When we were growing up, my sister accidentally signed up for a “record of the month” club.
It began with an innocent mistake. She saw an advertisement asking if she’d like a free copy of an album that she really wanted. So she sent in the little card and checked the box to say that, yes, she would like a free copy of that album!
But then the company kept sending more records … bad records … music that she didn’t want, and quite possibly that nobody wanted … and she had to return them or else get billed … but she had to pay shipping to return them … and, after agreeing to receive that first free album, it was excruciatingly difficult to take her name off their mailing list.
She did say “yes” … but the thing that my sister thought she was saying “yes” to, and the thing that the sleazy record company thought she was saying “yes” to, were very different.
In a recent New York Times editorial, Peggy Orenstein cited data from a study that asked college students what they’d “expect to happen next” if they went home with someone they’d just met and danced with at a party. In this scenario, someone is saying “yes” … in response to the question “Do you want to go back to my place.”
But many college students assume that the “yes” suggests impending consent to something other than a late-night stroll. Almost half the men surveyed thought that vaginal sex was likely in that scenario; only a third of women thought so. This disparity suggests that there are a whole lot of pairings out there where somebody thinks that a woman’s “yes” is consenting to a lot more physical intimacy than she desires.
Indeed, a third of the women surveyed had previously been pressured into unwanted sex because they’d wanted to do some fooling around – touching, groping, kissing – but a partner persistently tried to do more even after being told “no.”
Why keep going? Perhaps somebody thought that his partner was simply mercurial – having said “yes,” at first, then “no,” perhaps he figured that she’d soon say “yes” again. Without stopping to think that her original “yes” was consenting to less than he assumed.
And without stopping to think that, even if she had said “yes” to activities that they’d collaboratively, explicitly described, she’s still allowed to say “no” later. Refusing to respect her right to maintain bodily autonomy – even after previous consent – makes for assault.
One flaw in Kate Harding’s otherwise lovely Asking For It is her repeated assertion that “you cannot prearrange consent.“
This statement is obviously false, because all consent is prearranged. Asking precedes doing. Otherwise, there wasn’t consent when the doing began.
The phrasing from Franklin Veaux and Eve Rickert’s More than Two is preferable: that all people “should have the right, without shame, blame, or guilt, to revoke consent to any form of intimacy at any time.”
In Asking for It, Harding elaborates with the idea that:
A sleeping person cannot consent to sex. This should be the most obvious thing in the world, and yet it seems to be the place where a lot of folks get hung up.
In some cases, it’s because people don’t want to think of themselves or their lovers as rapists. Every time I’ve made this point online, commenters have rushed to tell me that they enjoy waking up their partners with penetration or vice versa, or even that they have a standing agreement that it’s okay to do so.
Personally, I would feel weird about fooling around with someone who was asleep. Active participation from all parties makes things more fun, and someone who was asleep would be passive to the extreme.
But “a standing agreement that it’s okay to do so” means that the parties involved did arrange consent. “Do you want to have sex with me right now?”, “Do you want to have sex with me in an hour?”, and “Do you want to have sex with me while you’re asleep?” are all valid questions. Strange, but valid. Someone might be interested in responding “yes” to any or all of those.
And of course, per Veaux and Rickert, that “yes” can be retracted. At any time, for any reason.
Although I enjoyed most of Harding’s book, this distinction is important. We are causing real harm when we equate strange but valid practices with assault – in doing so, we give people more opportunity to rationalize assault. If we incorrectly narrow the definition of consent, we empower others to incorrectly expand the definition.
From Orenstein’s editorial:
When Nicole Bedera, a doctoral candidate in sociology, interviewed male college students, most endorsed the current “yes means yes” standard, which requires active, conscious, continuous, and freely given agreement by all parties engaging in sexual activity. Yet when asked to describe their own most recent encounters, even men who claimed to practice affirmative consent often had not.
When they realized that their actions conflicted with that benchmark, though, they expanded their definition of consent rather than question their conduct. Their ideas of “yes” were so elastic that for some they encompassed behavior that met the legal criteria for assault.
In jail last week, we read Fatimah Asghar’s “When Tip Drill Comes on at the Frat Party,” alternately titled “When Refusing to Twerk Is a Radical Form of Self Love.” I’m a sucker for narrative poems that talk about consent, precisely because so many men end up in jail for violating consent.
And Asghar’s poem is excellent:
Sometimes it’s as simple as the boys, howling
under bright lights, who only see the dissected
parts of you –
nose, wrist, nape of neck, nipple –
that which can be held down, pinned back, cut open …
Asghar writes about the way young women at collegiate parties must learn to enforce the boundaries of their “yes.” Although a woman has said that “yes,” she wants to dance, or to drink, she did not consent to the “sweaty nails pushing / gritty into your stomach, the weight of claws ripping / at the button on your jeans.”
People in jail experience a dramatic loss of personal autonomy. Whenever the men walk to or from my class, they must stop, spread their legs, place their hands upon the wall, and wait for a guard to grope with gloved hands over every contour of their bodies.
Perhaps this sense of violation helped them to understand Asghar’s perspective:
Sometimes it’s as simple
as standing still amid all the moving & heat & card
& plastic & science & sway & say:
Today, this body