This is not an invitation to rape me
Two years after Italian judges concluded “jeans cannot be compared to any type of chastity beltâ€, a Sydney jury has decided otherwise. On April 30, The Sydney Morning Herald reported that a jury had acquitted an alleged rapist because they couldn’t believe that her jeans could be removed without her assistance. To the jury this constituted reasonable doubt.
The Australian legal community has yet to comment on the case, but rape victim advocates inside and outside the blogosphere have been quick to protest. News of the story was picked up by papers in India, US, and the UK.
A Norwegian self-declared “anti-feminist” blogger declared it a small victory. Veronica Wensign, chairwoman of the Australian National Association of Services Against Sexual Assault questioned a jury member’s assumption that women were unrapable in certain clothing. ”Any piece of clothing can be removed with force.” The jury had sent a note to the judge which read: ”I doubt those kind of jeans can be removed without any sort of collaboration,’. Odalisque observed physical force is irrelevant: “Even if he had stood up, walked to the other side of the room and quietly said ‘remove your jeans’ it would still be rape if she didn’t consent. Abject terror is not consent.”
The Village Voice (New York City) observed that even if the complainant had willinging removed the jeans, equating jean removal with consent implies that a “No” thereafter can be ignored. The Well Timed Period blog raised the question of a double standard: when a mugging victim reaches in his pants to take out a wallet we don’t call it a gift. So why do we call it consent when rape victim takes off their pants at the command of a rapist?
In the Australian case, one has to wonder what instructions were given to the jury. How were they told to measure consent? Did the judge point out that collaboration in jean removal did not prove consent? Would he have been allowed to?
Australia is not alone.
In 2006 in Korea a woman jumped out of a 6th floor window. She later testified that she had been trying to escape an attempted rape. Defense argued that she was drunk, had lured the alleged rapist into a bedroom, and voluntarily undressed. To support his case he pointed to the neatly folded jeans found in the bedroom. Despite this he was convicted, but in 2009 the conviction was overturned because the judge was convinced that (a) the neatly folded jeans indicated consent (b) difficulty in removing the jeans indicated that the jeans could only have been taken off by the victim (c) a six story jump could be explained by her drunkeness rather than a desire to escape attempted rape.
Once again the tightness of jeans became a measure of consent. But this case raised a second issue. A reasonable person would have to wonder: if a woman was so drunk as to jump six stories without cause, how could she possibly be sober enough to consent to sex?
In contract law, a contract is null and void if one party knows that the counter party is intoxicated. The contract will not be binding, regardless of whether the counter party is voluntarily or involuntarily drunk.  What matters is that one party knew of the impairment of the other. On the other hand, criminal defendants are normally held to a higher standard. They can only use intoxication as a defense if the intoxication is involuntary.
Presumably sex requires mutual agreement. Consenting to sex is not a crime. Why not apply the same rules of consent to sexual consent as to contracts? If a defendant is arguing that no crime has occurred because the sexual interaction was consensual, shouldn’t the presence of consent be measured by non-criminal standards? And if we do judge sexual consent by criminal rather than contractual standards, what does that say about our real understandings of sexual rights and obligations?
These questions lead to yet another question: to what extent do definitions of consent reflect our current cultural understanding of sexuality? In 1977, when an Italian Supreme Court used tight jeans to overturn a rape conviction, it created an uproar. Female Italian legislators showed up in sessions in jeans to protest. Legal treatises were written about what happens when law and society are out of step.
Is the skinny jeans decision out of step with Australian society? Or does it reflect it? If it is out of step, what can prevent future such decisions? If it is not, what needs to be done to change society’s attitudes so that removal of jeans no longer equals permission to insert?
