Donald Trump's lawyer Michael Cohen shared some very interesting opinions about marital rape this week. “You cannot rape your spouse,” he told Daily Beast reporters. “There’s very clear case law.”
Reporters Tim Mak and Brandy Zadrozny had contacted Cohen for a response to their story about the 1993 book Lost Tycoon: The Many Lives of Donald J. Trump by Harry Hurt III. Hurt recounts how Trump's ex-wife Ivana Trump, in a deposition during their divorce, described Trump raping her. Trump denied the allegations when the book came out, and Ivana, at the behest of Trump's lawyers, issued a statement saying that she didn't mean rape in “a literal or criminal sense,” but just that she “felt violated.”
Rape is a crime, however; it's not contained by how you feel but by objective questions such as Did she consent to the sex? By that measure, the scene in the book reads like rape. What's more, New York state banned marital rape in 1984, and this alleged incident happened in 1989. If it happened as described, it was rape in both the legal and “emotional” senses.
It's shocking that the incident described might have been legal if it happened just five years earlier. It seems obvious that it should be criminal to force your protesting spouse into sex while pulling out chunks of her hair. Yet marital rape was only banned in all 50 states in 1993, when North Carolina and Oklahoma finally got around to it. As of 2014, eight states still had laws treating marital rape differently than other rape.
Along with the recent rush of women accusing Bill Cosby of rape or sexual assault, the Trump story shows how rapidly public opinion is shifting on the subject of rape. We are reaching a cultural consensus that the dividing line between rape and not-rape is consent. It's hard for these women to speak out, but it's also increasingly impossible to argue that nonconsensual sex is somehow a “gray area” or just “bad sex” instead of rape.
Even while people shied away from the R-word in the past, they still had an intrinsic understanding that it's wrong to force women to have sex. Cosby's accusers describe the great pains he took to conceal his behavior. Ivana Trump described crying all night long; Lost Tycoon claims Trump gloated about how he hurt her—causing pain was the point. In reality, men who rape usually aren't confused about the question of consent. They do, however, enjoy it when others confuse the issue for them.
What is shifting is that the rest of us are less and less willing to play that game for them. We still have a long way to go, however, as seen in this New York Times story by Sandy Keenan about affirmative consent standards on campus. “Men tend to rely on nonverbal cues in interpreting consent (61 percent say they get consent via body language), but women tend to wait to be asked before signaling consent (only 10 percent say they give consent via body language),” Keenan writes. “No wonder there’s so much confusion.”
Human communication is complicated, but that doesn't necessarily make it confusing. Other research has shown that men are just as capable as women of understanding subtle cues of nonconsent. We're all capable of telling if someone looks bored or reluctant or of interpreting “soft” noes such as “Gosh, I have to get up early.” Most of us practice affirmative consent implicitly: looking for signs of interest before proceeding, pulling back if someone stiffens up or starts issuing “soft” noes such as “I really can't right now.”
The “no means no” movement was about shutting down rapists who tried to confuse the issue over whether it really counts if she came to your room/she's your wife/she wore a short skirt/she accepted the drink you drugged. “Yes means yes” is about shutting down rapists who claim, falsely, to not know it's wrong to rape someone even if she is too drunk to stand/she said “I want to go home”/she just laid there crying instead of asking me to stop. It's about shutting down bad-faith excuses by shifting the discussion to how the aggressor knew he had a yes.
I hope future versions of us will be amazed that anyone thought this was confusing—just as amazed as our present selves are that the encounters described by Ivana Trump or Cosby's accusers constitute anything but rape.