A brief point on consent


Let’s talk a bit about ambiguous consent, and the double standard we have in our society toward sex, verses other social contracts. In no other area are we so comfortable in saying that ambiguous consent is “good enough” for sex, or whatever else may be implied. It’s basically like this: a person is going to a party, they begin talking to the host about how much they like host’s TV and ask if they can have it, but the host, for whatever reason, doesn’t make it clear if they can have the TV, only giving an ambiguous answer. Since there was no clear communication of “no, you can’t have my TV” then it must be safe to assume the host was saying yes.

“Hell, no,” you’re probably saying, and good! That person who went to the party stole that TV from the host, yet why then do we say ambiguous consent is okay when it comes to sex? People will jump in and say “well, some people play hard-to-get,” or “non-verbal communication isn’t clear communication, so it’s ambiguous.” I have some hard stances in this area, particularly since in every other area dealing with contracts the law and cultural understanding is clear*. If someone is playing hard-to-get, and there isn’t some sort of clear communication that they are doing it, then you should assume that they are saying “no.” They are not giving clear consent, so any respectable person should not have sex with them until they give that clear consent. And, if your non-verbal communication isn’t clear, you’re doing it wrong. If you’re hot and bothered, and so is you partner, and there is a lot of reciprocal grabbing of body parts, particularly genitals, you’re almost certainly safe to go forward. But, if one partner is not reciprocating, particularly if they are laying still, not moving, or if they look like they are uncomfortable or scared, that’s when you stop and ask for consent directly.

Or better yet you just ask for consent right at the beginning, and then keep asking as you’re going along and trying out new things. Plus, this can be really hot, so honestly there is no downside, unless you actually do want to rape people. But, if you’re going about fulfilling that particular desire, you should be going to jail for what should be obvious reasons.

*Take business as another example, you can’t take over a business just because someone said it might be a good idea. That sort of thing need clear and written consent of both parties. I’m not saying you need written consent to have sex like with legal contracts, but you need clear affirmative consent like you would with other social contracts.

Withteeth

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10 responses to “A brief point on consent

  • siriusbizinus

    I just wanted to reply here after revisiting this issue of consent earlier today and reading your replies to Godless Cranium’s post on feminism. From a social perspective, your examples are straightforward. From a legal perspective, the examples here could still get muddied at trial.

    The whole way consent is argued (at least in common law jurisdictions like the U.S., Canada, and the UK) presents obstructions to clarity. To use your examples, how they get played out at trial is that the prosecution will list every fact that shows consent isn’t given, and the defense will do the same for the opposite conclusion. This would turn any black-and-white situation into a gray one. And this works for any time consent is at issue (yes, even in contracts cases, because every minute fact gets argued).

    What I’m getting at here is that I wholeheartedly agree that the issue of consent in sexual assault cases is a problem, though I’m coming at it from a different perspective. There needs to be changes on how it is argued, and most notably those changes need to respect the rights of defendants as well. Such changes are most certainly a big deal, and they cannot be made lightly. But like all great things, they need to be made.

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  • Consent Issues | Amusing Nonsense

    […] others’ clothes off). Some are intuitively obvious (like the first example Withteeth uses here). However, there are other consent issues like withdrawal of consent and implied consent that make […]

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  • HJ Hornbeck

    NOOOO, I was going to steal that TV analogy!

    But more seriously, great post. If anyone’s interested in how Canadian law handles consent, I direct you to Section 273.1 of the Criminal Code:

    Meaning of “consent”

    273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

    Where no consent obtained

    (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

    (a) the agreement is expressed by the words or conduct of a person other than the complainant;
    (b) the complainant is incapable of consenting to the activity;
    (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
    (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
    (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

    Subsection (2) not limiting

    (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [1992, c. 38, s. 1.]

    Where belief in consent not a defence

    273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

    (a) the accused’s belief arose from the accused’s

    (i) self-induced intoxication, or
    (ii) recklessness or wilful blindness; or

    (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [1992, c. 38, s. 1.]

    It’s not perfect, but I’ve seen worse.

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  • The Manic Rose

    Sweet analogy! Sometimes it’s hard to put words together that explain the problems with society’s views today – I love something that makes it really easy to understand. I don’t know how many men have just touched me without any type of signal to me to do so, and yet if you… let’s say… went and just took someone’s iPhone out of their hands without asking first (because they didn’t say you couldn’t!) world war 3 would probably be started. Our bodies deserve way more respect than some stupid object. Thanks for the follow – I’ll be returning the favor. I blog very rarely but I’m here on and off.

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  • Rockin Dad

    Jim Maher (previous comment) took the words right out of my mouth! Great post, definitely worth sharing with the greater male community.

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  • lorac888890

    Thank you for following my blog. Even though I’m not an atheist, I welcome other views.

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  • the constant opinion

    To the chagrin of my sex, I have long held the belief that if a woman’s consent can be redefined in the name of drunkenness why wouldn’t the man’s interpretation be treated equally? It’s a fine line to walk however considering we live in an online porn society that pushes misogynistic sex on adolescents who have no idea where to draw a line or what it even is.

    I like what you wrote here.

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  • Jim Maher

    I loved your ‘I’m going to take your TV, okay?’ analogy. ‘Hard-to-get’ is just something assaulters say to justify their actions in their own heads. Well written, and such an important issue.

    Liked by 1 person

  • saraharnetty

    This is kind of the best posts I’ve read of yours. Well done. Brilliantly put. 🙂

    Liked by 1 person

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