Sex on Trial: Is This Rape? What BBC3 got wrong and got right.


Based purely on the advance advertising, I was full of trepidation about Sex On Trial: Is This Rape?  – the latest documentary in BBC3’s Breaking the Mould series on gender issues. In the end there were more than a few moments when I felt every fear was about to be confirmed. Anything that turns a realistic alleged rape scenario into drama-tainment-cum-phone-in game show is already walking a very high wire above a sea of sensationalism and exploitation.

By the time I got to the closing credits, I was almost won over. The programme got a couple of things badly wrong (more on those in a moment) but a lot right too. Let me begin with the positives. Perhaps the most telling review I can offer is that I am father to a teenage son who is just embarking on all the early fraught stages of girlfriends, dates, parties etc . When he gets home from school tonight, I am going to recommend he watch the programme, because really it is he and his peers who need to see it, not me and mine. It does not represent the final word on sex education and consent, but I think it does represent one valuable episode in an ongoing conversation.

Just a few weeks ago a young man called George Lawlor got himself into the papers by penning an article outlining his resentment and offence at being invited to attend sexual consent classes by his student union at Warwick University.  His argument was less than convincing to start with, hardly helped by the accompanying photo of him standing holding a sign saying “This is not what a rapist looks like,” making him look very much like a rapist indeed.  The whole business reminded me of someone shouting “I don’t need no stinking driving lessons” while driving at speed straight into a wall.

If Sex on Trial achieved nothing else, it absolutely blew that argument out of the water. The young people featured in the discussion segments were a really impressive, thoughtful and mostly likeable bunch of 16 to 18 year olds, who took their role in considering the complexities of the case suitably seriously. However it was clear that a large proportion of them were desperately in need of better education around sexual consent. Many of the comments that fell from their mouths were deeply worrying in all sorts of ways, particularly those along the lines of “well she didn’t say yes, but she didn’t really say no either.” It was also instructive to be reminded that such sentiments don’t always split along gender lines, with some of the most troubling remarks coming from young women. It is not just boys who need classes in sexual consent.

It was never explicitly spelled out, but the programme also provided one of the most compelling arguments I have seen for a positive consent (or ‘yes-means-yes’) approach to these issues. The dramatized scenario hinged on whether or not the accused young man had reasonable grounds to believe the alleged victim had consented to the act he perpetrated. In the dramatized trial sections, the prosecuting barrister specifically asked the defendant what precisely the woman had said or done to convey her consent, and he had no answer to offer. Astute HetPat readers will have noticed that this is precisely the chain of events highlighted by the Director of Public Prosecutions a few months ago, precisely the test that she insisted the justice system apply. The programme last night demonstrated, I think, why it is the right and proper standard.

It was the trial aspects to the show, however, where I think the programme went off the rails for a couple of reasons. It makes me despair that whenever we discuss and debate these issues, it always seems to conclude upon a legal standard of guilt or innocence. The title asked “Is This Rape?” and the format effectively strung us along with the promise that we would find out the answer at the end when we learn what the judge, the jury and the law has to say. This strikes me as inadequate. There is an enormous gulf between the cruel occurrence of sexual assault and conviction in a court of law beyond all reasonable doubt.

Framing the debate in this way carries an implication that were the trial to have ended with an acquittal the answer to the question in the title would have been “No.” It is a grim truth that low reporting rates, the necessity to prove guilt beyond all reasonable doubt and then the presumption of innocence unless proven guilty mean that only a small proportion of genuine rapes which occur will result in a criminal conviction. This does not mean a rape did not occur in all the other instances. (Which equally, of course, is not to say that in all other cases a rape did occur.)

Far too often when we debate the issues of consent and rape, the discussion gets snagged around what can and cannot be proven in a court of law. This, I think, is dangerous. Discussion of a hypothetical case can quickly become a search for legal loopholes, with the implication that if something is not going to result in a prison sentence, it must be OK. In this, the debate often seems to get stuck around Level 1 of Kohlberg’s moral reasoning scale, which is that something is only wrong if we are going to be punished for it. We are meant to get past that by about the age of five.

When asking  “Is this rape?” the important question should not be “is this an act that will get one convicted in a court of law?” but rather “Is this an act of violation, of exploitation, of abuse?”

It is a point I have made before, but I really wish the conversation around positive consent were not so much focused on “How can I be sure what is happening here won’t result in me going to prison?” and much more upon “How can I be sure that I am not violating, exploiting and potentially traumatising someone with my actions?” or more succinctly “How can I be sure that what I am doing is not rape?”

And that leads me on to the final, and perhaps most grievous failing of Is This Rape? By focussing on the legal verdict, the programme invited its young participants, and by extension its viewers, to ponder the impacts upon the life of a young man, apparently ‘normal’ and even ‘nice,’ just like them and their friends, finding himself imprisoned for years, his life and future prospects in tatters. It put me in mind of the comments of a US TV anchor who expressed pity for the Steubenville rapists having their lives ruined.

It really shouldn’t need spelling out and shouting, but the dramatization in this programme portrayed a terrible, horrible event. That terrible, horrible event was not that a rapist went to prison but that SOMEONE WAS RAPED. Despite the best efforts of the remarkable, heroic young woman from the group who disclosed her own abuse history and spoke wonderfully and passionately about the real impacts upon her life, the balance at the end of the programme seemed to have gone badly, badly awry.

These are points I shall make to my own teenager when he has had the chance to watch. If you are in the same position, I hope you do the same.

Comments

  1. gjenganger says

    When asking “Is this rape?” the important question should not be “is this an act that will get one convicted in a court of law?” but rather “Is this an act of violation, of exploitation, of abuse?”

    As long as you stick to the word ‘rape’, with its legal meaning and extremely heavy condemnation, I cannot see how you can avoid the discussion being about legal guilt. “How much pain and damage is this likely to cause?” would be a better question, IMHO, but you can cause a lot of damage without breaking the law, and vice versa. And getting intimate with a stranger caries an unavoidable risk of emotional hurt for one participant or the other. It is still a risk that people can, and should, be willing to take.

  2. WineEM. says

    Ally, could you by any chance clarify something for me here on a “technical level?”

    I only caught the programme in the second half, towards the end (i.e. the bit where they were having the group discussion with the teenagers, and the dramatic sequence where the prosecution case was put forward.)

    The query I was to raise is in the context of having heard an interview on World At One with former Attorney General, Dominic Grieve.

    In it he was quite clear about what, in law, would constitute a legitimate inability to give consent, and in this he was quite unequivocal: to quote him, it would have to mean – his exact words – (“complete incapacity”), i.e. a state of mind so extremely impaired by specific physical factors, (i.e. very severe intoxication through drugs, head trauma, etc). that the complainant was totally unable to comprehend what was going on, and/or unable to signal an unwillingness to participate in the sexual activity in question.

    So, in this context, could you possibly clarify, were there any such specific factors in this case (other than vaguer, subjective ‘emotional ones’) which rendered the complainant completely unable to signal her unwillingness to participate – or were such factors not cited at all?

  3. sonofrojblake says

    whether or not the accused young man had reasonable grounds to believe the alleged victim had consented to the act he perpetrated

    I think one difficulty one has in such a situation, and when trying to educate others about how to behave in such a situation, is hardly any of us/none of us considers ourselves to be “perpetrating an act”. That’s a pretty loaded phrase right there.

  4. sonofrojblake says

    @WineEM, 2: also loaded language to the point of being actually wrong (if not legally, then morally) is this:

    unable to signal an unwillingness to participate

    That should be “unable to signal a willingness to participate”. It’s rape if the victim is unable to say “Yes”, not if they’re unable to say “No” – the difference matters.

  5. WineEM. says

    @4 Yeah, well I guess like either/or. If a person is unable to one, they are fairly unlikely to be able to do the other !

  6. gjenganger says

    @WineEM 2
    I am surprised that he was that categorical, but as former Attorney General I guess he ought to know. I do remember from the judge’s instructions in the Chad Evans trial, that you could be sober enough to give valid consent, even if you were too drunk to remember it the next day.

    Could Ally or some other progressive person give us any counterweight to this?

  7. Ally Fogg says

    Wine E.M. [2]

    No, they didn’t really make levels of drunkenness a factor in either direction.

    I would, however, be interested in a link to those comments from Dominic Grieve, because I think you are slightly overstating what is generally accepted to be the standard of legal consent due to impairment by alcohol (or anything else)

    Although it is also true that many people (particularly feminist activists) tend to have a wrong impression in the other direction and imagine that any level of drunkenness negates consent, which it certainly doesn’t in UK law.

    The simplistic version, which still applies, is that “drunken consent is still consent”

    It is kind of an aside, but one little detail that was slipped into the programme last night was that the prosecuting barrister raised the possibility that the drunkenness of the accused may have impaired his ability to discern the consent of the alleged victim.

    That is quite an important point that is too often forgotten.

    But here we go again, discussing what you do or do not need to do to ensure you don’t end up in prison, which really shouldn’t be the issue.

  8. WineEM. says

    Hi Ally, actually it comes up again here for instance:

    http://www.walesonline.co.uk/news/wales-news/drunken-consent-rape-case-judge-2369392

    Quote from article:


    Mr Grieve said the law certainly did not say a drunken person was incapable of giving consent.

    It is only if the drunkenness is to the point of complete incapacity that this might come into play, he said.

    Mr Grieve said the law certainly did not say a drunken person was incapable of giving consent.

    He added, “I have no doubt this judgment will be looked at carefully, but I think we should be a little wary of jumping to conclusions that the judge and prosecutor got this wrong.”

    So I’m pretty sure I’ve got that right.

  9. Ally Fogg says

    Yes, well that’s a slightly less embellished version of what you said in [2] but basically yes, as I said, the law is still ‘drunken consent is still consent.’

    But we should also note that we have got through several Attorney Generals and a couple of DPPs since then, so the guidelines have moved on a bit since then.

    I’m not quite sure what you are getting at though. The law on rape is not like speeding where there is a precise limit of 70mph on a motorway and above that you are breaking the law. It is all about balancing complex, conflicting standards, judgements and precedents.

    Which is one of many reasons I’m not really a fan of debates about exactly how far one can push the law on consent before being found guilty of rape.

  10. sonofrojblake says

    @5: “@4 Yeah, well I guess like either/or.”
    But that’s the point I was making – it’s not “either/or”. The ENTIRE POINT here is to shift everyone’s mindset away from “well did the alleged victim say no clearly?” to “well did the alleged perpetrator reasonably establish that they had a yes?”. It’s about shifting the common perception of the burden of responsbility, where the mere absence of a clearly-expressed “no” doesn’t cut it any more.

  11. WineEM. says

    But anyway, Ally, here’s the thing.

    What we’re talking about here is an intelligent, adult woman, who as far as we understand it had capacity to signal an unwillingness to participate (at any time), and yet, for reasons best understood by herself, declined to do so. (For, as a savvy philosopher once pointed out, a human being cannot choose not to choose, for in doing so, they are, in logical terms, still making a choice.)

    The drama, therefore, was not in any way thoughtful or realistic, because any competent defence barrister would have pressed this point home: you could have actively signalled an unhappiness with what was going on, but you did not. Why not? Did you believe that you lacked capacity to do so?

    And indeed, this actually applies, surely, not just on a legal level but on a moral level as well (since that is what you say you are most interested in). We saw the defendant say in court that he believed she was raising no complaint or showing any resistance or unhappiness at the time, and from the close-up, he looked as though he sincerely meant what he said. (We were also shown a clip from the actual encounter which simply showed her being passive and being subjected to the act, so not anything which was going to tell us that much in itself).

    There was also a text the defendant sent later to a friend, but the words he used may merely have meant she did not show wild enthusiasm for the encounter. A lot of sex is consensual, but still like that.

    So, then, it seems to me that adult human beings can engage in risky activities (such as having sex with someone they’re not married to, or skiing off-piste) but then if they do, they need to accept some degree of agency or responsibility in that context.

    It is not a reasonable request for men to be telepathic, or request explicit verbal consent at every point during intercourse; it is, however, a reasonable request for someone subjected to a sexual act from a partner to make clear they do not want to participate, if they have that basic capacity, and are in a position to do so.

  12. sonofrojblake says

    “It is not a reasonable request for men to be telepathic”

    Agreed. No arguments there at all. Do please point out, if you can, anyone, anywhere who has made that particular request, because not even the most foaming-at-the-mouth nutbar #killallmen feminazis have ever, in my experience, demanded that men develop actual superpowers.

    “or request explicit verbal consent at every point during intercourse”
    Hold on… one of these things is not like the other. Why is this second thing not reasonable?

    “it is, however, a reasonable request for someone subjected to a sexual act from a partner to make clear they do not want to participate”

    Is it reasonable to request that if I punch you in the face that you make it clear that you do not want me to do it again? And if you don’t immediately make it clear that you’d rather I didn’t, does that make it OK for me to do it again?

    Or is it perhaps a more reasonable stance that unless you explicitly say “Come at me bro” or something equally asinine that I should default to the assumption that you’d probably rather I didn’t violate your bodily integrity?

  13. Ally Fogg says

    What we’re talking about here is an intelligent, adult woman, who as far as we understand it had capacity to signal an unwillingness to participate (at any time), and yet, for reasons best understood by herself, declined to do so. (For, as a savvy philosopher once pointed out, a human being cannot choose not to choose, for in doing so, they are, in logical terms, still making a choice.)

    This is a fundamental misunderstanding of human beings and how they react in situations of stress.

    What runs through people’s minds at that stage can often be some combination of “Oh god no, this isn’t happening, this is too embarrassing, this is too awkward, I don’t know what to say, I don’t want to hurt his feelings, I don’t want him to lose his temper and get angry, if I just don’t react and pretend to be asleep he will get the message and stop, he wouldn’t really follow through on this would he? He’s not a rapist, surely? I don’t want to cause a fuss and wake someone up in the other room…” and a thousand other thoughts beside and they all run through the mind at a hundred miles an hour and the impact is that you freeze and don’t respond as you might rationally assume you would in the cold light of day, which would be just to shout NO! STOP THIS! And then once you’ve frozen and a sexual assault is actually happening you then just freak out and want it to be over with as quickly as possible and not turn it into a physical fight which you know you will lose so you just let it happen.

    Now, you can argue till you are blue in your face that people shouldn’t react like that, but the cold hard fact is that they do, and there are literally hundreds of thousands of victims of sexual offences, male and female, who will testify to that because that is exactly how they reacted when it happened to them.

    The drama, therefore, was not in any way thoughtful or realistic, because any competent defence barrister would have pressed this point home: you could have actively signalled an unhappiness with what was going on, but you did not. Why not? Did you believe that you lacked capacity to do so?

    Unsurprisingly, the drama did show exactly this happening, and the (fictional) victim did her best to explain something like the above. And actually barristers (and more importantly judges) are not particularly surprised when alleged victims say something like that because they have heard it hundreds of times before and they know it is the truth (despite whatever they might ask a jury to believe)

    It is not a reasonable request for men to be telepathic, or request explicit verbal consent at every point during intercourse; it is, however, a reasonable request for someone subjected to a sexual act from a partner to make clear they do not want to participate, if they have that basic capacity, and are in a position to do so.

    It is entirely reasonable to expect that someone should check another party is willing and happy to participate before you insert your cock into one of their orifices.

    Do you seriously dispute that?

  14. Thil says

    Ally

    suppose all the circumstances are the same except the girl isn’t thinking any of the stuff you mentioned, instead she’s think “this is brilliant” or whatever and just didn’t feel the need to give the boy verbal consent, would that make it not rape?

    if so it seems kind of absurd to me to say whether or not you’re committing a crime is dependent on someone else’s thoughts that you have no way of knowing

  15. WineEM. says

    @14. Well to answer your question, here’s how I think the concept of human agency needs to work in these situations: that if someone has the basic capacity to perform an action, such as to signal an aversion to being part of a sexual activity or encounter, then we need to assume that that’s what they are indeed able to do.

    Anything else is to deny them agency and responsibility, in the way that we would a child, or somebody who is in some way mentally incapacitated. In truth, that’s hardly treating them with a great deal of respect at all.

    But weirdly, we seem to have moved from a situation when one of the country’s top legal experts, who voted through the 2003 law, apparently did so on the understanding that only “complete incapacity” would have a bearing on someone’s [in]ability to say no, to a time now, where people like you, Ally, and Alison Saunders are insisting this should actually mean a type of ‘full capacity’ (i.e. that there should be no potential inhibitions or inconveniences in relation to this potential action at all).

    I’m sorry, it’s just not how human agency can realistically work, Ally, either on a moral or legal level.

  16. WineEM. says

    (I mean, for instance someone saying “I was quite literally unable to say no, because I was embarrassed, and I didn’t want to hurt his feelings”). I mean, really, Ally? You’ve got to be f*cking kidding me!

  17. sonofrojblake says

    @Thil, 15:

    it seems kind of absurd to me to say whether or not you’re committing a crime is dependent on someone else’s thoughts that you have no way of knowing

    Bullshit, and I hope you know it. Because you know a perfectly good way of knowing what their thoughts are. It’s called “asking them”. And if you’re honest, you know perfectly well why guys often DON’T ask in situations like that – they’re afraid if they do, they’ll get a “no”… so they continue, rationalising to themselves that the absence of a clearly stated, unprompted “no” is equivalent to a “yes”, and that they’d totally stop if she said no, ‘cos they’re totes a nice guy, and so on.

    Yes, if we must, there will be situations where consent is assumed, and the assumption is correct. So what? There will be situations where people you trust assume it’s OK to borrow twenty quid out of your wallet if they really need it, on the correct assumption that you will be fine with that. That certainly doesn’t mean anyone who finds your wallet unattended can help themselves, though, does it? That assumption should be something limited to very unusual situations between people who know and trust and communicate with each other, and even then should be subject to fairly regular checkups to make sure all sides know the rules and are happy with them. This really shouldn’t be difficult.

  18. Ally Fogg says

    [16]

    Well to answer your question

    Except that doesn’t answer the question. It doesn’t even begin to answer the question. It changes the subject. I will ask again.

    Do you think it is reasonable that the law expects you to make an effort to check whether the other party is willing and happy before you insert your penis into one of their orifices?

    Yes or no?

  19. Ally Fogg says

    if so it seems kind of absurd to me to say whether or not you’re committing a crime is dependent on someone else’s thoughts that you have no way of knowing

    No, the absolute 100% reverse is the case.

    It is absurd to say you can possibly know that someone else consents to sexual activity without making some kind of effort to find out like. y’know, asking them or something, and if you don’t know that they are consenting then yes, it is more than possible that you are raping them.

  20. D506 says

    @Thil, 15:

    it seems kind of absurd to me to say whether or not you’re committing a crime is dependent on someone else’s thoughts that you have no way of knowing

    By that logic, it’s perfectly reasonable for someone to drug you and rape you. I mean, how could they possibly know your thoughts on the matter?

    Seriously, it’s not unreasonable to require some indication of consent before you stick you dick in someone. You don’t even need to be correct, you just need to reasonably believe you have consent. And if you’re not sure? Don’t have sex with them! You’re acting like having sex so boring you don’t have the slightest reason to think the other person wants to be involved is more important than another person’s right to bodily autonomy.

  21. jacobletoile says

    I think the best argument for affirmative consent is this: If you don’t get affirmative consent, you may not be a rapist, but you obviously don’t care if you are. If you put it on the other person to say no, you are telling me you don’t care if you are a rapist. If you say it is just to ‘complicated’ your telling me you don’t care if you’re a rapist. If you are arguing for anything other than affirmative consent, you don’t care if you are a rapist.

  22. Some Person says

    Ally, all the best for the talks to your teenage son. I hope you can manage to talk to him in a way that doesn’t scare him so much he will not be able to express his desire at all. Happened to me.

    I also hope you’ll be able to practically teach him about navigating female expectations (for male expressions of desire) and affirmative consent. That’s, I would say, even more important than all the legal and theoretical talk. If you get to that point in your discussion with your son, please share.

    Because people who are excited about affirmative (verbal) consent generally don’t seem to wonder about how it can be *actually* implemented in the courtship rituals. We all need to learn how to talk things we usually can’t talk about. Not only teenagers, everyone. It’s so hard, and there is no appreciation of *how* hard this is. You’re right, women need to learn about affirmative consent, too, but even more importantly, they need to learn to *actually* want it, not just pretend to want it because it’s the feminist hype of the day. I think a) giving people the ability to talk about this and b) helping women to *actually* want this are the most important problems for the implementation. And no one’s even looking at those aspects.

  23. Thil says

    Ally Fogg

    sorry, I think I did a bad job of phrasing that hypothetical. what I was trying to ask is, is it still rape if you didn’t get consent but the other party didn’t mind and would have given it if asked?

  24. WineEM. says

    @19 Ally, the law, as defined in statute, has nothing to say about yours and Saunders’ vision of ‘enthusiastic consent’ whatsoever. All that it requires is that someone who is inserting certain parts of their body into certain parts of somebody else’s body should have a reasonable belief in consent as to what they’re doing.

    There’s nothing stipulated about any active measures this person should supposedly undertake to obtain this consent at all.

    The problem with this concept of ‘enthusiastic consent’ that you and SWJ’ s are advocating here is that it implicitly expects a manner of human interaction which is entirely unrealistic and artificial.

    After all, the way that human beings might show enthusiasm and involvement in other activities (social interaction and social intercourse for example) in every day life, do not follow the same patterns as those found in sex. You don’t have to be Desmond flipping Morris to be aware of this. Indeed, all kinds of paradoxical and counterintuitive reactions often take place before and during the sex act, which one would not normally associate with happiness, enthusiasm or joy at all: people may look sullen; they may appear pained or anguished at the point of orgasm; they may actually enjoy engaging in sex in a way which is quite rough and uncompromising. So all these suggestions of how ’enthusiastic consent’ is supposedly to be shown
    tend in this context to quickly fall apart.

    I mean, even you, Ally are not foolish enough to insist that verbal consent should be given all the time (unlike some of the more hard-line SJWs here), but then what other signs are there which can be completely taken for granted: are we to expect that everyone should now have intercourse with gleeful smiles on their faces, like some sort of ghastly Disneyland? Or should sexual encounters automatically resemble Mill and Boons boddice rippers, where the person being f*cked should be shouting out “yes! yes! yes!” all the way through? I mean, come on Ally, what exactly are the inevitable, standardised, interpersonal signs and signals that consent is being given? I’d wager this is quite difficult to say, because of course there are none. That’s why the responsibilities of both parties is important to reach a common understanding, not just one.

    For, in the end, I think we have to recognise that in the context of all these complex and wide-ranging reactions which can occur naturally during sex then sometimes clear, physical signals (I mean completely unambiguous ones like saying ‘no’ or ‘stop’ or pushing someone away) may sometimes be the only way to make absolutely clear that a physical activity is not welcome.

  25. jacobletoile says

    WineEM @ various. Except the default isn’t that you can go about sticking your dick in people willy nilly. The default is that you CANT. If you don’t have a clear signal that you can, well the default is you can’t. Like I said earlier, you may not be a rapist, but you obviously don’t care if you are.

  26. sonofrojblake says

    weirdly, we seem to have moved from a situation [from] 2003 […] to a time now[…].

    Weirdly, we seem to have moved from a situation in 1965, where it was illegal for a man to have sex with another man, to a time now, where it’s legal for a man to marry another man. I mean, good grief it’s almost as though we’re making progress or something!

    that’s hardly treating them with a great deal of respect at all.

    Screw “respect”. It’s treating them as though they’re normal human beings demonstrating normal human behaviour, where “normal” is defined as proven time and time and time again by actual evidence. Your alternative is to hold them to a standard of behaviour of your own devising which is, crucially, provably not how humans actually behave in the real world. It would be more respectful to treat me as though I’m fine with spiders. The evidence of reality, however, would suggest it would be more rational to deal with the fact that at the sight of a big one it’s possible I will literally pass out.

  27. Ally Fogg says

    WineEM

    “@19 Ally, the law, as defined in statute, has nothing to say about yours and Saunders’ vision of ‘enthusiastic consent’ whatsoever. All that it requires is that someone who is inserting certain parts of their body into certain parts of somebody else’s body should have a reasonable belief in consent as to what they’re doing.”

    Correct. And what both Alison Saunders and I are saying is that if one has no actual reason to believe the other person is consenting, in the form of positive words or conclusive gestures, then any belief in consent cannot be reasoned and so is not reasonable.

    That is what “reasonable” means. Having a “reason.”

    Really, why is this so difficult for you?

  28. Ally Fogg says

    I mean, come on Ally, what exactly are the inevitable, standardised, interpersonal signs and signals that consent is being given? I’d wager this is quite difficult to say, because of course there are none. That’s why the responsibilities of both parties is important to reach a common understanding, not just one.

    Let me put it this way. I have been having sex more or less regularly for more than 30 years and so I guess that adds up to a fair few thousand shags. If for some reason a barrister jumped out of the wardrobe afterwards and asked me: “Mr Fogg, what grounds did you have for believing the person next to you was consenting to the sexual activity that just took place?” then I could honestly give him a direct and honest answer. It might be very idiosyncratic and personal between the two of us at times, but it would always have been sincere and would always have been something more concrete than “well she didn’t scream and run away.”

    If you (or anyone else) cannot say the same thing then you need to have a long hard look at yourself.

  29. That Guy says

    @ Ally 30

    I have been having sex more or less regularly for more than 30 years…

    No need to brag, you big cuddle-muffin.

    Also- on board with affirmative consent. This should be basic shit.

  30. Some Person says

    @Ally 30

    “It might be very idiosyncratic and personal between the two of us at times, but it would always have been sincere and would always have been something more concrete than “well she didn’t scream and run away.””

    So, tacit consent cannot be one of the idiocyncracies? I honestly wondering. I once did a bit of research on the Antioch SOPP (grandmother of all affirmative consent policies), and one of the main operationlisation problems was that the policy was *routinely* ignored by couples (and women with men, but that’s another story). I think not screaming and not running away can be one of the idiosyncratic ways of consenting.

  31. Anton Mates says

    WineEM.,

    Indeed, all kinds of paradoxical and counterintuitive reactions often take place before and during the sex act, which one would not normally associate with happiness, enthusiasm or joy at all: people may look sullen; they may appear pained or anguished at the point of orgasm; they may actually enjoy engaging in sex in a way which is quite rough and uncompromising.

    But that’s exactly why explicit consent is so important. Someone may look pained and anguished because they’re having an awesome orgasm; or they may look pained and anguished because they are pained and
    anguished and really don’t want to be here. How are you going to know the difference without talking to them?

    If you’ve secured affirmative consent, then paradoxical and counterintuitive reactions aren’t a problem. The kink community deals with this every day, you know? Person A gets off on tying partners down and beating them while they scream for mercy. Person B gets off on being tied down and beaten while screaming for mercy. These two people can get together and have fun safely, precisely because they’ve already talked things over and agreed on explicit signals for consent and refusal. They’ve got safewords, etc. Affirmative consent allows safe exploration of a wider range of sexual behavior than is possible if both partners are just thinking “Eh, they look like they’re probably okay with this, I’ll keep going.”

    I mean, even you, Ally are not foolish enough to insist that verbal consent should be given all the time (unlike some of the more hard-line SJWs here), but then what other signs are there which can be completely taken for granted: are we to expect that everyone should now have intercourse with gleeful smiles on their faces, like some sort of ghastly Disneyland?

    Logic fail. If verbal consent and at least some nonverbal cues can be taken at face value, then obviously everyone does not need to wear a gleeful smile during intercourse, because they can express consent through those other signals instead. Affirmative consent allows for options in how you say yes—verbally or by nodding or by grabbing the person and pulling them farther into you or whatever else. It doesn’t require you to do all of those things all of the time.

    (On another note, I think a “gleeful smile” is a pretty terrible indicator of consent. Plenty of people smile when they’re frightened or intimidated, just like other apes and monkeys.)

    Or should sexual encounters automatically resemble Mill and Boons boddice rippers, where the person being f*cked should be shouting out “yes! yes! yes!” all the way through?

    Most affirmative consent advocates I know say that consent only has to be reconfirmed when the encounter escalates (or when your partner suddenly starts to look really miserable or something.) So it’s not a problem unless you guys are shooting for the Guinness Book of World Records by switching positions every eight seconds…and in that case you probably should discuss it all beforehand anyway!

    That’s why the responsibilities of both parties is important to reach a common understanding, not just one.

    That’s only true if both parties are actively pursuing/advancing the act or encounter in the first place. If you want to borrow my car, I am under no obligation to reach a common understanding with you. I can simply refuse to talk to you about it, and you don’t get to take the car. Even if I let you borrow my bike all the time.

    Likewise, if we’re making out but I won’t tell you whether I want to have sex, that’s your problem. Sucks for both of us if I actually did want to and just couldn’t bring myself to admit it, but you still don’t get to assume that I would have said yes.

    For, in the end, I think we have to recognise that in the context of all these complex and wide-ranging reactions which can occur naturally during sex then sometimes clear, physical signals (I mean completely unambiguous ones like saying ‘no’ or ‘stop’ or pushing someone away) may sometimes be the only way to make absolutely clear that a physical activity is not welcome.

    Which is exactly why “not welcome” should be our default interpretation of ambiguous signals. We’re not always going to perceive a clear “no”, even when the other person doesn’t consent, so we need to wait/ask for a clear “yes.”

  32. Some Person says

    Anton Mates,

    “That’s only true if both parties are actively pursuing/advancing the act or encounter in the first place. If you want to borrow my car, I am under no obligation to reach a common understanding with you. I can simply refuse to talk to you about it, and you don’t get to take the car. Even if I let you borrow my bike all the time.”

    I’m always confused by these metaphors. Drinking tea, borrowing cars. I don’t think they help clarify anything about the underlying logical structure of sex. Particularly not if it’s usually the same people who say that sex is an experience shared by people who now claim that it is basically a “do-ut-des” sequence of contractual exchanges. Is objectification – “If you want to *use* my breast for your sexual gratification, you need my consent to do so. If I want to *use* your penis for my sexual gratification, I need your consent.” – really the future of sex-positivism? How do people not see the inherent contradictions here?

  33. Sans-sanity says

    @Ally 30. Precisely true and well put. However, as a matter of practicality I suspect that were the barrister to emerge from your closet a fortnight or month after the fact, you may have some difficulty in recalling enough of the details of your “idiosyncratic and personal” explanation to make it seem entirely reasonable. This, I think, is why we so often find presumed non-rapists getting tied up in knots about how ‘affirmative-consent’ would work out in court.

  34. Rob says

    Ally, good post thanks.

    As a reference to the legal side of things I’ll provide this link to the New Zealand Ministry of Justice website ). Different specific laws to the UK, but obviously with similar heritage.
     
    But really, who gives a fuck about the law? What’s wrong with treating your possible partner with the respect to assume the answer is no, unless it is crystal clear they do consent? That doesn’t mean forms, witnesses and long detailed boring negotiations, but I’d certainly expect any partner to be clearly willing, happy (or at least mildly amused) and doing so without me having to badgering, pestering, negging, physical intimidation, separating them from their friends or getting them shit face before hand. If you’re doing any of that stuff, if your partner looks scared, frozen or impassive or unconscious (let alone actively fighting you off) then you’re doing something wrong and you need to go away and think that over. Hard. Behave like a decent human and not only will you never have to worry about the law.

  35. Ally Fogg says

    Some Person [32]

    So, tacit consent cannot be one of the idiocyncracies? I honestly wondering. I once did a bit of research on the Antioch SOPP (grandmother of all affirmative consent policies), and one of the main operationlisation problems was that the policy was *routinely* ignored by couples (and women with men, but that’s another story). I think not screaming and not running away can be one of the idiosyncratic ways of consenting.

    Well, to go back to Wine EM’s whine earlier, this is the one area where the law has not changed but the interpretation & application of it has, and changed for the better.

    You could probably have made that case in a UK court 30 years ago and it is possible the court might have taken your side. The interpretation that is now applied is that no, not screaming and not running away is not considered adequate indicator of consent.

    Now in practise, for some people, tacit consent is adequate for them personally. They actually are happy for you to just climb aboard and make hay without a second word and they are indeed consenting for you to do that. However as the person doing the climbing aboard, you cannot know that for sure and so you are taking a chance that you are in fact raping them and, secondarily, taking the chance that you might be reported and charged with rape.

    Obviously there are huge variations within couples. I’ve been with Clare for 21 years and we can read each others’ exact state of mind from a twitch of the eyebrow, at times. That happens with a long-term partner. Obviously discerning consent is much more difficult with someone you have only met recently or a one-night stand or whatever.

    So to Sans-Sanity

    However, as a matter of practicality I suspect that were the barrister to emerge from your closet a fortnight or month after the fact, you may have some difficulty in recalling enough of the details of your “idiosyncratic and personal” explanation to make it seem entirely reasonable. This, I think, is why we so often find presumed non-rapists getting tied up in knots about how ‘affirmative-consent’ would work out in court.

    This is true, and it is one reason why it is much, much harder to secure convictions for alleged rapes that happened a long time ago, because a court would not reasonably expect me to be able to recall the precise sequence of events and who said what to whom from 15 years ago. It is, however, still a legitimate and important question to ask.

    But here we go again, talking endlessly about what will and will not get you convicted in court.

    Here am I and several other people saying to you “Guys, look, here is a way you can ensure you don’t rape someone or be accused of raping someone” and you are reacting like we’re trying to take your toys away.

    And I notice no one has yet had the courage to actually answer my question to Wine EM earlier, so I am taking it as understood that actually no, you don’t think it is reasonable that the law should expect you to check the other person is consenting before you insert your cock into their person. That is not encouraging.

  36. HuckleAndLowly says

    “Affirmative consent” is the idea that if you want to do something (sexual) to someone else’s body, you have to ask them first. How can anyone disagree with this? It’s their body, for Christ’s sake: they own it, not you.

    How it works out in practice, however, is another question. One obvious problem is that consent is not as clear cut as we’d like to think. For example, imagine Alice asks Bob “Do you want to have sex with me, right now?”. Suppose B doesn’t want sex. B may still answer yes to the request because they are afraid of negative consequences if they say “no” (maybe A has some power over B; maybe A has a volatile temper; maybe B doesn’t want to reject A and so on). In a straightforward affirmative consent view, A has now got consent for sex, even though B doesn’t want sex. The problem here is one of the power relationship between A (the one doing the asking) and B (the one being asked): if there is an unequal power relationship, then B cannot be seen as giving the same “level” of consent as when power relationships are equal. (This issue of consent in unequal power relationships comes up a lot when consent is required from participants in, for example, medical and psychological research).

    Notice that this “unequal power” problem arises when the one asking for consent (A) has more power than the other (B). It doesn’t arise when B has less power than A (in that case A has no other reasons for saying yes). Given this, I think that we need to consider who should ask for consent. Just like Ally, I’ve been thinking about this because my son is approaching his teenage years. At this point I feel like telling him, not “if you want to have sex with someone you have to ask and get consent first”, but “if you want to have sex with someone, you have to wait until they ask you for consent: then you can say yes happily”. This has a very obvious flaw, though: if everybody was following this approach, nothing would ever happen.

  37. WineEM says

    @39 “that the law should expect you to check the other person is consenting before you insert your cock into their person.”

    Ally, as stated before the law does not require that a person take any active measures to ensure that another person is consenting, it merely requires that the belief in consent should be reasonable. For many people, that may well mean an honest belief that the other person went along with proceedings and as a rational, intelligent person with agency, did not raise any apparent objections to what was going on. My belief is that nobody should force a sexual act on to another if there are clear signs that they do not want it, but in the throes of passion, such ‘clear signs’ may not necessarily fit the kinds of poetic and elegant narratives of entirely ‘rational behaviour’ you would appear to have in mind.

  38. sonofrojblake says

    If you don’t ask, you don’t get. Nobody should be afraid to ask. (Unless they’re alone in an elevator at 4am in a foreign city with someone who has stated that they’re tired and want to go to bed to sleep and has just spent the last x hours explaining how they don’t appreciate being objectified and so on… obviously don’t do that). But y’know, there should generally be nothing wrong with asking, as long as you’re prepared to accept and move on if you get a “no”.

    And if you get a “yes”, well, if you want to be absolutely sure you’re not being a git, you might choose to think about whether they really mean it and maybe let them sleep if you think they actually have a headache and only said “yes” to be polite or something. But get real. It used to be that we had to teach that “no means no”. It’s arguable that even that message hasn’t go through, and we’re already moving on to “yes means yes”. A step beyond that – “yes means yes assuming there’s no chance of power structures or relative status warping behaviour, so think about that when you ask” – is frankly ludicrous, to the point of sounding like an MRA parody of SJW attitudes.

    Consent – on a strictly legal level – is as clear cut as we’d like to think. You did it without asking? You didn’t have consent: guilty. You asked, and got permission? You had consent: acquitted. But… she says she gave permission but didn’t mean it? As I think I’ve already said – neither the law nor any reasonable person expects anyone to be a telepath, nor should they.

    (Aside: one of the most frequent recurring conversational experiences in my life is as follows:
    Them: “Why did you do that? You know what I meant!”
    Me: “No, I know what you said.“)

  39. Ally Fogg says

    WineEM

    Ally, as stated before the law does not require that a person take any active measures to ensure that another person is consenting, it merely requires that the belief in consent should be reasonable.

    And as I have explained to you repeatedly, you are wrong, it does.

    The law, under what passes for a UK constitution, is not simply written statute.

    The law is statute as interpreted and applied through precedent and convention and guidelines to the judiciary, as laid down by those vested with that authority by Parliament and departments of state.

    The law, as written in statute, means that if you are accused of rape, you will have to demonstrate to the judicial system that you believed you had consent and that your belief was “reasonable.”

    The interpretation of the word “reasonable” is established through precedent and guidelines to mean “with reasons to believe I have consent” and not “in the absence of reasons to believe I don’t have consent.”

    My belief is that nobody should force a sexual act on to another if there are clear signs that they do not want it

    This is inadequate. This is not what the law says. Your belief risks turning you into a rapist both legally and ethically.

    If you are ever in a court of law and are asked “why did you believe you had consent to have sex with this person?” and you reply “because I didn’t get any clear signs that they didn’t want me to” then you have just pretty much ensured you will go to prison for a long time. And rightly so.

  40. Sans-sanity says

    … I think that the more obvious explanation for why people are not answering the question that you asked Wine EM is that you asked Wine EM, hey?

    As for reacting like you’re trying to take my toys away, a) That’s a laugh for more reasons than I will ever be sharing on a blog b) Frankly I fully expect that everyone in this thread is already practicing affirmative consent, albeit for the main part at an ‘ idiosyncratic and personal level’, but get belligerent when folks start bringing in “positive words or conclusive gestures”. People are frustrated by inconsistency and the discourse around affirmative consent is anything but consistent. c) Who mentioned 15 years? Pick, I don’t know, five ‘encounters’ ago, and try to explain to your closet-lurking barrister (not to us please) exactly how you knew you had consent. If you can’t, well, now you know why people are more worried about affirmative consent as a legal standard than a practical concern. I can’t remember what I had for dinner five days ago, let alone who wiggled their eyebrows at whom. I’m sure that I had dinner though, and I’m quite sure eyebrows were well and thoroughly wriggled!

  41. Sans-sanity says

    … I am clearly a slow typer and may have had a misplaced amount of faith in some commentator’s sense.

  42. says

    Notice that this “unequal power” problem arises when the one asking for consent (A) has more power than the other (B). It doesn’t arise when B has less power than A (in that case A has no other reasons for saying yes). Given this, I think that we need to consider who should ask for consent.

    This combined with the belief that men hold power over women is a dangerous combination. I’ve heard someone argue in full seriousness that due to patriarchy men need to take more care in ensuring consent than women needs to do.

  43. WineEM says

    Well, ok, Ally, you can make a case, if you want to, that the law is not defined as it is in statute, but rather by, for instance, guidelines set out by the DPP, though I do find it interesting that you were making – quite unequivocally – the exact opposite case to us just a few months back.

    So when the DPP issued their new guidelines to the judiciary in February, you were absolutely clear in saying (I quote): “The new guidelines do not change the law”; “the law is exactly as it stands” and also “In order to obtain a conviction, the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting”.

    http://freethoughtblogs.com/hetpat/2015/02/03/men-and-boys-need-positive-consent-policies-too/
    I don’t know, you’ve perhaps changed your mind since that time? 🙂

  44. Ally Fogg says

    “The new guidelines do not change the law”; “the law is exactly as it stands” and also “In order to obtain a conviction, the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting”.

    Fair point. I should have said “the guidelines do not change the statute” which was what I actually meant.

    The statute is exactly as it stands.

    The guidelines actually clarified rather than changed what had slowly become standard through precedent.

    The new guidelines effectively said “this is what should have been happening all along, and if it wasn’t, it should in future.”

    It is the nature of law (and many would argue a feature, rather than a bug) that a phrase like “reasonable belief” is contextually dependent, and what was considered to be “reasonable” in the 1980s will not necessarily be considered “reasonable” in 2015.

    None of which gets around the more important point that ensuring one has consent before touching someone sexually should be considered a bare minimum standard of human decency.

  45. Ally Fogg says

    Sans-Sanity

    People are frustrated by inconsistency and the discourse around affirmative consent is anything but consistent. c) Who mentioned 15 years? Pick, I don’t know, five ‘encounters’ ago, and try to explain to your closet-lurking barrister (not to us please) exactly how you knew you had consent. If you can’t, well, now you know why people are more worried about affirmative consent as a legal standard than a practical concern.

    Actually I’d be pretty sure I could piece together a “five encounters ago” sequence of events, on the basis that I had some context. Like if the closet barrister jumped out and said “it is alleged that on one night in September you had been to the Red Lion pub and had three pints then you came back and watched Gogglebox and then you went to bed and XYZ happenedl” then yes, I’d be able to piece together events. I’m doing it right now in my head!

    At the very least, I can assure you that I would be just as able to accurately testify that my partner had said or done something specific as I would be able to accurately testify that she had not said or done something specific, so I’m not sure what one standard has over the other in this context.

  46. Sans-sanity says

    Different folks – I’m trying it myself and I’m positive I’ve got the details of a couple of different nights mixed up. My testimony would have to therefore be a wholly accurate “I dunno, there would have been *something*”

  47. scoober says

    @Ally

    “it is alleged that on one night in September you had been to the Red Lion pub and had three pints then you came back and watched Gogglebox and then you went to bed and XYZ happened”

    I’m glad I’m not the only one inexplicably turned on by Gogglebox.

  48. sonofrojblake says

    @Ally, 44:

    The law, as written in statute, means that if you are accused of rape, you will have to demonstrate to the judicial system that you believed you had consent and that your belief was “reasonable.”

    Really? The principle in every other area of the law is that if you are accused of [insert crime here], the burden of proof lies with the accuser and you’re innocent until proven guilty. It is for the prosecution to demonstrate beyond a reasonable doubt that you did NOT have any reasonable grounds to believe you had consent. Various feminists have suggested at various times that in this one very specific crime the very principles on which our system of justice are based should be altered to favour the alleged victim, and fortunately so far they’ve been mostly ignored (asymmetric anonymity rules aside).

  49. Ally Fogg says

    well, sonofrojblake, it is all very complicated (how else would lawyers buy their villas) but in essence yes, that is *part of* how it works.

    The onus is on the prosecution to present a case with evidence that you are guilty. That evidence can be in the form of sworn testimony from someone (in a rape case this would almost invariably be the alleged victim).

    If there is no evidence as to your guilt, you shouldn’t really be in court in the first place and if the evidence doesn’t stack up, the judge may well throw the case out without you having to give evidence at all.

    HOWEVER there is no equivalent of the 5th Amendment. If you are asked a legitimate question and you fail to answer it to the satisfaction of the court, that can (and usually will) be taken to mean you have no evidence to offer in your defence.

    So in the circumstances, assuming the crown has made a case, with evidence, that you committed an act of sexual penetration without consent, then you should be expected to provide contrary testimony, either that the alleged act did not take place at all or that you did have a reasonable belief in the consent of the other person at the time.

    Is that clearer?

  50. sonofrojblake says

    Yes. (Didn’t mean to dereail onto legal details, but burden of proof does matter. As you accurately point out, the discussion of the legal definition is a distraction from what should be a principle of behaviour.)

  51. Some Person says

    Ally [39]

    “Obviously discerning consent is much more difficult with someone you have only met recently or a one-night stand or whatever.”

    Obviously.

    You’re also right about the changing social practices in this respect. I found it interesting how there were a couple of people in the documentary who said they’d prefer to be accused of murder (or committ murder) rather than be accused of or committ rape. That’s a statement about the crime and social practice of handling it that is interesting in its own right. Rape is obviously a horrible crime, but if we get to the point where people would prefer to be seen as murderers rather than rapists while at the same time feeling constantly close to accidentally being involved in “something” they are not sure they would call rape but is officially called and considered rape, it may be time to go and reread Foucault.

    Again, I’m not against the cuppa tea and borrowing car ways of seduction and sex per se, despite finding the metaphors completely off and orthogonal to what I consider sex-positive, as I explained in a comment above. I agree that it *could* theoretically make things easier, I’m just saying that “we” (very big generalisation) aren’t able to handle this.”We” generally aren’t able to talk about our desires in a seductive, socially appropriate way that will also lead somewhere and not “kill the mood”. Yes, I know there are subcultures that do this in some way, but whenever I hear from “vanilla” female friends that a guy wanted to talk it over before kissing, making out, having sex, they sent him home, because they thought he killed it. They also – and not unreasonably – seem to think that not being able to read them right without having to affirm everything was a sign for them to be bad lovers.

    For this to work fairly, women will need to either stop wanting “to be taken”, to succumb to male desire, or literally sign consent contracts that allow this (cf Eva Illouz, Hardcore Romance). And I think no one honestly believes that any of that is going to happen. I think that everyone believes that male sex drive will allow women to keep their desires about wanting to succumb to expressions of male desire, while shifting all the (legal) risk to men. And I think by and large they are right. As a consequence, sex will be a lot scarier than before for men, and maybe that kind of socially created anxiety is even a collective equalizer for the costs and risks associated with sex which women are bearing on a micro level. Maybe that’s fair?

    And yet. Our pain is our pain and our fear is our fear. And I thought it was interesting how the teenagers in the programme were more open to a discussion about male fear of false accusation and accidentally getting into a horrible situation than the online gender discourse.

    And on an even more practical level – do you have a practical idea about how to talk to your son about this in a way that lets him like himself for his sexuality while still being scared of it, what it may to others, to himself? Do you have a practical idea how to teach him how to be aware that “experimenting” is something very difficult in an affirmative consent world that both implicitly and explicitly assumes people are aware of what they want and are able to communicate it if they want it.

    I don’t have answers for this. They’re tall order, but they need to be addressed.

    What I know is that I slept in the same bed with a female friend and potential romantic interest, a woman with a phd in gender studies, telling her I wouldn’t “do” anything unless she told me. The rules for her, for me. Shifting the responsibility for initiation to her. She didn’t tell me. So I didn’t. For three nights. She didn’t talk about the rules during the three days in between, nothing indicated she expected anything. But a while later told me that the fact that I didn’t try anything then was when she realized that, for her, it would never work between us, that I apparently didn’t want her sufficiently to let the/my rules be rules. It was neither simply a dodged bullet nor simply a missed opporunity, it was a case of an aware woman not being able to live up to the expectations she believed she could live up to.

    This kind of expectation cannot be solved by legal procedures. And it’s odd that there are so many people believe it can.

  52. JohnHB says

    “None of which gets around the more important point that ensuring one has consent before touching someone sexually should be considered a bare minimum standard of human decency.”

    Isn’t this the Antioch doctrine? You are kissing and cuddling and you move your hand onto your partner’s breast. This violates ‘a bare minimum of human decency’? Really? Other than explicitly asking “May I now touch your breast?” how are you supposed to know you have consent?

    Of course, if your partner says or indicates ‘don’t’ or ‘stop’ you do. Or should. But too late, by your definition you have already committed a moral (and perhaps legal) offence. You always have to explicitly ask seems to be your position. Antioch.

    I look forward to you detailed analysis of how ‘breast-touching’ may be ethically achieved other than explicitly and verbally obtaining permission first!

  53. JohnHB says

    A comment on the programme.

    Years ago on PBS there was a programme “Miller’s Court” in which a Harvard law professor presented a scenario–then kept tweaking it. ‘Now what?’ he’d ask. This was an extension of the Fred Friendly Seminars. This seems to me a useful approach for discussing all kinds of contentious areas.

    For example, the intervention in Syria. Should we have done it? The claim, at the time, was that Gaddafi was threatening to kill thousands in Benghazi. As we know, the result has been chaos. But if we had waited and he had killed thousands, should we then have attacked to stop the killings of thousands more? Even if chaos had then ensued? Would that have been better? Etc.

    In the BBC programme, what if subtly different scenarios had been played out? When he cuddles up to her, she says “That feels nice”? Or mutters, “I want to have sex with you”? Or perhaps he misses “But not right now?” Or, perhaps she doesn’t say it clearly? Or perhaps he can’t hear it already being beneath her legs. “Mmm…” A million different scenarios. Different possible outcomes both morally and legally.

    One other difference here is that the programme asked kids their views on a single scenario. In the Miller/Friendly discussions real world experts–lawyers, former secretaries of war, etc., were interrogated. They had actually faced similar matters and gave their reasonings behind their decisions.

  54. StillGjenganger says

    @Anton Mates 33

    The kink community deals with this every day, you know? Person A gets off on tying partners down and beating them while they scream for mercy. Person B gets off on being tied down and beaten while screaming for mercy. These two people can get together and have fun safely, precisely because they’ve already talked things over and agreed on explicit signals for consent and refusal. They’ve got safewords, etc. Affirmative consent allows safe exploration of a wider range of sexual behavior than is possible if both partners are just thinking “Eh, they look like they’re probably okay with this, I’ll keep going.

    I think you have that one comprehensively wrong. The only reason you need special safewords in kink is that the normal signals like ‘stop’, ‘you are hurting me’, ‘I do not want this’, do not work in that very special context. Arguably ‘I do not want this – if you do not stop it is rape!’ is a universal safe word in the vanilla world. It means ‘Immediately stop what you are doing and start talking about the situation’, which is all that safewords do. But, in kink as in vanilla, people understand that you can freeze up and be unable to use your safeword exactly when you need it most. Some experienced kinksters acknowledge that safewords, while helpful, are not completely reliable, and aim instead on the dom knowing the sub well enough to read her reactions directly. That is a very high barrier, though (and doms have to learn the ropes too), so realistically there is always some risk of a very unpleasant experience. All you can do is to minimise it.

    As for the pre-communication, that kind of thing its always good. But kinksters really need those negotiations because they do things that would be an immediate and violent turn-off for 99% of the population, including most other kinksters. As long as you stick to oral and vaginal one-on-one sex, avoiding anything that would be charged at premium prices if you had to pay for it, you will be as safe with the vast majority of vanilla people as kinksters can manage to negotiate.

  55. StillGjenganger says

    I really think this debate is going off the rails because all of us (yes, including you, Ally) stick to asking ‘is this rape’. Any decent (or sensible) person would keep a fairly wide margin between the kind of thing they would want to do, and the kind of behaviour that would send them straight to jail. So we end up with a dialogue of the deaf: The progressives say ‘If you do not ask explicitly and regularly, you are a rapist!’ And the non-progressives say ‘So it is rape if I do not ask, even if she is perfectly willing? That means I have to take major precautions never to get even close to the edge. That means I would have to … I could never even, … Well, Come on, this is ridiculous!’

    We would get a more sensible discussion if we distinguished between what is illegal, what is despicable, and what is risky. Rape is a fairly specific definition. Sex when you have no good reason to believe you have consent. But it is not hard to think of a situation where your bedmate does consent but gets badly hurt anyway (predictably or not). Often there is no clear way of knowing. And any reasonable level of precautions still leave you open to the risk of something going wrong.

    The ‘positive consent’ rules are good advice. They make perfect sense as a way of avoiding tricky situations and minimising the risk that someone gets hurt. But they are not a requirement, and you are not necessarily a rapist just because you do not follow them.

  56. Lucythoughts says

    I find this idea of “unresponsive” consent a bit spurious. Personally, I’ve been with my husband for sixteen years and there have been lots of times over the years, usually when I was very sleepy and relaxed, like in the middle of the night or early morning, when I have been quite happy to have sex with him on the basis of “sure, whatever, just don’t expect me to do anything”. I imagine most women have. But even at my most passive and inert I can honestly say that there has never been a time when I didn’t give him some help, even if it was just shifting my legs into a more useful position. I’ve been very lazy indeed at times but I have never actually just lain there like a corpse, and if I ever did, I’d expect him to feel a bit worried and ask me if I was okay. I mean, you don’t have to be the most intuitive lover in God’s creation to feel a little bit troubled in that situation and seek some reassurance. That is, if you are at all bothered about how your partner feels. If you aren’t bothered then that’s a different and much more worrying story.

    The other thing is that this is part of a relationship of many years between two people who know each other very well and under those circumstances consent becomes more tacit. I’m absolutely NOT saying that you don’t need consent in an established relationship, of course you do, but it’s less likely to be verbalised for the simple reason that you are unlikely to misread your partner’s cues.

    An example, if my other half woke me up in the middle of the night and tried to initiate sex and I didn’t want it, there is no danger that I would freeze up with shock because it wouldn’t come as a surprise, it would be part of a predictable, established pattern in our relationship. If I really didn’t want to then I would gentle but firmly tell him to bugger off. However, if someone I have never slept with, who I was only friends with, or had kissed perhaps, or hardly knew at all, put me in that position then I can’t say how I would react.

    I have never, thank God, been the victim of a sexual assault but I can think of two occasions when I have experienced that “freezing”. One was when I was twelve and a friend of my older brother’s started touching me up while we were sitting on the settee watching TV. I literally did nothing, I didn’t even look at him. My brother was sitting next to me on the other side and I didn’t tell him either, not then and not later. And it wasn’t because I was afraid, it was because I was utterly thrown by it, nothing like that had even happened to me before and I simply had no context in my brain to help me decide what to do about it. I didn’t know what an appropriate response was so I did nothing. The second time I remember having similar sensations was when I was walking home from work and two girls attacked me and tried to take my bag. I actually managed to stop them taking it and fought back in a limited way but in my brain I felt like I had just landed on an alien planet; my brain was racing and I didn’t know what the hell I ought to do. Afterwards I wondered why I hadn’t said anything to either of them? At the time it didn’t occur to me.

    When you talk about people being autonomous, I think you are missing something quite fundamental about how people’s minds actually work. The way we decide how to respond to an occurrence is by very rapidly and unconsciously comparing it to other similar situations we have been in before and checking for the most appropriate or most workable response. We look for context and previous experience all the time without realising it, and it is only when you find yourself in a situation for which you have no context, no previous experience to compare it to or judge it by, that you realise that that is how you think, how you actually arrive at your decisions. Without context, you are paralysed. This is what shock actually feels like; it is like having the cords that tie you to reality severed. You’re brain races as it searches its memory banks for some experience to help you interpret what is happening to you and if it finds none, it simply doesn’t know how to function. You have no idea what you are supposed to do and so most people will react by doing nothing at all. From my own experiences, and my love of analysing my own mental processes of course J, I am absolutely convinced that this is what happens to women who are raped and it really doesn’t surprise me. We expect people to behave “rationally” when attacked but the way we decide what a rational response is, is by measuring different possible responses through the prism of experience, which they don’t have to guide them.

    This is why establishing consent, for certain, is at it’s most important when you are with someone you haven’t slept with before or at the beginning of a relationship. By the time you’ve been together a while some context about the other person’s typical feelings and reactions has built up for both of you and you can gauge things more accurately. You should never assume that someone who has never slept with you before, who hasn’t said “yes” verbally or shown you that they want to by physically facilitating sex, is a willing partner. Take home message: if they freeze like a rabbit in headlights or lie there like a log, check they are okay before you penetrate them. It’s a no brainer really.

    And no, this doesn’t mean men have to spend their lives in constant terror of raping someone by mistake, it’s not that hard to tell when someone is happy or unhappy with how things are progressing. If they seemed like they were enjoying themselves and then you slip your hand up their skirt and they tense up, or stop responding to you then there’s your cue. You can back track or you can simply ask “are you okay?”, it’s not that big a mood killer.

  57. Thil says

    Rob 38

    I kind of feel like that like responding to debates about the limits of free speech by saying “who cares? can’t we all just try to be considerate with what we say?”. You can’t just ignore the fact that are people won’t be considerate and thus need regid legal guidelines to tell them how far they can go.

  58. JohnHB says

    Lucy thoughts says: Good post.

    “If they seemed like they were enjoying themselves and then you slip your hand up their skirt and they tense up, or stop responding to you then there’s your cue. You can back track or you can simply ask “are you okay?”, it’s not that big a mood killer.”

    I agree. Yet we seem to be at odds with Ally’s claim “None of which gets around the more important point that ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency.”

    Note the ‘before’. It would be helpful if he would clarify since we both made similar points: you venture, if told to stop you do. Ally claims you need consent–although he doesn’t specify of what consent consists–before any venturing.

  59. Ally Fogg says

    Lucythoughts

    Great post, thanks. Precisely right on all counts.

    JohnHB [57]

    No. The problem with the Antioch policy was that it attempted to strictly codify something that is immensely complex and pretty much individual to every relationship and every situation between two people. One thing that happens a lot is that when people are first copping off with each other their hands start to roam. If two people are rolling around on a couch eating each other’s tongues, personally I’d say it would often be perfectly reasonable for someone to touch a boob or squeeze an arse and see if the reaction is positive or negative. That doesn’t mean it is legitimate to grab someone’s breast without warning in a different context. That said, any time you do something like that you are taking a risk that you have misjudged the situation and you are crossing someone’s boundaries and doing something which they consider to be a violation.

    I’m not the ultimate arbiter of sexual consent, but my advice would be exactly the same as when we were talking about penetrative sex above. We should all remember the little magical barrister in the wardrobe and be able to answer the question “what reasons did you have to think the other person wanted you to do that thing you just did?”

    If you can look the little imaginary barrister in the eye and give a reasonable answer, then you’re probably OK.

  60. JohnHB says

    “Just a few weeks ago a young man called George Lawlor got himself into the papers by penning an article outlining his resentment and offence at being invited to attend sexual consent classes by his student union at Warwick University.”

    He may indeed have been less articulate than you, but his resentment was heartfelt. That is authentic. And we know this matters! On the other hand, you have apparently not looked at what such consent workshops contain–and what they don’t. For example (and to be contentious): ‘rape culture’, yes; ‘scepticism of rape statistics on campus’, nope. Indications such workshops will reduce rape, or intentions to measure their effectiveness, nope. If you think they don’t depart from the feminist narrative, it would interesting to have an example.

  61. Ally Fogg says

    [to add, I’m not saying for a moment that voluntary consent workshops lasting a couple of hours run by students unions would be particularly effective. To be honest, I’d be very sceptical. But the argument against them put up by the Conservative student dude was all kinds of bollocks]

  62. JohnHB says

    “If two people are rolling around on a couch eating each other’s tongues, personally I’d say it would often be perfectly reasonable for someone to touch a boob or squeeze an arse and see if the reaction is positive or negative.”

    Me too! As I remember, I usually did! But this does not square with your previous utterance: “None of which gets around the more important point that ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency.”

    To be clear: does sexual touching–boob and arse here–always need consent, or is it context dependent–‘two people are rolling around on a couch eating each other’s tongues’, for example? Or do you always need prior consent–as you suggested?

    Seems to me a simple one-or-the-other.

    DAD: Son you must have consent before touching someone sexually. That is a bare minimum standard of human decency.

    SON: How about if we are rolling around on a couch eating each other’s tongues, and one of us touches a boob or squeezes an arse.

    DAD: Personally I’d say it would often be perfectly reasonable.

    SON: But haven’t we failed to get consent before touching them sexually. I mean, rolling around and tongues and stuff, that constitutes consent?

    And so on. I am sure any son (or daughter) can be much more inventive and irritating at disputing moral absolutes than me. But I still don’t see how you can reconcile your two positions.

  63. JohnHB says

    Lawlor is far less important than your apparent inability to reconcile your apparently ethical universalism with your apparently ethical contextualism.

    At it’s simplest: Do you always have to get consent to touch some one sexually or not?

  64. JohnHB says

    I should add, I am not trying to be contentious and I am an admirer of you statistical analysis–when allowed– on the Guardian. But I really don’t see how you can reconcile your statements here.

  65. jacobletoile says

    JohnHB to paraphras Ally , you had better in your mind have a reason why you think grabbing your partners boob is ok with them, and if that reason is ‘well she didn’t say I couldn’t’ you have a shitty reason. He is also very clear that what reasonably constitutes consent is very context dependent. I don’t see how this can be misunderstood, except willfully. Yes the two snippets you mention seem contradictory, but only if you willfully disregard the rest of what he said.

  66. JohnHB says

    “Here is, I presume, as much information as is available to anyone at present.”

    Oh, dear, Ally! You are well behind here and you presume wrong. The Warwick site announces: ‘Next Friday (the 28th of November) the NUS ‘I Heart Consent’ workshops are coming to the Warwick campus!’ What are those and of what do they consist? A link would be helpful, surely, for anyone debating whether to attend? A link is indeed available! Oddly, Warwick find it unnecessary to inform their students of it. Still, I am fearless. Here you go:

    http://www.nusconnect.org.uk/resources/i-heart-consent-guide

    And here is the actual advice on how to conduct such a ‘consent’ workshop.

    http://s3-eu-west-1.amazonaws.com/nusdigital/document/documents/11107/I%20Heart%20Consent%20guide.pdf?AWSAccessKeyId=AKIAJKEA56ZWKFU6MHNQ&Expires=1446680227&Signature=qSxIPHuIgA9wSHmEXUasE72HbiA%3D

    Incidentally, nowhere do I find support for your position that rolling around with tongues allows (without explicitly permission) touching tits and bums, as it were. An oversight, doubtless.

  67. Rob says

    @68 and others
    FFS, the rolling around eating tongues is already sexual touching. So, since you’re already at that stage, attempting to move on seems reasonable. Reassess based on response etc. I’m assuming you (or your sons/daughters) didn’t reach the eating tongues stage without consent. You know, one minute doing physics homework and then the next instant straight down their throat with your prehensile tongue? There would have been some edging up to each other, glances, little touches, eye contact, lots of eye contact, maybe some whispered mutterings or whatever. If all that went well you had consent. If it didn’t, or coercive or negative tactics were used to get to the tongue stage, there is a problem. See my comment at 38. It really is not fucking difficult.
     
    Thil @ 62

    I kind of feel like that like responding to debates about the limits of free speech by saying “who cares? can’t we all just try to be considerate with what we say?”. You can’t just ignore the fact that are people won’t be considerate and thus need regid legal guidelines to tell them how far they can go.

     
    Wut the hell are you on about? Seriously? The free speech comparison is irrelevant. Your second statement, as with the general tone of many of the comments on legal definition above, is only relevant if you start from the point where your intended sex partner is an object or a chattel where you are presumed to have the right to do anything you want up to the point of breaking the law. You don’t. Not in a legal sense. Not in a moral sense.
     
    “Inconsiderate” people who need rigid legal guidelines to tell them how far they can go without being rapists are:
    (1) prospective rapists;
    (2) predators;
    (3) likely to have broken (or will break) a range of other statutes along the way (common assault, harassment, kidnapping, stupefying with intent etc);
    (4) fucking arseholes who are at best extremely unpleasant, lacking in empathy and antisocial, and probably sociopathic at best.
     
    The above list is in no particular order and is not exhaustive. The law (statute, regulation, case law and sentencing guidelines) is not a manual on how to get laid legally. It sets the extreme outer bound of behaviour that society will tolerate before saying behaviour is criminal. If a persons interactions with others sit on that knife edge, they have, and in fact are, a problem.

  68. JohnHB says

    jacobletoile

    I don’t want to paraphrase Ally. I quote what he says and invite him to defend it. And justify its contradiction with what he previously said. So far he hasn’t. If you wish to, on his behalf, go ahead.

    “None of which gets around the more important point that ensuring one has consent before touching someone sexually should be considered a bare minimum standard of human decency.”

    Where is the context dependency in this statement?

  69. scoober says

    @Rob

    “FFS, the rolling around eating tongues is already sexual touching. So, since you’re already at that stage, attempting to move on seems reasonable.”

    I believe some people in this debate have been quite explicit that consent is required before ‘escalating’ a sexual encounter – which may well include moving from kissing to sexual touching. The reason for this is that consent to one kind of activity is not consent to another kind of activity. So I think it is still open to question which kinds of ‘moving on’ are reasonable.

  70. JohnHB says

    Rob says
    @68 and others
    FFS, the rolling around eating tongues is already sexual touching. So, since you’re already at that stage, attempting to move on seems reasonable. Reassess based on response.

    Indeed. But how do you–or Ally– reconcile this with: ““None of which gets around the more important point that ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency.”

    Note ‘before’! You move on and your partner indicates ‘stop’, you do. Ally says you should get consent *before* moving on. So he is disagreeing with you. Already, according to Ally, you have offended “a bare minimum standard of human decency.”

    Frankly, I think Ally should say he mis-stated, or overstated, his case. Then we could move on. His choice, of course.

  71. Rob says

    JohnHB @ 76

    Rob says

    @68 and others
    FFS, the rolling around eating tongues is already sexual touching. So, since you’re already at that stage, attempting to move on seems reasonable. Reassess based on response.

    Indeed. But how do you–or Ally– reconcile this with: ““None of which gets around the more important point that ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency.”

    Note ‘before’! You move on and your partner indicates ‘stop’, you do. Ally says you should get consent *before* moving on. So he is disagreeing with you. Already, according to Ally, you have offended “a bare minimum standard of human decency.”

     
    I invite you to read the remainder of the paragraph you partially quoted. Here, I’ll repeat it for you with emphasis added…
     

    I’m assuming you (or your sons/daughters) didn’t reach the eating tongues stage without consent. You know, one minute doing physics homework and then the next instant straight down their throat with your prehensile tongue? There would have been some edging up to each other, glances, little touches, eye contact, lots of eye contact, maybe some whispered mutterings or whatever. If all that went well you had consent. If it didn’t, or coercive or negative tactics were used to get to the tongue stage, there is a problem. See my comment at 38. It really is not fucking difficult.

     
    Now sure, there are many other ways, verbal and non-verbal, in which you can get consent before touching. Lets not forget that consent may be conditional on the activity, intensity, region, duration as well. It can also be withdrawn at any time. Some partners will want to rush straight to the chase (they’ll usually demonstrate that happily) while others, especially early in a relationship may want to dawdle or be happy to engage in some activities but not others. that’s part of the fun of the whole experience surely?
     
    As John Cleese said “You don’t have to go straight to the bloody clitoris”. Be a tiny bit empathic, you’ll both have more fun.

  72. Koken says

    It is worth observing here that people have very different degrees of skill in interpreting body language. One should not assume that there is a general and equivalent level of what is obvious.

  73. Ally Fogg says

    JohnHB
    You are now doing that thing of jumping on a casual turn of phrase and contrasting it with another turn of phrase and shouting “HA! GOTCHA! Everything you say is now null and void! You lose!”

    Which is a completely obnoxious dickwad act, and takes us firmly into the territory I mentioned in the OP, which is that these debates end up with people sounding like they are looking for loopholes to get around the law rather than actually discussing how to reduce sexual assault.

    But I’ll do you the credit of answering your point. For what it is worth, Jacobletoil pretty much covered my position back in [71]

    You seem to be really struggling to understand what I meant by this: “ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency.”

    “Ensuring one has consent” does not necessarily mean getting a contract signed in triplicate. It does not necessarily mean getting the person to say the precise words “I would very much like you to touch my breast now.”

    As I have already told you at least once, what it means is that you have reasons to believe that the person would want you to do that thing. When the little imaginary barrister in the cupboard jumps out, you would be able to explain that you did X because she had just done Y and said “Oh yeah baby” when I did Z… or whatever.

    As I also said above though, the amount of assumption you are making in your judgements there means you are taking a risk. So I would recommend that if you are in any doubt at all, you take extra care to ensure that your do have ongoing enthusiasm and consent, which may sometimes involve saying things like “do you like that?” and reacting to the answer.

    And that is not so you don’t risk ending up in court. That is so you don’t end up being an abusive dick.

  74. Ally Fogg says

    Koken, that is absolutely true and a good point well made, but it remains the responsibility of the individual to do whatever he or she needs to ensure there is consent.

    That means people who are less skilled at interpreting body language & NVC may have to make greater efforts to ask & discuss to remove doubt.

  75. Some Person says

    JohnHB [74],

    “None of which gets around the more important point that ensuring one has consent before touching someone sexually should be considered a bare minimum standard of human decency.”
    Where is the context dependency in this statement?

    I think you’re perfectly right to point out the contradiction – yet I think the solution is pretty easy: The enthusiasm inherent in “rolling around eating each other’s tongue” is probably considered to be “ensuring” by Ally. Under the British standard that is likely correct: if you are making out like that you *do* have reason to believe that it’s ok to escalate (step by step) and wait for the reaction. If Tom in the film had done that he would not have ended up in prison, because he’d have realized nothing was coming back. So basically, I’d say that Ally is arguing: if you’ve got an enthusiastic partner, that’s ensuring you have consent to escalate carefully.

    But as far the as the American affirmative consent policies are concerned, that’s a different matter, because they are demanding both ex-ante *and* ongoing consent for every different sexual act, which is not defined specifically. As a law professor recently pointed out, that could mean, in the extreme – but there has been no precedent about this – to ask for consent for every touch – mutually, theoretically, male on female in practice – or, later, for every thrust. And it may well be legally necessary in that case, because the “frozen” argument isn’t going away after initial consent. Someone may decide they don’t want it anymore and claim they froze (or at least weren’t able to communicate the retraction of consent in an intelligible way). Under the American affirmative consent frame not having gone through the (of course, undefined) steps to make sure someone was able to communicate lack of consent for every (undefined) sexual act (say, due to being frozen) would constitute rape. In other words: until there is an actual legal guideline establishing the steps necessary to make sure one hase “established” consent legally, this makes even actually consensual sex legally problematic, because it’s no longer the consent that is important, but the procedure that allows to ensure consent.

  76. Thil says

    @Rob @73

    Ok firstly maybe it is the case that anyone who would focus on this sort of thing for personal reasons (IE they want to know how much they can take advantage without braking the law) is an ass-hole, but you can’t just make it illegal to be an ass-hole.

    Secondly I reject the notion that anyone who wants to discuss the issue only wants to because they want to know what the boundaries are so they can push them. I know I have no intrest in making love to a girl who’s not enjoying it, I can’t imagine anything more off putting

    Thirdly I would say the fact that this directly bares on whether or not people go to jail is a good enough reason to want to discuss. Or is your attitude that since this is only likely to effects people who you think are ass-holes, it’s six of one, half a dozen of the other whether they go to jail justifiable (“justifiable” in a purely legal sense of the word), or not?

  77. Rob says

    Thil @82

    but you can’t just make it illegal to be an ass-hole.

     
    Sure we can! Don’t kill people. Don’t speed. Don’t commit fraud. Don’t commit perjury. Don’t sell fake pharmaceuticals. Don’t mislead people with advertising. Our laws are full of prohibitions on arsehole behaviour. The definition has changed and expanded over time as our society has evolved and new types of crime have become possible. And, before you say “but those crimes all involve harm or loss for the victim”, lets remember that sexual assault, rape or loss of bodily autonomy all represent harm and loss to the victim.
     

    Secondly I reject the notion that anyone who wants to discuss the issue only wants to because they want to know what the boundaries are so they can push them. I know I have no intrest in making love to a girl who’s not enjoying it, I can’t imagine anything more off putting

     
    I’m pleased to hear you feel that way. Just to be clear, my views on consent remain the same whether the activity is straight/gay/male or female aggressor. I will simply note that I have never met anyone who assumes consent as a given in a relationship having any interest in discussing exactly where the boundary line lies. Simply put. if you are pushing the boundary that hard you need to back off. That is not a legal matter.
     

    … this directly bares on whether or not people go to jail is a good enough reason to want to discuss.

     
    Come on. No one is going to jail for putting there hand on someones crotch during a make out session and removing it when told to. They may well if they refuse to remove it and are likely to if they proceed to rape the person. That’s gone from ‘just being an arsehole’ to being a criminal though. For those mythical multitudes who ‘have trouble reading signals’ see Ally @ 80.
     
    On that point. I have known more than one person with severe Aspergers. They were terrible at reading body language and facial expressions. It led to lots of problems in verbal conversation and they often stood uncomfortably close. However, I have never seen or heard of them making physical contact that was unwanted. In fact, they were generally quite uncomfortable with physical contact. It’s an excuse you get to use once or twice in a lifetime for a minor infringement. After that it’s a conscious choice and you have the option of making more effort to make up for your difficulty.

  78. Anton Mates says

    Some Person @36,

    I’m always confused by these metaphors. Drinking tea, borrowing cars. I don’t think they help clarify anything about the underlying logical structure of sex.

    Well, that’s a problem…clarifying logical structure is kind of the point of analogies, and most legal and ethical arguments proceed by analogy. What do you think the logical structure of sex is?

    Particularly not if it’s usually the same people who say that sex is an experience shared by people who now claim that it is basically a “do-ut-des” sequence of contractual exchanges.

    Not at all. “Do ut des” would be “I did you a sexual favor, now you owe me one.” With affirmative consent, you owe me nothing; all I can expect from you is what you actively choose to give me, right now. It’s as far from a contract as you can get.

    Is objectification – “If you want to *use* my breast for your sexual gratification, you need my consent to do so. If I want to *use* your penis for my sexual gratification, I need your consent.” – really the future of sex-positivism?

    Um, that sounds like the exact opposite of objectification to me. Objectification would be using someone’s *X* for gratification without obtaining their consent. We don’t ask most objects for their permission before using them, after all.

    WinEM,

    My belief is that nobody should force a sexual act on to another if there are clear signs that they do not want it, but in the throes of passion, such ‘clear signs’ may not necessarily fit the kinds of poetic and elegant narratives of entirely ‘rational behaviour’ you would appear to have in mind.

    Well, yeah. In the throes of passion—or in the grip of fear/confusion/drunkenness/etc.—they may not be sending clear signs of their refusal, or you may not be reading those signs correctly because they don’t fit your narrative. That’s exactly why it’s safer to wait for a clear expression of consent instead.

    StillGjenganger,

    I think you have that one comprehensively wrong. The only reason you need special safewords in kink is that the normal signals like ‘stop’, ‘you are hurting me’, ‘I do not want this’, do not work in that very special context.

    But that is the same context that WineEM claimed to apply to sex in general, what with all those “paradoxical and counterintuitive reactions” that occur.

    I’m not saying that everyone needs a safeword for sex.* I’m saying that if your objection to affirmative consent is “That’s not how communication works/should work during sex”, then that objection is easily knocked down, because kinky people have been pretty successful at figuring out how to safeguard consent under just about any weird-ass communication scheme you could imagine. Vanilla folks have an even easier time of it, since they can employ “normal” signals…like just asking the other person whether they’re enjoying themselves, and waiting for some variant of “yes.”

    *although I do think it’s a pretty good idea. I’ve found them to come in handy, and I’m awfully vanilla.

    Arguably ‘I do not want this – if you do not stop it is rape!’ is a universal safe word in the vanilla world.

    Plenty of things are safewords in the sense that if you say them, your partner will probably stop. But that’s not sufficient for a safeword to be effective; it also has to be something you will be able to quickly and easily say in that situation. Which can be a challenge in both the kink and vanilla worlds. Someone might not be able to say “I do not want this — if you do not stop it is rape!” if they’re wearing a gag, or if they’re trying to respect a particular role-play…or if they’re simply scared or confused or intoxicated.

    But, in kink as in vanilla, people understand that you can freeze up and be unable to use your safeword exactly when you need it most.

    Absolutely. Thus, safewords are not always sufficient to guarantee ongoing consent. They’re merely one of several tools it may be helpful to use.

    As for the pre-communication, that kind of thing its always good. But kinksters really need those negotiations because they do things that would be an immediate and violent turn-off for 99% of the population, including most other kinksters.

    No, that’s actually not why. If the population divided neatly into people who are always massively craving X, and people who are always violently turned off by X, there would be no need for negotiations. You’d just ask someone else, “Hey, are you into X?” and if they say yes you could immediately do X to them for the next seven hours without another word.
    But that’s not how people work. They’re often crazy into X when it’s the right time and place, and they’re with the right person, and they’re in the right mood. Change those factors and they’d be disgusted by it. Or maybe they love X for ten minutes and then they’re exhausted/overstimulated/panicked and want to stop.

    So communication is necessary. And if you want to minimize the amount of explicit communication that has to occur during sex, because it would ruin the mood or the scenario or whatever, then you have to compensate with pre-communication. And that applies to both kinksters and vanillas.

  79. lelapaletute says

    @Thil 15

    if so it seems kind of absurd to me to say whether or not you’re committing a crime is dependent on someone else’s thoughts that you have no way of knowing

    Except, you know, asking. And stopping and asking again if they response is in any way ambiguous. Which is kind of the whole point. If you find asking other people how they are feeling too boring/embarrassing/turn-off etc, then you probably aren’t safe to play with others yet and should go back to developing your humanity is my view.

    And oh my God still this. Still this. Still this infuriating pretence that it is IMPOSSIBLE to tell if someone is enjoying themselves in bed or not without forms signed in triplicate. For the most part, human beings are acutely sensitive to nuance, to body language, to facial expression. If you are failing to pick up on those signals in other areas of your life, for whatever reason, then you probably need to apply a more stringent standard, and it never hurts to seek an explicit verbal confirmation that you are both on the same page, no matter how sensitive you think you are. But for the most part, people KNOW when someone’s not into it. Whether that’s “I really don’t want this, but I’m too scared/embarrassed to say so, surely its obvious, why is he/she making me?” or “meh, can’t really be arsed right now”, people do know. If they fail to pick up on and respond to those signals, it is because (largely) their “I really really want to” trumps the other person’s “I don’t”, and they don’t WANT to pick up on them.

  80. HuckleAndLowly says

    @ lelapaletute 85

    And oh my God still this. Still this. Still this infuriating pretense that it is IMPOSSIBLE to tell if someone is enjoying themselves in bed or not without forms signed in triplicate. For the most part, human beings are acutely sensitive to nuance, to body language, to facial expression.

    You are wrong here; in fact reading facial expression or body language correctly is hard for a lot of people. In psychological studies of people’s ability to identify emotions from facial expressions, for example, college students get the identification wrong around a quarter of the time; high school students get it wrong around a third of the time, and younger kids get it wrong around half the time. Performance is a lot worse for body language. Men are slightly more likely to make the wrong identification than women, but it isn’t really a big difference. In other words, what you describe as “an infuriating pretense” is actually a fairly reasonable reflection of the facts.

    People also tend to be hugely overconfident that their judgments are correct,even when they are wrong. This means that, even though you clearly feel that you can read read facial expressions correctly, there is a good chance that you are reading them wrongly in many cases.

    So: don’t dismiss people who complain about being asked to “read minds” from facial expressions. They are making a fair point. Even though you feel like you can read facial expressions naturally 1) you probably can’t and 2) even if you can, most people find it hard to get right. This is why verbal consent is important. In fact, I would suggest that people who think they can read facial expressions are the ones who really should taught to ask for consent. People who know they are not good at reading facial expressions are aware of the problem, and are probably already more inclined to ask their partner if everything is ok.

  81. WineEM says

    @60 (Gjenganger) The ‘positive consent’ rules are good advice. They make perfect sense as a way of avoiding tricky situations and minimising the risk that someone gets hurt. But they are not a requirement, and you are not necessarily a rapist just because you do not follow them.

    I suspect this is probably how the law works in most countries around the world. However, we have reached a situation here in England, as you can see, where progressive folk like Ally and Alison Saunders do seem quite insistent that an expectation of ‘enthusiastic consent’ is exactly what the law stipulates and requires. (See, for example, the reply at 44: ‘If you are ever in a court of law and are asked “why did you believe you had consent to have sex with this person?” and you reply “because I didn’t get any clear signs that they didn’t want me to” then you have just pretty much ensured you will go to prison for a long time. And rightly so.’ )

    Now, while there may be pitfalls in placing such high faith in subjective emotion (and also the heavy hint that 100% of the responsibility of the outcome of a sexual encounter should rest with the person initiating that encounter and none with the person reacting to it), such things would not appear to be obvious to those defending this approach.

    Indeed, if some precepts put forward here were to become common understanding among the general public, and hence juries (such as the idea, for instance, that emotions like shyness or embarrassment, should by default, be considered as powerfully and thoroughly incapacitating as extremely heavy intoxication through drink or drugs, then actually any account of ‘enthusiastic consent’ will probably become largely irrelevant anyway, for a complainant can always maintain that the accused had still not studied their emotions closely enough, and that their subjective experience of the encounter should rightly be considered paramount.

    Ironically, I do think Ally (hi there, Ally!) 🙂 does mean well with this, (I’m not so sure about Alison Saunders), it’s just that he doesn’t get all of the logical implications which follow from some of these ideas.

  82. Ally Fogg says

    where progressive folk like Ally and Alison Saunders do seem quite insistent that an expectation of ‘enthusiastic consent’ is exactly what the law stipulates and requires.

    Nope, there you go again, putting words in my mouth.

    The law stipulates and requires a reasonable belief that you have consent to sexual contact.

    You do really seem to struggle with the meaning of the word “reasonable” though.

    (such as the idea, for instance, that emotions like shyness or embarrassment, should by default, be considered as powerfully and thoroughly incapacitating as extremely heavy intoxication through drink or drugs,

    Nope. It took me a while to work out what you were talking about and getting at with this stuff about incapacity to consent through alcohol and drugs.

    Then it occurred to me, you have got it completely upside down, arse about tit.

    The law on incapacity says that drunken consent is still consent. In other words, if someone is pissed as a fart but saying “hey baby, come play hide the sausage with me, I want you so bad right now” then she (or he) cannot turn around the morning after and say ‘yeah, I know I said those things but I was pissed so it doesn’t count.” In English law, it does count.

    The law says that if someone is unable to say those kinds of things, for any reason, which might be sleep or unconsciousness, might be drunkenness, might be drug-induced, or might be paralysis with fear and panic, then you cannot assume you have their consent to perform a sexual act with them.

    So it is not remotely that fear, panic, shyness or whatever is considered just as powerfully incapacitating as being shy or having a panic attack.

    It is very simply that you need to have reasons to believe you have consent to sexual contact. If you do not have reasons to believe you have consent, then you are potentially abusing or raping someone.

    The reasons *why* you do not have reasons to believe you have consent are completely irrelevant. They are not your concern.

  83. Some Person says

    Anton Mates @84,

    “Well, that’s a problem…clarifying logical structure is kind of the point of analogies, and most legal and ethical arguments proceed by analogy. What do you think the logical structure of sex is?”

    People’s mileage will obviously vary, but to me: It’s not contractual. It’s not about “using”. I think that’s a *huge* category error. If I want to hold a woman’s hand I don’t want to *use* it. I suppose you could argue on a neuro-philsophical level that we are all closed systems and everything we do we do for ourselves and our neural stimulation. But that’s entirely missing the lived experience, in my opinion. It’s about *giving* and *being given*, being wanted and wanting, about fundamental acceptance as a human, sexual being. The latter part is particularly important for why I think these metaphors don’t work – there’s passion, and most of all, egos involved in ways that aren’t rational in the way these metaphors suppose.

    Not at all. “Do ut des” would be “I did you a sexual favor, now you owe me one.” With affirmative consent, you owe me nothing; all I can expect from you is what you actively choose to give me, right now. It’s as far from a contract as you can get.

    Well, let’s put it that way: there’s no obligation, sure, but the experience is still split up into transactional elements, which I think is missing the main point.

    “Um, that sounds like the exact opposite of objectification to me. Objectification would be using someone’s *X* for gratification without obtaining their consent. We don’t ask most objects for their permission before using them, after all.”

    Well, let’s put it this way: having consent doesn’t make “using” less objectifying to me. I mean seriously, if I said to you: I want to use you for sex, may I? Would you find that to be the oppositie of objectifying? “Using” is an entirely wrong category to describe sex (that is not explicitly seen as a transaction, which is totally possible, of course. If I go to a stripclub, I use the strippers for sexual gratification. They get paid for their consent to being objectified for my sexual gratification.)

  84. StillGjenganger says

    @WineEM 87.
    I disagree with Ally’s take on this, but I do not think the current UK law is a problem. Depends how it is interpreted, of course. The fact that someone could have said ‘stop’ but did not, obviously indicates the likelihood of consent. It is just not enough by itself (because people can freeze up, etc.). You do not necessarily have to ask, or get it in so many words. But as a minimum you need some kind of positive signal that this person does consent, not just total passivity and the absence of a ‘no’. And the less well you know her and the more drunk / surprised / out of her depth she might be, the more you need to be careful.
    Beyond that you should obviously try to be alert to her, and allow for the possibility that she might freeze, or change her mind, or be doing something that makes her feel unhappy either now or next morning. That is just human decency. Similarly, she should try to be conscious of what she is and is not willing to do, and try to say stop before it gets too bad. After all you both want it to have a happy ending. But you cannot push the responsibility away. And if you have absolutely no argument in your favour beyond ‘well, she should have said no’, then maybe you do deserve what is coming to you.

  85. StillGjenganger says

    There was a very illustrative example in today’s ‘Metro’: A taxi driver had sat down next to his fare, slid his hand up her thigh, and said that he wanted to have sex with her. He did apparently take ‘no’ for an answer, but he got six months for sexual assault, and I think that was completely justified. Would you agree that he should likely have been acquitted if this had been a girl who had just invited him up for coffee at two in the morning after a dancing evening? And that the case would never have made it to court if it had happened to his current girlfriend?

    This shows pretty well that it is not a question of having to get explicit consent ahead of time. It is a matter of context. In some situations that hand on the thigh is a criminal offense. In others you can presume you are allowed to try, and rely on the other person to signal whether to continue or desist.

  86. Ally Fogg says

    Would you agree that he should likely have been acquitted if this had been a girl who had just invited him up for coffee at two in the morning after a dancing evening? And that the case would never have made it to court if it had happened to his current girlfriend?

    I’d be wary of how I would phrase that, because it could easily be interpreted as “if you have been invited up to a girl’s flat at 2am then you have the right to slide your hand up her skirt” or “if you have a girlfriend you are entitled to etc…”

    But in practice I think you are correct, I very much doubt either hypothetical would make it to court, and I don’t think anyone is marching with placards to get that situation changed.

  87. StillGjenganger says

    @Ally 92
    Sounds like we agree. These are not entitlements – and depending on the circumstances it could still be a complete no-no. It just means that in the absence of further information, it could be reasonable to try it, and see what answer it got you.

  88. WineEM says

    Right…. so ….

    In this piece back in February, Ally, you contrasted the concepts of ‘yes means yes’ with ‘no means no’.
    http://freethoughtblogs.com/hetpat/2015/02/03/men-and-boys-need-positive-consent-policies-too/

    Now (I’m not trying to traduce you here), it just seems to me logical that if you are asking for a burden of proof above and beyond ‘no means no,’ (i.e. above and beyond the absence of definite signs and signals of non-consent, as you insisted on at 44.), then that is, inevitably, demanding what you and SWJ commonly refer to as ‘enthusiastic consent’. Isn’t it? What exactly is supposed to be the difference? Or does ‘enthusiastic consent’ only ever refer to verbal communication?

    “So it is not remotely that fear, panic, shyness or whatever is considered just as powerfully incapacitating as being shy or having a panic attack “

    That’s strange, Ally, because in 14 you appeared to claim that they should be considered as being that powerful. You don’t want this to become a common understanding, or do you stand by those ideas? I was never claiming it was that way in law.

    Also, “shyness or whatever is considered just as powerfully incapacitating as being shy “

    Eh?

  89. StillGjenganger says

    @WineEM 94.
    I argued ‘enthusiastic consent’ at infinite length with Lelapaletute, but she managed to convince me in the end. ‘No means no’ means that you stop when you are explicitly told. ‘Positive consent’ means that you need an actual reason to think she consents, not just passivity and silence. ‘Enthusiastic consent’ is either a misleading name for positive consent, or a minimum requirement that people must not only accept having sex, but must be running over with eagerness.

  90. Ally Fogg says

    Wine EM, you are so busy playing GOTCHA and trying to prove you have somehow caught me out that I literally do not understand what you are trying to say, what point you are trying to make.

    But let me try. The difference between ‘no means no’ and ‘yes means yes’ as a standard is the difference between saying

    “You have consent to sexual activity unless you are clearly given the message No”,
    and saying
    “You do not have consent to sexual activity unless you are clearly given the message Yes.”

    Now, separately to that, I have always argued that the best rule for us all to follow in our sexual activity is to look for enthusiastic consent. If the other party is not showing enthusiasm, you shouldn’t be having sex.

    I am pretty sure that I have never argued that if your partner is not showing active enthusiasm at all times then you are a rapist who should be in prison. If I ever have said anything that could be interpreted in such a way, then obviously I wasn’t expressing myself very well.

    That’s strange, Ally, because in 14 you appeared to claim that they should be considered as being that powerful. You don’t want this to become a common understanding, or do you stand by those ideas?

    I did no such thing. In [14] I explained how people often react when they are being subjected to a sexual assault or rape. There is absolutely nothing in there which is intended to contrast or compare to the effects of alcohol, which is a completely different argument. You were the one who invented that comparison, not me.

  91. Ally Fogg says

    Also, “shyness or whatever is considered just as powerfully incapacitating as being shy “
    Eh?

    I meant “as powerfully incapacitating as being drunk, obviously.

  92. WineEM says

    @96 : well if it’s any consolation Ally, I do think I can see the contradiction fairly clearly at the moment in my own mind, but I don’t want to express it right now, for fear of making you any more cross! 🙂 A bit worried you’ll kill me (or cyberkill me or whatever), so I think I’ll leave it for a while. 😉 I’m not ‘out to get you’ (although proving you wrong can often be fun), it’s just a matter on which we have some strong disagreements, that’s all.

    But anyway, this, Gjenganger @90:

    “You do not necessarily have to ask, or get it in so many words. But as a minimum you need some kind of positive signal that this person does consent, not just total passivity and the absence of a ‘no’.”

    Yes I can understand why some people are attracted to this kind of approach but I guess I worry that it doesn’t account for the potential full range of human behaviours. I mean, what for example, if a woman’s particular kink in sex is to be completely passive and act like a sex doll, not taking any active measures herself? Say she had never communicated this, but regularly expected partners to intuit it. Then perhaps the only case the accused could present in court would be to say that he did things quite slowly, (indeed there was quite a long pause in the BBC documentary before the actual act), that she seemed fully conscious and unimpaired by drink or drugs, and that she trusted she was an intelligent agent who could say no at any time. Or then, what if a woman were to deliberately use sex as a source of power in this kind of way? To be deliberately passive, so that later the accused would have no narrative of ‘positive consent’ at all? So I guess I just think there should be a bit more of a balance here: there have been many responsibilities and expectations laid at the door of the person initiating the act, but none mentioned, as far as I can see, for the person who decides to cry foul and call it rape.

  93. StillGjenganger says

    @WineEM 98

    That one is easy to answer. If someone like your ‘behave-like-a-like-a-sex-doll’ woman invited me into her bedroom and then simply stayed silent and unsmiling like a wax work, without any prior warning, I would decide that there is something wrong here and stop. If possible I would talk with her about what as going on, if that failed completely I might call an ambulance. It is not that I cannot see the fun in that kind of sex (though it is not exactly my kink), but when you go that far way from normal practice, you need agreements and limits in advance, like the BDSM people do. Anything else is simply too risky. What is the fun in being able to do whatever you want, if you have no idea what action of yours might cause a breakdown – or a call to the police? I suppose you might gradually develop that kind of kink in a close relationship even if you absolutely refused to talk about it, but you would have to start by knowing each other quite well and being sure that what was happening was indeed welcome. And I still would not recommend it.

    As for your example woman, if she wants to do that kind of stuff with strangers without any pre-arrangement, she is asking for more than any sane person would give her

  94. worksfromhome says

    I’ve followed this discussion with a combination of interest and despair. The latter because I struggle to fathom the motivation of the posters who seem to think that requiring positive indications of consent is an unreasonable baseline.

    The case argued by WineEM (#98) is a special case of the “but what if there’s someone whose kink is sexual activity in the absence of positive consent and *without* prior explanation of this?” argument. I fully agree with StillGjenganger (#99) that if such a person existed then its just tough luck for them. Settling for sexual activity in the absence of positive consent *with* prior explanation doesn’t seem too unfair a compromise. Particularly given that if you do find yourself having sex with someone who gives no indications of positive consent (and hasn’t already explained that this is their thing), you’re very likely raping someone and not having sex with someone who has that very specific desire.

    The ridiculousness can be thrown into sharp(er) relief by considering the following modification: “but what if there’s someone whose kink is sexual activity with explicit negative consent and without prior explanation of this?”. i.e., this hypothetical person desires to have sexual activity forced upon them and will actively resist at the time, and, furthermore, they refuse to explain this in advance and insist that others must intuit it. Should people be allowed to force sex on anyone on the off chance that the other person has this specific kink? Of course not, this is clearly stupid in the extreme.

    Bottom line is that if you happen to have a kink that requires violating standards of consent, you should make this clear to your partners in advance. Anything else is to endanger other people. Right now we are seeing a shift from a “no means no” standard of consent to a “yes means yes” standard (though as discussed in previous posts this isn’t necessarily a verbal yes, and if everything has gone happily up to this point minor, tentative escalation as means of gauging consent is probably fine). I think this is excellent and reflects the fact that rape victims who do not express negative consent are far more prevalent than hypothetical people who refuse to give consent and refuse to explain that they are refusing to give consent. That anyone struggles to see this as a good thing I find worrying.

  95. Melissa Trible says

    For the “likes being sexually passive” types, I think a reasonable approach might be… essentially, explicitly prompt them for a “no” (eg “Just say the word and I’ll stop”), then wait a bit before escalating further. Something like that would likely break up any panic-freeze (an implied “I am explicitly giving you permission to say no” gives a locked-up brain a trail to follow), but still let Ms. Sex Doll maintain “deniability”.

    But, frankly, I’d rather have 100 women (or men) unwilling to ask for what they want not get what they want than have 1 woman (or man) have sex she (or he) really doesn’t want because of brain-lockup or fear. And, well, the women with that particular kink should take a page from the kink community at large. Don’t expect partners to intuit it, tell them well before sexyfuntimes start “I’ve got a thing for being “forced” to have sex, so if I’m not actually saying “no”, you can take it as a yes” or whatever.

  96. Ally Fogg says

    WineEM [98]

    Oh, don’t hold back. I assure you, there is probably very little you could say right now that would cause my opinion of you to descend any lower. Knock yourself out.

    As a point of conversation though, a long, long time ago I did once go to bed with a woman who completely froze at the first touch and just lay there staring at the ceiling, completely rigid, not responding or reacting to anything I said.

    I kind of puzzled over it for a minute or two and then got up and went and made a cup of tea and sat smoking in the next room until she emerged (it was in my flat). To cut a long story short, it later turned out that she was in fact having a very severe anxiety episode related to past trauma.

    Very lucky I fancied a cup of tea and a ciggie at that moment, because obviously under those circumstances any normal person would have assumed that she was in fact playing out a bizarre kinky ritual of pretending to be a sex doll while completely forgetting to mention it to me.

  97. Some Person says

    Melissa Trible [101],

    “But, frankly, I’d rather have 100 women (or men) unwilling to ask for what they want not get what they want than have 1 woman (or man) have sex she (or he) really doesn’t want because of brain-lockup or fear.”

    I think there’s no need for strange examples to come to the conclusion that this is indeed the direction in which the social consensus about the risk associated with sex/not-sex is moving. And I think there is a tacit hope in some- conservative – quarters that this will indeed lead to less sex being had by people who aren’t in socially condoned forms of relationships. And I think there is a tacit assumption in some – progressive, feminist, yet tacitly sexist – quarters, that this will not change anything with respect to how people are having sex – because of their deeply held prejudices about men (“boys will be boys”) which they usually rationalise for themselves as “socialized” – but merely give women more power ex-post to make their perspective the socially accepted version of “truth”. They consider this to be fair given the current attribution of risk for sex. And maybe it is.

    Personally, I think there will be an effect of US-style yes-means-yes policies, and it’s going to be either a shift in female expectations towards male behavior (ie – women will no longer demand the kind of masculine performance of overwhelming desire towards women, women will actually be ok with being asked for sex like they are asked if they want a cup of tea) or a huge backlash, because if the result of this should turn out to be that happy sex was *actually* not had 100 times to avoid one accident (as sexual predators won’t care about what the rules are anyway), the current consensus, which I think is accurately illustrated by your statement, may well change again.

    Personally, I find the current risk-consensus outlined by you perfectly reasonable, and worthy of support. But I am apalled by the way most people assume that the behavioral shift needs to happen among men, when it’s something that requires change on both sides, and I’d say among women more than among men. And I am apalled by the lack of *practical* advice in this matter that could actually help good-willing women and men to get better at talking about their desires with the people they desire. People don’t *know* how to do this, by-and-large. One cannot change laws without giving people an actual chance to live within the new confines.

    Again, that’s said with respect to the “yes-means-yes” policies currently becoming the norm on US-campuses, not with the current British law as presented in the film and here, which I consider to be by-and-large functional with respect to sexual self-expression (and for men, being able to present masculinity in a way most women desire).

  98. WineEM says

    ” I assure you, there is probably very little you could say right now that would cause my opinion of you to descend any lower.”

    Cheers, Ally, charming! 🙂 Oh well, for what it’s worth I think you’re an ok kind of guy (despite some significant flaws) and I’m fairly well used in my life to getting knocked around.

    Anyway, from 88., to quote you directly from there:

    “So it is not remotely that fear, panic, shyness or whatever is considered just as powerfully incapacitating as being [drunk] or having a panic attack.”

    Now, in 14. you gave a list of factors which might, in some particular combination, cause someone to ‘freeze’ (to use your word), i.e. to be rendered into a state of total incapacity to give consent, some of which come across as quite serious, and others perhaps arguably a bit less so:

    “This is too embarrassing, this is too awkward, I don’t know what to say, I don’t want to hurt his feelings, I don’t want him to lose his temper and get angry, if I just don’t react and pretend to be asleep he will get the message and stop, he wouldn’t really follow through on this would he? He’s not a rapist, surely? I don’t want to cause a fuss and wake someone up in the other room…” and a thousand other thoughts beside and they all run through the mind at a hundred miles an hour and the impact is that you freeze and don’t respond as you might rationally assume you would in the cold light of day…”

    So, in other words you were arguing, that these sorts of things should be considered incapacitating to that sort of extent.
    (I guess people will just have to decide in their own minds whether all of that is entirely sensible. )

    Oh yes, sorry, also, in 96. you say that you were merely describing “how people often react when they are being subjected to a sexual assault or rape” but of course 14. wasn’t prefaced at all in that way, you merely alluded to stress or types of stress.

    Indeed, the whole point of the discussion was to establish what circumstances exactly do constitute sexual assault and rape, so I don’t think you can very well pull off that kind of circular reasoning, thank you very much! 🙂

  99. Marduk says

    #96

    Its opt in and opt out. In fairness the Eton and Oxbridge front bench have been insisting since 2010 they don’t understand the distinction in the context of restricting people’s use of the internet, being drafted into various schemes and in failing to offer consumer protection to vulnerable people against their funders. But I think everyone else understands that opting in is far better and safer than opting out as a test.

    “Enthusiastic consent” is (c)2014 Jessica Valenti actually. She is herself very confused about this and it has changed meanings as we’ll see.

    Originally, it works on the basis that someone might “opt in” but not really mean it and it is up to the other party to work out what they really want and don’t want. I agree with this as an advisory, if you don’t feel comfortable still don’t do it whatever they say obviously. But as a standard this is both unworkable and troublesome in that it returns us to the idea that the judgement of consent can be based on what one person thinks rather than what another person explicitly indicates (albeit in the direction of negation but this asymmetry is confusing).

    Even in her own argumentation it is totally fucked up:

    “Sex is not rocket science. Human desire is complex, yes, but you don’t need an advanced degree to determine whether the person you’re being amorous with is into it or not. Grabbing you closer: Into it. Lying there silently staring at the ceiling: Not into it.”

    Thus Jessica returns up to the 1970s and the classic debate around what constitutes “asking for it”.

    To understand what she was up to here, you have to understand she (and Marcotte was very active in this also) also had another agenda which was to generate the conclusion someone couldn’t be blamed for not saying no which was the Sulkowitz “mattress girl” case at the time. Unfortunately it ends up with not saying no doesn’t mean yes and saying yes doesn’t mean yes, but no means no but that shouldn’t be relied on as the only form of no. And no amount of claiming “it isn’t rocket science” is going to help anyone with that kind of mind-bender.

    To be honest I think she sort of out-foxed herself in terms of how the arguments were supposed to work. Eventually she came to recognise that positive consent was the solution here in and of itself and then started to claim that by enthusiastic consent she just meant positive consent all along (which is not true as the example demonstrates, there is no positive consent given in that scenario, even assuming we can interpret body language to say something about sexual consent, its a “not no” and a “no” and so doesn’t even work on its own terms).

    When we ask why confusion exists… it really isn’t complicated until you start playing games with it.

    #98

    I don’t know if there exist people who want to be that passive, the more common thing is people who want to be borderline assaulted to be frank. What you do is this: exercise your right not to do it, just like everyone can always assert their right not to do things they are uncomfortable with or causes them risk, it isn’t complicated.

    Underlying all this, very quietly in the background, seems to be a strange sort of descant argument that (a) men are animals who should/can be forgiven for undergoing virtually any degradation to ‘get sex’ and that (b) men are obligated to perform if their partner ‘consents’. This appears from an odd confluence of feminist cynicism about men as sexual beings (this is also what leads them to express things in terms of the law when they should be appealing to men as people with thoughts and feelings) and standard issue ‘bloke’. I agree with Ally that part of this is really to consider men as human and to encourage men to think of themselves that way also.

  100. StillGjenganger says

    @Some Person 103
    Great Post

    @worksfromhome 100
    I can find a half-way reasonable explanation why people find positive consent so hard (there are surely less reasonable ones too). I have been there myself. Look at the various messages we are getting; ‘Even if you are doing something that is terribly painful and damaging, it is an imposition to expect people to tell you to stop. You must figure that out yourself’. ‘Enthusiasm is the minimum requirement’, ‘.You must ask explicitly’. ‘Every time, for every move’. ‘But just because people said yes last time, it does not mean you can assume consent’, ‘It makes no difference if you are married and have been doing this weekly for years’. Add them up and it starts sounding like you need to check from minute to minute – without information – whether all of a sudden you are raping someone. If you put it like that only a mind-reader could cope. And, indeed, even people who are fully on board start getting ‘consent paranoia’, see for instance . here Add to that 1) the natural resentment at being told that you have been a semi-rapist all your life and must change everything, and 2) the sincere confusion and ignorance that many feel. Lots of people (I have been there) feel that sex is some kind of mystery, that it is totally unknowable how people ever get to it, and that most likely no one will ever want you. If you are then told that unless you are a mind reader or some woman is drooling with desire at the sight of you, you are not even allowed to try, … Well, people understandably reject that message.

    It gets easier once you reduce the message to something that people can get their heads around, and that does not require them to wait for boundless enthusiasm or treat their long-married girlfriend with the same care as an unknown first-timer.

  101. StillGjenganger says

    @WineEM:
    I am sorry to say it, WineE, but Ally is right: you have this one backwards. I would agree (as Ally might not) that if someone makes a considered judgement that she would rather come across for sex than be embarrassed in front of her friends (or walk home in the rain), she has herself judged that the sex is no worse than the alternative. Voted with her feet, as it were. But if someone really does not want it and will be deeply hurt as a result, but is unable to produce that no, we need to say: “She wants to say no, but cannot. I need to respect that”. Not ” Ha! she did not say the right word. I can plow on as I like!” One might think that some reasons for not saying no are silly. I would certainly recommend that people who fear they might be raped should think through their limits in advance, and mentally train a response where they say NO! when their limits are breached. Much as BDSM subs are expected to decide on their limits and share them honestly – and use their bloody safeword when that is how they feel. But, regrettably, it is a fact that people may sometimes NOT say ‘no’, even when that is what they want and ought to do. And while no one can expect us to do miracles, we do have an obligation to take that into account.

  102. Ally Fogg says

    WIneEM [104]

    Now, in 14. you gave a list of factors which might, in some particular combination, cause someone to ‘freeze’ (to use your word), i.e. to be rendered into a state of total incapacity to give consent, some of which come across as quite serious, and others perhaps arguably a bit less so:

    Well, almost.

    I composed a little fictitious mental narrative to illustrate what might be going through someone’s mind at the point where they are not behaving as you might rationally expect someone to do (ie just scream NO! and fight someone off)

    It was never really intended to be a list of factors which would combine to cause someone to freeze.

    If you want to be really technical about it… what is most probably really causing people to freeze is the release of adrenalin and various other hormones which are then experienced with a string of cognitions which may be more or less conscious but which are actually subsequent to the neurophysiological response, which is the antecedent. One consequence of adrenalin surge can be that if the person can neither fight nor flee they will freeze. Their conscious mind then tries to rationalise that, which is what the experience feels like.

    So, in other words you were arguing, that these sorts of things should be considered incapacitating to that sort of extent.

    Not really, in the sense you are using. Alcoholic incapacitation and psychological freezing are categorically different. One is a predictable intoxicant. Someone drinks alcohol, they get drunk. They get sufficiently drunk, they pass out.

    An anxious, panicked freeze is categorically different to that. The only thing they have in common is that you could say there are circumstances where they would prevent people from being able to express their lack of consent to sex.

    But has all this cockwomblery just been about you being unable to believe that someone might react to being raped by freezing and not properly conveying their lack of consent. Really? Is that it?

    Because if so, you should have said so. I’m sure we could all have provided you with endless examples and clinical references if that is what this is all about.

  103. WineEM says

    you being unable to believe that someone might react to being raped by freezing and not properly conveying their lack of consent. Really? Is that it?

    Well I’m open to the idea, but I’d just doubt there’s an absolute consensus amongst psychologist as to how often this happens , especially in the absence of a threat of violence (and BTW there you go again, referring to ‘rape’ whilst in the process of discussing what this actually might be!)

    I’d just say that it’s not completely obvious to the uninitiated (I mean during sexual encounters without any force or threat of violence), and it does raise some fairly fundamental questions about the whole concept of human agency, that’s all.

  104. Ally Fogg says

    Well I’m open to the idea, but I’d just doubt there’s an absolute consensus amongst psychologist as to how often this happens , especially in the absence of a threat of violence

    I’m not sure how common it is either. It is one of many different sexual violence scenarios and one of many different ways people can react. I’d hazard a guess it is a large minority, but not a majority, of all rape victims, but who knows? All we know is that it definitely happens and not that infrequently. And your phrase ‘threat of violence’ is complicated!

    and it does raise some fairly fundamental questions about the whole concept of human agency,

    No. Really. It doesn’t.

  105. worksfromhome says

    @Gjenganger 106.
    Thanks for the response and for the article on ‘consent paranoia’ (the term is new to me, but the experience familiar). I have nothing but sympathy for those whose self esteem is so low they can’t believe anyone would happily have sex with them.

    @WineEM 111.
    Holding out for an ‘absolute consensus’ on anything, particularly an estimate of the rate of something, especially the rate of something as hard to gather data on as the rate of freezing during rape is a good way to make sure you never have to change your views.

    Also, I would suggest the number you are actually interested in is the ratio of the number of people who freeze when raped to the number of people who inexplicably freeze while actually consenting. It seems to clear to me, even without direct data, that this ratio is high.

  106. JohnHB says

    79 Ally

    Thanks for the dickwad. I generally don’t call people rude names. Seems, well, a bit macho. But your blog, your rules. And in some ways, it is rather reassuring. Go, guys!

    If you go back to 61 Lucythoughts, you will find that I agreed with her general approach that human sexual behaviour is complex and needs sensitivity. Before you did. BUT, as she pointed out–and and I agree–prior consent is neither necessary nor usually sought. To be a decent human being. If you are told to stop, you do. Nothing I have said contradicts this.

    Your claim: “ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency.” Clearly contradicts this. Or appears to. And, in fact, I suggest is not what generally happens in intimate situations. You try, get told to stop, and you do. ‘Reasonable belief’ rarely comes into it. That is post hoc analysis.

    In non-intimates situations, the rules are different. I believe we all know that and generally don’t confuse the two. If you are simply posing this rule for situations between non-intimates then you are correct, and I apologise for misunderstanding. But I am not entirely sure you were.

  107. JohnHB says

    Ally 79
    One more time.
    “You seem to be really struggling to understand what I meant by this: “ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency.” [That is correct, I am struggling. Because on the face of it, what you state is absurd. I gave reasons why.]

    “Ensuring one has consent” does not necessarily mean getting a contract signed in triplicate. [Never claimed it did. I may or may not be a dickwad (not sure of the qualifications), but I am not a total idiot.] It does not necessarily mean getting the person to say the precise words “I would very much like you to touch my breast now.” [Good clarification. Consent doesn’t mean explicit, verbal consent. But you did say ‘before’, which was my complaint.]

    “As I have already told you at least once, what it means is that you have reasons to believe that the person would want you to do that thing” [See, that is where we differ. Both theoretically and practically, I think.]

    To be clear:

    “ensuring one has consent *before* touching someone sexually should be considered a bare minimum standard of human decency” DOES NOT MEAN NOR (in my view) IS IT THE EQUIVALENT OF “you have reasons to believe that the person would want you to do that thing”. Compare ‘ensuring’ and ‘reasons to believe’ for a start…

    To be further clear, and this was my initial complaint: In the context of breast touching (in an intimate context), it is rarely preceded by any reasonable definition of actual consent; nor is attempting it in any way immoral. Continuing, once it is indicated unwelcome (by various means), it may become so. But not the venturing, itself.

    On the ‘reasons to believe’ matter. That is insufficient. At least in law. Those beliefs–for whatever reasons or or none–must by others be considered to be reasonable.

    In short, Ally, I believe (reasonably in my view, others may differ) that you fail all around.

  108. JohnHB says

    @72 Consent Workshops

    “Here is, I presume, as much information as is available to anyone at present.”

    You were wrong, and in our squabbling it is a pity this has been overlooked. As the links I provided made clear, these sessions are heavy on feminist theory and light on human understanding. Or not. You may like to devote a blog to them, since many young men will be encouraged–or forced–to attend them.

    Apart from the clear ideological slant and irrelevant topics, my major objection is that there appears to be no plans to evaluate ‘Consent Workshops’ worth.

    You can almost see the forthcoming debates: Look! Rapes are down, we must increase them. Look! Rapes are unchanged, we must increase them. That is why you set target ahead of time when setting up a social engineering venture. If everything counts as success, nothing counts as failure. And vice versa. And we have no idea how to solve problems nor where to spend our resources.

  109. StillGjenganger says

    @JphnHB 115
    Judging from what else Ally says, I suggest that ‘ensure’ is supposed to mean ‘make sure within yourself that you have consent’, not ‘take active steps to check that you have consent’. Which would make your debate about his phrasing rather than about the substance.

    As for sexual touching, doing it in the wrong circumstances is (rightly) a criminal offense. See my post 91. You do not need to ask first if she wants it or not, but you do need to be sure that you are in a situation where it is appropriate to try.

  110. lelapaletute says

    Haven’t weighed in on this one as I’ve already said pretty much everything I’ll ever have to say on it in threads passim, but having trawled through the whole thread I wanted to sum up my point of view:

    1) This is why women are scared and angry, and why ‘Social Justice Warriors’ or the dreaded feminists will not stop going on about consent, about rape, about safety, about victim-blaming, about yes-means-yes. Because in a 100+ comment thread about consent, the majority of the comments (and the most dogged commentators) are men desperately resisting the responsibility for ensuring consent being deposited squarely on the active party, and are instead cross-referencing every post their opponents have made trying to trump up minute inconsistencies of phrasing, reductio ad absurdum – WineEM excelling himself with his putative Schroedinger’s sex-doll, I mean wow that’s some creative rape-apologism there! – and generally insisting on a codified boundary for ‘what will get me into trouble’ rather than sincerely seeking to understand how to become better and critically safer sex partners. If this is a representative sample of men’s attitudes (I pray and generally believe it is not) then all I can do is thank God I’m in a monogamous relationship with a good’un and no longer have to waltz in the minefield that is modern sexual relations. Which is a bloody depressing conclusion.

    2) Ally @102 – this short story is a snapshot of exactly what to do in that situation, makes me want to hug you (with your consent, natch 😛 ) and gives me hope that actually, the majority of men are decent, thoughtful guys like you, not wrangling brow-beating eejits like others I could mention. So cheers.

    3) Gjenganger, I think you are doing a great job of bridging the gap between the two far ends of this debate with your usual emollient calm. And I agree with everything you’ve said! So all those ten-page wrangles on consent we have had back in the day have clearly done us both some good 🙂

  111. lelapaletute says

    Ooh and finally (4) – a lot of the problem seems to be that people are talking about one-night stands and non-committed sex with relative strangers, to which the frequent response is “well, over time you get to know a person better and a lot more becomes tacitly understood”. This vexes those who want to talk about the one night stands, and who think the idea of having long, in-depth discussions about boundaries etc is completely counter to the intent of such ‘love-em-and-leave-em’ fly-by-night liaisons. Weeeell, got to say tough luck on that one. Sex is complex and can be wonderful, but like everything wonderful it requires work. This can either be the emotional work put in on a cumulative level over the long term in a relationship (of whatever type and structure); or it is having to do a lot of effectively sex-admin work on the hop, establishing explicit consent from someone you do not know well enough to necessarily assume much at all. You pick the work you want to do depending on the kind of sex (and lifestyle) you’re after, I guess. Women (and gay men) have always known sex with people you barely know is high-risk, both physically and emotionally; if straight men are now waking up to this as well, it can only be of benefit to everyone. Doesn’t mean it can’t also be bloody good fun; but you have to get good scaffolding in place, if you don’t want to take time to build brick by brick.

  112. StillGjenganger says

    @Lelapaletute
    Thanks! And yes, it did do me a lot of good.
    I do think that it is a little too much to

    [put] all the responsibility for ensuring consent […]squarely on the active party

    . He has more responsibility, yes, and cannot wish that away. But both parties want things to work out, and both parties must contribute. If you look at BDSM, where it is really clear which is the active party – and where the risks are higher – the bottom still has responsibilities: To work out his limits and triggers, to give all relevant information to the top, not to lie or demand activities that he has no reason to think he can handle. Other things fall equally on both: ‘Do not play while drunk’, ‘do the necessary talking beforehand’. And to use his bloody safeword (if he is able to) before he starts getting harmed. As an ‘advice-to-submissives’ web site (run by a submissive) put it: “It is not just about you – imagine how he will feel if it turns out he has harmed you without meaning to.”

  113. Ally Fogg says

    Thanks Lela, brilliantly put as ever.

    men desperately resisting the responsibility for ensuring consent being deposited squarely on the active party, and are instead cross-referencing every post their opponents have made trying to trump up minute inconsistencies of phrasing, reductio ad absurdum – WineEM excelling himself with his putative Schroedinger’s sex-doll, I mean wow that’s some creative rape-apologism there! – and generally insisting on a codified boundary for ‘what will get me into trouble’ rather than sincerely seeking to understand how to become better and critically safer sex partners.

    This is precisely what has been going on. And it is why I have been getting so frustrated and annoyed with a couple. Whether it is WineEM trawling back through my previous posts to find some inconsistency as if that would make my position null and void or JohnHB getting caught up on exactly what I mean by the word “ensure” or “before.”

    It reminds me of when the Bill Clinton impeachment hearings were going on and they ended up arguing about the definition of the word “the.”

    Guys, please, take a look at yourself and ask yourself what constructive, positive objective you are trying to achieve here? You don’t need to tell me or anyone else, just look deep in to your hearts.

    Because to the rest of us, it does indeed look terribly, terribly like your only aim is to avoid responsibility for ensuring that you have consent to sexual activity.

  114. StillGjenganger says

    @Lela, Ally,
    From my past experience, I would say that people are looking for some behaviour code that they can understand and follow, that will guarantee that they are decent people and not rapists, and that does not tie them totally into knots or force them to retire into celibacy. Nor do I find that particularly despicable. If you do not understand what is required and if failure to comply means you are a rapist, what do you do? And I think (well, I would hope) that people accept that things can go wrong even if you follow the rules, and that they would do their best to avoid that. Some of the demands we see – like avoiding even moral pressure and waiting for active enthusiasm in your partner – are definitely excessive. On the other hand some people do have to make some changes before they (and others) can be sure they are safe.

  115. Ally Fogg says

    I would say that people are looking for some behaviour code that they can understand and follow, that will guarantee that they are decent people and not rapists, and that does not tie them totally into knots or force them to retire into celibacy.

    I get that, Gjenganger, and it is in large part why I have persisted with this discussion more assiduously than I often do on these blogs.

    THe problem I have though is that from my perspective I (and lots of others, including you and Lela) have been trying to serve up exactly that, a behaviour code that will (get as close as possible to a) guarantee that they are decent people and not rapists.

    That behaviour code is along the lines of “always do whatever you need to do to be sure that the person you are having sexytimes with is happy and fully consenting to what is going on. And if you cannot be sure that the person is happy and fully consenting, don’t do it.”

    That is it. That is all. It really is as simple as that.

    However some are refusing to accept that. Instead they are going to extraordinary lengths to try to make a case that the above is impossible, unreasonable, unworkable, that they don’t understand what the words mean, that there may be bizarre hypothetical scenarios where it does not apply etc etc etc.

    The more they do it, the more twattish they appear and the more obvious it becomes that what they are actually doing is seeking excuses as to why they might not have to do whatever is needed to be sure that the person they might have sexytimes with is happy and fully consenting to what is going on.

  116. StillGjenganger says

    @Ally 123
    I think I share your opinion of WineE and John HB. But you put it as “always do whatever you need to do to be sure that the person you are having sexytimes with is happy and fully consenting to what is going on. And if you cannot be sure that the person is happy and fully consenting, don’t do it.” I understand you as saying “You have absolute responsibility for the consent and happiness of your partner. If anything ever happens that your partner did not fully consent to, you are a rapist. No matter what precautions you took. No matter what you did or did not do.”

    I do not know if I am misunderstanding you here. Certainly I would aim to avoid such things happening, and feel very bad if they did anyway. But absolute responsibility is more than I can lift – in a situation where people’s emotional reactions are unpredictable, and where they can change their mind or freeze and be unable to react at any moment. If I took you at your word, I actually would have to ask every 90 seconds, or accept that being a rapist was an occupational risk for anyone who wanted to have sex. Sex, as Lela said, is inherently risky. I can take my share of the responsibility, or even the lions share. But all anyone can do is to take a finite amount of precautions, and then accept that it can still go wrong.

  117. WineEM says

    @121. “it does indeed look terribly, terribly like your only aim is to avoid responsibility for ensuring that you have consent to sexual activity.” Ally, you know nothing of people’s experience of sex here. It ought, surely, to be possible to discuss certain concepts without impugning people’s motives or calling them tw*ts. And yes, if you have been inconsistent (such as for example, adamantly claiming at the beginning of the year that DPP guidelines do not change the law, and now saying that they do), it doesn’t seem completely unfair to point this out. The BBC documentary we’re talking about focussed on exploring various problems: some legal, some moral, some relating to the psychological capacity of what a human being might or might not be expected to do (for instance, there was some speculation that the girl in question had not woken up, even though she had had her eyes open for quite some time.) In this context, statements such as yours at 88. ( “So it is not remotely that fear, panic, shyness or whatever is considered just as powerfully incapacitating as being shy or having a panic attack”) are surely worthy of investigation.

    Now I will admit that I had not been acquainted with this concept of freezing to the point of complete incapacity (because of aversion to sex) in the absence of any threats of violence or force before we had this discussion. However, I’m open to the idea as a very plausible possibility, and of course this would change the whole nature of consent in quite a big way. So is this not what you want: that people should discuss ideas and consider possibilities they had not come across before, or is the only acceptable kind of discussion one of complete consensus?

    (Queue Ally saying lots of rude and angry things about how he doesn’t like people trying to find flaws in his arguments.. Sigh… )

  118. Holms says

    you being unable to believe that someone might react to being raped by freezing and not properly conveying their lack of consent. Really? Is that it?

    Well I’m open to the idea, but I’d just doubt there’s an absolute consensus amongst psychologist as to how often this happens , especially in the absence of a threat of violence (and BTW there you go again, referring to ‘rape’ whilst in the process of discussing what this actually might be!)

    The fact that it happens at all means a lack of a response cannot be interpreted as ‘well she didn’t give any sign of objection, so on I go’. Even if it is low, still there is a non-zero chance that ‘no response’ actually means ‘frozen in confusion / fear’.

  119. Some Person says

    StillGjenganger [124],

    “But you put it as “always do whatever you need to do to be sure that the person you are having sexytimes with is happy and fully consenting to what is going on. And if you cannot be sure that the person is happy and fully consenting, don’t do it.” I understand you as saying “You have absolute responsibility for the consent and happiness of your partner. If anything ever happens that your partner did not fully consent to, you are a rapist. No matter what precautions you took. No matter what you did or did not do.””

    I entirely share everything you say in the latter part of 124, but – being relatively new to reading Ally’s blog I may be mistaken – I wouldn’t interpret him that way. I would suggest that he, like most feminists aren’t overly concerned with the “legalities” of *these* words. I think he means “you need to do whatever it takes for you to reasonably believe you have consent for being sexual (and, in addition, for legal certainty, in a way that others would equally consider reasonable in the context presented.)”

    @Lelapaletute

    [put] all the responsibility for ensuring consent […]squarely on the active party

    I think *active party* is a very problematic concept. I would also say “oh, the entitlement” to people expecting others to do all the heavy lifting (of performating masculinity for them, say, along these lines – http://www.thedirtynormal.com/blog/2010/03/23/what-women-want-5/) without being willing to even take on a little responsibility with respect to communication. While I’d say that the notion of sex as something being done *to* someone rather than *with* someone is generally weird, for feminists I’d consider it a moral failure to keep promoting such views merely because it’s possible, and potentially convenient. One can only hope that these women will not get what they (probably) want, because men are actually doing exactly what they *say* they want.

  120. Some Person says

    StillGjenganger,

    also, thanks for the link to the consent paranoia blogpost. I have to say I think this was the first time I felt almost moved to tears by something a self-declared radical feminist has said about the feelings of men. I’m quoting it here because I think it is relevant to explain where so much of this “fear of responsibility” comes from, and how little the reasons are understood, however much Ally and others may think this discussion is about learning how to get away with hurting someone without going to jail.

    I maintain, as you do, I think, that it’s mostly about the need to be able to project masculinity for women (and that is *most* women) who demand that, and want that. And many of them have no idea how demanding, and scary, it can be, mentally and performatively, because reassurance and confidence, and not showing fear and doubt, *is* part of the performance they are demanding, and sexually reacting to.

    I’ve known men who second guess or simply feel guilty about expressions of consent from their female partners because of an internalized sense that their sexuality is inherently violating and damaging and degrading to whomever they have sex with. The “I got her to do this” creepy showboat side of performative sexist masculinity also can add a flavor of creepiness to the genuine desires of men with willing partners. Men get a share of sexual trauma instilled in them from our society, as well. How many men grow up being taught that their penis is an instrument of pleasure rather than an instrument of pain, a means for creating connection rather than forcing submission? How many men grow up being taught that their bodies are designed to nurture and create and take please and joy in the world rather than to dominate and kill, or, at best, protect and work? A lot of men find it hard to believe they can be mutually desired and censor their sexual behaviors rather than addressing worries and negative feeling that come up when they seek them out. I’m sure a lot of men experience consent paranoia as regularly as women do.

    https://clairefuller.wordpress.com/2011/05/31/feminism-201-consent-paranoia/

    Thanks, Claire Fuller.

  121. lelapaletute says

    @SomePerson 127:

    I think *active party* is a very problematic concept. If it helps at all, it is not a static concept. I use it to indicate “the person making the move” at any given time, therefore in the right and proper run of things, *both* (or all) parties would be the active party at various points and mutually. I’m not allocating it on a permanent basis to one person or the other, nor to one gender or the other (although for various unfortunate cultural reasons that I am keen to see done away with, it would tend to be the man in a hetero pairing).

    I would also say “oh, the entitlement” to people expecting others to do all the heavy lifting (of performating masculinity for them, say, along these lines – http://www.thedirtynormal.com/blog/2010/03/23/what-women-want-5/) without being willing to even take on a little responsibility with respect to communication.

    Unfortunately, if that’s what a particular *individual* wants sexually, there is no moral force one can bring to bear to make them want something else. Personally I think what is expressed in that blog is depressing and retrograde in the extreme, and at least partly the result of those unfortunate cultural reasons that I.. [etc], referred to above. But, fact remains, if an individual takes that view, and someone else wants to have sex with that individual, they will either have to be the primarily active party and take responsibility for ensuring consent throughout, or, you know, find someone else to have sex with, or not have sex (NB *that is always a viable option*). No-one is forcing anyone to try and have sex with entitled people with passive approaches to their own sexual agency. You are allowed to go looking for someone who tells you what they want. And the more positive consent becomes the standard, the more comfortable women in general will become with doing so, as the slut stigma slowly fades away and it becomes a necessary part of sexual interaction because men WON’T just plow on regardless if women don’t make the effort to be clear. It’s not just about ‘men will have to ascertain they have consent’ – in a world based on positive consent, if women want a fuck (most of us do at some point) – they’re going to have to ask for it/agree to it explicitly.

    While I’d say that the notion of sex as something being done *to* someone rather than *with* someone is generally weird, for feminists I’d consider it a moral failure to keep promoting such views merely because it’s possible, and potentially convenient. A very brief look back at my posts on threads past will tell you I completely agree with that first part. However, as part of two people making sex happen together, at various points both parties will do things to each other (touch each other, penetrate each other, move each other around etc). And when you want to do something like that *to* someone in the course of having sex *with* them, you need to be sure they want you to. I don’t know any feminists keen to maintain/promote a ‘man active/woman passive’ model of sex. DO you?

    One can only hope that these women will not get what they (probably) want, because men are actually doing exactly what they *say* they want.

    In that one sentence you manage to convey the impression of being insulting (“women are lying to us about what they want!”), patronising (“probably lying to themselves as well, poor silly dears”), and spiteful (“well let’s see how they like it now!”) all at once. I would hope that’s not what you’re aiming at, but it’s hard to see how else to take it.

  122. Melissa Trible says

    I think part of what’s going on here is… there are certain circumstances or sets of behavior that constitute implied consent for certain activity. Where those conditions exist, it is reasonable to adopt a no-means-no approach, and treat lack of (negative) response as consent. For example, for a married couple, initiating sex without asking first generally falls within implied consent. So do *minor* escalations of sexual activity in the context of apparently enthusiastic sexual activity (eg you’re making out, and start groping a partner somewhere you haven’t groped them yet)

    But, especially when you’re dealing with a relative stranger, outside of maybe an orgy, relying on implied consent for actual sexual intercourse is risky and stupid (or evil). At least once in the proceedings, unless your partner is obviously, no-questions-asked enthusiastic, you should probably ask *some* variation of “Do you want me to proceed?”

  123. StillGjenganger says

    @Ally 123

    “always do whatever you need to do to be sure that the person you are having sexytimes with is happy and fully consenting to what is going on. And if you cannot be sure that the person is happy and fully consenting, don’t do it.”

    I could understand if you get sick and tired of rehashing that same argument. And it looks like you and other adherents to ‘enthusiastic consent’ genuinely cannot see what the problem is – and so conclude that anyone who makes a fuss must be wilfully stupid and extremely selfish.

    From here, though, it looks like you are simply used to being desired. Enough at least that you know determining enthusiastic consent is not a problem, because you have done it successfully lots of times, and you can be happily confident that however many opportunities you give up you will get as much sex as you could reasonably expect. People with less fortunate experiences do not have that understanding or trust in their own ability to judge, and know from experience that sex is like buried treasure – precious and extremely hard to find.

    I have to say that I find Claire Fuller (linked to twice, already, on this page) easier to deal with. She is a true believer in enthusiastic consent and she seems to have quite a happy and active sex life, but at least she can see that there is a problem.

  124. Ally Fogg says

    Gjenganger [135]

    I honestly don’t think that is what the problem is here. I suspect you are wrong about the thinking behind the comments from WineEM and JohnHB [although they are welcome to set us straight).

    The impression I get is that this isn’t really about their ability to obtain or discern consent. I started out in good faith, presuming that what they were trying to do was consider, explore and develop understanding of these issues. I honestly believe that is what most of the people involved in this thread (and similar ones) have been doing.

    But those two, I think, are doing something else. They have taken it as their role to examine my thesis as if they were PhD examiners, interrogating every word or phrase and looking for tiny inconsistencies or whatever.

    The problem with that is that we are not discussing some abstract ideological or logical principles. We are talking about real, immediate and dreadfully serious situations in which people have their lives ruined due to sexual assault and rape. And to be honest, if I wanted PhD examiners, I’d be looking for candidates who were a lot better informed and intelligent than them.

    If either of them were saying “Look Ally, here’s my problem. I strongly believe A, B & C are true and I sincerely want to do X, Y and Z and I think if every one of us did 1, 2 and 3 then we’d all be in a better situation.” then I would be prepared to believe their contributions are in good faith and constructive and we could talk about the differences in our positions and seek to resolve them (which in all honesty is what you have done yourself over the months, which is enormously to your credit

    As it is, one side of this debate is attempting to put forward a model of consent which can work to keep people as happy and safe as possible and the other side is attempting to tear that down without putting anything in its place.

    From here, though, it looks like you are simply used to being desired. Enough at least that you know determining enthusiastic consent is not a problem, because you have done it successfully lots of times, and you can be happily confident that however many opportunities you give up you will get as much sex as you could reasonably expect.

    I can totally see why it might look like that but as it happens it isn’t true. I said earlier I had been more or less sexually active for more than 30 years, which is true, but for a fair few of those years it was ‘less’ rather than ‘more.’ In earlier life I had long, long periods of loneliness and feelings of rejection & all of that.

    But I have to say, even at the most lonely and desperate stages, it never occurred to me that the solution to not being desired was to have sex with people who didn’t want to have sex with me. So if that is the thinking behind these arguments, I think it is very dangerous thinking indeed, and it really shouldn’t be given any quarter.

    For what it is worth, I think there is a different, better objection to positive / enthusiastic / affirmative consent ideas. That is to do with shyness, social awkwardness, embarrassment, nervousness etc. Some people find it really, really difficult to tell other people what they want. They would rather something ‘just happened’ than have to express their desires. In the real world that is a real problem and I’m more than happy to continue that debate any time.

    However I won’t give any houseroom to the idea that if you are not desired, the solution might be to have sex with people who don’t want to have sex with you.

  125. WineEM says

    Re 125: ( ‘Queue Ally saying lots of rude and angry things about how he doesn’t like people trying to find flaws in his arguments..’ )

    Well I’m awfully glad I didn’t see that coming! 🙂
    But as for 136., I’m sorry Ally, this is simply not true. People arguing against your proposals have put forward alternative models of how consent might work (indeed approaches which might have the added virtues of avoiding the kind of ‘consent paranoia’ we understand is regularly experienced by those on parts of the progressive left). This would involve both parties taking some responsibility as to whether consent is given and understood. The person initiating the act should stop if they perceive any clear signs of unhappiness or opposition, and the person being subjected to it should try and indicate non-consent if they still have capacity to do so.
    But I don’t know: consent paranoia, and the heavy handed monitoring of all gender related language (in other words the jack-booted policing of all aspects of human interpersonal behaviour); I would suggest this is not necessarily a completely utopian vision that the establishment liberal left is leading us towards.

  126. Some Person says

    @lelapaletute [129],

    “although for various unfortunate cultural reasons that I am keen to see done away with, it would tend to be the man in a hetero pairing”

    fair enough.

    Unfortunately, if that’s what a particular *individual* wants sexually, there is no moral force one can bring to bear to make them want something else. Personally I think what is expressed in that blog is depressing and retrograde in the extreme, and at least partly the result of those unfortunate cultural reasons that I.. [etc], referred to above. … But, fact remains, if an individual takes that view, and someone else wants to have sex with that individual, they will either have to be the primarily active party and take responsibility for ensuring consent throughout, or, you know, find someone else to have sex with, or not have sex (NB *that is always a viable option*). No-one is forcing anyone to try and have sex with entitled people with passive approaches to their own sexual agency. You are allowed to go looking for someone who tells you what they want.”

    I agree on the consent part, but I entirely disagree about the apparently assumed prevalence of the desires expressed in that blogpost or, for that matter, in all of the romance novels written by and for women. As a personal note, quoting that post to women usually works as an aphrodisiac in itself, because they will suddenly feel truly understood. I’m not kidding about that effect. The author of that post is, btw, a progressive feminist sex researcher who is also *very* active on the consent front, check her blog for that. For her, this isn’t mutually exclusive, and I don’t think it is either, theoretically, but I do maintain that the performance is *incredibly* difficult, and constantly made more difficult by additional procedural requirements – again, I’m not referring to the British law as presented here, but to the US laws written by consent activists, apparently with disregard for how humans prefer to mate and the clear intent to push their (usually consensual) behavior.

    You’re obviously also right that not having sex is also an option, but if mere procedures are preventing happy consensual sex by making it harder to give people what they want, if procedures not only work to ensure safety, but also work as a drain on libidos, then it may well be time to reconsider the way such procedures work. Also, as someone who, due to my own mental requirements (see the Claire Fuller quote) is *very* careful about consent (hence consent paranoia) and requires a lot more participation from women than they usually give, I can tell you that a) it’s really not an optimal solution for the (subjectively feeling) rejected party (the women I didn’t go further with) and b) it’s really by *far* the most common scenario with respect to “what women want”.

    I theoretically share your hope in a positive consent utopia, where everyone is able to know and say what they want, but I doubt I’ll live long enough to see that. So for all practical matters, I’ll need to deal with reality.

    “A very brief look back at my posts on threads past will tell you I completely agree with that first part.”

    Again, fair enough. Still relatively new here.

    I don’t know any feminists keen to maintain/promote a ‘man active/woman passive’ model of sex. DO you?

    Oh, publicly, no. But privately? Absolutely. Best personal data point on this: professional academic feminist, prospective partner ended things with me over this. I told her I wouldn’t do anything unless she told me to (while sleeping in the same bed). She didn’t tell me, I didn’t do anything. Later she told me the fact that I didn’t do anything demonstrated to her my lack of desire for her, and she couldn’t do without that. If I had desired her more, I would have tried regardless of what consent rules we had agreed on before.

    In that one sentence you manage to convey the impression of being insulting (“women are lying to us about what they want!”), patronising (“probably lying to themselves as well, poor silly dears”), and spiteful (“well let’s see how they like it now!”) all at once. I would hope that’s not what you’re aiming at, but it’s hard to see how else to take it.

    Hmm, well, I don’t mean to come accross as bitter, but it’s probably hard to deny that, given what I said about the Claire Fuller quote above, and stories like the one I told you just above this paragraph, there may be a certain lack of distance when it comes to this. I’ll pay more attention to that. I’ll try, at least.

  127. Some Person says

    Ally [136],

    “For what it is worth, I think there is a different, better objection to positive / enthusiastic / affirmative consent ideas. That is to do with shyness, social awkwardness, embarrassment, nervousness etc. Some people find it really, really difficult to tell other people what they want. They would rather something ‘just happened’ than have to express their desires. In the real world that is a real problem and I’m more than happy to continue that debate any time.”

    I entirely agree that this is the core of the problem. So let’s. Please. This may do some real good (for the debate and for real life).

  128. StillGjenganger says

    @Ally 136
    Thanks for the nice words . I think I have taken up my share of space on this thread now. I just wanted to add that 1) I agree about the shyness, 2) I would never say that if you are not desired, the solution might be to have sex with people who don’t want to have sex with you. – just that it is a matter of what risks and precautions you feel the need to take. It is a lot easier to go to extreme lengths to avoid sex going wrong when you can expect to get what you need regardless.

  129. Ally Fogg says

    Now this is a conversation I am more than happy to have.

    This would involve both parties taking some responsibility as to whether consent is given and understood.

    Yes, that is great. The the crux of this discussion is what should be understood from an absence of any active words or gestures of consent.

    I am saying that if you attempt to touch me in any sexual way and (for whatever reason) I do not communicate my consent to that, you must understand that your touches are not welcome.

    Now, obviously I understand what you are getting at. The ideal thing for me to do in that situation is to say clearly and loudly “No, WhineyM, I do not want you to touch me in that way, please don’t do it, if you do it again I shall call the police.”

    And yes, in an ideal world that is what would always happen, and I have no problem with the idea that our formal and informal sex education should include telling people that is the best thing to do under those circumstances and perhaps even encourage them to practise saying things like that.

    However we do not live in an ideal world. It is not unusual that, for whatever reason, people who are being subjected to unwanted sexual touching (at whatever level) do not feel able to say something like that. And crucially, the proactive party in this situation has no real way of knowing whether the reason why I am not clearly expressing my lack of consent is because I am panicking, I am frozen in fear or because I am just too shy to tell you that I am quietly loving every moment.

    The person initiating the act should stop if they perceive any clear signs of unhappiness or opposition, and the person being subjected to it should try and indicate non-consent if they still have capacity to do so.

    You see, I would always interpret passive, silent non-compliance and lack of reciprocal participation to be a clear sign of unhappiness or opposition. Wouldn’t you?

    To return to the very starting point of this debate, one of the lines spoken by the fictional girl in the drama was “I thought if I just didn’t respond or react he would get the message.”

    While fully accepting that this is not the ideal method of communication, I would put to you that this shouldn’t be considered especially unreasonable either. And what I am suggesting is that it also should be part of our formal and informal sex education to teach people that if someone is not responding, reacting or reciprocating ,you do not have consent to continue.

    Now, I would be more than happy if you respond to this post and continue to discuss or disagree. However if that involves you saying “Ah, but hang on, back in September 2013 you wrote something that if I squint really hard looks to contradict what you say here” then I I am really not interested.

  130. Ally Fogg says

    Some Person [139]

    I entirely agree that this is the core of the problem. So let’s. Please. This may do some real good (for the debate and for real life).

    I’ll probably get a frosty response to this suggestion, but I would encourage people to go back and read the Yes Means Yes book, edited by Valenti and Friedman, which is where a lot of these debates really took life.

    I didn’t agree with all of it (it was a book of essays by diverse contributors, so no real surprise there) but one of the recurring themes was that affirmative consent models are a double sided coin, and funnily enough, not that different to the two sides of the coin mentioned by WineEM above.

    Yes Means Yes is at heart a sex-positive paradigm. It can never really work in a social context where women (especially) are shamed or condemned for their sexual desires or embarrassed by them. If you’ll forgive a boring gendered framework for a moment, Yes Means Yes doesn’t just put an onus on men to ensure they have clear consent from a women, it also puts an onus on women to clearly convey their sexual desires, and an onus on all of us to build a society where both of those things can happen.

    As I read it first time round, Yes Means Yes was an ambitious, wide-ranging politico-cultural project. Somewhere along the way it seems to have transmuted into a blunt legal standard, a bar for either prosecutions or campus tribunals or whatever.

    So anyway, what this adds up to is that I don’t think there is any nice easy solution to that dilemma, but it would certainly be helped by far better, stronger, franker sex education classes as a first step.

  131. WineEM says

    @142 But Ally, you seem to be saying we should take for granted that this statement is reasonable: (“I thought if I just didn’t respond or react he would get the message”), whilst just having acknowledged that “Some people find it really, really difficult to tell other people what they want. They would rather something ‘just happened’ than have to express their desires. In the real world that is a real problem…” In that context, how is anyone meant to take wholly for granted what might be ‘reasonable,’ if people behave like that?

    Further, it strikes me that what is ‘reasonable’ may be subject to cultural pressures. If a mass education programme of the type you describe above were to convince everyone that it was normal (perhaps even standard) for people to become completely psychologically paralysed due to a sudden aversion to sex – so strong that they would not be able to show any signs of unwillingness – it would surely follow that the only ‘reasonable’ course of action would be the hardline SJW approach described upfield (i.e. continually asking for explicit verbal permission throughout the act, just to be sure).

    Anything else would surely be brutally inhumane, in the way that the following analogy might capture:-

    I remember years ago, I saw a documentary about surgery, and specifically about the effects of general anaesthetic.
    Apparently, there are those who believe (I don’t know how credible this is), that instead of becoming completely unconscious under GA, many people stay sentient, fully aware, and still perfectly sensitive to pain, yet unable to do anything about it, due to the paralysing effects of the drugs. (However, this is where the analogy differs, the psychological trauma is so great they are said to often forget all about it).

    In other words, reason is not pure reason, it often has a context, but it does strike me that if you succeed with some aspects of your ‘re-education’ programme, you might end up not mildly but massively loading the dice in favour of a complainant. That’s fine (it may be just what is needed), but I’m just saying that it might have some unforeseen consequences if you do . (Oh yes, BTW, I’m not saying you would necessary include the bit about ‘freezing’, that would be up to you, but just something to bear in mind).

  132. StillGjenganger says

    @Ally 141
    Sorry. I know what I said, but this is a new and extremely interesting discussion. I will shut up if asked, but if you do not mind, …

    I think ‘enthusiastic consent’ is a bad solution and I would propose a better one.

    First, this is not really about rape, in a sense. If we have people who deliberately and knowingly do things that they have no consent for (and break the law in the process) they are beyond reach of behavioural norms anyway. What we have here is two people who both want to find someone to do amazing sexystuff with, and want a set of rules for getting there without either party getting hurt, or terminally embarrassed. So, instead of putting the onus on men to make sure they have consent, we give the two sides shared responsibility to reach their shared goal.

    The problem with ‘enthusiastic consent’ is that men get all the stress and trouble while women may fail to do what they could to keep things safe. Or if both sexes take responsibility for the ‘enthusiastic consent’, we get instead a system with avoidable stress and paranoia, and with a strong built-in bias against doing anything sexy at all. We can do better than that. This how I would like to see the course:

    We start by telling everybody that it is hard to figure out what you want and get the message across. People get embarrassed, ashamed, afraid of rejection, etc. They will not find this surprising. Also people can behave irrationally, freeze and be unable to move, make crazy misunderstandings, …. That will be more surprising, so it will need a determined pedagogical effort to get across. With all these pitfalls, things can easily go awry in small and big ways, and all people of good will must do all they can. So:

    -” If you are making the running, you must stay alert to the person you are with, and slow down, or stop or ask if you think something might be wrong. If you are not very good at it, just take it carefully and follow your instincts. People will not mind that you are careful, and you will get better with experience if you do not ruin everything at the outset. You do not really want her to refuse to see you again, let alone have a breakdown, and it is your fault. And anyway, you become a better lover and have more fun that way.”

    – “If you are feeling pushed, be aware when it might be getting too much, AND SAY SO. This may be hard, so think through in advance how you would do it. Sure, if he is a good lover he will stop without needing to be told, but men can be surprisingly dim, especially when inexperienced or drunk. Make it easy for the poor silly bastard to do what you want him to do. After all, any embarrassment up front is a lot better than rape counselling and distress afterwards.”

    The nice thing about this model is that if either side fails you would normally expect that the other side steps in to save the situation. That leads to less stress and paranoia, more safety – and hopefully more fun. And I would suggest that it will work better i the social context we have actually got, without relying on remaking everybody’s attitudes first.

  133. Some Person says

    Ally [142]

    I’ll probably get a frosty response to this suggestion, but I would encourage people to go back and read the Yes Means Yes book, edited by Valenti and Friedman, which is where a lot of these debates really took life.

    haha. You know your audience well, I suppose. Well. I’ve followed the companion blog for a while, and Thomas Millar, who’s the predominant author there now is probably the most patronizing person I’ve come across in this whole debate (His “how to be a man”-companion article to Friedman’s sex book “what you really really want” (“Don’t let anyone tell you how to be a man, but I’ll tell you how to be a man” – http://whatyoureallyreallywant.net/resources/just-for-men/) literally made me want to punch him for being a patronizing **se and that’s something that happens very *rarely* . If you were an alien looking at that blog, you would probably have to think that “masculinity” was a dangerous infection. Valenti and Friedman seemed more thoughtful and open to debate when they didn’t have the megaphones they have these days, and, at least to me, actually seem more concerned about placating their audience than being an actual part of the conversation (eg. Friedman’s AMA at the Washington Post recently about affirmative consent). Friedman, btw, has once admitted publicly in an interview I can’t find now that she doesn’t want to have sex with the people she should have sex with because of her politics. Remember the sex wars? It’s political lesbianism all over again. Her desires are her desires, but it doesn’t help her credibiltiy, of course. The only brand-name online feminist I’d consider to be different and helpful for pretty much every debate she’s in is Laury Penny, probably helps that she’s not American, despite her stint at Harvard. Has she written more than a tweet about yes-means-yes?

    Yes Means Yes is at heart a sex-positive paradigm. It can never really work in a social context where women (especially) are shamed or condemned for their sexual desires or embarrassed by them. If you’ll forgive a boring gendered framework for a moment, Yes Means Yes doesn’t just put an onus on men to ensure they have clear consent from a women, it also puts an onus on women to clearly convey their sexual desires, and an onus on all of us to build a society where both of those things can happen.

    Well, you’re right, in theory it does. But in practice, only the first and third element are ever really discussed. At *most* you can hear people say that all this obviously applies to all genders. And that’s clearly leaving out the most relevant part of the whole thing – it’s omitting the fact that mating in the real world follows a very different script and that gendered desires play out very different, so making a gender neutral statement will affect genders very differently. On purpose. Feminists are usually very good at spotting these kinds of language tricks when they are not employing them themselves.

    Nobody in this debate is telling women to change the way they express their desire, because, apparently, everyone (on that side of the debate in the US) is apparently convinced that the best way to change all three elements of the equation you mention above will be legally forcing men to either accept a higher risk for giving women the masculine performance they usually desire, or, should they not be willing to accept that level of risk, reduce the availability of desired male sexuality for women, so women may, eventually, be forced to act on their own. Lysistrata, inverse, if you will. Personally, I have serious doubts about the effectiveness of the approach. I’m pretty sure that will lead to a huge backlash in the next couple of years.

    I’m quite certain we’re dealing with behavioral layers much more engrained than we can easily fix through policies. Which is why I think actually teaching people to be able to talk about their desires in a *seductive* way with someone they’re interested in is *so much more important* than all the legalese. So, yes, of course, I agree that good sex/pleasure education would be a great and necessary first step, but it’s not going to be sufficient by a very long stretch.

    I don’t know, maybe I just don’t find it, but I really cannot find *anything* useful in the whole of the internet that manages to break down an “antioch”-step-by-step-yes-means-yes flirt/seduction interaction in a way that could actually work for *real* women and real men in real life situations. Everything done with respect to telling people how sexy consent can be looks like a SNL skit. At some point one has to wonder why that is. And it is probably because it’s so very difficult to actually *do that* that people find it hard to perform even scripted versions in a sexy way.

    However, if *that* cannot be done, I’m sure of the backlash. Do you think this can be done?

  134. mostlymarvelous says

    WineEM

    Now I will admit that I had not been acquainted with this concept of freezing to the point of complete incapacity (because of aversion to sex) in the absence of any threats of violence or force before we had this discussion.

    I should point out that violence or force is always there in the background when a woman is dealing with a man she doesn’t know well and who is apparently bigger and stronger than she is. So this qualification doesn’t apply when we’re talking about one-nighters or other casual encounters.

    But “freezing” is well-known as a response to threats of all kinds. You hear/read it often in news reports of a whole variety of events – I was rooted to the spot … , I was absolutely stunned … , I was frozen where I was – I couldn’t move from my car, my chair, my hiding place. When I saw the snake/ spider/ other creepy crawly, I was so scared I couldn’t get away, my feet wouldn’t move.

    The only thing about freezing that is not well-known, is that it is at least as common as fight or flight, and may well be more common than the fight response. This article goes into even more neurobiological issues around traumatic events. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/why_cops_don_t_believe_rape_victims_and_how_brain_science_can_solve_the.html

    As for yes means yes versus no means no, this is an oldie but a goodie about how rarely people, men and women alike, ever state a plain “no” in most social situations, not just sexual interactions.

    The women in their focus group told them that saying no to sex was so difficult that they “try to avoid ever having to do it.”
    The authors ask why, and run through the usual sexuality-specific answers, but then arrive at a more radical conclusion: that the difficulty of saying “no” is not an aberration. “No” is hard, and it’s particularly hard for women, but part of the normal conversational structure is that “no” is a “disfavored” response, to use a technical term from the field.
    Citing literature, they note that
    “[a]cceptances generally involve (i) simple acceptance; and (ii) no delay” while
    “refusals very rarely involve ‘just saying no’.”

    https://yesmeansyesblog.wordpress.com/2011/03/21/mythcommunication-its-not-that-they-dont-understand-they-just-dont-like-the-answer/

    The whole thing is worth reading, but if you want a quick summation, read the last 3 paras (one of which is a single line, so that reduces the size of the task).

  135. Ally Fogg says

    WineEM [143]

    @142 But Ally, you seem to be saying we should take for granted that this statement is reasonable: (“I thought if I just didn’t respond or react he would get the message”), whilst just having acknowledged that “Some people find it really, really difficult to tell other people what they want. They would rather something ‘just happened’ than have to express their desires. In the real world that is a real problem…” In that context, how is anyone meant to take wholly for granted what might be ‘reasonable,’ if people behave like that?”

    There is no inconsistency there, quite the opposite. In a world where people can’t easily or always convey their consent [or lack of consent], the only safe thing to do is to is to err on the side of caution until you have made sure.

    Further, it strikes me that what is ‘reasonable’ may be subject to cultural pressures. If a mass education programme of the type you describe above were to convince everyone that it was normal (perhaps even standard) for people to become completely psychologically paralysed due to a sudden aversion to sex

    WHAT? THis is nonsense. You’ve either completely misunderstood or are actively misinterpreting what I said above.

    I’ve never said we should be educated to believe that it should be normal or standard for people to freeze in response to sexual threat. I’ve said it should be normal or standard for people to understand that there is a possibility that this can sometimes happen. That is entirely different.

    so strong that they would not be able to show any signs of unwillingness – it would surely follow that the only ‘reasonable’ course of action would be the hardline SJW approach described upfield (i.e. continually asking for explicit verbal permission throughout the act, just to be sure).

    No, because in the real world the sex that most people have, most of the time, is enthusiastic on both sides, with both parties actively co-operating, participating, communicating, responding etc etc etc.

    Now, as a companion story to the (rather serious) one above about the ex- who had a panic attack in bed (something which has happened to a sexual partner once in 30 years, so pretty rare) I’ve also had a couple of experiences with people who were really unresponsive lovers. To be blunt, they were just really crap in bed. Would lie there not doing anything, expecting me to do pretty much everything. Now, that wasn’t very good sex to my mind, and it was not very good sex in part because I did have to do quite a lot of the “do you like this? How about that?” kind of questioning, which was indeed pretty boring. But it was necessary, because on those occasions it was the only way i could be sure that she actually wanted me to do whatever. So yes, if every woman was like that in bed, then we’d have to do the caricature SJW checklist every time. But thankfully the vast majority of women are not.

    it does strike me that if you succeed with some aspects of your ‘re-education’ programme, you might end up not mildly but massively loading the dice in favour of a complainant.

    Not sure what you mean by this.

    Assuming we are back to talking about standards of proof in a court of law, I don’t want to load cases in favour of complainant or defendant. I do want to load cases in favour of truth and justice.

  136. Ally Fogg says

    Gjenganger [144]

    The ‘model’ you describe is actually pretty close to what I would call an affirmative consent or enthusiastic consent model anyway, certainly the kind of fully-fleshed out cultural model that I described in [141]

    Some digressions though… I would strongly advocate that any models of consent are gender-inclusive and not assuming it is always a man pressuring a woman.

    I think it is good and fair to say that both (or all) participants in a sexual encounter should do their best to communicate what they do or do not want with the other.

    However each of us can only take responsibility for our own choices, not the other person’s. We cannot have responsibility for what the other person does. I cannot believe that MY behaviour is YOUR responsibility. As soon as I do adopt or apply such a belief it opens the door to the exact kind of scenario that was dramatized in the programme in the OP.

    The reason for that (at the risk of stating the obvious) is precisely because we human beings can be really rubbish at communicating with each other, especially at times of stress and people can be really, really bad for convincing themselves that something is true just because they want it to be true.

  137. WineEM says

    “You’ve either completely misunderstood or are actively misinterpreting what I said above.”

    Well, that’s a tiny bit rich isn’t it, Ally Fogg, since I took the effort to say explicitly in 143. (“Oh yes, BTW, I’m not saying you would necessary include the bit about ‘freezing’, [i.e. in your education programme] that would be up to you, but just something to bear in mind”).

    You ditz. 😉

    My point was merely that if hypothetically one educated everyone to have a common understanding that this does sometimes happen, this may favour complainants’ cases much more strongly than it would do otherwise. (As stated, I didn’t say whether doing so would necessarily be right or wrong).
    Interestingly, Vera Baird had a policy proposal about a decade ago to hand out ‘information packs’ to juries before trial, in order to educate them in terms of how a complainant might or might not react in situations of sexual assault. This was vetoed on the other side (by Grieve and all) because they believed it violated a principle of ‘equality of arms’ before the law.

    http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm071129/debtext/71129-0019.htm

    But then there are probably some on the establishment liberal left for whom ‘equality of arms’ may not necessarily be a major consideration here.

  138. WineEM says

    Oh well, not my problem. Considering how exceptionally bloody-minded and rude you’ve been in this thread in terms of gratuitous ad hominem attacks, I’m afraid I really cannot be bothered.

  139. Rob says

    Holms, I’ve sent you a virtual icepack. I recommend a nice single malt to go with it.
     

    Considering how exceptionally bloody-minded and rude you’ve been in this thread in terms of gratuitous ad hominem attacks, I’m afraid I really cannot be bothered.

     
    Considering what a jacqu-off you’ve been, I’m surprised Ally could be bothered. I certainly lost interest in you long ago.

  140. nevilleneville says

    Don’t sleep with anyone who doesn’t say they want to sleep with you. I reckon that is a good starting place.

  141. WineEm says

    “Considering what a jacqu-off you’ve been”

    Jesus, well it is certainly interesting isn’t it, the way Ally and others have deemed it perfectly fine and legitimate to casually make all kinds of full-on sexual slurs against those arguing for a certain conceptual approach in this debate.

    I also find it telling that further up Ally has framed this problem in terms of arrogance and entitlement. Actually I can think of nothing more suggestive of arrogance and entitlement than a highly skilled, professional writer saying to the rest of society, essentially: well, personally I know I have no problem at all identifying and remembering all kinds of extremely subtle non-verbal cues, and putting these into an articulate and persuasive narrative that would convince a jury. (Remember of course that the approach backed by Ally and advocated by Alison Saunders, is to demand this account from an accused at a very early stage, even before trial). Oh no, I am referring back to some events in February, so kill me..

    In fact, I do not think we should take for granted that every one in society possesses such skills. I mentioned Desmond Morris in an earlier post, and a constant theme in his documentaries is that body language and non verbal cues are things that people perform, but are normally not aware of (i.e. it often goes on at a level beyond the conscious, rational mind.) People will often not say to themselves: right, at the moment, I am mirroring somebody else’s rhythm and body language, or I am adopting a semi-open posture in order to show trust, or I am tilting my head in a certain way to show attentiveness. These are things that just happen. But we see this again and again with SJWs and their adherents that human nature must be manipulated in a way as to conform to entirely ‘rational expectations’. It’s almost like a Marxist approach to human nature which has been tried and failed a long time ago.

  142. JR says

    Interesting topic. Also, it’s interesting how much some people want to make this difficult beyond reason. The way I see it, there are three steps to having good sexy times:

    1. Figure out if the other party is enjoying what’s currently going on. If so go to 2. If you’re unsure, go to 3.
    2. Escalate. Go to 1.
    3. Stop what you’re doing.

    (Technically 1 and 2 may form an infinite loop, but I assume that it will eventually be broken by someone passing out! Just kidding..)

    Anyway, I’ve deliberately used the vague phrase “figure out”. It can mean simply asking. Or it can mean judging from prior experience. Or it can mean interpreting the body language of the other party. Or something else.

    But the fact that the “figure out” part may be difficult in the general case and very difficult in special cases does not, in my opinion, have any impact on the other steps, and in particular step 3. If you’re unsure, just stop.

    This may indeed lead to less sexy times, both in the immediate short term and possibly in the longer term, but it will most likely keep you out of court. And even better, it will mean that you don’t have to second guess your decisions the morning after. That is, unless you have other reasons for regret – infidelity, unprotected sex etc. But that’s another topic.

    I’ve seen the argument here that some people are lonely and/or socially awkward and it’s difficult enough for them to even get to a phase where they need to start considering the consent issues. This is most certainly true, but that’s also different topic. Once actually there, see point 1. If you’re unsure stop.

    Some people are making the case that pausing in order to get explicit consent is a mood-killer. Sure thing, but see point 1. If you’re unsure, stop.

    Some are making the argument that *some* potential partners are unwilling to provide the necessary clues for consent. To which I say, if you’re unsure, stop.

    NOT having sex isn’t the end of the world. You’ll get another chance later on…

    The fact, as I see it, is that both parties (or perhaps all parties) have a responsibility to ensure that the other party (parties) is willingly participating. If there is any doubt, stop or pause to eliminate that doubt before continuing.

  143. girigirihanasu says

    I’m male. My virginity was taken from me at age 20 at university by a 30-something mature student on the prowl.
    We were both drunk… She didn’t ask me if I consented, and I certainly didn’t ask her – I was completely in her power. We both regretted it afterwards.

    You appear to be of the opinion that, if anything, *I* was a potential rapist and she, being female (and thus apparently incapable of free will, the power to express her feelings or the power to manipulate others) was entirely innocent.

  144. StillGjenganger says

    @JR 156
    Every time I see something like this, I think:
    Translation: If you care very little whether you have sex or not it is very easy to make sure you do not hurt anyone
    Explanation: Here speaks someone who knows from experience that he can get all the sex he needs while following the rules. This advice does not cost him anything, that is why he is so blythe about giving it.

  145. StillGjenganger says

    @Ally 148
    Thanks – I did rather think we mostly agreed. No surprise, I guess I learned most of it here. Still – and I am sorry if I am being dim – it would be very helpful to me if we could pin down precisely what it is we still do not agree about. Even though I do know that this is not a teaching establishment (and I could not afford the rates if it were). Quite apart from anything else there is bound to be some good arguments against the things I am saying (in addition to the bad ones), and I would like to know exactly what they are.

    BDSM, to make a parallel , involves things that can go wrong and cause damage even more easily than normal sex. And in BDSM people know and accept the risk as a price you have to pay to participate. In order to minimise that risk they came up with the safeword, for people to stop proceedings when it gets too dangerous. Doms still need to be responsible and pay attention, because it can happen that people are too embarrassed or too spaced-out to safeword when needed, but safewords do help. And, as someone pointed out, you can risk trying many more things if you can expect that the other party will call stop before it goes pear-shaped.

    Going back to normal sex, the universal safeword would be ‘Stop right now, or I call the police!’. But here the ‘enthusiastic consent’ message seems to be that it is unreasonable to ask people to use the safeword, and that the ‘active party’ must assume that no safeword exists and take absolute responsibility for anything that happens without that help. I did not see the TV transmission, but from your resume I would likely say that the lad should not have proceeded without a ‘go’ signal, but the lass should have made it easy for him by giving an explicit ‘stop’ signal (whether the lad should go to prison I cannot say without seeing the film). You would put it all on the lad, I presume? The feminist attitude seems to be that they accept no risk. Women have the right to do whatever they feel like, and it is up to the men to do whatever work is necessary to make sure that they come to no harm for it. Which means that as a man you have to hold back a lot more, and that, in the absence of a safeword, a lot of fun things that could have happened never will. Much as I may agree with the literal words, that is what I hear you saying, for instance here:

    However each of us can only take responsibility for our own choices, not the other person’s. We cannot have responsibility for what the other person does. I cannot believe that MY behaviour is YOUR responsibility. As soon as I do adopt or apply such a belief it opens the door to the exact kind of scenario that was dramatized in the program in the OP.

    1) I do realise that most reported rapes are probably deliberate crimes rather than any kind of miscommunications. And that women quite understandably do not want to spend that much attention on what is just a limited part of the rape problem. But if we are talking about behaviour norms, we have to engage with the majority of men who are actually interested in following the rules. The John Worboys’ of this world are beyond our reach, and treating mostly well-intentioned people as potential criminals is not the best way of getting them to listen.

    2) I think we mostly agree that the rules can and should be put in a gender neutral, manner. I did try, until I started to need pronouns (“If you are making the running, …”, rather than “As the man …”). But in discussion we cannot avoid the fact that as things are now the two sexes have different roles, in the dating game, different experiences, and different fears. Most obviously women seem to find it easier to identify with rape victims, whereas men find it easier to identify with those accused (unjustly, of course) of rape. I notice that you, yourself, said that

    If you’ll forgive a boring gendered framework for a moment, Yes Means Yes doesn’t just put an onus on men to ensure they have clear consent from a women, it also puts an onus on women to clearly convey their sexual desires, and an onus on all of us to build a society where both of those things can happen.

  146. JR says

    @158

    … This advice does not cost him anything …

    I see it kind of the other way around. Not making sure you have consent may cost you everything…

    But you do have a point. I’m married (and faithful) since many years back so I’m not really in the demographic that most pressingly needs tips for how to interact with potential sex partners.

    But even so, the advice to stop if you’re unsure is a good one IMO. How could it not be? What would be the alternative?

  147. StillGjenganger says

    @MM 146

    You are quite right that saying ‘no’ is generally stressful , socially, and that people try hard to get by without having to use a straight ‘no’. I do think, though, that your link is guilty of an assumption when they take for granted that the women in question have a fixed and immovable decision not to consent, and all the men are simply seeing if they can force them. There will surely be men who think “Right – she does not consent. Let us see if I can force her.“. There will be others (no guesses about numbers) who think “Arrgh. Out on a limb – again – and getting a slap in the face – again. Now I am here let us try if there is just a small chance that I got it wrong, or I can get her to change her mind“. It is not exactly unheard of for youngsters to insist in the face of refusal (to borrow the car, or get permission to stay out after 0200, for instance), and we do not generally see that as deliberate lawbreaking.

    I do know how it works to avoid ‘no’ in conversation – I grew up with parents who were quite touchy about being pressured in any way, so I can do it by reflex. You make any requests indirectly rather than directly, you go out of your way to make sure that the other party can say easily say ‘no’ without causing any dissonances, you fold at the first hint of reluctance, and you take the attitude that you do not really expect a yes and can manage just fine without it. Often you get to use the family car anyway, but then these are your parents, and they look out for your needs. If the request is very unlikely to be granted you do not make it at all, because asking for something you are pretty sure you will not get is very rude, when you operate like this. As a case in point, I delayed for about ten years before getting my driving license, in order to avoid the constant friction of me wanting to borrow the car, and my dad being angry about being pressured to let me have it.

    Following those rules in dating would certainly cut down on adverse events. I do not think this technique would work well, though, or that we can really expect people to use it. Sex is both extremely intimate and extremely important, and has a lot of barriers to overcome. “If you are sure you do not have to get up early on Sunday, maybe we could have a shag some Saturday evening” , is casual enough to be easy to refuse, yes, but it is not going to get you anything, except a reputation as a weirdo. In sex we have instead a complex dance where most requests are out of bounds most of the time, and you watch for signals that you are close enough to move up a level and risk a slightly more intimate question. There is lots of room for people chickening out. As they say ‘from the first attempt to the first success, a young man has to go through 467 rejections’. By the normal rules of social conduct he should conclude, around rejection number 300, that the answer was always no and it would be rude to continue asking.

  148. StillGjenganger says

    @JR 160
    I see it as a trade-off. People of both sexes want to meet Mr/Ms Right (or Mr/Ms Right Away), and have some fun. People of both sexes also want both parties to avoid the unpleasaneness that could happen, from deep embarrassment to feeling raped the next day (I am excluding deliberate predators from this discussion). So the question becomes: How far do we go to avoid those adverse consequences? How much risk are we willing to take to facilitate meeting Mr/Ms Right? And who should make what sacrifices here? As Bruce Schneier (security expert – try his book ‘Beyond Fear’) pointed out, no matter how serious the risk (he included 9/11 style terrorism) there will still be countermeasures that are not worth the cost. Here are some trade-offs that he mentioned:
    – Q:”Can you guarantee against a repeat of 9/11?” A: “Yes of course. Just ground all the planes.”
    – Q:”How can we best guard aganst hi-jackings?” A: “First of all, ban carry-on luggage.”
    – Q:”Do you have anything less drastic?” A: “Yes – ban matches and lighters on planes” (the tobacco lobby scuppered that one)

    If you look at the BDSM world there are some standard security measures you always see mentioned, such as “Do not play if you are drunk – and do not play with drunks.” “Make it clear when play starts and stops.” “Always talk through your limits explicitly beforehand.” Now these could all be unilaterally enforced. Nothing would stop a woman (or a man) from insisting that sex only happens when sober, or that the decision to have sex must be made clearly in advance, after going through what you will and will not do. Of course most people would refuse these precautions as too cumbersome, but in doing so they are accepting an increased risk in return for a greater chance of fun. So, is it really reasonable if women insist on getting the full measure of security, and just puts in on the man to have all the hassle?

    My short version would be: “You do need an actual ‘go’; signal, not just a lack of ‘stop’ to proceed.” “You have a responsibility to stay alert for your partner withdrawing or going into pain, and to stop if you become suspicious.” But, and this is the difference: “(S)He may not be able to, but you can assume that your partner will at least try to say ‘stop’ before it goes too far” and “If both sides try, and both fail, it can go badly. That is called an accident, not a crime”.

  149. HuckleAndLowly says

    @girigirihanasu 157
    If you were in her power, didn’t consent, and regretted it, then I would say that you were raped, to put it bluntly. I’m glad you made your comment. If people don’t talk about the bad things that happens to them, those things will remain invisible to, and ignored by, everyone else.

    I had a very similar experience to you with an older woman student at college, who was flirting strongly and following me around at a party. I wasn’t comfortable, and went back to my flat and went to sleep (a bit drunk). I woke up with her on top of me (my flatmates had let her in). I tried to get her off: she slapped me; I froze; she finished, started crying, and left. That was my first time having sex.

    This was a long time ago, but it did have an impact on me (turn offs: flirtatious women). I talk about it (and other such negative experiences) now because I’m sick of it being invisible and ignored.

    Also, this type of situation is why I think positive verbal consent is a necessary thing. Men need to be educated that they have to ask; and women need to be educated that they _have_to_ask_. She should have asked you (especially as she was older). I bet if she’d asked you would have thought about it, and maybe considered whether you would regret it later.

  150. Ally Fogg says

    @girigirihanasu [157]

    If that was directed at me, you could not be more wrong. Sounds to me like you were exploited/abused, raped in common parlance (if not legal, at least in this country)

    One thing I stress often in my writing, and have done several times on this thread, is that these issues can arise in any combination of genders.

  151. Ally Fogg says

    Gjenganger [159]

    it would be very helpful to me if we could pin down precisely what it is we still do not agree about.

    – the only points on which I differ from you were those I made in the earlier comment. I would avoid gender-specific pronouns and I would be really wary with the logic of joint or shared responsibility. We all have responsibility for our own behaviour, ie we are all ultimately responsible for ensuring we do not rape another person. We cannot be responsible for ensuring the other person does not rape us, because that is not necessarily within our power.

    The BDSM analogy you raise is interesting, because amongst serious practitioners, safe words are considered a bit of a novice level thing. They tend to get written and spoken a lot by people who don’t really know what they are doing. They can actually be quite dangerous in that people can think once they have a safe word it is like a magic wand that will protect them from harm.

    Jem and Carter from Sometimes It’s Just a Cigar blog (Jem posts here occasionally) have written about how safe words actually aren’t all that safe at all, and what people in BDSM situations really need is caution, knowledge and sensitivity and a really deep understanding of what their partner wants.

    So while you are right that BDSM raises a whole new level of challenges, it also requires matching levels of communication, understanding and empathy.

  152. StiGjeganger says

    Thanks for answering – I really appreciate your patience.

    amongst serious practitioners, safe words are considered a bit of a novice level thing

    Seconded. Or rather: I have caught as much from the debate myself.

    So while you are right that BDSM raises a whole new level of challenges, it also requires matching levels of communication, understanding and empathy.

    No disagreement either. But since this is beyond the capabilities of beginners – and many moderately experienced practitioners too – we must either see the practice die out, or accept somewhat higher risk levels for those who choose to try anyway.

    In vanilla too I think that many, of either sex, will prefer more risk and more sex than they can get with ‘enthusiastic consent’.

  153. Ally Fogg says

    Ah, see here is the difference between us still.

    In vanilla too I think that many, of either sex, will prefer more risk and more sex than they can get with ‘enthusiastic consent’.

    That strikes me as a complete non-sequitor. I don’t buy that there is any contradiction between enthusiastic consent and whatever kind of kink We have to understand that there are abuse fantasies around (the whole 50 Shades thing and so much else) and they are not the same as safe, mutually consenting BDSM relationships.

    I’m basically saying that I don’t buy your assumption that using principles of enthusiastic consent [or whatever we want to call it] means that people will have less ‘consenting but unenthusiastic’ sex and it certainly doesn’t mean we have less wild and wanton sex.

    My basic position is that practice of enthusiastic consent turns unenthusiastic sex into enthusiastic sex much more often than it turns unenthusiastic sex into no sex. Does that make sense?

    What it also does, of course, is turn unwanted sex into no sex. But that is a good thing.

  154. Rob says

    WineEm @155

    “Considering what a jacqu-off you’ve been”

    Jesus, well it is certainly interesting isn’t it, the way Ally and others have deemed it perfectly fine and legitimate to casually make all kinds of full-on sexual slurs against those arguing for a certain conceptual approach in this debate.

     
    Not a sexual slur. Just Asking QUestions. Hence Jaquing off…
     
    I’d also point out that no one is entitled to sex. If you’re not getting as much sex as you’d like/feel entitled to – tough. Shit happens. if you don’t have the ‘skills’ of others, learn to compensate by using other means. You write as if you are an intelligent rational person, apply some of those skills. Also, the myth that SJW’s dispensing this view of positive consent are only doing so because of all the fulfilling sex they get. Sheeeit. I wish.

  155. StillGjenganger says

    @Ally 167
    I understand the point, I just totally disagree. But sure, if you really believe that ‘enthusiastic consent’ means that nobody gets raped and every single individual is much happier and nobody loses anything, of course you are going to favour it. And if you think you are smart enough to take absolute responsibility for someone else’s well-being, even if the someone else might be refusing to cooperate, or lying about her preferences, or clinically insane (and you can hardly prove that she is not, can you?), well good luck to you. All I can tell you is that I am not that smart, not by a long chalk. I might get closer, of course, with years of practice, but it would hardly be ethical to try, given that I am admittedly unable to fulfil the minimum requirements. And anyway, who would volunteer to be practised on?

    Fortunately this is not a current practical problem for me. If it was I would chose to try for some sex, and simply get used to the idea that this means I might end up as a ‘rapist’ at some point. But as it is I am practising enthusiastic consent. I do nothing that might go wrong, I take no risks, I do not push anybody to do anything they might not want to consent to. I simply wait for somebody to turn up with a boundless enthusiasm for having sex with me. And since it has not happened yet I am confident that I have done nothing wrong since I took on this practice.

    Of course this is not to be blamed on feminism or ‘women’, or enthusiastic consent or anything else. It is simply the way my life turned out. But the facts remaijn.

  156. Holms says

    @JR 156
    Every time I see something like this, I think:
    Translation: If you care very little whether you have sex or not it is very easy to make sure you do not hurt anyone
    Explanation: Here speaks someone who knows from experience that he can get all the sex he needs while following the rules. This advice does not cost him anything, that is why he is so blythe about giving it.

    Translation: My desire to have sex takes priority any uncertainty that I have consent.

  157. Some Person says

    Ally [167]-

    “My basic position is that practice of enthusiastic consent turns unenthusiastic sex into enthusiastic sex much more often than it turns unenthusiastic sex into no sex. Does that make sense?”

    Unless you use a rather different definition of “enthusiastic” than I employ, I find that hard to square with your statement in [136] that people often (and there will certainly be disagreement about the extent and the prevalence) aren’t certain what they want, and if they are, aren’t usually readily able to communicate appropriately, and/or prefer not to do so.

    “For what it is worth, I think there is a different, better objection to positive / enthusiastic / affirmative consent ideas. That is to do with shyness, social awkwardness, embarrassment, nervousness etc. Some people find it really, really difficult to tell other people what they want. They would rather something ‘just happened’ than have to express their desires. In the real world that is a real problem and I’m more than happy to continue that debate any time.

    As I mentioned above, even if I may not agree with the risk assessment and the consequences in detail, I can understand the logic if the social/political statement is: the risk of the consequences of sexual accidents is so high, we cannot risk any in order to facilitate free expression, so we’re introducing official speedbumps, knowing full well that people will find them annoying and difficult to navigate. We’re just hoping they’ll still like driving so much they’ll accept the restrictions (or accept damage to their cars should they run over the speedbumps). And if they drive less often, that’s not a bad thing.

    But, again, if the speedbumps are not only increasing safety but are designed in a way that current cars cannot reasonably expected to manage to get over them, these speedbumps will probably incur a lot of opposition from everyone who was happily getting to places before and now cannot.

    I noticed you haven’t reply to my question above yet, whether you think it is possible to help drivers adjust their driving style in a way that they can drive over speedbumps with their regular cars. Do you think that can be done? Do have any idea how to do that practically?

  158. StillGjenganger says

    Translation: My desire to have sex takes priority any uncertainty that I have consent.

    Not without limits. But I am willing to accept some additional undertainty in the interest of sex, yes. Much like I am willing to accept an increased risk of hijacking in the interest of having carry-on luggage.

  159. Ally Fogg says

    Gjenganger

    And if you think you are smart enough to take absolute responsibility for someone else’s well-being, even if the someone else might be refusing to cooperate, or lying about her preferences, or clinically insane (and you can hardly prove that she is not, can you?), well good luck to you.

    Who said anything about taking absolute responsibility for someone else’s wellbeing? Of course that is not possible. All that is possible is to take absolute responsibility for one’s own behaviour.

    It is perfectly possible to do everything right, and for whatever reason it all turns out badly for one party or other or both. Shit happens.

    Enthusiastic consent is not a magic wand that will cure everyone’s emotional and sexual hang-ups and sprinkle fairy dust over out collective sex lives.

  160. Ally Fogg says

    Some Person [171]

    Unless you use a rather different definition of “enthusiastic” than I employ, I find that hard to square with your statement in [136] that people often (and there will certainly be disagreement about the extent and the prevalence) aren’t certain what they want, and if they are, aren’t usually readily able to communicate appropriately, and/or prefer not to do so.

    Why?

    I should say I’m actually not a big fan of the phrase ‘enthusiastic consent’ – I prefer positive consent or affirmative consent, but people keep throwing that phrase around so we’re using it anyway.

    But in any case, the point I am making is that the process of establishing consent is actually sexy in itself. When you are not sure if you want to do something you tend to enjoy it less, So it is precisely the situation I described in [136] that is helped by pursuit of affirmed consent.

  161. Ally Fogg says

    Gjenganger

    Not without limits. But I am willing to accept some additional undertainty in the interest of sex, yes. Much like I am willing to accept an increased risk of hijacking in the interest of having carry-on luggage.

    That analogy doesn’t really work though, because it is not really you taking the risk with the ‘uncertainty’ as you call it. You are imposing the risk upon someone else.

    It is more akin to “I am willing to accept some additional uncertainty in the interest of sex, yes. Much like I am willing to accept an increased risk of running over a pedestrian in the interests of being able to drive home after a few pints in the pub.”

  162. StllGjenganger says

    @Ally

    1) Absolute responsibility for someone else’s wellbeing? Well, you said that “We all have responsibility for our own behaviour, ie we are all ultimately responsible for ensuring we do not rape another person.” You also say that it makes no difference what the other person says or does; so if my bedmate wakes up next day feeling raped the responsibility is all mine. If that is not absolute responsibility I do not know what it is.

    2) As for your ‘driving home after a few pints’ I think you are fudging that one, frankly. My starting point is that I am willing to follow the agreed rules, I am just arguing about what they should be. If I push for allowing carry-on luggage, the predictable consequence is that at some point a plane will be hijacked or brought down because of it. Having been a small part in taking the decision, I have a small part in the moral responsibility; whether the weapon travels in my bag, or I am on the hijacked plane is neither here nor there.

    I would not deny that I run less risk than others from a more relaxed consent regime. But that is par for the course. Rules affect everybody, so everybody gets their input. There are always groups with different interests whenever you are setting any kind of standard. And it is always more attractive to make a trade-off if he price is paid by someone else. In this case, for instance, it is attractive for feminists to push for a very demanding standard of consent, because women get most of the security benefit and men do most of the work. And it is quite attractive for well-talking, self-assured people with a secure sex life to push for deep understanding and lots of talking as a prerequisite for having sex – because they will lose nothing by it.

    the process of establishing consent is actually sexy in itself. When you are not sure if you want to do something you tend to enjoy it less, So it is precisely the situation I described in [136] that is helped by pursuit of affirmed consent

    Are you telling us, by any chance, that you know better than we do how to improve our sex life?

  163. Some Person says

    Ally [174],

    “Why?”

    Because it really doesn’t seem to add up for me. One point is assuming that people are able to communicate their consent in a perceptible way, the other assumes the opposite. If someone would like to make out but cannot say yes, because of whatever reason, then that’s an impossible situation. He may not ask, because she doesn’t like to be asked (put in the position to have to affirm her desire), he has to hear yes, she cannot bring herself to say it. Either one person ignores the rules or nothing happens. I would say this is a common scenario under affirmative consent

    “I should say I’m actually not a big fan of the phrase ‘enthusiastic consent’ – I prefer positive consent or affirmative consent, but people keep throwing that phrase around so we’re using it anyway.”

    You’re making an important point. Maybe we should attempt to clarify the various terms used so we can better understand what the other is referring to. It’s not like these terms have a standing definition. For me “enthusiastic” consent means that the other person is actively escalating the interaction in a way that will make it hard to identify an active or a passive party. “Positive” consent is something that feminists have come up with to denote something that allows an active and passive party but requires more than “silent” consent, which could be easily mistaken for non-consent. Affirmative consent goes further than positive consent but means all kinds of things from ex-ante non-verbal consent to step-by-step verbal consent requirement to possibly every thrust (if sex is had) given the lack of specification of “sexual activity” in the College codes.

    “But in any case, the point I am making is that the process of establishing consent is actually sexy in itself. When you are not sure if you want to do something you tend to enjoy it less, So it is precisely the situation I described in [136] that is helped by pursuit of affirmed consent.”

    Well, that’s interesting. I think the process of establishing consent may possibly not have to be *un*sexy, yet that most people aren’t able to do so – even if they’re willing to try. And this is exactly my question, which you haven’t answered yet: Do you believe that people can be taught how to do this? at all? In a sexy way? I have doubts about people’s ability to achieve that kind of fluency in “seduction”. But you seem to believe it is possible, if your main point is that “the process of establishing (verbal?) consent is sexy in itself”.

    Are there any resources you’re aware of about that? Because all I’ve seen so far is on the level of Monty Python, not of something “sexy in itself”.

  164. Ally Fogg says

    Gjenganger [176]

    You also say that it makes no difference what the other person says or does; so if my bedmate wakes up next day feeling raped the responsibility is all mine. If that is not absolute responsibility I do not know what it is.

    If your bedmate wakes up “feeling raped” because of that was a predictable consequence of your behaviour, then yes the responsibility is yours, because you were responsible for that behaviour.

    If your bedmate wakes up “feeling raped” because s/he just had a dream about being raped, then no, you are not responsible for those feelings.

    And I have to add that with very, very, very rare exceptions, when someone wakes up “feeling raped” it is because they were raped, or at least subjected to some kind of abusive experience, the very same abusive experiences we are trying to eliminate here.

    The idea that people suddenly start “feeling raped” when they wake up and realise they’ve had sex they regretted is pretty much a myth. Yes, of course it can happen and there are documented cases, because human beings do all kinds of weird shit, but it is really not a common occurrence.

    “Are you telling us, by any chance, that you know better than we do how to improve our sex life?”

    Well, given that you seem to be falling over yourself to talk about all the infrequent, insecure, nervous, unenthusiastic, unrewarding and borderline abusive sex people are having on your side of the argument, maybe that is what is needed?

  165. Lucythoughts says

    I’ve just checked back in on this thread and frankly it’s a bit depressing. It seems that we have now moved from a culture where we have “good” and “bad” victims to one where we have “good and “bad” rapists too. There are, as we all know, the terrible sexual predators that prowl the night but, hey, we can’t do anything about them because they don’t obey societies rules do they? And we also have a lot of poor sods who are just making “honest mistakes” because they can’t read facial expressions very well. I kind of understand what motivates this thinking: contemplating a deliberate rape produced a cold visceral feeling and when we think of the numbers involved it becomes clear that we have probably not only met a fair few victims but a number of rapists too in daily life. Not a nice thought. Much better to think that “nice normal people like me” and basically screwing up out of inexperience or confusing circumstances without being actually ill intentioned. We say, “it was reasonable for that person to push their luck a bit, it’s horrible for the victim but really it could happen to anyone”. So now we can not only victimless crimes, but also perpetratorless crimes too. Brilliant.

    Well let me say a bit about boundaries because abuse, whether sexual, physical, emotional is essentially a violation of someone’s boundaries. My THREE YEAR OLD is able to make it clear what his boundaries are. My FIVE AND A HALF YEAR OLD can not only express her own boundaries but has a sophisticated understanding of other peoples as well. Now she may be more socially sensitive than the average five year old but I would despair to think that she’s more sensitive than the average fifteen year old or the average adult. People don’t transgress other people’s boundaries because they don’t know they are there, they do it because they don’t value them. They don’t think the other person has a right to their boundaries or that they can ignore their boundaries because they are in the “wrong” place. In normal sexual situations you might accidentally cross someone’s boundaries but you are not going to piss all over them without knowing that that is what you are doing. The difference between the “scary sexual predator” and the “nice normal person just like us” is that the first is getting an active power thrill out of violating someone else’s boundaries and the second has simply dehumanised the other person to such an extent that they don’t give a shit where their boundaries are.

    Now this aught to PLEASE people, because it means that no, you will not rape someone by accident. You will not end up in the dock over a mistake. There is no law against bad sex, or selfish sex, or taking a short step too far and then saying “oops, sorry!” and backing off again. You do know where people’s boundaries are even if you don’t always trust yourself. You really can stop worrying; you are at least as sensitive as a five year old. So PLEASE STOP THIS. The myths around victim blaming and perpetrator excusing are two sides of the same coin and it isn’t just bad because it stops rapes being prosecuted; it isn’t just bad because it isolates victims and makes them less likely to come forward; it is bad because it is the primary mechanism by which the victims of sexual assaults, male and female, torture themselves in the weeks, months and YEARS that follow. It is the reason they keep thinking “maybe it is my fault because I said this, or did that, or thought such and such or experienced these sensations”. It doesn’t reflect the reality of human experience, it is pernicious and it hurts people.

  166. Melissa Trible says

    Gjenganger: I will note, given typical interpersonal sexual dynamics (assuming you are, as I suspect, a heterosexual male), that you are more likely to be in the category of unintentional rapist than unintentional rape victim. So your willingness to accept additional risk in this case strikes me as… not entirely unlike an objection to a rule that promotes pedestrian safety by someone who drives most of the time. You may be putting yourself at increased risk of doing bad things, but in most circumstances you are not putting yourself at any greatly increased risk of having bad things done to you, even if everyone followed the rules to the same degree that you intend to.

    You do see where that’s… at least a *little* problematic, right?

  167. Ally Fogg says

    Lucythoughts

    it isn’t just bad because it isolates victims and makes them less likely to come forward; it is bad because it is the primary mechanism by which the victims of sexual assaults, male and female, torture themselves in the weeks, months and YEARS that follow. It is the reason they keep thinking “maybe it is my fault because I said this, or did that, or thought such and such or experienced these sensations”. It doesn’t reflect the reality of human experience, it is pernicious and it hurts people.

    Really good point, really well made.

  168. StillGjenganger says

    @Melissa 180
    You are quite right. But, by the same token, any woman who is agitating for tighter rules about consent is pushing for something where the benefit goes to herself (and sisters) and where the extra hassle will be borne by someone else (men). This is normal. Different groups have different interests, the final result should consider all of them. What is a reasonable compromise depends on the numbers involved, the seriousness of the concerns, and, crucially, how well each proposal actually solves the problem. The risk of getting raped is obviously much more important than the risk of having your sex life muddled up, and deserves correspondingly higher weight. But it is neither fair nor efficient to say that because your problem is bigger than mine, mine should not even be considered.

  169. StillGjenganger says

    @Ally 178

    And I have to add that with very, very, very rare exceptions, when someone wakes up “feeling raped” it is because they were raped, or at least subjected to some kind of abusive experience,

    I would mostly agree with that. But give me a break. We are supposed to be discussing where to draw the line between illegal, reckless, and normal behaviour. We might end up agreeing that I was wrong. But we cannot even discuss the point unless we make a distinction between ‘being raped’ and ‘feeling raped’. If I say ‘If my bedmate wakes up next morning and has been raped’ I would kind of be pre-judging the conclusion, no? To illustrate the difference, let us look at a scenario like the Ched Evans case *). When the lady wakes up, hung over, filthy, with vague but disturbing memories of what happened in the night, she is ‘feeling raped’, Whether she ‘was raped’ depends on what she said and did the night before, how drunk she was, and in general exactly what happened. I would say that it makes little difference to her suffering whether someone disregarded her lack of consent, whether she needed loving support afterwards and crashed when she did not get it, or whether she is (or was) in some weird mental state. She deserves the same sympathy either way. But when we start judging her bedmate, we have to look at what happened, not just at how she feels.

    If your bedmate wakes up “feeling raped” because of that was a predictable consequence of your behaviour, then yes the responsibility is yours

    .’Predictable’ consequence? Well, if I know in advance what will happen, of course I am responsible. If I know that it is possible? It is always possible, just more or less likely. This is where we get into likelihoods, risks, and trade-offs. Let us take traffic, which you seem to like. If I am driving a car, it is always possible that a pedestrian jumps straight in front of me and gets killed. I cannot prevent it, short of having a man with a flag walk in front of the car. So, what do I do? In practice I stick to the rules of the road: speed limit, blood alcohol limit, stop at pedestrian crossings etc, and assume that this puts me where society thinks I have a right to be. I add whatever extra caution that seems warranted for bad conditions, children playing, or my lack of skill. Of course, if a pedestrian crosses on a red in front of me I do not bear down and kill him, and tell the judge that ‘the light was green, I was within my rights’. But if I am doing 30mph in a 30mph zone and that child jumps in front of me, I will feel devastated, but I will not tell myself that I am a murderer because I should have been doing 15mph instead.

    In traffic, the rules and speed limits are a compromise between the need to avoid accidents, and the need to get from A to B at a reasonable speed with a reasonable spending on safety features. Individually and collectively we accept that it is worth a certain number of deaths to keep the traffic flowing – the alternative would be a global 15mph speed limit. In sex too we need to settle on some rules, and we need to balance both fun and safety when we do it. To take an example, it might reduce ‘adverse events’ quite significantly if we could stop people drinking before they have sex. Note that this is something you can enforce individually, just make it a firm rule that you never let anyone above your knee unless both of you are sober. Now you can certainly say that this is an imposition and you are not willing to do it – but you cannot come afterwards and say that your safety is paramount and you would never trade it away for anything.

    Finally:

    Well, given that you seem to be falling over yourself to talk about all the infrequent, insecure, nervous, unenthusiastic, unrewarding and borderline abusive sex people are having on your side of the argument, maybe that is what is needed

    I am all for better communication and mutual understanding. The problem is what restrictions we put on those who have not yet reached master level. As it is, you remind me of a sex-negative feminist talking to prostitutes: ‘Since your life is so obviously shit, surely you need people like me to tell you how to live it?’

    *) To avoid misunderstandings, I am quite convinced that the lady in question was raped (by Ched Evans). Anyway, it has been proved beyond reasonable doubt.

  170. StillGjenganger says

    @Lucythoughts 179
    This ought to please me, yes, but I am not convinced. I do not ask you to take me at my word, but I know for a fact that I care about other people’s boundaries (you do not think I would be agonising so much over these matters if I really did not give a shit, do you?). And I am socially sensitive enough to not be a cripple, at least. So, if I took you at your word, I could say to myself and to pesky agitators like Ally that I am a good guy, I care, and therefore I can simply follow my feelings without risk. I will never rape anyone. No need for all this affirmative consent stuff, that is for the bad guys, I am safe. And lookee, most of the male population could say the same. Whew, what a relief! Let’s go to the nearest club and look for some fun.

    The thing is I do not believe this is true (and I doubt that you do either). If I stop worrying and holding back, I suspect that I could put someone in a very unpleasant situation for the next morning, given sufficient bad luck. Or at least I could have done, back when I was younger and still playing. What I am asking for (as it were) is rather less than you seem to promise: A set of behaviour rules that frees me from having to worry whether I am really, really, really (but really) sure, and that lets me feel that if it goes wrong, despite my precautions, I can tell myself that this was an accident, not rape (and that preferably does not require me to be a master-level reader of body language before I can even start). And the answer I get from people like Ally is I am responsible for making sure that nothing bad happens. All I can say is that you and Ally do not seem to be in agreement.

    For the rest, I cannot believe that every time someone experiences being raped (note the wording), it can always be blamed on wilful disregard of their boundaries. Enough bad luck, and ‘bad sex, or selfish sex, or taking a short step too far’ can send the victim down for the count. Eleanor de Freitas (poor woman) would seem to be one example, on the available evidence.

    And (though I am speaking from complete ignorance here) I wonder if anything can save the victims of sexual assaults from ‘tortur[ing] themselves in the weeks, months and years that follow’. Alas. Do they not speak of ‘survivor guilt’, where people can torture themselves with guilt simply because they were in a disaster but survived where others died?

  171. Some Person says

    Lucythoughts,

    “Now this aught to PLEASE people, because it means that no, you will not rape someone by accident. You will not end up in the dock over a mistake. There is no law against bad sex, or selfish sex, or taking a short step too far and then saying “oops, sorry!” and backing off again. You do know where people’s boundaries are even if you don’t always trust yourself. You really can stop worrying; you are at least as sensitive as a five year old.”

    You wouldn’t believe how many female friends tell me to stop worrying and “just go for it”. They seem to echo your thoughts. Which really makes me wonder: What you’re saying here is not the message I hear constantly repeated: your message basically, to me, boils down to: you can *trust yourself*. Is that what you hear when people talk about the need for affirmative/antioch-style-step-by-step-ex-ante-and-for-every-specific-part-of-the-act-verbal consent? Because that other message, to me, really sounds like – “you shouldn’t trust yourself”.

    Btw, as for difficulty of trusting oneself, difficulty of communication and boundaries, and their recognizability in a specific case – I just had a wonderful evening with a woman who, on one of our first “dates” (for lack of a better word, I have no idea what our relationship is, or could be, it’s also not “just” friends, there’s definitely a certain mutual sexual attraction), that she was raped a long time ago. I’m pretty sure she told me that to tell me to be particularly careful with her (not knowing how careful I am for my own mental peace), but also to show me the extent to which she trusts me, and possibly explain some of her possible reactions to whatever I may attempt. I’m overly afraid of initiating anything myself in the most circumstances, mostly hoping the women will eventually do something themselves. Which happens, albeit rarely. She’s not going to do that (I think). And I won’t either, certainly after what she told me. I like her and will spend more time with her, but the fear of making mistakes is too much. So here’s two people who may (or may not, if actually presented with the idea in more than the abstract) be sexually and/or romantically interested in the other, who will (very likely) end up somehow hurting the other by being too careful, *hurting the other by trying to avoid hurting the other*, and thus almost ensuring nothing is ever going to “happen”.

  172. Some Person says

    @StillGjenganger [184] –

    “What I am asking for (as it were) is rather less than you seem to promise: A set of behaviour rules that frees me from having to worry whether I am really, really, really (but really) sure, and that lets me feel that if it goes wrong, despite my precautions, I can tell myself that this was an accident, not rape (and that preferably does not require me to be a master-level reader of body language before I can even start).”

    I’m afraid that, until the day society actually believes that women want sex as much as men, that set of rules will have to be the kind of contractual style yes-means-yes rules I don’t think are behaviorally appropriate for human mating, but will give you the feeling of safety you want (for legal safety you may still need a video camera). Or actual contracts outlining contingencies like BDSM. Maybe there will be “no-means-no”-rooms in clubs where people sign the rules by walking through the door…

  173. Ally Fogg says

    Gjenganger

    If we have to go for the motoring analogy (and yes, I know I started it) it seems to me that we are not really arguing about the objective nuts and bolts of the law, so it is not about observing the speed limit at 30mph or having less than xx % alcohol in your bloodstream.

    It is more about dangerous driving. You can keep to the legal speed limits and be under the alcohol limit but still hurl yourself around corners or push it to the limit with tailgating people and driving dangerously. A copper *might* see you and consider prosecuting you for dangerous driving, but the issue is not really about the law. It is about not being a selfish, inconsiderate dick who is unnecessarily a danger to others in pursuit of self-interested goals.

  174. Ally Fogg says

    SomePerson [185]

    That is a really difficult situation you outline.

    I would say that actually this is exactly the kind of situation I was talking about earlier, where if you could be persuaded to pursue real and positive consent, you could easily end up with a far happier and healthier relationship (whether that is a sexual relationship or not) than you would do otherwise.

  175. Melissa Trible says

    For all of those “but where do we draw the line” types: may I suggest this as the bare minimum standard?

    Before engaging in sexual activity that reasonably counts as “sex” in most people’s minds (eg oral, vaginal, or anal intercourse), you should, at least once during the proceedings, get either a clear verbal “yes” (to a question along the lines of “would you like to have sex with me?”), or *absolutely unambiguous* nonverbal cues. Once someone has said yes, it’s their responsibility to say no if they change their minds, but barring, eg, them grabbing you and pulling bits of you towards their crotch, you don’t get to *assume* a yes without hearing one.

    Can we agree to that as a minimum standard?

  176. Some Person says

    Ally[188]-

    “That is a really difficult situation you outline.

    I would say that actually this is exactly the kind of situation I was talking about earlier, where if you could be persuaded to pursue real and positive consent, you could easily end up with a far happier and healthier relationship (whether that is a sexual relationship or not) than you would do otherwise.”

    Yes, sadly, that’s difficult. As for the second part, I’m confused. Even more than before, I’m getting the impression that we keep talking past each other. Is that a “general” or a personal “you” in the second phrase? Because at no point did I say that I’m against “better consent” (hey, yet another undefined term), I – like you did – merely suggested that it’s not easy, and in many instances *too complicated* for most people, not least since *wiggle room* and deniability is what most people crave in most interactions, not only sexual or romantic ones. So, yes, you’re right that this is one of the cases where a) more talking will/would do more good than bad and b) clearly would be the only safe way to go. But sadly, I don’t think either of us will feel up to the job of taking it there, mostly for fear of hurting the other and a little for fear of embarrassing ourselves. Which is, again, not a statement dismissing the approach per se, but merely an attempt to point out my experience-based understanding that we (humans) generally aren’t up for that – it’s the way we’d like to be rather than the way we are. And Lucysthoughts and you seem to suggest the very same thing in your own words.

  177. Some Person says

    Melissa Trible [189]

    “Can we agree to that as a minimum standard?”

    I find that very reasonable. As I mentioned a couple of times before, my concern is *not* with being *absolutely* sure – and making sure before anything happens – at that point of an interaction. I think the way Ally presented the current interpretation of the UK law is entirely appropriate. My concern begins with the formatlization of the interaction in the antioch-style yes-means-yes legislation now codified at many, if not most, US universities, and likely bound to become the law of the land/some states there at some point, and may well cross the Atlantic. My concern is with legally forcing people to adhere to behavior for “sexual activity” (without explaining what that means legally) some of the (I assume) women in this thread also find without problem – like making out and letting one’s hands wander without asking before if one may touch the left breast, right breast, shoulder, arm, etc, instead of, at this point, waiting if there’s any objection, particularly if there’s a) no operationlisation for the terminology, and b) that’s not what people want and are able to do.

    According to that legislation, your “minimum standard” requirement certainly would not suffice: this is from a US law professor’s blog I once found by googling “affirmative consent” –

    “California, for instance, explicitly states that affirmative consent must be ongoing, but what does that mean? Does affirmative consent exist unless and until B revokes it, or must B continue to affirmatively consent (as opposed to consent) during the entire sexual encounter? Under the latter definition, B’s initial consent even though never revoked seems to be legally insufficient.

    SUNY says that “Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.” How do we define sexual act, and what is the line between a prior and a current sexual activity? In California, for instance, the jury instruction given in rape trials states “Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.” Applying affirmative consent to that definition would seem to require B to affirmatively consent to each penetration.”

  178. Rob says

    SomePerson @191

    According to that legislation, your “minimum standard” requirement certainly would not suffice: this is from a US law professor’s blog I once found by googling “affirmative consent” –

    “California, for instance, explicitly states that affirmative consent must be ongoing, but what does that mean? Does affirmative consent exist unless and until B revokes it, or must B continue to affirmatively consent (as opposed to consent) during the entire sexual encounter? Under the latter definition, B’s initial consent even though never revoked seems to be legally insufficient.

    SUNY says that “Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.” How do we define sexual act, and what is the line between a prior and a current sexual activity? In California, for instance, the jury instruction given in rape trials states “Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.” Applying affirmative consent to that definition would seem to require B to affirmatively consent to each penetration.”

     
    IANAL, but I do work with them on a regular basis. One thing I’ve learnt is that they love to argue about the law and to take abstract, sometimes far fetched, positions simply for the debate of it, regardless of what they actually believe. What’s more, in a court of law they are allowed to take whatever position suits their client (hence the alternative name advocate). For every lawyer (or law professor) you find who will take the stance above you’ll find another who will take a contrary stance. It’s the decisions that judges, and especially appeal court judges, make that matters.
     
    How about this for a set of real world working definitions:
    – Person X had sex/did something with me last year/month/week/an hour ago/just before. Can I still assume consent? No.
    – Should I re-establish consent? Yes. Note, if you had just finished doing whatever a few minutes ago, that could be as simple as a devilish grin, coupled with a “That was fun! Round two?”
    – What counts as a ‘sexual act’ obviously varies in cultural context. for example in some western cultures a brief kiss on each cheek on greeting and sometimes departure is not sexual, but attempting the same kiss at other times could easily be perceived that way. Lets assume Anglo culture for a moment which is much less touchy feely. Want to kiss? Get a yes or an unambiguous non-verbal (see multiple posts above). Assume that leads to tongue wrestling and general non-specific fondling. Want to start playing with breasts/crotch or hands inside clothes? Proceed with caution, looking for non-verbal yes/no. If in doubt seek a brief verbal “ok?”. Want to escalate further? Rinse and repeat. It just ain’t that hard. (no pun intended)

  179. StillGjenganger says

    @Melissa 189
    That sounds fairly reasonable. ‘Positive consent’, right? I might relax it slightly at the edges (just how clear must ‘absolutely unambiguous’ be; if you know each other well, sexually, you might not need to hear the word each time, …). On the other hand, you would need to add a duty of care – even if consent lasts until withdrawn you must still be alert for signs that something is wrong, and stop to check without being asked if you find any. Mind reading cannot be a requirement, but you should at least make a god faith effort. But then, I would not want to operate right at the bare minimum anyway, I just need to know where it is.

  180. StillGjenganger says

    @Ally 187

    It is about not being a selfish, inconsiderate dick who is unnecessarily a danger to others in pursuit of self-interested goals.

    Yes. And it is about what level of precautions you would need to take in order not to be a selfish, inconsiderate etc. I find you (and friends) really hard to pin down, but ti sounds very much like you are arguing from the outcome. ‘If somebody has the subjective experience of having been raped (how is this for a wording?) that is proof that their consent has been wilfully disregarded and that the other party has not fulfilled his obligations’. Which keeps sounding like ‘absolute responsibility to me.

  181. Ally Fogg says

    Some Person [190]

    My “you” was both a specific you, speaking about the situation you outlined above, but also a non-specific ‘one’ because most of us are in similar situations at some time.

    As for the rest, all I can say is fine, if it is your choice (both of you) not to take things any further, fair enough. However in that case it sounds like it will not be because attaining affirmative, express consent is too difficult, it will be because the whole business of attaining any kind of consent – ie the whole business of somehow getting into bed with each other – is too difficult. If so that is sad, not uncommon, but not really anything to do with the discussion at hand.

  182. StillGjenganger says

    @Melissa 189 (again)
    In fact I think that once we have settled the limits of rape in a way that people can make sense of, we are more free to tell them what they need to do – just in order not to be an arsehole. For instance, I would put in the course that the more adventurous kinds of sex (multiple partners, anal, filming the event, any kind of kink – pragmatically anything they cannot find at the standard rate on a hooker’s web site) require a higher level of care and should be left out of the first date altogether. The limits of rape will not help you here (consent is consent, no matter what you are consenting to). But we can tell them that if they go for the fancy stuff, it is more likely that they will misunderstand any consent, more liikely that she will feel devastated when she wakes up, more likely that she will report them to the police, and (for the self-interested) less likely that the jury will believe their version of events.

    (To Ally: Sorry about the pronouns. But it loses a lot in vividness if I rewrite it for an abstract human being).

  183. Ally Fogg says

    Gjenganger [194]

    Yes. And it is about what level of precautions you would need to take in order not to be a selfish, inconsiderate etc. I find you (and friends) really hard to pin down, but ti sounds very much like you are arguing from the outcome. ‘If somebody has the subjective experience of having been raped (how is this for a wording?) that is proof that their consent has been wilfully disregarded and that the other party has not fulfilled his obligations’. Which keeps sounding like ‘absolute responsibility to me.

    And I can’t understand why you need to unnecessarily complicate this with talk about “the subjective experience of having been raped.”

    To me it is as bizarre as talking about the whether or not it is your responsibility if someone has the subjective experience of feeling pain.

    And the answer is yes, if the reason they have the subjective experience of feeling pain is because you just punched them on the nose.

    It might help at this point to go right back to the OP and the TV programme.

    The girl in that dramatization “woke up with the subjective experience of feeling raped.”

    The reason she “woke up with the subjective experience of feeling raped” is because she had been raped.

    The reason she had been raped is because the boy in the dramatization did not have any proper reason to believe he had her consent before he stuck his cock in her mouth.

    The reason he didn’t have any proper reason to believe he had her consent was because he didn’t have her consent, she didn’t want any sex to take place.

    What I and my side of the argument are saying here is that this was the correct verdict both legally and morally.

    Perhaps it might be the case that if that boy had been taught and told that behaviour like that he displayed was rape in both morality and law, and that it could result in him going to prison for 7 years, he might well not have done it. Affirmative consent education could possibly have saved him from his fate, prevented him from becoming a rapist and protected the woman from being raped.

    There is also the possibility that he didn’t care about the morality and was willing to take his chances with the law, and was sufficiently determined or desperate for some kind of sex that he would have raped her anyway and all the consent standards in the world wouldn’t have changed that, but clearly there is no kind of grey area there, he is just a rapist.

    Now it seems to me that is the beginning and the end of the debate here. Everything else ,from discussions about the putative responsibility of the woman involved, any discussions about the subjective experience of feeling raped, all the other things that have come up over the past 200 comments do not actually change the basic points above, they do absolutely nothing but muddy the waters, and make the whole scenario, the whole argument look more complicated than it actually is, the waters should actually be pretty clear.

  184. Ally Fogg says

    and just to add, in the light of [196] another basic point that is being lost.

    What I and others have been doing here is put forward a very basic rule which we can all adhere to and act as a very reasonable equivalent to a hard and fast rule, a speed limit if you like.

    The rule is this: you do not impose sexual acts upon someone without that person giving you clear and specific reasons to believe that those acts will be welcomed.

    Is that not clear enough?

    Is it not simple enough?

  185. StillGjenganger says

    @Ally
    Sounds like we are winding this one up. So

    – I did not see the film, so I can have no opinion on the verdict in it. Quite possibly you are right.

    – If you will not make a distinction between the subjective experience and actual fact of rape, even for the sake of argument, the discussion is closed off from the start. By your definition, if A has sex with B and B feels raped afterwards, A is morally and legally guilty of rape, no matter what he did or did not do. Questions like reasonable level of care (or even reasonable belief in consent) are simply irrelevant, the decision is all inside the head of B. From which I would conclude that raping someone is one of the unavoidable risks of having sex, much like having an accident is an unavoidable risk of driving a car.

    – Your rules are clear and specific enough. The problem I have with them is that a large minority (at the very least) of current sex acts are flouting those rules, and a certain number of people of both sexes find them anywhere from hard to impossible to follow. Which does make them less valuble in my eyes.

  186. Lucythoughts says

    StillGjenganger #184
    “This ought to please me, yes, but I am not convinced. I do not ask you to take me at my word, but I know for a fact that I care about other people’s boundaries (you do not think I would be agonising so much over these matters if I really did not give a shit, do you?). And I am socially sensitive enough to not be a cripple, at least. So, if I took you at your word, I could say to myself and to pesky agitators like Ally that I am a good guy, I care, and therefore I can simply follow my feelings without risk. I will never rape anyone. No need for all this affirmative consent stuff, that is for the bad guys, I am safe. And lookee, most of the male population could say the same. Whew, what a relief! Let’s go to the nearest club and look for some fun.

    The thing is I do not believe this is true (and I doubt that you do either). If I stop worrying and holding back, I suspect that I could put someone in a very unpleasant situation for the next morning, given sufficient bad luck”

    I am not witness to everybody else’s sex lives but I sincerely believe that in real life positive consent is basically what nearly everybody is doing nearly all of the time. In reality, we are constantly looking for implicit and explicit signs that the other person is consenting not only because we don’t want to hurt anyone but because we don’t want to misread the situation and experience the humiliation of finding out we were wrong. The cases where people proceed with a sex act in the absence of clear signals of consent are on the margins and are all too often in the context of some form of abuse. You’d be surprised, I suspect, how many people are willing to smash right through someone else’s boundaries but would never for a heartbeat think that the word “rapist” could be applied to them. This is the purpose of defining what positive consent is, it is not to police or alter normal sexual behaviour, it is to make it absolutely clear what society expects as a minimum standard. There are many people I’m afraid who consider that coercing acquiescence to sex in some way or another is enough.

    You ask for a set of rules you can follow and I think they’ve been articulated over and over again in this thread: you look for clear signs that the other person is at least content if not actively happy with what is going on, if you are in doubt, you ask them. The responsibility is not shared but rather it applies equally and individually to everyone. It really is as simple as that and it is not hard to follow, your “good guys” and also good women are doing it all the time and very rarely, if ever, get it wrong. That is why I find this debate so frustrating because the cases when you might genuinely “make a mistake” are so incredibly marginal and yet it sounds like this is how normal sex works and, yes, I do think this damages victims by shifting the whole focus away from the very real and common situations where people disregard other people’s sexual boundaries and perpetuating the myth that it is quite normal to have sex with someone without any reasonable grounds to believe they wanted you to.

    “For the rest, I cannot believe that every time someone experiences being raped (note the wording), it can always be blamed on wilful disregard of their boundaries. Enough bad luck, and ‘bad sex, or selfish sex, or taking a short step too far’ can send the victim down for the count. Eleanor de Freitas (poor woman) would seem to be one example, on the available evidence. ”

    These other issues you raise are more complex and they are to do with minimising the risk that either of you are going to seriously regret what has happened. That’s an important issue but there is a world of difference between “waking up feeling used” and “waking up feeling raped” and I think conflating the two is damaging. You keep writing about minimising the risks of someone you have been with “feeling raped” afterwards as if you believe that feeling raped is a common result of misjudged sex and it simply isn’t. The examples of when this does happen usually involve someone who is suffering from a serious mental illness as Eleanor de Freitas was. Now there is very little that anyone can do to prevent someone they’ve had sex with from having a mental breakdown or a psychotic episode afterwards, but that isn’t really what consent rules are for is it? Even treating someone with the utmost respect imaginable can’t protect you from this, anymore than I can protect myself from someone who is having a psychotic episode pushing me into traffic. Both happen, both are rare and it isn’t helpful to use these instances to judge normal conduct either on the pavement or in bed.

    Seeking positive consent is about making sure you don’t actually rape anyone, not making sure you don’t hurt them emotionally. The really good guys and woman look not only for assurance of consent but for assurance that their sexual partner is emotionally stable and knows what they are getting into. I know people who like to have casual sex and they are not only good but bloody brilliant at this. They are far more explicit in terms of laying out ground rules in advance than people who are having sex predominantly within relationships, including newly established relationships, because they know that the risks, not of raping someone, but of hurting someone, are high and they care about it.

    “And (though I am speaking from complete ignorance here) I wonder if anything can save the victims of sexual assaults from ‘tortur[ing] themselves in the weeks, months and years that follow’. Alas. Do they not speak of ‘survivor guilt’, where people can torture themselves with guilt simply because they were in a disaster but survived where others died?”

    What we can do it not reinforce their self-blame by constantly saying and implying “yes, it is normal to have sex with someone who hasn’t given consent, it’s a common enough error” and “it was your responsibility to give an absolute unequivocal verbal negative to sex and if you didn’t, then I’m sorry but you weren’t really raped” and “people who freeze when assaulted are frankly just being silly and irrational” and “lots of people who have bad sex think they’ve been raped but it doesn’t mean they have” and in the case of male victims the particularly vile assertion that having a physiological response somehow constitutes consent. People are always inclined to blame themselves for bad things that weren’t their fault but in this case the debate around rape constantly slaps them in the face with idea that their self-blame is justified. This is reflected also in the responses they get when they tell people, including close family and friends that they have been raped.

    Oh and as an aside, thank you for correcting my spelling, I noticed the typo after I’d posted but it was a bit late by then .

  187. Some Person says

    Ally[195],

    “However in that case it sounds like it will not be because attaining affirmative, express consent is too difficult, it will be because the whole business of attaining any kind of consent – ie the whole business of somehow getting into bed with each other – is too difficult. If so that is sad, not uncommon, but not really anything to do with the discussion at hand.”

    maybe, and maybe, quite possibly, that’s where my feeling of talking past each other comes from. I believed your statement before, that most people find it difficult to say what they want because they don’t know or cannot verbalize it, and that this was a fair objection to affirmative consent, was an admission that these laws *have* to do with it – maybe not in my/this specific case, but in general. Because I believe that, in most cases, that process is so difficult already that I feel the kind of formal impositions of the type of law currently instituted in the US – even apart from the absurdity of enacting such laws without establishing the applicable definitions they refer to – do make that whole business more – too, quite possibly – difficult for everyone. They are *supposed* to make it more difficult – “consent is sexy” doesn’t is not about helping people get to that point.

    Ally[197]

    The reason she had been raped is because the boy in the dramatization did not have any proper reason to believe he had her consent before he stuck his cock in her mouth.

    I think the rape was obvious in the film. That said, she may very well still have *felt* raped if he had had reason to believe she had been consenting. Like if she had taken his penis and put it in herself so it would have been over quicker. I don’t think that would have changed the subjective experience too much for her – she may very well still have *felt* raped. Yet he would have have had “reasonable” (externally verifiable) belief of her consent at that point, even affirmative, if not verbal, he would not have subjectively raped her.

  188. StillGjenganger says

    @lucythoughts 200.
    Thanks, I really appreciate your engagement. I am still not convinced and I have no more to add, but there is a lot in that post and I shall have to ingest it and think about it. Which is more than I would say to Ally at the moment.
    Bless.

  189. Lucythoughts says

    Some Person #185

    I really feel for your position in this because I suspect that for every person who is willing to smash through someone else’s boundaries there is another who is so worried about putting a toe (or more likely a hand) across them that they will play it safe by doing nothing and end up being lonely for long periods of time. Women have it easier in this because society allows them to wait it out until someone comes to them, in fact they may have the opposite problem of experiencing a lot of judgement if they are assertive. It is my belief that people can trust themselves so long as they are coming at it from the angle of wanting to have a shared, mutually enjoyable experience. Personally I would always be less worried about accidently abusing someone than of being rejected by them. That hypersensitivity to rejection makes it pretty much impossible that I (and I suspect you) could seriously transgress someone’s boundaries without noticing immediately, being horrified and probably looking around for somewhere to hide.

    As I said in my last post I actually think that the positive consent rules are an attempt to define what most people are doing all the time. The “you must ask specifically before you do every tiny thing” type rules on the other hand are frankly stupid and unworkable precisely because they don’t reflect the way people behave when they are actually having good sex. Some people love to get incredibly proscriptive and reductionist about all kinds of things and try to stop behaviour that causes harm by over-writing the entire body of human experience about what is actually harmless and healthy. Best ignored in my opinion.

    And although your personal life isn’t the subject of debate so I don’t want to impose on it, I hope you find a way around your difficulty because it sounds like it would be a sadly wasted opportunity otherwise. Good luck.

  190. Ally Fogg says

    Gjenganger

    If you will not make a distinction between the subjective experience and actual fact of rape, even for the sake of argument, the discussion is closed off from the start. By your definition, if A has sex with B and B feels raped afterwards, A is morally and legally guilty of rape, no matter what he did or did not do. Questions like reasonable level of care (or even reasonable belief in consent) are simply irrelevant, the decision is all inside the head of B.

    It is not that I will not make a distinction, it is that I do not understand the point you are making. Here is my problem, I think:

    Consent to sex only exists in someone’s mind. It has no external existence (although of course it may be explained and communicated to others). Whether or not I am consenting to any given sexual activity that is being imposed upon me is indeed entirely subjective. The only things that are objective are the acts, the deeds, the gestures, the words spoken (even if they might be interpreted in subjective ways)

    Those objective facts would be used to determine whether a legal crime of rape was committed or not. It could be that someone really doesn’t want to have sex, is actively repelled by the idea, but for whatever reason sends out objective signals to the contrary, saying “yes I want to have sex with you” either specifically or by implication when s/he really doesn’t mean it. Under those circumstances, no one would think you guilty of rape, either legally or morally.

    Now, where this gets messy in practice is because you have introduced the word “afterwards” – which does change the question somewhat. The implication of the word “afterwards” is that the person subjectively wanted to have sex at the time, consented to sex at the time, objectively communicated their consent at the time, but then changed their mind later.

    If that happens, that is not rape. It never was.

    Any closer?

  191. Ally Fogg says

    Gjenganger

    Your rules are clear and specific enough. The problem I have with them is that a large minority (at the very least) of current sex acts are flouting those rules, and a certain number of people of both sexes find them anywhere from hard to impossible to follow. Which does make them less valuble in my eyes.

    You know all those surveys and research studies that are done that find huge numbers of both men and women have experience unwanted, coercive and abusive sex.

    Don’t you want to see if we can bring those numbers down a bit?

    Do you think that is possible without quite a lot of people changing their behaviour?

  192. Ally Fogg says

    Some Person

    Sorry, have to log off and do some work now, but very briefly, just want to say I do not hold the rules on US campuses to be a model of how to implement consent, and for the most part I am not talking about what does or does not constitute rape in any court of law.

    Once again, I am talking about how we can all have more safe, enjoyable and mutually rewarding sex.

  193. StillGjenganger says

    @Ally
    I should wind my neck in a bit – also because I need to re-examine some of my ideas in the light of Lucythought’s post. But it looks like I have some questions to answer.

    @204
    As you put it, I would agree. And consent is a purely mental state, yes. But you seem to be treating it as objective and fairly clear what is being communicated, and I rather doubt that. Feelings can be ambiguous, signals can be unclear or badly sent, and there is no clear agreement on what means what anyway. And the person reading the signals (which might be me) adds his own distortions and confusions. So I think cases where consent is (partially??) absent but not objectively clear are common enough we need to take them into account. I also suspect that people who feel gutted and ill-treated after sex can sometimes convince themselves – wrongly but in all sincerity – that they did not consent at the time (That is one reason why I brought in ‘afterwards’. The other is that it is a clear data point, unlike the heat of the moment). But that is part of what I have to re-consider.

    Once we factor in the lack of clarity, what is left is a set of rules for how you should behave and interpret other people. Follow the rules and you are morally in the clear, even if the consent was not actually there. You cannot call someone a rapist, if he has done all that is expected of him. On the other hand it also feels wrong to say to a victim that ‘No, you were not raped, because your actions did not objectively conform to the standard for communicating non-consent’.
    In some situations I think it might be better to tell the accused “(S)he did not consent and you did a lot of damage, but you did as much as could be expected (or maybe ‘you are a reckless idiot, but you are not a rapist’)”. And at the same time say to the victim “You are right, you did not consent and this was forced on you. We cannot punish the other party, because (s)he seems to have been in good faith, but you are blameless and we acknowledge your suffering. ” In short, acknowledge the tragedy but avoid the blame.

    Incidentally I think that various consent strategies might best be seen as efforts to squeeze out any ambiguity so people are forced to make a clear choice. ‘Enthusiastic consent’ puts the bar so high that all possible non-consensual sex is excluded – and quietly accepts that it excludes lots of consensual sex as well. The various drives towards explicit questions and answers are (also) attempts to formalise the process so that all signals are clear – but runs up against a disinclination from people to put their sex life into formal rules. My take on all this is that we must acknowledge explicitly that this is a trade-off, and what we are sacrificing in terms of increased number of rapes versus messing up everybody’s sex life. Once there we can argue what the trade-off should be.

    @205
    In general terms forcing a lot of people into a messy change would seem a reasonable price to pay for drastically reducing the number of rapes. The thing is, I am not convinced that you can deliver that drastic reduction. And for sure you are not getting us to where everybody are regular and skilled practitioners of intimate communication and empathetic understanding. That does not mean that I despise the technique – I am sure that all the most skilled lovers and seducers work that way (and are the happier for it) and I should quite like to move in that direction myself, given the chance. But those skills are not for everybody. You need some talent, attitude, and confidence to get started, you need lots of experience to get anywhere, and you need someone to practice with to get that experience. You also need to be free from some of the hang-ups, fears and resentments that are causing much of the problem in the first place.
    What campaigners definitely have got to work with is social pressure, and scaring people into refraining rather than risking. And while that is by no means a blunt weapon, history would suggest that people’s drive for sex is a very hard opponent to wrestle with.

    I also wonder whether it is the most effective approach to try for a change of biblical proportions (“And the Lord said: ‘See, I make all things new'”) in the way people manage their intimate lives. Here you surely know more than I, but might it not be more effective to take your young people where they are, accept their starting point (objectification and all), and give advice and directions that make sense in their own terms? Instead of telling them that they should not want the things they want or think the things they think, and that it is actually not a problem if they get tied up in knots or have to do without sex – and in return promise them a sexual Nirvana that they perfectly well understand they could not get to in ten years of trying?

  194. Ally Fogg says

    Gjenganger,

    Don’t have time to go through that interesting comment with the attention it deserves right now, but instead let me reiterate that it is obvious and clear that you are always genuinely thoughtful, considerate and open-minded in how you discuss these issues and it is enormously to your credit.

    I don’t expect everyone to always agree with me or accept what I say unconditionally, and nor should anyone else. We won’t achieve meaningful social change on this topic by self-appointed guardians of gender justice laying down the law (literally or figuratively) and expecting everyone else to just accept what they say unconditionally and do as they are told. We will (or might) achieve meaningful change through ongoing and honest conversation, debate, discussion and communication.

    That’s why I’ll happily keep discussing this with you for as long as both of us can be arsed to continue. It is also why I’ll reiterate a standing apology that if occasionally I get angry, argumentative or hostile and sound like I am trying to shut you down or shut you up, then that is my failing not yours.

    Back in a bit

  195. Some Person says

    @Lucythoughts [203],

    first off, thank you =). It’s feels good to hear that from time to time.

    From reading that comment, it appears that we’re in complete agreement, including abourt the likelihood of wasting an opportunity.

    “Best ignored in my opinion.”

    I would love to be able to ignore those rules, as they are – as you say – ignoring the way humans prefer to healthily interact, but time and again history proves that there is considerable probability of bizarre American legal imperialism. These rules may only apply to US campuses for the time being, but – as not least this article from the NY Times describes – may well become the law of the land there.

    http://www.nytimes.com/2015/06/28/opinion/sunday/judith-shulevitz-regulating-sex.html?_r=0

    PERHAPS the most consequential deliberations about affirmative consent are going on right now at the American Law Institute. The more than 4,000 law professors, judges and lawyers who belong to this prestigious legal association — membership is by invitation only — try to untangle the legal knots of our time. They do this in part by drafting and discussing model statutes. Once the group approves these exercises, they hold so much sway that Congress and states sometimes vote them into law, in whole or in part. For the past three years, the law institute has been thinking about how to update the penal code for sexual assault, which was last revised in 1962. When its suggestions circulated in the weeks before the institute’s annual meeting in May, some highly instructive hell broke loose.

    In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”

    Far-fetched? Not as the draft is written. The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”

    In addition to all that, I’d like to second StillGjenganger’s position – as well as Ally’s (“Once again, I am talking about how we can all have more safe, enjoyable and mutually rewarding sex.”) – by noting again, that *IF* there is a way to use those techniques, however counter intuitive, to help people to get to safer and more enjoyable sex, then, great. But as StillGjenganger points out (and I have above) this is a *very* long shot, and there are apparently not even any useful resources about this in the whole of the huge world wide web which must strike one as odd given the web’s tendency to have an answer to questions not even asked. If someone would offer a course in “verbally explicit consensual seduction”, I’d happily have a look at that. It may *actually* help me. Alas, it doesn’t seem to exist.

    “That does not mean that I despise the technique – I am sure that all the most skilled lovers and seducers work that way (and are the happier for it) and I should quite like to move in that direction myself, given the chance. But those skills are not for everybody. You need some talent, attitude, and confidence to get started, you need lots of experience to get anywhere, and you need someone to practice with to get that experience. You also need to be free from some of the hang-ups, fears and resentments that are causing much of the problem in the first place.”

  196. StillGjenganger says

    @Lucythoughts 200
    Well, so far I understand you as saying that positive consent is fairly normal and that ordinary careful behaviour really will see you through all but the marginal cases. And that consent separates clearly from emotionally hurting people (which is also to be avoided, of course, but is something else). I read your post again, but it makes sense so far.
    Thanks.

  197. Lucythoughts says

    Thanks for giving my comments such respectful consideration, I greatly appreciate that. And yes, you’re right, that is pretty much exactly what I think. I don’t think that you have to be a unusually empathic to handle the vast majority of situations satisfactorily; in fact if you did things would go wrong much more often than they do. Human beings have a lifetime of subconscious practice at understanding the vagaries of spoken language and non-verbal communication and on the whole, we’re pretty good at it. Even the people who are bad at it are actually pretty good at it, given how much there is to comprehend. In intimate situations we are exceptionally alert to these signals because the other person has our undivided attention and because we really, really want to know whether we’re on the same page. So positive consent, as I understand it, as encompassing an ongoing understanding that the other person is willing to do what the two of you are doing, is exactly what we have all been doing all along. We’ve just never defined it before.

    That all said, you commented in 207:
    “Feelings can be ambiguous, signals can be unclear or badly sent, and there is no clear agreement on what means what anyway. And the person reading the signals (which might be me) adds his own distortions and confusions.”
    You are completely right, it isn’t always clear, sometimes it is downright unclear. Those cases probably account for a lot of the times when two people end up having a not great time together, either by having sex they didn’t really want or not having sex they actually both did. I believe however that they don’t result in rapes, or if they do, it would be incredibly rare. I think this because, although the law doesn’t require that a victim has signalled clear disinclination, in practice they pretty much always do. Moving away, looking away, adopting a closed body language, all the way in which we do the non-verbal equivalent of changing the subject. The other person generally knows how to interpret those unless they are choosing to ignore them and if they miss them or ignore them, the first person signals even more urgently until they get the message. Or rape them. But that’s not an accident.

    I suspect the real marginal cases aren’t because of general bad communication or bad interpretation but are rather because of deeper and worse causes. For example, sometimes someone who has been in a abusive relationship will give out completely the wrong signals because they have lost the sense that they have a right to give or withhold consent without being punished for it. This is a horrible situation and can result in someone getting badly hurt without the other person intending it or being to blame for it.

  198. Lucythoughts says

    StillGjenganger #207
    Some Person #209

    On the subject of imposing counter-intuitive regulations to try to socially engineer human sexual dynamics I’d like to go a step further than either of you in saying that not only is it unworkable but I think that even if it could it be done it would be a terrible, terrible idea. Start from my premise that sensible positive consent is what most of us are doing instinctively the whole time and consider how we arrived at it. We are brilliant thinking animals and our brains have allowed us to adapt to many weird and hazardous situations which would have killed off stupider species. Our ability to consciously, rationally plan and problem solve is highly useful in many situations but there are some things that our hindbrains just do better. Why? Because they haven’t been working on it for a handful of years, they’ve been working on it for several million years. We evolved to interpret body language well before spoken language arrived and we’re good at it; the data we are taking in and processing is much too complex to deal with consciously, so we deal with it unconsciously, but we still do deal with it. That’s what intuition *is*. The drawback of a great big brain is that we have the urge to start giving jobs that have been hardwired and perfected for millennia to our micromanaging frontal cortices and pretty much inevitably they do it much worse through lack of experience and a very linear framework. It happened in infant care with, in some cases, devastating results and we’re finally getting around to a point where research is pointing us right back to where we started from, demonstrating that we should have left well enough alone. I strongly suspect that primitive humans knew all about consent, practiced it most of the time and also chose to completely disregard it in certain circumstances.

    So if the purpose of SRE and talking about consent is to subvert the good instincts we already know how to use and replace them with a rationally constructed, oh-so-painfully linear and restrictive set of rules then that is a bad purpose. And furthermore, I seriously doubt that it would reduce rapes either, because it wouldn’t be addressing what actually causes them. Personally, I think it should be about telling people a) what society allows and what it doesn’t, b) that sex is, on the whole a good, healthy, enjoyable thing, and c) the way to get some and enjoy it when you get it is to develop some level of intimacy with another person. It doesn’t have to take years, you can develop intimacy incredibly quickly, you can have intimate one night stands, but fundamentally it is about being *with* someone else and them being with you.

  199. Melissa Trible says

    Lucythoughts: slight quibble. Especially if you have someone who is both not neurotypical (eg somewhat autistic) and not entirely aware of this fact, it is possible for them to genuinely *not* get even a quite large number of “please stop now, I don’t want this” signals that are body language rather than a clear verbal “no”. Extra possible if, for example, the person giving those signals is doing so in some way unclearly (because they are also not neurotypical, or frightened, or whatever). So, in that *very* narrow subset of cases, it is possible for rape to be the result of genuine (if perhaps somewhat deliberate) ignorance of the lack of consent, rather than true malice.

    Now, the vast majority of people sufficiently non-neurotypical to make that level of error are also sufficiently *aware* of the fact that they are bad at reading body language, and thus try not to rely on it for anything important. Thus, this is merely a quibble.

  200. Lucythoughts says

    Melissa Trible #213

    Yes, I can completely believe this and it is the sort of thing I would class within those marginal cases, which have an unusual extra set of circumstances at their root. I believe that you are also right that ASD people develop strategies to cope with their lack of awareness of body language and are probably more likely to ask when uncertain. Which we should all do of course!

  201. Some Person says

    @Lucythouhgt[212] –

    also: yes, yes, yes.

    And delighted to end a discussion on such a tough subject in agreement =)

    Thanks for playing, everyone!

  202. Some Person says

    /* tangential (to the last sentence of 212, @lucythoughts et al)

    I’ve been reading Jonathan Franzen’s “Purity” and although I haven’t yet finished it entirely, I think one of the themes in the book may be important with respect to this debate in a general way, not the specific one. The theme I’m thinking of is that, in the book, men beat themselves up about their sexuality for their individually assumed guilt of hurting womankind for sexually wanting women. There is a fundamental story of secondary traumatization that makes accepting their own desires very, very hard for these – and I assume a whole lot of, even if they don’t talk about it – men. An “internet feminist” recently sent me a chapter preview from an apparently not too bad book about dating written by an evolutionary psychologist and a former public as*hole. It was an unlikely link to get from her, and yet, it made sense – http://thoughtcatalog.com/tucker-max/2015/10/guys-heres-what-its-actually-like-to-be-a-woman/

    At the center of the piece stood, for me, this one quote:

    “Think about how weird that whole situation is: to be sexually attracted to beings that could so easily do irreparable physical harm to you. Think about the anxiety that internal contradiction could create on a daily basis. For women who are on the more anxious and delicate side, think about the raw physical courage it must take just to go out and meet men. If she pushes when you pull, your question shouldn’t be, “Why won’t she have sex with me?” It should be, “Why would she ever put herself in a situation of sexual vulnerability with any guy?”

    That, coupled with the theme from the Franzen book, made me realize something: the biggest problem appears to be that men don’t like themselves *because* they have internalized that their sexuality is shameful and exploitative. And that’s not only a dominant feminist narrative, that’s been going on for a long time. Maybe there was a time in the medieval when women were seen as insatiable, but for a couple of hundred years now, male sexuality has been culturally presented not as something *good* but as something inevitable, at best controllable, usually toxic, at worst, a killer. One may wonder that slut shaming – or any other religious approach to female ‘modesty’ is similar, but I think it’s probably only a corollary of that discourse about male sexuality. Sure, before feminism, women were told that they need to do their part to control the animal, now men are solely responsible for controlling it, maybe, before feminism, the animal was considered to be essential, now it is seen as culturally embodied, but the consequences are pretty much the same – I don’t think a lot of men *truly* consider their sexuality to be about being *with someone*.

    And not because they would not want to be, but because they see themselves in the way Tucker Max and Geoffrey Williams describe the female dilemma in that chapter – being attracted to something/someone that has the very real potential to hurt you. They don’t like themselves and especially their sexuality for that reason. And they find it hard to trust that someone else would *want* to be with them because a lifelong narrative is stacked against believing that women want them as much as they want women (sexually). There is a lot of secondary traumatization going around, which, I think, is also responsible for a lot of socio-sexual dysfuncationalities that are, in turn, responsible for a lot of primary traumatization.

    And I’m not sure there is a way out of that circle.

  203. Lucythoughts says

    This has been a fascinating debate and I’m very glad to have been a part of it, so thank you. You’ve raised a very difficult question here and I will admit it isn’t something I’ve really considered before but this discussion has brought it home to me. Over and over again, in I suspect a typically female response to reading this tread, I have found myself thinking, “What is going on here? Why is it that so many of these people, who seem to be very nice, thoughtful, socially aware men, are insisting that they cannot tell when they are raping someone?” The message again and again seemed to be “but women are so confusing! How can we possibly tell if we’re abusing them or not?” I’ve written at some length about body language and the very clear and explicit, if non-verbal cues that people give out precisely because I have not been able to *believe* this argument. And I still don’t believe it. But what you have helped me to realise is that it isn’t really a case of “I don’t know when I’m abusing someone” it is a case of “I don’t know when I am NOT abusing someone.” Even if a woman is giving me every reason to believe she wants to be having sex with me, I still can’t be sure I’m not abusing her. It’s the nature of the act. I’m probably abusing her, I’m just hoping like Hell she won’t mind too much. It’s been an eye opener. It’s a terrible, hopeless tragedy that I never knew was going on.

    I know for a fact that neither I, nor any of the women I know find sex violating. I had a glance at that chapter you linked #218. I couldn’t get half way through it. The take home message seemed to be “you’re absolutely repulsive, but never mind, most men are both repulsive AND terrifying!” I don’t know what his research is based on or whether America is like a living hell but this certainly isn’t an experience of being a woman that I can remotely relate to. Do we occasionally (and not by any means daily as he suggests) get approached in unpleasant and inappropriate ways? Yes, sometimes. Do we assume all men are violent psychopaths and constantly fear for our lives? No, strangely enough we don’t. We think they’re human beings, not entirely unlike us.

    I can’t see an easy way out of the secondary trauma you’re describing but all I can do is say, this isn’t true, it isn’t a fair interpretation of what (I believe) male sexuality is or how women actually view it. It is, in fact, bollocks. Penetration isn’t an act of violation; it’s an act of intimacy. Unfortunately we seem to live in a society which denies boys intimacy from a young age and treats men as if they neither need nor deserve it. Surely intimate adult relationships should be there to correct the imbalance, not to place added unbearable pressure?

  204. StillGjenganger says

    @Ally 208
    I understand (and really like) how it works here. I got a bit snappish myself – whatever else they are, these arguments are also quite personal. Without trying to embarrass anyone, can I say that I am quite surprised and a little proud that I should be deemed to deserve such an answer?

  205. StillGjenganger says

    @ Lucythoughts, MelissaTrimble, SomePerson, Ally

    If you do not mind, can I try to sum up the consensus , like I would do at work?

    We are using ‘positive consent’, not one of the alternatives. Basically consent or refusal is continuously signalled, mostly by body language. Once given, consent lasts until another signal revokes it – or presumably till the end of the seance. This relies on both parties communicating what they want, and on both parties being open to read the signals they get, and asking for clarification if (but only if) they have reason to think there might be a problem. There are a few explicit limits: you need some kind of positive signal to start on anything (lack of no is not enough), people can suddenly freeze and withdraw for no apparent reason, so that counts as a stop signal, and you need to make sure the other party is sober enough to know what is going on.

    Strictly speaking the things that I worried about are true: you can only be expected to do so much; you can get into non-consensual sex even if you do all you should, and nobody can really be blamed for that; and getting it right depends as much on the other party telling you stop as on me working it out for yourself. It is just that none of this matters very much. The reason is that these signals are sent and received without conscious thought, and that we are very good at detecting consent or the lack of it. So provided you actually listen (to your feelings and to the other person), and actually try to avoid non-consensual sex, you will be OK.

    It is still worthwhile seeing who might lose by these rules. I am happy, obviously (in fact I feel less stressed already). People who are on the autistic spectrum or otherwise incapable of following non-verbal communication cannot do it this way, and are responsible for making their own arrangements. The biggest problem seems to be people who have a history of being abused. They may well be unable to send out the stop signals that people rely on for getting it right, and so they become quite vulnerable. This is the kind of thing that I, personally, tend to accept openly: social conventions are set up to fit the majority, with the regrettable consequence that people who are different in some way do not fit and may suffer from it. I feel that this is likely the best we can get, but you could certainly ask the question whether the majority could make some sacrifices to protect the more vulnerable people better.

  206. StillGjenganger says

    @ Lucythoughts, MelissaTrimble, SomePerson, Ally
    I learned a lot from this, and this had been vexing me for a long time. Thanks, all. Maybe I can contribute something about why so many men have such a problem with this?

    Basically, there are men who really do not understand how the mating game works, and who are quite tense about it (me, for instance). It does not help that you have this great ability to feel what other people want, if you are not open to your feelings, or if you do not trust what they tell you. Personally I grew up ‘knowing’ for a fact that I was really bad at interpersonal interactions. I remember as a major shift, as a young adult, when I decided that you were better off trying to follow your instincts after all. Not because I thought they were any good (I didn’t),but because I saw that you made even more stupid mistakes if you excluded your feelings and tried to get by on logic. Nothing serious, by the way, just a bit of embarrassment.

    The other thing is that sex is really important to our self-worth and how we see our place in the world – and you see that everybody else is doing it but for some reason you are not. Clearly there is something you do not understand – unless, of course, you are just one of life’s losers. To those of you who are women: Bear in mind that you grew up knowing that this thing you have got is something everyone wants their hands on, to the point of lying, pressuring and breaking the law to get there. As a man you grow up knowing that this will not just come to you, you have to put in lot of effort to get that thing of yours in contact with anyone else’s thing. And the people who clearly manage are the confident and successful ones (from Jimi Hendrix to Henry Kissinger to (shudder) Silvio Berlusconi). Without getting maudlin about it this will surely make a difference in people’s attitudes (leading to different hang-ups at least, for the two sexes).

    So what do you tell these people? Basically you want them to calm down and start using the people sense that God gave them. But it can be hard to get that message across, because in goes against their lived experience. ‘Enthusiastic’ or ‘affirmative’ consent lead exactly in the wrong direction (for all that they may be good aspirations for people who already know how to do it) Saying that this is easy and even an 8-year-old could do it (which is true) is easily taken as a put-down: If any 8-year old can do it and I still find it so hard, how fucked up must I be? As for saying that sex is not that important and you can easily do without for a while – well, it is not convincing. Imagine a teenage girl in the throes of a crush. Over-excited, changing between despair: ‘he does not know I am alive, of course he does not care, no one ever would’ to baseless optimism: ‘The way he looked at me – definitely he is interested, …’ You would want her to calm down and get some realism into her thoughts, but you are not going to tell her that boyfriends do not matter and she will surely find someone in a few years, are you?

    The other problem of course, is that this finely honed people sense is most likely telling you that it is ‘no’ this time and it was ‘no’ last time, and there is every reason to think it will be ‘no’ for the foreseeable future. That is not what you want to hear. And it leaves you with a desperate need that you are impotent to do anything about, dependent on unknown forces, and getting angry and resentful at womanhood that has collectively decided that you are not worth looking at. You just have to get over that, of course, but it does make it harder to do your moral duty and stay interested in other people’s welfare. All I can see that might help is trying to push people in the right direction while also encouraging them to see themselves as men with options, future prospects, and control over their situation, with the responsibilities that go with that. Like (not profound and deliberately not nice) e.g. “Be nice – that is how you get repeat business.” or even Women and public toilets – leave them as you would want to find them.“.

  207. Lucythoughts says

    StillGjenganger #221
    I think you have summed it up pretty well as far as I’m concerned.

    #222
    I’m going to have a better read through this later but for now I just wanted to apologise for comparing you, and anyone else, to a child. I knew it was a condescending and offensive when I said it and I’m afraid I said it anyway. To explain the aberration, because I’m really not usually rude to people, I just want to say that as far as I was concerned you weren’t talking about the difficulties of sexual and romantic interactions, which obviously no child could manage and all normal adults struggle with, you were talking about rape. I found the idea that rapists are allowed to do what they do and then claim they had simply “misunderstood” and that is acceptable deeply troubling. I believe that an understanding of other people sufficient to avoid violently assaulting them is pretty near none at all if you have the will. Managing a sex life on the hand is probably one of the hardest things we ever try to do. Please accept my apologies.

  208. StillGjenganger says

    @Lucythoughts 223
    Nothing to apologise for – please do not do it. I understand what you were saying, the wording is amply within the bounds of normal discussion here, it was a true point, positively meant, and I was not offended by it anyway. I just took it up as a good example of a slightly wider point: that telling people how easy these things are, while in a way true, can easily be taken wrong.

    Anyway, the things we are discussing are both important and in many ways personal. It would be unresaonable and in many ways misleading if we treied to hide what we feel about it. In fact it is a minor miracle how it keeps happening that you can get very respectful and instructive discussions between people of so sharply different opinions on this blog. And you are one of the starss – I was certainly impressed by your openness as well as your understanding. If you do not believe me, take a look at the discussion over on the ‘Sending sexism scurrying from schools’ thread, before you insist on handing out apologies.

  209. Lucythoughts says

    #224 Thanks for the compliment, that’s really nice. I have only just discovered this blog but I already feel very much at home here, which isn’t something I can often say, so I will be trundling over and contributing when I have something worth saying. I’m going to go and check out that other thread now; if I really want to get someone’s back up I can see I’m going to have to up my game. 🙂

  210. Lucythoughts says

    #222
    “To those of you who are women: Bear in mind that you grew up knowing that this thing you have got is something everyone wants their hands on, to the point of lying, pressuring and breaking the law to get there”

    As this conversation has wandered a fair long way from where it started I thought I’d throw in another deviation. While there is some truth in what you say here it isn’t by any means completely true because most women are primarily looking for a sexual relationship rather than a one night stand (which most could get pretty easily if they had a mind). The way you state it implies that the power lies squarely with the women (and in the other thread you mentioned “desperate young men completing for desirable young women”) but this is certainly not true. Women have to wait to be chosen which doesn’t happen very frequently at all for the average woman. I’m sure that the most desirable women get asked out frequent but most don’t. It’s a bit like being picked for teams; some people will always get picked first, most will wait in anxiety and some know that their destiny is to be standing their alone at the end, the option of last resort. So the role of waiting is also painful and ego-battering and significantly limits your options.

    This means that for (most) women strong initial attraction is less of a factor in choosing a partner; a women who wants a partner is quite likely to consider a man who is only mildly attractive to her but definitely likeable (according to her tastes). Attraction is something we’re willing to work on and is rapidly amplified when you have some confidence that the effort isn’t being wasted. That is why, I suspect, women largely look for prospective partners not in clubs but on the periphery of their friendship group, where there is a good chance that the likeability criteria will be met.

    One of my favourite quotes from Jane Austin in this: “There is so much of gratitude or vanity in almost every attachment that it is not safe to leave any to itself. We can all begin freely – a slight preference is natural enough; but there are very few of us who have heart enough to be really in love without encouragement.”

    I think this is especially true of women.

  211. StillGjenganger says

    @Lucythoughts 2226
    That sounds right to me. Anyway i did not really mean that women have all the power (even if it can feel like that in your individual frustration), or are necessarily happier. Both sexes want a relationship (mostly) and here the troubles are equal opportunity. If anything I would say that the sex, as such, looms larger in a male mind, because unlike you we cannot easily get even a one-night stand. The men I know do not jump for the presttiest girl around either, but also for somenoe you want to get along with (and crucially, someone you think might possibly be interested).I guess that the role of ‘sex provider’ might server as a more important contribution within a relationship for a woman than for a man (though in a healthy relationship those considerations should not matter too much. And I wonder if knowing that ‘at least they would want me for that’ might help, just a little.

  212. Lucythoughts says

    Absolutely, it’s tough from either side, I’m just giving a little of the other perspective. And I know, of course it isn’t about being the prettiest, although there is that elusive thing, sex appeal, which has more to do with confidence for women as well as men (now I’m thinking of a female Silvio Berlusconi… but I’d really rather stop).

  213. StillGejnganger says

    @Ally
    I think we are done with this for now.

    Except – I am quite curious what you think about the consensus we got to, Ally (as per my post 221). I suspect you would disagree, but how exactly?

  214. Some Person says

    Lucythoughts,

    But what you have helped me to realise is that it isn’t really a case of “I don’t know when I’m abusing someone” it is a case of “I don’t know when I am NOT abusing someone.” Even if a woman is giving me every reason to believe she wants to be having sex with me, I still can’t be sure I’m not abusing her. It’s the nature of the act. I’m probably abusing her, I’m just hoping like Hell she won’t mind too much. It’s been an eye opener. It’s a terrible, hopeless tragedy that I never knew was going on.

    I would say that that’s a a by-and-large accurate description of the way my mind, and I suppose many other guys’ minds, works in such situations. I’m not sure about the “nature of the act” though, unless by that you mean the way we have socio-culturally defined “it” and all the gendered stuff around it, starting from the reasonable assumption of a male/female desire discrepancy (as you and StillGjenganger pointed out in your last posts). I don’t think that penetration *as such* is causing this problem. I’m not gay, but I cannot imagine having the same hang-ups about men if I were interested in them – this, to me, seems to be a heterosexual thing. I’ve seen lesbians being physical with women in clubs seconds after meeting them in ways that would have prompted everyone to call the cops if it had been a guy doing this.

    So based on that firmly held belief of desire discrepancy, partly confirmed here and by reality everywhere, we have come to a point where we are behaving extremely sexist – our socialized and individually internalized understanding of male and female sexuality make it hard for us to believe we could be wanted the way we want women even if we hear it and feel it. And with that, we inherently limit women’s agency by not trusting them as we would trust men – and yet we believe that the potential consequences of us *not* doing that would be worse than the consequences of doing it. There’s really no way of winning this.

    And this is complicated by the actual structure of female desire – which is usually more “responsive” than “spontaneous” (to use the terminology of sex researcher Emily Nagoski’s recent book), meaning that the men – having internalized their sexual repulsiveness – have to create a situation in which women feel both enticed and safe enough to let themselves fall into their own desire. Sometimes, despite the obvious rewards, I’m amazed people actually manage to get over their respective mental hangups and actually do have sex despite the inherent emotional and physical risks.

    I don’t know what his research is based on or whether America is like a living hell but this certainly isn’t an experience of being a woman that I can remotely relate to. … I can’t see an easy way out of the secondary trauma you’re describing but all I can do is say, this isn’t true, it isn’t a fair interpretation of what (I believe) male sexuality is or how women actually view it. It is, in fact, bollocks. Penetration isn’t an act of violation; it’s an act of intimacy. Unfortunately we seem to live in a society which denies boys intimacy from a young age and treats men as if they neither need nor deserve it. Surely intimate adult relationships should be there to correct the imbalance, not to place added unbearable pressure?

    Should you ever pursue a career in online feminism, you can count on my full support 😉

    “most women are primarily looking for a sexual relationship rather than a one night stand (which most could get pretty easily if they had a mind).”

    Yeah, I think there’s a biological desire discrepancy that is a consequence of differing reproductive costs and associated risks that we will probably never be able to change until we stop reproducing sexually. But on top of that is a cultural layer of expectations that helps make people’s lives and sex lives a lot more miserable than it would have to be, in my opinion. Sadly, so far, the gender discourse is – as a consequence of the ideological roots of feminism – by-and-large only looking at one side of the equation, thereby even exacerbating the sexism/agency problem I outlined above. It’s not only men that have to change to make live easier and more pleasurable for women. That cuts both ways. And most of all, we need to do a lot of work to even *begin* to understand each other.

    ( And help men like themselves a little more… https://youtu.be/HRrFvapV4ms )

  215. Ally Fogg says

    Gjenganger

    I liked your summary at 221 and I would say that if you were to adopt those as your own personal rulebook you wouldn’t go far wrong.

    However I’m wary to extrapolate from there that this is best for everyone. As a general rule, I think the more one strays off broad general principles the more scope there is for problems and/or disagreements to arise. So, to take just one random example, you say

    Once given, consent lasts until another signal revokes it – or presumably till the end of the seance. This relies on both parties communicating what they want, and on both parties being open to read the signals they get, and asking for clarification if (but only if) they have reason to think there might be a problem.

    This is a bit rigid for my tastes. It suggests that consent is like a switch that has been turned on and will remain turned on until it is turned off and then it is simply off.

    I don’t think of it like that. I think of consent as being more of a dynamic, an interaction a fusion of the wishes of the people involved. It is also a spectrum, with grudging, fearful, reluctant consent at one end and wholehearted, uncontrolled, rampant enthusiasm at the other end. What we are trying to do with this debate is shift the bar a few notches higher up that spectrum, partly – but not only – because there is a very thin fine line dividing grudging, fearful consent and no consent at all.

    Unsurprisingly, I guess, the bit in your post I like best is this: “So provided you actually listen (to your feelings and to the other person), and actually try to avoid non-consensual sex, you will be OK.”

    That captures it perfectly for me.

  216. StillGjenganger says

    @Ally 231.
    Thanks. I had expected you to clearly disagree with some point or other, but if that is all we can find to disagree about, we do not disagree at all. If I try to sum the whole situation up in less than 20 lines, being a bit rigid and clunky is pretty much unavoidable.

    Just by the by, the point about revoking consent was not that it is a switch you flip, but that it does not come with a built-in time limit, like the snooze button on an alarm clock. So once you are OK you remain OK until something changes to suggest you are not. And meanwhile you can relax and have fun.

    Anyway, I have taken a lot from this discussion – to the point where I may not need to have it again.

  217. lelapaletute says

    This discussion has been brilliant, just to throw in there. This is what the internet was actually made for, rather than all the porn and kittens (which are diverting, I’ll admit). *applauds*

  218. Sans-sanity says

    Re:223 Co-signed; I think it may have been the most informative, positive discussion that I have ever seen on the internet.

  219. Lucythoughts says

    Some Person #230

    “Should you ever pursue a career in online feminism, you can count on my full support”

    I’m not quite sure how to take that! 😀 In fact I am lacking one or two fairly critical qualifications but nevertheless thank you…. I think!

    “So based on that firmly held belief of desire discrepancy, partly confirmed here and by reality everywhere…”

    You are far more up on the research in this area than I am but nevertheless I shall give my largely uninformed opinion. Desire isn’t readily quantifiable but I doubt that overall, over a lifetime rather than any given moment, women are much less sexual than men. Desire discrepancy exists but it isn’t a constant; at the very beginning of a relationship I suspect that you are right and it usually runs in the male > female direction but once a relationship is established it shifts back and forth according to moods and other factors. It’s possible for either person to exploit the other if pressure or coercive methods are employed to get sex from your partner BUT in a healthy relationship you meet your partner’s needs not because you are under pressure but because you love them. Their needs matter. And they meet yours as well. Neither of you will be willing to do this every time but both will be willing enough that everyone is happy. And why not? We meet the needs of our loved ones in a million ways, why not sexually? The important thing is not the direction of discrepancy at any given moment, or whether one person is often getting more pleasure than the other, it is that it is freely and lovingly given, the result of reciprocal goodwill.

    I know I’m not going to argue you out of your feelings on this, but if you (by which I mean one) worked on the principal that: “Taking unequal pleasure in someone else = using them for your pleasure = using them = exploitation” then you would never allow yourself to have your needs met and the process of trying to meet another person’s needs would become too emotionally exhausting to be borne.

  220. Some Person says

    @Lucythough 235

    I’m not quite sure how to take that! ? In fact I am lacking one or two fairly critical qualifications but nevertheless thank you…. I think!

    Yes, I meant that as a compliment, as I considered what you wrote in the paragraph above more sex positive than most anything I’ve read by most self-declared sex-positive feminists =)

    “You are far more up on the research in this area than I am but nevertheless I shall give my largely uninformed opinion. Desire isn’t readily quantifiable but I doubt that overall, over a lifetime rather than any given moment, women are much less sexual than men.

    I think the lifetime argument is an important qualification, and yes, I’m quite certain that the differentce isn’t as striking over time – in relationships – than it seems to be with respect to the inclination for casual sex. Here’s an informative graph by Emily Nagoski – http://www.thedirtynormal.com/blog/2014/06/16/i-drew-this-graph-about-sexual-desire-and-i-think-it-might-change-your-life/ – who was almost violently anti-Flibanserin (recently ok-ed conrtroversial drug marginally enhancing female horniness), noting that its very existence would turn perfectly normal (usually female) “responsive arousal” into a pathology, measured by male standards of “spontaneous arousal”. As for the gendered inclination to casual sex – we’re only beginning to separate cultural from endocrinological factors, and, just earlier this year, a German researcher found a way to modify the classic Clark/Hatfield study that was, for decades, used to demonstrate lower female interest in casual sex, in a way that significantly narrowed gender differences in desire for it: the keyword for men was: giving them choice (if men believe they have easy access, they become a lot more choosy) the keyword for women was “social safety” (meaning absence of fear of being judged for sleeping around – physical safety, surprisingly, doesn’t rate that high on their list of concerns). Here’s a brief non-academic article about Baranowki’s paper from April – http://www.bustle.com/articles/79858-women-want-casual-sex-just-as-much-as-men-study-finds-but-the-way-society-treats

    Desire discrepancy exists but it isn’t a constant; at the very beginning of a relationship I suspect that you are right and it usually runs in the male > female direction but once a relationship is established it shifts back and forth according to moods and other factors.

    I completely agree. But I’d maintain that the biggest problems (not that desireless marriages aren’t a problem) caused by this come in the very early stages of getting into a sexual relationship, however brief, it may be. As mentioned above, it helps if men feel they have choice (but how to get there?) and women won’t feel judged (difficult to get there), but the dynamic is still there.

    It’s possible for either person to exploit the other if pressure or coercive methods are employed to get sex from your partner BUT in a healthy relationship you meet your partner’s needs not because you are under pressure but because you love them. Their needs matter. And they meet yours as well. Neither of you will be willing to do this every time but both will be willing enough that everyone is happy. And why not? We meet the needs of our loved ones in a million ways, why not sexually? The important thing is not the direction of discrepancy at any given moment, or whether one person is often getting more pleasure than the other, it is that it is freely and lovingly given, the result of reciprocal goodwill.

    I couldn’t agree more.

    I know I’m not going to argue you out of your feelings on this, but if you (by which I mean one) worked on the principal that: “Taking unequal pleasure in someone else = using them for your pleasure = using them = exploitation” then you would never allow yourself to have your needs met and the process of trying to meet another person’s needs would become too emotionally exhausting to be borne.

    Yes, it’s a challenge. What’s even more – it becomes very easy to emotionally disappoint the other party. I’ve certainly caused more emotional pain by *not* kissing women when wondered about this equation than I could have possibly caused if I had done it. It’s weird, because that realization requires my accepting my own value (rationally), while at the same time I have such a hard time to accept it emotionally – and physically in the right moment. Therapy may help individually. But socially, that’s not really an option, socially, something else needs to be done.

  221. WineEm says

    Oh well, my final 2 cents on the matter (not that it will carry much weight, being the resident sad, whiny loser around this joint!) 🙂 But yes for me, possibly the most important contribution to this discussion has been the SomePerson’s link to the NYTIMES piece. For it does at least underline that this is still very much a live, evolving and highly contentious issue. And while a ‘progressive’, right-on blog such as this one may present certain ideas as being self-evident and merely pertaining to ‘common sense’, in that article, there are some starkly contrasting views put forward, where some of the precepts held to be self-evident here are considered to be the very opposite of what common sense should mean (indeed we even see retired, feminist high-court judges and Harvard law professors asserting that affirmative consent policies should have no part in criminal law at all). The idea that a rigid expectation of enthusiastic consent will cause heightened distrust and anxiety in interpersonal relations over time is also an interesting one, and obviously, taken to an extreme, the vision of a society where almost any act of unspoken intimacy can lead to a potential lawsuit somewhere down the line is not exactly a pretty one. This has echoes too of course in Daubny’s Sunday Times piece on MGTOWS over the weekend, where he talks about male university students becoming anxious to the point of avoiding sex altogether. (But then who knows, perhaps they were just all part of some patriarchal MRA conspiracy masterminded by Dean Esmay and the MRM, and not spontaneously putting forward their own views at all!)

  222. StillGjenganger says

    @WineEM 237
    Just for fun, what would be your reaction (if any) to my post 221? Any disagreements? I should like to know what people, from whatever side, think is wrong with it.

  223. Some Person says

    WineEM @237,

    clearly, the NY Times piece shows what can happen when puritanism and US contractualism go on a honeymoon. Yet, with respect to *this* thread, I think the opposition to those kinds of legal codifications of procedural affirmative consent has been, I think, unanimous. So, while I agree that there is still a certain lack of clarity with respect to the specific meaning of the different consent-terms being used, I am quite certain that the content of “affirmative consent” or that of “positive consent” used by Ally and others in this thread is not the unworkable American legelese. Clearly, those discussing consent will need to eventually clarify what the terms used actually mean to avoid confusion, particularly as, I’m sure, the American definitions will become the dominant ones, but as far as this debate has been able to provide that clarification, I’m very happy with it.

    I’m also happy that there was some understanding that discussions about consent for many men really aren’t about consent but about sexual acceptance.

  224. WineEM says

    @238 Hmm Gjenganger, will have to mull that over and get back to you in a bit…

    @239 Hi Some Person, yes it’s interesting that we should disagree on the interpretation of the piece. For me, it’s not a
    highly technical article from a law journal (though it does, I’ll agree, look in passing at one rather extraordinary piece of proposed legislation that would of course be completely unworkable). Instead, it seems more concerned with looking at whether affirmative or positive consent is desirable as a concept in law in the broadest, most layman terms (i.e. to quote from the piece, what is being investigated is whether it is a good idea “to make sex a crime under conditions of poor communication.” )
    When you put it in terms like that, I think it does give a very different slant to the whole debate.

  225. Some Person says

    WineEM @240,

    as I have come to understand the result of the discussion here, I don’t think there’s disagreement on poor communication alone not being a reason to make sex a crime as long as poor communication went hand in hand with a reasonable assumption of consent on the part of the other party. In other words – the respective context matters. If you’ve had booty calls a couple of times after sending merely a “?” and getting a “!” in return, then the “!” is a reasonable assumption someone is up for a booty call. If you sent the same “?” to someone else, even if the reply would be a “!” that wouldn’t reasonably allow the assumption that the other party is interested in a booty call. Or another story I once heard – a woman asked her rather hesitant boyfriend to “playrape” her, to fulfill her rape fantasy. So after a night out, he did as he thought he was asked to, but afterwards she told him she hadn’t wanted that *that night*, but they didn’t have a safeword, so how was he supposed to know her saying no wasn’t part of that specific game she had asked him to perform for her. Incredibly bad communication in a dangerous territory gone horribly wrong, yet given that context, I think he can make a credible case that he believed to have had consent – she didn’t report him because she didn’t think it was rape either but still felt violated so she ended the relationship. That was a seriously fu**ed up story all around, but my point is – even here: bad communication *on it’s own* didn’t constitute rape. Some of the American college rules do say so, but in this thread, I don’t think anyone supported this kind of merely procedural approach.

  226. Lucythoughts says

    Some Person; WineEM; StillGjenganger; anyone else interested

    I’ve already given my view about this but I’ll just restate it anyway:

    Over and over again in many fields of thought people make what, to me, appears to be a very basic error: they think that they can define something that is aberrant without stopping to look at what NORMAL actually is. In America they seem to be rolling down this road with consent. Rather than saying, “How does consensual sex actually work? How do we really arrive at it and what parts of that process are missing or altered in non-consensual or coercive situations?” they are saying “Let us make up a definition of what consensual sex should be and make everything that falls outside of that definition illegal.” Stupid, stupid, stupid. Fortunately I don’t see the British legal system going that way because it actually functions very differently from the American one. What we have in this country is a legal definition of rape that includes two factors relating to consent: 1) consent was not given; 2) there was no reasonable belief in consent. The second does give some leeway for situations of poor communication.

    I think that in this thread we’ve been doing a good job of laying down the groundwork by asking that really basic, really important question: “how does consensual sex work and how do we know when we’re having it?” We weren’t trying to reframe British law. However, looking back at StillGjenganger’s consensus statement (#221) I would say that because we have come a long way towards understanding where a reasonable belief in consent comes from, we also have a much better idea of when it can’t be considered reasonable and why.

  227. Some Person says

    Lucythoughts @242,

    “Fortunately I don’t see the British legal system going that way because it actually functions very differently from the American one.”

    I’m sincerely hoping you’re right on this one. Sadly, I’m not entirely as optimistic as you are given the lack of prominent original non-American thought and *widely* published – and perceived – opinion on gender aspects (except, I’d say: Laurie Penny) and the increasing willingness of C/conservatives everywhere to accept and use feminist premises (like rape culture) to be able to help institute social policies they would never be able to re-institute on their own. Current US-consent-activism is a Christian conservative’s best friend. This is a dangerous (silent) political coalition for (actually) sex positive people everywhere in the West.

  228. Lucythoughts says

    I understand what you’re saying, but I still can’t see it coming into law here for two main reasons. One is that the American legal system has a clear motive for introducing this kind of graduated system for use in Plea Bargaining. If I was very cynical I might also suggest that for lesser offenses, e.g. no actual rape but sexual touching without consent, the law firms may have their eye on massive out-of-court settlements, seeing as sexual harassment actions already net them millions. The other reason is that I think the House of Lords would seriously dig their heels in, and whether you like them or loath them (or sometimes both) there is a huge amount of judicial knowledge in there and they have a lot of clout when it comes to scuppering unworkable, politically motivated legislation. I may well be proved wrong of course, but until I see draft legislation that outlaws hand-holding-without-consent tabled, I’m not going to worry too much.

  229. WineEM says

    @238 Ok, sorry, Gjenganger – somewhat belatedly: I think it’s an admirable attempt at creating a ‘failsafe’ approach towards obtaining consent. Also, you do make the effort to differentiate between what is preferred and what is ideal, and what should be a sensible standard under law. Of course, your model does involve a certain level of joint responsibility (so I think arguably it’s a bit better in this respect than Ally’s version, who we remember from 165. is rather “wary with the logic of joint or shared responsibility “). The point about those on the autistic spectrum is interesting of course, since a lot of recent research seems to indicate there’s often no clear dividing line between those who have autism and those who don’t (i.e. sometimes it can come down to the number and severity of autistic traits, and how this affects that person’s life, rather than being a binary decision as to whether someone is or isn’t autistic. There are probably a lot of people around who are fairly blind to some aspects of body language and social cues, in the same way that some people are blind to some colours, but who have never been given a formal diagnosis or indeed even considered the possibility. I know for one, I have in many ways a very classically ‘autistic spectrum’ sort of mind, yet it was well into my 20s before this idea was even suggested to me by someone who happened to be an expert in this area.
    Of course, if ‘affirmative consent’ models do become accepted as part of our culture and law, then we may strengthen the possibility that individuals who never set out or intended to cause any harm or distress nevertheless are convicted of a serious, violent crime. So it’s certainly not an easy area, that’s for sure.

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