Sexual assault through negligence
It is hard to face the reality that people can cause damage to each other without meaning to. There can be no malice, no cruelty, and no intent to harm and there can still be damage. There can even be a deep sense of positive regard and of wanting only the best for someone. There can be nothing but the best of intentions, and there can still be damage.
It is not that intent does not matter, but intent is not the only thing that matters. And it is painful and upsetting, even destabilizing, to admit that we can cause great damage even when we mean well. This can happen through our carelessness, our negligence. We can be negligent because we don’t have the skills or knowledge necessary to be careful. We can be negligent because we are rushing, not paying sufficient attention, or because we feel pain or shame when we are paying attention to what we are doing. We can be careless and negligent not because we don’t care, but because we are avoiding things we don’t want to face, and our avoidance makes it impossible to be careful.
Negligence: Failure to use the degree of care appropriate to the circumstances, resulting in an unintended injury to another.
The damage done through negligence can be staggering. Negligence is not simply a failure to act when we should have acted. It can include this, but negligence can take the form of action carried out without responsibility, awareness, thoughtfulness, or care. Driving a car when we are too tired to safely drive, for example, is negligent. We can be negligent in our actions when we fail to take responsibility for their potential impact, when we behave recklessly, when we don’t pay attention, when we aren’t thinking, when we aren’t looking.
It’s hard to believe that sexual assault can be carried out unintentionally, but it can be. It is hard to believe that something that registers in the body as violation, as sickening, as unwanted, can be carried out by someone who has no idea that it is being received this way. This can happen through negligence, a failure to use the appropriate degree of care, a failure to pay attention, a failure to attune. This can happen for all sorts of reasons, only some of which include a desire to override someone’s boundaries.
When it comes to initiating sexual acts, we have a responsibility to be careful. Sexual assault carried out through negligence and not cruelty is still sexual assault. If there was communication that went ignored or unnoticed due to our negligence, if we failed to use the appropriate amount of care and therefore failed to respond to crucial information: it’s sexual assault. I’m not talking about failure to read minds. I’m talking about failure to notice and appropriately respond to communication that is happening including verbal protests and obvious body language.
We have no cultural map for understanding sexual assault carried out through negligence, yet it is common. We assume only “monsters” would sexually assault someone. We assume sexual assault is always evidence of cruelty or of a desire to dominate. Often, this is true of sexual assaults, but not always. People can sexually assault someone they love. People can sexually assault even when the thought of sexual assault makes them sick. People can sexually assault even when they would never want to sexually assault anyone. Sexual assault carried out through negligence happens not because of a desire to dominate or to be cruel, but because of a failure to use the appropriate amount of care necessary to initiate and carry out sexual behaviours with another human being.
Sexual assault carried out through negligence does not cause less damage because it was carried out through negligence. Sometimes the damage can land differently. It can be extremely emotionally complex to have your bodily autonomy violated by someone who never wanted to do that to you but was simply not taking the appropriate amount of responsibility and practicing the appropriate amount of care. Sexual assault through negligence is almost always carried out in the context of an existing sexual relationship or within a dating context, so there is the added layer of a betrayal of trust. How could someone hurt you this much just because they weren’t paying attention? It is no consolation. In fact, it can feel worse.
Our cultural insistence on painting those who have committed sexual assault as two dimensional monsters and as always intentionally and maliciously crossing boundaries gives us no way to face, name, and grieve the pain of sexual assault through negligence. This is bad for everyone involved. It leads to defensiveness and/or shame on the part of the person who assaulted. They can point to their desire not to assault anyone as evidence that they did not assault anyone, when in fact, we can sexually assault without wanting to. It also leaves no room for the complex emotional experience the assaulted person is likely experiencing. It doesn’t help us understand how or why it happened, or how to prevent it in the future.
Our failure to admit to the existence of this type of sexual assault is itself a type of negligence. We are not giving the subject of sexual assault the degree of care appropriate to it. We are casting all sexual assault as basically the same phenomenon, when not. This prevents us from taking meaningful and effective action to both respond to and prevent different types of sexual assault. It increases our denial and our unwillingness to talk and think about sexual assault. Either we are driving accused assaulters out of our communities and permanently barring them from social life, or we are pretending like sexual assault is not sexual assault. If we insist that all sexual assault is intentional and malicious then we are accusing people of malicious intent when we name that they sexually assaulted us. Often, we know this isn’t the case. So what do we do then? Deny that we were assaulted when we know that we were? This negligent and totally dysfunctional way of relating to sexual assault leaves us with few options.
If I get in my car and run someone over on purpose, that's murder. If I get in my car when I am drunk, exhausted, or don't actually know how to drive and I kill someone, that's manslaughter. Both are crimes and in both cases the person is still dead. One includes intent. The other does not. They are both serious and real. As far as I know there is not currently a legal category for sexual assault through negligence but just like with driving — if you are not in the appropriate state of mind to be careful or if you don't have the skill to initiate and carry out sexual acts responsibly, you can hurt people. That damage is still real even if you didn't have intent. I am not suggesting that we create new ways to criminalize people but I am suggesting that we need clearer and more accurate ways to talk about sexual assault.
Miscommunications are always a risk in sex and don't necessarily constitute sexual assault. We all have the responsibility to communicate and can't expect people to read our minds. But sometimes people are communicating. They might protest by saying things like “I'm tired, I don't feel like it” or they might be lying there totally motionless and non responsive. It is reasonable to expect people to notice and respond to this communication. Just because someone overrides this communication does not mean they are intentionally assaulting someone. They may have poor communication skills, really believe it is desired that they “keep pushing”, or simply not be paying close attention. This is negligence. It is a failure to use the appropriate level of care.
Having a sexual act done to your body when you don’t want it and are communicating that you don’t want it is fucking horrible and damaging. The fact that it was carried out through negligence does not change that. It is sexual assault. We need to talk about this so that we can encourage a culture of responsible, careful sexuality, and so that those who have carried out sexual assault through negligence can come to understand what they’ve done and take responsibility for it.
Any argument that me being honest about this encourages punishment or sex panic is in bad faith because I very clearly oppose both punishment and sex panic over and over again in my work. Healthy sexual cultures that don't practice punishment cannot be founded on our denial of reality.
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Clementine Morrigan is a writer and public intellectual based in Montréal, Canada. She writes popular and controversial essays about culture, politics, ethics, relationships, sexuality, and trauma. A passionate believer in independent media, she’s been making zines since the year 2000 and is the author of several books. She’s known for her iconic white-text-on-a-black-background mini-essays on Instagram. One of the leading voices on the Canadian Left and one half of the Fucking Cancelled podcast, Clementine is an outspoken critic of cancel culture and a proponent of building solidarity across difference. She is a socialist, a feminist, and a vegan for the animals and the earth.