We constantly hear talk about consent, usually in reference to YES means YES. As most of you reading this probably know YES means YES is terrible standard for consent. We are just in our criticism of it. But if we are to effect positive change in relation to rape & sexual assault we should discuss consent and the different standards of consent. Even if it is just to develop better sex ed classes and raise awareness of what adequate consent standards are and by proxy define when sexual assault has and has not occurred. This is too important not to have our voices heard on the matter, and simply saying that the feminists are wrong, and leaving it there, is a bad move.
In this set, of what will likely be three articles, I hope to go over different standards of consent, their application and real world use, as well as establish whether or not an individual has consented or not in a given situation. In part one of what will likely be a three part series I will give a brief overview of the three standards of consent and then break down the first of the three standards along with any problems it might have. This article series will be mostly be descriptive, with brief excursions taken to point out potential flaws within each standard.
The legal standard of consent & rape and No means No:
“Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. Attempts or assaults to commit rape are also included; however, statutory rape and incest are excluded”
Consent was far hard definition to track down especially in the context of sex and sexual assault. But the Criminal justice department at Cornell has the most detailed definition i have been able to find:
The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).
Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.
Now I can not emphasize enough how difficult it was to find a concrete definition of consent within decent amount of detail. If it takes me 20 minutes to find a workable definition of consent with access to google how can we expect people to have a functional understanding of it when it comes to real life scenarios where googling for 20 minutes is going to seem rather odd. A lot the links i found had very wishy washy definitions of consent and not something i could really run with to write this piece.
Most people who are reading this will know the criticism of rape as defined by the FBI. But as brief overview, the FBI definition excludes male and female victims of female perpetrators from law and data reporting. I do not really have any criticism of consent as defined Cornell but generally worry that getting a concrete definition is rather difficult to find even with google and I worry about determining consent when alcohol is involved. Please provide your feedback below.
Generally speaking this standard of consent should be pretty obvious when you have it or not, provided you are paying attention to you partner. Of course alcohol & drugs muddy the waters a bit. But for your average vanilla sexual encounter this standard is fine, and common sense
Negotiated Consent standard:
The negotiated standard of consent is very similar to informed consent. It is higher standard than what we just discussed above. I will speak more in detail about this standard in the next article; but I will give brief overview from my experience in the (BDSM and Poly) scene(s). I will provide a link to a wiki article for those that are curious, here.
Negotiated consent works like contract negotiation, you :
- Determine the duration of the ‘contract’ or in this case scene or relationship.
- You determine what type of play are acceptable.
- You establish safe words.
- Ascertain any medical information which could impact the scene.
- Ascertain what each party wants out of the scene.
I should note all this takes place prior to the scene taking place. In terms of kink, negotiating a scene mid-scene is generally considered bad form though sometimes needed. Also I should note that generally speaking the first negotiation is the longest and subsequent ones are usually shorter to the point where prior play partners may not even negotiate at all if they know each other well enough or only do so when incorporating something new into the scene. Also this standard views both the top and the bottom as responsible, the top (the giver, active partner) is responsible in regards to making sure the bottom is alright and the bottom (the receiver) is responsible to communicate whether by word or action (when speaking isn’t always possible for myriad of reasons) their state of consent. In fact the usual thing most bottoms are told when they first enter the scene is tops do not consent to violating your consent; or in other words speak up or show signs of your state of consent. Your top isn’t a mind reader.
In Poly this standard or at least the principles of this standard are used to discuss the boundaries and roles of a relationship. Unlike in Mono relationships there is zero tolerance for wishy washy communication in Poly so this standard or the principles of this standard are used to make sure everyone is on the same page and no miscommunication is to be had.
YES Means YES / Affirmative Consent:
Yes means yes is the bastardization of the above standard of consent by feminists. Negotiated consent is effectively a no means no standard. In other words it does not assume malintent from the get go. Yes means yes, on the other hand, does. Getting an affirmative for every plank unit of a sexual encounter is cumbersome and assumes people have zero ability to read other people and that the bottom has no ability to articulate desires. Basically Yes mean Yes says that every step along the sexual encounter each participant must ask whether a given action is alright. On top of that this is done during the act instead of before the act as with negotiated consent. This means the fluidity of the sexual act is broken up (which most people find unsexy). Also what defines consent in a given sexual context is fluid under Yes means Yes and can change at whim. This is effectively the moving of goal post of sexual consent. It also implies the bottom has no obligation to communicate that their level of consent has changed and it assumes that in the time it takes to get a shirt of and take off a bra somehow consent disappeared. It also takes responsibility off of one or both partners to know when something isn’t working for them, and puts it on the other partner to figure it out. Keep in mind the that Yes mean Yes isn’t being lobbied only for the kink community but for the larger vanilla community as well… in the case of which vanilla sex is simpler and safer and more straightforward than kinky sex.
What can we criticize about the legal standard of consent?
I want your opinion but I will leave mine here:
Personally my main issues is the difficulty in actually finding the definition in the first place. It is too important to than to have to spend 20 minutes searching the web for a concrete non- wishy washy definition. The other issues is lack of practical guidance when alcohol is involved, unless you are going to argue for the insane position that any amount of alcohol is rape the legal standard needs to come up with something more concrete. However, for general use for mundane sexual activities it’s fine standard, and I don’t see a reason to go above for vanilla sexual activity.
You can find me on reddit at /u/wazzup987 twitter @mr_switchy or on disqus as Tagby