[Content warning for discussion of the ethics of rape, pedophilia and sex with teenagers.]
Consent: Affirmative, Verbal, or Enthusiastic?
Consent is necessary for ethical sex. But what does “consent” mean? (As always throughout this series, I am discussing the ethics of sex, not the legalities.)
Many feminists have argued for an enthusiastic consent standard: that is, you shouldn’t have sex with someone unless they are enthusiastic about having sex with you. As the saying goes, “if it’s not a fuck yes, it’s a fuck no.” However, I ask the reader to consider the following vignettes:
- A couple struggling with infertility is trying to conceive a child. Their fertility monitor has shown that today is ovulation day. They’re both tired and neither of them is really feeling it, but they have a quickie to maximize their chance of conceiving.
- A man notices his boyfriend is horny today. Since he’s not in the mood, he cuddles his boyfriend while the boyfriend jerks off and whispers to him all of the nasty things he’ll do to him tomorrow.
- A woman and her girlfriend want to keep the spark alive. Every Friday, they schedule sex. They usually both end up getting incredibly turned on, but even if they don’t, making sure to have sex once a week makes them feel like sexual beings and increases their satisfaction with their sex life.
All three vignettes involve unenthusiastic consent. All three vignettes seem to me to be completely and utterly morally unproblematic. Certainly, some people might decide that it is wrong for them to have sex when they’re unenthusiastic about sex. But it seems to me to be perfectly normal and ordinary for some people to sometimes consent to sex when they aren’t enthusiastic about it, and have that as part of their flourishing as human beings.
You might try to save the enthusiastic consent metric by saying “the first couple is enthusiastically consenting to sex because they enthusiastically want a baby!” By this logic, if you hold a gun to my head and force me to have sex with you, I’m enthusiastically consenting because I enthusiastically want not to be dead.
So I think unenthusiastic consent is sometimes a part of ethical sex. I will now consider no-means-no consent, affirmative consent and verbal consent. (I am informed that everyone else uses “affirmative consent” and “verbal consent” interchangeably. This is stupid and I refuse to bow to common usage.)
No-means-no consent is beloved of consent rules lawyers everywhere. The basic idea is that if your partner says “no” or “stop” or “safeword” or “red,” then you should stop, and otherwise it is open season and you can do whatever you want.
The nice thing about no-means-no consent is that there is a bright line. If your partner has said “no” or “stop” or “safeword” or “red,” and you continued, then clearly you are doing something wrong. The problem with no-means-no consent is that, taken literally, it says that there is nothing wrong with getting as close as humanly possible to raping someone as long as you don’t technically rape them. In fact, it’s a good thing to do that! Hey, man, you got laid!
No-means-no consent implies that there is nothing wrong with having sex with a man if he is lying there, silent, unmoving, staring at the ceiling, with a blank expression on his face. After all, he didn’t say ‘no.’ Would you like a sticker that says Technically I Didn’t Commit A Felony on it?
I think we need a fundamental shift in our understanding of consent. We need affirmative consent.
As I use the term, seeking affirmative consent means only having sex with people if you have sufficient evidence to believe that they want, at that moment, to have sex with you. Explicit verbal consent, such as dirty talk, can be a form of affirmative consent, but it is only one form. Perhaps the most common form of affirmative consent is active participation, such as touching, moving, and kissing. Sounds like moaning or grunting can also be affirmative consent.
In general, I’d argue, affirmative consent should be given throughout the sex act. If your partner stops affirmatively consenting, you should pause and say something like “hey, you okay?”
Of course, this is a rule that admits of many exceptions. For example, some people become quiet and still and meditative during sex, which can be hard to distinguish from a person who isn’t enjoying sex. Some people enjoy roleplaying nonconsensual sex. Some people want to have sex when affirmative consent cannot possibly be given– most commonly, they want to be woken up during sex.
I think all these cases should be addressed through pre-sex negotiation. For example, you can say “I get really quiet when I’m turned on, but nothing’s wrong,” or “if I don’t call ‘red’, you should keep going,” or “you can wake me up with sex whenever you want,” or “you can wake me up with sex but only when I’ve said you can the night before.” (You might say that that is an unreasonable level of negotiation to have about sex while the other person is sleeping, which most people are fine with. This is because you have never dated a sleep-deprived person who has finally gotten a chance to sleep in, and it would be totally justified for them to throw an alarm clock at your head.)
I do not think explicit verbal consent is necessary for affirmative consent. Verbal consent means saying something like “I want to have sex with you,” or “let’s fuck,” or “do you want to have sex?”, or “down on your knees, slut,” or “your slave has prepared himself for you, master,” or otherwise communicating with your words that you want to have sex with someone.
The problem with saying “verbal consent is necessary for ethical sex” is that observably lots of people have sex without saying anything. My experiences with sex-without-saying-anything have mostly been that it was extremely awkward, not that my consent was disrespected or that people had difficulties reading my signals. I see no reason to believe that nonverbal communication is any less effective at conveying “I want this” than verbal communication. (Of course, verbal consent seems superior for complicated negotiations, such as kink or fetish negotiations, which probably explains its popularity in those communities.)
Verbal consent is also difficult to maintain continually throughout sex. It is not actually ethically mandatory to chant “yes! yes! yes! yes! yes!”, although many people may find it enjoyable. Therefore, verbal consent ends up being a form of no-means-no consent– once a person says “yes”, it is assumed they mean “yes” until they say “no” again. Affirmative consent, however, is possible to maintain all the time.
I suspect all these niceties, however, are rarely relevant in the bedrooms of the nonrapists of the world. In fact, I myself have had the experience of forgetting to establish a safeword before I began noncon play with someone. Don’t do this, it’s a terrible idea. And yet when I actually had to say no to sex, “no! I mean, really, no! This is not part of the scene, stop right now! RED! SAFEWORD!” conveyed the message very well and nothing bad happened.
I suspect the reason is that I was having sex with someone who actually cared about whether I wanted the sex. Naturally, they paid attention to information that suggested that I might not be interested in sex and paused to check in when they thought that might be the case. I think this is actually the normal way for sex to go among the non-rapists of the world.
Problematic Consent: Sex With Teenagers
Midway through writing this section, I noticed this old blog post of mine about age of consent, which I still agree with. Go read that.
Problematic Consent: Intoxicated Sex
The problem with ‘intoxicated sex’ as a category is that it refers to several different things.
First, sometimes when people say ‘intoxicated sex’ what they mean is ‘having sex with someone who has said that they don’t want to have sex with you when they are too intoxicated to meaningfully resist.’ That is technically called ‘rape’ and it’s a violent felony. Don’t do it.
Second, ‘intoxicated sex’ sometimes refers to sex with someone who is incapable of giving informed consent because they are too intoxicated to understand what they’re consenting to. If a person is confused about who they are, where they are, what time it is, or what’s going on, they are incapable of providing consent to sex, and having sex with them counts as rape morally and, in most jurisdictions, legally. (Exception: if a person has prearranged ahead of time that they consent to sex while intoxicated, I think that’s morally fine, although you’re on your own on the legalities.)
Third, ‘intoxicated sex’ sometimes refers to sex with a person who has consented to sex and understands what is going on but has poor judgment due to being intoxicated. I don’t think this counts as rape morally, and my understanding is that in nearly all jurisdictions it does not count as rape legally. (Unfortunately, sex education classes– even “feminist” sex education classes– often lie to people about this fact.) I think there are three cases worthy of consideration here.
The simplest case is when you’re having sex with someone who agreed while sober to sex while intoxicated, or with a person you know very very well (such as a long-term romantic partner) whom you sincerely believe would like to have intoxicated sex with you. In that case, I think you should go ahead and have sex, as long as you respect their drunken preferences (you don’t get to rape people even if their sober self said it was okay).
If a person has said while sober that they don’t want to have sex with you, or if you have reason to believe that they wouldn’t want to have sex with you while sober (e.g. they are married to someone else), then you should not have sex with them when they’re drunk no matter how enthusiastic they appear to be. You would be taking advantage of their poor judgment in order to get them to do something that they wouldn’t do sober; that is skeezy as fuck and shows a deep disrespect for the person’s ability to make informed choices about what happens to their own body.
A complicating factor is that some people get drunk in order to feel able to express preferences they can’t express sober. I feel sorry for these people and the way that our sex-negative culture has messed up their ability to communicate their sexual needs; they are victims, not wrongdoers. However, I do not think it is too much to ask that they at least maintain an ambiguous silence about their sexual desires while sober, so that people who know they make poor decisions while drunk can say “I do not want to have sex with you” and trust that that will be respected.
Finally, sometimes you don’t know whether someone would want something while sober: perhaps they’ve maintained an ambiguous silence, or perhaps you met them while they were intoxicated. I would not want to entirely ban drunken hookups with strangers. I understand this is a very common kink which many people enjoy greatly and find deeply fulfilling. However, I would suggest that if there is any uncertainty about whether your partner will regret it in the morning, you should suggest waiting until they sober up.
Obviously, quite often, people who are intoxicated enough that they have poor judgment are having sex with other people who are intoxicated enough that they have poor judgment. Being intoxicated is not an excuse for committing rape; if being intoxicated might cause you to commit violent felonies, then you should not become intoxicated. However, having sex with someone who might regret it in the morning is more of a puking-in-front-of-someone-else’s-door-and-not-cleaning-it-up offense, which is wrong but for which “I was really drunk and not in control of my actions” is an excuse.
Finally, if you are less intoxicated than the person you’re having sex with, it is your job to ensure that you have sex responsibly, including taking all safer-sex precautions.
Fourth, ‘intoxicated sex’ sometimes refers to sex with a person who is slightly intoxicated but still capable of making good decisions, such as a person who had a glass of wine with dinner. This sort of intoxicated sex is morally unproblematic.
[Coming up next post: power dynamics, sex work, safewords, emotional pressure, and suicidality.]
> sex while the other person is sleeping, which most people are fine with.
You… sure about that? My intuitions differ.
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I don’t know about “most”, but I think being awakened with sex (or at least foreplay) is a common enough fantasy that I wouldn’t be surprised if someone said they wanted their partner to do it.
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I wouldn’t be at all surprised if someone said they wanted their partner to do it. But I’d be sort of horrified by anyone who didn’t think it needed to be negotiated beforehand.
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I’d say context.
I’ve had the experience of waking up with my SO angry at me because apparently when I’m stressed I sleep-sex.
“You were really passionate! [grumpy face] But you were asleep!”
Apparently lots of people have had similar experiences, including the girlfriend mad at you for turning out to be asleep bit.
Apparently it’s common enough that it’s in sitcoms.
Lots of couples run on the basis of some kind of general background level of consent such that getting woken up from a blowjob is just a lovely way to wake up when it’s someone you’re already in a long term sexual relationship with.
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I think this MIGHT be true if you add “…in established relationships”; it’s definitely not true as a blanket thing as written. I’m not sure the scope-limited version is true either, though it’s possible; I agree with gazeboist it’s a common fantasy, but that in itself doesn’t necessarily mean people actually want it in practice.
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and yeah even in established relationships I would consider it completely not okay to do this without prenegotiating.
Personally, I’m okay with waking me up FOR sex (in a moral sense; you’ll probably still get the ‘fuck off and LET ME SLEEP’ response) but not WITH sex.
Barry Makes Comics (@barrydeutsch) said:
Regarding “enthusiastic consent,” I think that standard only makes sense for hook-ups, rather than for ongoing relationships. It’s being extra-cautious, essentially. If I’m in a long-term relationship we’ll have developed norms and will know each others preferences (ideally), so for many couples – as in the three examples you gave – it’s possible to downgrade the “enthusiastic” to “willing” without taking a chance of rape. But people who don’t know each other like that need to be more cautious. Hence, enthusiastic consent.
Regarding people conflating “affirmative consent” and “verbal consent,” THANK YOU! I hate that conflation.
In many (not all) cases, the people who insist on conflating “affirmative” and “verbal” are people who favor the “no means no” position, and who seem to be conflating the two positions because they find it easier to argue against “verbal consent” than “affirmative consent.”
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> (I am informed that everyone else uses “affirmative consent” and “verbal consent”
> interchangeably. This is stupid and I refuse to bow to common usage.)
I find this endlessly frustrating, and I don’t think we can dismiss it as “common usage.” Both sides do this constantly, and it’s probably the biggest obstacle to implementing affirmative consent as a legal standard. The reality of affirmative consent is that it’s a common-sense reform – changing sex to opt-in rather than opt-out – but debates about it invariably get bogged down in two fallacies: First, that affirmative consent requires verbal consent, and second, that affirmative consent changes the criminal burden of proof (it’s still reasonable doubt, simply about a slightly different thing.)
Changing the criminal standard will almost never have any affect on real-world trials; basically every sexual assault trial I’ve seen in the news has involved a plaintiff who says they were unconscious or said “no”, and an defendant who claims the plaintiff said “yes.” Rapists (and false accusers) *lie*; tweaking the definition of consent isn’t going to change that.
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That is my understanding as well. Affirmative consent is a legal standard that basically says that a victim’s silence is not evidence of consent. And some other stuff too, details depending on how it is implemented.
It is common for both supporters and detractors to describe it as requiring verbal consent, but there are very few places where the law is actually written that way. This is very much a case of detractors mischaracterizing and strawmanning affirmative consent, and supporters occasionally accepting the strawman because they don’t know any better.
I think that it is completely unfair to characterize this as a strawman invented by detractors which was then sometimes adopted by some proponents, when the proponents came up with ‘yes means yes’ as a slogan. That slogan is still used by proponents all the time.
The slogan begs to be misunderstood, because the old ‘no means no’ slogan was mainly about teaching people to respect a verbal ‘no’. So then the new slogan is logically parsed as asking people to wait for a verbal ‘yes’.
Furthermore, the first college to adopt an affirmative consent policy in 1991, Antioch, required and still requires explicit verbal consent. Their current policy states:
So from my perspective this is a case of early proponents going way overboard, detractors offering very valid criticisms that were then (partially or fully) accepted by many, but certainly not all proponents & then this improved version of affirmative consent being retconned as ‘that’s all we proposed in the first place and anyone who says differently is strawmanning us.’
It isn’t retconning, because I didn’t make any claims about what affirmative consent has meant historically. The relevant question is what it means now.
@Aapje and @Siggy: I did an informal “Google result straw poll.” My impression is that about a quarter of affirmative consent proponents conflate it with verbal consent, and a fair number of the remainder are ambiguous. There’s a clear pattern wherein more “serious” sources – e.g. RAINN, rather than college activists – are more likely to distinguish the two.
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I really like this affirmative consent standard.
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This all seems reasonable, but for a critique of Just Love it’s pretty light on Farley’s views. I’m curious if they’re significantly different from what you’ve written here. Is that going to come up in a future installment?
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Man, you caught me, I’m totally writing Ozy’s Viewpoints on Sexual Ethics Loosely Inspired By This Book’s Framework.
Fair enough 🙂
I can always read her book alongside your posts.