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The Kuggeleijn case and the simple concepts we still don’t understand about consent

The Scott Kuggeleijn case is but the latest example in a long history of damaging misconceptions about consent in this country. Lawyer Madeleine Holden says we need to improve that conversation, and fast.


Content warning: This essay concerns the topic of sexual assault which may be triggering to survivors.


Recently, the jury in the rape trial of Scott Kuggeleijn announced that it could not reach a verdict, meaning that he will again have to stand trial. The media is covering the case with interest because Kuggeleijn is a well-known cricketer, and I have hitherto avoided the story with deliberate rigour, because rape trials depress me.

However, when the dialogue surrounding the case degenerated into victim blaming and harmful misconceptions about consent – as is the regrettable norm in cases like these – my lovely Spinoff editor, Alex Casey, asked me to write a piece about it. She said that the coverage around consent – and, in particular, the line of questioning from Philip Morgan QC – had been rough, and I believed her. I am a young lawyer who has practised criminal defence, so I bring a modest degree of professional knowledge to these discussions. In another capacity, commenting on rape, rape culture and consent has somewhat become my beat.

I would prefer to write about almost anything other than rape. I would prefer to write gif-laden listicles about all the times Beyonce slayed. I would prefer to write deeply-researched articles on under-discussed topics, like body image issues in queer communities. I’d even prefer to write copy for onesie ads. But I suppose I’m fated to keep writing about rape, like Sisyphus pushing his boulder, until the day I finally retire to the woods – or until conversations about rape culture and consent improve – because rape keeps happening, sometimes to people I love.

The facts in this particular case, in case you are unfamiliar, are as follows: a cricketer went home with a woman in Hamilton in 2015, and either he raped her, or he didn’t. The woman’s testimony at trial was that Kuggeleijn held her hands above her head the morning after and raped her, despite her saying no, clearly and audibly. His testimony was that he believed she consented, that she “seemed like she was enjoying it.”

The Court heard that the morning after the incident, Kuggeleijn sent a text message to the woman that read as follows:

“I heard you felt you couldn’t say no and were pressured into things. […] It’s pretty chilling to hear and think of myself in that kind of light, but looking back I was pretty persistent. […] I’m so so sorry and it has made me think about a few things. […] I hope you are OK and I’m sorry for the harm mentally I have caused you.”

Because no one else was present in the room when the incident occurred, the conduct of the woman on the night in question has received a high level of scrutiny to determine whether Kuggeleijn’s alleged belief in consent was reasonable. To hear those in his camp tell it, it was reasonable for him to believe he was getting sex that night.

We have heard extensively that the woman was drunk, but that is irrelevant, because being drunk doesn’t communicate consent or make you more likely to think that a rape has occurred when it hasn’t. Rape is unambiguous like that.

We have heard from Kuggeleijn’s friend that the woman was wearing “a short skirt and a top ‘with her breasts pushed up’,” but that is irrelevant, because there is nothing you can wear that invites sexual contact or, again, communicates consent for you.

We have heard that the woman flirted with Kuggeleijn, grabbed at his crotch and went home with him, and also that they “were not lying in bed like a pair of railway sleepers – they were doing things to each other.” All of this is irrelevant. There is no amount of flirting or previous sexual contact that makes overriding someone’s “no” okay. No matter what occurred before that point, if the woman said “no,” consent was absent. If Kuggeleijn proceeded anyway, he raped her. This is not a difficult conceptual exercise.

Kuggeleijn’s defence counsel, Philip Morgan QC, honed in on the detail that the woman told Kuggeleijn she was on the pill. Contraceptives, though, cannot communicate consent for you. If Kuggeleijn heard the woman say “I’m on the pill”, it was not reasonable for him to take that to mean “I am consenting to sex with you”, especially if the woman also said “no”, which she said she did.

The court heard that the woman experienced a panic attack following the incident. Morgan invited the jury to deduce that she “had to come up with an explanation for her girlfriends of why she had that panic attack”, and therefore pretended Kuggeleijn had raped her. The idea that regrettable sex could trigger a panic attack – and a series of lies – is a curious one: there seems to be a complete lack of meaningful incentives for that approach, combined with many, many tangible downsides. It’s a shame that Morgan pursued this line of defence, as the idea that women “cry rape” in response to regrettable (but consensual) sex is a persistent, well-documented rape myth.

So far, so routine: scrutiny of what women wear, how much they have to drink and all aspects of their sexuality are regrettably routine in rape trials. However, Kuggeleijn’s lawyer even suggested that, assuming the woman did say “no”, that might not have been definitive. Morgan grilled the woman about the manner in which she said “no”, discussing whether it might have been a “light-hearted no” or a “not-now no.” The honest-to-god turning point of the Kuggeleijn case is whether “no” might have actually meant “yes.” Morgan literally said to the woman, “Were you saying no but not meaning no?”, reaching an Orwellian low point in our national conversation about consent.

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Illustration: Kyle Watson

Rape, as defined in New Zealand’s Crimes Act, contains a subjective element: the accused person must have sexual connection with another “without believing on reasonable grounds that person B consents to the connection” for the act to constitute rape at law. Morgan, then, is building the narrative of a “light-hearted no” or a “no that doesn’t mean no” to suggest to the jury that it might have been reasonable for Kuggeleijn to believe that no meant yes. And the jury came back hung.

It feels tiresome to state, and I’m so bored with finding new ways to say it – with repeating, ad nauseum, something so crushingly obvious – but no means no, and it is not reasonable to believe that no means yes. There are no light-hearted no’s or not-now no’s, only the bright red light that a “no” in any way, shape or form creates. To suggest otherwise, and for it to be taken seriously, shows that the assumptions at the core of our conversations about consent are deeply rotten.

The woman advocated tearfully on her own behalf when she responded as follows:

“I was saying no. I was not coming out all guns blazing. I thought it should be adequate saying no. It should not matter what tone of voice I was saying it.”

It’s hard to fault her logic here, but Kuggeleijn’s defence rested partly on the idea that he acted “as any red-blooded male would do”. If it’s true that 100 men would act like Kuggeleijn did, then traditional masculinity has a bone-deep problem with female autonomy. If 100 men hear “no” and proceed anyway, then 100 men should be convicted of rape. More urgently, we need to talk to hundreds upon hundreds of men, early and often, about what consent means.

It’s painful how far we have to go before the dialogue around rape becomes conducive to justice, and we are all simmering in dangerous ideas about consent and autonomy. As a fledgling lawyer most interested in the area of criminal defence, I’m deeply attuned to the importance of the presumption of innocence and the right of accused persons to a rigorous legal defence. I’ve worked with individuals accused of terrible crimes –  including sexual offences – and I’ve done so with a clear conscience, because defence lawyers play a crucial, righteous role in our legal system, and everyone accused of a crime deserves such aid.

As a young woman, though, I’m sick of hearing about how many of my friends have been raped. I’m sick of the media and our legal system tacitly condoning rape, ensuring that men (and some women) will continue to rape without facing meaningful consequences. I’m sick of the fact that women bond with each other by sharing stories about how terribly men treat us; about how blithely they override our desire to be left alone.

So, enough of this. Enough of the idea that women mean yes when we say no. Enough of the idea that women can communicate consent through our clothes or sexual expression or oral contraceptive pills. Enough of the idea that men are bound to coerce women into sex, that it’s natural, inevitable and eternal for men to behave like animals. Enough.


If the events depicted in this story have been triggering in any way, please consider contacting any of the following organisations:

Rape Crisis

Women’s Refuge

Lifeline

HELP

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