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there is no "agency" if someone doesn't feel physically, mentally, and emotionally safe in responding.
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It's troubling to me that there's no expectation of reasonableness here when the consequences to the sexual partner are so severe. I think it's unreasonable to invite a (recent) former lover into your bed, wish for him to stop his second attempt at intimacy, and say and do nothing to convey your wishes. In fact, I think it's insane. Of COURSE there are circumstances where women reasonably fear physical or emotional punishment for saying "no," and of course it's rape if they stay silent due to that intimidation. But this survivor didn't claim any fear of this kind -- not even based on earlier trauma, much less this guy's actions. It's not clear to me that this guy knew that she didn't want to have sex at the time it happened. (If she'd even shaken her head, I'd want him in jail. But she didn't.)
I support an affirmative consent rule that's clear to everyone as a community standard. I applaud schools working to establish that standard explicitly. But it wasn't in place at the time and place of that case. I don't think expulsion and the "rapist" label are the right consequence for these facts.