Here’s an exercise that the CAPS volunteers did in past peer supervision meeting to get us thinking about alcohol consumption and risk-reduction messages. I liked it most for its ability to show us our social stereotypes clearly. What are the first words you think of when you hear the phrase “drunk girl?” Did you come up with a list like: trashy, sloppy, stupid, irresponsible, slutty, available, easy? What about “drunk boy?” Was your list something like: violent, belligerent, stupid, frat-party, or horny? For those of you who’ve been progressive for a really long time and didn’t have lists like that, you can use a Google search for both phrases and get a pretty clear indication of what the rest of the world thinks of these two different hypothetical people. For women, it’s all moralizing and titillation; for men, it’s all violence and wacky antics.
I’ve written before about gender branding - how all of us are labeled with social symbols based on how we identify, and how those symbols are an obstacle to ending rape. This is on my mind this morning because of a case I heard about recently (it’s a few weeks old, but I’m only hearing about it now): a woman in St. Louis lost a lawsuit against soft-porn peddlers Girls Gone Wild when a judge determined that she implicitly consented to baring her breasts for the camera, even though she explicitly did not.
A Missouri jury has gone wild in a case of involuntary nudity, finding that a woman consented to appearing topless in a “Girls Gone Wild” video by playing to the camera before another person pulled her top down.
The woman, identified only as Jane Doe, had no expectation of privacy, the St. Louis Circuit Court jury declared last week, even though she said “no” when a “Girls Gone Wild” crew asked her to bare her breasts as they were filming at a St. Louis bar in September 2005 and never signed a release allowing any use of her likeness in a video.
...Doe sued Mantra in 2008 for negligence, invasion of privacy and misappropriation of her likeness after a friend of her husband told him he had seen her in the video “Girls Gone Wild Sorority Orgy.” She was seeking at least $2.4 million in damages for post-traumatic stress and psychological injuries.
But the jury, which deliberated only 90 minutes, bought what was in effect a “blame the victim” defense - that Doe consented to being filmed topless by being in the Rum Jungle bar and dancing for the cameraman. Another patron grabbed the shoulder straps of her tank top and pulled them off her shoulders, causing the top to fall down and expose her breasts.
“Through her actions, she gave implied consent,” jury foreman Patrick O’Brien told the St. Louis Post-Dispatch. “She was really playing to the camera. She knew what she was doing.”
The 26-year-old mother of two said she was “flirting with the camera” but “never, ever planned on crossing the line of being exposed in a sexual manner or being on this DVD. I didn’t show my boobs. They did.”
Implied consent is consent that is not formally expressed but can be “manifested by signs, actions or facts, or by inaction or silence which creates an inference that consent has been given.” Most states no longer allow implied consent as a defense in sexual assault cases. (emphasis mine)
To review what I know of this case:
- A woman was dancing in a bar.
- Girls Gone Wild was also filming in the bar, but she didn’t know that.
- A member of the GGW staff asked her to take her top off; she said no. Explicit non-consent.
- Someone else in the crowd pulled her shirt off against her will. This is sexual assault, and a pretty well-known form of it.
- GGW filmed that, put it in a video, and sold it for what the defendant believed was about $1.5 million.
- The woman never signed a consent form, never indicated written permission to be in the video, and received no compensation for appearing in it.
- Judge in Missouri finds that she gave “implied consent” to be filmed, to be filmed topless, and to be distributed nationally because…well, she’s a woman, right? They never say what they mean.
That the jury only took 90 minutes to deliberate is a pretty good indication of how branded gender is, and how much we all buy into it. This woman explicitly said she would not strip for the camera, but her use of actual English words with specific denotations didn’t matter in this case - this was as clear a “no means yes” situation as I’ve found. Even if she was giving the camera all sorts of sex-eyes and gyrating all kinds of hypnotic on film; she said no. I’m not a lawyer (yet!), but I can’t understand how explicit, verbal, recorded non-consent can somehow be magically translated to consent during trial.
One of the major aspects of gender-branding for women is that women are coy; women are indirect, women say no when they mean yes. I’d like to think that in reality, most reasonable people understand that these associations we have with women are wildly untrue, but stories like this one make me wonder how reasonable people really are. Because women have been branded as fickle, deceitful, and manipulative, it’s depressing but not surprising that so many folks can handle the double-think necessary to assume that a woman can say “no” and really, deep-down, mean yes. As I wrote earlier, it’s really hard to fight for good criminal justice procedures for crimes like rape and sexual assault with this type of branding hanging over every legal interaction a survivor faces. Every report he or she makes gets extra implied meaning attached to it, and those extra ideas generally water-down or hurt the survivor’s chances of getting to trial.
The other reason this is in my head this morning: Judge Walker’s decision on Prop 8 in California. I know I already waxed ecstatic about it last week, but I can’t help but feel positive about the future with his decision, and not just for the future of LGBT civil rights. Walker’s decision was one based on fact, not on the branding of gays or lesbians; in fact, he and his clerk specifically point out that the stereotypes of gays and lesbians had long been an obstacle to justice. Judge Walker, in my mind, seems to have staged a judicial war on the harmful social view of the LGBT population using reason, facts, and research as his ammunition.
And this is what we need in the fight for more reasonable rape and sexual assault policies, too. As long as idiots believe they knew what a survivor really meant when she said “no,” we’ll have a hard time getting survivors justice.
On a side note, for more fun with gender-branding, check out Leah of Not a Dirty Word and her awesome post on “How to Hang On to Your Lady,” a hilarious reversal of all the dating/sex guidelines we give women about how to trap/keep a man. I’m really trying to think of good things to add to her list. We’ll see if I can come up with anything interesting.