Why a Court May Not Believe You Were Raped If You’re Into Rough Sex

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As many survivors of sexual violence will tell you, one of the hardest things about coming forward is the fear that no one will believe you. For every story we read of a case being thrown out, the victim’s character annihilated by an adversarial defence lawyer, there’s a woman sitting out there thinking, If they didn’t believe her, why would they believe me?

Earlier this week, a Spanish court acquitted a 21-year-old man who was accused of raping his 17-year-old ex-girlfriend on the grounds that the pair had previously engaged in consensual rough sex. According to local reports, the couple had practiced “sexual relations [that] involved insults, harassment, force and some level of violence that was accepted by both parties” during the course of their relationship.

After they broke up, the defendant invited the woman to his house where, court documents allege, “he held her by her wrists, pulled off her tights and penetrated her.” In his ruling, the judge said: “it was not rape because such sexual practices were so common between the couple that he thought that this time was no different.”

The implications of this case are disturbing, particularly for the millions of women who practice BDSM around the world. While getting accurate figures is difficult, a 1990 Kinsey Institute Report estimates five to ten percent of people in the US engage in BDSM. Meanwhile, the BDSM scene has itself been attracted its own allegations of sexual assault. If you’re a woman who’s into rough sex, are you less likely to be taken seriously if you’re raped?

I asked Professor Clare McGlynn, an expert on rape law at the University of Durham, about the case. While it’s not possible to draw direct parallels given the differences in laws from country to country, she says the fact that the woman’s previous sexual history was taken into account in this case is “very problematic,” adding that “consent must be given to each sexual encounter afresh and should never be assumed from previous activity.”

In the UK, previous sexual history is not usually admissible in court, though in some cases judges can allow it to be introduced into evidence. In the US, laws vary from state to state. In many other countries like Spain, prior sexual experience can be admitted into court evidence.

“You shouldn’t be able to say, ‘Well, this is what we used to do, so I thought it was okay,'” McGlynn explains. However, the criminal justice system is dependent on how jurors—and society in general—define consent. “Many juries would take the view that it’s reasonable for the man in this case to think it was consensual, because it had been consensual before. So we need to have a discussion about what acts of consent mean in all practices, not just BDSM activities.”

I ask if women who are into BDSM face an uphill battle when it comes to rape claims. “Rape cases where both parties have a prior sexual history are less likely to result in convictions, because it’s more difficult for prosecutors to prove non-consent. That applies to all cases, not just those involving BDSM.”

For End Violence Against Women spokesperson Sarah Green, the Spanish case is another depressing example of how rape victims aren’t believed unless they fit a particular mold. “The criminal justice system, and society in general, tends not to believe women who aren’t a classic victim. That can apply to how they behave, dress, whether they consume alcohol or drugs, are sex workers, or have specific sexual interests—such as the woman in this case.”

In her view, it’s impossible to separate prevailing social attitudes from the criminal justice system. “The issues are broader than just rape. It’s about women and girls: what they should do, how they should behave. Meanwhile, there’s a historic failure to examine the conduct of the perpetrators themselves.”

Green argues that we need to invert the traditional paradigm. “Instead of expectations of the so-called ‘perfect’ victims, let’s scrutinize the perpetrators. So often, these men are invisible. We don’t look at them; we don’t ask questions about them. That’s what allows them to reoffend.”

Despite the challenges, Green is hopeful that we’re in the midst of a social change, particularly when it comes to issues of consent. But the law can only go so far to keep people safe. “I’d like to talk about broader social goals, rather than questions of legality. Let’s have conversations about enthusiastic consent [where women are] never pressured. Never coerced. Never doing it because you want the other person to like you.

“That’s the conversation we should be having, outside the courtroom. It’s about what goes on in society between the sheets. Can we aspire to something that’s better for all of us?”

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