The definition of "consent" is not, and has never been, "I am on the pill".
The definition of "consent" is not, and has never been, "I am on the pill".
Opinion
When a woman says no, that’s what she means. No further argument.
Boys will be boys, we are told time and time again. Men will act as red-blooded men do. Because, if we are to follow these illogical statements to their logical conclusions, men apparently cannot help but be slaves to their biology. Scott Kuggeleijn is a man. According to his lawyer, there is "nothing horrible" about the behaviour he this week stood trial for. Scott Kuggeleijn merely allegedly did what "100 men who have been in that situation" would apparently do when faced with a young woman who had allegedly repeatedly said no to having sex with him over a period of some hours, Philip Morgan QC argued in court. Presumably, they'd climb on top of her, pin her arms above her head, and penetrate her.
The alleged penetration was consensual, Morgan claimed. "Did you not recognise that telling him you were on the pill in those circumstances was you telling him you wanted to have sex with him?" he asked the young woman.
I've been on the pill for close to a decade, and not once, in any situation, with any person, at any time has my admission of the fact ever meant that I wanted to have sex with someone. Upon hearing Morgan's question I consulted the dictionary for reassurance. According to the Oxford English Dictionary, the definition of "consent" is not, and has never been, "I am on the pill".
While I had the dictionary open, I also double-checked the definition of the word "no". "Were you saying no but not meaning no?" Morgan asked the alleged victim, in a feat of bizarre cognitive obtuseness. One wonders what else no could possibly mean. Thankfully, the old Oxford was able to confirm once and for all that no does not mean yes.
It seems to me that Mr Morgan's client may have missed a few vital lessons along the pathway to adulthood. Perhaps, for example, that what a woman decides to wear is not a reflection of intention, and has no bearing on her right to agency over her own body. Unless we're going to argue that men are mindless animals - neurologically stunted evolutionary throwbacks - a woman dressing "provocatively", or as Kuggeleijn so charmingly put it, with her "breasts out", should have no impact upon a man's ability to ascertain whether or not she is consenting.
But, "she wasn't dressed conservatively like when she came to court on the first day," Kuggeleijn argued, as if that were supposed to mean something. The undercurrent may as well have been taken from a Mad Men episode.
Funnily enough, most people don't go to court, or to the dairy, or to work dressed in the kind of attire they would wear out to a party. But from Kuggeleijn's comparison, you'd imagine that the alleged victim's sartorial choice in the courthouse was an act of subterfuge. As if her situationally appropriate clothing were obscuring her true nature as the kind of woman who would have her "breasts out".
Northern Districts cricketer Scott Kuggeleijn (left) leaves the Hamilton District Court with his family. Photo / Mike Scott
I am also the kind of woman who has worn her "breasts out" on the odd night on the town. As we live in a free, modern, civilised democracy, I had, perhaps naively, been under the impression that what a woman chose to wear on a night out wouldn't be used in an attempt to smear her character if she ever found herself living through the abject hell of a rape case. It appears that I was wrong.
This week the court system sent a message to all Kiwi women that if they seek justice for a sex crime, they will be as much on trial as their alleged abuser. Their character will be called into question, and the crux of their case will eventually fall to the issue of whether, in some way, they were "asking for it". The defence lawyer driving the narrative down this murky, archaic path will merely be doing his job, and, somewhat disturbingly, will be developing a reputation along the way as one of the best in the game.
It is little wonder that so few women report their rapes. It is also profoundly unsurprising, when the meaning of "no" is openly questioned in our court of law, that one in five Kiwi women will be sexually assaulted in her lifetime. In my view, when alleged rapists and their counsels can argue that they didn't know whether the victim "meant" no, the justice system may as well hand perpetrators a get-out-of-jail-free card.
The system is broken. The bar simply must be set higher. Otherwise we will find ourselves living in a country where we must now teach our girls that when they say no, it must immediately be followed by "and I really mean it" so that their potential abusers won't be able to use the contested understanding of that clearly perplexing two-letter word as a justification for their actions.
Because, as our justice system has just reinforced, the onus is always on the woman - not the red-blooded man. The woman must not wear a short skirt or a low-cut top. She must not tell a man that she is on the pill. When she says no, she must make absolutely sure that the man knows that she means no, because her utterance of the word itself is not enough to be taken at face value. Who would possibly believe that a woman meant what she said?
What I want to know is this: when will the responsibility be on the man? When will we start teaching our boys that no means stop, cease, desist, don't, and that the absence of a no does not automatically mean yes? When will we make comprehensive sexuality education compulsory? When will we fix our justice system, so that the defence is required to build a case that doesn't centre on slut-shaming, victim-blaming or character assassination?
When will the brave women who report their rapes, despite the astronomical personal cost of doing so, get the kind of justice they deserve?
