Nonverbal Consent, Nuance, and Objectivity

[CN: sexual assault]

An academic I follow on Twitter recently quoted this tweet with a (presumably sarcastic) comment about how if it’s true that “consent is never implied,” then they and their partner have been raping each other for years.

(I have no desire to individually call out this particular person or get into an argument about them and their specific views, so I’m not naming them. It’s irrelevant. Many people believe this.)

I was disturbed by this even though it’s not a new opinion to me, nor a new type of response, that flippant “well I guess I’m a rapist then, lol!” as if it’s something to joke about. That still makes me sad every time.

I’ve noticed a tendency to conflate a lot of concepts in this discussion. “Active” isn’t the same thing as “verbal,” and “passive” isn’t the same thing as “nonverbal.” “Implied” isn’t the same thing as “nonverbal,” either. Consent cannot be “implied,” but it can be indicated nonverbally. I would know, because that’s how it works in most of my established relationships.

Once I’ve been seeing someone for a bit–enough for us to get comfortable with each other and establish our own patterns–we usually don’t ask “Can I go down on you?” or “Would you like to have sex?” every time. Instead, we use body language and other nonverbal indicators to communicate consent. If someone makes a motion like they’re about to touch me in a particular way and I respond by grinning and pulling them closer, or adjusting myself to make it easier for them to do it, then I’m consenting. If I don’t want them to do that, we’ve developed enough trust that they know I’ll say so, and I know I’d feel comfortable saying so.

However, this approach is not appropriate for everyone in every situation. Some people realize that they do not read nonverbal cues well, or they do not believe that their partner does. These people need to use verbal communication. Very new couples, or strangers hooking up, cannot rely on an accurate reading of their partner’s body language because they just don’t know it (yet). Some people are really uncomfortable with the idea of not being verbally asked–maybe they have a trauma history or any other reason, because all reasons are valid. These people need their partner to use verbal rather than nonverbal communication. Some people are aware that their body language is frequently misread by others because it doesn’t seem to match their mental state. These people need to use verbal communication with their partners.

When we talk about “passive consent” or “implied consent,” we’re usually talking about the false notion that only an explicit verbal “no” means no, and everything else means you’re good to go. That’s not how consent works. Just lying there in silence while things happen to you is not consent. That should not be conflated with physically responding to your partner’s initiation of sex in a way that’s active and enthusiastic, but does not necessarily involve spoken words. (Remember that nonverbal sounds are also a big part of sex for most people.)

On the other hand, if one of my partners starts to physically initiate sex with me and I’m lying there saying and doing absolutely nothing, I would expect them to immediately stop and verbally check in with me: “Hey, are you okay? Should we stop?” If my answer seems vague or noncommittal–”It’s fine,” “We can do whatever you want,” and other statements like that said in a monotone–I would expect them to just stop despite the literal meaning of the words I just said, because I clearly don’t mean them literally.  

“But Miri,” you might protest. “Shouldn’t you have just told them what you really meant, or stopped them yourself?” Great question! In practice, I would. In the context of this example, maybe I’m triggered, or having an episode of anxiety or depression, or I’m scared to upset them, or whatever. There are all kinds of reasons someone might not physically or verbally stop someone, which is why the practice of nonverbal consent is only appropriate when both partners know that they feel comfortable speaking up and trust the other person to do the same.

If you’re in one of those relationships where sex happens nonverbally, it’s understandably unsettling to come across a resource that frames verbal consent as very important, or even necessary. But a better response than “WELP I GUESS WE’RE BOTH RAPISTS THEN” is to actually use that as an opportunity to check in with your partner: “Hey, I was reading this thing about consent and I realized that we don’t really talk about it. Are you okay with the way we’ve been having sex?”

Even if there’s no issue in terms of consent, a lot of times established couples fall into sexual routines that become quite boring and unsatisfying, but because the norm is not to talk about it, neither person ever really finds the right moment to speak up and change things up. You may not know until you ask.

Two things worth pointing out: first of all, the tweet above is not nearly as extreme and limiting as the academic seemed to think it was–it was the academic, and not the original tweet, that conflated “implied” with “nonverbal.” In taking the most uncharitable possible view of the tweet’s meaning, they portrayed it as a claim that many (if not most) established couples are constantly raping each other.

Second, even if the tweet had referenced a really ridiculous definition of consent, it was very clearly meant to be one person’s opinion, as the student group running the Twitter account later clarified. And yes, sometimes people really do have ideas about consent that, while very well-intentioned, do not reflect a realistic view of how communication works. I’m sure there are people out there who believe that there is no way to consent to sex other than with spoken words, or that you need to verbally ask to kiss someone every single time no matter how many times you’ve kissed them before, and so on.

That’s where we get into the even thornier issue of nuance in consent discourse, and why it is often not there, and why these discussions often seem so self-contradictory and confusing.

Consent discourse is so complex and fraught because it is supposed to be so many things to so many people: validating for survivors, slightly-shaming-but-not-so-shaming-as-to-cause-total-shutdown for perpetrators, gently educational for clueless but ultimately well-meaning young men, apocalyptically terrifying for those who can only be talked out of doing terrible things by the threat of dire consequences, simple enough to teach for educators and parents, political enough for activists, apolitical enough for college administrators, and, of course, nuanced enough for academics such as the one who made the previously mentioned snide tweet. That’s…a lot.

Because the primary purpose of consent discourse is to prevent assault, the nuance is often the first thing to go. But that’s not just because nuance is difficult. It’s because, when it comes to sexual assault prevention, the arguments that some activists and academics use to inject nuance are often the same ones that perpetrators use to excuse, minimize, or cover up their actions.

For instance, yes, it’s true that many couples rely on nonverbal consent when they have sex and that neither person has a problem with it. It’s also true that many people who loudly insist that they can “totally” read their partner’s body language and have no need for words actually totally cannot, and later turn out to have left a trail of partners feeling violated. Even more disturbingly, many people seem to believe that (possibly misread) body language can overrule words: “She’s saying no, but her body’s saying yes.”

So why might consent advocates avoid nuance in conversations about verbal versus nonverbal consent? Those who ridicule anti-rape activism assume it’s because activists want to control how you have sex. (Why? To what possible end?) I submit two much more parsimonious explanations:

  1. They’re trying to avoid giving ammunition to rape apologists (“But she consented nonverbally!”).
  2. They’re likely to be survivors themselves, and may tend towards extreme positions like “consent must be verbal” as a result of their experiences.

Although I don’t have the numbers, I imagine that many people who do activism around this issue are motivated by their own experiences. It’s not even just that some survivors engage in consent activism as part of their own healing process; it’s that surviving a trauma like that can permanently alter your sense of what’s possible or reasonable. Survivors are not being irrational when they state that nonverbal consent isn’t good enough. They’re reacting to the ways in which their own bodies were used against them by their assailants. They do not feel safe with the idea that it’s possible to consent via body language, and I think we can all understand that by using a minimal amount of empathy.

You might argue, then, that this sort of activism would be better undertaken by those who are “objective.” There are a few problems with that idea, though. One is that nobody is “objective” on this issue. “Why can’t you people shut up and stop making our campus look bad” is not objective. “My team would never do something like that and anyway we really need a bowl win this season” is not objective. “Ugh, all this rape stuff is really bringing me down, can’t we talk about something else” is not objective.

Survivors have been driving this movement since the first Take Back the Night marches because, historically, nobody else has cared, or cared nearly as much. The reason college administrators, coaches, politicians, and other stakeholders have gotten involved is because survivor-activists have forced them to pay attention. I don’t doubt that many of these people are legitimately invested in this issue now (as opposed to just doing it for the optics), but they needed to be made invested. We have generations of courageous survivors to thank for that.

Another problem with demanding “objectivity” from activists is that consent activism that comes entirely from people who have never experienced sexual assault is exactly how we end up with terrible ideas like “it’s not rape if they didn’t fight back.” It took the advocacy of survivors–as well as researchers who have repeatedly backed up their claims with evidence–to help the broader public understand why that’s an unreasonable and unrealistic standard. The same thing is starting to happen with the fallibility of post-trauma memory, though both of these issues are still insufficiently understood by most non-survivors.

In short, demanding objectivity means excluding most survivors from activism. This not only harms and silences them, but weakens the activism and limits its usefulness for survivors.

What all of this means is that, while educating ourselves about consent, we will hear dissenting views from survivors and advocates themselves. Some will tell us that consent must be verbal; some will say it can be communicated via body language. Some will tell us that consent must be enthusiastic; others, especially those advocating from an asexual or sex work perspective, will say that people should be free to choose sex even when they aren’t enthusiastic about it at all, as long as it’s a real choice. Some will shout that “consent is sexy!” and others will claim that that phrase is really fucked up. Some will say that consent is so simple and obvious and there’s no excuse for being confused about it, and others will acknowledge that all of this is actually pretty messy and there are no easy answers.

(Guess where I fall on that last question.)

Survivors and advocates have very important perspectives on consent and assault prevention, but no individual is an expert on the entire subject of sexual communication. I wish I could tell you to learn as much as you can and then make up your own mind using critical thinking, except that so many people would just make up their own minds that rape is okay. So I don’t know what to say except this: try to keep an open mind to the idea that you have at some point fucked up, maybe a little and maybe a lot, and try not to let that mindset get you so mired in shame and self-hatred that you stop learning.

~~~

If you appreciated this post, please consider supporting me on Patreon!

{advertisement}
Nonverbal Consent, Nuance, and Objectivity

9 thoughts on “Nonverbal Consent, Nuance, and Objectivity

  1. 2

    Assault prevention activists, by the nature of assault, seem to not be addressing long-term committed relationships. Which is probably mostly fine, I perhaps naively expect a relationship which deteriorates enough for marital rape to be committed also loses the effortless communication we associate with happy LTRs.
    I think calling consent “implied” when a relationship becomes such that sex moves from opt-out to opt-in is reasonable and cromulent for typical values of “implied.” Body language and other nonverbal indicators communicating consent seems like a distinction without a difference to me. Imply is a subset of communicate. Laying unresponsively almost certainly implies a lack of enthusiasm and, absent something like a fetish scene agreement, implies a lack of consent.
    The preceding paragraph and it’s implied conclusion (“consent is never ‘implied'” is literally false in a mildly pedantic way) are an intentional missing of the point and scope of anti-assault activism. There’s a lack of understanding from M. Anonymous Academic and an ironic unclear meaning from some activists about the term “implied consent” so while I understandably bristle slightly at the second assertion of the tweet, I know relationships like mine aren’t what they’re talking about.
    The lack of a consequentialist communication style*, the uncharitable reading*, the damage bumper stickers and to a lesser extent hashtags and character limits have done to social/political discourse, and who carries the burden seem off-topic enough that I’d prefer and will try not to engage upon them here.

    *not directed at Miri.

  2. 3

    Sorry! The preview window is narrower than the comment space for my browser and the line breaks I thought I had might disappear depending on your screen width.

    If you see a wall of text, zooming in or out 1-2 ticks will change the spacing enough to change how many words are in the the last line before a carriage return. Resizing the window probably works too, but that’s more annoying to do and also I didn’t check.

  3. 4

    Miri, I love the way you analyze the nuance of this issue. There is one bit of nuance that you didn’t mention which is what I think is also at the heart of some of the backlash to statements like “Consent is never implied.”

    What I’m talking about is when is it appropriate to accuse someone of rape. I agree that a survivor is entitled to have his/her own idea what consent looks like and is entitled to feel violated if their partner interprets a monotonous “it’s fine” as consent. However, I do not believe the survivor’s partner should be labeled a rapist, shamed, expelled, or jailed for thinking “it’s fine” means yes. While I do agree that what constitutes consent can be subjective, I believe what constitutes a rape accusation needs to be objective.

    I think when some people (possibly including Professor Anonymous) see “Consent is never implied,” they interpret it as “If you misinterpret implied consent as affirmative consent, you are a rapist and need to be prosecuted.”

    Please understand that I am not trying to blame the victim. Just because I don’t think the partner is legally at fault in the “it’s fine” example doesn’t mean I think the survivor is.

    I would love to hear your opinion on this nuance. Maybe you can change my mind.

  4. 5

    I liked this post.

    I had an argument about this with a close relative (in her 20s) when affirmative consent standards for college disciplinary proceedings were in the news a bunch. She said that she had people telling her that affirmative consent meant verbal, and other people telling her that only someone being silly and disingenuous would think it had to be verbal, and that nobody could articulate clear standards to her of what was and wasn’t okay for consent, that they thought it was something you were just supposed to understand, so she thought this was a terrible idea for a disciplinary standard. She also brought up the “I guess these people think my partner and I are sexually assaulting each other all the time if we’re being nonverbal” concern. I pointed out that the disciplinary standard just says certain things aren’t a defense if you’re accused, but she didn’t find that reassuring. I guess this gets back to Kristi Chan’s question.

    My own thought is that we already have something like affirmative consent for other things. “Well, he didn’t say no” isn’t a defense for taking someone else’s car for a ride. There are some states where consent is considered irrelevant when it comes to physical assault & battery, but in those where it’s relevant, you don’t just get to assume. And yet, these standards haven’t led to an epidemic of people claiming their friends committed various crimes over minor misinterpretations, so I just don’t think there’s much danger of that here either.

  5. 7

    Hmmm,
    “nonverbal”=/= “implied”?
    I’ve never heard that one before.
    I’ve always considered the word “implied” to refer to anything that isn’t explictly, literally, and verbally said. That’s how I’ve always used the word and how I’ve always assumed others used the word. I’ve been alive for 23.5 years and never had any trouble with that definition until now.

    I suggest that you can use a different definition of “implied” if you wish, but you should be aware that you may be using a non-standard definition that others may be unfamiliar with.

    Perhaps we should taboo “implied”?

  6. 8

    Not every car ride without seatbelts results in someone being thrown from the car. Similarly, not all sex with bad consent practices is rape. But bad consent practices make it more likely that someone will get raped, just like riding a car without a seatbelt makes it more likely that you’ll get thrown from the car.

Leave a Reply

Your email address will not be published. Required fields are marked *