"No means no" is still a pretty good rule.
In a preliminary hearing this week in Eagle, Colo., the details of Kobe Bryant's alleged rape of a 19-year-old woman were recounted on the stand. Bryant's accuser, speaking through the police detective who met with her after the alleged assault, indicated that she said "no" at least twice over the course of the encounter. Today, Gregg Easterbrook suggests that the problem is that the word "no" is just not strong enough to signal that a rape has taken place. Why? Because, according to Easterbrook, "no" has come to mean "yes." As he observes (doubtless with the empirical evidence to back it up), "Maybe half the sex in world history has followed an initial 'no.' "
I'm guessing it's closer to 80 percent, but that still makes it rape, doesn't it?
Why is this? "Because," according to Easterbrook, "men know this—because in the real world 'no' does not always mean no." Sometimes, he goes on, "no" just means "not now, but maybe after more wine." His suggestion? Since the word "no" has lost all social and legal meaning, we should raise the bar a little and require women to say, "This is rape." That, according to Easterbrook, would stop all but the most callous rapists in their tracks.
It's tough to figure out when a rape has occurred, says Easterbrook, so let's put a heavier burden on women to clarify things.
Here's what Easterbrook's suggestion ignores: Once upon a time the word "no" had social meaning, too. It didn't lose its social meaning because the word "no" is ambiguous. (If someone asks to borrow my Honda and I say "no," it's clear I haven't consented.) The word "no" has lostmeaning because in this situation we choose to ignore its directive to desist. So, why would we possibly take "This is rape" more seriously? Easterbrook suggests that the very word "rape" would chill any sentient man. Maybe for a year or two, until "This is rape" becomes subject to the same social forces that suggest to Easterbrook that "no" merely means "try harder."
Soon there will be Harlequin Romances featuring heroines in heaving bodices breathing, "But Sir ... This is rape," just before being delightedly ravished. Soon, "Oh baby, this is rape," will be the answer to "Oooooh, talk dirty to me."
The problem is not one of nomenclature. Words signify concepts and "no" still signals the concept of non-consent, for 100 percent of the world's English-speaking population, 100 percent of the time. The problem, as Easterbrook illustrates, is that we keep perpetuating stereotypes in which men are cast as ravening beasts and women are cast as confused madonna/whores. The word "no" isn't the issue. The fact that men (and some women) still think "no" means "yes" is. We already put the burden on women to say "no," which is complicated enough. (I don't have to say "no" when someone steals my car keys.) Now Easterbrook wants them to have to say, "This is rape," a sentence virtually impossible to utter unless you are truly being violently forced by a maniac. It's tough enough to say "no" in a fraught and nuanced sexual encounter. But Easterbrook wants us to have to read the guy's Miranda rights.
Saying "This is rape" instead of "No" bizarrely asks women to be even less precise than the status quo. It may not be rape. It may just be yucky sex. Why do I have to call it rape just to get it to stop?
It's not the place of the criminal legal system to resolve age-old ambiguity in sexual language. The criminal law exists to punish criminals. Books like Men Are From Mars, Women Are From Venus exist to resolve age-old ambiguity in sexual language, and it's not clear that's working all that well, either. So, let's not make our rape laws the social laboratory for fixing human communication. And let's not make it harder to convict rapists, just so that men and women can say we understand each other a bit better.
The law is perfectly clear: When a woman says "no," even—take note, Kobe's lawyers—after 5 minutes of necking, she really means no. If Kobe, or Easterbrook, or any other man chooses to hear "try more wine," then by all means, bring out the Chianti. But if a man chooses to hear it as "forge ahead, and force me, I may just be kidding," then he'd best be prepared for the consequences. The notion that men are hard-wired to dominate and overcome ambivalent women stopped being cute about 10,000 years ago.
Dahlia Lithwick writes about the courts and the law for Slate.