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The 'Miscommunication' Defence (and Why It's Not a Defence at All)

By Gabriella Bosticco


One way in which some people will try to avoid accountability is by claiming that their actions were caused by a 'miscommunication'. Sure, they'll admit that there was a breach of consent, but it wasn't on purpose. However, this doesn't excuse their actions.


The word 'miscommunication' spreads the blame, implying that the problem came from both sides. It implies that the victim somehow didn't communicate effectively and that's why the assault happened. It's a prime example of victim blaming language.


The reality is, if you're having sex with someone, it's your responsibility to ensure that they consent. This isn't just morally, but legally, too; during criminal cases surrounding sexual acts, the steps that the perpetrator took to obtain consent are looked at. If those steps are non-existent, then it's the perpetrator who's liable, not the victim. The Crown Prosecution Service page on consent clearly states that "there is no requirement to communicate lack of consent". It's not up to the victim to communicate that they don't consent, but up to the perpetrator to get consent beforehand.


What people who try to use this defence are actually saying isn't "we didn't communicate well", it's "I didn't fulfil my duty to obtain consent". This is a failing on their part.


While 'accidentally' assaulting someone may not be as malicious as doing it deliberately, it's still an issue. It's still something that people should be held accountable for, and suggesting otherwise is not only harmful to victims, but creates an environment in which it's acceptable to do things without consent. Rape culture relies on making excuses for people who use these so-called 'grey areas' to get away with it, and letting them do so is part of the problem. Using this kind of language is harmful to all victims. As recently shared on our Instagram, 60% of victims use phrases such as "bad sex" or "miscommunication" to describe their own experiences. By accepting it when perpetrators label rape as a misunderstanding, we reinforce their manipulation of victims, and help them blur the public perception of the definition of rape.


Instead of focusing on how victims supposedly communicate, we should focus on the choices the perpetrator made. Assuming consent is no excuse for assault. Regardless of past consent, or what other things they've consented to, silence is never consent. If consent is withdrawn, it is the other person's responsibility to stop. Immediately.


Obtaining consent is simple, and there's no justification for not doing so.


Examples of obtaining consent:

  • "Can I ___?"

  • "Are you comfortable?"

  • "Do you enjoy ____?"

  • "Do you want me to stop?"

  • "How far are you comfortable with going?"





Sources:


Crown Prosecution Service, Rape And Sexual Offences Chapter 6: Consent

https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent


Wilson, L.C, & Miller, K.E, "Meta-analysis of the prevalence of unacknowledged rape", Trauma, Violence and Abuse 17(2) (2016) p. 149-159



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