How come sexual assault is one of hardest crime to prosecute vs every other crime?
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It’s hard to prove. Hard to get evidence that’ll hold up in court. There’s so much gray area.
Consent is the variable. Consent is often not explicitly communicated; nor is much else, actually. Much of the communication in sexual encounters is body language. Not opining on whether that should be the case, that just is the case most of the time.
Also, consent is not a one-time contractual agreement that fits nicely into a legal framework. It’s a continuous act. Consent is upheld until it is withdrawn. A person could withdraw their consent mid-coitus, and then what? Is the other person to blame for keeping going if that is not communicated? What if it’s communicated but not very clearly?
Furthermore, a person could consent to one type of sexual act, but not another. How is that boundary defined? Can one honestly expect the majority of people to actually do this, to know how to do this, when most people’s communication skills around intimacy are already so poor? I do a bit of this at age 29 with prospective partners, but I have a lot of experience… What about eighteen year olds hooking up at a party?
Finally, most sexual encounters happen in private. Nobody’s recording anything, there are no witnesses, so it’s he said she said. #MeToo asks to “believe women,” which is great for the public because often times people wrongly default to disbelieving women’s stories. However, a court of law can’t just “believe” someone without evidence.
So anecdotal evidence from individual testimonies is often the best thing the court has to go on. And it’s just not enough. Similar testimonies from different people of repeat offenses can make a more compelling case, but even then, it’s all anecdotal.
This becomes especially problematic with high profile cases. For any random man, it’s ridiculous to think that 6 women from his past would team up to make up sexual assault stories to frame him. But for a public official with shady opponents who have multimillion dollar budgets, or for a celebrity… it’s actually quite reasonable to think there could be a conspiracy.
So… I don’t think we’re going to have a world where people record their sex acts in case they need legal protection. I don’t think we’ll have “consent forms” or something you can tap on your phone to say you’re okay with fucking missionary but not doggystyle and no oral. I could see dating apps doing something like that for hookups, but I think that would be a huge, dystopian overreach into people’s private lives and frankly they probably wouldn’t want to take on the liability anyway.
I do think we should continue to normalize asking for consent, reaffirming consent, communicating about boundaries and expectations. That’s not a legal solution, but I think it will go a LONG WAY.
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