Permission to kiss: consent is simple

by D H Kelly // 18 June 2014, 11:42

Tags: affirmative consent, BBC, enthusiastic consent, kissing, rape, sex

kissing gourami.pngThe belief that social progress makes life more complicated seems as persistent as it is untrue. On Monday, the BBC News website featured a somewhat disingenuous article by Jo Fidgen entitled, Should you ask someone's permission to kiss them? The article begins with something of a straw man:

At the trial of Conservative MP Nigel Evans earlier this year, the court was told that he had tried to kiss someone, been rebuffed, and had backed off. This was regarded by the Crown Prosecution Service as potentially criminal. Evans was acquitted.
But the case prompted the question of where we draw the line between a clumsy pass and a sexual offence.

In fact, the young man subject to this unwelcome advance made no complaint and stated that no offence had been committed. The matter would never have been mentioned in court, if there hadn't been a far more serious case to answer - Evans was accused of rape, as well as other sexual offences. There are plenty of questions raised by the Nigel Evans case, but this isn't an example of an ill-judged kiss leading someone to the dock.

Fidgen looks to California and a student safety bill that would enshrine the principles of Affirmative Consent on college campuses. Universities in the US have a huge problem with rape, affecting up to one in four undergraduate women. Fidgen explains

The bill says there must be "an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity". It goes on to say: "Lack of protest or resistance does not mean consent, nor does silence mean consent."

It's generated intense debate on news sites and blogs. Some have speculated that written permission might be needed before sex.

The Californian bill doesn't represent radical new law, but a clarification of the law as it is. It has long been considered rape to have sex with someone who is unconscious, so incapacitated they can't give any response or frozen in terror. The statement that neither lack of protest nor silence means consent, merely makes it clear that a rapist can't argue, "She didn't object, so I thought she was into it."

Affirmative Consent is the legal partner of Enthusiastic Consent - it is, of course, impossible to criminalise indifferent sex. Neither are designed to protect anyone from prosecution, but to promote a culture free from sexual assault. Not because everyone has legal consequences at the back of their minds, but because ongoing communication (verbal or otherwise) becomes a necessary condition of having sex. This makes life a lot simpler.

Communication is certainly a necessary condition of good sex. Does anyone mourn the lack of ambiguity in a lover's responses? ("There's no mystery! I want to wonder whether he secretly hates it!") Does anyone wish their partner were less conscious? Good sex requires mutual enthusiasm and is impossible if one person is only participating out of a sense of obligation or is too stoned to truly engage. Good sex does not suddenly change in nature on the whim of one party, when there's any chance the other party may find the new direction unpleasant or painful. Good sex does not carry on after one party has lost interest. As with sex, so with kissing, cuddling and canoodling of all variety.

Just now, we live in a culture where sex is often talked about as a conquest or, as with the city workers who talk to Fidgen about the threat of "a contract" and "red tape" around kisses, a property transaction. It is often framed as something that one person does to or gives to another, as opposed to something two or more people do together. For many people, getting laid is an essential part of a good night out, getting laid on a regular basis is part of being a worthy human being and we're often prepared to compromise ourselves to make that happen.

This is a culture easily exploited by rapists; people who see no difference between scoring with someone whose good taste is impaired by alcohol and scoring with someone too drunk to know what's happening; people who see no difference between trying to cajole someone to sleep with them and simply not taking no for an answer. Fans of Julian Assange are able to argue that what he stands accused of - though unambiguous in either Swedish or UK law - is merely "bad sexual etiquette".

Yet the vast majority of people manage to get through life, love and sex causing no more damage than the occasional bruised ego. This is partly because we usually do, in fact, ask permission to kiss people. We lean in slowly. We maintain eye contact. We stroke the side of their face. We part our lips. We pucker up. We may or may not say something like, "Can I kiss you?"

And sometimes, the other person smiles politely and shakes their head.

This is the nature of our neo-puritanical age. It's so damn complicated!

Fidgen concludes,

They say manners maketh man. Maybe they could also help keep people out of court.

Discussions of sexual consent are not about keeping anyone out of court. They are about treating others with respect and ultimately, about ending sexual assault.

[Image shows a pair of kissing gourami - two pale peachy-coloured fish in a tank hover, joined at the lips. The photograph is by Justin K, shared on Flickr under a Creative Common's License.]

Comments From You

SomeSam // Posted 19 June 2014 at 20:54

First of all, thanks for including non-verbal communication into the "ask for a kiss" list. That is an important admission not often said by people who are actively trying to force people to better communicate.

Secondly, if this is really mostly about helping people to communicate better, why are all the arguments framed not as "have better sex by talking about it" but as ways to reduce sexual assault and stay out of jail? Because it *is* about reducing sexual assault and staying out of jail, and "affirmative consent" in whichever language it will be implemented is going to be a large scale social experiment attempting to force people to explicitly communicate about things they don't really like to talk about.

Sure, never have sex with someone you don't trust, but by-and-large, people find out afterwards if there was someone they couldn't trust. So, while an accused currently has the defence of not being aware of the other person's lack of consent, that will no longer be the case once a principle of affirmative consent has been introduced. But as good as that sounds on paper, it will be a nightmare to establish *actual* guidelines to go with that - what actually *is* consent? If it has to be affirmative, how do you prove that it was given at all? At what point? For how long? For what practice? And if a college develops guidelines, will these guidelines not in themselves violate the letter or the spirit of the law?

Amanda Marcotte thinks that this is a great idea to protect guys from false accusations based on "bad morning after" and women from actual sexual predators, because it will be impossible for women to argue that their drunken consent was not enthusiastic. But how much alcohol was involved? Who knows when complaints are made the next day? Who decides what amount is necessary for that difference you make in the article:

"people who see no difference between scoring with someone whose good taste is impaired by alcohol and scoring with someone too drunk to know what's happening; people who see no difference between trying to cajole someone to sleep with them and simply not taking no for an answer."

Of course there is a difference. Thing is - with a standard of affirmative consent, that difference will have to be defined in a legally workable way that is understandable and practically usable by hundreds of thousands of people in the UC system. People will need a way to protect themselves against wrong claims, and that includes women - because women aren't used to being careful around men and respecting male bodily integrity, they are probably even more at risk of ignoring the requirements of affirmative consent than are male students.

I wonder what will happen when the first female student gets sentenced by university court after a guy complains about her not sufficiently clearly asking if he was interested before drunkenly putting her hands under his t-shirt. And that *will* happen.

Again - if this is done and it's not anti-constitutional, which it may very well be, it needs clear-cut, legally and practically workable regulations. And that is going to be *very hard*. Antioch college's guidelines weren't workable, and they were routinely ignored by people (especially those in relationships) at their own risk. It was particularly women who were vulnerable there, because there were hardly any guys at the college and the apparently few heterosexual ones were in high demand. These guys did complain about a double standard (in that women could basically do what they wanted with them without regard for the SOPP) but they didn't mind, apparently, because they were the beneficiaries of that double standard, but this will very likely be entirely different in a much larger, and much more mainstream college system like the UC system.

It will be decidedly interesting to follow this experiment, but it's a very problematic one.

See this for a legal discussion by someone who *wants* that statute.
http://yesmeansyesblog.wordpress.com/2012/06/12/radicalizing-consent-towards-implementing-an-affirmative-consent-model-in-new-yorks-rape-law/

D H Kelly // Posted 20 June 2014 at 15:10

Thanks Sam,

I hope that here, I have framed these arguments as a way of avoiding sexual assault. The point about good sex isn't so much that affirmative consent will improve everyone's sex life, more that we're talking about simple and common behaviour that - I hope - most sexual people do most of the time. Although it's not something everyone feels at ease talking about in words (and that might be something worth addressing), we do find ways of communicating.

What's against us are combative cultural models of sex (particularly heterosexual sex) where two parties have different goals and someone has to win. Right now, the question raised in a sexual assault case is too often, "Did one party break the unwritten rules of engagement?" rather than "Were both parties on board with this?"

There is absolutely no hope of completely avoiding "he said/ she said" arguments in court over rape. There will always be some subjectivity to wrestle with, as there are in very many offences, especially violent crimes (Did she mean to push him? Was the force she exerted likely to send him over the cliff? etc.). Simple isn't necessary easy.

However, I do think our priority should be to reduce the risk of sexual assault taking place and the likelihood of these crimes going unpunished. The potential for spurious accusations increases any time a law is written or tightened up, but that's no reason not to use the law to address serious, life-changing but all too common offences.

SomeSam // Posted 21 June 2014 at 17:04

Hey D.H. Kelly,

"Although it's not something everyone feels at ease talking about in words (and that might be something worth addressing), we do find ways of communicating."

It is definitely worth addressing. Yet no one ever does address this. And I'd say the burden to address that question should be on those who are attempting to formalize human behavior. Formalizing may be a good thing, but it's definitely at odds with most people's way of doing things, and changing laws merely tells them what *not to do* without giving them anything to work with for the "doing" part.

"However, I do think our priority should be to reduce the risk of sexual assault taking place and the likelihood of these crimes going unpunished."

I think most people will agree on that goal, the question is merely whether an intended legal change will be able to address the problem, doesn't infringe on other rights (the consitutionality of that measure will certainly be questionable) and is legally and practically workable.

Again, I'm not saying it's a horrible idea. I'm saying people who are proponents of this have had a long time to think about the practical implications and they haven't really come up with *anything* other than saying "it's gonna be fine". If the historical precedent is *any* indicatio, it's not going to be fine, it's going to end in a constitutional challenge and it's going to end all efforts for legally mandated clearer communication about consent for the forseeable future.

I'd really like to see a point-by-point reply from the proponents of the law laying down "this is how you do it". And I don't see that. Some feminists should really get to writing an affirmative consent seduction guide in legally workable language. Otherwise this thing will go down quickly.

SomeSam // Posted 24 June 2014 at 20:49

This is what I mean: the CA assemblywoman coauthoring the bill is quoted as saying:

"When asked how an innocent person is to prove he or she indeed received consent, Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”"

They'll write a law and no one's gonna know what's ok and what's not. This is the absolutely worst way of doing this. As I said initiatlly, it will be very interesting to follow this social experiment both in people's reactions and on its way through the appelate system. I very much doubt it will be positively received by most - including well meaning - people this way.

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