Larissa Brian. Feminist Media Studies. Volume 20, Issue 2, 2020.
Introduction
As affirmative sexual consent laws continue to sweep American college campuses (California, New York, and others to follow), a legal clamor has ensued over how consent should be defined within its attending possibility of sexual violence. Indeed, many college administrations have begun to frame consent as that which ought to be enunciated through spoken words that are clear, unequivocal, and of sound mind and body (“Senate Bill” 2014). Couched within this turn towards the verbal is an implicit principle that underwrites the logic of consent—one that says humans are endowed with an inherent capacity, will, and language to speak about sex, where an utterance of “yes” is always at the ready. Meaning, if I can put forth a verbal claim of affirmation, then it reasonably follows that I also have a capacity to make such a claim. Such logic often occludes the question of incapacity and what it means to be without a capacity for speech during a sexual encounter, whether as a result of intoxication or drugs, stoicism induced by trauma, or living with a disability. In light of recent rape cases like the one involving Brock Turner, a Stanford college student who raped an unconscious woman behind a dumpster, the relationship between incapacity and consent poses an exigent problem for feminism, not least for feminist communication scholars who are invested in the rhetorical embodiments of agency and autonomy (“People v. Brock Allen Turner” 2016). As more and more campuses adopt an affirmative consent policy so as to resolve a proliferation of sexual assault cases involving incapacity and unconsciousness, there remain pressing questions about the role of incapacity within discourses of consent.
The figure of the incapacitated body complicates conventional understandings of consent that centralize speech-making abilities by throwing into chaos the basic tenets of what communication scholars take to be the volitional “speaking subject” who can speak, act, and effect change. More than that, depictions of female bodily incapacity are typically aligned with victimhood, submissiveness, and powerlessness, rendering women as objects of (and for) use. We see such alignments typically unfold in sexual assault and rape cases where the woman is violated while unconscious and incapacitated, unable to give consent. As feminist scholars like Janet Halley (2016) and Laura Kipnis (2017) argue, this move to conflate victimhood with a politics of danger is anathema to a sex-positive vision of women’s sexual autonomy, creating competing narratives between sex as affirming, celebratory, and desirable, and sex as destructive, dangerous, and dread-inducing. The two contentious narratives reveal a rhetorical aporia—a paradox—between pleasure and danger that sits at the heart of the feminist “sex wars” itself. Such an aporia holds significant implications for the ways in which discourses of consent generate and sustain socio-legal interpretations of capacity that end up undermining law’s promise of “affirmative” sex.
The Steubenville Ohio Rape Case of 2012 is a poignant historical moment that elucidates and calls into question the figuration of incapacity in discourses of consent. In this particular case, an Instagram photo of an incapacitated (intoxicated) 16-year-old girl (referred to as “Jane Doe”) was circulated by the hacker-group Anonymous in order to demand justice for this young woman’s rape that the town sought to cover up. In this photograph, taken by a bystander, Jane Doe’s body is shown to be completely limp and unconscious, undressed, with ankles and wrists held by two young men as they carry her to different house parties (Alexander Abad-Santos 2013). What is most striking about the photo is both the configuration of Jane Doe’s body and the fact that she did not become aware of her own rape until she encountered this particular image of herself.
While most of the fall-out discourse focused on the rape’s (re)construction through digital media (Rosemary Pennington and Jessica Birthisel 2016), or on the importance of bystander intervention and training (Kathleen Parker 2013), I would like to place emphasis on the way in which the case largely prompted conversations that resulted in the codification of affirmative sexual consent standards on college campuses, and even in some high schools. Certainly, the constellation of disparate media forces (Instagram, Twitter feeds, blogs, news) worked to make this particular case stand out and are key factors in understanding the fairly new phenomenon of what has come to be called “viral rape.” But just as important is the way in which incapacity gets used as a rhetorical argument for an affirmative consent standard. The rhetorical framing of incapacity in Steubenville does not simply hinge on the notion of silence or lack of consent. In a more complicated manner, the Instagram photo and YouTube video that reveals one of the bystanders of the rape calling Jane Doe a “dead girl,” serves as a foundational buttress for a theory of consent that hinges on the presence of speech. Jane Doe’s body becomes framed (and fraught) within tropes that dually position her as a speechless cadaver and as sexual receptacle—as a thing to be used: two images that necessitated a public reexamination of definitions of consent.
Years later after Steubenville, the figure of Jane Doe’s incapacitated body remains prolific and relevant. Indeed, our current definitions of consent hinge on the problem of injurious sex that Steubenville left in its wake. Immediately after seeing depictions of the Steubenville sexual assault across social media, feminist cultural critics like Jessica Valenti and Jaclyn Friedman took to the internet to advocate for an affirmative “yes means yes” standard that could protect victims in cases where incapacity is a present factor (Jessica Valenti and Jaclyn Friedman 2013). And more recently, the Netflix teen drama 13 Reasons Why makes affirmative consent its primary political cause. The show centers entirely on the rape and violation of unconscious female students by popular athletes at the fictional “Liberty High School.” One could say the second season even harkens back to Steubenville, in that female students are invited to a place called the “Clubhouse,” drugged to unconsciousness, and then raped by a star football player while the other athletes take photos of the assaults that they then keep in a hidden box as a collection of “trophies.” Most significantly, the show politicizes the rape of incapacitated bodies by explicitly portraying an affirmative model of consent as the only cultural remedy to injurious sex.
Following Steubenville, affirmative consent continues to be seen as the safety mechanism through which sexual violence and rape can be prevented, particularly when varying degrees of incapacity are involved. Indeed, the legal text of affirmative consent laws—like the one in California—directly invalidates the expressive power of consent in instances of “silence,” or under conditions of “unconscious[ness]” due to “the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity” (“Senate Bill” 2014, 2). Yet the problem becomes what exactly constitutes incapacity; in the case of Steubenville, the outcome of the legal trial hinged on whether or not Jane Doe was too incapacitated to consent. How do we know when incapacity has taken place? And what does it mean to be able to recognize that incapacity has occurred? These are questions left unresolved by the legal discourse of affirmative consent. So while new policies make some positive interventions into antiquated understandings of consent as “no means no,” I ultimately argue that affirmative consent does very little to reframe the dominant lens through which women’s bodies are sexually recognized.
This paper demonstrates that public discourse surrounding the figure of the incapacitated body in the case of Steubenville functions as both a rhetorical suture and rupture to feminist theories of affirmative consent. The public depiction of Jane Doe’s incapacitated body became a catalyst for affirmative consent at the same time that affirmative consent and its emphasis on speech is undone and undermined by the rhetorical contours of incapacity that do not fit neatly into a prism of clear speech-acts. Through textual and visual analysis, I show that there are two rhetorical moves in the case that stymie the conditions of possibility for theorizing other and more ethical ways of seeing incapacitated bodies, a practice that has everything to do with rewriting the fields of recognizability that structure our sexual encounters. The case, including the photo and the accompanying social media discourse, participated in a meaning-making event that constructed fairly dominant narratives about sex and consent that render sex as that which gets done to the female body, what I call the “Steubenville-effect.” In this way, sex gets framed as an object, as a thing to be done to another—a guiding precept that continues to underwrite our current conceptions of affirmative consent. In the following pages, I revisit the incident at Steubenville to illuminate key moments where incapacity presents a paradox and a challenge to what we take to be the knowable boundaries of the sexual subject, and the boundaries of sexual consent. The paper ends with a turn to a court case involving the rape of a woman living with a disability, to offer up a theory of sexual subjectivity that thinks beyond the limitations of affirmative consent. But first, it is important to understand why questions of incapacity hold significance for feminist communication studies.
Incapacity as the limit of subjectivity
Questions of capacity and incapacity greatly figure into our general conceptions of what it means to be human, and more precisely, what it means to be a citizen and subject in the world, particularly for women. As Carole Pateman (1980) eloquently writes, “women exemplify the individuals who consent theorists have declared are incapable of consenting. Yet, simultaneously, women have been presented as always consenting, and their explicit nonconsent has been treated as irrelevant or has been interpreted as ‘consent” (50). This apparent contradiction between capacity and incapacity here poses a great problem for consent law, especially since capacity serves as a guiding determinant for who gets counted as subject under law.
What is important to recognize here is that incapacity is already built into the legal fabric of consent in rather covert and insidious ways. When it comes to the historicity of consent, not all humans have been cast as legally protected subjects; therefore, not all humans have been recognized as having capacity for political power and speech. Indeed, for Black slaves under the rule of plantation slavery, their alienation was written into the social contract as a kind of ontological unspeakability that speciously masqueraded as “freedom.” In Saidiya V. Hartman (1997) Scenes of Subjection, she notes that the State’s legal conferral of things like consent were ways of further reinscribing violence onto the slave’s body. She sharply articulates that the will of the Black female slave was thought to only attain meaning in proximity to the Master—as the slave was thought to always already be consenting to her master (particularly in her deemed “hypersexualization”). The illusion of “voluntarism” and legal “rights,” only worked to further subordinate Black female slaves in that their white Masters could continue to rape them against the backdrop of their imagined “consent.” Indeed, the slave’s resistance to rape was muted by the assumption that the Black body was never not desiring of sex. In seeing the Black female slave as always consenting, the slave’s consent (or pseudo-“autonomy”) held little power, as consent was constituted by an incapacity for non-consent. In this way, we can see that the incapacity to consent is etched into the very framework of consent, serving both as a condition of its (im)possibility, and as a kind of rhetorical limit that sits both interior and exterior to its legal definition.
Indeed, figurations of capacity point to much larger implications of what it means to be a subject who is recognizable, such that we have subjectivity insofar as we can know and speak ourselves into being in terms that are within what Judith Butler (1990) calls a “matrix of intelligibility” (77). Disability theorist Margrit Shildrick (2009) articulates that incapacity does not fit into the order of things, as “some people are taken to inherently exceed the boundaries of what counts as normative embodiment” (1) creating a “potential point of breakdown in a well-ordered society” (62). Those who are unable to actively think or speak through a normative system of signs are positioned outside the social order, since “physical and mental autonomy, the ability to think rationally and impartially…are the valued attributes of western subjectivity” (2). The incapacity to speak, whether temporary or permanent, troubles the prerequisites for what constitutes a knowable subject, but also the speaking subject more broadly, especially in the domain of consent where it is presumed we can enunciate our desires clearly in an erotic encounter. Such presuppositions rest on the idea that our capacity for speech is an innate property, a rhetorical repertoire of words from which to pull from.
The Steubenville case discursively and visually proceeds through two rhetorical moves that work to solidify—and undo—theories of affirmative consent. These rhetorical moves take the shape of counter-arguments to two norms of consent that have long been invoked as legal and justifiable excuses for rape: (1) silence as consent and (2) the misrecognition of incapacity. But it is those same rhetorical moves that turn on their own validity, undoing the very foundational terms that prop up the bones of an affirmative consent standard. Working somewhat backwards, I demonstrate that although affirmative consent seeks to dismantle the norms of visibility that underwrite the occurrence of incidents such as the one at Steubenville, it actually ends up reproducing, instead of revising, those same norms. Closely examining the legal discourse surrounding the case, along with public Twitter posts, news transcripts of the event, the infamous Youtube video, and bystander testimonies, I argue that the figure of the incapacitated body upsets the core tenets of affirmative consent by casting a suspicious shadow on capacity as a preliminary requirement for speech. Taken together, these discursive forces constellate to foment a logic of sexual subjectivity that is discontinuous with logics of consent, revealing a paradox and limit in the law itself.
Structures of (mis)recognition at Steubenville
On the evening of August 22 2012 a 16-year-old girl (referred to as “Jane Doe”) was incapacitated due to alcohol consumption and then dragged, unconsciously, from party to party by two highschool football players, Trent Mays, 17, and Ma’lik Richmond, 16. Over the course of one night during several parties at the end of the summer, these two boys digitally raped the girl several times, once in the backseat of a car while another student recorded it with his cell phone, and again in the basement at a party where she was stripped of her clothes and made to perform oral sex on one of the boys, yet she was not “conscious enough” to perform the act (Amy Davidson Sorkin 2013). There were also witnesses who claimed Mays attempted to insert his penis into Jane Doe’s mouth, but stopped when she appeared unresponsive (Joanna Walters 2013).
The most disturbing aspects of the case were the photographs and video recordings taken on cellphones by spectators who witnessed the unfolding of the rapes. According to The New York Times, the bystanders visually captured the rape to then upload “on the Web, like a graphic, public diary” (Juliet Macur and Nate Schweber 2012). Indeed, during the sentencing at the trial, the judge, Thomas Lipps, described the videos and social media evidence, including the Instagram photo, as “profane and ugly” (Richard Oppell 2013). At the time, the circulation of text messages, Twitter feeds, Instagram photo posts, and YouTube video posts stirred and disrupted the public into a state of attention surrounding the case. The two young men were charged with rape and sentenced to at least one year in juvenile jail after the judge decreed that Jane Doe could not give consent; Trent Mays was also charged with distributing a nude photo of a minor. The two have since been released, in 2014 and 2015 respectively, though what I refer to as the “Steubenville-effect” remains. What is most salient about the case is the way in which the image of the incapacitated body is rhetorically employed and configured, and how it serves as an argument for new practices of consent that aim to intervene upon the following norms of intelligibility.
Norm of intelligibility #1: silence as consent
A prominent question in the Steubenville rape case had to do with whether or not Jane Doe consented. Indeed, the outcome of the jury-less trial relied on the prosecutor and defense attorney’s ability to make a case either for or against consent. In an interview with ABC News, Brian Duncan, Trent May’s defense attorney in the case, claimed, “what we believe we will be able to support is that she voluntarily proceeded throughout the night with our client. There is no indication that she [Jane Doe] was somehow so intoxicated that she could not have consented to any of the contact that occurred” (Matt Lombardi, Lisa Solloway and Sean Dooley 2013). Ma’lik’s defense attorney, Walter Madison, also argued that because eyewitnesses observed that Jane Doe was “conscious” enough to provide her friends the passcode to unlock her phone after the first assault, she did not “sound like a person that’s incapacitated to the point where they cannot answer a question, let alone consent” (Lombardi, Solloway, and Dooley 2013). The perception here is that a “yes” was expressed tacitly through several actions that get construed as speech-acts—as signifiers of sexual volition, will, and voluntariness. For instance, several eyewitnesses claimed that Jane Doe “made it clear she wanted to leave with Trent,” by getting in the car with him (Lombardi, Solloway, and Dooley 2013). In an interview with 20/20, Trent Mays told the reporter, “she [Jane Doe] had her arm wrapped around me and one hand on my chest. It just felt like she was coming onto me” (Lombardi, Solloway, and Dooley 2013). In addition, other football players who were present while Trent digitally raped Jane Doe in the back of the car, told police that she was talking but her speech was slurred. Ma’lik, who was also present during the first sexual assault, told ABC News that she was participating and “kissing his [Trent’s] neck” (Lombardi, Solloway, and Dooley 2013). Several times throughout the night, Jane Doe was taken to the bathroom to vomit and this was also construed as evidence that she was conscious; in a rather disturbing way, the vomiting was perceived as a speech-act that signaled her willful participation in the events that transpired.
Indeed, the legal discourse aimed to create a narrative of consent, and to construct an image of willful participation through actions instead of speech. One of affirmative consent’s main objectives is to dismantle the norm of tacit consent—the antiquated notion that if a woman is silent and/or says nothing, then her silence indicates a consent to sexual acts. Surely, we cannot venture to say that Jane Doe even tacitly consented, however an affirmative consent standard strives to protect victims when active and ongoing verbal consent has not been sought by the accused. Upon closer look, it seems that the rule of affirmative consent, in a situation such as Steubenville, would do little to alter the field of recognition—that is, the very way in which Jane Doe’s body is seen. As evident above, Trent and Ma’lik, as well as the many bystanders who witnessed the unfolding of the assault, projected a “yes” onto Doe’s incapacitated body. In this particular scenario, that is largely reflective of many sexual assaults that occur when incapacity is involved, a “yes” is already part of the sexual imaginary in that it serves as a fallacious and rather violent condition of possibility for the scene of assault. Moreover, for the sake of argument, let us imagine that a “yes” was uttered early on in the night, perhaps in a moment of semi-consciousness in which Jane Doe had no knowledge or memory of its articulation. By an affirmative consent standard, this could be seen as consensual, especially if a “no” was not clearly explicated after that point. But when unconsciousness or semi-unconsciousness is in play, can we truly say that a “yes” always signals desire? And what if the court can use the event of the utterance as an argument for consciousness, and thus for consent? Indeed, it seems that incapacity unglues the very terms that hold affirmative consent together. Even though this model of consent works to eradicate definitions of consent as tacit and implied, it actually ends up maintaining tacit consent as a viable communicative determinant in a sexual encounter. This notion of tacit consent also appears in the visual landscape of the case, particularly in relation to the infamous image of Jane Doe’s incapacitated body being carried by Trent and Ma’lik. The photo bares a striking resemblance to the aesthetics of mainstream heterosexual pornography where a woman’s consent often appears to be nonexistent, yet imagined by both the audience and the male performer. Indeed, the photo is homologous to the way in which consent is constructed in the pornographic imagination.
In the photo, Jane Doe’s body is splayed open with her legs spread and ankles and arms held by two different men—one white and one black. The openness of her body renders her as passive, motionless, and restrained, as a body that can easily be acted upon, or what I like to think of as an ontological sexual “bottom.” The positionality of her body appears as receptacle, as if she is ready to receive, a position that appears in many mainstream pornographic films where the woman is often spread so as to take a penetrative pounding from (usually) a cis-gendered male penis, fingers, or other object/toy. Jane Doe’s incapacitated body becomes what philosopher Kelly Oliver (2016) calls a “two-dimensional object of pornography insofar as she doesn’t respond” (92–93) except that as a real person Jane Doe has the “‘advantage’ of being a fleshy other, unlike the pornographic other” (93).
The absence of consent and the display of the incapacitated female body in a state of submission in the photograph also points to the relationship between porn and the absence of (reflexive) speech. Porn studies scholar Linda Williams (1989) points out that “real speech” in cinematic porn is erased and replaced with sounds—cries and moans of pleasure—that function “as an anchor to the image” itself (122). In most mainstream heterosexual pornographic videos, it is clear that sounds of pleasure are attributed to the female body, in which pleasure is staged through a visual framing of imagined desire, and thus, imagined consent. Moreover, speech usually takes the form of generic phrases of desire that ask for or signal the coming forth of a particular sex act. Pornography often portrays women performers as seductresses who tempt and tease the male performers and initiate the sex acts. This move of seduction serves as a loosely based expression of consent; throughout the duration of the scene, the woman’s cries, sounds, and bodily movements are depicted as implied forms of consent, an orchestrated event that signifies desire to its audience. As mentioned in the analysis of Steubenville above, certain acts in the case are construed as “pleasurable”—and slurred speech during the first assault is perceived as a marker of consent and desire. The discourse of porn—the contrived sounds and voices of female pleasure—functions as a norm of intelligibility that structures the way in which Jane Doe’s body is seen and encountered. Tacit consent becomes that which holds the scene together.
The pornographic dimensions of the photo render Jane Doe as a bifurcated subject who is publicly constructed to be a sexual victim in need of the state’s protection (especially as a minor), at the same time that she is viewed to be a consensual knowing subject by both the accused rapists and the bystanders, as mentioned in the above analysis. The public also participated in constructing Jane Doe as a consensual subject; one needs only to glance at the barrage of Twitter posts that accumulated after the rape to see all the ostensibly damaging ways in which Jane Doe was portrayed as drunk and willing (Matt Binder 2013). The news media aided in shaping this public perception by lamenting the ruined lives of such “promising” young men who were star football players with hopeful and bright futures ahead of them, instead of highlighting the various forms of injurious sex that had taken place. Reporter Ron Allen of NBC Nightly News even began his show by mentioning discontent with the fact that the men would now be registered “sex offenders” (Anie-Rose Strasser and Tara Culp-Ressler 2013). This effort to cast light on the male perpetrators as the real victims is homologous to mainstream pornography’s visual focus on male pleasure, reiterating a rather outmoded narrative of domination-submission that frames sex as something experienced by men, and done to women. A move like this implies both that Jane Doe’s capacity to consent should not be up for question, and that silence should be considered as a form of consent. Incapacity is made visible insofar as its very possibility can be refused, given that Doe’s incapacity is interpersonally and publicly read as a sign of consent.
As a legal and juridical response to incidents like Steubenville, affirmative consent laws have sought to do away with these sorts of norms of consent that are largely derivative of popular heterosexual pornography, where the scene situates consent as unstated, yet tacitly built into its formation. Put simply, to render consent as affirmative is to directly counter the kind of consent that serves as a guiding precept for the events at Steubenville. But even with an intentional focus on the verbal, if a “yes” is already imagined or projected onto the figure of the incapacitated body by the perpetrator or bystanders, then a verbal articulation of “yes” does very little to transform the outcome of the scene. While affirmative consent might offer legal protection to incapacitated victims (in some cases), this mode of consent does not radically alter the fields of recognizability that shape our sense of what a consenting sexual subject looks like. Even if a verbal “yes” holds more value under law, it may not carry the same rhetorical weight in a sexual encounter that involves a state of incapacity. In the next section, I discuss the second norm of intelligibility in the Steubenville rape case that worked to engender new theories of affirmative consent. As I will show, those very conditions that make a body (un)recognizable as incapacitated, exceed the definition of affirmative consent.
Norm of intelligibility #2: misrecognition of incapacity
A key component in the Steubenville rape case was the misrecognition of Jane Doe’s state of incapacity—that is, her temporary inability to formulate coherent thoughts and sentences, understand her surroundings, or retain memory of the assault. The bystanders and male perpetrators of the assaults, along with the defense attorneys, all framed Jane Doe as a body whose “incapacity” was, indeed, up for question. One witness of the rape perceived Doe to be not “completely passed out” yet “unable to make decisions for herself” (Lombardi, Solloway, and Dooley 2013). Such a claim admits complicity in the continuation of the rape, at the same time that it regards incapacity as a kind of argument for bodily violation. In another news transcript, a male student who recorded Jane Doe being digitally raped during the first assault in the backseat of the car, “testified that he used his cell phone to record Mays putting his fingers inside the girl’s vagina during a drive from one party to another. He said he deleted the video the next morning when he realized it was wrong” (Chelsea Carter and Poppy Harlow 2013). It is worth noting that in the moment, he also said that he was not aware that what was happening was rape because it did not appear forced or violent. In both instances, Jane Doe is not seen as a sentient being that can feel pain or injury; put otherwise, a recognition of embodied sentience is wholly disregarded.
Feminist philosopher Ann J. Cahill (2003) elaborates on the idea of sexual violence as misrecognition of human sentience, describing rape as a “total denial of the victim’s agency, will, and personhood…a denial of intersubjectivity itself” (132). Simply put, “rape is a bodily, sexual assault on a woman’s underlying conditions of being” (132). What is significant is that the denial of will is also constitutive of the denial of incapacity. On the surface, affirmative consent seeks to repair the kinds of conditions that make the misrecognition of incapacity possible. The California law states that affirmative consent cannot be believed to have happened if the accused did not take reasonable steps to secure verbal affirmation from the other party, particularly if the “complainant was asleep or unconscious” (“Senate Bill” 2014, 2). This poses a question as to how exactly affirmative consent can alter the fields of recognizability that structure a scene of violence like Steubenville. The complicity of the bystanders proves that a verbal “yes” or “no” would not really matter to the scene. Indeed, the terms of recognizability are askew in this case (and many like it), demonstrating that temporary immobilization/incapacity becomes read as a loss of sentience, and thus, as an argument for rape.
The denial of incapacity as a sentient state is an ultimate denial of the meaning and power of a “yes” or “no,” and ultimately, a denial of intersubjectivity, to recall Cahill. Moreover, it becomes unclear as to whether affirmative consent can intervene into a more deeply rooted and widespread problem of what Oliver calls “pseudo-necrophilia,” or the rampant desire for young heterosexual men to have sex with an unwilling “passive, unconscious, responsive, ‘lifeless’ girl” (93). Nowhere is this sexual trend more apparent than in the Steubenville rape case, where Jane Doe’s body is interpreted by the assailants and bystanders as a “dead” body that can be penetrated at no cost. The legal prosecutor of the case attested that Jane Doe “was a toy to them [her rapists] that night and the bottom line is we don’t have to prove that she said no. All we have to prove is when she’s being penetrated that she was unresponsive and not in a position to consent and they knew it” (Matt Lombardi, Lisa Solloway, and Sean Dooley 2013). Indeed, the desire to penetrate a nonresponsive body warrants deeper investigation, especially when that body is regarded as “dead.”
In the image of Jane Doe that was circulated online, she appears “dead-like” as her limp body is held, and constrained, by Mays and Richmond who then carried her from party to party. What is most interesting are the discourses surrounding the event during the same night, as another boy at the same party, Michael Nodianos, was video recorded repeatedly referring to the girl as simultaneously both “dead” and “raped.” CNN reporter Michael Pearson (2013) commented, “In one 12-minute video, a teenager who is not charged in the case jokes about the girl’s condition, saying she must have died because she didn’t move during one assault.” As a witness to the rape, Nodianos is shown repeatedly in the video (posted on YouTube by the political-hacker organization Anonymous), to use a series of parallelisms to invoke jokes about the incapacitated state of Jane Doe. He begins by stating that the girl is “deader than Trayvon Martin”… “deader than OJ Simpson’s wife…” then goes on to say that she was “so dead” and “so raped right now”… “They raped her harder than that cop raped Marcellus Wallace in ‘Pulp Fiction’,” and, “They raped her quicker than Mike Tyson raped that one girl” (World2Awakens6 2013). At one point he says into the cellphone camera, “You didn’t see how they carried her out,” he says. And: “They peed on her, that’s how you know she’s dead” (Julia Dahl 2013). In a Tweet posted later that night, Nodianos posted that “some people deserve to be peed on” (Macur and Schweber 2012). In a text sent to a friend, Trent Mays was noted as writing, “I shoulda raped now that everybody thinks I did” but that the girl “wasn’t awake enough” (Torston Ove 2013). The homologous relation here between rape and death is indicative of the denial of the victim’s will, sentience, and any semblance of autonomy, not to mention a total disavowal of the victim’s incapacity for speech. In fact, the incapacity for speech becomes a twisted surrogate for consent, somehow translating Jane Doe’s temporary loss of conscious speech into a body awaiting penetration.
The rhetorical parallel between rape and death constructs a a definitional link between death and the misrecognition of incapacity—rape that happens because the victim’s body is in a state of incapacity. If one is rendered “dead,” then one allegedly cannot feel what is happening to them. In experiences of incapacitated rape, women are often “forced to see their bodies as living corpses through the eyes of witnesses who claim they look ‘dead’ and ‘lifeless’” (Oliver 2016, 88). As Oliver suggests, the rape of an unconscious woman is a kind of “pseudo-necrophilia” where ultimate powerlessness (and I would argue speechlessness) in women has become the normative erotic fantasy for heterosexual men (94). We might say that the young men who participated in the assault (either directly or indirectly) engage in a necrophilic-like act, whereby Jane Doe’s body is imagined to be a cadaver with erotic potential. As disturbing as that is, it is quite evocative of a deeply misguided understanding of what it means to be without the means to speak. Indeed, Doe’s incapacity for speech becomes the justification for her body to be acted upon by others, to be played with like a toy that does not (re)act or respond. What is more, is that the young men who call her “dead” make an implicit claim that because Doe cannot speak, or utter “no,” she deserves to be assaulted through an abasement of sex acts.
There is an underlying logic here that because Doe is not able to say “yes” she is denied her will, but in the silence of a “yes,” she is also a willing participant in the sex acts. Here, false equivalence made between incapacity and death reinforces gender and sexual norms in which female silence is regarded to be a “yes” to sexual activity or, as Danielle Allen (2001) astutely remarks, “Silence implies first acquiescence, then consent” (331). So how would a “yes” intervene into this scenario? How would a “yes” empower an otherwise powerless scene of assault? These are questions that remain. While affirmative consent strives to prevent the rape of incapacitated bodies by shifting the burden of proof to evidence of verbal consent, it is not clear how such a policy can truly challenge the norms of intelligibility that construct a field of misrecognition around incapacitated female bodies.
Beyond affirmative consent: incapacity, disability, and sexual ethics for a dark world
These aforementioned norms of intelligibility structure the fields of recognizability around sexual encounters, and reveal a fairly dominant narrative that sex is an object to perform on another—as a thing that gets done to the female-bodied subject. This Steubenville-effect continues to underwrite our thinking about the messy intricacies of sex, desire, consent, and violence. As Laura Kipnis warns, “Shifting the stress from pleasure to danger and vulnerability not only changes the prevailing narrative, it changes the way sex is experienced…narrative is how we make sense of the world” (9). To visually see and understand women’s bodies as primarily what Catharine A. MacKinnon (1989) calls “things for sexual use,” is to create a debilitating stasis around women’s expressability of erotic desire, making room for subjectivity only at the level at which it can be erased and taken away, and only in moments where women’s bodies are construed as ontological sexual “bottoms.” Such thinking tends to rule out a more imaginative and sex-positive theory of sex and desire.
In many ways, the figure of the incapacitated body throws the tenets of affirmative consent into chaos—indeed, the issues from Steubenville (silence as consent, and the misrecognition of incapacity) that prompted new theories on consent are the same issues that undo the terms of its own meaning. Affirmative consent turns on its own promise, doing very little to alter the fields of intelligibility that make the kind of violence that happened at Steubenville possible in the first place. These shortcomings of affirmative consent are also apparent in cases concerning physical or mental disability, where a permanent incapacity for speech becomes an incapacity to be recognized as a sexual subject—or even as a subject worth protecting under law.
In Fourtin v. Connecticut (2012), a man was acquitted for raping a woman (in her mid-twenties) with cerebral palsy who was unable to walk or verbally communicate. Attending an adult day care daily, the woman wrote out on a chalk-board to her care-taker that she had been sexually assaulted by her mother’s boyfriend (James Orlando 2012). Fourtin was at first convicted of sexual assault but then appealed to the State Supreme Court that overturned the prior ruling on the grounds that the victim was not actually “physical helpless” in that she could communicate through “biting, scratching, moaning, hitting” or other modes of nonverbal communication to resist an unwanted act (Orlando 2012). For Connecticut courts, “physical helplessness” usually involves a situation in which the victim is incapacitated due to alcohol, drugs, or some kind of physical unconsciousness. In this case, however, the victim was deemed capable of consent, even though she had an incapacity for speech and the court could find no “physical evidence” that the sexual act was unwanted. Testimonies from nurses at the day care only served to confirm the fact that, if the victim really wanted to resist something, she would struggle nonverbally (as she had done with the workers when she did not want to eat certain food or perform a certain activity).
Feminists Valenti and Friedman (2013) argue that an affirmative consent standard would have corrected and reversed the outcome of the trial; if a verbal “yes” could not be articulated, then indeed, affirmative consent could not have been given and the accused could be punished accordingly. On one level this makes sense, especially given that the law of affirmative consent explicitly states that consent is not possible if “the complainant was unable to communicate due to a mental or physical condition” (“Senate Bill” 2014, 2). But on another level, affirmative consent denies the victim’s sexual capacity. Because she cannot actively say “yes,” she has no right to the sexual scene, and no way of holding discursive power. Without recourse to verbal speech, her sexuality can only be defined through nonverbal resistance or incoherent screams and sounds to object to her assailant. Here, an affirmative consent standard does nothing to alter the normative fields of recognition that determine those with disabilities to be “positioned as sexless” (Shildrick 2009, 65). To recall Ann Cahill, affirmative consent seems to deny the possibility for intersubjectivity from the start, foreclosing a more sex-positive understanding of disability and erotic potential/desire.
While those like Lise Gotell (2008) and Halley (2016) have criticized affirmative consent for its complicity in neoliberal technologies of governance, others like Oliver (2016) suggest that although the new policy makes positive interventions into previously unjust rules of sex, the problem remains: what counts as consent? This is a critical question for sure, but I would like to think beyond the dominant criticisms, perhaps not to fixate so much on what counts as consent, but rather focus on the moment that comes before consent—those norms that structure our fields of recognizability for how we see and encounter other bodies in the world. As I have argued throughout this paper, bodies in incapacitated states exceed the norms of consent law, urging us to ask: if a “yes” is either imagined or outright denied to those who are temporarily or permanently incapacitated, then how can we build conditions in which a “yes” matters to the scene? What would it mean to open space for a different kind of encounter? An ethical encounter?
Ann J. Cahill (2014) offers us a useful angle for rethinking sex and consent, calling for a sexual ethics that can best be achieved through “embodied intersubjectivity” (313), a shared moment in a sexual encounter that hinges not on “the presence or absence of desire [or the presence or absence of consent], but rather the recognition of the parties involved of the relevance and efficacy of each other’s desires or lack of same” (315). Put simply, it is an ethics invested in creating the kind of conditions where mutual desire matters to the scene taking place.
It is time we come to terms with the unpleasant reality that consent may not be enough. As feminist communication scholars, the norms constructed around consent in the wake of Steubenville ought not to sit well with us. Although Gayle S. Rubin’s (1993) provocative yet brilliant concern for “erotic capacity” has been neatly tucked into the folds of feminist history, it is time we returned to its call (11). For feminist theorizing of media and communication, a more robust language is needed to theorize incapacity as that which holds its own unique rhetorical power. The figure of the incapacitated body, to be sure, is also embodied, posing a necessary and productive challenge to our very foundations of law, sexuality, and communication.