The terminology around sexual consent that unquietpirate and I popularized in our essay You Can Take It Back: Consent as a Felt Sense, continues to take root in discourses about sexual ethics. This time, it’s an answer to the somewhat clichéd question, “Is waking up my partner with oral sex rape?”

There’s two different senses of “consent” which fly around in these discussions and they’re often conflated so I want to try and draw a distinction here:

There’s ‘consent as a felt sense’, which refers to the private, internal state of mind of the participants. It is like a hidden variable, a Wittgensteinian ‘beetle in a box’ which no person can ever know with total certainty about another person. This kind of consent, this ‘felt sense’, is what we’re concerned about if we ask if someone feels raped.

Then there’s ‘consent as permission’, which refers to the external communication about our felt sense and this communication often, ideally, takes the form of a transactional negotiation. When we tell people “Get consent”, we’re talking about this second kind of consent. Indeed, this is all that “get consent” could ever mean, given that we’re not mind-readers.

So here’s the big question – why are you ‘getting consent’, in this second sense? There are two main possibilities to motivate this decision, and I think a lot of people’s attitude towards rape and consent questions is revealing of which category they fall into:

option a: we ask questions about our partner’s consent because we don’t want them to experience the sensation of feeling raped, and communication is the best way to be sure of this. If we asked our partner for permission and they said ‘yes’, but their eyes said ‘no’, we would stop and ask further questions because we’re more concerned with honoring their felt sense than with getting laid.

option b: we ask questions about our partner’s consent because we don’t want to be guilty of rape, and getting permission is the best way to be sure of this. If we asked for permission and they said ‘yes’, then that’s good enough because no matter what’s actually going on in our partner’s head, we’ve met our ‘consent’ obligations by asking. If we end up accused of rape in court, this kind of consent-as-permission will suffice as a legal defense, even if our partner didn’t really mean their ‘yes’.

If you fall into the “option a” category, and if you genuinely have your partner’s “felt sense” consent, then I don’t think the particulars of how you communicated consent are all that important. If your partner wants sex, and you are both on the same page about that, then I don’t really care whether you had an explicit “do you want sex? yes i want sex” conversation, or if you arrived at that understanding through a secret, intuitive language of eyebrow-wiggles which only the two of you understand. If you go by eyebrows alone, then you take a leap of faith in your nonverbal communication skills, and if that faith was misplaced, then that mistake is on you. But if afterwards, you both get out of bed feeling un-raped, neither of you wants to send the other to jail, so it doesn’t matter what the law has to say about it.

Wake-up sex is a slightly more extreme example of the “leap of faith” scenario, because you’re hoping that your partner, who went to bed communicating consent, and whom you’re confident was feeling consent at that time, wakes up still feeling that consent. Just how big a leap of faith that is, has everything to do with the specifics of your relationship.

This is a welcome 600 word contribution to the ongoing body of work explaining why it’s important to articulate how “I said yes” and “I feel raped” can both be true, legitimate, valid, authentic human experiences.

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