BBC

The premise seemed troubling. A live, viewer vote-in TV show titled "Is this rape?" Had interactive television reached its dystopic nadir? A board room of BBC executives, scraping the idea barrel and pulling out some monstrous hybrid of Big Brother and a reactionary episode of CSI: Special Victims Unit. There's little wonder that organizations for rape survivors were concerned ahead of the airing of the BBC3 program, aimed at its youth audience.

"Is this rape? Sex on trial" aired earlier this week in the U.K., and the title alone drew controversy. In it, a group of 24 teenagers are taken to a remote location, where they watch a fictional short film depicting a rape, and the subsequent trial of the rapist—a teenage boy who, after a booze-fueled house party, forced fellatio on a barely conscious, inebriated ex-girlfriend. At various points, the viewing teens (and the audience watching at home) were asked to weigh in the questions "did she consent?" and "is this rape?" Many, but not all, of the participants agreed with my unequivocal conclusion that the narrative depicted a rape. It did.

The impetus behind the program, according the BBC, was not to turn the topic of rape into a tawdry television spectacle. It claimed to be an exploration and exposition into teens' attitudes and confusions around consensual sex. And indeed, reliable old, bad canards arose. "She didn't stop him," it was "almost-rape," he was a "nice, normal guy," "they had done it before." Yet most of the participants' opinions, and the viewer vote-in percentages, revealed a reassuring understanding that the absence of a "no" doesn't equate to a "yes." It wasn't tawdry; it had the low budget air of a made-for-the-classroom documentary. And heaven knows why the kids required a "remote," "unnamed" location, devoid of phones or computers, to watch and discuss a short film. I suppose reality TV tropes had to sneak in somewhere.

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The show concludes with a number of the teens, talking-head style, vowing to think more carefully about consent. A round-faced blonde boy seems close to tears as he wonders whether he has transgressed lines of consent in his past. It's quite a thing, to watch a young man come to terms with the very real possibility that he has committed rape. It's a self-reckoning we almost never see; if it takes a purposefully provocative TV show to bring it to the fore, so be it. British media reviews (it only aired in the U.K.) have duly expressed concern about troubling ignorance around sexual consent in some of the teens' opinions. More fool the critics who had thought we, teens and adults, had reached healthy consensus about what constitutes rape and consent.

The show partitioned the fictional narrative by showing the event of the rape separately from the court case. After watching the event, the audience was asked "did she consent?" and after watching the trial scene they were asked "was it rape?" The teen viewers were swifter to agree that the girl in the film had not consented than they were to assert that, yes, this was rape. The "R" word loomed too monstrous for some. To this, a young woman, who had come forward as a rape victim earlier in the show, bawked. "What are you talking about? It's not like murder, where there's manslaughter. It's rape, it's torture." And while there should be no challenge to the trauma, shame and pain experienced by so many rape victims, and the fierce necessity to apply the term "rape" when rape has occurred, the reason should not necessarily be because rape "is torture" (although it can be.)

Screen shot from the BBC's 'Is this rape?'
BBC

The disparity between the teens' thoughts on whether consent was given and whether it was rape establishes the show as a significant contribution to our impoverished discourse on sexual assault. Given the consistency with which rape victims are ignored, shamed, or blamed, it is understandable that the struggle to see rape taken seriously has entailed the assertion that rape is necessarily and essentially a violence worse than murder. For many victims it is; it was for the two young women who spoke about their rapes on the show. But as Charlotte Shane importantly wrote for The New Inquiry, "The idea that there might be different emotional responses to rape is not popular." She challenges the argument that "all rapes are equally traumatic and those who suggest otherwise are labeled rape apologists. It is unforgivable to publicly question the mythologizing of rape’s status as the ruination of all women who go through it."

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The teens' nervousness to apply the term "rape" reflects the gravity the label is accorded. And certainly no rape should be taken lightly. But as Shane notes, "We should not be so desperate to establish the seriousness of rape that we stigmatize intelligent discussion of it." We shouldn't immediately read resistance to apply the term "rape" as apologism; if we insist that every rape is equally damaging and always The Worst violence a victim can experience, little wonder there is concern about using the term, even when appropriate, as in the BBC show. There should be a way of condemning and battling rape, and the patriarchal conditions which enable it, without needing to assert that it is essentially the most damaging act to live through.

It is telling that it is only after the trial scene, not the rape scene, that the audience is asked to decide "is this rape?" Many anti-rape activists would endorse the show's tacit assumption that deeming something rape elides with calling for criminal conviction. The show doesn't put forward the possibility of other modes of seeking justice and accountability—the sort of difficult, imperfect processes anarchists and feminists have suggested and worked towards for decades. The fictional rapist in the program faces seven years behind bars. I agree with the teen who said "I think that will be counterproductive."

But perhaps the greatest lie perpetuated by the BBC here was the fact of conviction at all. RAINN (Rape, Abuse and Incest National Network) reported the 97 percent of reported rapists will not spend a day behind bars, according to Justice Department statistics. In Britain, conviction rates for rape are 5.7 percent (significantly lower than most crimes). It's grossly misleading to suggest, as in the show, that reporting a rape will lead to a perpetrator punishment under law.

At the end of "Is this rape?" a British lawyer explains to the young group that the a court of law would have had strong basis to find the fictional boy guilty of rape. He carried out the act of penetrating her mouth (the actus reus of the crime). She did not consent—she did not move, was barely awake, and described having felt "frozen" on the witness stand, she was post hoc devastated, for example. Finally, and crucially, the mens rea (mental state of the defendant) necessary to find someone criminally culpable was indeed present. A number of the teens had stressed that the boy didn't "intend" to rape the girl. But for a rape conviction, it's sufficient that he could reasonably read her behavior as nonconsensual. This was certainly the case in the fictional example, and a TV show that informs young people that explicit intention to forcible reject consent is not a necessary condition for rape to take place.

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So fictional nice-guy Jack is convicted of rape and goes to fictional jail for seven years. And the 24 debating youths can have their phones back and return from their (still inexplicably) undisclosed location, back to a world where the actions real-life Jacks, and the consequences to the women they rape (whether devastating, or not) get largely passed over in silence. Eighteen-year-old elite private school student Owen Labrie will spend a year in jail and five years on probation, but not because the jury found beyond reasonable doubt that his then 15-year-old accuser had sufficiently expressed or shown non-consent when the senior touched and licked her genitals. He's going to jail because she was 15, too young to legally consent, not because her account of non-consent was proven in court.

One wonders whether the jury of the viewing public would have believed the accusations of the fictional victim in "Is this rape?" if they hadn't witnessed the scene in which she lies motionless as her rapist climbs over her and unzips his fly. The lesson of the show should not be that you have to see rape to even begin to believe that men unreasonably assume consent all the time.