What is the difference between consensual sex and rape?

Sounds like a simple enough question doesn’t it? It isn’t.

For some people, the answer to this question is easy; two people choosing to engage in a sexual relationship equals to consensual sex, as opposed to a situation where one person is forced to have sex which is rape. However, the seemingly clear distinction is often not as simple as one would think, especially when it comes to victims of human trafficking.

Victims of human trafficking frequently come from vulnerable situations of poverty, violence, physical and sexual abuse, all looking for a better future. In this context, often, the person (girl or boy, man or women) has been shown by people around them that their bodies exist for another person’s pleasure, and that they do not have a say in the matter. With this in mind, the distinction between consensual sex and rape is not as clear. When we speak to people who have been trafficked, they often do not talk about the sexual or physical abuse, but the money that has been withheld from them.

Here are some questions that can make the distinction between consensual sex and rape clearer;

  • If a person did not want to have sex but was made to is that rape? YES
  • If a person does not want to have sex but doesn’t think they can say no is that rape? YES
  • If a person was forced to have sex but did not fight back, is that rape? YES
  • Is forced sex in a marital relationship rape? YES
  • Is sex with a minor rape? YES
  • If the person who forced you someone you know, is it still rape? YES
  • Is forcing a sex worker to have sex rape? YES

 

Consent means that both people in a sexual encounter must agree to it, and either person may decide at any time that they no longer consent and want to stop the activity.
Consenting to one behaviour does not obligate you to consent to any other behaviours. Consenting on one occasion also does not obligate you to consent on any other occasion.

Rape is a serious matter that can leave a person suffering, often in silence, with painful physical and psychological effects. The person may feel frightened, guilty, angry, ashamed, sad, hurt, and may have problems eating and sleeping. The first step in dealing with these difficult feelings is knowing what rape is and that it is never the fault of the victim.

It does not matter if they dressed a certain way, at a certain place, drunk, alone, or flirting.

Rape is never okay and it is never the fault of the victim.

Non-consensual sex is rape, and rape is a crime.

If you are a survivor of sexual assault, remember that with time, and support, it is possible to heal. You have survived the hardest part on your own and you do not have to do the rest alone.

By Yasmin Manji

8 Comments

  1. Doris
    Oct 5, 2015

    Thank you Yasmin for the article. It puts in ink what ought to be said but has always been avoided by society. I think it is indeed important for people to understand that dressing a certain way does not warrant one to rape and neither does being in a relationship with someone. That there are a lot of people in the society that have at one time or another gone through it but don’t feel the need to report it thinking they have no right to do so, is an unfortunate fact. Guided by your article, there indeed deserves to be a line drawn between sex and rape.

  2. evalyn
    Oct 12, 2015

    It’s true that most people suffer in silence coz they aren’t aware that they were by the real sense raped or think that it’s a very shameful thing to disclose. I’m sure after being approached and informed most victims will agree to dislose and discuss their experiences as victims. Bravo the Haart group for the good job.

  3. Mya
    Nov 12, 2016

    I do believe that many cases of rape aren’t reported, due to a misunderstanding of what exactly “rape” is, but I do feel the need to point out that “non-consensual sex” is not necessarily rape.
    That said, I think some distinction between what “non-consensual sex” and “rape” is. Rape is where a victim is physically or mentally forced or coerced into having sex, or has sex forced upon them whilst unable to consent, due to drugs, intoxication, fear, age, or position (such as trafficked humans). Rape can include forcing an act not agreed on earlier, such as having anal sex one party didn’t want, despite wanting other forms of penetrative sex, or not allowing for a change in consent during sex, such as refusing to change positions or hurting someone during sex after explicitly requesting the person to stop or move. Rape can even be forcing someone to partake in something they normally would be fine with, but in the specific circumstance, isn’t.

    However, this is not the same as non-consensual sex. Non-consensual sex is sex where one party, for whatever reason, does not feel they can decline sex, but is not knowingly forced or coerced by their partner. Instead, they are compelled by external forces and internal beliefs, typically brought on from societal norms.

    I have had non-consensual sexual experiences, as the non-consenting party, but I haven’t ever been raped, and the difference is the intent behind it. I was not coerced, not physically or mentally forced into it, nor was I unable to consent, either from intoxication or fear. I did not say yes, then was denied a request for a change in activity/position, I didn’t withdraw my consent halfway through, it wasn’t something that “accidentally” went too far.

    However, if I didn’t allow my partner to engage sexually with me, I was scared he wouldn’t want to date me anymore. I was told sex in a relationship was a normal thing, and it was prudish and mean to withhold it. I believed having sex was something I should want and would bring us closer. I said yes, I allowed it, I didn’t make any attempts to stop it or voice my unhappiness with the situation. I even restarted foreplay and assured him I wanted it when he saw I wasn’t into it, despite the fact that I didn’t want it. I doubt he knows that I wasn’t a wholly willing partner, even if he’s aware I was not always enthusiastic. He probably thought I was just nervous. Instead of making my desires known, I capitulated to his under the pretense of making him happy. The fact that I had any sexual encounters I did not want was on me.

    People are different. For some of us, the playbook doesn’t work. Not always do make-out sessions or cuddling lead to sex. Non-verbal consent may simply be consent to the current actions, and verbal consent does not always imply approval, only compliance. There is no way for the other party to know if this sexual encounter is compelled or not. This is what non-consensual sex is.

    Non-consensual sex is not rape; it is societally forced behavior that has nothing to do with the eager other party. Regrettably, this may be worse for some than others. Having something forcibly taken may not be as bad as willing giving that same thing up when you didn’t want to. Non-consensual sex will always be the victim’s fault, despite being pressured to concede. I will always live with the fact that I could have stopped it with a single word, but didn’t.

    • Yasmin
      Nov 14, 2016

      Dear Mya,

      Thank you for your response to this article and for sharing your experience and feelings of insecurity in your relationship. I think what you have shared is felt by many people; the feeling of ‘if i don’t have sex then they will leave me’, society often tells women that it is their role to give men sex regardless of how they feel or or what they want.

      In the article I wrote that “non-consensual sex is rape and rape is a crime”, I still believe this statement to be true. The term ‘sex’ by definition is consensual, terms like rape and sexual assault are not consensual. The term ‘rape’, comes across as violent, and powerful while non-consensual sex sounds less bad, and therefore more people may be more comfortable using it.

      In your response you differentiate rape as “Rape is where a victim is physically or mentally forced or coerced into having sex, or has sex forced upon them whilst unable to consent, due to drugs, intoxication, fear, age, or position”.

      While non-consensual sex is ” sex where one party, for whatever reason, does not feel they can decline sex, but is not knowingly forced or coerced by their partner. Instead, they are compelled by external forces and internal beliefs, typically brought on from societal norms.”

      In your experience, you were not a “wholly-willing partner” however, a key difference you pointed out is; “I didn’t withdraw my consent halfway through, it wasn’t something that “accidentally” went too far”, which sounds there was an element of consent. When you talk about “willingly giving something up when you did not want to” there is still an element of consent.

      When I discuss rape, there is no consent, there is no element of consent, or that consent was removed. Non-consensual sex by definition is a form of sex that does not include consent which I would argue is still rape.

      Rape is never the victim’s fault, non-consensual sex (still rape) is never the victim’s fault.

      Although I do not agree with your understanding on non-consensual sex. I do agree that, in the relationships we build, the onus of having the other person understand us and our feelings falls on to us despite this being challenging and sometimes feeling impossible. Our partners can not read our minds, which is probably a good thing sometimes! and we have to learn to be more open.

      Thank you for spending the time to share your thoughts! We all learn through healthy discussion!

      All the best,

      Yasmin

  4. D
    Nov 13, 2016

    I was in a relationship and didn’t know this boy was waited until I was intoxicated and possibly put something in my drink, to secretly record himself having sex with me while I’m unconscious! Is that no consensual?

    • frygtl0s
      Nov 13, 2016

      Hi, I am very sorry to hear what you have gone through. What you are describing is what is known as date rape and you are the victim of a crime. Recording anyone while having sex without their knowing is also illegal. I would advise that you seek professional help, someone to talk to like a psychologist or counselor. If you feel comfortable, it would also be a good idea to report it to the police as these are criminal offences.

      If you live in Nairobi, you can call us on 0780 211 113 and we can try to help you find assistance.

    • Yasmin
      Nov 14, 2016

      Dear D,

      Sharing your experience takes a lot of courage, thank you for sharing it with us.

      You did not consent to what happened, you did not agree to it. You were in a relationship with this person but that did not give him the right to do what he did.

      Sometimes people who go through similar experiences see changes in sleep, appetite, the way they feel about themselves, the world and their future. These are normal reactions to an abnormal situation.

      I hope you were able to talk to someone, you feel safe with, and get any help you may have needed.

      If you do not know where to go to get help please call us on 0780 211 113 and we will try and find you the assistance you need.

      All the best,

      Yasmin

  5. Sandra O
    May 10, 2017

    How do you define rape and consensual sex if it started out consensual and then she changed her mind and now calls it rape? Who is right and who is wrong? Who stands in a courtroom? Who really is the victim? I believe the term”rape” is used to loosely and to often.

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