I think we’re all agreed here that, when it comes to sex, mutual consent is a good thing. In an ideal world, men and women would communicate with the type of clarity last seen when God spoke to Moses from the burning bush. That, of course, is not what happens. Instead, things get physical first, and words, if any are used, are spoken last. It’s a dance.
For example, look at this clip from a 1943 film, The More The Merrier. She’s carefully interviewing him, while he’s single-mindedly intent on getting the kiss. As he moves on her, she wiggles and pulls away, only to stay well within his orbit. She speaks all those words; and he silently seduces her:
Was that a preclude to rape? (This being a 1943 film, they of course returned to their own beds after the scene ended.) I don’t think it was. Had she wanted to say “no,” she could have. But she didn’t. She stayed in the dance until that kiss. The absence of “no” was “yes.”
Cathy Young tries to make this point in her Washington Post op-ed piece today, Feminists want us to define these ugly sexual encounters as rape. Don’t let them. She begins by describing some of the more regrettable sexual choices she made in her younger years. By “regrettable” she means that, after the fact, she regretted what she’d done.
I doubt there are any women in this day and age, barring the few who are happily married to their first and only love, who don’t look back on some of their sexual decisions and think “What was I thinking?”
But the important point is that a sense of regret the following morning (“I don’t even like him.” “He was selfish in bed.” “I sure let myself get talked into that one.” “I shouldn’t have let him think I was agreeing with him.”) does not mean you were raped the night before, and Young at least temporarily latches on to this clear, bright line:
Consent for bad reasons is still consent; despicable behavior is not always criminal. (Getting guilt-tripped into giving money to a freeloading friend is not robbery.) In the second instance, it would be an infantilizing insult to deny my responsibility for a mutual misunderstanding. In the third, what happened was not only consensual but wanted; my initial “no” was sincere, but it was mainly an attempt to stop myself from acting on an attraction against my better judgment.
Despite that clear start, Young ends up getting confused, conflating consent before the act to regret afterwards. Thus, from this promising start, which says that women like Mattress Girl and Lena Dunham can’t give consent in the evening and cry “rape” the following morning, Young gets lost in a feminazi world of “yes” means “yes,” and everything else means “no.”
Sometimes, the movement’s supporters claim that the new rules amount to little more than common sense: don’t have sex with someone who isn’t a willing partner. (In practice, a male student at California’s Occidental College was recently expelled over sex with a partner who was willing and enthusiastic, but apparently too intoxicated to think clearly.)
Others champion a far bolder vision. Theriault writes that that we must “raze” nearly all our cultural beliefs about sex and “create an entirely new foundation”—built on the belief that consent must be explicit and almost certainly verbal, and not simply a “yes” but “ongoing conversation.” Increasingly, this is also the approach adopted by consent education programs on college campuses. A bizarre “consent porn” video created as an educational aid shows make-out sessions proceeding to a constant mutual refrain of “Is this okay?”; the apparent idea is to show that “consent is hot,” but the result looks more like a particularly tacky parody.
As both Mattress Girl’s texts and as Dunham’s ugly attack on a campus Republican reveal, before they had sex, both girls said “yes” as in “yes.” Mattress Girl appears to have been actively pursuing her alleged “rapist,” while both Dunham and the alleged other guy had drunk and drugged themselves into a stupor — but even she concedes that she still went along with the sex without any protest, either physical or verbal.
I know I’m bucking a trend here, but with Dunham’s debauch in mind, I believe that “intoxicated” consent is still consent. Perhaps that’s my legal training. If someone voluntarily gets drunk and then kills someone while driving, we don’t say, “Well, he didn’t affirmatively decide in his own mind to kill that other driver, so he shouldn’t be held responsible for it.” Instead, we say “She decided to get drunk; she takes the consequences.” The only exception I can think to this bright line rule involves situations in which people got intoxicated involuntarily, meanie roofies or some other nefarious plot.
A woman who has rendered herself unconscious is always saying “NO!!!” That should go without saying. When she is intoxicated but not unconscious, the gradations of consent and the consequences of the decision to get drunk are less clear, and hard-and-fast rules are too inflexible for the facts on the ground.
To my mind, the rules are pretty damn clear. When a young woman says “no” you back off — although, as the old video above shows, and as well all know from real life, sometimes “no” is a preclude to “yes.” We deny human nature and the dance between men and women if we say that, after a first “no,” the man is barred forever from asking again, and that if he does ask again, he’s pressured the woman so that her “yes” is illusory because merely asking twice equals coercion.
Equally, if a woman is not in fear for her or someone else’s safety and says “yes,” that means “yes.” And that “yes” continues to apply even if she wakes the following morning and asks herself “What in the hell have I done?” What you’ve done, my dear, is said “yes” to something stupid and regrettable, but you still said “yes.”
As the mother of a boy and a girl, I’m going to tell my girl not to get drunk, not to get drugged, and never to allow herself to be coerced into an activity she finds repugnant. As for my boy, looking at the climate on campus, I’m going to tell him he should consider audition for a role in a reality show version of The 40-Year Old Virgin. Actually, I wouldn’t mind if my girl auditioned for the same show. It seems safer that way.