Clear, Sober, Affirmative, Responsible …

I’m going to talk a bit about what is now being called “affirmative consent”, and particularly looking at a post by Amanda Marcotte soberly titled “Anti-feminists are outraged that feminists argue you should only kiss people who are kissing you back”. Which probably isn’t accurate, but that level of hyperbolic snark is probably Marcotte’s signature, so it’s what we should expect. Anyway, the post is about some people who are criticizing the standard of affirmative consent, and Marcotte’s opinion that they are a) anti-feminist and b) very, very wrong. I think she badly misinterprets their views, and that there are indeed problems with the “affirmative consent” policy, but before I do into that, let me talk about part of another post of hers where she finds a concrete example of why affirmative consent is so important. In that post, she highlights a story of a rape case where the rapist essentially stated when asked what the victim actually said during the sexual encounter that he didn’t actually pay attention. Marcotte states this:

Basically, people who support the affirmative consent standard don’t want “I couldn’t be bothered to pay attention to what she was saying long enough to tell if it was no or yes” to be a legitimate defense.

The problem? Most of the people who don’t support the affirmative consent standard don’t want that to be a legitimate defense either. The affirmative consent standard does not merely suggest that if someone gives an explicit indication that they do not consent that that must be respected, but instead says that an explicit indication that they do consent is required. It is quite possible for people to reject that being required and still insist that an explicit indication of a lack of consent must be respected, and most do … as you’d see in the post that I’m going to focus on, which she herself linked from this post. This is a clear misrepresentation of the opponents of her position.

But the affirmative consent standard actually goes even further, as seen in her quote of what at least one person is objecting to. I’ll bold the part that seems problematic to me:

“Affirmative consent” is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. It is the responsibility of the person initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

This is going a bit beyond just detailing what people should say. This is putting the responsibility for determining consent completely on the person who is initiating the sexual activity, while placing no responsibility on the other participant to communicate, well, anything. And since in Western culture the man is generally the one who initiates, and is usually assumed to have initiated it even if they didn’t, what this essentially means is that most of the time it is the man who is entirely responsible for ensuring that the encounter is consensual, and the woman has absolutely no responsibility in that area at all.

At this point, it should be fairly obvious why measures like this are often accused of absolving women for responsibility for their own actions.

Ideally, everyone has to be responsible for what they themselves do an participate in. Ideally, in sexual relations both parties ought to be held equally responsible for ensuring that any communication that needs to happen happens to make it an enjoyable experience for both of them. Putting the responsibility only on one party is bad, and especially effectively putting it only on men is even worse … especially for feminists, who on the one hand want women to be taking as being equally capable of taking on roles of authority and responsibility as men and then here seem to want to insist that the man has to be the responsible one. This is why I have very little sympathy for the hypothetical woman who without explicit threat fears that the man will use force and so consents when she doesn’t want to, and with that being considered rape. If there isn’t behaviour that could be seen as actually threatening — ie there is an intent to threaten them in order to get them to consent to sex — then she has to take the responsibility for deciding to consent. And I feel the same way about coercion — such as wheedling — or even comments about “If you loved you would” or “I might have to break up with you if you don’t”; ultimately, no matter how hard it may be for you, if you decide to give in to such coercion you consented and it’s not rape. It might be sleazy, slimy and creepy, but it isn’t rape.

But Marcotte goes on to talk about explicit consent, and an objection by someone that affirmative consent requires a vocal “Yes”:

Here’s the thing: There’s no reason to believe that consent cannot be given with body language or with verbal language that is more context-driven than legalistic. If the DOJ meant “verbal”, they would have said “verbal”. “Explicit” means what it means, which is that it’s clear and unambiguous.

The problem is that all non-verbal communication is or at least can be ambiguous. Not because the communication that a particular person is doing is ambiguous, but because different people communicate non-verbally in different ways. This is one of the issues with the idea of “enthusiastic consent” … how do you define enthusiastic and how enthusiastic do they have to be, anyway? Some people aren’t comfortable with expressing passion and so will be very passive sexually. Others will be exceptionally expressive. Some will be expressive even when they actually aren’t enthusiastic about it, consciously or not. Some will be hesitant sexually due to things like inexperience or a bad experience or being self-conscious about sex or it being the first time with a new partner. All of these things can have someone acting like they might not consent even if they really would, and so the only way to know for sure is to explicitly ask … and surely advocates for affirmative consent want people to be really sure, right?

Marcotte does talk about how the idea that non-verbal communication can be unclear can cut both ways:

Here’s the thing: Anti-feminists don’t get to have it both ways. The same people who are claiming, falsely, that these rules require a very narrow and specific set of words before sex can happen are the same people who turn around and claim that a woman refusal of consent does not count if she doesn’t use a very narrow and specific set of words.

Look, either you believe that men can understand subtle language and body language or you don’t. If you believe that men cannot understand “no” if a woman expresses “no” by saying, “Can I go home now?” or by stiffening up and refusing to interact physically, then you must also believe that men cannot understand “yes” simply because a woman is leaning in and kissing back. Either men can read body language or they can’t. If women are required to say “no” using exacting, specific words written out in triplicate, then by god, shouldn’t men be held to the exact same standard?

This is a good indication of the problem with snark in general and Marcotte’s snark in particular: it’s hard to know when she’s snarking or when she really, really thinks that something is the case. Here, does she really think that her opponents here are looking for a very specific set of words and wouldn’t understand thinks like saying “I’d like to go home now” while the man is making his move? Because it’s clear that they don’t. The opponents of affirmative consent, it seems to me, still want to hold someone responsible in cases where either they knew or ought reasonably have known that their partner wasn’t consenting. That does cover a lot of ground, and even does include some cases where the non-verbal communication is such that it’s clearly the case that they don’t consent. Like, say, crying, hitting them, and pushing them off. So that’s not the issue.

Turning to the comparison, the problem here is that people aren’t saying that men can indeed understand a “Yes” from non-verbal communication alone … at least not to the point where they can say that they are certain that the person wanted to have sex with them. What they get is a pretty good indication that the other person is interested in sex, at which point they initial sexual contact under the assumption that if it isn’t welcome the other person will explicitly stop them in some way. The actions taken on the basis of that action are exploratory, not definitive. Sure, sometimes they’ll persist to try to “convince” their partner that they really do want sex, and that might be a bit creepy and sleazy (and also might be what someone women want or need), but in general the presumption here is that they use the non-verbal signals to decide to make the offer (also non-verbally) and see if they get rejected or not.

Whether this model is good or not, this model requires that both sides be fairly clear about their intentions, but doesn’t insist that either party have to state it. The responsibility for ensuring that they are on the same page is on both of them, and ultimately no one ever need state anything verbally unless there is miscommunication, and that is most important when one partner thinks that both want sex and the other one doesn’t actually want sex, which means that using Marcotte’s own framing women are indeed going to be the ones that more often flat-out state that they aren’t consenting to sex. But I can’t see that as a bad thing if they are to be held responsible for the things they do and don’t do, the things they say and don’t say.

So, why shouldn’t we treat sexual contact as an activity that both partners share an equal responsibility to ensure that both are comfortable and consent? Why put all the onus on the initiator? Sure, we can argue that in terms of being a good person you should definitely try to ensure that the person you’re kissing is kissing you back, but when you put it into policy or law you make it so that people who make a mistake or forget or get caught up in the moment are called criminals and punished even if the other person could easily have stopped it and chose not to. We may need more conversations about how this should all work in our modern society, but you don’t start conversations of this sort of thing from making it a law or a policy that you’ll start punishing people over if they don’t met those standards.


One Response to “Clear, Sober, Affirmative, Responsible …”

  1. Crude Says:

    There’s no reason to believe that consent cannot be given with body language or with verbal language that is more context-driven than legalistic.

    “Look what she’s wearing!”

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