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Q&A: Consent – Beyond No Means No

December 10, 2013
G. Starr Vidal, Contributor for The CSPH

consentEach week, The CSPH answers questions asked on our site and through social media outlets like Twitter, Tumblr, and Facebook. This week, we’re talking about consent.

You made a recent post about consent but I think it is obvious where consent has been given without “yes,” especially in a loving relationship. Also, are you saying you can never have sex while drunk?

As much as we would like to think otherwise, consent and giving consent are trickier beasts than the typical “no means no” and “yes means yes” slogans.  While both ideas delve into basics of consent, they ignore what is often the lived experience of giving consent, where sexual violence can occur even in the absence of a stated “no” and “yes.”

Considering these complexities, it’s understandable why confusion on the subject exists; your questions are in fact incredibly common!  As such, I hope this article will help shed some light on how to navigate consent and ensure all parties are down to get down – or up, or however you (and your partner(s)!) like it.

What is consent?

At its most basic, “consent” is defined as giving permission for or agreeing to do something.  For example, when someone consents to a police search, they are permitting a search of their property or person.  Also like a police search, however, there may be factors that unduly influence the ability of someone to give consent: perhaps the officer lied about a search warrant, misled you into thinking you had no choice, or threatened your family.  While one can say that you technically allowed the police to search you or your property, in the eyes of the law, it’s likely whatever evidence found as a result of intimidation or lying would be thrown out, because the permission was not freely and knowingly given.

Sexual consent works similarly: sexual consent can only be given without coercion, intimidation, or force.  It does not occur because the individual is pestered into saying “yes,” or because if they say no, their partner will make a big production out of their disappointment in order to instill guilt.  At the end of the day, sexual consent is the willful decision to have sex when not having sex.

When is consent obvious?

Some common phrases among many sex-positive and feminist circles are “enthusiastic consent” or “affirmative consent.”  In conjunction with my explanation above regarding sexual consent, the idea is that enthusiastic consent is obvious by virtue of, well, enthusiasm.  It is “yes means yes!”  It’s moaning and groaning and showing one’s partner just what you want, what you really, really want.

The idea of enthusiastic consent came about as a way to attempt to eradicate what many people feel are the “gray areas” of sexual violence by centering the conversation on desire and consent.  This is commendable.  Unfortunately, while the concept is great at face value, it is not the be-all-end-all of consent.  There are a number of situations in which sex doesn’t happen enthusiastically that nonetheless involves the freely-given consent of all parties. Attempting to label these experiences as implicitly rape due to a lack of enthusiastic consent ignores the lived experience of consent and the truth and agency behind the decisions people make when they decide to have sex.

For example, a couple struggling with infertility may feel less joyous about having sex, yet will still have it for the sake of attempting pregnancy.  Someone may consent to sex because they know it will allow for greater emotional intimacy, despite not being in the mood.  Another person may say “yes” because while they want to have sex, they may be navigating personal trauma that makes such activity difficult and even potentially triggering.  Yet another person may be so nervous they cannot express their enthusiasm, even if it’s felt.  Finally, sex workers may consent to types of sex and sex generally without any interpersonal coercion or force, but rather simply as a means of their profession.

That said, enthusiastic consent does answer part of your question, which is, when is consent obvious?  Basically, consent is obvious when one’s sexual partners make it obvious.  This can happen with the sounds we make, the words we use (yes, please, more), our eye-contact, and/or our body language in general.  When we affirmatively consent, our partners then know we’re good and ready and wanting it!

However, just as I mentioned before, even if consent isn’t enthusiastic, that doesn’t mean consent isn’t given.  Some people, particularly those on the autistic spectrum, may have difficulty establishing and maintaining eye-contact.  Others may feel self-conscious about their desires and/or their bodies, so they don’t feel comfortable saying what they want and how they want it, much less bumping and grinding away with wanton abandon.  Men in particular are often socialized into being non-verbal during sex, so they may not be moaning and groaning anyway.

Unsure whether your partner is consenting?  Are they stiff and/or unresponsive?  Do you feel like they’re deliberately avoiding eye-contact, or they’re particularly quiet?  Check in with them.  Consent should not be taken for granted, and a verbal, “Hey, is this okay?” or “I can stop” goes a long way in preventing unintended trauma.

Can consent be given without a “yes”?

As you’ve mentioned, it is possible for consent to be given and known without an explicit “yes.”

Consent without a stated “yes” can happen through pre-discussed consent, in which communicating with our sexual partners allows them to know when they are allowed to have sex with us and still have it be consensual.  A prime example of this is sex while one partner is asleep.  Maybe one person loves being woken up with sex or doesn’t mind their partner going at it while they’re zonked out.  This is fine!  As long as all sexual partners have discussed this type of bedtime rendezvous and have given the green, consent is known even without a “yes” in the moment.

On the flip side, just as consent can be given without a literal “yes,” it’s possible to give consent while explicitly saying “no.”  Consensual non-consent, also known as “rape play,” is the term in BDSM communities where individuals pre-negotiate scenes in which one party forcefully has sex with the receptive partner who is often struggling to “prevent” the sex from occurring.  While the struggling party may be screaming “no,” in this pre-negotiated scene, they really mean “yes.”

Of course, these kinky waters can get murky, which is why safe words are vital.  Safe words are words other than “no” that are intended to bring a stop to or pause play, sexual or otherwise, and that are generally not spoken during sexy times.  Common safe words are “red” and “yellow,” which mean “stop” and “pause/hold on/go slower,” respectively.  It’s also possible to have safe gestures, which are useful if one party is mute, gagged, or otherwise unable to communicate verbally.  A safe gesture may be snapping one’s fingers or dropping a scarf—one-handed actions are best in case of bondange.

I recommend that all romantic partners have a safe word, whether or not they’re of the kinky variety.  That said, I should note that as useful as I find safe words, it’s also ultimately important for the individuals involved to truly trust each other and respect the existence of the safe word.  When someone calls “red,” that doesn’t mean, “oh, maybe if I pause a little, it’ll be okay for me to start again;” rather, when someone calls “red,” all play stops without question or hesitation, and the person who called the safe word should be checked on.  Only when they give a “green” should play then be resumed.

Can someone consent to drunk sex?

This question can be answered in two parts: the legal answer and the more complicated response, which is defined by many people’s experiences with alcohol and sex.

Many states have laws that dictate that a person cannot legally consent to sex while drunk.  Of course, many of these states do not give a strict definition of “drunk,” so while unlike driving, where “drunk” is often defined as having a blood alcohol level of around 0.08% or above, we often do not know where the line between “drinking” and “too drunk to consent” is drawn.  This, of course, is exempting drunk to the point of unconsciousness, which obviously doesn’t allow consent, unless it’s been explicitly pre-negotiated between all parties, as I mentioned above.

Of course, it’s certainly the case that many people, especially college-aged individuals, use alcohol as a social lubrication tool.  Drinking can help give people a sense of ease so that they are more comfortable approaching a prospective sexual partner as well as actually engaging in sexual activity.  After all, when we’re blissfully tipsy, it can be much easier to stop worrying about one’s body, sex-related shame, or all the other hang-ups that can make sex unenjoyable.

In many cases, drunk sex can be wholly consensual, but it’s a slippery slope complete with black-outs, which is why many people find themselves advocating that all drunk sex is rape.  After all, it’s not always possible to know whether someone is too drunk or blacked out, in which case what seems and feels like a wholly consensual romp may in fact be sexual violence that can leave lasting trauma the morning after.  This becomes even more difficult to navigate with casual partners or one-night-stands, because there is little to no context for the sex and interactions.  With less known history of the person’s body and cues as well as less potential for debriefing and discussion after the hook-up, there is more room for misunderstanding and therefore mistakes that may result in real repercussions.

Furthermore, as individually helpful as drunk sex can be in helping us get more into the moment, it’s not something I personally endorse.  For one, there’s a difference between one drink and five, and since binge drinking is incredibly common among college-aged folk, it can be all too easy to have one too many.  In the case of sex, that one too many can lead to people not being able to read social cues, leading them to ignore all of the non-verbal ways people express non-consent.  Over-drinking can also leave people more vulnerable to bodily harm as they are more likely to fall and/or continue to drink, which can result in a hospital visit.

Instead of seeking to numb our sexual anxiety with booze, I wholeheartedly recommend that people tackle their worries head-on.  Everyone starts somewhere, and it’s understandable that so many people feel worry about their bodies and abilities.  By seeking to understand the roots of our concerns, we can then navigate them, either alone, with a book, or alongside a group of friends, a local sex positive organization, or a sex therapist/sex educator.

At the end of the day, despite the nuances of consent, in practice it may be even easier done than said.  By incorporating safe words, paying attention to body language, checking in with our sexual partners, and limiting our drunken sexual encounters, we can help mitigate our concerns and the potentiality for assault.  So, the next time you find yourself frisky, remember that consent is never truly a given, and that part of being sexually healthy is ensuring our partners are just as good and game as we are.

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