Regarding consent in nightclubs

Content note: abstract discussion of sexual assault, and by implication rape and CSA.

One of my perpetual complaints about gay nightclubs is that people think it’s okay to grope strangers without getting any permission. However, many people are unwilling to acknowledge this as sexual assault, because they argue that they themselves would enjoy being groped. I think this is besides the point.  Inspired by a recent post by coyote, I’m trying out a new approach (and this is really a way of explaining a model of consent by way of application).

Under conventional models, consent is an expression of permission. A person asks if they can touch me, and if I say “yes” then I’ve consented, and if I say “no” then I haven’t consented. However, sometimes I might only says “yes” because I felt pressured. Or sometimes I might say nothing at all. And so we have multiple fixes to this model, such as “affirmative consent” or “enthusiastic consent”.

Most of these consent models fail to allow for the situation where nobody asked for my consent, but I’m still okay with it. This situation often occurs in nightclubs–people don’t ask for permission to grope, and yet sometimes the people being groped are okay with it.

So here’s a different model of consent: consent is an internal state. If someone is okay with being groped, they are consenting, and if they are not okay with being groped they are not consenting.  Someone may also feel violated after the fact, and this also qualifies as non-consent.

Ozy has pointed out a problem with thinking of consent as a felt sense. On rare occasions, a person might take all reasonable precautions to not violate their partner, and yet their partner still feels violated. For example, a person might fake enthusiasm because they think that’s just what they’re supposed to do.  Or another example, inadvertently triggering someone may cause them to relive an experience of violation.

It becomes even thornier when someone feels violated only after the fact.  Sometimes after-the-fact violation is sufficiently predictable that it can be presumed (i.e. they were unconscious, drunk, or underage), but other times it might be completely unpredictable.

If a person has no way to predict that their actions would lead to violation, should we consider them morally culpable of sexual assault? I would argue not. We should hold a person morally culpable when they fulfill the following three conditions:

(1) They fail to take sufficient precautions to avoid making people feel violated,
(2) They make someone else feel violated, and
(3) (2) is the result of (1).

Note that conditions (1)-(3) make a person morally culpable, but that doesn’t necessarily mean legal charges should be pressed. How we treat the situation legally is a separate matter beyond the scope of this post.

In the context of gay nightclubs, my complaint is that people are doing (1), because they’re not getting permission to grope people. People defend groping at nightclubs by saying that (2) isn’t happening. Yes, sometimes the other person is fine with it, and if there’s no victim then there is no one to raise an issue. However, if people keep on doing (1), then eventually (2) and (3) will occur, and it will be sexual assault.

So stop groping people without permission. And tell other people to stop too.

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