Does No ever mean Yes?

By: RACHEL WAMBUI

It was Sunday morning. Juliette* came to after a night of partying and heavy drinking. She couldn’t recall most of what had happened in the past 12 hours, except that, “it was apparent that I had had sex.

I asked the guy, who was my friend, what had happened. He looked surprised. ‘What do you mean what happened?!’ he asked. I screamed at him and accused him of raping me.

I could see he was genuinely shocked and insulted. He then explained that he had dropped me home and I had ‘thrown myself at him’. Although I felt violated, it seemed unfair to lay the blame on him since I had ‘started it’. So I let it go.” Juliette later apologised to him for accusing him of raping her.

Consent violation: YES

Scenario two

Ciru, a 29-year-old systems administrator, says: “I went out with this guy for the first time. He was to drop me off at home in his car. When we got to my place, he leaned in and kissed me.

I let him. Then his hand grazed up my thigh and I pulled back. He asked what was wrong. I told him we were moving too fast. It’s like he didn’t hear me; he leaned in again and put his hands around me, saying something like, ‘Come on, it’s no big deal.’

I pushed him and demanded he unlock the car door. He leaned back and hesitated for a minute, laughing. It’s as if he was frustrated at me for being ‘fussy’.

He unlocked the door and made a snide comment about me being a drama queen. I’ve actually been in such situations where guys think that just because you let him hug you, then he can kiss you, just because I let him kiss me, then he can feel me up and so on. And when you refuse, then you are a drama queen.”

Consent violation: YES

Scenario three

Audio tape: There are voices of what can be construed to be a man having sex with a woman. Throughout the four-minute audio tape, the woman’s voice is heard continually pleading with the man, telling him ‘I am tired I surrender’.

At one moment, the man is heard saying ‘you called me’. He never stops until what can be understood to be his moment of completion. The tape, whose authenticity hasn’t been verified, goes viral.

The social media community’s reaction is varied; one camp hails the man as a hero for ‘a job well done’. Others are of the opinion that the woman didn’t ‘protest hard enough’ so maybe she actually didn’t want him to stop.

Another group finds the tape hilarious. Many of the women we spoke to said the recording was too traumatising to listen to.

“It was obvious that the woman was uncomfortable and not enjoying that, and I think many women saw themselves in that tape,” says writer and feminist Aisha Ali.

Consent violation: YES

‘Why were you there? What were you wearing? Why did you smile at him? But you said ‘yes’ in the beginning. But you were drunk. Why did you stay late in the office that day?’ These are all questions that victims of sexual assault face in the aftermath.

On November 7, the Atieno Project, a women’s group that facilitates gender-related conversations, hosted a forum dubbed ‘The presence of a woman is NOT consent’ to discuss this issue.

Moses, an outspoken, street-smart young man and one of two male panelists at the forum, gives what he defines as the ‘average guys’ understanding of sexual consent; “I asked guys in my neighbourhood what they thought consent was.

They said it’s ‘dame kujipa’ (a sheng’ term loosely translated to ‘a girl who’s up for anything’). Some of the examples they gave of ‘dame kujipa’ is if a girl likes them, goes out with them and/or comes to their place. If any of this happens, in their minds, the girl has consented.”

Although Moses reiterates that this is not his opinion, he points that it is a general understanding of the average Kenyan man. “(Our) idea of manhood is somewhat defined by three things: machismo, body count (i.e. how many women they’ve slept with) and dominion over women. So if you say no to this man, you’ve bruised his ego. While in the act, if a girl is saying she is tired, it’s not a cue for him to stop, it’s proof of his machismo. He’ll brag about it to his friends and they will pat him on the back.

If you reject him in public, then the gang mentality sets in and you hear of women being stripped. In conservative settings, men don’t need permission from women to do anything. Of course this is wrong.

The question is, how do we change this mentality?”

Caroline Mwakio, a counselling psychologist based at Kenyatta National Hospital, who specialises in gender violence and psychotrauma, agrees.

“We are still a largely patriarchal society but a large population of this generation of women grew up in the feminist era. Men haven’t come to terms with that shift,” she says.

One of arguments used to discredit the woman on the ‘Mollis’ tape was the insinuation that she didn’t ‘appear’ to clearly say ‘no’. “Submission is not consent,” feminist writer Nanjala Nyabola points out.“ That a woman has to be seen to have reasonably fought off assault to prove that they have been assaulted is disturbing. It’s ridiculous that you have to risk your life (fighting back) in order to protect yourself from a sexual assault.”

GAUGING THE SITUATION

What if the woman is intoxicated? Doreen Areri, a lawyer and one of the panelists at the Atieno Project forum, says; “Legally, if a woman is drunk, then she is not in a position to offer consent.

So in this context, what we need to ask ourselves is, what the tipping point is? Here’s a simple test: Ask yourself, ‘At her level of intoxication, would I trust her with my car and let her drive me home? If the answer is no, then you can’t have sex with her either. This is not a legal test but it’s a good way gauge the situation if you want to do the right thing.”

There are many who would argue that a woman has no business being intoxicated in the first place if she wants to ‘take care of herself’.

“At what point in a woman’s drunkenness did it become okay to do whatever you want with her body?” Areri asks. “Why can’t society ask this question instead of asking why the woman was so drunk in the first place? We’ve infantilised men into these creatures that cannot stop once they have started. Acting and stopping is not a biological process. It’s a choice.”

Caroline Mwakio finds that the ability to say no – and for that choice to be respected – diminishes if a woman has grown up in a culture where women are not empowered.

“If you grow up around negativity, you learn to accept it – a term we call learned helplessness. That’s why we see women who’ve been violated several times and don’t see the need to report it. As a matter of fact they blame themselves. It’s a culture where we choose to blame the victim and keep forgetting there’s a perpetrator. Even when a wife is been violated by the husband, they’ll choose to settle it under customary law and in the end ‘it’s acceptable in our tradition’ will justify everything.”

A CASE OF DEFINITIONS

Definitions and perceptions are the hinges upon which sexual offences turn. The Sexual Offences Act states that ‘a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.’ Dr Winifred Kamau, a senior lecturer at University of Nairobi’s School of Law, explains that although consent is expressly required in a court of law in order to find perpetrators guilty, it is a contentious issue and not easily determined because it often involves perception, interpretation of feelings and reactions.

Angela Olang, an international lawyer currently based in Kenya, adds, “With consent, the burden of proof is very high, especially in cases where there is no physical evidence such as injuries, trauma, medical and toxicology reports and so on.”

“For example, the law defines an indecent act as ‘an intentional act which causes contact between any parts of the body with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration’. So if you accuse someone of an indecent act there might be no physical evidence, and you might only be relying on your word and perhaps some witnesses. But no one can be prosecuted without evidence. On the other hand, it might seem unfair that we seem to be nitpicking on which parts of the body qualify as an indecent act; because what if he inappropriately runs his hand down your back or your face; isn’t that a non-consented indecent act?”

Ogang explains that the law is structured this way is because the prosecution must prove its case beyond reasonable doubt. “The law must be fair. Sexual offences carry very harsh penalties and (lack of) consent must be clearly proved.”

Nevertheless, a lack of physical evidence is not reason to brush off such incidences. “A lawyer will advise you on the best avenue to follow. For example, you can bring a case to a Kenyan court under international law,” Ogang continues. “For instance, the sexual offences act does not recognise marital rape as an offence, but certain international human rights acts do and can be applied in a Kenyan court of law.

Consent is a process

At the end of the day, consent is an ongoing process. Writer Nyanjala Nyabola says, “Just because a woman shows up, dresses in a certain way or agrees to a date does not mean she is up for everything else after

What the law says about consent

If it is proven that any of these circumstances existed, and that the accused knew these circumstances then the victim has a valid case – unless the accused can provide enough evidence to remove reasonable doubt:

If the accused used, or threatened violence against the victim during or before sexual activity.

If the victim was captive and at the mercy of the accused.

If the victim was asleep or otherwise unconscious at the time.

The victim was unable to communicate consent because of a disability.

If anyone – whether the accused or not – administered or made the victim take a substance that would cause them to be stupefied or overpowered at the time.

SOURCE: DAILY NATION