Arousal Does Not Equal Consent
One of the most taboo aspects of my work has been my research and training around the experience of arousal during sexual assault. I receive far more requests for this training than any other I provide.
What should be treated as just a normal biological response has been used, for decades, to shut victims down, prevent reporting, and used in trials by the defense to equate arousal with consent.
Most important to the victim, when arousal is present during an assault, trauma symptoms such as anxiety, intrusive thoughts, depression, and dissociation are exponentially greater.
Several years ago, I worked with Aequitas, an organization dedicated to supporting prosecutors in their “efforts to achieve justice in gender-based violence and human trafficking cases,” to research sexual assault cases in which evidence of arousal had been brought up during trial. Of the thousands upon thousands of cases where arousal was raised as evidence of consent, over a more than 40-year period, only three cases ended in conviction. Here is what Aequitas found:
People v. Austin, 219 Cal. App. 4th 731 (Cal. App. 2d Dist. 2013) Defendant was convicted of forcible and non-forcible sexual offenses, including oral copulation with a person under 16, forcible oral copulation, lewd act on a child, and attempted unlawful sexual intercourse, against his 14- year-old stepdaughter. The trial court initially ruled that the defense could not ask the victim whether she achieved an orgasm during the incidents. However, during trial, the prosecution introduced evidence regarding orgasms, and the court then permitted the defense to question the victim about that subject. The victim testified to having orgasms each time the defendant had orally copulated her, and the defense argued that this showed that she consented to the sexual contact. The prosecution offered an expert witness who testified than an orgasm was merely a physiological reaction to physical stimulation, so a child could experience an orgasm while being sexually abused, even if s/he did not consent to or want the contact. On appeal, defendant contended that the trial court erred in allowing the prosecution’s expert witness. The court affirmed the judgment, concluding expert witness was qualified to give testimony.
Curtis v. State, 223 S.E.2d 721 (Ga. 1976) Defendant was convicted of rape after having forcible sexual intercourse with the victim. On appeal, the defendant argued that: (1) the victim consented to the encounter and (2) he should have been allowed to ask the victim whether she experienced orgasm during intercourse. Regarding the first argument, the defendant contended that victim had moved in a way to “assist” the intercourse, and did not do everything she could to resist him. The court found that lack of resistance induced by fear cannot be legally recognized as consent. Regarding the second argument, the court held that the trial court did not err in refusing to allow defendant to question the victim regarding orgasm, as it was legally irrelevant to the issue of consent. This court affirms his judgment.
State v. Pancake, 296 S.E.2d 37 (W. Va. 1982) Defendant was found guilty of first-degree sexual assault and burglary. After the defendant broke into the victim’s home, the victim submitted to defendant’s sexual advances out of fear. On appeal, defendant argued that the victim consented to the encounter, based on inferences from her failure to scream or leave, by her orgasm, and by the fact that they had engaged in sexual intercourse once before. Defendant also argued that testimony from an expert on female sexuality about the unlikelihood of a woman having an orgasm while she was having a fearful sexual experience should have been permitted. The trial court had held the evidence inadmissible because the expert had not examined the victim and could not testify with medical certainty. Conviction affirmed.
That we could only find three sexual assault cases where arousal was brought up that resulted in conviction is astounding. Arousal is overwhelmingly viewed as consent – and wrongly so, let me be clear – that victims are consistently denied justice. The reason this is such a large focus of my work is the incredible bias against victims for having a completely normal physiological response under threat. The myth of arousal as consent reinforces the idea that the victim “wanted it,” a concept largely carried by American society over the past century and beyond. When you read that rapists commit more than six rapes on average [Lisak, D., & Miller P., Repeat Rape and Multiple Offending Among Undetected Rapists, Violence and Victims, Vol.17, No.1, 2002], you can extrapolate just how many get away with their crimes based on this one misunderstanding.
Even when I encounter colleagues who have some familiarity with the arousal response, they often have no idea of the lack of justice around this issue, and how the interviewing techniques I’ve developed can easily help forensic interviewers to negate the bias and even prove lack of consent when arousal is present.