“Affirmative consent” just means mutual desire. And it should definitely be the standard.

can we have sex please memeIn response to a proposed California bill that would implement an “affirmative consent” standard on college campuses, there’s been a number of misinformed and often straight-up hysterical reactions from folks who think that requiring people to ensure they have, at every point, “affirmative, conscious, and voluntary agreement to engage in sexual activity” is absurd and/or impossible.

I think it’s fair to question how useful legislation is for creating a culture of affirmative consent–though, for the record, I agree with Amanda Hess, that as long as they include non-verbal cues, affirmative consent laws are a good idea. What’s absolutely clear is that affirmative consent is the necessary standard, socially if not legally, for a healthy sexual culture. And the fact that many people seem to feel like it marks such a radical departure from our current approach to sex reveals the depths of rape culture more than all the stats on sexual assault, in my opinion.

Over at ThinkProgress, Tara Culp-Ressler has a great rundown of on how affirmative consent actually works

Affirmative consent isn’t based on the idea that every sexual encounter is a rigid contract between two parties. No one is suggesting that college students need to run through a checklist before unbuttoning each other’s shirts. Instead, it’s more about broadly reorienting about how we approach sex in the first place.

The current societal script on sex assumes that passivity and silence — essentially, the “lack of a no” — means it’s okay to proceed. That’s on top of the fact that male sexuality has been socially defined as aggressive, something that can result in men feeling entitled to sex, while women have been taught that sex is something that simply happens to them rather than something they’re an active participant in. It’s not hard to imagine how couples end up in ambiguous situations where one partner is not exactly comfortable with going forward, but also not exactly comfortable saying no.

Under an affirmative consent standard, on the other hand, both partners are required to pay more attention to whether they’re feeling enthusiastic about the sexual experience they’re having. There aren’t any assumptions about where the sexual encounter is going or whether both people are already on the same page. At its very basic level, this is the opposite of killing the mood — it’s about making sure the person with whom you’re about to have sex is excited about having sex with you.

Making sure someone else is enthusiastic about what you’re doing with them requires you to consider their wants and needs, think about how to bring them pleasure, and ultimately approach sex like a partnership instead of a means to your own end.

Frankly, sometimes I think we should ditch the term “consent” altogether. It feels like a carryover from the old male-aggressor/female-gatekeeper model of (hetero) sex, and, even with the addition of adjectives like “affirmative” or “enthusiastic,” retains this contractual connotation that, I think, detracts from the shift we’re actually trying to make here. The point is that people shouldn’t be “consenting” to sex as if they’re acquiescing to a request to borrow your damn toothbrush. We are talking about sex, for fuck’s sake. Probably the single most universally beloved activity in the world. Of course “consent” should be affirmative; it should be excited, joyful, ecstatic. In a culture that really, truly recognized women as sexual agents with desire of their own, there’d be no question about that.

Because that’s all we are talking about really: mutual desire. Desire that, if you’re doing it right, should be undeniably clear. And if it isn’t, you shouldn’t be doing it. It’s really pretty simple.

Maya Dusenbery“Can we have sex, please?” is Maya‘s go-to line.

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7 Comments

  1. Posted June 25, 2014 at 5:04 pm | Permalink

    The “affirmative consent” standard, while admirable as a social norm, is too vague to be a legal standard.

    It’s all very well to say that affirmative consent just requires all parties to “pay more attention to whether they’re feeling enthusiastic.” That’s like saying yoga is about “connecting with your body.” That sounds great but what, precisely, am I required to do? If we were talking about social norms, there’s no problem. People would just figure out what this means for themselves, and apply it based on context.

    However, if you make it a legal norm – which is what SB-967 does in California – suddenly the vagueness is a huge issue. How does one prove that one “paid attention”? What constitutes “paying attention”? If I regard looking at my partner’s face before initiating anal sex as attention – but he/she thinks that only verbal counts – how do we resolve this conflict? Should a student be expelled because they found themselves in a situation where “one partner is not exactly comfortable with going forward, but also not exactly comfortable saying no”? (SB-967 is explicitly about incidents in state-funded universities.)

    The codification of a social norm into a legal standard is what most of the backlash is about, not the desirability of asking your partner what they want. Example here: http://reason.com/archives/2014/06/22/californias-absurd-intervention-over-dor

    Unfortunately, we have people talking past each other. Feminists like you and Hess are discussing the desirability of affirmative consent as a social norm. Opponents are discussing it’s undesirability as a legal norm. And on this issue, I’m afraid that the opponents have the high ground. Many, like Cathy Young does above, acknowledge that affirmative consent is desirable as a social norm. Till now, no feminist has acknowledged that the vagueness of policies like SB-967 might be a problem.

  2. Posted June 25, 2014 at 6:26 pm | Permalink

    The negative reactions to this legislation are just bizarre to me. I just don’t get how verbalizing (or in some other way communicating) desire is going to take the romance out of a situation.

    Even with my SO, who I’ve been with for 7 years, when one of us wants to have sex, we turn to the other one and ask, “Wanna do it?” or “Is it sexy times?”

    Neither of us have ever been good at sending or receiving “signals” so we both just find it easier to straight up ask. Maybe it’s not romantic, but there’s never any ambiguity.

    What am I saying? It’s hella romantic.

  3. Posted June 25, 2014 at 8:09 pm | Permalink

    This is another case of a part of the gender discourse where people are simply talking past each other, in my opinion.

    I think everyone agrees that the kind of enthusiastically affirmed consent (as long as it’s including implicit affirmation for *initiation* for the cases like the woman beginning to unbutton a shirt without asking) is the *appropriate standard for having sex*. I want more people to talk about their desires and generally communicate better.

    It is, however, a rather *problematic legal standard*. Why? The problem with this standard is not the definitions of consent that everyone throws around, even though the points raised by David Bernstein are entirely legitimate and require an answer. I think, notwithstanding actual misunderstandings which can and will happen, getting to a point where both parties are reasonably assuming enthusiastic consent is not too difficult.

    The problem is that *proving something subjective as consent* is by and large impossible if there is no record of it. And if there is a record, what kind of practice was included? Did you watch Nancy Schwartzman’s film “Where is the line”? What kind of behavior is included in consent? What not? What kind of communication? Is the initiator the only person required to ensure consent? Or is the person who’s complying happily with initiations required to inform them of their subjective lines not to be crossed? This is a problem. This is, according to the dean of Antioch college what killed the Antioch college SOPP. It required explicit consent for every distinct sexual activity and it wasn’t even able to define “distinct sexual activity”.

    And that is a problem. Not because the first thing people should think about is how to “get away” with bad behaviour or sexually assaulting people, but because there needs to be a way for people to defend themselves against alligations if they are untrue. To stay on the unbutton example used by Prof Bernstein: how would the girl who once ripped my shirt apart ever be able to prove my consent to ripping my shirt apart, when all she could have possible assumed was I may be interested in more than making out. She didn’t have my consent, she assumed it. She was right, but how could she have proven that had I denied it? Amanda Marcotte wrote on slate that this would be great for guys who aren’t sexual perpetrators because it would be hard for tipsy women to later claim non-enthusiasm. But why would that be dificult?

    An additional thing no one mentions in this debate is that women are very likely relatively more vulnerable to this kind of accusation than men are because women aren’t used to being careful with male bodily integrity. They usually (and often rightly so) assume we’re ok with their advances. But that puts them at a particularl risk in this system.

    Just like rape prosecutions are very difficult because the subjective intent (mens rea) to rape – being *aware of lack of consent and still going ahead against that assumed lack of consent* – is hard to prove (*did the accused understand *no*?). Now the burden of proof may be shifted and that comes with similar problems: Assuming there *was* affirmative enthusiastic consent all the time during a sexual encounter, it’s still easy to say there wasn’t. How would an accused defend herself against such an alligation? How could “affirmative consent” be proved in a way that is both legally sufficient *and* practical?

    And that’s what I’m really missing in this discussion: I’d like those in favour of such a large scale behavioral experiment through legal measures to come up with something that would discuss both the legal and practical implications of the measure instead of merely saying: but this is how decent people have always had sex, and one should always trust people one has sex with. Of course one should trust the people one has sex with, but that not what laws are for: Laws are for dealing with situations where people trusted each other and somehow that *did not* work out.

    I don’t think it’s sufficient to say: I have the better behavioral standard, let’s make that a law when it’s pretty obvious that that wonderful behavioral standard is, at the same time, a very problematic legal standard. That difference really should be addressed by those in favour of the measure.

    What are you gonna do when the first female student gets expelled for, say, allegedly kissing a guy without affirmative consent, when it was actually consensual, but she later she kissed another fully consenting guy and went home with him. And then the first guy reported her for sexual assault? What’s she going to do? Claim that he’s abusing the system? She’d be right, but how would she *prove* consent? And that kind of thing is going to happen.

    Affirmative consent is good behaviour, bad a bad law. It will be highly interesting, though, to follow that social experiment, if it should become law.

  4. Posted June 26, 2014 at 9:12 am | Permalink

    …people shouldn’t be “consenting” to sex as if they’re acquiescing to a request to borrow your damn toothbrush.

    Might the words “agree” and “agreement” be suitable substitutes
    for the word “consent”?

  5. Posted June 27, 2014 at 1:57 am | Permalink

    ” Probably the single most universally beloved activity in the world. Of course “consent” should be affirmative; it should be excited, joyful, ecstatic. In a culture that really, truly recognized women as sexual agents with desire of their own, there’d be no question about that.”

    This is really depressing coming from a feminist site. What about women who don’t like sex but do it to make our partner happy? What about us? I’m ok with having sex, but why do I have to be constantly faking enthusiasm? It’s exhausting. Feministing, you cannot claim to be inclusive when you write articles that are so demeaning to an entire sexual orientation. Stop telling us what we should like! Please!

    • Posted July 9, 2014 at 2:57 pm | Permalink

      Hi Marie, I’m so sorry I made you feel marginalized. I actually phrased that sentence (“most universally beloved activity”) specifically to imply that sex wasn’t entirely universally beloved–just pretty close–given the existence of asexual people, but I definitely could have been more clear about that. Obviously, if you don’t like sex, perhaps the word “consent” resonates with your experience and of course I don’t think anyone should be faking enthusiasm! But I still think that, regardless of whether you are having sex because of your own sexual desire or your desire to make your partner happy, the standard should be far more about desire than is apparent in the current discourse around “consent.”

  6. Posted June 27, 2014 at 1:58 am | Permalink

    And to be honest, this is the first Feministing post that has ever made me cry because I feel so marginalized.

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