[Warning: This post contains descriptions of, and discussion of, rape.]
In comments, a new comment-writer named “Ben” presented “three very strong objections to the California affirmative consent law.” Before I respond to Ben in a future post, I want to make it clear what Affirmative Consent laws do, and what problem they are intended to address.
I don’t think that this law is going to, by itself, create huge changes. “Affirmative Consent” laws – also called “yes means yes laws” – aren’t revolutionary; they’re a fairly minor change to existing laws, which have been moving in the direction of being consent-based for many years.
I’m not expecting California’s Affirmative Consent law to bring a big upswing in colleges punishing rapists, and I’m not expecting a huge drop in rape prevalence on California campuses. Rape prevalence has many factors, and no piece of legislation can create huge change. Changing the law is an important step, but it is only one step, not a whole marathon.
Let’s get a few common misconceptions out of the way, while we’re at it: The law is gender-neutral, at least in language (whether some of the people applying it will be sexist is another matter). ((Actually, let me just say straight out: Some of the people applying the law will be sexist, just as some people applying the previous law were sexist. This includes some college administrators who aren’t concerned enough with protecting accused male students’ rights, and who aren’t willing to recognize rape of male students as a problem. This is a serious problem – but the solution is to address the sexism, not to oppose Affirmative Consent. Repealing this law won’t make the sexism go away.)) The law doesn’t require explicit verbal permission at every stage of activity. The law does not say that men are automatically guilty if accused.
So what does Calfornia’s Affirmative Consent law say? The whole text is here, but I think this is the most important bit (emphasis mine):
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
So what kind of case could this law apply to? Consider Lisa Sendrow’s rape, ((Lisa Sendrow has chosen to publicly discuss her rape under her own name, in order to better help other rape victims. More information here.)) which George Will discussed – or, really, dismissed – in the Washington Post in June:
Consider the supposed campus epidemic of rape, a.k.a. “sexual assault.” Herewith, a Philadelphia magazine report about Swarthmore College, where in 2013 a student “was in her room with a guy with whom she’d been hooking up for three months”:
“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”
Six weeks later, the woman reported that she had been raped. Now the Obama administration is riding to the rescue of “sexual assault” victims.
Will thinks it’s ridiculous to call this “rape” – so ridiculous that he doesn’t even need to explain why. But we can guess that her lack of resistance, and the fact that she had voluntarily had sex with this guy in the past, figured into Will’s analysis.
Although Will’s column was controversial, many agreed with it. For example, Cathy Young, a national columnist who often writes about rape issues, tweeted:
She said no, the guy (her former steady hookup) made another move a few minutes later, she went along with it. Apparently b/c she was “tired” or something like that. Sorry, calling this rape is insulting to real victims.
Cathy is explicit – he was “her former steady hookup,” and Lisa “went along with it” (lack of resistance), therefore it wasn’t rape. Never mind that Lisa said “no” – in the minds of Cathy, and George Will, and the millions of Americans with similar views, it’s not enough to say “no.” Lisa didn’t say no enough. Lisa didn’t resist enough. Lisa just lay there, and in many people’s minds that’s as good as consent right there.
Implicit in Cathy and Will’s analysis is that it should be legal to presume consent exists until all possibility of consent is eliminated beyond all doubt. But that belief would make a huge number of rapes – of sex without consent – legal. That’s not what any of us should want.
Lisa Sendrow did not consent, and has been very clear that she did not consent. What happened to Lisa Sendrow was rape, if sex without consent is rape. But many people believe it’s not rape if the victim “went along with it,” or if it’s a “former steady hookup,” or if she let him into her dorm room. And, unfortunately, many college administrators share Cathy and Will’s terrible views.
That is why this law is necessary. So that when someone with an experience like Lisa Sendrow’s goes to her college administration and says she or he was raped, she or he won’t be told it wasn’t rape because the rapist was a former hookup, or because she or he didn’t resist. Or, if she is told that, at least the law will be clearly on her side, not the college’s.
Lisa’s story isn’t uncommon. Boys in particular, in the United States, learn that the way to get consent is to wear girls down. This is a direct result of beliefs like George Will’s – the belief that pestering a girl or woman until she just gives up resisting can’t be rape. Mallery Ortberg gets at why this view is dangerous and encourages rape:
One of the dangers, I think, of depending on passive consent — the idea that all conditions are Go unless you are met with a swift, stern “NO MEANS NO” or a slap to the face — is that it conditions sexual aggressors (particularly men) to ignore or deflect or attempt to wear down perfectly clear rejections. As long as a No is plausibly deniable, it isn’t really a No; and if she didn’t really say No then you can’t possibly have done anything wrong.
In my very highly-rated, wealthy Connecticut high school – and in the pricey summer camps I went to during the summers – guys traded tips on getting laid. I know a lot of people hate this term, but a lot of what we told each other is best described as rape culture 101. One of the most popular strategies – at least, to talk about – was to take a girl for a drive and then pretend to run out of gas in some lonely spot. I’m not in high school any longer, but I would assume some guys still trade similar strategies today. What “strategies” like this teach boys is that the way to have sex is to put a girl in a situation in which she can be pestered until she finally stops saying “no” or resisting. I’m sure for most of us it was just talk; I’m also sure that a few did more than talk. This was not considered rape by any of us.
The TV show It’s Always Sunny In Philadelphia captured this attitude perfectly:
Dennis: What do you mean, what do we need a mattress for? Why do you think we just spent all that money on a boat? The whole purpose of buying the boat in the first place was to get the ladies all nice and tipsy topside so we can take them to a nice comfortable place below deck, and, you know, they can’t refuse. Because of the implication.
Mac: Oh, uh, OK. You had me going there for the first part. The second half kind of threw me.
Dennis: Dude, dude, think about it. She’s out in the middle of nowhere with some dude she barely knows, she looks around, what does she see, nothing but open ocean. (Imitating female voice) “Oh, there’s nowhere for me to run. What am I going to do? Say no?”
Mac: OK. That seems really dark.
Dennis: Nah, it’s not dark. You’re misunderstanding me, bro.
Mac: I think I am.
Dennis: Yeah, you are. Because if the girl said no, the answer, obviously, is no. But the thing is she’s not gonna say no. She would never say no. Because of the implication.
Mac: Now, you’ve said that word “implication” a couple of times, what implication?
Dennis: The implication that things might go wrong for her if she refuses to sleep with me. You know, not that things are gonna go wrong for her, but she’s thinking that they will.
Mac: But it sounds like she doesn’t want to have sex with you.
Dennis: Why aren’t you understanding this?
This “implication” kind of rape – which is virtually never considered rape by the rapist – is commonplace. Find a vulnerable person, get her or him into a situation where it might be difficult to say “no,” and then persist until the victim becomes worn down and stops resisting. ((The cartoonist Uli Lust, in her in her autobiography, depicts herself as a young girl hitchhiking across Italy – and man after man rapes her using this strategy. As one especially blatant man told Uli, “We are far away from any village in the mountains. It is dark and cold outside, and it is raining. You can choose, either we have sex together, or you leave this house right now and sleep on the stones.”))
Sophia Katz, a young Canadian writer, wrote an essay describing how Stephen Tully Dierks, ((One of Dierks’ roommates has supported Sophia Katz’s account, and another woman has come forward with an account of being raped by Dierks almost identical to Katz’s. Dierks, it should be noted, didn’t deny Sophia’s story but said that he thought she had consented. Predictably, some people have criticized Sophia Katz’s actions and blamed her for her rape.)) an editor she had exchanged emails with, invited her to stay with him in New York City. It was her first visit to New York, and she didn’t know anyone there, and she didn’t have many resources. The first night she managed to fend Dierks off. The second night he wore her resistance down:
That evening we were in his room sitting on his bed, and he began kissing me again. I felt unsure of how to proceed. I had no interest in making out with him or having sex with him, but had a feeling that it would ‘turn into an ordeal’ if I rejected him. I had never been in a situation where I was living with someone for a period of time who wanted to have sex with me, that I didn’t want to have sex with. I knew I had nowhere else to stay, and if I upset him that I might be forced to leave. We continued kissing and I felt like vomiting. He took off my clothes and I felt like wrapping myself in one million layers of plastic. He seemed to be ‘preparing’ to have sex with me, and I imagined becoming invisible. Suddenly I heard the lock on the apartment door click, and all four of his roommates entered.
“Wait, Stan we can’t. Everyone just got home; they will definitely hear,” I said, hoping this was a way out.
“No they won’t. It’s fine. Let’s keep going.”
“No, I think they will. I really don’t want to if your roommates are home. We really shouldn’t.”
“No, it’s fine. We should. We should. Let’s keep going.”
“Stan, please can we just do this later. Your walls are really thin.” I felt tears welling up in my eyes and tried to dissolve them. I didn’t want to do it later. I didn’t want to do it ever. I didn’t know what I wanted to do. I wanted to leave, but I was trapped with him in his tiny, dimly lit room.
“No, we should keep going. Let’s keep going.”
He got on top of me. I began to relinquish control.
Was that rape? I sure think so. Was it legally rape? It’s ambiguous. She said no, again and again – but then she stopped resisting.
This is an ambiguous area in the law, and arguably a loophole in our current sexual assault law, and in our cultural idea of what constitutes rape. If you can just get her or him to stop resisting, if you wear her or him down, then you can have sex without consent and pretend it isn’t rape.
Shutting that loophole is what Affirmative Consent is about. Shutting the loophole legally, and – as one among many steps – shutting it culturally. It is part of the larger “yes means yes” movement to make people understand that merely because someone doesn’t resist (or did resist, but stopped) doesn’t mean they’ve consented.
It’s also important to realize that many people – but especially young guys who don’t know much about sex – have absorbed the cultural (and legal) message that lack of resistance equals consent. As long as this attitude is prevalent, committing rape doesn’t require being as overtly venal as the character from “The Implication.” It merely means being able to lie to yourself a little in pursuit of sex; being willing to ignore the signs of fear or freezing up or displeasure because they haven’t actually said “no,” or they did say “no” but that was several minutes ago. The British psychiatrist Nina Burrowes, who studies and writes about sexual assault, describes in this video (start at 5:03) how many rapists genuinely don’t think of themselves as rapists or want to be rapists. For these cases, making it clear, legally and culturally, that lack of resistance isn’t consent could actually rescue some people from committing rape – a benefit for both them and their victims. ((I’m not saying this is the case for ALL rapists. I suspect some readers will respond as if I’ve said that all rapists just misunderstand what’s going on, and if we could only explain rape clearly they’d stop raping. Clearly that’s not the case. But if there are marginal rapists whose behavior could, in fact, be influenced by making it clear that lack of resistance doesn’t equal consent, then making that marginal change is a reasonable thing to do.))
Is the law perfect? No, of course not. No matter what the law says, many rapes will be unprosecutable. That’s just the way it is; not all crimes can be proven. But that’s true of any imaginable rape law, not something unique to Affirmative Consent.
My major objection to the California law is that it doesn’t provide enough protections to the accused student; for instance, she or he should have a protected right to have an advocate and adviser present at all hearings, the right to consult a lawyer, the right to have a representative question witnesses. She or he should, in short, have guarantees of due process. However, this means that California law should be amended to guarantee due process for accused students (all accused students, not just those accused of rape); it doesn’t mean that Affirmative Consent itself is a bad idea.
Okay, now that I’ve explained the need I think this law is addressing, in my next post I’ll actually reply to Ben.
I share this concern, and goal.
As I’ve mentioned before, I’m generally left cold by, “the college shouldn’t be able to punish students unless there’s a criminal case,” because colleges punish students all the damn time for stuff that isn’t even criminal. “Copying off your neighbor’s test” isn’t illegal, it’s just part of most universities’ behavior codes not to do it. Sexual assault is illegal, and it’s part of most universities’ behavior codes not to do it.
That having been said, I favor more due process as a general rule, rather than less, and I’d certainly support a bill entitling students to legal defense and counsel in advance of any substantive administrative discipline.
—Myca
I think that for actions that are illegal the universities should defer the punishment to the legal system. If the university wants to prohibit certain acts that are not illegal (such as copying of your neighbor’s test) they should be free to do so – within reason.
I’m sorry, but how is “I let him finish” not consent to what happened? *I let him finish* is an explicit statement about her ability to either remain a part of the activity or stop it. *I let him finish* is a subjective statement of consent. Would she have *preferred* a different outcome? Undoubtedly. Was it enthusiastic consent? No. But in the situation present, in her own words, she subjectively consented to something she considered annoying. She doesn’t seem to have felt threatened or unable to say anything, she *chose* not to. Should he have done this? No, of course not. But that’s another question.
Now, here we have a problem: the guy may or may not be able to claim (with a preponderance of evidence) that he had done everything reasonable (within the circumstances known to him at the time) to ascertain affirmative consent (given their familiarity and the absence of need for verbal affirmation that seems not unreasonable) and subjectively believed that she affirmatively consented. Or not. But then this will get very quickly very problematic, when legal doctrine decides what kind of expressions of consent people are allowed to use and which they aren’t allowed to use – the result of cases like this, in which familiarity will certainly become a reasonable criterion in the “reasonable circumstances given at the time aspect”), will either the acceptance of an unenforceable law, or a list of contingencies that will be counted as affirmative consent.
Imagining that the guy would be found guilty of not having established affirmative consent, we will have a situation in which the woman – in her own words and her own subjective understanding – *consented*, just not enthusiastically, but he will nontheless be guilty of rape because her self-admitted consent may not count under this law.
I will be really interesting how people in relationships with assymetric patterns of desire will deal with this.
The part where she had already said, “No,” and did not later on say yes or physically participate?
Honestly, I have a hard time seeing how there is any mistaking this for affirmative consent. Did she feel threatened? I don’t know. But I do know that consent was explicitly denied and never explicitly given by word or deed.
If you think that not physically resisting or repeating a clear, “No,” can be mistaken for consent… I’ve got nothing.
Thanks, SomeOne … that’s a great point about why the affirmative consent laws are important.
Under the old system, “she didn’t resist sufficiently” could be (and was) used as evidence of consent. But, as Ampersand points out:
Under the new system, only affirmative consent – “Yes, please fuck me”/happy sexy body language/enthusiastic participation/etc – counts as actual consent. “Not fighting back” is insufficient.
Lisa Sendrow did not participate. She stopped fighting.
I love that the new laws are clear on the difference.
—Myca
SomeOne – I’m really not sure what you mean by a “subjective statement of consent”. Could you please explain what that is?
In any case, let us assume that “I let him finish” is a statement of consent, presumably because of the use of the words “I let him” implies permission (I don’t think this is right, but I’m going along with it for the sake of argument). At best, that means that she consented to him finishing the sexual act. It does not mean she consented to him starting the sexual act. Or do you think that the fact that she let him finish implies retroactive consent to what happened earlier?
To give an example from another domain: A few years ago one of my parents neighbours hired an over-enthusiastic landscaper to remove some trees from their front yard. My parents, who were out that morning, came home to discover that the landscaper had started chainsawing a tree that was on their property. Faced with the choice between getting the landscaper to stop working, and have a (probably dead) tree with a massive gash in it that could easily topple, or having him complete the work he started, they opted for the latter. Does that fact that they allowed the landscaper to finish imply that they had given consent to the landscaper to start working on the tree in the first place?
“Lisa Sendrow did not participate.”
By her own testimony, Lisa Sendrow took off her clothes and put on night clothes and got into bed with a man that she had been sleeping with for months.
She was in her own room, not in a strange or hostile environment. She was not drunk or impaired.
When he started to initiate sex with her, she did not push his hand away. She did not stand up. She did not say, “hey, get out of my bed and go back to your room, you jerk.”
By her own words, she was willing to have intercourse because it was easier than getting out of bed.
Of course, we don’t have his side at all. Suppose he testified, “when I put my hand on her, she got wet and was breathing hard. And she guided me in with her hand.”
This is what the testimony is going to be like. No other witnesses. You think this is what universities should be investigating?
There was a time when feminists said, get the government out of my bedroom.
Eytan,
That’s a great example. Thanks.
“My parents, who were out that morning, came home to discover that the landscaper had started chainsawing a tree that was on their property. ”
So you’re saying that Lisa Sendrow was “out” when the man she got into bed with initiated sex? She herself says that she was not “out.” She was fully conscious and not impaired in any way.
Jake Squid-
I don’t know. If she just lay there and he had to spread her legs, I’d agree with that. But if she “let him do this” because they were a couple and if he thought she was down with it? I’m not gong to say for sure that she didn’t participate. To me, I let him finish is an active admission that she decided to consent to an unpleasant activity.
Myca-
Yeah, I understand that. And I think it *can* be a good thing, but it can also be a problematic thing – again, how’s that gonna work if your boyfriend wants to have sex and you’d kind of go along because you love him but you’d really prefer to watch House of Cards instead? Are you gonna fake your enthusiasm so your “alright, let’s do it” consent can still count as consent? Seriously, disparaties in desire are a pretty common thing in relationships – what’s happening in those situations now? Not having sex will certainly work for a while, but not forever. I’m really asking here?
Well, if she *fought* that’s not in her statement. I don’t know about “participation”, that’s a matter of interpretation of how they used to interact as a couple. I would not want to speculate. But she certainly consented “to let him finish”.
I don’t think that the new law is clear at all. It’s suggesting a pseudo-clarity that everyone thinks is a good idea (and so do I) but that has serious problems dealing with edge cases. It’s not a big surprise that most supporters of the law argue that “yes, technically, a lot of sex will now have to be rape, but because no one will complain (because people actually do consent and don’t mind), nothing will happen”. What kind of logic is that? Do we really need a law to explain to people that it’s good to be sure that your partner wants sex even if it can either not be applied or will (technically) make a lot of coupled sex rape? Remember what a lot of people from Antioch said about how couples *routinely* ignored the SOPP because it was too weird.
As an aside: people who attendeded school also reported that the standard was applied with a double standard (irrespective of the weird recent story about Madison Young) – women got away with a lot more than guys. But guys there usually didn’t mind, because there were only very few male students who were in great demand.
Eytan-
Well, I mean that this is not him saying “she consented” but she’s stating that from her point of view “she let him finish”.
That is a valid objection. I think the term “retroactive consent” is very useful in this debate. Thanks for introducing it. Before I explain more why I think it’s useful and important, take a look at this video from consent activists ultra violet:
http://endcampusrape.com/ or http://youtu.be/h99w08UHv60
So, in the video, that’s supposed to illustrate sexy examples of affirmative consent, the woman grabs the pizza delivery guy and kisses him, and only *then* stops to check in – “is this ok with you”? He says “yes”. This pattern is repeated over and over – she initiates and escalates their encounter, say, by unzipping his pants, and only checks in after she’s already doing it.
Now, practically, that’s very different from the case above, but logically it really isn’t. So, retroactive consent. When she kisses him, and he says “that’s ok”, does he retroactively grant consent to her starting to kiss him? Or only to the kissing that may or may not ensue after his explicitly stated consent?
That’s an important question. Because if his “that’s ok” gives retroactive consent to her grabbing him, then Lisa Sendrow’s consent to “let him finish” may also mean she retroactively consented to him beginning. If we don’t allow retroactive consent *at all* then the video from endcampusrape.com is accidentally depicting a lot of sexual assault. At the very least it means, if we think Lisa Sendrow’s consent to “let him finish” is different from the cases depicted in the video, we need better criteria to decide which consent can be given retroactively and which not.
“Under the new system, only affirmative consent – “Yes, please fuck me”/happy sexy body language/enthusiastic participation/etc – counts as actual consent.”
Wonderful. College disciplinary boards will take on-the-record testimony about “enthusiastic participation.” Under cross-examination. Did her nipples stand up? Etc. Are you grossed out yet?
SomeOne:
I only watched the first part of the video you linked to, the one with the pizza delivery guy, and I confess I think the whole “consent porn” idea kind of misses the mark, not because I think using the conventions of porn is a bad idea, but because I don’t think the video does enough to subvert them. That said, though, there is a huge difference between the “checking in” that is depicted in the video and the scenario that Lisa Sendrow describes.
First and foremost, the checking in that takes place in the video is explicit and verbal, referring to specific acts and asking of the person being acted upon a clear yes/no response. There was no checking in of this sort in Sendrow’s case.
Second, that checking in is timely. There is no assumption that because I did this a couple of minutes ago—never mind, as in Sendrow’s case, however many weeks or months ago when “we” were a couple—I do not need to find out if what I want to do next is also okay. That assumption, however, seems to be at the heart of the actions of the man Sendrow was with.
In other words, contrary to what you suggest, the logic of the interactions in the video is very different from the logic of the interaction in Sendrow’s case. Or, to say this another way, to characterize Sendrow’s decision to “let him finish” as active consent, which is what it would have to be in order for any parallel between the two scenarios to hold, is to treat the word active as a cipher that can mean whatever you want it to mean, rather than a word with a very specific set of denotations and connotations. And that is hardly what I would call arguing in good faith.
Richard-
so, what you’re suggesting is that retroactice consent to initiating can be valid, but only if it is active/affirmative and given in a timely manner? OK.
That would leave us with a lot of definitional and contingency aspects, but it would certainly differentiate the good intent in the video from the possible intent to ignore Sendrow’s possibly anticipated objections while allowing for retroactive consent in general. And it would make her case sexual assault *despite* her consent to *let him finish*.
But – isn’t it obvious? Accepting the notion of retroactive consent (in whichever form) at all does, most importantly, one thing: it recreates a – potentially more demanding – “no-means-no”-paradigm. Because that’s what’s shown in the video: initiator initiates -> checks if it’s ok -> gets affirmation, continues -> repeat & escalate. That’s not “yes-means-yes”, that’s “no-means-no”, quite explicitly, actually.
If what’s depicted in that video is what the proponents of yes-means-yes had in mind – and the video suggests that this is the understanding of affirmative consent of people engaged in the fight against campus sexual violence – then they certainly didn’t do a particularly good job at helping the Californian sponsors phrase the law, because that’s really not covered.
It may be easier to determine ex-ante affirmations of consent to initiate kissing in most romantic settings with more affirmative body language than that of the pizza delivery guy. But under the current ymy-legislation, wouldn’t the woman have committed sexual assault despite his affirmation of consent when she checked in timely, but still *after* kissing him? Quoting from the law:
I think she would have.
SomeOne, you’ve got a lot of interesting points here (though I don’t agree with all of them), and I’ll let the others here continue to engage with them. I did want to address one repeated assertion you’ve made, though, that I think is incorrect:
This is the heart of the affirmative consent law. What you’re saying is, “Since she didn’t actively and continuously attempt to fight him off or dissuade him until he stopped, therefore she consented.” And, to me, that seems obviously incorrect.
To quote from the Mallory Ortberg post Amp linked, which is well worth reading the whole of, on the fact that she’s twice had to fight men off (emphasis original):
Harlequin-
not really, I’m saying she consented to let him finish because she said so herself: I was just tired and wanted to go to bed. I let him finish.
There’s no indication in her statement of a belief on her part to have to actively and continously fight him off or dissuade him until he stopped. To me, I let him finish is the admission that she could have easily said “stop” and decided against doing so because it was easier and she was tired.
Yes, in case someone fears violence or retribution, freezing is not an indication of consent, and, yes, active *resistance* is an undue burden. But without that fear, it really doesn’t seem like an undue burden to repeat her distaste in what’s going on by simply saying “no” again. If, on the other hand, as her I let him finish indicates, the decision was between having to say “no” again and letting him finish because she was tired, and she opted for letting him finish, as the smaller annoyance – and notwithstanding the point about the question of *retroactive consent* (with respect to his initiation) being possible here or at all – I kind of understand Cathy Young’s quoted reaction.
Again: it was totally wrong that he didn’t check in with her, and it certainly appears that he kind of tried to exploit their familiarity, hoping she would not say no again, but even that a**hole move doesn’t change her admission that she decided/consented *to let him finish* when she could have easily said “no” and that would have – by all appearances – stopped him. If it hadn’t, we would not be arguing about the case.
SomeOne:
Here’s the dictionary definition of the verb consent (my emphasis added):
Note those verbs. Consent is something that must be given, that must be stated, even retroactively. If, rather than saying “I let him finish,” Sendrow had said, “In retrospect, what he did was okay with me,” that would be retroactive active consent, and it would have cast an entirely different light on every single one of that guy’s actions. That you insist on reading the absence of resistance as a giving of permission, and that you insist—at least as I am reading you—on isolating “I let him finish” from the context in which it happened, suggests—I will say it again—that you are not arguing in good faith.
It reminds of the oil company lawyer I heard about on the radio yesterday, who kept insisting that because Congress legally defined the waste byproducts of oil production non-hazardous, the fact that they are indeed toxic is not available as an argument for preventing the oil companies for disposing of the waste near a populated area. You seem to me more interested in protecting a stereotypical heterosexual male entitlement, i.e., that what matters in obtaining consent is not the active, ongoing, if not outright enthusiastic then at least desirous-of-seeing-where-things-lead participation of the other person, but rather the purely formal aspects of consent: words, actions, or inactions that can be construed as meaning consent was given, independently of the state of mind of the person ostensibly giving it.
Perhaps I am wrong, though. Perhaps I am somehow misreading you. I am happy to be persuaded that is the case.
Well, no. I think you are misreading the video, frankly. The woman thinks she sees a yes in the delivery guy’s eyes and she acts on what she thinks she sees—and I think the way the scene is shot makes it clear that we are supposed to know that she does see what she thinks she sees. That it then occurs to her to make sure that she didn’t misread that yes is not the same thing as her presuming to act in the absence of a no, as if that absence means yes.
From what I remember of the case, you are awfully optimistic that this particular “no” would have made any difference in terms of the guy’s behavior.
Someone:
Someone, I’m curious: when I don’t want to have sex with a person, how should I pace my rejections so that it’s still assault when they disregard my refusal? Every five minutes? Thirty? Can I buy more time by making my rejections more emphatic? Is there ever a time when the situational condition becomes static, so that I can stop saying “no”? Are there things which can cause a revocation of the static condition, so that I should start rejecting again?
It seems like this process would be pretty hard to take, for the guy who’s pursuing me… all that rejection, so constantly…
Grace
Threads like this fill me with despair.
This debate is seeming lopsided to me, and I don’t think it should be. I’m new here, but I’ll weigh in anyway.
(By the by, I disagree with it, but I think this is a really well-argued post)
Two separate definitions of consent:
“In the context of rape, submission due to apprehension or terror is not real consent. There must be a choice between resistance and acquiescence. If a woman resists to the point where additional resistance would be futile or until her resistance is forcibly overcome, submission thereafter is not consent.”
(http://legal-dictionary.thefreedictionary.com/consent)
“A concurrence of wills. Express consent is that directly given, either lira voce or in writing. Implied consent is that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given.”
(http://thelawdictionary.org/consent/)
In both cases, it states that silence, inaction or acquiescence implies consent.
The legal definition of consent is structured that way (I opine) because it parcels out agency and responsibility in a fairly reasonable way – it allows people to enjoy the fruits of, and suffer the consequences of – their own choices.
I think the argument here is that we want to remove the “implied consent” above, only for sexual interactions. Maybe it does need to be removed, but right now, I’m uncomfortable with this proposal and think a much stronger case needs to be made.
Oh! Also, I think what’s kind of missing or not emphasized enough, is that one doesn’t have to say “no” over and over again – the person can demand the proposer (or aggressor) leave, or the person can leave. In all the examples given, this was a reasonable option.
Roe – are you saying that if, instead of initially saying “no”, Sendrow had said “please leave”, and everything else played out exactly the same, that would have made a difference for your interpretation of the scene?
So there’s a tendency people have to try to do morality by first categorizing something, and then applying the pre-existing moral rule they had for things of that category. So you might see a libertarian do the following:
1. Define “theft.”
2. Conclude theft is immoral and that it is moral to resist theft with force.
3. Determine the traits of “taxation.”
4. Apply the definition of “theft” to “taxation.”
5. Conclude that taxation is theft.
6. Conclude that we should at least consider shooting IRS agents.
This is terrible. It isn’t even logically cogent. (2) occurred in the absence of the information in (5). If you find that the set of things that fit under your definition has expanded, maybe your moral reaction to the set of things in question should change. In other words, maybe our hypothetical libertarian should, in light of (5), conclude that either his definition of “theft” wasn’t very good, or, conclude that “theft” as a category is too broad to support his conclusion that it is immoral and can be opposed with force. Maybe after thinking about it he will have a new definition of “theft” that adds in an extra nuance such that taxation is no longer theft, or, he will have adjusted his moral conclusion and decided that only some theft is immoral, and that only some theft may be permissibly resisted with force.
That’s what this thread looks like to me. If we define rape such that Sendrow’s case is rape, then we should probably re-evaluate the severity of our moral reaction to rape. Or we should re-evaluate our definition of rape.
Eytan – No, but to be fair, “please leave” is a request, and I said *demanding* that he leave was a reasonable option. The focus of the argument for me (in this example) is the moment he removed her panties – that’s the moment she *chose* to acquiesce, instead of resist.
“Leave or I’m calling campus security” – I would qualify that as a demand, with institutional backup. At that point, he can leave, or physically restrain her from calling. Once it becomes physical, I consider *that* a game-changer.
(Maybe I’m wrong on my read – that her preference for not-sex in the moment wasn’t strong enough to call on institutional backup, but her preference for not-having-had-sex is)
So if I understand you correctly, you’re saying “the measure of how strongly one prefers to not have sex is whether or not they were effective in not having sex?” – that’s victim blaming, pure and simple. She said no. That should be where the discussion starts and ends. Whether she was more or less emphatic about it can’t change a “no” into a “yes”.
Etyan – No offence intended, but I find that argument unconvincing. We are discussing a change to an already established legal principle. All else equal, we should have a *very* good reason for changing it.
There’s an established legal principle that states that a non-emphatic protestation is a type of consent?
I think the argument here is that we want to remove the “implied consent” above, only for sexual interactions. Maybe it does need to be removed, but right now, I’m uncomfortable with this proposal and think a much stronger case needs to be made.
Speaking of comparing consent in the case of rape to more general consent, this is one of my favorite links about why these people know that they’re getting a no, and are choosing to ignore it. It’s Not That They Don’t Understand, They Just Don’t Like The Answer. I think that the chances are pretty slim that Dierks didn’t know Katz was saying no to sex.
Richard-
regarding the definition of consent which you quote – I don’t think that consent is only an activity, it’s – and this is most important – a state of mind, whether externalised or not, consent may be present. I’m not sure what you’re trying to say when you suggest I’m not arguing in good faith? Do I think that there is a difference between “I let him finish” and “what he did was okay with me”? Yes. Do I think that this is a difference that, subjectively, matters – a lot – to Sendrow? Yes. Do I still believe that “I let him finish” is a statement of her consent? I do. It’s not enthusiastic, no doubt, but it’s still consent, and she’s clearly aware of that, given her own statement to the effect.
Maybe your could explain to me how legal clarity translates into “male entitlement”? As for “the state of mind of the person ostensibly giving it” – that’s something ths law is effectively ignoring as it refers to *affirmations* of consent, that may or may not be an indication of actual consent. It’s what I wondered about in my reply to Myca above – if someone wants to have unenthusiastic sex with their partner because of the relationship and not because they are enthusiastic about the sex itself, will they have to fake affirmative ongoing enthusiasm now instead of being “I’ll let it happen”? Do I want people to be happy in their relationships with constantly congruent patterns of desire? Sure. Do I want them to always be enthusiastic about the sex they’re agreeing to? Absolutely. But do I think that those aspects are necessary for the presence of actual consent? No, I don’t.
I’m sorry, but – are you serious? The woman *thinks she sees a yes in the delivery guy’s eyes* and that’s his affirmation of consent to being grabbed and kissed? Again, I assume in most romantic relationships it will be easier to argue with things like “I could see it in her eyes”, but to argue that in the context of a hookup that’s supposed to demo “affirmative consent” is making me wonder if you’re arguing in good faith. I mean seriously, if *she thought she saw the yes in his eyes* is what we’re talking about as a reasonable excuse for acting under the impression of affirmative consent when it was actually not given, then… I don’t know what the point of the law is. And no, I didn’t misinterpret the video – the consent structure in the video is *no-means-no* and still this is what’s considerd *yes-means-yes* by these activists. Which makes me think that they really don’t understand that this law’s main point is not helping people to communicate better with their partners, but to help establish a single version from potentially contradictory subjective realities.
Grace-
those are very good questions. And isn’t it funny how this also works the other way around? Grace, I’m curious: when I want to have sex with a person, how should I pace my requests for affirmation so that I can concentrate on her instead of worrying about the current legal state of our interaction? Every five minutes? Thirty? Can I buy more time by making requests more emphatic or verbal? Is there ever a time when the situational condition becomes static, so that I can stop asking for “yes”? Are there things which can cause a revocation of the static condition, so that I should start asking again?
I mean, kidding aside, when do situations change? How often does consent has to be affirmed. These are the things that are actually missing from the law if it’s supposed to be workable. Now university admins will have to create their own standards for precisely those questions.
Patrick-
That would seem like an appropriate social response.
SomeOne:
This is where I see the bad faith in your argument. The question is not whether Sendrow gave enthusiastic consent, but whether she gave active, affirmative consent. You keep, willfully it seems to me (though I could be wrong about that), conflating the active and enthusiastic. You do it again here:
***
Except that I think your reading of the video ignores the way it is supposed to be playing with the conventions of a particular type of heterosexual porn, in which the look in his eyes would indeed be construed as a yes. I do think, as I said above, that this is a weakness in the video, but to read the video without taking the conventions it’s playing with into account is not fair either.
I have a theory.
To some extent now, but to an even greater extent in the past, my first reaction on reading stories like this is to think, “Why didn’t she leave the room?” or some such thing*. I think part of this is expecting people to act more rationally than they’re actually likely to, given human nature. But part of it is that I tend to identify with women more easily, and many of these stories are about men assaulting women (especially those that make it into the press), so I put myself in the woman’s place and ask “Why didn’t she…” But if I put myself in the man’s place, and think “Why didn’t he…” it becomes obvious how much the man is in the wrong.
Obviously plenty of men ask “Why didn’t she…”, but I wonder if this is one reason why female jury members are seen as good for the defense in rape trials.
*Other reasons for my change in thoughts–being more realistic about how often people, including me, will be in stunned disbelief or will freeze when someone does something inappropriate** or fear-inducing; and realizing that I *want* to give people the benefit of the doubt and be like, “Well, maybe if she just explained that it wasn’t just that his roommates might overhear, she really didn’t want to have sex…” when a more realistic understanding of human nature is that someone already disregarding one “no” is unlikely to be cooperative when given a clearer no, and that that figures into most victims’ calculations.
**Something as simple as, I’m gathering up a couple grocery carts that are in particularly in-the-way places, because it annoys me. Someone holds out their cart for me to grab, rather than taking it back themselves.
SomeOne, you addressed some question to Grace, and I am clearly not she. But since I find this topic interesting I’m going to hop in–hope you don’t mind:
Again, this law (and this idea) doesn’t require verbal consent. Are you telling me you wouldn’t notice if your partner suddenly went completely limp and unresponsive (and not in the blissed-out kind of way)? If they suddenly looked upset or afraid? You wouldn’t stop what you were doing to check up on them if that happened?
Emphatic? No. Verbal? Maybe, if that was an explicit part of the request: “I’d like to try act X, it might take you a minute to get used to it, can we try it? I’ll go slow and you can tell me any time if you want to stop. That cool?” Or whatever. This is kind of the whole safeword conversation from BDSM, really, which is all about negotiating very explicit levels of consent for activities that might cause unexpected reactions.
Nope. Other people don’t owe you sex. So if you’re having sex with them, it’s your job to make sure they’re okay with that. You and I don’t have equal rights as to what happens to your body; of course there’s an asymmetry here.
(There is symmetry in the need to check in with your partner or partners: you both/all should be doing that. But if you’re asking what you, in particular, should do in situations where you’d like to continue having sex, paying attention to whether your partner is enjoying themselves is a fairly minimal requirement. [And if it’s not a fairly minimal requirement for you–if you have trouble reading body language cues–then it’s your responsibility to acquire explicit verbal consent.])
As to the asymmetrical desire thing–it is totally fine for someone to say to their partner, “Sure, babe, I’m not really in the mood, but go for it…I’ll just keep watching TV,” or whatever. If that’s your jam, great! But it’s not the kind of thing you can assume, absent explicit verbal consent in that particular case where body language would not convey the consent that does exist.
Richard-
no, the question is wether Sendrow *consented*, not whether her consent was presented or affirmed or made accessible in any form. And I think “I let him finish” means that she was, in fact, consenting, even though her consent wasn’t affirmative according to the standard.
So, in real life, doing what the woman in the video did would be sexual assault according to the affirmative consent law? Or would retroactively given consent (aka “no-means-no”) be possible in your opinion?
Harlequin-
Well, I’ve probably annoyed way more women by being too attentive in that respect than the other way around. Example/heavy petting. “She: Why are you stopping? Me “You turned your back towards me and I thought you wanted to stop and sleep.” She “That doesn’t me you should stop.” I’m constantly worried about not having consent, of misreading, of making a mistake, and I’m aware of the extent to which this worry limits my ability to actually be positively sexual with another person. And women are not rarely understandably annoyed by that.
But that’s the thing: this is no-means-no, and that’s just not possible in the affirmative consent framework. There’s no understanding of what practices are contained in the yes and which aren’t. Agreed to kissing. Do I have to ask for kissing her neck? For touching her breasts? Individually? I mean, if I touch her breasts and she says “no” I’d technically have committed sexual assault, for which I may or may not be punished, because it may or may have been reasonable for me with a preponderance of evidence to assume affirmative consent for the attempt to escalate from her non-verbal behavior, but it would still be, legally, sexual assault. Do you think that’s a necessary, reasonable, and helpful way to look at sexuality? I don’t.
Again, safewords are great – but they’re *NO MEANS NO* by any other word. They’re creating a space for experimentation within which the initiator is freed from having to constantly ensure ex-ante consent. I’m not sure that’s legal under the new framework, actually, I don’t think it is.
Sure, but because of that, I also have privileged information about my body and what I want, and it’s very easy for me to tell you and potentially very difficult for you to ascertain that information. Why should only you be responsible for establishing the common ground? I need to constantly worry about your body and you need to constantly worry about mine. Wouldn’t it be so much easier if we concentrated on our own body here?
I think you’re misreading Young and others who dismiss the Swarthmore case. They aren’t saying the lack of resistance implies that no rape occurred. If the victim was drugged, or pass-out drunk, or underage, or mentally disabled, Young et al wouldn’t be dismissive. People held at gunpoint aren’t expected to resist. So what’s the difference between these cases and Swarthmore?
The Swarthmore case, when I first read it, struck me as being very odd. Rape is a traumatic event. From the way this story was presented, it seemed like the girl considered it less traumatic to be raped than get up and leave the room. It was bizarre. No matter how tired I felt, I wouldn’t stay in bed if someone was stealing my laptop, let alone trying to rape me. I got the feeling that there were facts that I was unaware of.
And I was right. Phillymag, which first ran the story, is a local magazine. The cool thing with local publications is that sometimes the people in the story turn up in the comments. The girl in question did. Here’s her comment, which is earnest enough to persuade me of it’s authenticity:
http://www.phillymag.com/articles/rape-happens-here-swarthmore-college-sexual-assaults/#comment-1354471324
The bold is obviously my own. The reason she brought the case to the administration wasn’t because she was traumatised, but because he was sending her violent messages. I won’t call this an abuse of the system, because if he was threatening violence, I’m not going to judge her for taking steps to protect herself.
But this example does illustrate how easy it would be to abuse the system. I’ve had unwanted sex with girlfriends in order to keep them happy and to avoid drama (women are really bad at taking no for an answer.) It was extracted with persistence and scene-for-scene not too different from the Swarthmore case, but the idea that they should be punished as rapists (7 years minimum imprisonment in India) is insane. The idea that I should have the power to get them expelled over this – perhaps after a bitter break up – is also insane.
The other examples also strike me as dubious illustrations, especially the Blatant Man in the footnote. “Have sex with me or I’ll break your bones” is rape. “Have sex with me or I’ll toss you out of my house” is not rape. We are morally obligated to not strike people. We are not morally obligated to share our roof with them. Blatant Man wasn’t raping her; he was making a offer. You can’t insist that Uli Lust was raped, and that rape is a terrible thing, but still preferable to spending the night in the rain.
Blatant Man shouldn’t be tried as a rapist because although he didn’t seek enthusiastic consent, he didn’t use force, or threaten force, or exploit someone unable to make a decision, or abuse his power. (Unless you consider deciding who stays in your home an abuse of power.) It’s one thing to insist that we should only have sex with those who are eager to have sex with us. It is another thing to say that all else is rape, and should be punished accordingly.
Sohpia Katz’s case is similar, but with a twist – Dierks claims that he thought that she was fully consenting. Had he known she wasn’t, that she was afraid of being kicked out, he might have stopped and let her stay regardless. (If not, we’re back to the Blatant Man argument.) Perhaps this is one of those cases where “making it clear, legally and culturally, that lack of resistance isn’t consent could actually rescue some people from committing rape”?
If so, changing legal norms isn’t the way to do it. Such people have these beliefs because of social norms. Changing legal norms does not change social norms; if they did the decades long War on Drugs would’ve persuaded teens to stop trying weed. And changing social norms is not only necessary, it is also sufficient.
The scene from It’s Always Sunny in Philadelphia is the least persuasive example in the post. It’s a show about shitty people doing shitty things. If this is something one of them is doing, it means that the producers and audience regard it as a shitty thing being done by a shitty person. The scene doesn’t demonstrate that the Implication Tactic is a widely accepted seduction method; it demonstrates the opposite – it’s considered highly distasteful.
By the way, I think that “yes means yes” should be adopted as a social norm, and that people should be encouraged to pay more attention to their partners feelings.
My problem is that it’s a terrible legal norm, being excessively broad and vague, and that proponents relentlessly target men, ignoring the role female mating strategies play: http://nationofbeancounters.wordpress.com/2014/02/17/game-theory-and-consent/
The Lisa Sendrow incident, as described in the George Will column, is a tough one. It sounds like the guy is an asshole, but I think that how you picture the scene in your head, and the emotions that you attribute to the two people in the story, mean that a reasonable person could describe the situation as rape or not-rape.
I have trouble processing the story because the events described in it have happened to me, on more than one occasion. (And with more than one guy. Feel free to slut shame.) (That was sarcastic. Don’t feel free.) I have been laying in my bed, with a guy I’ve previously hooked up with, who initiated sexual activity, and told him “no.” Or, “no, not tonight.” Then–and I suppose your interpretation of how common this is depends very much on your personal experiences–the guy will often try again in a few minutes. Typically, I stick to my guns. At least twice, perhaps three times, I’ve let him (different “him” each time) finish.
On those occasions, and now, I do not feel that I was raped. The reason I don’t feel I was raped is because at no point did I feel that I had no choice. I knew I could choose to stop what was happening, and–for whatever reason–I didn’t choose to stop it. I also don’t believe that what happened to me was a serious violation of my person.
I think of rape as a very serious thing; it’s a crime against a person and against society. Even some of the people on this blog who argued that the guy who had sex with Sendrow had raped her conceded, in a previous discussion, that he probably should not be imprisoned for years for what he did.
I think there’s real danger in expanding the definition of rape to include things that aren’t very, very serious acts. I don’t think that means that the men in these experiences (Sendrow’s and mine) are doing the right thing, or that they’re not assholes, jerks, or what-have-you.
In the narrow range of cases being discussed here, i.e. not a stranger-jumping-out-of-the-bushes type thing, I’m wondering what the purpose is to take all of the responsibility off the woman and put the onus on the man (despite gender-neutral language, that’s what’s going on here – even if you reverse it, what’s the point of taking all the responsibility off the man and putting the whole onus on the woman)?
If two people are in a bedroom in a state of undress, what’s wrong with having clarification? By both parties? Why not just say No if you don’t want to have sex? It almost seems like a Gotcha Game here. People behave in different ways, and there could well be misinterpretations and miscommunication in situations like this. I just don’t understand the completely one-sided nature of this.
Iri – the reason “just say No if you don’t want sex” doesn’t seem to be good enough is exactly because of cases like the Sendrow incident, where she *did* say No, and still there is a huge amount of work put in by various people (some on this thread) to indicate why her “no” wasn’t good enough.
I agree with you that it would be nice if “just say No if you don’t want sex” would do the work it’s supposed to, and that if it did no further revision would be required. But it’s clearly not working.
But I disagree that the affirmative consent involves a unidirectional shift in responsibility. As far as I can tell, the division of responsibility remains unchanged – it is the responsibility of whomever initiates sexual contact in any particular incident to ensure that the other person (or, for that matter, people) involve consent to it. All “affirmative consent” does is give a clearer (though still not 100% reliable, I agree) procedure for how this should be done.
It’s one-sided because the negative outcomes are one-sided. Getting raped is much worse than not getting to have sex. So the burden is on the person who wants to have sex to do everything they can to check their partner/s are consenting. I’m so confused by what is hard or burdensome about this.
I do this constantly. Do you want this? Is this nice? Yes? Yes? Tell me if you like this. I watch their reactions, are they enjoying themselves or are they tensing up because of pain/ displeasure. Has their breathing changed, have they stopped touching me or are reacting differently to a few minutes earlier, check in.
Also I would not define kissing someone when you believe their body language is consenting, then verbally checking in and discovering they were not consenting as sexual assault. Ditto for escalating an sexual encounter up a step (say, kissing their neck to attempting to touch their breasts) . Honest mistake = honest mistake. The problem for me comes when people push their luck (i.e. do not listen when the person says they are mistaken/ don’t want to take things further or keep pushing their partner to go further than they are comfortable. You can’t keep claiming you mistook their signals for an entire sexual encounter)
re: “let him finish” sounds very similar to a common reaction to rape – freezing up and stopping fighting, out of fear of further violence. This is a reasonable, even sensible reaction once it is clear the rapist is not going to listen to your body language or even a clear verbal “no”. Woman are killed and beaten for resisting rape, avoiding that is sensible not consensual.
Did anyone hear about the recent episode of “the Mindy project” where it’s about consent after one character has anal sex with the other without asking explicitly?
http://www.huffingtonpost.com/2014/10/14/middlebrow-mindy-project_n_5984370.html?utm_hp_ref=entertainment&ir=Entertainment
Rape? The actress claims her character would not have felt violated. Incidentally, there’s a whole film about the question whether it’s rape to escalate to anal sex without asking explicitly (and, I would say: in the case of the film by Nancy Schwartz, it actually *is* rape, because the guy in question appears to be aware of her non-consent. He’s not presuming consent, he thinks she’s not consenting, and goes ahead anyway: that’s rape)
http://whereisyourline.org/film/
Interestingly, there’s an episode of GIRLS in which Hannah (Lena Dunham) proceeds from making out naked to digitally anally penetrating the guy she’s with without asking. He gets upset and storms out – “in which world do you go from making out to anally fingering someone?”
Rape?
Eytan-
how isn’t that onesided? The initiator *always* implicitly consents by initiating, the recipient of an initiation doesn’t even legally give consent to the prior initiation by reciprocating. That’s the whole “retroactive”/no-means-no discussion above.
VK-
I wouldn’t either. But the yes-means-yes law does, at least as it is current phrasing. What you’re describing is “careful no-means-no”, not yes-means-yes.
Yes-means-yes is a great way to talk about sex, it’s a bad legal doctrine.
A story:
I walked to the corner bodega for a pack of cigarettes. I took $2 with me. On my way into the store, I saw a guy harassing a woman on her way out. I bought my $1.85 pack of cigs and exited the bodega. As I walked out, Harrasser Guy asked me for a dollar. I told him I didn’t have a dollar and turned to walk home. A very big man stepped in front of me and asked me why I didn’t give Harrasser Guy a dollar. Another man walked out of the bodega, looked at us and stopped. Big Guy said, “Are you gonna be his hero?”. Dude walking out of the store quickly walked off.
Figuring out what was going on, I gave them the 15 cents that I had and showed them my empty wallet. Then I walked the 1/2 block home.
Was I mugged or did I consent to give them 15 cents and a look at my wallet?
SomeOne:
So do I understand you correctly to be rejecting precisely the distinction between these two kinds of consent that the law is, as I understand, intended to draw?
Please show me where it, unambiguously, in the plain meaning of the text, does that.
If you were afraid you would be assaulted if you resisted, you were (subjectively) mugged. If you weren’t, you just gave him your 15 ct. Was it clear to the big guy he was putting you under unfair pressure if he wasn’t intenting to mug you but was just messing with you? I don’t know.
Even if you call this mugging, you’d have to agree with those in this thread who point out that what’s going on here is different from robbing you at gunpoint – both in terms of your choices and the traumatic nature of what’s going on.
Richard-
Of course there’s a distinction. But making that distinction the legal premise of a law will lead to situations in which someone will not have given affirmative consent while still *consenting*. Those cases of consensual sex are defined as sexual assault under the legislation. I don’t find that reasonable.
Jake Squid – Your story clearly involves an implied threat of violence.
Several posters have tried to “import” an implied threat of violence into some of the examples of clearly consensual sex listed in the OP (I can beg the question too!), but there’s no evidence these were present.
On my first trip downtown with a friend but without adult supervision, a guy approached me on the street talking about this great religion and handed me a hardcover book for me to look at. I took it.
He then told me the book was free but asked for for a $10 donation to his church. I was now in an awkward social position (which was clearly being leveraged against me) of walking away with an expensive-looking book, paying for a book I didn’t want, or dropping the book on the ground (since he wasn’t taking it back).
I gave him the money and threw the book in the garbage a block away.
He was kind of a jerk, and I was kind of a patsy. I never took anything that was handed to me from any stranger on the street again. I got a little better at dealing with jerks.
(To be clear – one of my “true objections” to consent legislation is it’s not anti-rape, it’s anti-jerk. Saying “no” to jerks is an important life-skill, I don’t want to out-source it to the government.)
Yes-means-yes = non-verbal consent too. Kissing them because I believe their body language is consensual (leaning in, looking at my lips, putting a hand on my arm) and then checking in afterwards is entirely within the yes-means-yes legal framework.
Another story:
There’s a knock on my door. It’s my neighbor, RL. I know him from waving to him, letting him take some of my roses for his mom’s grave, him helping me cut a broken branch off a tree, etc. I have just split with my wife. He asks if he can come in and I say, “Sure.”
RL sits on the couch and tells me how beautiful I am and how he wants to suck my dick. I tell him no. He keeps going on about how beautiful I am and how much he wants to have sex with me. I keep telling him, “No.” He puts his hand on my thigh and I remove it. He leaves and comes back with porn magazines and a crack pipe and tries to get me to smoke with him. I say, “No,” again and again to crack and to sex. This goes on for a long time.
At what point is it clear that I have not given consent and will not give consent?
At what point, if I had given in and, while not physically participating, allowed him to have sex with me, would you say that consent was granted?
What if there were no threats of violence yet I feared for my life? Would that change whether consent had been given?
No threats of violence, an acquaintance with no history of violence or even disagreement between us. Nothing in the interaction that would have caused fear in a significant percentage of men. Me? I would say that I’d been raped had I ever given in to RL.
Giving in after repeatedly saying, “No, ” because it seems like the best option available at the time is not giving consent. It’s not giving consent any more than I gave consent to the two guys outside the bodega to have my 15 cents, it’s not giving consent any more than my interaction with RL (as it actually happened or as it could have happened) is giving consent. “I let him finish,” is in no way affirmative consent. “I let him finish,” is choosing the best option available at the time. In Loony Tunes terms it’s, “Shoot me now! Shoot me now!”
“He leaves and comes back with porn magazines and a crack pipe and tries to get me to smoke with him.”
Why did you let him back in after he left if you don’t like him or his pushy ways?
It only took one comment for victim blaming! Congratulations, Iri, you are the grand prize winner.
Jake Squid – The answer to all questions posed is “I don’t know.”
I don’t think anyone knows. I don’t think people running large institutions (as intelligent as they are) know. That’s why I’m very leary about giving institutions a lot of leeway to make laws that are going to solve this problem.
SomeOne, this is sort of a general comment to your reply, but this is the easiest specific bit:
I didn’t phrase myself well here, sorry, or possibly I wasn’t even thinking well. Having a safeword, or asking for some leeway to try something new, or whatever–that doesn’t absolve you of the responsibility of paying attention to your partner; it just alters the terms of what kinds of signals you’re looking for. Like, a sign of outright pain would be a reason to stop; a look of uncertainty, perhaps not, at least at first.
I think it’s important to discuss borderline cases and work out what we mean by certain ideas. But also… I mean, sex is very fraught for most people; it can make you feel uncertain and nervous for the other person as well as for yourself. But I think that that uncertainty gets exploited by people who are trying to do harm, to make it sound like they made an honest mistake when it really was not.
For example, to go back to the Sendrow case, she has said elsewhere (as Amp has linked before) that parts of the story were omitted from the article, and that the assault was more violent than depicted.
Also, Navin Kumar:
That doesn’t mean she wasn’t traumatized. She could have decided to let it go because a rape prosecution was likely to be also traumatic and not very helpful, and as long as they didn’t interact again it wasn’t worth the pain it would cause. But when he continued to threaten her she reported it to stop further abuse. “I wasn’t going to report it initially” is not the same thing as “I wasn’t raped.”
One of those questions was:
I hope I never have to be in the same room with you, then. You appear to be somebody who doesn’t understand either obvious social communication or English. Seriously. Your response indicates to me that it’s possible that you could say, “I’d like to hit you in the head repeatedly with this hammer,” and that no matter how many times I said no, there would be no point at which you understood that consent was not being given and would not be given.
There is no way I want to be near a person who can’t determine when consent has not and will not be given. That’s way too dangerous for me.
Look, this really isn’t complex. At all. I have a hard time believing that the pushback against affirmative consent standards is anything but an attempt to keep plausible deniability available for rapists.
As someone whose own lived experience has actually included events like this (as opposed to a hypothetical example), I’d say that consent is granted when you, understanding that you have a choice and could stop the physical escalation, make the choice that you would rather go along with the blowjob than to be annoyed or experience somethig socially awkward.
If you don’t believe you have a choice–for example, if you fear that you will be harmed or if your neighbor trespasses on your property after you make it clear that you want him to leave, that changes the dynamic.
For what its worth, the proponents of affirmative consent can’t use the fact that Sendrow said “no” earlier to explain why the later intercourse was rape. That fact is irrelevant to the legal standard they’re advancing. The outcome should be identical if the first interaction never occurred.
VK-
no, it’s not. I may suffice to get off the hook when it comes to prosecution should you be able to convince the “court” with a preponderance of evidence that you had reason to believe that affirmative consent was present, but what exactly will be counted as *affirmative non-verbal consent” (apart from, logically, initiation of the activity) is really a big mystery at this point. I’d say that the body language you mention amounts to a reasonable suspicion of consent for kissing, but I don’t think it’s an *affirmative* yes. Unless we manage to practically *and* legally define what body language defines an affirmative yes for kissing – and I’d love to hear that debate, seriously – whatever w do based on the reasonable suspicion of consent to kiss us without explicit verbal affirmation would still be a matter of “no-means-no” and thus technically sexual assault under the yes-means-yes framework.
Harlequin-
I’m sorry, what is a safeword for if the initiating party does still need constant ex-ante affirmative consent? If you’re saying that not using the safeword is equivalent to affirmative ex-ante consent as long as one also pays attention to one’s partner, then I’m starting to wonder if you actually understand the legal difference between yes-means-yes and no-means-no.
Also – not as a reply to Harlequin – some good points are made in this article.
http://www.theatlantic.com/politics/archive/2014/10/an-apalling-case-for-affirmative-consent-laws/381518/?single_page=true
Well, a safeword is primarily so you can say no without meaning no. It’s also used to emphasize a no to somebody who’s not listening to you–which, yes, is getting outside the yes-means-yes territory (but it’s better to have it than not, in that case).
Indeed it should. But we’re arguing here with people who believe that a no means no standard is sufficient, and yet seem to think this particular no doesn’t count because she didn’t say it enough. So it’s reasonable to explain that, in our view, this was rape, and an affirmative consent law makes that easier to see.
Harlequin-
no, a safeword is a word that is used to stop things that is used *instead* of a no, but with precisely that meaning, because some people like to use the word “no” in their scenes, so they need another word that will give them that.
http://en.wikipedia.org/wiki/Safeword
Again, I don’t think using safewords is permissible under the Californian legislation, as it’s not a way to continously ascertain affirmative consent throughout a sexual encounter.
SomeOne:
I’ll ask again. Please show me where the law says this. I am really curious to understand how you are reading it.
Me:
You:
Right, yes, that’s what I meant: you can say no without meaning no, because you have another word that means no. I mean, no still means no in a yes-means-yes framework–it doesn’t somehow bar you from saying no if you want to! My point was just that a safeword isn’t carte blanche to do what you want until you hear it; you should still be sensitive to how the other person is responding. Just like you would with a regular no. But the kind of prenegotiation that happens around things like safewords, and around the kinds of reactions you’re expecting (like “I might yell no but I want you to keep going”), is an example of the fact that, like, this isn’t rocket science: you can talk about stuff if you’re not sure and still have a satisfying sex life. There are people with lots of experience at this.
Frankly, I think we’re getting into the weeds a bit with this comparison, though.
Richard-
I wonder how you (or anyone) cannot read it that way. Just read the first sentence: It is the responsibility of the initiator to ensure that s/he *has affirmative consent to engage* in sexual activity. Now it’s easy to imagine any number of situations which the recipient is consenting, yet not affirmatively so, and the initiator trusts in the recipients consent, so consensual sex ensues that is, however, infringing this law and hence has to be classified as sexual assault. I don’t find that reasonable.
*has affirmative consent to engage* – it doesn’t say, *has reason to believe the other party does consent*. And, effectively, there’s no way to do this but with verbal affirmation. And it has to be ongoing for different stages of the interaction – it doesn’t define where those stages are, what consent given for one entails, and when it no longer applies. But if one person assumes touching breasts was included in the “yes” to making out, and hence doesn’t ask again for an affirmation of the escalation, and the other person doesn’t think that and would have wanted to be asked? Clearly the first person’s definition of stages will not be the one used should this question ever have to be discussed in front of a college board. Don’t you see how this is effetively making initiation, except with ex-ante verbal affirmation to a specifically outlined sexual activity, illegal?
I’d say that most of the examples given by proponents of the law are actually illegal under the law they’re supporting. From the ultra violet video, to Jessica Valenti’s interview in thinkprogress, to Thomas Millar’s post on the yesmeansyes-blog – everyone seems to assume the kind of thing VK explains above, provided there’s enough communication. But that’s, again, not what the text of the law states. It just is not.
Harlequin-
absolutely. You *can* do that. Most people, however, prefer to not do that, for reasons only known to themselves… and I don’t think it’s a very productive educational approach to force feed them ideology. Did you check the Atlantic-link I posted above?
Someone:
And yet, I notice that you did not answer them.
Seriously, setting aside “Yes means Yes” for just a moment, what do I have to do to get my “No” taken seriously? Because, really, what I want is (a) safety and (b) to be left in peace when I’m not interested. The conversation should go like this:
Other person: “Hey, I think you’re very attractive and I’d like to kiss you.”
Me: “No.”
Other person: “Understood.”
I don’t want to have to go around that merry-go-round more than once, whether it’s every ten seconds, every ten minutes, or every other day. So, let’s cut to the chase. What do you propose that I substitute for “No” in line two in order to get someone to leave me alone? A punch to the nose? A warning shot into the floor in front of his foot? What is it that I have to do so that the jury won’t think, “Well, but she didn’t say it ENOUGH” and acquit my rapist or stalker?
Also, what Jake said:
Navin Kumar:
Not in suburbia with money for a cab or your car parked in the driveway, no. But since you specifically mention the footnote, you have to have seen the actual description:
It is dark, cold, raining, and far from any other human being. Perfect conditions to die of hypothermia. That’s not “have sex with me or get out of my house”, that’s “have sex with me or risk injury and death”. It’s the exact same moral calculus as “have sex with me or I will push you in front of that train”.
Oh my effing word.
I am tempted to drink myself comatose just to forget about the existence of this thread. It’s cold and raining outside, right now, but fortunately everyone in this household does not regard consent as a mystery wrapped in an enigma, so I’m safe.
Grace
Harlequin- That’s because, just like consent can turn into refusal a few minutes later, refusal can turn into consent. So long as valid consent (uncoerced, etc) was given it doesn’t matter. The fact that she said no to the first advance is relevant if it provides evidence that the latter sex was non consensual. Normally it probably would. But the scenario as described in the OP doesn’t appear coercive to the people you’re debating (she “let him” have sex with her, no evidence or testimony is offered suggesting that she was unable to do otherwise or afraid to do otherwise, she wasn’t impaired, etc), this issue isn’t relevant to them.
That’s why stories like Jake Squid’s aren’t bothering anyone. He’s changing too many details, then trying to get people to evaluate it based only on one detail (number of times he said no). But this isn’t a counting game.
I have had the… privilege? of occasionally teaching informal courses on self defense law. There’s always one guy (“that guy”) in the group who wants to shoot someone and wants me to tell him what magical fact patterns he can look for to lawfully gun someone down (this is why I don’t do those talks anymore, I hate “that guy” and think he’ll lie about what I said and get me in trouble).
“That guy”s first mistake is his transparent desire to be given an excuse to kill someone. But his second mistake is believing that the law operates this way. It doesn’t. In self defense, (one of) the legally relevant question(s) is whether you reasonably perceived yourself to be in danger. Not whether you were in one of the magical scenarios in which you are “legally in danger” even if you’re not actually in danger. So when he asks “If [X] happens, am I in fear for my life THEN?” the only proper answer is “that sounds like evidence that you’re in danger, but the overall situation is what the police, prosecutor, and jury will care about, so I can’t give you a black and white answer.”
Don’t be “that guy” for rape law.
Grace-
Do you hear that often from random strangers? Context is key, as always. Person you don’t know says that? You should never hear from them again. Are you in the process of flirting? What’s an indication of a new situation that would make it appropriate to reevaluate the no? Are you in a committed relationship and you were both in bed and you were reading so you may have said no as a replacement for “I’m reading”? It’s really not that easy.
You can assert this, but it doesn’t make it true. The verbal requirement was specifically taken out of the law. Is there a middle ground of clarity in body language where verbal consent would be needed? Sure, but that doesn’t mean it would always be needed.
I mean, I think some things would need verbal affirmation. But this kind of framework assumes that you move instantaneously from one act to another, and that response goes instantaneously from a firm yes to a firm no. It is, if you will, the robotic-effect-Autotune version of sexual activity. But real life, like a real singer, has transitions, which is when I would assume most people pay the most attention to what’s okay with and what’s desired by their partners.
Fair enough. It’s available for people who want it, and it seems to work for some people. I think one difference of opinion here is that, IMO, watching/waiting for affirmative consent is actually what most people already do, and therefore this law requires no change to the vast majority of sexual encounters that take place.
I skimmed through the Atlantic link, but it was in response to an Ezra Klein article I didn’t agree with, so I didn’t find its arguments very applicable to my own positions.
I did provide some testimony to that effect. Did you read it?
And sure, refusal can turn into consent. But that involves, you know, a change. According to Sendrow’s version, at least, she didn’t start to behave more warmly towards the guy–in fact she tried to go to sleep. If I try to put myself in that place–I’m in a dorm room with a person I used to date, I make a move, they say no, they try to go to sleep–I don’t think “wait a few minutes and start undressing them” would even cross my mind as an appropriate next step. (Or, what closetpuritan said at #30 about whose shoes you put yourself in.)
[edited because I had a few details wrong about the situation, my apologies]
Jake Squid, the notion that this is simple appears to be contradicted by the fact that even supporters of the legislation can’t get their story straight.
I don’t see why you think the SomeOne’s framework requires that assumption, Harlequin.
Because if you move slowly from one act to another, you have time to notice when the person is tensing up or relaxing, moving away or moving in, smiling or frowning–you can get a read on whether what you’re about to do is welcome. Saying “you need prior verbal consent for every new stage” assumes you have zero information on any act but the one you’re currently engaged in.
SomeOne:
Even if you call this mugging, you’d have to agree with those in this thread who point out that what’s going on here is different from robbing you at gunpoint – both in terms of your choices and the traumatic nature of what’s going on.
“Those in this thread”? You?
It’s different in terms of his choices how? Not giving them the money will be somewhat more likely to result in being seriously injured rather than killed?
It might be less traumatic, I don’t know, but how is that relevant?
In cases of rape, I expect that it’s rarely not traumatizing, but for some types of sexual assault, e.g. snapping girls’/women’s bras or grabbing their butts, it’s probably more common for them not to be traumatized. That doesn’t mean that girls and women are somehow only allowed to report it if it’s actually traumatizing and not merely annoying, infuriating, or distracting. Some of this behavior is quite common among middle-school-age children, and it’s doing the boys a disservice not to report it; they need to learn it’s unacceptable if they don’t have enough common sense not to do it in the first place. (But if they haven’t learned it by adulthood, I don’t feel sorry for them if they serve jail time.) And the girls need a learning environment where they can actually learn. And girls and women shouldn’t have to put up with it.
Whether something is a crime does not change based on how traumatized the victim was.
Harlequin, I think you’re describing a good, ethical approach to sexual interactions. But I’m not sure how relevant that is to the law in question. Are you claiming that ‘relaxing, moving in, and/or smiling’ are all legally dispositive forms of affirmative consent?
Harlequin-
no, it’s merely stating what’s written in SB 967. I do understand that, in real life, things look different, why, in real life people are singers using transitions and context. But that precisely why it’s a problem to tell them that it’s now illegal to rely on transitions when singing, because it’s too dangerous for them and everyone else.
I think what you’re describing is the law supporters fo the law *want it to be*, and not the law it actually is.
Harlequin-
Could you indicate any form of non-verbal affirmative consent that can be clearly defined as indicating affirmative consent? Would you say that – these are body language cues from VK’s reply above – “leaning in, looking at my lips, putting a hand on my arm” is a *legally sufficient affirmative indication of consent to kiss*?
I may or may not decide that it’s worth trying in a no-means-no situation, but I doubt it would be possible to define a sequence of body language cues that are legally sufficiently affirmative.
Harlequin- I did read it, but it was irrelevant so I ignored it.
The scenario posted by the OP is the one that was offered as an example of why affirmative consent laws are necessary. I am aware that Sendrow has stated that the scenario the OP posted was not accurate. The OP does not address that and does not use that as part of his argument.
Not to mention, attempting to shift the conversation from Will’s description to Sendrow’s undermines the use of the scenario to argue for affirmative consent laws because it adds the issue of violence. Think of it this way- Joe claims that he was battered by a used car salesman when the salesman told him that a car was “really nice.” Critics respond that this is not battery. Joe adds that the salesman also punched him in the face. The critics might now agree that Joe was battered, but they aren’t going to change their mind about whether the salesman’s statements were battery.
“If I try to put myself in that place–I’m in a dorm room with a person I used to date, I make a move, they say no, they try to go to sleep–I don’t think “wait a few minutes and start undressing them” would even cross my mind as an appropriate next step. ”
That’s good. I agree. But your position in this thread isn’t that his actions were inappropriate, your position is that his actions constituted rape because he did not have affirmative consent. Presumably there are many ways to treat a sexual partner that would never cross your mind, but which would not actually rise to the level of rape.
I, for example, have turned down sex with someone who was showing signs of intoxication, but who was sober enough to walk around, talk to me, and make their views on the subject very, very clear. Comment threads on this blog have made it clear to me that my moral stance on this issue is far from universal, even among feminists. I stand by it (in part for self protection as, unlike a lot of people with views on the subject, I actually know what BAC alcohol induced amnesia kicks in at), but I’m not certain that doing so is the difference between being a decent person and a rapist.
So here’s the text of SB 967 that Amp quoted:
Where does it say there that one needs prior consent for every act? It says, It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.. I do not read that, and I don’t see how a plain reading of the text can be construed to mean, that I need to stop at the end of each stage of sexual interaction—as if it were possible to divide the interaction neatly into stages—and say some version of Well, you’ve been okay with what we’ve been doing so far; are you ready to move onto _____________? before I do anything even resembling what that blank might stand for.
What I need to do is make sure that the person I am with actively desires what I am doing. Can that take the form of asking if I can kiss you before I kiss you? Sure. Might it take the form of me stopping before each new thing I would like to do and asking you? Again, sure. But might it also take the form of, “Wait a minute. I realize that I started doing this without asking, but the moment felt right, so now I just want to be sure. Was the moment right?” I cannot see how the law makes that scenario potentially criminal because the law also says:
In other words, if you have taken reasonable steps to make sure that you have affirmative consent—which I cannot see anybody saying does not include checking in after you’ve initiated, in the heat of the moment, or in response to a cue you might have misread, some new form activity—then you are understood to have obtained affirmative consent.
Now, the question of what it would take to demonstrate that you took those reasonable steps is a different and, I can see, potentially fraught question, but that is quite different from arguing that the law is flawed because it requires you to take those steps before each form of sexual activity in which you want to engage or risk being guilty of a criminal act.
How does *responsibility of the initiator to ensure that s/he has affirmative consent to engage* not state the requirement of *ascertaing consent prior to sexual activity*?
Well, I think that really depends on whether you believe that the term “a sexual activity” in this sentence –
refers to the entire encounter or specific parts thereof. However, I would argue that the reaction to something like the “good2go” app, that was doing precisely that – recording one affirmative yes prior to *a* encounter – which was not only weird but also considered a rapist’s tool by some commenters – clearly indicates that *a sexual activity* does not mean the entire encounter. Which brings us back to the problem you rightly point out –
Because it isn’t, and yet – if *a* sexual activity doesn’t refer to the entire encounter, every non-definable new stage takes us back to the first sentence making it the responsibility of the initiator to ensure that s/he has affirmative consent to engage.
Did you read my reply #60? Because I think I’ve already stated precisely this. And so I’m quoting myself with this:
“I’d say that most of the examples given by proponents of the law are actually illegal under the law they’re supporting. From the ultra violet video, to Jessica Valenti’s interview in thinkprogress, to Thomas Millar’s post on the yesmeansyes-blog – everyone seems to assume the kind of thing VK explains above, provided there’s enough communication. But that’s, again, not what the text of the law states. It just is not.”
No. I’ve quoted that paragraph before when I said it *may* be sufficient to get off the hook when accused, to credibly claim to have had affirmative consent (and one aspect of that credible argument would have to come from having done everything reasonable known to the defendant in the circumstances), but a) that still “criminalized” the behavior, even though it may not be punishable, and b) I don’t see how “everything reasonable under the circumstances” will not default to “ask verbally prior to every escalation on the undefined stage model of sexual escalation”. If you make affirmative consent the requirement, and that affirmation is disputed, how would everything but asking verbally suffice as “everything reasonable”?
SomeOne:
Because the word prior does not appear anywhere in the text. Note that I am not saying the language does not include the possibility of prior consent, just that it does not explicitly require it as the only possibility.
See above. But I guess there is no point in continuing this discussion further.
RJN, your response appears to be a fairly good illustration of one of the core issues of this affirmative consent legislation that people are struggling with.
If I may simplify to highlight the problem (which you apparently don’t see):
SomeOne: Under this affirmative consent law, how does someone who doesn’t go full Antioch know their sexual initiatives won’t be criminalized* after the fact?
RJN: Because if their behavior isn’t criminalized after the fact, they’re fine!
* Not at the moment literally criminalized under this California statute.
Richard Jeffrey Newman,
Can you give an example of a case in which the initiator moves forward and engages with affirmative consent without ascertaining affirmative consent before that (i.e. “prior”)? It seems to be to logically follow – it’s inherent – but I could be missing something.
It’s like saying a gun can only be fired by removing the safety, but that doesn’t mean the safety has to be removed prior to the gun being fired. Well, yes it does unless you are playing semantic games.
After reading 75 comments in this thread, my takeaway is that folks who object to the “yes means yes” law have their objections centered in “bu-bu-but rape has consequences!!” In other words, business-as-usual, using another person’s body as a masturbatory tool, with the legal assumption (as well as traditional social practices) of “keep(ing) plausible deniability available for rapists” (thank you, Jake Squid)….may no longer be as realistic an option. There may be consequences.
Ok, under the old schema (still operative in my state, let alone my locale, which is notorious for not prosecuting rape cases) no affirmative consent, just giving in as with a mugging, is not rape. But it is abusive, assholish behavior. Make no mistake about it—if you are continuing to have sex with a person who is not responding positively to you……why exactly, are you continuing? What are you possibly getting out of it? What makes treating another person in this way a more attractive option to you than simply masturbating?
That’s not a rhetorical question. I actually want to know. Why have sex with someone who is not into it? Why continue to have sex with someone who is so clearly not having a pleasurable experience? If this person is not seeking mutual pleasure with you, why bother? Why are you choosing to die on this hill?
Ballgame:
It’s not that I don’t understand the problem SomeOne has been having with my argument; it’s that I have a hard time buying that it’s a real problem with the law.
Let’s say I meet a woman tonight at a bar or a party. We talk, we dance, we flirt, we are each sending nonverbal signals that can clearly be interpreted as expressing some level of sexual interest—though what that level is and how far we are each willing to go to act on them tonight can also obviously be misinterpreted. We agree to go back to her place for a drink.
1. We’re sitting on her couch. I am feeling horny and comfortable and I really want her, so I lean over and kiss her. If she doesn’t kiss me back and I stop to say, “Is this okay?” and she says no and I back off completely, where is the assault? How can that be criminalized? Everything leading up to that moment, everything I knew about her interaction, could reasonably be interpreted as expressing interest. When it turned out she wasn’t ready, which I learned because I asked, I stopped. Where is the assault?
2. Same scenario except this time she kisses me back, but not right away. She’s a little tentative, and so I ask if she’s okay. She says yes. We get into it. I am really into it and I start to unbutton her shirt without asking. After a few seconds, I ask if I should keep going. She says yes. (I should say that I am assuming this checking-in is mutual, but I am focusing on my role here because that seems to be what people are most worried about.) I keep going. When I get her shirt open, I start to undo her belt. I ask. She says no. I stop undressing her and our encounter goes on to take whatever form it is going to take. Where, even if she decides to point out that I didn’t ask before each stage, is the assault?
3. Same scenario. Instead of telling me yes, that it’s okay to keep unbuttoning her shirt, she pushes my hand away and unbuttons it herself. Then she goes on to remove the rest of her clothing and makes it unambiguously clear (at least to me), nonverbally, that she wants to have sex. Aside from the fact that, at that point, one of us should be asking about condoms and/or birth control—which conversation ought to lead either to affirmation of consent or, if we don’t have them, the responsible decision not to have sex—that is a very logical moment to check in with a relative stranger and make sure that I am reading her nonverbal signals accurately. If I do, and I am and we have sex, then everything is fine. If I check in and she doesn’t want to have intercourse, but is interested in something else, and I don’t try to get her to have intercourse by wearing her down, and so we don’t have intercourse, where is the assault?
Yes, of course, this woman could still bring me up on charges; yes, she could lie about her behavior or mine; yes, that would cause me quite a lot of trouble, even if I were proven innocent in the end; and yes that would suck. But no law is going to be immune from that kind of abuse and manipulation. What I have been trying to point out is that the law itself does not criminalize the behavior and that to pretend one’s fear of abuse and manipulation—which is also possible under a no-means-no law—is actually a reasoned response to a bad or badly written law is, at best, disingenuous. And I am not saying that we should not talk about the problems of abuse and manipulation; I am saying that we should be clear about what we are talking about.
The logic which says that I need to protect myself by defaulting to “a full Antioch” position is a logic that assumes a kind of adversarial relationship between partners that sounds to me like it’s in perfect keeping with the notion that sex is something one person gets from another—and that is usually gendered such that a man is trying to get it from a woman, though it does not have to be gendered that way—rather than something people have or share together.
ETA: This last paragraph needs to be unpacked quite a bit more, but I need to turn my attention elsewhere.
The assault is that you took a sexual action without having affirmative consent. And you obviously did not have affirmative consent because you asked her later (retroactively) about it and she told you that you didn’t have it.
That is exactly what the affirmative consent thing IS. That is what this law is ABOUT.
She would not have to lie; she merely has to tell the truth and you get all the dire consequences because you … did … not … have … affirmative … consent. But you engaged in a sexual action with respect to her. It’s not that difficult.
So, Iri, despite the fact that the law says in 2.b, which I quoted above, that context is relevant in determining whether the initiator has acted reasonably in initiating, you think context is irrelevant?
Richard Jeffrey Newman,
Let’s take your first example above. You performed a sexual act on her, then asked her if she had consented. She said no.
How much context do you need when she tells you straight out that you did not have affirmative consent? Likewise, how much context does she need if she tells a fact-finding body that you did not have affirmative consent? She is the person who would know, not you.
In your first example, you clearly committed a sexual assault under this standard. You did NOT have affirmative consent, context or not.
Furthermore, with your first example: If you think the evening is going well and she is receptive, but she retroactively tells you she was not (after your sexual assault), then the “context” problem is that you are apparently not reading cues very well. Aside from what you thought, you did not have affirmative consent.
Is it just me, or is this whole conversation centered around the premise, “I have no reasonable way of knowing if I’m raping somebody and, therefore, an affirmative consent standard could have consequences for me up to and including conviction for rape?”
Jake,
I was just about to ask a similar question. Not only is there the premise that “I” don’t (can’t?) really know whether I am committing rape or some other form of sexual assault, though. It also seems to me that there is an assumption on the part of SomeOne and Iri that the other person is somehow not also participating in whatever is going on, that somehow they are not also, under this way of thinking, responsible for checking in with me to make sure I’m okay with what’s going on. (I hinted at this in a parenthetical in one of my comments above.) It is, in other words, a very stereotypical heterosexual male dominant way of thinking about sex, i.e., that there is a single aggressor/initiator/whatever and someone upon whom that first person acts, and what SomeOne and Iri seem to be uncomfortable with is that yes-means-yes shifts the burden of responsibility for boundary-keeping (or maybe boundary-respecting is better) from the person being acted upon to the person who is initiating. (The fact the genders of these two people do not necessarily have to be male and female does not mean the model of sexual interaction underlying the assumption does not come from heterosexual male dominant culture.)
Iri,
So you do not count as context anything that happened before, in my example, we went back to her place—presumably at her invitation—and the only context that matters is in fact the moment before I kiss her? And, again, and I guess this is the last time I will engage with this, you are entirely evading the plain meaning of section 2.b of the law that I quoted above. At this point, I don’t think there is any reason to continue this part of the discussion.
I’m baaack :)
No. The conversation is centered around the premise that laws, generally speaking, should be subject to an entirely different analysis than moral codes.
To use more specific examples: with respect to laws, the analysis often includes such premises as
(a) that you should have to find a really good reason TO convict, as opposed to a reason NOT to convict;
(b) that lines which are not clearly drawn should be interpreted in favor of the accused;
(c) that similar violations of the law should, as a rule, be punished equally;
(d) that the lines for acceptable behavior should be largely controlled by the law, and not by selective enforcement of the law;
(e) that the laws and their role in process should take into consideration normal human characteristics and actions, absent extraordinary circumstances;
(f) that we should reserve formal punishment for unusual transgressions of the law, and not everyday or relatively ordinary occurrences; and
(g) that laws should be analyzed in the context of their process and enforcement which is, in some ways, very similar to (d).
The mistake that you are making is that it seems like you are analyzing this as if it is a BEHAVIOR standard (of the “you should aspire to do this and feel shamed if you do not” category) and not as a LEGAL standard (which carries punishment and formal consequences for violation.)
But anyway, there are a lot of lawyers who have written various thing opposing these laws, ranging from groups of Harvard law professors to practicing criminal defense attorneys to a variety of other folks. I don’t know if you’ve read them, but if not you might want to spend a bit of time Googling around.
It is not hard to point out a variety of problems with the law. Some of them are more complex and therefore more difficult to explain.
To choose one of the extraordinarily obvious ones: under a plain reading of this law I am both a serial rapist and a serial rape victim-as is pretty much everyone I know who has been sexually active for any length of time. And as a practical matter I will continue to be a serial rapist and a serial rape victim for many more years, because this (ridiculous) requirement of communication in the context of sexual encounters is not one which my wife and I adhere to.
Now, since you’re not a lawyer this may not seem like an issue since I don’t intend to accuse my wife (or she me.) But of course, shit happens. Perhaps I will find out that she is having an affair, and aim to hurt her. Perhaps she will do the reverse.
Then what?
The law is so easy to violate and is so commonly violated, that as a practical rule something becomes a violation when the accuser says it’s illegal. Laws like that are inherently scary, at least to me.
It’s a deliberately vague law – voluntary and affirmative have very broad and very narrow interpretations – so this is inevitable. It’s the sign of a terribly written law that people are arguing about just what it means – so the debate will get stuck on uncertainty.
That’s aggrevated by the fact there basically two pro camps. One who just want to stop non-consenting sex (law and order types), but feel the current law does such a poor job there it has to be extended to cover innocent encounters to get a reasonable chance of conviction. And the other (the militantly sex positive) who do genuinely want to impose their morality on everyone else. So the actual intent of the law is unclear.
But yeah. It sucks as the problem’s not really about lack of knowledge. It’s that if everyone agrees there was consent, and agree the sex wasn’t one of affirmative, conscious or voluntary, then someone is punished for having consenting sex. You can try and tar opponents as wannabe rapists, but the principle they’re defending – that sex between consenting adults in private is none of the states business – has liberated a lot of people.
These camps do not exist. These people you are discussing do not claim the things you say they claim.
You do not seem to understand. “If everyone agrees there was consent,” then nobody is punished. Period.
This is not the principle they are defending, because sex between consenting adults is not at issue.
In the matter of Lisa Sendrow, for example, one of the people who does not agree that the sex was consensual is her.
—Myca
There seem to be several people here arguing that affirmative consent laws can lead to prosecution in a case where two people have sex they both consented to but a third party did not get sufficient evidence to the sex being consensual. That is an utterly bizzare argument as far as I can see because:
A – It’s certainly not something any advocate of affirmative consent would believe should happen, and it is not something being written into these laws.
and
B – To the extent that it would be possible for this to happen under affirmative consent laws, it can also happen under laws working under more ambiguous definitions of consent.
So either people are just spouting ridiculous arguments for the sake of fearmongering, or there’s something going on I don’t get. And at best, this isn’t an argument against affirmative consent laws, it’s an argument for better written affirmative consent laws.
Am I not being clear? You understand the reason safely laws insist on covered flames, is they’re not happy with allowing just flames. They want some types of flames prohibiting. The reason this law insists on affirmative consent, is they’re not happy with just allowing consent. They want some types of consent prohibiting.
If they were happy with just consent, then why are they bothering to restrict things so that sex must be affirmative (and conscious and voluntary) as well?
…are you actually trolling?
I can’t tell.
Oh god.
—Myca
Pete Patriot – That’s a false dichotomy. There isn’t any type of “just consent” that is currently legal but is going to be made illegal. Every case in which consent is currently not disputed remains legal. Every single one. The only thing that changes is the criteria by which to judge whether or not consent was there when the two parties disagree.
To use the fire safety law analogy, you’re presenting it as if currently both open and closed flames are legal, and a new law proposes to prohibit open flames. That’s not the right analogy. A better analogy is if you had a fire safety law that says “open flames are legal if they’re safe and illegal otherwise”, and doesn’t give clear guidelines to determine whether a flame is safe or not. So if an open flame gets out of control, the court must determine whether it was a safe flame or an unsafe flame before being able to decide whether it was legal. In this situation, it makes sense to update the law to give a less ambiguous criteria for when the open flames are legal or not.
Myca – that puzzled me a bit too, until I realized he was just quoting the three conditions in the law, and (I really hope) not disputing the latter two.
Yes. Yes yes yes yes yes.
In fact, think of it this way – the law used to say “open flames are legal as long as they’re safe.” Then you had all these people who would light fires in the forest during the dry season, liberally sloshing about buckets of diesel to get them started, and who would then, after the inevitable forest fire, say, “gosh, I thought it was safe!”
This is like that.
Nobody should have to tell you not to use diesel to light your campfire. Nobody should have to tell you to build it away from the dry underbrush. Nobody should have to tell you that “conscious and voluntary” are necessary fucking preconditions for consent. After a bunch of rapes and a bunch of forest fires, though, they decided to clarify some shit.
And hey, if you resent that, and you feel like you’re okay using the diesel, because you know your fire safety, or you feel like you’re okay without affirmative consent because you know your partner, that’s cool. Nobody is going to be policing your campfire.
But when you burn down the forest with your negligent behavior, you don’t get to say that you thought it was safe.
—Myca
Thank you for responding to me respectfully Etyan.
It’s very easy to think of cases where the parties agree on consent, but the law intervenes on another aspect. The obvious example is unconscious sex – sex begun when one party is sleeping or where consciousness is lost during sex due to drug use or asphyxiation. This is absolutely prohibited by the law. Ordinarily it would be extremely difficult to take action based on lack of consent if both parties were giving testimony that the sex was consensual.
As I say, affirmative or voluntary can be intepreted so broadly to be meaningless, but a narrow interpretation would have a similar effect.
Myca-
Maybe, maybe not. It’s definitely illegal, even if it’s not policed. That’s the point – it doesn’t matter anymore whether everyone agrees and agreed that it was a *safe* campfire at the time, as soon as it becomes reported, it *is* punishable, regardless of everyone’s prior agreement on the safety.
Richard-
I don’t think you can argue that it doesn’t require *prior* consent merely because the word *prior” isn’t written in the law. It follows *logically* from the text. Should it be legally clarified that *prior* isn’t necessary – that affirmative retroactive consent is sufficient and stopping when it is not given, like the instances you and VK don’t deem criminalized under this law – like your scenario 1 – is permissible, then I’d call that “affirmative No-means-No”, but I’d consider it a possible legal route. This is not what’s in the current law, regardless of what you claim.
Well, as ballgame neatly summarized, that’s because a) you cannot know whether you’re committing sexual assault with this law (not even on full Antioch standards) and b) because there is no obligation whatsoever for the recipient of an initiation to even comply in establishing affirmative consent or not.
@VK
A fair concern, but I don’t think it applies to this case. There’s no indication in the original story or follow-up comment to indicate that she was scared. If she feared violence, she would’ve mentioned it.
@Jake Squid The current laws are meant to punish people who inflict severe harm on others. In India, it’s a seven year minimum. In your story neighbors non-violent harassment bothers you. You have sex with him to stop it. This suggests that the sex is less harmful than the harassment. You haven’t been so harmed that he should go to prison for 7 years. The crime does not fit the punishment.
There’s no doubt that your neighbor is inflicting harm upon you, but he should be tried as a harasser not a rapist.
@Jake Squid Maybe you’d wouldn’t despair so much, or be so persuaded that we want to give rapists an out, if you actually read and parsed the arguments being made here. They’re very similar to the ones that progressives make about overly broad laws in other arenas like terrorism.
Very few folk here question affirmative consent as a social norm; they’re against it being a legal norm.
It’s true that Affirmative Consent laws do not solve the eternal problem of human deceit. That’s a great point.
—Myca
Question for the “pro-” folks:
Do you generally support this type of analysis everywhere? For drug crimes and violent crimes and trespassing crimes and harassment crimes and fraud crimes and everything else? Against everyone of all races and genders and so on?
This is a real source of confusion for me because it seems that many posters are often (and rightly in my view) fairly pro-defendant almost everywhere else. And it seems that many posters are certainly aware of the dangers of over legislation, at least in other situations. And they are aware of the dangers inherent to the exercise of discretion; and the dangers in false accusations; and all sorts of other things.
And that is a good thing! But then I read this discussion and a lot of people who I wouldn’t have expected to have such an opinion seem to think that this law is OK, or great, or relatively problem free.
And I don’t get it, really. Because I can’t shake the feeling that if this was something else–literally almost anything else other than rape–the same people who like this law would be on the other side.
So what’s going on? Have I been misreading everyone so badly, and you all would happily sign onto this standard for everything else? Or are folks basically making a “special exception” for rape?
If so, what basis exists for that difference? And how do you justify having different treatments at all?