The concept of affirmative consent for sexual encounters

[treis]

Consent. For purposes of this policy, consent is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. It is the responsibility of the person who wants to engage in the sexual activity to insure that he or she has the consent of the other to engage in the activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. For that reason, relying solely on non-verbal communication can lead to misunderstanding. Moreover, the existence of a dating relationship between the persons involved or the fact of a past sexual relationship should never provide the basis for an assumption of consent.

http://www.uiowa.edu/~our/opmanual/iv/02.htm

That’s from the University of Iowa and it’s representative of a new concept of affirmative consent. The gist is that without a clear and unambiguous “yes”, no consent is given and any sexual activity is considered rape/sexual assault. I have a few problems with it:

(1) It’s a stupid definition. I’d say that 97% of the times I have had sex, there was no oral consent or unambiguous action (what ever that would be). According to this definition, I’ve been raped and have committed rape an alarming number of times. Do we seriously expect people to get affirmative oral consent each and every time they have sex with their long term SOs?

(2) It solves a problem that, imho, doesn’t exist. I don’t believe that there are a bunch of guys out there accidentally raping their dates. They know what they are doing and a policy like this isn’t going to stop them.

(3) I know that some false rape accusations happen. I don’t know how big of a problem it is, but if this policy is enforced as it is written, then the bar to be declared guilty becomes tiny. Like I said, in (1), the vast majority of the time I’ve had sex it was without clear and unambiguous oral consent. Hypothetically, if an ex wants revenge on me, accuses of me of rape, I don’t see how to defend myself against this policy without lying.

(4) Realistically, this is directed at men having sex with women. Within that context, it perpetuates a couple of unequal social mores regarding the sexes. One, it assumes, or at least anticipates, that women are too weak and timid to say no to something they don’t want. Two, it reinforces the idea that men are always to want sex and women aren’t. Men need to make sure she really wants it before having sex, because who’s ever heard of a woman that wants to have sex?

I realize that the language of the policy applies to both partners, but take a look at Iowa’s “Consent is sexy” page and tell me who that’s targeted at. http://dos.uiowa.edu/policy-list/affirmative-consent-2/

I understand why there is a push for things like this. But I think that ultimately the efforts are misguided. The idea is that with education rapist will stop raping women. Unfortunately, rapist rape people because they are bad people, not because they lack an understanding of what they are doing.

[Revenant_Threshold]

It seems to me as though it’s less about educating potential rapists, and more about providing less cover for them in any trial that might come about.

[elbows]

I’d say that 97% of the times I have had sex, there was no oral consent or unambiguous action (what ever that would be).

Seriously? Someone getting naked with you, and into your bed, following a lot of necking, didn’t happen? Because I’m going to go out on a limb and suggest that might just be considered, ‘unambiguous action’!

[Peremensoe]

One argument is… that somebody might change their mind anywhere along the way. The hardliners on this insist that not only do you need explicit consent, you need it several times, at every stage of ‘escalation’…

[Dangerosa]

@elbows

Seriously? Someone getting naked with you, and into your bed, following a lot of necking, didn’t happen? Because I’m going to go out on a limb and suggest that might just be considered, ‘unambiguous action’!

Or giving you a hand job while saying “do me, do me now?”

I really wonder what sorts of sex some of the men on the Dope have.

[Inner_Stickler]

I see nothing wrong with it and would like to see this policy of unambiguous consent carried over into all areas of life.

[treis]

@elbows

Seriously? Someone getting naked with you, and into your bed, following a lot of necking, didn’t happen? Because I’m going to go out on a limb and suggest that might just be considered, ‘unambiguous action’!

shrug those aren’t unambiguous actions to me. They aren’t different than someone who is having sex because they feel pressured or fearful. I mean, it’s always been clear to me that the person I was having sex with wanted to have sex. But I wouldn’t feel very secure using “she took her clothes off” as my sign of unambiguous consent.

[Marley23]

Ah good, another thread where we overthink rape laws. Guys, if you’re with someone who is conscious and interested in having sex with you, it’s very unlikely you’ll be accused and convicted of rape. There’s nothing in that policy that says you need verbal consent and a signed notarized form at every stage. It says verbal consent or “clear, unambiguous actions.” The policy says that even if the person doesn’t verbally object (because he or she is unconscious or frightened into silence, for example) it’s still rape.

[Jimmy_Chitwood]

@treis

I have a few problems with it:

(1) It’s a stupid definition.

Oh. Well, that’s not a very good start. And I get the sense I’ve said most of the things I would say here in threads very much like this which you were participating in too. So all I’ll say is that this:

Unfortunately, rapist rape people because they are bad people, not because they lack an understanding of what they are doing.

is wrong and is pretty much exactly the sort of thing that leads to loaded phrases like “rape culture” that make people stick their fingers in their ears and scream bloody murder. There are rapists all over the place who have no idea they’re rapists. It’s a significant fraction of rapists. Most rapes don’t happen at knifepoint in parking garages with dirty overalls unbuttoned. There are people on this board who have admitted to the legal elements of sexual assault, but who have vehemently denied the suggestion that those elements added up to sexual assault. You might even be familiar with some of those threads.

Both anecdotally and based on the research, I promise you that there are plenty of people who, for instance, will acknowledge that they have had sex with another person who didn’t want to because the other person was too drunk to resist. When you ask those same people “have you ever committed a sexual assault?” those people say no. No I haven’t done that. They say that because they believe it, because they are stubborn and stupid and because they believe certain bullshit about what they’re entitled to and what sexual assault is/looks like/feels like and who it is committed by, and spoiler alert, it’s committed by other people. Bad people. All those otherwise ordinary people who believe that - who think that the bad people, the monsters, are the real problem - are in fact the real problem, statistically speaking. And that’s why we talk about education; because there are still people who want to misguidedly point out how misguided it is to talk about sexual assault as a problem that exists between normal people, as oppposed to something like, say, genocide, which is committed by demons and monsters and what can you do.

[MandaJo]

@treis

http://www.uiowa.edu/~our/opmanual/iv/02.htm

(2) It solves a problem that, imho, doesn’t exist. I don’t believe that there are a bunch of guys out there accidentally raping their dates. They know what they are doing and a policy like this isn’t going to stop them.

Having worked with teenagers for years, I will tell you that I feel confident there are a ton of young men out there that think anything other than explicit “No!” is “Yes”, and a ton of young women who have been conditioned to think that an explicit “No!” is something only horrible mean psycho bitches say, and certainly not something they are allowed to say to their boyfriend.

I will also say that teenagers get absolutely no education on this. They get told “No means no”, but they NEVER get told “If she’s lying there with her eyes shut and tears running down her face, that means no too, even if she doesn’t say it”.

I don’t know if the solution is changing the laws, but it needs to be addressed. Because I have to tell you–it’s not the sexually aware, sexually interested girls that get pregnant. Over and over again, it seems to be these little timid mice and I don’t think it’s the result of anything like meaningful consent.

[bump]

There’s also (and I’ll likely get flamed for saying this), the token “no” from some girls to save face, while wanting to get it on like cracked out monkeys in heat. You know, the ones who will say no when you try to get to third, but after a while on 2nd and a second try for third, let you onto third and often to steal home (or they go down on you in your car on New Year’s Eve without you even asking).

How’s that work in this context? There was a “no”, but clearly it wasn’t a serious no, or you’d have got it the second time. There wasn’t explicit consent either, but clearly they were interested.

[treis]

@Marley23

Ah good, another thread where we overthink rape laws. Guys, if you’re with someone who is conscious and interested in having sex with you, it’s very unlikely you’ll be accused and convicted of rape. There’s nothing in that policy that says you need verbal consent and a signed notarized form at every stage. It says verbal consent or “clear, unambiguous actions.” The policy says that even if the person doesn’t verbally object (because he or she is unconscious or frightened into silence, for example) it’s still rape.

Ok, but consent has always been the standard. Having sex without it expressed verbally or through actions has always been rape. If this new paradigm changes nothing, why the big push for it?

@Manda JO

Having worked with teenagers for years, I will tell you that I feel confident there are a ton of young men out there that think anything other than explicit “No!” is “Yes”, and a ton of young women who have been conditioned to think that an explicit “No!” is something only horrible mean psycho bitches say, and certainly not something they are allowed to say to their boyfriend.

I don’t know what the girls were taught in sexual ed, but looking back on it, it’s pretty striking at how much sex ed reinforced how we view sex based on gender. I know our teacher was “Ok guys, sex, I know you all want it ha ha ha, but these are the things you need to know”. It’s tough for me to imagine a teacher telling 12-13 year old girls that.

[Marley23]

@treis

Ok, but consent has always been the standard. Having sex without it expressed verbally or through actions has always been rape. If this new paradigm changes nothing, why the big push for it?

Does it change anything? I’m not exactly up to date on the policies on sexual assault at the University of Iowa, but I don’t see it changing anything. It just clarifies what consent is.

[WhyNot]

@bump

There’s also (and I’ll likely get flamed for saying this), the token “no” from some girls to save face, while wanting to get it on like cracked out monkeys in heat. You know, the ones who will say no when you try to get to third, but after a while on 2nd and a second try for third, let you onto third and often to steal home (or they go down on you in your car on New Year’s Eve without you even asking).

How’s that work in this context? There was a “no”, but clearly it wasn’t a serious no, or you’d have got it the second time. There wasn’t explicit consent either, but clearly they were interested.

I know we did this to death on at least one occasion, but I can’t remember if it was you posting or someone else. The answer is super simple: Of course it was a serious no, at that moment. Staying at “2nd” for “a while” gave her the confidence and sexy good feelings to want to go to third and home. That’s a good thing. That’s an *awesome *thing. You got skillz! Maybe she changed her mind, or maybe she knew before you picked her up that night that she’d sleep with you, but she needed more foreplay to get her motor revving.

Stealing second at the time she says no is the bad thing. Stealing from first to home without the coach waving you around the bases is a bad thing.

Paying attention to the base coach and knowing when the signals have switched is a great thing! Wouldn’t it be awesome if those signals were clear instead of murky? Wouldn’t it be great if it was, “Oh! OH! YES!!! YES!!! RIDE ME, YOU STALLION!” instead of an uncertain quick jiggle of the head and a tear down the cheek?

Edit: Please don’t think I’m saying the token no doesn’t exist. It does, and it annoys the shit out of me. But a wise person treats a token no like a “no for now”, at the very least. If it was token and you stop, she’ll start. If it wasn’t token and you stop, you’re a cool dude and a better person. If it wasn’t token and you don’t stop, you’re an asshole. There’s two ways to win and one very awful way to lose.

[Jimmy_Chitwood]

No, it’s not true that having sex without consent being expressed has always been rape. That still isn’t a definition of rape by the common understanding. It has always worked the other way around: it’s rape only if *non-*consent has been expressed and you force sex anyway. If you just make a move and your partner is totally impassive to your advances and you have sex without any reaction whatsoever, that isn’t rape. The enthusiastic/affirmative consent approach says that silence isn’t effective consent; only affirmative consent is. That’s the change.

What you’re talking about, bump, is the exact opposite of affirmative consent. It’s like the platonic ideal of not affirmatively consenting. Exactly the situation that policies like the one in the OP are designed to clarify and ideally avoid. When she’s saying no out loud using her adult human voice, “clearly it wasn’t a serious no” is a bit of a, uh, problematic statement. Is “she” clearly not serious 100% of the time she says that?

[AK84]

Aat common law rape occurred if intercourse occurred knowing that consent was absent or suspecting that it was so no given.

[Sofis]

I don’t see that stuff like this changes much in terms of getting rape accusations to stick, as it just moves the word-against-word aspect a step sideways. The main effect of the ever expanding concept of rape I’d expect is an increased likelihood of rape victims being met with disbelief of the “Yes, but was it actual rape?” type.

[Marley23]

@Sofis

The main effect of the ever expanding concept of rape I’d expect is an increased likelihood of rape victims being met with disbelief of the “Yes, but was it actual rape?” type.

As this clarifies the circumstances of rape and doesn’t expand the concept, this is backward.

[Grumman]

@Jimmy_Chitwood

So all I’ll say is that this:

Unfortunately, rapist rape people because they are bad people, not because they lack an understanding of what they are doing.

is wrong and is pretty much exactly the sort of thing that leads to loaded phrases like “rape culture” that make people stick their fingers in their ears and scream bloody murder. There are rapists all over the place who have no idea they’re rapists. It’s a significant fraction of rapists. Most rapes don’t happen at knifepoint in parking garages with dirty overalls unbuttoned. There are people on this board who have admitted to the legal elements of sexual assault, but who have vehemently denied the suggestion that those elements added up to sexual assault. You might even be familiar with some of those threads.

So, you’re saying that this is a rape culture because we’re too hard on rapists? Because we don’t take a predator at their word when they say that they didn’t know that they were doing wrong by their victims? It’s not like this is unique behaviour among such people - it’s practically a cliche that a bully caught picking on another student will claim it was just a bit of fun.

[Der_Trihs]

It is the responsibility of the person who wants to engage in the sexual activity to insure that he or she has the consent of the other to engage in the activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. For that reason, relying solely on non-verbal communication can lead to misunderstanding. Moreover, the existence of a dating relationship between the persons involved or the fact of a past sexual relationship should never provide the basis for an assumption of consent.

That sounds like many, perhaps most relationships are filled with multiple cases of mutual “rape” by this standard.