I have a ton to say about this but it's going to have to wait until I have enough time to do it justice; for now, you should read this Pandagon post about "affirmative consent," rape, and the law. It is very good and very important.

If "She never said no, so it can't be rape" is an argument, how is the converse ("She never said yes, so it was rape") not also a valid argument?

I've always argued, and will continue to argue without apologizing, that not all communication needs to be verbal. There are clear and obvious ways to say yes – initiating sexual activity or being receptive to initiation by someone else – and no – pulling back, pushing away, clamming up, etc – without using words. Sexual activity does not and should not require on person saying "WOULD YOU LIKE TO HAVE SEXUAL INTERCOURSE? IF YES, PLEASE SIGN HERE" nor the other saying "I CONSENT TO SEXUAL INTERCOURSE, INCLUDING THREE TO FIVE MINUTES OF MANUAL STIMULATION AND NO MORE THAN FOUR (4) SLAPS ON THE ASS." But to claim that this is the "feminist" argument is to create a Straw Man.

It baffles me that so many men appear to find this concept so difficult. If you are not sure, you have two options: ask ("So…do you want to do it?") or – and this is the one that blows minds – don't have sex. I've heard every hypothetical what-if situation in which the poor male is victimized somehow by the rules of consent and yet I have never heard a single one that could not have been resolved by one of those two options. Not one. Ever. Those two choices that all men have work 100% of the time.

36 thoughts on “CONSENT”

  • I once had a friend who wanted to sleep in my bed with me and wanted me to do various sexual things to her, in a generally escalating pattern, until she said no, which she might or not might not do. I found this appalling, as I would have already done the unwanted thing before she said no, but I figured if that's what she wanted, that's what I would do. She also told me that no sometimes meant yes. I told her that if she ever said no when she meant yes, she was going to sleep horny, because in my world, no means no.

    In general, I require not just certain consent (which doesn't have to be verbal – her putting a condom on me seems pretty obvious) but enthusiastic consent. And any kind of no, verbal or nonverbal, at any time means stop at once.

    Now that I'm married, this is much less of an issue.

  • >If "She never said no, so it can't be rape" is an argument, how is the converse ("She never said yes, so it was rape") not also a valid argument?

    I'm not justifying it, but the logical subtly is in the sets:

    {<, =, >}

    Your argument contains the strict inequalities and you are using them as negations of one another. In the more complete set of comparisons, the negation of > is <=.

  • … well that got edited to shit by the html parser.

    "Not greater than," is equivalent to "less than or equal."

  • Hmmm….

    Ed, you say that there are ways a woman can say no to sex, such as:

    "… pulling back, pushing away, clamming up, etc – without using words…"

    But a quote from the Bill says this:

    " Lack of protest or resistance does not mean consent, nor does silence mean consent. "

    These are two different criteria by which to say no to sex.

    Will you clarify, please, that you specifically do not endorse the quote from the Bill?

  • I'm not justifying it, but the logical subtly is in the sets:


    Your argument contains the strict inequalities and you are using them as negations of one another. In the more complete set of comparisons, the negation of > is <=.

    I can't work out if I'm irritated or envious that you just blithely skipped to a chat about logic. It must be lovely to have this be a totally abstract discussion.

  • Ed's post is right on. May I suggest to anyone who still has questions to ask the specific woman who you're specifically thinking of having sex with, before you have it, how she feels about it? Otherwise known as Ed's Option 1.

    Honestly. This stuff is NOT DIFFICULT.

  • c u n d gulag says:

    So, if you slip a woman a Mickey Finn (a "roofie" for you kids out there) in her drink and she can't say no or yes or refuse physically because she passed out, then it's ok to initiate sex with her?

    Obviously, I know the answer to that one.
    Everyone should.
    Some, apparently, don't.

  • Here's a quaint, old-fashioned idea. How about you know the other person well enough that you can have the conversation, or pick up on the non-verbal cues, that Ed references.

  • Radical Scientist says:

    I find it kind of terrifying when people jump to 'But we all make mistakes! Miscommunication is a risk you take in dating!'

    Sure, it is. I'm a clueless person. Miscommunication and mixed signals have lead me to do all kinds of embarrassing things–lean in for a kiss and get a peck on the cheek, sit through an entire evening of Xena reruns and mint juleps only to slowly realize that was my hot friend's idea of Platonic Bro Time, had a partner gently remove my hand from starting to undo her pants mid-enthusiastic-makeout.

    But I've never accidentally raped anyone.

    Everyone had some experience where they've made a move, and their move was not welcomed. If you're a regular person of good conscious, who cares that the person you're trying to bang is also having a good time, you make your moves stepwise and pay attention to how the other person responds.

    There's something scary and deeply cynical about conflating these "So shall we? No? Whoops, ok!" miscommunications with rape, but people do it all the goddamn time. Having student codes of conduct that shifts the standard for consent from 'absence of 'no" to 'presence of 'yes" won't harm anyone's ability to go forth and have mutual, consensual fun, but it will remove a lot of the cover for rapists. I can only assume that's what the pearl-clutchers quoted in the Pandagon article are trying to avoid.

  • Always an interesting day when the G&T post covers the same ground as the Feministing email newsletter.

    That Pandagon post is difficult for me to parse – I have a hard time with the writing.

    I like this:

    Put me down for: of course there can be non-verbal consent, let's stop using the word consent because it's contractual and carries an implication of a man wanting sex needing contractual approval from a woman who is less likely to want sex, and I think the phrase 'can we have sex please' is fantastic. It can be charming, practical, silly, lustful, etc. depending on the delivery. Instead of it and similar verbal questions being mocked as awkward, impractical, not manly, etc. they should be used on TV, in Hollywood, taught in sex ed, etc.

    For fun: comment section of every article about campus sexual violence ever:

  • "If I'm a woman and I am walking down the street naked, you still don't have the right to rape me. "-Dick Gregory.

  • (Un-Ironic Slow Clap)

    I spend a depressing amount of time saying things to my high school students to the effect of "hey, don't touch people who don't want to be touched, that's rude and not funny or cute," and/or straight up yelling "NAME! QUIT BEING A CREEPER!"

    Seriously not that hard a concept. tell your children, people!

  • Stop the next heterosexual man you meet. Ask him how he would feel if another guy "lovingly" touched him "down there" without explicit permission.

    There's your answer right there.

  • @maura:
    Not to kick what around here is a very dead horse, but I can't help but think of the Boomers and their unsustainable Free Love antics here.

    For a lot of people, Sexual Freedom meant the freedom to manipulate people into situations they didn't really want to be in. Sure, it was predated by the Mad Men era and "Baby It's Cold Outside" and, well, a long history of sexual coercion. But you don't gotta love that Aquarian hypocrisy.

  • Radical Scientist says:

    Peggy, you are a true hero. I'm half laughing at 'Name! Stop being a creeper!' But really, they're better off hearing it sooner, from someone who can stop them, before that shit takes root.

  • "Buckyblue Says:
    "Here's a quaint, old-fashioned idea. How about you know the other person well enough that you can have the conversation, or pick up on the non-verbal cues, that Ed references."

    Congratulations. You just blew up the entire college fraternity system in this country. And thanks for that. Seriously. I've wanted to do it with C-4 for a while, but I don't know how to get my hands on any.

  • Spoken like someone who has a really thrilling sex life, I'm sure.

    But a Pandagon approved one! So there's that.

  • @acer: So, so true. I am a woman and a boomer, and I wasn't in college fifteen minutes before it occurred to me to wonder about that 'Free Love' idea. Free for whom? It mainly seemed to mean free of the annoying need to engage in the horseshit courtship rituals of the past.

    Fun moment at a college party in 1977: inebriated young man who I had met for the first time that evening spent half an hour arguing with me that since I wasn't a virgin, I should be willing to sleep with him because he was a nice guy. Perhaps someone could diagram that logic?

  • @acer,@DES. Interesting you both picked up on this- I'm a GenX and through a lot of my school years I was taught by 'Touchy Feely' post Aquarians.
    I'm not a particularly physically affectionate person, for me it is only for those with a strong emotional connection to me, but these people it didn't seem to matter- you got touched whether you wanted to or not! I found this very discomforting.
    While this is not the same as sexual assault, to me in retrospect it almost seemed like the grooming process pedophiles use on children. It alway seemed to be about manipulation, particularly for dodgy men to get too close to young girls.( and I mean you Father Creen!)

  • Spoken like someone who has a really thrilling sex life, I'm sure.

    You think enthusiastic consent is boring? Good to know. Maybe put that on a t-shirt so people who find the idea of therapy and rape kits boring can give you a wide berth.

  • "Spoken like someone who has a really thrilling sex life, I'm sure."

    So that's the metric for you? What else are you measuring? I wondered how far down the comment thread we'd go before some foreskin jockey would haul out the "you must not be getting any if this is your position" POV. Go back to the frat house, gin up a circle jerk, and leave decent people alone. Try to remember, drunk-posting never ends well.

    Oh, and blaming this shit on the boomers? Yeah, that settles it. Hell, why didn't I think of that? Boomers are on their way out, so when they're gone, so will all these problems. You got parent issues, go home and argue with them. Facile explanations evaporate pretty quickly in the summer heat.

  • Andrew Laurence says:

    @DES: The courting rituals of the pre-"Free Love" era were pretty fucked up, but the idea that every woman should have sex with every man who asks, or she's a stuck-up prude, are perhaps even worse. I am curious, though, how this young man you'd just met knew you weren't a virgin. :-)

    Personally, I've never set much store by virginity. I couldn't wait to lose mine, and many years ago I volunteered to help a 28-year-old friend lose hers, since she seemed to feel awkward about it. She considered it in the sincere manner in which it was offered but ultimately declined, stating that she thought I had romantic feelings for her which she did not reciprocate.

    I actually like the idea of a world in which someone who fancies someone else can just mention that fact and find out whether it's reciprocated, and if it is, go for it. If not, forget I ever mentioned it and move on with our lives, no hard (no pun intended) feelings. I hope we get there.

  • I'm going to argue that non-verbal consent isn't in any way shape or form anything but unambiguous. Yes, I expect to be attacked. Still, I haven't heard a decent argument that would stand up as anything but. Here was the Pandagon rebuttal to that point:
    "Anyone who finds it too hard to bother knowing if the person they’re touching is into it before touching them needs to retire from touching people until their social skills sharpen."
    OK, so noted. However, neither they nor I apparently don't believe those people don't exist. Heck, I'll admit to being that socially bad (apparently disqualifying me from dating, according to Pandagon). As a matter of fact, they sort of support my argument more explicitly later:
    "Look, either you believe that men can understand subtle language and body language or you don’t."
    I don't. But it's not just me, the Amanda Hess article quoted in Pandagon mentions:
    "While the bill initially warned that “relying solely on nonverbal communication can lead to misunderstanding,” that language has since been stricken."
    The thing is, ultimately this is a law we're talking about so legal proceedings are fair game. "It seemed like she was into it" isn't going to fly in court, because everyone will say it whether or not it's true. Also, 'I placed my hand X and she continued' is not actually affirmative by definition, it's a lack of a negative (not the same thing). Without someone saying 'yes' out loud we're still into the legal gray area that everyone is trying to stop with this argument. Otherwise, it's just 'no means no' which strikes me as obvious.

  • I just don't see how there's a gray area unless you're an asshole. Who the hell wants to have sex with someone who's not into it? Creeps and rapists, that's who? If you're jamming your tongue into her mouth and her lips and tongue are not moving, there's a clue. If you put your hand on her breast and she shifts position so that your hand is not on her breast, there's another. Treat her like a person with her own desires (which may or may not coincide with yours), and not a receptacle for gratifying your desires, and the problem tends to work itself out. No one has ever said to me, "I hereby agree to intercourse preceded by manual stimulation of my vulva and clitoris to the point of orgasm, not to exceed five minutes," because people don't act like that.

    Ladies, if you don't want sex, try saying no, or if you're very polite, no thank you, verbally, explicitly, audibly, and in a language spoken by the other party. It goes a long way toward clearing up matters.

    Gentlemen, realize that a woman has a lot more to lose by agreeing to sex than a man does. Pretty much any man, particularly a young man, will reach orgasm by inserting his erect penis into any vagina and rubbing it back and forth enough times, regardless of how he and the other person feel about each other as human beings. This is emphatically not true for women, most of whom can only reach orgasm by clitoral stimulation. I had a partner who had only ever been with jocks and frat boys. She told me intercourse had never made her come. I put my finger on her clit while she was riding me, and the came almost instantly. It wasn't even challenging. I guess the end of "Revenge of the Nerds" is really true.

  • @Andrew — yes you're right, there's no other situations other than 'jamming [my] tongue in her mouth' to be considered.
    Here's the thing about verbal communication versus non-verbal communication — when this plays out in court, she will say "I never said no but I shifted her position so that his hand wasn't on me". The rapist will say "It seemed like she was into it, it looked like she shifted her weight because her leg was uncomfortable" and on and on we go, back where we were before the law that is under discussion. Also, though your strawman doesn't seem to be able to speak like a person, the word 'yes' satisfies the whole 'affirmative consent' thing just fine. Still, I stand by the assertion you're ignoring — even if the law doesn't explicitly state it I have no idea how you would prove 'affirmative consent' non-verbally in court. Other than attacking me, it seems you don't either. If you do, try actually arguing the point rather than attacking me.
    Incidentally you're assuming I think that it's a bad thing. I'm not saying good or bad, just pointing out that it seems to follow from the law.

  • Where did I attack you and not your point? Are you really not able to tell a woman who wants to have sex with you from a woman who doesn't? If so, I suggest you pursue therapy and in the meantime, stick to masturbation, if you want to stay out of court. Or wait for a woman who's willing to say, "I hereby consent to receive your erect penis in my vagina, provided it is covered in a condom, and will let you know when I revoke said consent. Please proceed," or something along those lines. The rest of us will just keep reading body language and using our social skills and not worry one whit about being falsely accused of rape.

    Explicit consent is any functioning non-sociopath's bare minimum for sexual contact. My own standard has always been higher: explicit, enthusiastic consent. I'm perfectly capable of recognizing those whether or not they are verbal. If you're not, you're not ready for sex with another person in a free society.

  • Again I'll reiterate: you could just say 'yes'. You're carrying it to an absurdity, but it doesn't need to go there.
    My argument is this: "The rest of us will just keep reading body language and using our social skills and not worry one whit about being falsely accused of rape." Great, I don't doubt you're not a rapist. But what if someone says "you took advantage of me". Now what? You read body language, but where was the affirmative consent? "I could just tell". Of course you could, since that's exactly what every single date rapist has used in court since time began.
    See, here's the thing — this is a new law. Meaning obviously the old one didn't go far enough. The new standard is 'affirmative consent'. That's new. Nothing you've said so far has shown how 'I could just tell by how she was sitting' is affirmative consent. Your last paragraph is a wonderful moral statement, but I don't think anyone has argued that morally rape is wrong. The article is about a law. Legally, how would you define 'affirmative consent' in body language?

  • The law doesn't need to define affirmative consent. If she unwraps a condom, puts it on my penis, and squats on said penis, that's affirmative consent, and no sane person would argue it isn't. If she takes off her panties and lies back with her legs open, and I position myself over her, and her hips move upward to meet my thrust, what do you think is happening? We don't even have to speak the same language. Are there going to be ambiguous situations? Of course. There always have been and always will be. The burden of proof remains with the accuser to prove, beyond a reasonable doubt, that she did not give affirmative consent. Most people who are so cripplingly shy that they would just lie there like a dead fish and let me fuck them without complaint or even token resistance (not that I would) are unlikely candidates for filing a police report. Obviously if the person has a personal vendetta against me, all bets are off, but the circumstances in which a woman feels she's been raped and the man truly feels she gave consent (and is not just arguing that to defend himself against the charges) are probably in the single digits worldwide each year.

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  • If you are not old enough to talk about it, you're not old enough to do it.

    And BTW, if you don't talk to the woman who "unwraps a condom, puts it on my penis, and squats on said penis," you can't determine if she is, possibly, unbalanced, or inebriated, and therefore not capable of consent.

    You go ahead and count on "affirmative consent" go ahead. I'll stick to my concept of "continuing and escalating consent" that is, explicit consent for each escalation of intimacy. And uh, you might want to ask the woman who is doing all that "affirmative consent" how old she is. The law and her might have a different idea about what is age-appropriate for her.

    Besides, "escalating and continuous consent is more fun. At least you will know whether or not the girl has passed out on you. Oh, BTW, I don't think passing out would be considered "affirmative consent" ot would it. After all, she's not saying "no".

    If you aren't old enough to talk about it, and deal with the answerrs you get, you aren't old enough to do it.

    Let me give you an example: All during our first night as a married couple, I asked my new wife, "Is it good for you, too? Is it good for you?" And she answered, "You know, I really don't think this was good for anybody!"

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