For the past few weeks, the internet has been debating California’s new law which requires aid-receiving universities to adopt an “affirmative consent” standard in disciplinary hearings. Predictably, there have been many objections, claiming that asking for consent will “ruin the moment” or that we’re criminalizing normal sex. Charlie Glickman wrote an excellent response to such concerns:
The thing is, I understand where some of these fears are coming from. Leaving aside the folks who are actual rapists… changing the rules of the game is scary. We live in a culture that teaches and shames us into bad sexual communication. We shame men who don’t want to have sex within a narrow range of acceptable activities. We shame women who express their desires or want sex more than we think they should. (And slut-shaming enables rape.) We’ve created a performance model of sex, in which people copy what they see in porn because they don’t know any better. I’ve worked with a lot of people who are miserable because they’re performing sex rather than enjoying it. So when we talk about shifting what sexual consent means, even when it’s for the better, we’re stirring up a lot of pain, triggers, shame, and trauma.
One thing we need to move through this is a more clear idea of what “affirmative, conscious, and voluntary agreement to engage in sexual activity” looks like. It’s a great phrase for a legal document, but unless you get turned on by that sort of thing, it’s a rather dry concept. As a sex & relationship coach, I want to see something that you could actually put into practice in the bedroom.
Glickman asked people for example of what nonverbal consent looks like on his Facebook page. Here are the highlights:
- Looking me in the eye and giving me a hand signal that says ‘come towards me’
- When I guide someones hands and place them on my body nodding yes.
- I think that the only real test of affirmative consent is when the other person takes initiative of her or his own accord–without prompting or pressure. Without stopping and waiting for that initiative, there is just too much room for misunderstanding, especially with a newish partner. For example, when offering a kiss, coming close enough almost to make contact but not quite, and waiting for a partner to bridge the gap–or not–communicates both my desire to act and my desire to be met, without words. If there is hesitation, then I know that more verbal conversation is in order, and that’s good. It saves much grief all around.
- Reciprocation. Guiding hands. Asking about preferences. (Is this ok? Faster? Slower? How is this?) Taking initiative, responding in like, exploring your body with their hands, etc. Look for things about the hook up that your partner seems apprehensive about, such as stiffening up, pulling or leaning away, or generally letting you do all the work –pretty good indicator that you are with someone who isn’t into it and probably cannot tell you or is scared shitless to tell you.
- Gripping, grabbing, pulling me closer, reaching for kisses, initiating position changes, following after a touch when it stops or moves, nuzzling, smooching whatever part is near enough, and playing with my hair are all signs of active, engaged enthusiasm for me.
Glickman followed up that list with a warning:
I really like this list because it shows some of the many ways that we can show someone that we’re actively enjoying a sexual experience. Of course, there’s always the chance that someone is performing rather than actually expressing their pleasure. Non-verbal communication can be faked, especially if someone feels pressured into it. Plus, it lacks bandwidth and it’s ambiguous since two different people might have very different ideas about what any of these things might mean.
That’s why non-verbal consent can only be relied on when you already know your partner and how they respond. Until you have that foundation, due diligence suggests making verbal communication your standard. It’s unfortunately easy to do something that you genuinely believe your partner is enjoying and then find out later that they didn’t. I’ve been on both sides of that and it’s no fun.
In his article linked above, Glickman proposed a “due diligence” standard for consent, which includes things like checking in routinely, asking a partner what they want you to do, and having a discussion regarding safer sex concerns. Glickman explained the need for due diligence:
I’ve been on both sides of this. I’ve had sexual partners who didn’t tell me that what we were doing wasn’t comfortable for them. Some of them told me afterward, and unfortunately, there have probably been others who didn’t. I’ve also been the one who wasn’t able to speak up and tell my partner that I wanted something different, or that I wanted to stop. I know what it’s like to feel like my partner assaulted me, even as I recognize that they had no idea at the time. I know what it’s like to not say no and feel violated, and I know what it’s like to find out later that someone felt that way about an experience we had. Both sides of that are pretty awful.
So, yes, it is possible to accidentally assault someone, in the sense that we can do something that we didn’t realize they didn’t want to do. When that happens, we need to hold onto the fact that an injury happened AND the fact that we didn’t intend it. Those are equally important, although I find that healing works best when the fact of the injury gets attention first. And having said all that, it’s also important to be honest with ourselves about whether we’ve actually done enough to qualify as due diligence. We need to have the self-awareness and honor to be able to acknowledge when we could have done more. We need to be able to be honest with ourselves and our partners about whether we really did the best that we could.
I can personally attest to the need for a due diligence standard, because under Charlie’s definition, I have accidentally assaulted someone. Around a year ago, I had a first date with someone. For privacy reasons, I won’t be going into too much detail, but I was in a situation where I believed that the sexual activity in which we were engaging was enthusiastically consented to. I was wrong, and it was my fault. I made the mistake, as Charlie specifically warned against, of relying on nonverbal communication. I didn’t do my due diligence. I didn’t ask for verbal consent. I didn’t pay close enough attention to my partner’s hesitation. I didn’t have a safer sex discussion beforehand. I didn’t ask her what she wanted to do. I just saw that she was actively participating and assumed that meant she was enthusiastic about what we were doing. I also didn’t communicate my own desires about where I wanted to set boundaries (and, as a result, things went further than I wanted). I let my own fear of rejection and insecurity distract me from the importance of communication and establishing unequivocal consent. I forgot that women are taught that their needs don’t matter. I forgot to move in the direction of greatest courage. Through my negligence, I hurt someone who deserved nothing but love and care.
Afterward, I took her friendly and flirty interactions with me as a sign that she had enjoyed herself. I didn’t find out how she felt until over nine months later, when her boyfriend told me. I was, and am, deeply sorry and ashamed of my actions. I urge everyone reading to take heed of my mistakes and commit to a Due Diligence standard for all sexual (or quasi-sexual) partners in the future.
While I don’t think I would be disciplined under the new California law for this situation, the law was never meant to establish best practices, only minimum disciplinary standards. I think Charlie’s Due Diligence standard is a much better model of enthusiastic consent. I’ve been employing Charlie’s standard ever since, and I can promise everyone, it does nothing to ruin the mood. If anything, it makes sex more fun and less nerve-wracking. When people are explicit about what they want and what they don’t, there is no fear of accidentally crossing any boundaries, and it makes the entire experience lower-pressure for everyone. Also, talking about what you want to do with someone can be really hot. Just saying.
I’m glad that California’s new law has gotten people talking about this. It’s an important discussion to have. I hope that the national conversation that we’re having will help move us in the direction of consent culture. I hope that discussing this out in the open will inspire more people to commit to a Due Diligence standard, rather than just “no means no.”