In the past few weeks, my facebook (and probably yours) have exploded with conversations about “rape culture.” So much so that it rated a shoutout on George Takei’s page.
And since it’s already come up a few times at DDP and is extremely likely to come up again and again, I’d like to talk about what we mean when we say “model of consent.”
“Model of consent” = What is it that makes sex not-rape?
“Model of consent” = how you know you’re good to go. No orange or red on the dashboard.
A model of consent is a set of conditions that you hold in your head that tells you, if you meet them, that you have your partner’s permission and agreement and can ethically proceed with sexual activity.
Different models have different conditions. Let’s talk about three different models of consent that people use, one of which (not my favorite) is our legal standard.
From approximately a long time ago (like, a couple millennia BC) to fairly recently, a woman’s sex was literally owned, and rape was a property crime, so the major condition was “is this woman yours?”
The offense of rape was against her father if she was unmarried (loss of value of his property) or her husband if she was married (theft). There was no such thing as raping an unmarried woman who had children but no family, as she was clearly not a virgin, thus nothing was stolen, and there was no man to claim offense.
(Such a woman was extremely vulnerable because she was under no one’s protection, and also had no value to be married because she could offer neither property, nor alliance, nor assured paternity. This is why Jesus commanded people to take care of the widows, and also why Anne Hathaway ended up a whore in Les Mis.)
So legally, from just over a generation ago in this country and going way back in time, the prevailing model of consent was “rape as property crime” and went something like:
- Do you own this woman? Not rape.
- Is this woman your slave? Not rape.
- Husbands owned wives, so: Husband + wife = never rape.
- If you are not married to a woman and you would like to have sex with her, and you can get her alone under compromising conditions and she didn’t fight back hard enough, then it was her fault for letting herself get into that situation.
- If a woman ceased resistance under threat to her life, or if she physically fought to the end of her strength and voice, then it was “rape.”
- Implicit in this model was that the male was always the actor and the female was the recipient of any action.
- Also implicit in this model: women were responsible for preventing their own rapes.
Eventually, the radical idea that women should have some say in whether they wanted to have sex with someone led us to the “no means no” model of consent, which says something like:
- You should probably actually care if the woman you’re trying to have sex with wants to have sex with you.
- Women have the right to say no if they don’t want to have sex.
- So if a woman says “no,” if you go ahead and put your dick in her, then it’s rape.
- But if you proceed in what you consider to be a reasonable and judicious manner (affection, kissing, touching, nakedness, etc), and get no explicit objection, then you’re good and it was not rape even if she was frozen and silent throughout.
- A woman is still responsible for preventing her own rape by objecting clearly enough.
- The a priori assumption is that you can do anything she doesn’t explicitly forbid. This leaves an awful lot on the table at all times.
- This is still our legal standard.
The difference between the “no means no” and the “yes means yes” models of consent is the same as the difference in judicial systems between “guilty until proven innocent” and “innocent until proven guilty.” Under “no means no,” the burden of proof is on the defendant. Under “yes means yes,” the buden of proof is on the plaintiff.
“Yes means yes” is sometimes written as “only yes means yes.” This is to differentiate it from the “no means no” model, where “yes” is presumed. Under “yes means yes,” you need to actually have a “yes.”
- You should definitely actually care if the
womanperson you’re trying to have sex with wants to have sex with you.
- Women also need to ascertain consent from men. Women need to ascertain consent from women. Men need to ascertain consent from men. Persons need to ascertain consent from persons.
- You need to have “affirmative” consent. This means the presence of positive indication.
- You are not a mind reader. Don’t assume things. Use your words.
- Lack of consent is what defines rape. Not saying “no” or “stop.” Not fighting back. Not fearing for your life. Only whether or not the person you’re acting on sexually desired and permissioned you to do so.
I hope this is a useful reference. I will have another post up very soon talking more about what consent is, and how you can communicate it, and how you can know you have it from your partner.
So stay tuned for more words that will include less legal/academic speak and more talking about what happens leading up and after getting naked with someone.