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Some thoughts on consent

With the state of California passing a new law defining an Affirmative Consent standard for public colleges and universities (and the wonderful commentary about it on the Yes Means Yes blog), the recent firing of radio personality Jian Ghomeshi over his sex life (which he claims is targeting him for participation in BDSM, though several women are alleging that he abused them non-consensually under the guise of BDSM), everyone all over the Internet is talking about consent these days.

And as seems to happen when everyone all over the Internet talks about something, a lot of folks are getting it wrong.

I'd like to think consent is something we all understand. And, in most situations, we do. A lot of folks are flapping their mouth-parts about how we can never really truly get consent for sexual activities because men and women are just so different and don't understand each other, but seriously, that's a load of bullshit. Bullshit with extra spicy smell-o-riffic chunks.

If you take sex out of the equation, we all understand consent pretty well. If you invite someone out to dinner and he says "well, you know, I'd love to, but I kinda have this other thing going on that day," we know he's said "no," even though he hasn't used the word "no." If we ask someone whether we can use her bike or not and she says "listen, I really don't know that I feel comfortable with that arrangement," we know she hasn't consented. And if she says "The combination on the bike lock is 5678, I need it back before class on Tuesday," we know that she has, even though she didn't say the word "yes."

We get this. It's part of the most basic, rudimentary socialization.

But for some reason, when it comes to sex, otherwise grown, mature adults start thrashing around, as if they lack the social graces of a reasonably well-socialized 6-year-old.

Some of this might be down to living in a culture that just plain doesn't teach us about what consent is. I wish I would have understood this stuff better myself, back when I was still sorting out all this interpersonal-relationship stuff.

But a big part of the reason, I suspect, lies in the way we think about sexual consent. We get what consent is outside the world of sex, but when it comes to sex, we act like the purpose of consent is to follow a checklist of procedures designed to let us do what we want without getting in trouble. Otherwise intelligent, reasonable adults, for example, have asked if California's new law means students on California campuses will need to get written permission to shag. (The short answer is 'no,' but folks who so profoundly don't understand what consent is that the question seems reasonable to them, might want to think about doing just that.) Someone on my Twitter timeline asked 'what if two people have sex but neither one of them gave affirmative consent--who's at fault there?' (The answer is if neither of them gave affirmative consent, then no sex act took place. For a sex act to take place, someone had to initiate the contact of the slippery bits, and that initiation is an act of consent.1) People--again, otherwise intelligent people who appear at least savvy enough to work a computer--have said things like 'if nobody said no, that's consent, right?' (No. We're conditioned strongly not to say 'no,' as in the "well, you know, I'd love to, but I kinda have this other thing going on that day" example above.)

Consent is not a checklist you go through in order to be cleared to do what you want, the way a fighter pilot goes through his checklist before being catapulted off the deck of an aircraft carrier ("Afterburners, check! Flaps, check! Condom, check! Let's fuck!"). The purpose of consent isn't to tell you what you can get away with; the purpose of consent is to make sure you and your partners are both on the same page and both enjoying what's going on.

Consent isn't something you get once, at the start of the proceedings. It's ongoing. This is important, because it means the idea of getting written consent up-front to hanky-panky is entirely missing the point. Consent exists in the moment, and it can always be revoked as soon as someone no longer likes what's happening. Even if I sign a form in triplicate, duly notarized, saying I want to shag you, if we get down to business and I change my mind, I have the right to say 'stop.'

It's not hard to get consent, really it isn't. It simply means paying attention to your partner, checking in. It doesn't have to 'spoil the mood' or 'interrupt the flow' or any of those other things the masses of people who don't understand consent are apt to complain about. Consent doesn't even have to be verbal. If you go in to kiss someone and she leans back, that's not consent. If she meets you halfway, it is. We know this. Most of us are really good, in non-sexual contexts, of figuring out the difference between a 'yes' and a 'no' even without hearing those specific words. We just forget, when it comes to sex.

Seriously, this shouldn't be that hard. The key elements of consent are:

  • Is the other person into what you want to do? Pay attention to verbal and nonverbal cues. If you don't know, ask. Don't focus on what you want the answer to be; focus on what the answer is.

  • Is the other person still into it while you're doing it? Pay attention to verbal and nonverbal cues. If you don't know, ask.

  • Is the other person having fun? Pay attention to verbal and nonverbal cues. If you don't know, ask.

There's a point in here: consent isn't something you get so you can have fun, consent is about making sure everyone is having fun. If you don't care whether your partner is having fun, well, then, perhaps one explanation is you're a terrible person and you oughtn't be interacting with anyone in any capacity until you learn that other people are actually real. Oh, and by the way, consent is valid only if it's informed; if you're withholding information, lying, misleading, or manipulating other folks to get check marks in those ticky-boxes, you're not really getting consent at all. I shouldn't have to say this. It pains me that I feel I do.

Now, bad sex happens. It's a fact of life. Bad sex doesn't (necessarily) mean consent was violated.2

But it pays--it really, really does--to remember that consent is ongoing. If the person you're with suddenly goes all withdrawn and unresponsive, and that's not part of the particular fetish you're exploring, perhaps it's a good idea to check in, you know?

There's a depressing part of all these discussions about consent, and that is the widespread cultural narrative that allegations of coercion, assault, or abuse are likely to be vindictive women making up stories to entrap and punish blameless men.3 It's so entrenched that it's hard to see any woman reporting sexual abuse who's not immediately attacked all over the Internetverse for it...which would seem to fly in the face of all logic and reason. (Because any woman who talks openly about sexual assault is likely to be attacked vigorously and aggressively, it's difficult to imagine the motivation of someone to invent such a tale. What's her goal...to see how many people will call her a liar on YouTube?) And while we're on the subject, "innocent until proven guilty" doesn't mean "everyone who reports being sexually assaulted is a liar until proven otherwise." This shouldn't need to be said, but there it is. (And just for the record: If you're one of those folks whose first reaction to learning about allegations of sexual abuse is "she's making it up," shame on you.)

This seamy dark side to the consent conversation comes, I think, from the notion of consent as a list of ticky-boxes you check off before you get down 'n' dirty. If you went through the pre-flight checklist and ticked off all the things on the list, you should be golden, right? So what's she doing making all this fuss afterward? She consented, right?

This is also something we get when it comes to issues of consent outside the bedroom. If a roommate offers to let us borrow the bike all week, then on Wednesday says "sorry, mate, but my car's in the shop, I need the bike after all," we know that she has the right to do this. I can't help but think if we were to apply exactly the same standards to sexual consent that we apply to consent to borrow a roommate's bicycle, a whole lot of people would be a whole lot happier. Yes, your roommate might fabricate a story about how you stole her bike...but really, what are the odds? I mean, seriously? And someone reporting bike theft isn't even subject to the same explosive blowback as someone reporting sexual assault!

Now, I will admit I've made some assumptions in all this. I'm assuming that you're genuinely good-intentioned and you value the idea of consent. There is a group who benefits from making consent seem muddier and more difficult than it is; the same group also benefits from reflexive thoughts of "She's making it up!" whenever a report of abuse surfaces. I'll give you three guesses who's in that group.4

It's possible to participate in all kinds of sexual activities with all sorts of partners under a wide range of different circumstances and not ever end up being accused of assault. It's not even that difficult, really. All it takes, at the end of the day, is remembering that there's more than one person involved, and checking in with the other folks to see how they're doing. You don't need to get it in writing. You don't need to involve lawyers and witnesses. You just need to pay attention. If you're shagging someone you've never shagged before and you aren't sure how to read their signals and body language, use your words! I promise it's not hard.5

Far from spoiling the mood, it can even be hot. "You like that, hmm? You like when I touch you there? You want more? Tell me you like it."

Seriously. Give it a try some time. Keep in mind, it's not about getting someone else to let you do what you want. It's about two (or more!) of you doing things you all like to do.

Oh, and if someone comes to you with a story about being sexually assaulted? Here's a strategy: In absence of clear and compelling evidence to the contrary, believe them.

1 Absent some other form of coercion, anyway. It isn't consent if someone gives you head to get you to stop beating her. Lookin' at you here, Mr. Ghomeshi.

2 Though one of the things that separates people who are good at sex from people who are bad at sex, I think, is the former sorts of people pay attention to their partners as a matter of course.

3 It's a narrative that hurts men too, by the way. Imagine the blowback if you're a guy who's reporting being sexually assaulted...and yes, it does happen.

4 And if you need all three, you might be a terrible person.

5 If you can't use your words about sex, maybe you might benefit from addressing that problem before the next time you have sex, 'kay?


( 6 comments — Leave a comment )
Oct. 30th, 2014 09:50 am (UTC)
Affirmative Consent

Without disagreeing with what you've said (being a decent human being is not that hard, or even unsexy), I think part of the angst of such a law is that the legal process (especially as typically portrayed to people) is very... "how can you prove that?".

That legalistic "how can you prove that?" view is somewhat different from the "being a decent human being" view: one can legitimately believe in the moment that continuous signs of tacit consent and participation indicate consent, but if push comes to shove, and one's view was challenged later, would it actually be accepted as proof of consent at the time? Would you remember enough of the details that convinced you there was consent? I think that's some of where the "signed, in triplicate, written consent" hyperbole is coming from. (Ironically, as you describe, signed written consent obtained at the beginning of the interaction would, at best, shift the default assumption a bit -- "at one time in the interaction someone consented". Not get anyone "off the hook" immediately.)

From that "how would I prove it" point of view "she didn't say no" is a relatively simple legal test, even if it fails the basic human decency test (since often as you say it's a soft no, without "no" ever being said explicitly, and that's admitted by the compliant). It's more difficult to have provable (years later, basically, since such cases take forever to get to trial) positive (affirmative) consent. Not impossible, just more difficult. Personally I actually seek explicit verbal consent, at the moment before I initiate something that... would be a high penalty crime without the consent. No it's not always super-sexy -- although sometimes it is. But I'll happily live with a moment of not-so-super-sexy for always being sure I can say "I asked and my partner definitely said they wanted to go ahead". (Leaving tacit consent for things like "yes, I'd like to continue what we've been doing so far".)

But yeah, being a decent human being. Definitely reduces the chances people will file complaints about you. Just saying.


Oct. 30th, 2014 12:40 pm (UTC)
I'm not so sure that some adults necessarily understand the concept of consent even when it comes to non-sexual things. Sure, they'll learn (and usually the hard way) that certain specific bad acts will land them in serious trouble, but that doesn't necessarily mean they truly understand the reasons why.

My father would drag me and my cousin (or occasionally one of the younger kids) out of bed at 4am without warning and forced us to accompany him on some sort of all-day recreational activity, most often fishing. There was no pattern to it that I know of - maybe it'll happen next week, maybe next year. He also had an issue of deciding that certain things were "too important" to be left in anyone else's care, so he took them and kept them on the owner's behalf. Sometimes he would tell them later, sometimes he would forget to, but if he had any sort of power or influence over the rightful owner/holder, he refused to give it back until said thing was actually needed, for "their own good". My mother was the most frequent victim, but he'd pull that on a lot of people. The worst part is that things would often get lost or damaged under his so-called "care".

My mother wasn't any better. She would sign the kids up for activities - and usually the worst possible choice for those activities, as her ideas of who has what preferences and abilities were all muddled up (for example, she signed me up for softball once, despite the fact that I'm not fond of sports in general and my batting average is .000, while one of my brothers loves it). And then never told anyone about it. And then often forced them to do it anyway when the time came. She also had a habit of stealing things from people, mostly food and small amounts of cash. Her excuses for this was things like "I had no choice" and "If you had any idea how much I needed it, you'd give it to me anyway." And then tried to guilt people into just letting it go (which didn't work well, particularly since she refused to say why she needed it so badly) and promised to make up for it (almost never did). I suspect that she was using the money to buy liquor and cigarettes, particularly since it mostly stopped when she kicked both of those habits. Stealing food remained a major issue for a very long time after that... one time she even took half of someone's birthday cake and ate all of it before anyone noticed.

One of my aunts was the touchy-feely, kissy-facey, pinchy-cheeksy aunt-from-hell stereotype, with the added bonus of being all touchy and grabby and huggy even towards adults who didn't like it... including one person who was prone to panic attacks when she did it unexpectedly. People who complained got this message from everyone else: that's just the way she is, and not putting up with it is horribly rude.

My one of my grandfathers had a particular fixation on my youngest brother. Let's just say that it appeared to border on child molestation, and right out in the open; aside from one of my aunts (different one from above), who was revolted by it, the other adults were mostly all "but grandpa just wants to spend time with you!" Even though it probably wasn't pedophilia, it was still fairly traumatizing for him, to the point where some of us kids did what we could to keep them apart.

As an adult, I've come across many examples of people "volunteering" others or making decisions on their behalf or just forcing someone to go along with things when they really have no right to do so. It's even happened to me a few times. When called out on it, the perpetrators usually act baffled and often offended by the idea that they might be doing anything wrong. Maybe they do understand and don't care, but until proven otherwise I tend to assume that they're clueless. Not that this in any way excuses anything; inadvertently destructive idiots do nearly as much damage as malevolent predators.
Oct. 31st, 2014 02:41 am (UTC)
I have a couple thoughts that will stay in my head. And another that I feel needs to be added to the conversation.

Your last footnote is horrible. There are people who have trouble using and finding words in high stress situations, I am one of them. Sex is high expectation and high stress and negotiating it is one of my least favorite activities regardless of how much I might enjoy the act that follows.

Condescendingly suggesting that anyone who cannot fluently and easily speak about a topic, especially one as important to humans as sex is, simply not have any of it is one of the most objectionable things I've seen you write.
Nov. 1st, 2014 12:58 am (UTC)
That's a fair point. Not finding it easy is not the same thing as not doing it at all. Post changed.
Nov. 2nd, 2014 05:49 pm (UTC)
(Came here via ashbet)

Consent is not a checklist you go through in order to be cleared to do what you want, the way a fighter pilot goes through his checklist before being catapulted off the deck of an aircraft carrier

"Before engaging in consensual banging, you MUST file your fuck-plan with the local Sex-Authority".

Good read! I think a lot of the issues that come up around this is men being trained on multiple levels (overtly by shoddy parenting to unconsciously by advertising and media) to view women as sex-objects, as opposed to fully-realized people. If you see anyone as less than a person, then it's far more difficult to apply the concept of consent (not to mention a host of other basic tenets of fucking decency).

When you've made someone a goal, you've already mentally cast aside a large part of their humanity.

Edited at 2014-11-02 05:50 pm (UTC)
Nov. 3rd, 2014 02:26 am (UTC)
I think it is partly anti-bureaucracy backlash. The idea "Now i have to make sure I have all these things, before I do X" rather than (hopefully) "Once I check off these lists I can rape her/do whatever I want." Or...to put it more clearly...that muddies the waters and the confusion or...exasperation of good people allows 'bad' people wiggle room and hiding ability. In other words...people with good intentions will follow the spirit of the law, and get reamed by the letter, people with bad intentions will follow the letter and hurt other people.

( 6 comments — Leave a comment )