Rape in Game of Thrones and the Problem of Consent

This piece will contain spoilers for the HBO show Game of Thrones. 

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Last week, there was a scene in Game of Thrones that upset some people including Claire McCaskill who will not be watching anymore (way to make a stand, Claire!). The scene depicted the "rape" of Sansa Stark on her wedding night at the hands of Ramsay Bolton (formerly Snow). Put aside the fact that rape is a fact of life in our world (and that of Game of Thrones), and it's silly to attribute (as politically correct ninnies often do) an endorsement of conduct engaged in by the most odious characters in a show to the creators of that show. Ramsay Bolton is not a manual for how the show's creators think people should behave. He is advertised as scum and behaves accordingly. He tortures a man to death and sends killer dogs after helpless girls, but apparently that wasn't that bad for Ms. McCaskill.

Our culture's childishness is not, however, what I want to write about here. Instead, I'd like to take this particular scene and the reaction to it as an illustration of the difficulties in defining and prosecuting rape.

The core of sexual assault is a lack of consent on the part of the victim. The only thing that separates legal sexual contact from illegal sexual contact is consent. You can do the most bizarre and aggressive things to the genitals of another person (or with your own), and it's legal if the other person consents. In that way, sexual assault is much different from other violent crimes because (rightly or wrongly) I can't cut someone's head off no matter how badly he wants it, so consent is not an issue. However, in the case of sexual assault, there is often a presumption of consent, which is a crucial part of social interaction in a given society.

If I walk up to a stranger at the bus stop and grab her breast, I've almost certainly committed a sexual assault. The strange thing is that my criminality is only ALMOST certain. The strange bus stop girl could like having her breast grabbed by strangers (or particular strangers). It's very unlikely but possible in which case I would not have committed a crime but maybe gotten myself a date. On the other hand, if I poke her in the eye,  I've committed a crime with no question, and there is not likely to be a date.

Nevertheless, the stranger scenario is still pretty easy most of the time. It's safe to assume that a strange woman doesn't want me to grab her breast in our culture. but what if I grab my girlfriend's breast without asking her? Unless we have a strained relationship, it's very unlikely I've committed a crime. These types of ambiguities just don't exist with other crimes (like punching people in the face or stealing money). If I am arrested for punching someone in the face, "he consented to me punching him" is very unlikely to be a successful defense. In the case of sexual assault, however, "she consented (or I reasonably thought she did)" is a very reasonable defense in many situations.

This brings me to the controversial scene between Sansa and Ramsay. It's very understandable that Ramsay's actions are classified by many as rape (especially given his history of depraved behavior). However, in the context of Game of Thrones, it is presumed that a wife and husband will consummate their marriage, and that wives consent to having sex with their husbands. In fact, the marriage isn't valid if there's no sex (that was why it was such a big deal that Tyrion didn't have sex with Sansa when they were "married."). Despite this, if Sansa doesn't want to have sex, can she be raped? Does she have to say "no"? In the scene, she doesn't say "no" so we don't have that aspect to deal with. If there is a presumption of consent, and she never explicitly revokes it, then she isn't raped. To use the girlfriend example again, if I grabbed my girlfriend's breast a year into our relationship with plenty of previous breast grabs in our past, she would not be able to file sexual assault charges successfully, even if she really didn't want me to grab her breast on that particular occasion, without telling me "no" explicitly because there is a presumption of consent in a relationship where breasts have been previously grabbed with consent. And I think most people, even the most ardent feminists, understand that this is a good thing. The alternative, which few approve of, would be to require every person to get explicit consent before any sexual touching. Even in such a society, how would you know who was telling the truth about the giving of consent? Would every man be advised to get a signed consent form before each sexual act? That seems a bit awful, and compliance would be very low anyway.

Now it gets more complicated. Ramsay is definitely not a rapist by the laws of his world because it's unlikely Westeros even acknowledges that wives can ever revoke consent in a marriage (this was also the law of the United States until relatively recently, and it might still be in some states). Under modern US law in most or maybe every state, Ramsay has committed a rape. Or has he? Sansa very clearly, to us, did not want to have sex with Ramsay. But does Ramsay know that? As mentioned before, Sansa doesn't ever tell him. Should he be able to figure it out by how slowly she takes her clothes off? I think so, but that's a tough standard to imprison people by. There's also an excellent argument to be made that Sansa is in a position of such little power that she can't say "no" without jeopardizing her safety, so any consent she gives is meaningless. However, this would preclude Ramsay from ever having sex with his own wife (he'll always have the power to kill or hurt Sansa with impunity because of who he is) even if she later got a lust for dangerous sex like that other weird girl (Miranda?).

Finally, even if we assume that Ramsay knew Sansa didn't want to have sex, and he forced her to do so, how on Earth would you ever go about proving that beyond a reasonable doubt (or even with clear and convincing evidence)? You just can't. Maybe you could call Reek as a witness, but the best he can do is speculate and offer his thoughts on what someone else was thinking. And if Reek had not been around, Sansa's claim would be completely unsupportable. That's just the  nature of the crime.

I want to make it clear. I AM NOT taking a position on whether or not Ramsay actually raped Sansa (but I lean toward "yes"). It is my experience that too many people are incapable of discussing this topic rationally and calmly for me to have any interest in taking a firmer position. I am simply trying to point out why sexual assault is so difficult in particular cases even when it might seem simple on the surface. The extreme cases are simple, but at the margins, determining whether a sexual assault has truly occurred is difficult. Feminists and liberals talk about how much easier it should be to prosecute rape, but they never explain how to do that and maintain a justice system that doesn't convict based on hunches or mere suspicion.