when he texted me. I invited him to join us for a drink. By the time my friend left, I was pretty tipsy, and a one night stand sounded like a pretty good idea. So I invited him back to my apartment, a studio I lived in by myself.

It started out normally enough, if I remember correctly. We made out. Most of my clothes came off. At some point I started to lose enthusiasm. I remembered why I didn’t like this guy. He was moving so quickly, and I fought with my emotions internally so long (Just stop him. You’re better than this. But that’s rude. Come on, you’re not even going to enjoy it. But after I stop him, then what? It’s going to be awkward) that he had a condom on and he was halfway inside me when I decided I didn’t want to go through with it.


One of my sorority sisters and I have discussed this type of moment. It’s when you’ve been flirting with a guy, and you’ve even gone home with him. You’ve been drinking. Often, you’re really tired, just want a bed to get into and pass out in, and his bed is the closest. Sometimes, for just five minutes you thought hooking up with him was a good idea. But as the moment gets closer, you come to realize that he’s not respectful, or you don’t know him well enough, or you’re wondering how you got to this moment and realize he’s been sort of tricking and pushing you towards hooking up with him. You complied with each small step until you’re in his home.

You know for sure that you actually don’t want to hook up with him. But you also know from experience that trying to extricate yourself from the situation will not work. Have you tried? There is a (misguided, immature, ridiculous, simplistic) understanding that once you step inside the front door of a private residence with a man, you are committed to following through with a hookup. Some orgasm on his part has to be had. If you do not follow through–actually, “follow through” is too active of a word; let’s go with accept his advances–then he will make your life miserable. He will not agree to this new state of affairs. He will turn cold, or question you, be utterly disappointed in you, pressure you, berate you, and/or insult you. He will not drive you home. He will agree to “just cuddle,” then snake his hands into your crevices right when you’re falling asleep, hoping you’ve changed your mind. Repeatedly.

Some of my friends even had a “funny” name for a ploy they used to get out of this situation in college, called the Naked Starfish. 1. Get half naked. 2. Ask for a glass of water. 3. While he’s gone, pass out with your arms and legs spread out over the bed so as to take up as much room as possible. 4. Do not let him shake you awake. The hope is that he gives up, only curses you out a bit, and then sleeps on the couch.

Really. It was easier to pretend to be passed out drunk then to say, “no.” “No,” didn’t (doesn’t) work. “No” doesn’t mean no. “No” is just the start of a long, hard negotiation, during which he will use every strategy at his disposal (his poor blue balls, lies, sneaky tactics, begging, subtle insults, ignoring your request in the hopes you give up) to win concessions from you, ranging from a blow job up to sex itself. (This story is a perfect illustration of this concept.) In the end, it’s so much easier just to have the damn sex, than to feel like the worst human being on the planet in his eyes, crawl out of that warm bed, put on your painful high heels, find a cab, and stay awake during the journey home. Not that I haven’t stormed out several times from apartments after repeatedly saying, “I said no and I fucking mean it.”

Right, what rape culture?

Back to the story. 

I knew all this. But I made the decision that I wasn’t going to go through with it just because it was the easier choice. I was a grownup now. I was no longer a 19-year-old drunk on Kool-Aid and grain alcohol, hoping for the approval of a frat guy, and too tired to wait outside in the cold for the campus drunk bus. I had some respect for myself. I had a job, and my own apartment for which I was paying rent. And he was in my home. I was in charge. At least, I thought I was.

So I told him I didn’t want to do it. My memory is a bit fuzzy, but I just found an email I wrote to my best girlfriend the next day (I found it by searching in my inbox for “you have options”:

so we’re out, and we have a good time, whatever, and my friend leaves to go back to her hotel and we go back to my apartment. we’re hooking up and i’m not into it at all, and so i’m like, “hey, i don’t really want to do this.” but he kicks it up a notch and gets more into it and is like, “yes you do.” so i get a little alarmed and i’m like, “____, please don’t. i’m serious, i don’t want to do this.” and he grabs my wrists and he’s like “yeah you do!” and at that point I start freaking out and i’m like “no, please stop. i don’t want to do this.” and i start crying and he’s got his fingers inside me and i’m hitting him and trying to fight him off with all my strength but i can’t and i’m saying to him, “this isn’t a joke! i mean it! please stop! ___, you‘re scaring me!” but he’s still holding me down and he’s like “you want this” and he’s got his penis inside me and i’m crying and trying to think of what to say to get him off of me. and finally i start screaming, “if you don’t get the fuck off me i’m going to call the police!” and he finally stops and he’s like, “what’s wrong?” and i burst into tears again and i’m like “get the FUCK OUT OF MY APARTMENT” but he didn’t leave until 15 minutes later because he wanted to talk about it and he said that he just misread the cues and he didn’t understand and since i’m such a sexual person and we had sex before and i invited him back to my apartment that it was all normal blah blah blah. and i was like “i was trying to figure out what the fuck to say to you to get you to understand that i didn’t want to have sex with you!”

i’m so confused. is he just an asshole or did he just think i’m such a slut that my saying no wasn’t a possibility? he just didn’t get it. i was trying with all my mental and physical power to get him off of me and nothign worked.

What options?

Of course, my friend wrote back giving me support and telling me, “You have options.”

But did I really? It seemed like he genuinely thought that my saying, “no,” was an elaborate rape fantasy–with some truly fantastic acting on my part including real tears–that I wanted him to help me play out. No matter that we never discussed this rape fantasy, or established parameters, or even decided on a safe word.

And, I am not a perfect rape victim. I had had sex with him before. Once I had asked him to hold my wrists during sex, which he took as evidence that I had a rape fantasy, I guess. I invited him back to my apartment. I gave him all the signals that I wasn’t opposed to sex before I withdrew consent. (Not like I was enthusiastic about it, but he never really slowed down to notice my listless behavior.) The only thing I did “right” in my rape-ish situation was to say “No, I don’t want this!” and fight back. Did everything I do before negate the power of that no?

Legally, he did nothing wrong. This article helpfully outlines the legal status of sex after a woman has withdrawn consent: Illinois is the only state that has a law on the books stating that you can withdraw consent during sex. If this had happened in Maryland, a recent-ish court ruling would have given me some legal leeway to bring the police in. If I was a student in the SUNY college system, I could have reported him. If it had happened in North Carolina, I was definitely out of luck because according to the courts, once you say yes there, anything goes. But this is in New York, where this issue hasn’t been decided yet. In a culture where you would have to be a sober virgin with video evidence of your rape to convict a rapist, what good would it do to tell the police that:

– A well-educated, white, employed young man
– Who I had had sex with before
– And who I had invited back to my apartment
– And who had gotten tacit consent with me 15 minutes before

… had raped me? No, not going to happen. There is no way. All the evidence points to me wanting it, then crying rape because … I don’t know. Why do trolls say women cry rape? Because I wanted money, or I’m hysterical, or I’m ashamed of having sex with him. None of which apply to me. I own my sexuality, thank you very much. I’m completely sane. And I don’t want his money. But attempt to bring this guy to trial, and I will have a hard time proving that I changed my mind. (Hmm, perhaps I could bring in my neighbors to testify, who surely heard me screaming through the thin walls.) Plus, I’m sure his lawyer would do a fine job of painting me as a slut.

So of course, I stayed quiet and told no one except a few best friends who know him, and my current boyfriend. I never went to the police, nor did I go public with what happened.

Maybe it was just a learning experience, as the Princeton Mom has so helpfully pointed out. I learned that I should never go to a private place with a man unless I am completely sober and positively sure that I want to have sex with him, because I am not allowed to change my mind or only go halfway. I learned that I am not strong enough to push a man off of me (especially if said man was a wrestler in college). I learned that a guy who I thought was “nice” is very capable of hurting me. And I learned that enjoying sex gives a man permission to do whatever he wants to me, because of course I must want it all.

If a Rape Doesn’t Traumatize, Will Anyone Hear It?

In those few minutes, I was terrified. I had completely lost control of the situation. It seemed like there was nothing I could do to keep what was happening from happening. I was dangling over a precipice of hurt and pain, my fingernails clawed into the cliff, scrabbling for purchase. The only thing that saved me was my invocation of The Police. Afterward, for the next hour I was sobbing hysterically, angry, frustrated, ashamed. In the next few days I was confused, hurt, and scared.

Then it faded away, and I stopped thinking about it much, or really at all. When I think about it today, it falls in with a long list of insulting and degrading experiences I have had as a woman on this planet. It’s slots right in the file between the drug addict in Midtown who told me he wanted to clean up my ass and then stick a dick in it, and the guy who screamed at me at a party for ignoring his advances.

Any person who is close to me will tell you I do not traumatize easily. Insults, criticism, bad experiences all just sort of slide off my back while I’m off to the next thing. I usually take stock of what happened, check for injuries, think about what I could have done differently, and then box it up and store it in the basement. And I did a really good job of explaining this one away.

I told my friend that it was a misunderstanding. That he was just a huge, overenthusiastic doofus. With all my raging and screaming and crying, he must have learned his lesson, right? He wouldn’t do it again, of course. That would mean he really was a rapist.

Maybe. A female friend of mine told me a few months ago that when she’s in social, public situations with him, he’s always “handsy/gropey” with her. She doesn’t want to be around him. Now that I think about it, I remember that time in college when he lunged toward me and started aggressively making out with me before I pushed him away and reminded him that I was involved with his best friend, so maybe he shouldn’t do that.

It reminds me of Jian Gomeshi, the radio host who everyone knew was inappropriate with women. Underneath that lay a whole string of rapes.

So what does the evidence say about the dude who I invited over that night?

1. He doesn’t respect a woman’s right to say no.

2. In fact, a woman saying no turns him on even more.

3. Right now I only know one woman who spends time with him in social situations, and she feels like he doesn’t respect women’s physical space in public.

4.  And he doesn’t even respect the idea that you shouldn’t try to hook up with the girl your friend is hooking up with.

Both I and that other woman are the kind of people that speak our minds. (I did speak my mind, and he “misinterpreted” those signals.) So what are the chances that he’s raped a girl that is too scared, cowed, or shy to say, “Get the fuck off of me you pig”? Maybe a female below him who works at his firm. Maybe a nice girl right out of college who he took to an expensive dinner. I just don’t know.

The first time he lunged at me in a cab on the way back from a benefit, I was actually flattered. Flattered and amused. This guy finds me so attractive and sexy that he can’t control himself! I thought it was cool the way he used his wrestling skills to pick me up and placed me down in different positions. But you can imagine that the sex was … not good. Frenetic, chaotic. It was like me the person wasn’t there, it was just me the body with a vagina.

Now I know better. Since then I have experienced a man being so attracted to me, finding me so sexy, that he was compelled to ask me if he could have sex with me. There is such a gulf of understanding and experience between my 22-year-old self who was flattered at a grown man humping her like a dog, and my late-twenties self who found herself with a man who respected me, respected my agency, wanted to make sure that I was enjoying everything, and checked often that he wasn’t crossing any boundaries or hurting me.

This thing that happened, this rape and/or giant mistake, it felt more like a warning than a trauma. It felt like the difference between a man punching me in the face and him punching the wall next to me. It felt like the experience was just telling me, See? Rape can happen to you. You are powerless. You are not immune. You are a woman. Play by our rules, or else. 

Should I Tell?

I wish I could describe him in a way that simultaneously made sure no woman would ever be alone with him in a cab again, yet left things hazy enough so that I wouldn’t have the collective wrath of his frat brothers and lawyer upon me.

When I unpack my feelings around sharing this story and the possibility of writing his name on the internet, the first thing that rises in my breast is the need to be fair. Is it fair to link his name via Google to his act? Which is crazy, because what he did was the opposite of fair. It was cruel. It was disrespectful.

And then there is the old trope lurking there of trashy versus ladylike. The lady doesn’t cry rape because she would never find herself in this situation, this area of grey. It’s only the trashy ones that make a fuss. Or so the little voice leftover from college says in my head. A little part of me nags, Is that really necessary? Do you really want to cause trouble? Part of me thinks you should either go to the police, or forget about it and move on. And I know that many people believe that it’s more important to protect a man and his reputation, than to protect me or the other women he has and will grope.

So I’m not going to tell. I won’t put his name in this article. I won’t say who he worked for at the time. I won’t give away the one physical aspect to him that would make it obvious who he is.

Just Ask.

I know this is a hard story for some people in my life to read, and for that I am sorry. I know that some people will blame me for what happened, because I’m the kind of woman who–gasp–enjoys sex, thinks that casual sex can be healthy and fun, and is OK with the concept of a one night stand. (Which would put me in with about 51% of the population of women.)

But I’m not just sharing this story for kicks. I want to accomplish a few things with this article. I want to educate men and women on this idea of withdrawing consent during sex. I want to drive home the point that we should switch to affirmative consent, not passive consent. I want men to ask if women want it, listen to the answer, and respect that answer. I want sex to stop being a battle of women against men, where women are always on the defense and men are on the offense. I want sexual encounters to stop feeling like a battle lost, and more like we are on the same side.

I want sex to stop being a battle of women against men, where women are always on the defense and men are on the offense.

If he had asked me at any point before penetration if I wanted to have sex with him, it would have given me space to say, “Actually, I don’t think us hooking up again is a good idea.” If he had asked me at any point in our multiple dates if I had ever thought about a rape fantasy, I would have said, “No, that’s not really my thing.” If he had asked me in the cab on the way back to my place if he could hold me down and not let me escape while he fucked me, I would have said, “Maybe, but we need a safe word if you want to do that.”

He never asked me anything. He never wanted to know. He was just on a mission to fuck a girl that he thought had a rape fantasy. My opinion or safety wasn’t relevant.

His reputation or opinion of this article shouldn’t be relevant either. But I’m going to do the good girl thing and protect it. I don’t have enough money to defend myself in a lawsuit against him and his considerable resources.

But if you’re reading this and you are saying, “I know who that is and he did that to me too,” you know where to find me.


About the Author

Alden is the founder and editor-in-chief of EcoCult, covering all things sustainable in NYC and beyond, including fashion, beauty, food, and events. She’s been published in Refinery29, EcoSalon, xoJane, Well+Good, Huffington Post Green, Narratively, LearnVest, Societé Perrier, and Greatist. She also runs a blog about electronic music with her boyfriend called Under the Sound, and is a co-founder of the Ethical Writers Coalition. Check her out on Twitter at @AldenWicker and Instagram @EcoCult


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