– When a woman presses the eject button, men can’t be expected to immediately withdraw, says human factors science.
Frozen, Disney’s highly successful animation series, captivated little girls across the world. So too, the feminists have had huge success in promoting their own version of “frozen” – instilling in criminal courts everywhere the notion that rape victims often suffer a physiological state known as “tonic immobility” which renders them incapable of resisting their plight.
No matter that the science behind this theory is problematic – as Emily Yoffe explained in her article on bad science supporting prosecution of sexual assault. “I froze” has become the uniform description covering every oddity in the rape victim’s behaviour and flawed memory of events – a description that’s invariably accepted, totally unchallenged.
But men’s physiology is seen as irrelevant. There’s zero interest in examining men’s capacity for response in varied sexual situations let alone any pressure for science on male bodily processes to be considered in criminal investigations and proceedings.
Yet this issue is central to determining guilt or innocence in a critical area of criminal law – the issue of revoked consent. With the introduction of affirmative consent laws, not only is consent required throughout sexual activity, but women have the right to pull the plug whenever they feel like it. And men are expected to immediately snap to attention and withdraw.
Easier said than done, you might say. Well, that’s the issue. Most judges seem to assume that there’s no problem in expecting an immediate retreat from the male in response to the female red flag. Never any consideration of whether he even noticed the flag, or realised what it was, or whether she was waving it clearly, or maybe that he might have been frozen, rendered immobile due to surprise and shock.
There’s a fascinating article on the legal issues at play here – Consent Interruptus: Rape Law and Cases of Initial Consent, by University of Western Australia law lecturer, Theodore Bennett. He spells out the legal arguments resisting any notion of allowing a reasonable time to withdraw after revoked consent, with feminists objecting that this “primal urge’ argument perpetuates the myth of the unstoppable male who can’t be responsible for his rampant sexuality. Kansas State feminist scholar Lois Pineau says the claim that men don’t have immediate control is “factually unfounded.”
Not so fast, says an expert in Human Factors and Ergonomics (HFE) – which is the science of how humans behave and interact with each other in various environmental contexts. I’ll call this Australian expert “Anton Crabtree” – unfortunately he’s decided he needs to disguise his identity due to the tricky ideological climate in today’s academic world.
Dr Crabtree also has expertise in aviation medicine which is precisely the area we usually associate with HFE, given its vital role in investigations of human error in situations like plane crashes. Crabtree makes a compelling case that this type of examination of neurocognitive and physiological limitations also has bearing on whether men crash and burn in the bedroom.
“The absence of the rigorous assessment and well-established scientific considerations of Human Factors analysis is a glaring omission to any claim of a fair system of justice for persons accused of sexual assault after revoked consent. Ignoring the science inevitably risks further miscarriage of justice which can be catastrophic to individuals and families and damaging to society,” writes Dr Crabtree in an academic paper he is preparing for publication on the subject, which examines case law revealing this ongoing deficiency in our justice system.
I’m including a draft of this groundbreaking research article here and hope you will help circulate it and ensure it receives proper attention – particularly in legal circles where there is such a dire need for education to address the ongoing injustice occurring in these cases. This research should also have a place in the sexual consent courses being taught in our schools and universities.
The case described by Bennett which really blew me away involved a blind man (Morton) who was charged with sexual assault after being set upon by three young girls. They pulled down his pants and a seven-year-old then commenced fellatio without his consent. The judge commented: “it seems clear that the initial introduction of the accused’s penis into her mouth did not occur as the result of any voluntary act on his part”.
Yet Morton was convicted because he failed to extract his penis out of the girl’s mouth quickly enough. The law deemed that this was sexual assault because he “voluntarily” allowed the act to continue “for a few seconds” by not moving.
Morton testified that because of his impaired vision he tended to freeze in response to unexpected events. Crabtree comments: “In these circumstances, feeling a small mouth and sharp teeth around his penis would be a genuinely startling event and freezing is a normal non-volitional reaction to startle. Additionally, even when he had recovered sufficiently to make a neurocognitive assessment, he would be justified in his fear of his penis being bitten if he reacted in any other way than freezing. “
As Crabtree points out the startle response has been described in the literature for over 100 years. It’s well understood that the “fright fight flight or freeze response” is an involuntary reaction to a sudden, sharp, unexpected stimulus.
Like a blind man feeling a small mouth gripping his penis.
Or any man wallowing in the pleasure of a consensual sexual experience who is suddenly told the deal is off. He’s now having non-consensual sex. Which means rape. Which could mean prison.
Dr Crabtree explains that after the initial shock, it takes time for a man’s body to be capable of the much slower cognitive assessment and decision-making process required to process that troubling message, particularly when his body is subject to the sensory overload associated with high levels of sexual arousal.
He explains: “At high levels of sexual arousal, males are subject to sensory overload, where their psychological/physical resources are focused on their growing excitement. This means it may take very clear, repeated and even forceful intervention for the male to perceive consent is being revoked. It is unrealistic to assume a man at such a time is in full control of his neurocognitive processes, and physical responses. It is unrealistic to expect that cessation of the sexual act and withdrawal of the penis can occur instantaneously or near instantaneously at the time a complainant decides to revoke consent.”
It is Dr Crabtree’s view, that given the serious consequences for accused men, women should be required to make sure their message revoking consent is not only sent but received and understood – “even if this requires clear repeated and escalating intense words and actions.”
Yet Theodore Bennett’s summary of relevant case law mentions an alleged victim who revokes consent by saying, “Wait.”
What’s that supposed to mean? Surely, she could simply be saying, “Slow down and wait for me.”
There’s also a 1988 case where the complainant says, “Quick, it’s them” when she hears the sound of her mother’s car. As Theodore Bennett explains this could mean “quickly finish” rather than “quickly withdraw.”
Note that there’s active discussion amongst American legal scholars regarding a legislative requirement that revoked consent must be effectively communicated, but no apparent interest in this issue in Australia’s feminist-led legal community.
It received absolutely no attention from the trial and appeal judges involved in Australia’s most famous revoked consent case, involving Kevin Ibbs, a Perth man who became known as the “30 Second Rapist” because he was convicted of sexual assault after continuing for 30 seconds after his partner revoked consent.
In fact, the whole ghastly business was a set-up, with Ibb’s wife arranging for her best friend to have sex with him and then revoking consent – to get him charged with rape and sent to prison, so that she could get hold of the marital home. It worked a treat – Ibbs ended up in jail. Eventually his conviction was quashed, he was acquitted and the two women were briefly imprisoned. However, by then Ibbs had lost his reputation, his business, all his assets and, eventually, his life – he committed suicide some years later.
So how did the woman in this case revoke consent? By announcing very late in the proceedings that it was “not right” because Ibbs’ wife was her best friend. Get a load of this – Ibbs had already stopped once, to get the complainant to confirm with his wife that she was OK with the sexual encounter. It was, so they got back into it and then the accuser waited until he was highly aroused before complaining it was not right. In no way was this a clear statement that she was withdrawing consent. Yet the judges fluffed around with all sorts of pronouncements about the “reasonableness” of the 30 seconds he continued in the saddle, arguing about whether Ibbs response should have been “nearly instantaneous.” To my mind the whole thing was both unscientific and egregiously unfair.
With affirmative consent laws only recently put in place and sexual consent courses teaching girls that they have the right to withdraw consent at any time, we can expect to see many more such cases. It’s abundantly clear that this entire system is designed simply to nail men – which means there are very different rules for women and men.
Like – women freeze but men don’t. Crabtree mentions a NSW case involving a clearly manipulative 16-year-old who admitted to using sexual texting to bully the defendant, JP, before accusing him of sexual assault. The incident took place in a cramped car, where she withdrew consent while lying on top of him. JP explained that when she suddenly said “no”, he “froze”… “I basically lost control, went into a lost mind”. As she was on top, he could not withdraw.
Crabtree explains that from an ergonomic point of view, it’s unlikely JP would have had the strength or room to lift the girl off him in order to withdraw his penis. JP said he did not want to “grab” her to try to remove her as he was worried about her seeing it as assault.
In the end this young man was lucky. His excellent silk, Margaret Cunneen SC convinced the jury to acquit him. But many accused men aren’t so fortunate.
Crabtree makes a strong case that HFE investigations should be informing the court, just as this science plays a role in determining responsibility in plane crashes and other incidents. “The most important proven principle of HFE investigations is not to jump to conclusions particularly of blame or culpability. HFE demonstrates that an approach that combines sound investigative process and proper support for victims/complainants can co-exist with the presumption of innocence and the right to due process. The science has shown us that this approach combined with better understanding and education leads to better outcomes.”
Better, fairer outcomes, no doubt. But in the current climate the goal appears to be to simply obtain more rape convictions. So, hang the science, unless, of course, it can be used to ensure more “victims” come out on top.
Now please read Dr Crabtree’s trailblazing research article and help me circulate it widely. Here’s the link again. We welcome your advice about publishing opportunities to enable us to educate the legal community, people involved with sexual consent courses and other relevant professional audiences about this important work.