(This post is co-authored by unquietpirate and myself.)
Did you ever consent to something, but still came away feeling violated? Ever said “yes” to someone and then wished you could take it back? Well, you can.
Here’s the thing: it is possible to consent to having some experience and then, sometime in the future, not consent to having had that experience.
Put another way, you have “the right to retroactively withdraw consent” from any encounters you had, at any point in the past, that no longer feel good or safe to you.
Currently, the way we talk about consent leaves no space for people to re-evaluate their own experiences. Nevertheless, people frequently do re-evaluate their experiences—including and perhaps even especially their sexual experiences—based on a variety of factors. Newly learned information, changing circumstances, or the way they themselves have changed are all things that can and do alter people’s feelings about the past. Discourses about consent that don’t make space for such after-the-fact evaluations are flawed.
There’s a better way to think and talk about consent, one that honors peoples’ entire experience of a situation—past, present, and future—not just the tiny time-slices of that experience during which they were asked, “Is this cool with you?” Instead of understanding consent as “giving someone permission to do a thing,” we can and should talk about it as “being okay with a thing happening.”
In this essay, we begin an exploration into how current mainstream and even progressive feminist discourses about (specifically) sexual consent fail to address the lived experience of navigating consent within rape culture. We point out that a legalistic framing of consent as expressed rather than experienced ultimately centers the needs of would-be rapists over the needs of rape survivors. We also consider how our relationship to consent changes when we acknowledge that whether a person actually feels violated is more important than whether they expected to feel violated.
Toward an Ethical Model of Consent
How does our relationship to consent change if we think of “consent” as a real experience people have of feeling that what happened to them was okay, and “violation” as more nuanced than simply committing an un-permitted action?
In such a model, if Bob and Andy have sex, and Andy says, “Yes,” “Sure,” “Okay, fine, whatever,” or even, “Ooh baby, do it to me!” but still wakes up the next morning feeling like he was raped, that means Andy was raped. Conversely, if Andy and François have a steamy make-out session in which no words are exchanged but they both go home feeling great about it, and they keep feeling great about it, that experience was consensual.
If our concern is with not violating a person, rather than not violating a rule, then “a violation” is defined by what happens when a person processes and continually re-processes their feelings about an experience. Likewise, if our concern is about behaving ethically and with integrity, rather than making sure we are not held accountable for coercive actions, then we should respect consent as an experience people have, not a commitment people make.
Consent does not equal permission; it is a felt sense.
Of course, this understanding of consent fucking terrifies people (mostly men and sadomasochistic “Dominants”), because it implies that consent (as they understand it) can be “revoked” retroactively. But this is only a problem for someone whose desire to understand consent is primarily focused on how to not get in trouble for violating consent, or at the very least on how not to feel bad about themselves for violating consent, rather than on how to not violate consent.
How We Talk About Consent Now: Consent as Permission
I’ve had my boundaries violated in the past. You probably have, too. If that experience was traumatic, where did the trauma come from? Did it come from the fact that someone broke a rule? (Maybe. A trust violation can be traumatizing even if no other harm occurred.) Or did it come from the fact that someone interacted with me in a way that made me feel unsafe, hurt, and violated?
—”Your Kink Is Not My Kink, but would you like some Dorito’s?” by unquietpirate
Typically, we define “consent” as the act of communicating to someone that it is okay for them to interact with us in a particular way. In other words, people generally believe consent is synonymous with permission. Andy “consented” to sex if Bob asked, “Will you have sex with me?” and Andy said, “Yes.” They behave as if “consenting” means agreeing to do something.
If Andy says “yes” to sex with Bob but still winds up feeling like his boundaries were violated, Bob bears no responsibility for Andy’s discomfort as long as Bob stuck to their agreement. Bob can be a nice guy and help Andy process his feelings, if he wants, or he can be a dick and just tell Andy it’s not his problem. Later, Andy can choose not to play with Bob again because he had a bad time, but he is not “allowed” to call Bob a rapist—Andy would be making a “false accusation”—because Bob didn’t break any rules. We call this the “consent-as-permission model,” or “contractual-consent.”
The problem with this model is that it is fundamentally legalistic. It’s all about whether or not permission to perform an act was obtained; it asks nothing about peoples’ experiences after they say “yes.” Instead, the Consent-as-Permission model asks questions like, “What counts as a ‘yes’?”, “Under what circumstances is a ‘yes’ inadmissible?”, and “In the case of a dispute, what kinds of documentation are required to prove the presence or absence of a ‘yes’?”
In recent years, new variants on this contractual-consent paradigm have emerged, but none address its root limitation. For instance, the “Enthusiastic Consent” variant says that a “yes” is inadmissible unless the answer to “Will you have sex with me?” is “enthusiastically” affirmed (i.e., not merely “yes,” but “YES!”). Similarly, the “Ongoing Consent” variant says that a “yes” effectively runs on a timer, and when the timer runs out consent must be re-acquired. But all of these variants miss the point; at their core, they treat consent like an exchange of goods, a transaction in which a nebulous, arbitrarily-defined set of sanctioned actions can or can not be taken under certain conditions that are themselves defined by the negotiating process through which “consent” is either obtained or denied.
This framing of consent (and violation) is wrong. It is tragically wrong. Regardless of how we tweak it, the consent-as-permission model retains a focus on the experience of the person receiving permission, not the person who is or is not consenting. Such a system encourages us to design “consent contracts,” negotiated agreements about what behaviors are permissible in what situations. In such a system, the most rational thing to do is also the least ethical: prioritize avoiding accountability for acts of rape over respecting another person’s consent.
Moreover, the current Consent-as-Permission model doesn’t even work in a number of common situations.
Common Situations Where Consent-as-Permission Fails
For the privileged few of us who are able to communicate freely and easily about sex, Consent-as-Permission increases the likelihood that we won’t have sexual experiences in which we feel violated. In cases where we are very clear about our own desires, as well as capable of articulating them safely to ourselves and others, it’s relatively straightforward to make our verbal expressions of consent align with our felt experience of consenting. However, there are a number of common situations where defining “consent” as “saying yes” can cause serious harm.
The Consent-as-Permission model deals very poorly with all but the most extreme versions of the following situations:
- The Pressured Yes – When a “yes” is obtained through abuse or threat of violence.
- The Compromised Yes – When the desire to say “yes” is the result of environmental influences such as drugs, emotional stress, or sexual trauma.
- I Don’t Knows – When a person is unsure about what feels good or safe to them but still wants to “test the waters” of erotic intimacy.
- Barriers to Verbal Communication – When people negotiating a “consent contract” have trouble talking about what they want or expect will feel okay.
- New Information – When new information about others or personal realizations about oneself surface that change one’s perception of something that happened to them.
- Gradated Consent Violations – When a “consent contract” is broken in a way that a person feels comfortable with, or in a way that they feel somewhat but not extremely uncomfortable with, as compared to a way that feels disturbing or traumatizing.
- “Consensual Non-Consent” – When a person intentionally chooses to say “yes” to experiences that feel non-consensual to them.
Most of us are not taught to trust our own feelings and desires, which means many of us don’t know what we want or what will feel good, okay, or even safe sexually. We are constantly in the process of figuring that out. A model of consent that requires in-the-moment sexual self-awareness to be so reliable that you’re willing to make a contract based on it is inaccessible to most people.
Further, all these legalistic discourses essentially treat consent as a binary value: either it’s present, or it’s not. Putting aside literal legal definitions, if (“enthusiastic and ongoing”) consent is deemed present, then even some progressive feminist (“sex-positive”) discourses blanketly decree no “violation” can occur. But this inevitably also defines a consent violation in a black-and-white way without any space for nuance or gradation.
Conflating giving permission (to try something) with consenting (feeling okay about something) often leads to confusing situations where people feel traumatized or violated but tell themselves, “Well…I said yes, so I must’ve wanted it.”
Deconstructing support for Consent-as-Permission
Clinging to a legalistic model of consent is tempting for some people. For one thing, that’s what we’re familiar with.
For another, talking about consent in a way that over-emphasizes the breaking of rules (i.e., a form of legalism) makes it easier to interface with the legal system, since that system also uses a “rule breaking” framework to determine the “wrongness” of some act. It’s much easier to provide a prosecutor with evidence about broken contracts than to provide one with evidence about feeling violated. But it’s well understood that the “criminal justice” system is, at best, an ineffective last-resort for survivors of sexual violence. Making it more difficult to ask for help from an institution that isn’t helping anyway is hardly a sacrifice.
The consent-as-permission model is also attractive because it requires very little self-reflection. A permission binary—“they said yes” versus “they said no”—is more simply quantifiable than having to be conscientious about what people are actually experiencing and what responsibilities you might have in relation to that experience. People invested in the consent-as-permission model are therefore also highly invested in treating rape and abuse as something committed only by “abusers,” and thus, by definition not themselves or their friends, since they are “not that kind of people.”
Finally, it’s tempting to retain the consent-as-permission model because of the fear that “it’s all we’ve got.” Lacking alternative methodologies to discourage socially harmful behavior, we tend to rely on whatever methodologies we think will work—even if those methodologies prove ineffective. However, we do in fact have an array of tools that do not rely on the legal system, law enforcement, or punitive deterrents. For instance, we can make more use of tools such as social shaming, transformative justice, and other community accountability processes that have effected radical changes. Tools like the Predator Alert Tool for Facebook, which amplify the power of traditional self-protective mechanisms, offer a glimpse into what such systems could look like at scale.
Ultimately, support for a legalistic model of consent has no ethical foundation. The powers that be have demonstrated no ability or willingness to build effective systems to address sexual violence. Building our own systems as half-assed imitations of those powers does us no good.
How We Can Do Better: Consent as a Felt Sense
What needs to change in order for an experiential model of consent to supplant a permission-based one?
Getting in touch with our felt sense of “consenting”
Just as traditional legalism conditions people to confuse right and wrong with legal and illegal, consent-legalism conditions people to confuse consenting and nonconsenting with allowed and disallowed. This obscures our felt sense of consent.
We are all raised in a culture that teaches us from a very young age that our bodies are not our own. We force our children into an oppressively ordered school system as soon as they can walk, praise and reward them for enthusiastic participation in that system, and then somehow expect them to have clear intuitions about the difference between coercion and desire. Technically, we said “yes” to math homework through most of middle and high school. Does that mean we were voluntarily doing pre-calc problems instead of hanging out with friends?
Tapping into our intuitive and embodied understanding of what “okay” feels like for us will be challenging, but it is necessary for an improved relationship to consent. Unquietpirate’s post, “Your Kink is Not My Kink But Would You Like Some Dorito’s?,” begins a discussion on what that recovery process might look like in the realm of sexual consent:
Since all our somatic experiences of choice are so buried, the way we talk about “consent” often devolves into a conversation about permission and rules instead. Certainly, it’s important to teach people not to do things to other peoples’ bodies that they haven’t been given permission to do. Absolutely. But that’s not really enough to generate the kinds of fulfilling, pleasurable, whole human experiences that I think most of us would like to have in our sex, in our play, in our learning, in our work, etc. [One way to recover from “eating disorders” called] Intuitive Eating has developed a concrete and, in my experience, effective methodology for helping people get back in touch with their somatic sense of what they do and don’t want to eat, what is and isn’t healthy for their particular bodies, etc. I wonder what a similar methodology would look like in other arenas of consent?
This process will look very different for different people, depending on their personal histories and positionalities, which is why it is important for this conversation to take root in a wide range of places.
Putting communication about consent in perspective
We need to understand giving permission as a way of communicating about consent, not as consent itself. We also need to understand that giving (or not giving) permission is not the only legitimate way to communicate about consent.
As a way of sharing information about desires and expectations, premeditated “consent contracts” can be a useful communication exercise. But problems arise when they become a way for potential rapists to cover their asses in the event that they violate a partner. Miscommunications occur, including miscommunications about permission, but a miscommunication is never an excuse for rape.
Facing our own abusiveness
Both mainstream and numerous feminist discourses tend to treat violation through sexual violence as something committed by “abusers” (i.e., “them,” not “us”). Most often, people treat having raped or having been raped as a defining facet of who someone is, as a person; they don’t treat rape like something people do, they treat rape like it’s something people are. We don’t think that’s helpful.
Realistically, anybody who is having any kind of sex in the context of rape culture is likely to violate someone’s consent at some point. The most ethical response to this fact, obviously, is to not have sex—and, in fact, if enough people decided to opt out of rape culture by opting completely out of erotic intimacy, that would ultimately bring rape culture crashing down. But a “sexual hunger strike to bring about the end of rape culture” is an unrealistically high ethical bar to set for most real people who are trying to survive in a world where intimacy is a human necessity.
Instead, we need to take it as a given that if you choose to have sex in the context of rape culture, especially if you choose to have sex with people who have less power than you, and especially if you choose to have kinds of sex that explicitly play with that power differential, at some point you are probably going to violate someone’s consent—if you haven’t already. We need a process for dealing with that other than abject denial. We need to develop ways of regularly acknowledging, taking accountability for, and participating in healing work around the damage our coercive behavior causes.
When rape is framed as a piece of one’s identity rather than as an act one committed, the possibility that one could “be a rapist” is simply unconscionable for most people to stomach. Their terror at this prospect spurs them to justify or excuse their behavior. We’re going to have to come to grips with what it means to violate others in a way our justifiable fear of “being rapists” has so far prevented us from doing.
If you accept the premise that someone’s experience of sexual violation “counts” as rape, regardless of whether they granted verbal permission beforehand, then in order to avoid being accused of rape you’ll have to shift your mindset from, “I’d better make sure I was told it was okay to do this first,” to “I’d better make damn sure this person isn’t going to wake up tomorrow and feel like I raped them.” The latter is a standard requiring much more communication, understanding, and compassion from the people involved than the former, especially in situations with near-strangers like one-night stands, hook-ups, or play partners you might meet at a club.
What would you change about your behavior towards others if you acknowledged that violating consent hinged not on what they said about how they felt, but on how they actually felt? What would change about your behavior toward yourself? What does consent feel like to you?
Meta-Consent and the Return of Agency
Understanding consent as something that is experienced, rather than as something that is “given,” addresses the problems caused by conflating permission with consent. Importantly, treating consent as a felt sense respects the agency of the person consenting; it enables them to consent to anything, and only things, that they feel okay about. This includes, ironically, situations that they feel okay not feeling okay about, yet without absolving non-consensual situations of their violative aspect.
This ability for layering, or meta-consent, means that it is possible to agentically consent to having your consent violated. This is the most important difference between the Consent as Felt Sense model and the two major current discourses about consent, both of which argue that it is impossible to consent to violation:
- Radical feminists use a “false consciousness” model, which claims that if you appear to be choosing (i.e., contracting for) violation, you must not be authentically choosing. In other words, you have been brainwashed or are being threatened into giving permission.
- In the sex-positive and BDSM scenes, a “performative violence” model is more common; it claims that if you appear to be choosing violation, it must not actually be violation. In other words, what might look like rape or violence is actually something else entirely, because you’ve given permission for it.
Both of these framings are wrong.
If I freely give you a signed and notarized piece of paper saying, “Do whatever you want to me,” that doesn’t mean I now magically can’t be raped. It might mean I can’t prosecute you for rape—but given the legal system’s track record, I probably couldn’t have done that anyway. It hopefully means I have a process for integrating rape into my experience in a way that makes it okay for me. But if you choose to take advantage of this carte blanche opportunity to rape me, what you’re doing is still rape.
The legalistic Consent-as-Permission model focuses on behavior, on the “doing” of sex acts. It addresses what a given person, in a given place, at a given time, with a given history can or cannot reasonably choose to allow to happen to them in a given situation. But it has nothing to say about how that person feels about the choice they made. It doesn’t even offer any guidance for answering questions like, “What if I don’t know what I want?” and “What if what I want, or wanted, changes over time?”
Legalistic approaches to consent are responsible for the cultural paralysis in addressing rape and other undesirable intimate violations. If we focused cultural resources on developing a compassionate discourse for understanding the ways that consent violations are gradated, that violations have degrees of impact informed by myriad factors, and that “consenting” is more about developing our own felt sense of an experience than strictly adhering to a set of cultural doctrines, we might finally be able to stop repeating these boring, immature, circular finger-pointing arguments we’ve been having since the “Sex Wars” in the 80′s.