[Content note: sexual assault]
This fall, the new affirmative consent law in California, which requires all universities that receive state funding to adopt definitions of consent that translate roughly to “only yes means yes” rather than simply “no means no,” reignited a number of age-old debates about the meaning of consent and sexual assault. One of them is the claim that anti-rape advocacy is attempting to redefine perfectly good sex as rape, and that in this new climate, men cannot ever be safe from being accused of rape no matter how careful they are.
Remember, by the way, that this is not new. This is not a California’s-new-law problem. This is a very old problem.
This article was published before the law passed, but it’s still very relevant because I’m hearing these sorts of objections, especially in response to the law, all the time. The authors interview a number of college men (and those who work with them) who say they are much more careful about hooking up now that there’s such a focus on campus sexual assault. For instance:
Pollack said a patient recently told him about making out with a girl at a party. Things were going fine, the student said, when suddenly a vision of his school’s disciplinary board flew into his head.
“‘I want to go to law school or medical school after this,’” Pollack said, recounting the student’s comments. “‘I said to her, it’s been nice seeing you.’”
More anecdotally, I’ve heard these sorts of remarks too. “I don’t even bother asking women out now,” or “I haven’t had sex for years because I’m scared they’ll call me a rapist.” I feel sad for these men who clearly want sexual intimacy but feel that they have no choice to give it up. And I also feel angry, because this is not what we’ve been saying, and yet they insist that we’re telling them they can’t have sex at all.
Countless writers, educators, and activists have weighed in on what consent is and what it is not and how to communicate around it. If you Google “what is consent,” the first page has numerous resources meant to help young people learn what consent is, such as this one and this one. Don’t like reading? There are graphics!
Yet (some) men insist that this is all so mysterious and perilous that they have no choice but to avoid the whole enterprise altogether.
I don’t want anyone to be lonely, insecure, and sexually unfulfilled. I don’t want anyone who wants to have sex to be unable to have it. I want everyone to have the confidence to pursue and find the types of relationships they’re interested in. I want everyone to feel worthy and valuable even if they haven’t found a partner yet.
But I also want people to pursue all of this ethically. That means that if you’re ever unsure if someone is consenting, you stop and ask. And if you don’t think you are able to do that, then you should abstain from sex until you are able to do it.
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I wish I could explain consent to all of these men. I wish they could attend one of my workshops about consent, where I help people learn to understand body language, find language to help them ask for and give consent, and show how these skills apply to all areas of life, not just sex.
But I’m not sure how much of the misunderstanding is innocent rather than willful. The information is out there. So many people are working hard to make it available to college men. I’m not sure how much else I personally–or we collectively–can do for people who may not want to learn and change.
If we keep saying, “Make sure your partner is consenting!” and they keep hearing, “Women are mysterious fickle creatures who sometimes call random things rape just to screw you over,” I’m not sure how much responsibility we can accept for the misunderstanding.
Especially since many people have a vested interest in perpetuating this misunderstanding. It serves their purposes. They think it makes things easier for them, even as it causes so much more anxiety and fear and pain than embracing affirmative consent as a standard.
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Sex, with all of its possibility to hurt, will probably always bring up fears, including the fear of overstepping a boundary and hurting someone. That is not a pleasant feeling; I know because, as someone who was not socialized to feel entitled to others’ bodies or attention, I feel it. Communicating clearly and expecting nothing less than clear communication from my partners helps relieve that fear, but a little bit of it is a good thing. It helps us remember that we have the power to hurt.
Right now, though, the predominant fear is one many people, women and gender-nonconforming people especially, face–the fear of having our boundaries willfully ignored. I won’t speculate about which feels worse. It is possible that someone who doesn’t have to face a high likelihood of being sexually assaulted feels subjectively as bad when they imagine the possibility of “accidentally” assaulting someone as I feel when I imagine the possibility of being assaulted (on purpose).
But for me, personally, the fear of being assaulted is so much worse. Because there are ways–ways that aren’t discussed nearly enough–to reduce my risk of assaulting someone to approximately zero without any undue burden on me. There are no ways to reduce my risk of being assaulted that are effective and that to not impose an undue burden on me.
This is why I am glad that men are starting to feel that surmountable fear. I don’t want them to live in terror. I don’t want them to avoid sex out of fear. (That would be how the other half lives.) I do want them to accept their fair share of the responsibility, though. And yes, that means more fear than they may be used to.
Ezra Klein says as much in a provocative Vox piece:
If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.
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When I first read that Bloomberg piece about waning “hookup culture,” my initial reaction was, honestly, to shrug. Let them be scared. Let them avoid sex and intimacy. I’ve certainly done that because I was afraid of sexual assault.
But then I thought, this isn’t really the way forward. At least, not entirely.
These men don’t seem to be afraid in that rational, “Shit, I could really hurt someone! Better be careful” way. They seem afraid in a reactive way, almost out of spite–“See, look how much you’ve fucked up my life! Happy now?” They seem afraid because they keep interpreting consent education in the most negative and life-fucking sort of way. They seem afraid because they still don’t understand that their female partners are human beings with their own subjective experiences, experiences that they would do well to listen to and try to understand.
I don’t want men to live in fear. I don’t want men to stop flirting with women and asking for their number. I don’t want men to start refusing sex with eager, consenting women because what if they’re actually lying and not consenting.
I want them to listen to us. I want them to respect our agency. I want them to let us write the story together with them, rather than writing each chapter themselves and then handing it to us to read, perhaps accepting some critique if they are especially gracious.
“More anecdotally, I’ve heard these sorts of remarks too. “I don’t even bother asking women out now,” or “I haven’t had sex for years because I’m scared they’ll call me a rapist.” I feel sad for these men who clearly want sexual intimacy but feel that they have no choice to give it up. And I also feel angry, because this is not what we’ve been saying, and yet they insist that we’re telling them they can’t have sex at all.”
Setting aside that I don’t accept this as true in the first place, it still strikes me as better than the status quo. Hyper vigilance on respecting boundaries is preferable to neglecting to respect people’s boundaries.
Wait, what don’t you accept as true?
He didn’t reply, Danielle, but the way it reads to me is that he doesn’t accept that they are avoiding dating because they are afraid of rape accusations. I think that there is something else going on with the guys who tell him that, that it is an excuse but not the real reason.
Yep, sounds like sour grapes.
Treating women as people instead of pussy dispensers (as if we all had pussies inthe first place…) is too much to bother, therefore they tell the story in which not a woman runs a risk of being assaulted if she allowes guys to get close, but in which men are at risk of being unjustly accused of assault.*
*By now I think that a lot of those who cry that they’ve been wrongly accused actually have NOT been wrongly accused but simply don’t see their actions as assault.
It’s certainly the case with harassment, because the non-existing gods know that I’ve had exchanges on Twitter where I told a guy 5 times to leave me alone, only to have him demand that I explain things to him. When I told him to stop harassing me he then cried that I was just making up false claims of harassment just so I could stop having this conversation.
To be honest, when someone prefers to abstain from sex altogether over asking “hey, I really want to go ahead with this, you too, right?” when he gets those consent-thoughts while making out, I’m not seeing a particularly overwhelming desire for sexual intimacy there. After all, intimacy would involve treating the other person as an actual person whose consent matters. Actually it doesn’t even seem like a strong desire to stick one’s dick into another person, if such a rather simple question is more than the sensation is worth…
I don’t believe men who claim they aren’t having sex because they think they’re liable to be called rapists or harassers for flirting or having sex. I’m sure someone, somewhere can honestly make that claim, but it isn’t something I find remotely believable, and it’s claimed way too often.
I don’t get why this is so hard for boys and me to understand. The fact is that people can mess around happily and with full unspoken consent. But even if at any time before or during sex, she changes her mind and say “No” or “Stop” of gives any kind of indication she want to end activities, like say, trying to shove the guy off her, then he needs to immediately stop. (The same is true if the guy wants to stop.)
Contrary to popular belief, most girls and women do not deliberately try to arouse a guy, only to shoot him down for fun. Young girls in their teens and young women in their early 20s, very often find out their hormones tend to lead them down a path they aren’t yet ready for, and sadly don’t come to their senses until the last minute. Or sometimes even during intercourse. They are not trying to be a “tease” or send mixed signals. It just happens sometimes. When it does, the guy needs to immediately stop. Period.
Miri wrote:
I wonder if there may be three kinds of people (usually men) who are misinterpreting the idea and importance of consent? There are probably some guys who just don’t get it yet, but are educable. There could be a second category who are willfully misunderstanding (or pretend to not get it) because more education about consent interferes with their MO. I have no pity for them.
But could there be a third category, of men who have been intentionally deceived by others who want to sow resentment and backlash? Maybe such well-poisoners want these laws repealed, or want to keep them from spreading, and are trying to raise an army. Whatever their motive, if this is happening it makes it more difficult to correctly inform the people they’ve already deceived. Education may sometimes require a myth-busting approach, which may be easier as time passes and men realize that consent laws and practices haven’t ended the world.
THAT IS IT.
PERFECT.
I remember a statistic or poll, (here on FtB, probably) that a small percentage of repeat rapists cause a majority of assaults. That would be the group, which know very well, that they do NOT want sex but to rape, to hurt, to torture….. (up to enforcing their genes)
And the propaganda industry does, of, course, hop on the bandwagon, and MAKE this “the norm”.
Reminds me of the way religion is often described – obedience to whatever nonsense would be a better word.
A pattern which explains abortionforbidders, euthanasiaforbidders, anti-marriage equality
Precisely. A lot of us don’t want to believe there are people who actually enjoy hurting others. Who enjoy raping, dominating, punishing, and power-tripping others, and who will do whatever it takes to get what they want.
What’s really dismaying is, so often these people succeed in getting what they want by force. The rest of the world sees that, and decides they’re “winners”, people we should emulate.
The backlash against affirmative consent seems to be based on 3 basic assertions.
1: That consent will be impossible to prove without video evidence of you asking her permission for every single thing you do, every time you do it followed by you continuously asking if she still wants to do it for the duration. Any deviation from this will be considered rape.
2: Rules about intoxication and consent are written so broadly that ANY amount of alcohol consumed can render all consent given null and void. So, If she decides at any time in the future that she regrets sleeping with you, if she drank as much as one sip of beer, you’re a rapist.
3: The University disciplinary board is a Kafkaesque nightmare in not only are you presumed guilty, but any attempt to mount a defense (if you are even allowed one) will be dismissed as rape apology and viewed as an attempt to further victimize your accuser. In fact, the very possibility of you being found innocent will be considered a failure of the board to do its job.
I agree with Scr… Archivist in that some mythbusting will be in order to educate people on what consent rules really mean. There was an essay by Emily Yaffe on Slate that made these arguments, although in a more nuanced form that I’ve yet to hear anybody debunk in any detail. The result of these myths being spread will not just be that men will be frightened out of having sex, even with what appears to be a willing, cooperative partner out of fear of accidentally raping somebody, but that the rules will be struck down, resulting in women having to be a “perfect victim” in order for any justice to be done.
(I will warn you that my response will be difficult to articulate. Some experiences in my life have made me see where those who fear consent are coming from, but at the same time I do not want to come off like an apologist for creeps. So if I’ve flubbed it, please let me know.)
Consent is NOT just about sex. It’s about literally everything of a social or relationship nature.
And it can feel like receiving consent is a mighty rare thing. Like sheer dumb luck. And in a way, it is… the other person’s subjectivity has decided to favor you today, or in this fleeting moment, and give you a yes, congratulations! Savor it, because it may be a long time before they ever choose to say yes to you again.
It feels as if you’re entirely dependent on the other person’s yeses to build YOUR life. Because, unfortunately, the majority of our personal growth happens through our relationships. We literally cannot become the people we want to, without the consent of others. I have always found that scary. Like it really didn’t matter what decisions or choices I made, they were all going to be undone (or at least qualified) by somebody else’s subjective perception.
In this context, honoring someone’s boundary and letting their “no” stand, can feel like throwing a piece of your personal growth away.
Well, what’s the alternative to obtaining consent? Forcing people to do things against their will? Pretending that they consent while taping their mouth shut so you don’t risk hearing a “no”?
You need consent for everything involving other people, from trying some of their food when you’re out together to playing tennis, from getting a lift in their car to going out on a date. All these activities are potentially fun, useful for your personal growth as well as practical purposes, and still only happen if the other people involved agree to being involved. And that’s because their wishes are equally important to yours. Conversely, relish the fact that no one gets to eat your dessert without your consent just because they happen to like it.
Well, what’s the alternative to obtaining consent?
There is none. And that’s what is so scary in an existential sense. You are nothing without other people saying yes to you.
And there’s really nothing you can do to guarantee you will get consent. All you can do is not be an asshole, live your life, and hope for consent: like a gift from the boundary relaxation fairy.
I just don’t like feeling like it doesn’t matter what I choose or decide for my own life… others’ perceptions are always going to overrule it. Effect always outweighs intent. It’s terrible feeling like others know me better than I know myself, like I cannot trust my own judgment.
And that’s why I sometimes wish humans were not such social beings, and we did NOT have to rely on relationships for so much of our self-actualization.
Let’s remember that Miri’s piece concerns the law: she writes after all about the reactions of the guys to the new law! Unfortunately, this is exactly the problem with remarks like:
Here is the difficulty: in the case of the law, all these efforts of the writers/educators/activists can be seen as irrelevant, unless the writers/educators/activists have really something to say about the actual, practical applications of the law in question. In this respect drken’s comment #4 is quite instructive. Sure, you can write long papers explaining ad nauseam “what consent rules really mean”. Nevertheless, the key question still remains: how will the law be applied in practice? Does “the information out there” characterize such a practice, or does it merely reflect the wishful thinking of the authors? Will the cases like that of Drew Sterrett (see the essay by Emily Yaffe mentioned by drken) become typical, or should we rather trust that theoretical explanations of the best “writers, educators, and activists” will correspond to the legal practice – that these explanations will be more than just words, words, words ?
I’m really torn. If the second, then … well, then it could be indeed a change for the better! If the first, then maybe it’s time for the all-male and all-female colleges to become popular again? (This would be the road from rape culture to fear culture to segregation, with an ugly moral that we are simply unable to live together.)
I’m sorry but I’m not aware of any good answer apart from “wait and see”.
The lesson to take from this law is that communication is a key issue. It is best to take the time to get to know another person. It doesn’t have to take a lot of time. It means learning about the other person’s values, what they like, what they fear. You also have to be able to discuss the prevention of disease and pregnancy. You certainly don’t have to separate men and women. And men and often have similar wishes and fears. It’s not hard. If you have any doubts then just ask
If you are going to have sex, and you don’t feel confident that the person you are going to have sex with won’t accuse you of rape later, this seems like you (hypothetical you not necessarily the reader) need to establish some trust before you have sex.
Though there seems to be a small % of men who seem to believe that any rules meant to protect people from unwanted sexual contact or advances [consent, sexual harassment] are just making it impossible for them to interact with women at all. I’m not sure if all of these complaints are truly honest and genuine, and if some are, to what extent they only exist because of those that aren’t. But overall, I think the problem needs to be addressed on the level of the individual – if they aren’t sure they have consent, or don’t feel comfortable with being sure whether a person they have a casual sexual encounter with really wants to have sex with them, then wait until they are having sex with someone they know and trust, and focus on that and not sex. If the question is then ‘how do I get there?’ I’d take the concern as genuine.
One of my big issues with affirmative consent is that it assumes that rape occurs because the rapist believed he had consent when he actually didn’t. Men know what consent looks like and rapists are quite aware that their victim is being forced to do something against their will. Plus, a rapist isn’t going to be stopped by affirmative consent laws and can just as easily lie about saying her saying yes as they can about her not saying no. So far all it seems to do is make men doubt that they know what consent looks like and that’s scary. While some MRAs might feel that women will think “Aha! He didn’t ask to touch my breasts the second time he did it, now I’ve got him!” the non misogynistic majority will be afraid that the only way to be sure they won’t end up accused of rape will be to follow a complex set of rules that seem to be based more on contract law than any model of human interaction they’re aware of.
The whole argument sounds like so much tilting at straw windmills (to mix metaphors.)
I haven’t read the law, but this much seems obvious:
1. Unless someone makes a legal complaint that they were raped, any such law is moot. If your partner does believe (s)he consented, then (s)he’s not going to make a legal complaint. It’s conceivable (s)he might make such claims on Facebook or on some GamerGate website, but I don’t think this law addresses that.
2. Just based on the name (“affirmative consent”), it sounds like it disallows the “but she didn’t say no” defense if someone is charged with rape. (Or sued? Can you sue someone for raping you?) It reminds me of the attempts to outlaw the “gay panic” and “trans panic” defenses.
3. If someone is willing to perjure themselves, whether claiming their partner said “yes” when (s)he didn’t, or claiming that they themselves didn’t say “yes” when they did, then a law like this isn’t going to make much difference, except to what their perjury looks like.
Which men? It didn’t make me doubt anything, and none of the men I know are confused either. If there are men who don’t know what consent looks like, then it’s high time they learned. It’s not really that hard. Unless, of course, you only see women as fuck objects and not as people.
Contract law is based on the “meeting of the minds” of the two parties — a contract only exists if both parties have the same understanding of what they agreed to. It’s actually a rather simple concept; it only gets complicated when one party later claims they agreed to something different from what the other side says they thought they agreed to. Sounds to me an awful lot like pretty much any other human interaction.
The only reason it seems complicated to some men is that Male Culture has taught them that teh wimminz are really just sex vending machines, and all you have to do (or should have to do) is to drop in the right kinds of coins (or tip or bang the machine the right way) and then she’ll put out.
Perhaps another reason for it being seen as complicated (another piece of rape culture) is the idea that women simply decide to accuse men or rape after having had consensual sex ; that this not just happens, but is a likely event. This could come from the rape myth that many rapes were just women changing their minds maliciously. Or some belief in women being inherently ‘irrational’ or ‘fickle’ or such thing.
In those cases, I don’t understand why men with such views even want to have sex with women.
Honestly, if somebody decides that they can’t be bothered to make sure they don’t assault somebody, they really shouldn’t have sex and my compassion for them is not very high.
It’s like somebody complaining that they’ve given up driving ’cause there are speed limits and people expect you NOT to run over small children and elderly people.
When I first heard “enthusiastic consent” or “affirmative consent” I was like “ah, that’s what you call it” because it described the way we’d been having sex all this time. So when I hear somebody complain that it’s too high a standard I always wonder how their past sexual encounters looked like (but not in detail…).
I don’t expect laws like that to have much effect in the area of courts. A lot of what is rape by current laws isn’t reported, those that are reported aren’t prosecuted, those that are prosecuted don’t lead to convictions.
I hope them to have an effect on culture and discussions.
Seems like these guys are forgetting women can also seek consent. It doesn’t just have to be men.
I simply assume that anyone who speaks out against affirmative consent is either a rapist or a committed defender of rape culture.
I simply cannot believe affirmative consent is that difficult to understand. For instance, affirmative consent is something almost everyone understands about transfers of property. I was recently on a jury on a theft case, and affirmative consent was written into state law. The law states that the prosecution must establish intent to deprive, which is exactly the same as showing that there was no affirmative consent. Furthermore, showing that the defendant had a reasonable belief that acquisition of the property in question was consensual, most obviously by arguing the complaining witness gave affirmative consent, is grounds for acquittal. People understand this. Even thieves understand this.
So what’s so different about sex? And don’t most people, except for a few for whom non-consent is the main part of the thrill, actually WANT to have some awesome consensual sex?
I think there are far more defenders of rape culture than there are rapists. There’d have to be. Don’t the researchers tell us – so long as you don’t use the dreaded R word – that 6(ish)% of men identify as repeat rapists? There are far more than 6% of men frothing and fulminating about the horrible idea of affirmative consent.
My own feeling is that far too many people think of moral issues, especially sexual morality, in negative terms all the time. They reframe affirmative consent in their own words as “Don’t have sex unless …” when the real message of affirmative consent is positive ” Go ahead and have fun sex once you have …” I think there are also a lot of people who see any conditions or limitations or restrictions on sexual activity as impossible burdens. They’re really not.
It’s not an unbearable social imposition to be expected to ask permission to sit down beside someone in a cafe/pub/bus or to join the end of a queue rather than barging your way to the front. These are just ordinary civilities. There are more intimate matters as well as simple manners when entertaining the prospect of sexual activity, like what to do for contraception/ STD prevention, but they’re additional to rather than instead of the basics.
And I couldn’t agree more with your last sentiment.
[…] On Mishearing “Get Consent” as “Don’t Have Sex”, Miri, Professional Fun-Ruiner, Brute Reason, December 25, 2014 […]