Does a Sexual Position Indicate Consent?

Posts have appeared recently at both Abyss2Hope and SAFER on a rape trial in which the most egregious rape apologism was committed not by a defense attorney, who can and probably should be expected to engage in such behavior, but the judge. Even worse, the judge interrogated the victim not during the course of the trial itself, but during sentencing — after the defendant had already been convicted of rape by a jury of his peers:

Although the jury already had found Escobar guilty of aggravated sexual assault, Fine went on to challenge the victim’s version of events, doubting her truthfulness on details from her vague time line to the method in which her clothing was removed. Near the end, Fine remarked that “sending an innocent man to prison in the name of law and order is the greatest injustice this society can do.”

Obviously Judge Fine’s overall questioning was rooted in his own ingrained misogyny and disrespect for rape victims. But it’s his specific reason for distrusting this victim’s story that is particularly interesting, widespread, and in need of further discussion: he didn’t like the sexual position that was used throughout the rape.

What shocked the victim most was when the judge questioned whether she was really raped since he found it “odd” that was she was on top of Escobar during the assault. The judge required the victim to recount, in detail, her position during the rape and explain how Escobar, who maintained the sex was consensual, was able to force himself on her.

“I know these are tough questions and I don’t like to have to ask them,” the judge told the victim, according to a July 31 transcript, released late last week. “It’s just you understand that most rapes take place with the man on top so he has complete control of the female.”

The question drew an objection from Prosecutor Ed McClees, who questioned the relevance in a tense exchange. The judge argued the law allowed him to consider facts and circumstances of the offense to determine the appropriate punishment.

What Judge Fine did is absolutely, 100% inexcusable. As a man in such an important and powerful position, he should be well and high above rape myths. We should be able to expect that he not stoop to the level of online comments (be kind to yourself; don’t go read them) when it comes to the idea that X situation makes rape impossible. And this is especially so when the victim had undoubtedly already explained the circumstances of the rape based on the very structure of a rape trial.

For those who are interested, the explanation is as follows:

The victim testified that she repeatedly fought her attacker, but that he wasn’t fazed by the blows to his face and was able to force himself on her. All the while, she said, Escobar threatened to put her “in the bayou,” claiming to have killed five people already and saying he’d do the same to her with a knife she believed he had in his pocket.

And so what we have here is a woman who actually physically fought back, and had her life threatened. And still, that lack of consent wasn’t seen as good enough for the judge.

What this line of questioning by Judge Fine betrays is an understanding of rape as only possible in a situation where non-consensual sex is achieved through brute force. Indeed, as he says, when a rapist “has complete control of the female.” In other words, he sees rape not for its correct definition as sex enacted on another person without their consent, but as sex obtained through brutal physical force despite the victim’s best attempts to physically fight off her attacker.

This definition of rape is old fashioned, and it is misogynistic. It assumes that a woman’s autonomy and right to make decisions about her own body counts for absolutely nothing unless she is willing, even in the face of fear, threats, and other violence, to persistently and consistently back up her will with as much physical force as she can muster. And it’s a view that is exceedingly common.

It is in fact true that the position the attacker used during his rape is not the most common one used. I, however, personally suspect that his choice in this regard was about humiliating his victim further. It’s not exactly unheard of for a rapist to degrade his victim by forcing her to vocalize “enjoyment” of the rape — something that usually brings additional trauma with it. Using a position that is not regularly associated with rape, but with consensual sex in which the female partner is an active participant, I believe was intended to create the illusion that the victim “wanted it,” likely distressing her even further in the process.

Again: rape is sexual activity committed without the meaningful, enthusiastic consent of one of the parties involved. It is entirely that simple. A victim complying with her attacker out of shock or in an attempt to minimize harm is not consenting. Consent is a willful “yes.” Compliance is agreeing to stop saying “no.”

And on that note, I’d like to close with a thank you that should not be necessary, but in our current climate is sadly deserved. First, to the writer at the Houston Chronicle, who took the time to publicly and loudly denounce the judge’s actions, stating “Coercion comes in many forms. By gunpoint or perceived threat. From a stranger, or a boyfriend. And in various positions.” And most of all, to the jury in this case, for convicting a dangerous rapist in a world where compliance is so regularly mistaken for consent. Thank you for making the right call, and in doing so helping to break down that myth just a little bit more.

0 thoughts on “Does a Sexual Position Indicate Consent?

  1. abyss2hope


    I’m glad you found out more information about this case. Disgusting. Judge Fine’s actions are directly helpful to the most violent rapists. He should resign now that the transcripts have been released.

    His definition of sexual assault clearly does not uphold the law and someone who shows a lack of understand of the law has no business being a judge.

  2. factcheckme

    i am often struck at how many men (and women)vehemently argue that if a woman “didnt say no” that means she consented. misogynistic notions of aggressive, entitled male sexuality, and passive, compliant females abound, and are often brought to center stage after a rape occurs. specifically, that even if a woman wanted sex, she would still lay there passively “taking it” or coyishly play-fighting him off because thats what passive women “do.” so how was he supposed to know right?

    how about reframing “consent” by asking not whether she said no, but whether the woman actively “said yes”? is the woman an active, enthusiastic participant in a voluntary exchange? so far, the very definition of “consent” seems particularly useful to men, and men only as a guideline for keeping them out of prison. rather than as an actual concern for whether the woman desired to have sex with that particular man, at that time and place. whether something was “against her will” or “unwanted” almost requires, by definition, that she make known her opposition it. rather than requiring that, before an encounter take place, that she had made known her desire *for* it.

    of course, they also cover all their bases dont they, in presenting evidence that she “wanted it” with her manner of dress, etc. but i think a reframing of the very concept of consent is deperately needed here.

  3. Angie

    Well, I guess according to the Judge, men can’t be raped *unless* the woman is strong enough to pin them down and be on top. Not to take away from the outrage or minimize the stupidity of his comments, but it’s another angle that proves just how ridiculous his comments were in the first place.

  4. factcheckme

    lets not derail the conversation by introducing the essentially non-existant “woman rapes man” scenario. but you raise an interesting point. why not ask the question this way: is male-on-male rape *never* rape then, since a man should be able to fight off another man in all instances? the judge is obviously using the average sizes and strength of women versus men in his assessment of self-defense in this case. what would his assessment be, in the case of 2 men?

    1. Cara Post author

      Woman on man rape is not “essentially non-existent.” Happening at a hugely, intensely lower rate as the opposite is not the same as “essentially non-existent.” If there’s any reason that the example given is a bad one, it’s because there’s an implicit assumption that most rape apologists would change their tune in the case of a male rape victim and female perpetrator — it’s just not true.

      Also, just a tip: if people want to visit your blog, they can do so by clicking on your username. By placing your url at the end of your comments as well as in the URL line of the comment form, many commenting systems tend to read it as spam, because it’s a common tactic of spammers.

  5. Prudence

    It never astounds me just what attitude judges have to rape. They seem to forget all the surrounding circumstances and only look at whether the woman seemed to consent, ie whether the man could be excused from the charge against him by arguing he didn’t know that she didn’t consent. This assumes reasonable behaviour from the man, but this cannot be presumed and in this case there was clear evidence that the woman already feared the man, she’d already gone past the point where her lack of consent was going to make any difference. He was going to get the sex from her anyway, regardless of the position. I wrote about this at my blog (my first post) about the fact that there is a time in the rape scenario when the victim gives in to the situation and then tries to make the best of it. If you are threatened with violence or you don’t know whether that person will be violent or not, then you will go along with what they want to get yourself out of the situation as unscathed as possible. The line has already been crossed by the man, he’s already made it clear that the normal boundaries do not apply, so the actions of the woman can not be interpreted as if the situation were consensual sex.

    And people wonder why rape victims don’t bring cases to trial…

  6. M

    I had heard about this incident before but not the specific details about the “position” and reading it now just makes me sick, makes me remember why I thought it was unlikely anyone would listen to my own assault story. Rape is rape, regardless of the position, making that question completely irrelevant in seeking a sentence for someone clearly guilty of the crime. I’m just so disgusted that even the justice system works so well FOR rapists rather than against them.


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