Consent, Sexual Assault, and How We Buy Cars

At Abyss 2 Hope, Marcella has come down pretty hard on my recent post on seduction and consent. I think she distorts it pretty dramatically. Disagreement is fine; misrepresentation, not so much.

Marcella basically accuses me of promoting a rape culture. Here's the paragraph of mine that she seems to find most objectionable:

I'm not arguing that force or violence is present in every rape. Not at all. I'm just saying that to call an act rape, there has to be a clear absence of consent, whether because one person has said or signaled no, or because they're incapable of consenting due to drunkenness or unconsciousness.

Here's the core of Marcella's response:

This is a very dangerous position which I see most often from those claiming most of those who disclose having been raped are liars. This view sets up people (mostly boys and men) to commit rape which if it is rightfully reported will be claimed to have been a false report.

For sex to be consensual and legal there needs to be a clear presence of freely and legally given consent. This is a far different standard than Kittywampus has defined for "real" rape.

If you go to a car dealership and test drive a car, say wonderful things about that car, you have not consented to buy that car simply because you didn't say, "No, I'm not buying this car." It would be absurd to demand that all car shoppers' absence of consent must be clear.

Nobody who goes to a car dealership needs to be empowered to always say no in order to avoid unwanted car ownership or car ownership which comes at too high of a price.

I'm positive that Marcella and I agree that in a good society, not just consent but enthusiastic consent ought to be the precondition to any sexual contact. I'm pretty sure, too, that she'd agree with my statements in that post condemning coercion as unethical and arguing that far too much sex falls short of the gold standard of enthusiastic consent. Here's what I wrote:

I think it's absolutely true that there's a continuum of coercion when it comes to sex. In fact, a dismaying amount of sex takes place between the polar extremes of rape and enthusiastic consent.

I'm flummoxed at Marcella's decision to ignore that statement. I respect the work she's done, and my impression of her is that she's both bright and fair-minded. I'm not sure why she picked a couple of statements out of context and then proceeded as though I don't insist on the importance of consent (and not reluctant consent!), and as though I don't condemn sexual coercion as ethically wrong.

The tone of her post implies I'm a cheerleader for date rape and rape culture. I don't think either this particular post, or the rest of my work, supports that implication. (A while back, she linked to a post of mine in which I condemned the sexual harassment and assault that occurred in Ohio's ex-AG Marc Dann's office.) In my recent post, I also didn't distort the law on rape in my state, Ohio, which specifies that a woman need not physically resist, but clearly expects that she make her lack of consent known (unless she's impaired in any of the ways that make consent impossible). I don't think it's fair to attack me or my argument because my state's law does not call for affirmative expressions of consent.

Perhaps this all has something to do with Marcella thinking I attacked Maggie Hays personally (as she mentions in comments on her post). I was pretty outraged by Ms. Hays' initial statement that politeness = seduction = coercion = rape, enough so that I wrote a more polemical post than is my norm. It wasn't meant as a personal attack on Ms. Hays, and I apologize if she felt it was. I do stand by my position that when we erase important distinctions and paint all men as the enemy, we do feminism a grave disservice. I also didn't misrepresent her argument, though Ms. Hays herself has gone back and edited that original post to remove the equation that leads from politeness to rape. I commend her for rethinking it, though given the amount of argument her formulation inspired, it would've been better to revise the post without erasing that key passage. Otherwise, it looks as though Natalia and I were misrepresenting her argument.

Let me return to the paragraph Marcella found objectionable - the one where I say a woman has a responsibility to convey a clear no (verbally or otherwise) if she's on the receiving end of unwanted sexual overtures. Obviously, any situation where two people are strangers and one person touches the other sexually constitutes sexual assault. The same goes for any sexual contact between two people that's not preceded by a date or flirtation. Sexual touching out of the blue is also a form of sexual assault, even if two people know each other. And in any situation where a person's ability to consent is impaired, any sexual contact is a form of assault.

The paragraph in question, however, follows one in which I briefly sketched out dating scenarios of the sort where coercion might be in play. That's the particular case I'll deal with below - the situation where date rape can occur.

In an ideal world, when two people go on a date or begin flirting, both partners would continually check in with each other. Maybe you remember the Antioch Sexual Assault Policy, which attempted to ensure that partners did just that, explicitly, repeatedly, and verbally. It got roundly mocked at the time for being infeasible (and I still think it's unworkable, for reasons I'll explain in a moment), but its intent was good. Its most controversial provision was that the initiating partner had to verbally ask for consent at every escalation of intimacy, and the partner had to verbally provide it. It further specified:

Body movements and non-verbal responses such as moans are not consent.

Now, in world where people weren't so repressed about sex, we might be more capable of verbalizing our desires and responses. We might be better able to say, "mmm, I'd really like to ..." and our partner could respond with an equally happy yes. Even then - in a utopia absent repression - not everyone could state their desires out loud without breaking their mood. Some people just go nonverbal once they get really turned on.

Also, very few of us - women and men alike - would want sex to entail the kinds of bureaucratic checklist that the Antioch policy would mandate.

What most of us do, instead, is to use precisely those body movements and moans to check in continually with our partners. Here, too, people vary greatly; some individuals have much more sensitive communicative barometers than others. That's true for women as well, but a clueless woman is obviously less problematic, given the relative infrequency of woman-on-man rape.

How is this different from buying a car? Well, most people aren't afraid that a car salesman (or the car?!) will reject them. Our egos aren't invested in car buying. We don't buy cars in a cultural climate that makes meaningful discussion of them taboo; car ads don't distort our view on driving anywhere near as much as advertising in general warps our ideas about sex! Vulnerability and emotions aren't much in play when we buy a car (except perhaps for the sort of folks who buy Porsches?). Thus, the communicative situation is much more clear-cut.

Consider a first kiss. It's not a business transaction. It's a fragile moment where the initiator makes himself (or herself!) vulnerable. Now, if non-verbal communication is working reasonably well, a potential initiator will refrain from doing anything if the other person doesn't appear interested. He or she will stop, or ask if everything is okay, if they don't get an enthusiastic response.

Some people, however, are knuckleheads. The clods who don't get that there's a problem when you stop responding enthusiastically? They are going to need to hear a clear verbal no or an unambiguous non-verbal signal (such as a push). If they don't stop at that point, they've committed sexual assault.

But I'm not willing to criminalize failure to read relatively subtle signals (those moans and movements, again) in a situation where it's reasonable to assume sexual interest and where hormones are in flux. For instance, even a sensitive person might interpret a partner's sudden lack of moans not as withdrawal of consent but as a signal to try a different sort of touch.

To repeat: Outside a dating/flirting scenario, no sexual touching should take place. Period. Within it, possibilities for honest miscommunication abound. Both parties have a responsibility to make it clear if they don't want sexual contact to begin or escalate.

Going back to that first kiss: Say a guy kisses me while on a date. If I pull away immediately, that's a clear no. He hasn't gotten my verbal permission first (who does?) and he just misread the signals. That might make him an oaf, but calling it an assault strains credulity.

Taking this a step further, lets say I respond to his kiss, and things escalate. I respond enthusiastically until we're about to have intercourse. At that moment I decide I don't want to go quite that far. I pull away, which constitutes a clear signal that he'd better put on the brakes. (Remember, my definition didn't require a verbal no, but rather, when "one person has said or signaled no.") That's the point where - if he continues anyway - he becomes a rapist.

I'm trying to see where that differs substantially from Minnesota's legal definition of rape, which Marcella quotes in the comments on her post:

"Consent" means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.

I am in no way contradicting that. I'm not requiring a woman to physically resist. As I mentioned before, in my state, Ohio, the law is more restrictive and does not require affirmative consent, as Minnesota does, so it's disingenous of Marcella to say that my original definition was at odds with the law.

I'm only saying that in situations such as the one I just described - where the initiator can reasonably think the other person might be attracted, where the intensity is escalating, and where there's room for misunderstanding - both parties have a responsibility to clarify their boundaries. The law requires that, as does good sense. And I stand by my point that it's not infantilizing to expect women to communicate their boundaries to partners and potential partners.

If you accept a date with someone, that doesn't entitle them to kiss you, but it does give them reason to think you might be interested. If they try it and you don't want it, they've initially committed a blunder, not a criminal transgression. If they persist after you make your lack of interest clear - verbally or nonverbally - then that's sexual imposition, a form of sexual assault. The law in Ohio is very clear on the definition of sexual imposition: unless the perpetrator is a mental health practitioner or the recipient of the touch is a minor, the potential perp has to be aware that the touch was unwanted, or that its recipient could not meaningfully consent (see the text of the law for details).

In other words, the law does not expect the initiator of the conduct to be a mind reader.

Unless we want to criminalize all clumsiness within a sexual encounter, the same has to hold true as sexual contact escalates. As soon as one party says no, it has to be respected, and lack of respect for that no has to be subject to criminal penalty. But unless we want to write the Antioch code into criminal law, we have to account for the fact that where one party can reasonably understand the other party's conduct as consent, the second party needs to make it clear (verbally or not) if they withdraw their consent.

Instead, Marcella writes:

This view is what allows rapists to justify raping a girl after she agrees to kiss him or agrees to sexual touching. She didn't say no (because she wasn't asked since that would give her a chance to say no) so her lack of consent wasn't clear. Therefore, he can't be a "real" rapist.

Women have to wait to be asked before saying no? I know a lot of people who've been raped, mostly students of mine, all by acquaintances, friends, or dates. I've hugged them and cried with them and listened to their stories. None of them were asked if they wanted to proceed. In all but one case, they did convey a clear no. The guy went ahead anyway. (The one exception? The woman was drugged. That too is clearly rape, and I would never say otherwise.)

The examples I gave in my previous post were situations where coercion might be present in a dating/flirting scenario - where, for instance, a man might pressure a woman for sex because he paid for her meal. If she feels obligated to sleep with him because he treated, and goes along with his advances without ever making her lack of interest clear - kissing him politely, touching him back, but doing it all out of a sense of obligation - that's seriously messed up. It reveals all kinds of ugliness in gender socialization for both men and women. And it shows a real problem with consent. She didn't give it freely and enthusiastically, but how could the man have known that?

I don't think we can criminalize this sort of flawed consent. Instead, we need to continue educating women and men about the importance of enthusiastic consent; without it, too much bad sex will occur on that continuum where emotional manipulation damages people's ability to consent freely. Women need to be in touch with their desires. They need to realize they can express them - and say no, or yes - and that their desires must be respected. Men need to realize that a "no" isn't a signal to apply more leverage.

On that, I don't think Marcella and I are really all that far apart after all - except on the question of whether I've got a career ahead of me as the next Katie Roiphe.