[This post contains testimony from the Steubenville, OH rape trial and may be triggering for some readers.]

by Bailey Shoemaker Richards

Among the many arguments offered by defense attorney Walter Madison during the Steubenville rape trial–plenty of which are despicable victim blaming, but are unfortunate not uncommon–several have stood out. One in particular hinges on the fact that the alleged victim is not testifying. Madison has used this fact to say that because she is silent now and she “was silent then,” there was consent. There’s a problem with this argument, however. It’s this:

Silence is not consent.

Allow me to repeat that, so I know everyone is getting the idea: Silence is not consent. Silence has never been consent. Silence will never be consent.

The reason that Jane Doe isn’t testifying is not because there was consent on August 11-12, 2012. The reason she is not testifying is because she has no memory of the events that occurred that night – something that was amply demonstrated by the text messages read in the courtroom on March 14, in which an increasingly desperate and distraught 16-year-old girl is starting to find out what happened to her via social media posts and texts.

According to Madison, Jane Doe “didn’t affirmatively say no,” and therefore she consented to whatever physical contact occurred between her, Trent Mays, and Ma’lik Richmond. The wording of that statement at first sounds ridiculous – how does one say no ‘affirmatively’? – until you realize that Madison is choosing his words very deliberately.

He is trying to build a defense case around the idea that unless an individual verbally, audibly says no, they consent to whatever happens to them.

But silence does not equate to legal consent to sex under the law. Nor does the alleged victim have to prove any physical resistance to the sexual assault. Verbal and physical silence, as it were, are not the ways in which a person consents to sex.

If this were an ideal world, our standard for consent would rest on the notion of enthusiastic consent. If you don’t have enthusiastic consent to sex, you don’t have consent at all, and you need to stop. Unfortunately, we live in a world where Walter Madison can say that silence is the same thing as enthusiastic consent, and people will vigorously nod their heads in agreement.

I spent the better part of two days just outside the juvenile courtroom in Steubenville, huddled around a viewing window with a group of reporters, listening to teen witnesses talk about Jane Doe’s physical and mental state during the night of the alleged assaults. The first witness, a friend of Jane Doe’s, talked about her rapid downward spiral at the very first party of the night, and how quickly she became drunk, slurring her words and stumbling.

The second witness, another teen girl, talked about how Jane Doe sat on the couch at the witness’s boyfriend’s house, answering direct questions in a soft, slurred voice, but not initiating conversation or participating beyond that. She talked about how Jane Doe stumbled toward the door and fell, before the ubiquitous picture of Richmond and Mays carrying her by her wrists and ankles was taken. She talked about how Jane Doe’s head lolled back as she was lifted, and how she didn’t think the girl could have lifted her head if she wanted to. She talked also about how Trent Mays began standing on Jane Doe’s hair until the witness told Mays and Richmond they should hold her differently – and so Jane Doe was slung into a fireman’s carry and taken into the street. She never reacted during these events. She was conscious, but unresponsive.

These events took place shortly before Jane Doe was put in a car where some of the alleged assaults occurred, on the way to a third party. An unresponsive, passive girl had to be carried out of a house because she couldn’t walk – and yet her silence in that instance means she consented to being penetrated in a vehicle shortly afterward?

In between the house and the car, Jane Doe began vomiting in the street. Her shirt was removed by one of the people around her, supposedly to help clean her up. At this moment, another young man offered three dollars to anyone who would piss on the silent, shirtless girl on the ground at their feet, a “joke” that was rapidly repeated throughout the group, to much amusement. Does her silence mean she consented to that?

The young man who made that joke testified on Wednesday that Jane Doe did not react to her surroundings, even when he was offering people money to urinate on her. If someone were sober enough to consent to sex, you would think she might have been sober enough to react to the indication that she might soon be peed on–but of course, if someone is sober enough to react to the idea of them being peed on, the “joke” falls flat, because the “joke” is that they can’t react.

Interestingly enough, Walter Madison seems to agree. During those moments of testimony, he laid out a scenario about how, at high school parties, you make fun of the drunkest person. You put shaving cream on their face and make jokes about them that you wouldn’t otherwise make, because they’re the drunkest one there, and an object of ridicule. Madison asked the witness if that was the case with the “joke” he made – and the witness said yes. Jane Doe was the drunkest person at the party.

To me, this indicates that Jane Doe couldn’t possibly consent. Someone who doesn’t react when her shirt is removed in a street and a group of boys joke about peeing on her is not silent because they’re fine with what’s happening to them. They’re silent because they don’t know what’s happening, or because they can’t react. (Funny joke, right?)

But the real thing about Madison’s argument, and the entire Steubenville trial, is that none of this is just about Steubenville. None of this is just about what Ma’lik Richmond and Trent Mays allegedly did the night of August 11th and 12th, 2012. This is about our entire culture of rape and the ways in which we enable rapists to behave with impunity.

What happened in Steubenville happens across this country, and the perpetrators rely on silence. Not just the silence of a victim who can’t remember what happened to her or who remains silent because she’s afraid of what will happen to her if she files a police report. And remember, 54% of rapes are never reported to begin with – of those that are, only 24% even result in an arrest, much less a trial or a conviction. The silence is deafening.

But it’s not just about the silence of victims, or about the survivors who don’t report, or about a justice system that leaves tens of thousands of untested rape kits to collect dust in warehouses. It’s about the silence of people who see someone being taken advantage of and say nothing. It’s about the people who listen to rape jokes and say nothing. It’s about the people who learn about a rape and work quickly to protect the perpetrators instead of the victims – something that allegedly occurred in the Steubenville case (Mays sent text messages indicating that Coach Reno Saccoccia would “take care of it,” and “was joking about it” with Mays). It’s about the silence of communities, of the people who know that a rape has occurred and who say nothing.

It’s about the silence around young boys and men on the subject of rape. Girls and women, from the time we’re small, are taught explicit and implicit tactics to avoid “getting raped”–watch your drink, don’t dress like that, don’t drink too much, don’t go out alone, carry your keys between your fingers like claws. These “tips” don’t work, but we’re told that if we don’t do these things, we will be raped, and it will be our fault–and, in fact, when we are raped, we’re told it’s our fault regardless of the circumstances. We didn’t “affirmatively say no,” or we lied, or we wore the wrong thing or went to the wrong party, and therefore we weren’t really raped.

Boys and men, however, are told that women are there for their pleasure. Society tells them this. Advertising tells them this. Rape jokes and movies and TV shows and their friends and their families tell them this. Instead of talking to boys and men about rape and sexual violence and consent, we greet them with silence, and rape culture steps in to tell them that they can do no wrong. Rape culture says that there are gray areas around what constitutes sex and consent. Rape culture says that silence is consent.

This message is especially clear when those boys and men are wealthy or famous. It’s a message that says there will be no accountability for rape, and that the silence will continue.

That silence is vanishing, though. More and more people are starting to break it. Groups like The Line Campaign and Men Can Stop Rape, and individuals like Zerlina Maxwell, and protesters throughout Steubenville, Ohio and across the country are speaking up. The conversation has to happen, and men and boys have to be part of it.

SPARK is working on starting one such conversation in a place that hits close to home for Steubenville and football-centric communities everywhere: coaches. Star athletes shouldn’t feel that they need their coaches to ‘take care of it’ when they have a problem. Coaches should establish a culture of respect for women, for other players and for the community – not a culture in which being a man means dominating women and encouraging violence.

With the #EducateCoaches petition started by Carmen Rios and Connor Clancy, we are asking that the National Federation of High School Association partner with activist organizations to develop courses on sexual violence prevention training for high school coaches. We know that teaching men and boys about sexual violence is one of the best ways to reduce it. It’s time to break the silence, and do away with the notion that silence is consent.


Bailey Shoemaker Richards is a SPARK alum who lives and works in Ohio.