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Consent Is Not As Simple As It Seems

Exploring the nuances of consensual sex


An American man and woman discussing a consensual relationship.
AI-generated image for the prompt “photo of an American man and woman discussing a consensual relationship.” Shutterstock 2399578615.

Consent: the devil is in the details

Consent doesn’t seem to be very complicated, at first sight. If two people are having sex, either both of them want it or one of them does not. If one person did not consent, then it’s non-consensual sex, which the same as rape.

Simple, isn’t it?

Well, it’s actually not that simple. When you get down to it, there are many cases in which saying yes to sex does not imply consent.

For example:

  1. One the individuals involved has a sexually transmitted disease (STI) and has not told the other.

  2. A man removes his condom before penetration.

  3. A woman has agreed to have intercourse. While they are having it, the man chokes her.

  4. The boss has sex with his secretary.

Consent is not just saying yes. It requires having adequate information (case 1), respecting all the details of what have been agreed (case 2), not doing things that have not been agreed (case 3), and lack of coercion (case 4).

There are also cases in which it’s hard to tell if the sex was consensual or not:

  1. Two strangers are having impromptu sex without first agreeing about what they are doing.

  2. A woman has sex with a man after telling him that she is single, but she is actually married.

  3. A professor has sex with a junior faculty at her university.

  4. A landlord has sex with a tenant in exchange for rent.

Whether you consider these cases consensual or not depends on your beliefs about what is ethical and what is not in sex. For example, you may believe that consent needs to be explicit (case 1), that being tricked into adultery is not consent (case 2), that any power imbalance makes sex non-consensual (case 3), or that sex should not be exchanged for money or perks (case 4).

However, not everybody would agree with you on this.

And, if we used the force of the law to persecute people doing these things, wouldn’t we be violating their consent by infringing on their personal autonomy?

Some people may want to use consent to try to enforce their moral or ideological agendas.

And, isn’t sexual repression a form of non-consent?

Yes means yes, no means no and rape paralysis

The situations that I am going to discuss pertain to the yes means yes approach to consent, or affirmative consent. It means that some kind of active consent is given, even if it is non-verbal.

The other approach, which needs to be strongly discouraged, is no means no. It means that consent is assumed unless the person says that the sex is unwanted.

The problem with this is that rape paralysis—an automatic brain response called tonic immobility—may prevent a person from saying no to sex while having strong feelings against it (Möller et al., 2017; de la Torre Laso, 2023). The stronger the fear and revulsion produced by the sex, the more likely is rape paralysis to occur. 

FRIES

A nice step towards defining full consent was done by Planned Parenthood with their FRIES criteria. Quoting from their website, consensual sex should be:

  • Freely given. Consenting is a choice you make without pressure, manipulation, or under the influence of drugs or alcohol.”

  • Reversible. Anyone can change their mind about what they feel like doing, anytime. Even if you’ve done it before, and even if you’re both naked in bed.”

  • Informed. You can only consent to something if you have the full story. For example, if someone says they’ll use a condom and then they don’t, there isn’t full consent.”

  • Enthusiastic. When it comes to sex, you should only do stuff you WANT to do, not things that you feel you’re expected to do.”

  • Specific. Saying yes to one thing (like going to the bedroom to make out) doesn’t mean you’ve said yes to others (like having sex).”

FRIES covers a lot of the details about sexual consent. And Planned Parenthood does a good job of explaining what each of the criteria means.

What is lacking are ways of putting these things into practice.

I have some ideas.


Diagram that explains the grades of consent.
Diagram that explains the grades of consent. Source https://www.killingkittens.com/blog/should-enthusiasm-be-a-requirement-for-sex/

Does consent needs to be enthusiastic?

But, first, I want to take issue with the “enthusiastic” criterion.

Here are some dictionary definitions of the word “enthusiasm”:

Cambridge Dictionary: “A feeling of energetic interest in a particular subject or activity and an eagerness to be involved in it.”
Merriam-Webster: “1a) strong excitement of feeling: ARDOR; 1b) something inspiring zeal or fervor; 2a) belief in special revelations of the Holy Spirit; 2b) religious fanaticism.

Leaving aside the religious definitions, I think it’s clear that we don’t always have an “energetic interest” is sex, are eager to do it, or get a “strong excitement” about it. A lot of sex is just meh. And it’s not because it didn’t work out the way we expected. A lot people engage in sex knowing beforehand that it’s going to be mediocre or boring. And they still do it, and they want to do it.

My point is: going into sex with lack of enthusiasm does not make it non-consensual. And I’m not the only one with this objection. 

There are lots reasons why we may want to have sex without feeling particularly great about the perspective:

  • Getting pregnant to have a child—and it’s the right time of the cycle.

  • Keeping the spark in your relationship alive.

  • Keeping your spouse from cheating.

  • Satisfying the desire of someone you love.

  • Trying new things that scare you (bondage, spanking, anal sex, pegging).

Lots of the thing we do in life we do them without enthusiasm. How enthusiastic do you feel about going to work?

I guess what Planned Parenthood meant by enthusiastic is that sex has to be wanted. And there are many reasons to want sex, other than sexual desire or the pleasure we are going to get from it. However, FRIWS is a lousy acronym.

That’s too bad, really. Because the problem is that this created the wrong idea that consensual sex had to be based on a strong sexual desire and the expectation of great pleasure. With the unfortunate effect of devaluing the experience of people who have lost their sexual drive (some post-menopausal women, people taking certain medications, survivors of sexual assault) or have difficulties experiencing sexual pleasure (anorgasmic women, men with erectile problems or premature ejaculation). Added together, these people are a multitude, and they may get the wrong idea that they shouldn’t be having sex. That is somehow unethical if they do it. Or that their partners are monsters for simply desiring them.

It may also cause women who had a bad sexual experience to wonder if they had been raped. However, nobody can guarantee you good sex, no matter how hard they try. Some people are simply sexually incompatible, and they won’t find out until they have sex.

Bad sex is not rape.

Good, Giving and Game

Dan Savage is a sex advisor and writer who does the Savage Lovecast podcast. He has promoted the creation of many sexual neologisms, like pegging. Another one is GGG sex.

According to it, sex should be:

  • Good - We should have a good knowledge of our body, our desires and what makes us enjoy ourselves during sex. We should also have good technical skills about how to please our partners. Good sex doesn’t just happen. It takes work.

  • Giving - We should approach sex with a spirit of generosity and not selfishness, getting pleasure from the other person’s pleasure. We should do things that our partner likes, not only the things that we like. We should engage in foreplay and provide aftercare.

  • Game - We should be adventurous is sex, willing to try, at least once, new things that excite our partner. This doesn’t mean that we should continue to do things we actively dislike.

I think that these are good alternatives to the “enthusiasm” criteria. Instead of focusing on the negative, it calls our attention to the adventurous, exploratory and generous nature of sex.

GGG sex implies risks, mostly of having a bad sexual experience. We should accept this as part of life. Those risks should be shared with our partner, instead of putting on him (it’s usually him) all the responsibility for the sexual decisions.

We have every right for sex to be consensual. However, we need to recognize that sex also involves taking risks and accepting responsibility for our decisions.

Explicit and implicit consent

There are different types of consent according to how it is established. While they are not all equally ethical, there are many gray areas.

Whether some type of consent is ethical or not depends on the context.

Consent can be explicit or implicit.

Explicit consent is when it is given before sex, verbally. If it fulfills the FRIES criteria, it is the most desirable and ethical form of consent. Still, explicit consent can be unethical. For example, if it is not given with full information about STIs, risk of pregnancy, previous experience, power dynamics, etc. There could be trouble, also, if explicit consent cannot be revoked or if it is given under duress.

Implicit consent is when it is not given verbally but assumed because of a variety of circumstances. Although this may seem problematic, it depends on context. For example, it may happen in a couple that values spontaneous sex. Or there can be lots of non-verbal signals leading to it.

Implicit consent happens a lot in established relationships in which the partners know each other well enough to know if they want sex or not. There could also be a previous agreement of “unless I say no, it is yes.”

Even more edgy, there could be a consensual non-consent (CNC) agreement, which normally is along the lines of “you can do it do me even if I don’t want it at that moment.”

Implicit consent is more problematic in casual sex, but it can also be ethical if it fulfills the FRIES criteria. However, it is difficult for the sex to be fully informed if it has not been discussed verbally beforehand.

Verbal and no-verbal consent

While discussing the ethics of sexual choking (Herbenick et al., 2022), a paper classified consent into four categories: verbal, non-verbal, assumed and non-consent.

  • Verbal consent, defined as when partners spoke about desires relating to choking, occurred before sex, during sex, and after sex” (Herbenick et al., 2022). This is explicit consent, but it can be given during sex by checking in with the partner, or after sex by confirming if what happened was okay. Of course, verbal consent before sex is the ideal situation.

  • Non-verbal consent is a form of implicit consent that usually happens during sex and consists of gestures, body movements and facial expression that signal that the sex is okay.

  • Assumed consent is another form of implicit consent that happens when partners assume that sex is wanted because they do it regularly or have prior knowledge that it is desired. Some sexual acts may be assumed to be okay because they are normal in their social environment. This is problematic when dangerous sexual practices, like choking, become normalized. In these cases, consent is not informed or specific.

  • Non-consent is the extreme case of assumed consent in which the assumption turns out to be wrong. “The major distinguishing factor between ‘assumed because normal’ and non-consensual was the response of the person being choked” (Herbenick et al., 2022). The only difference between this situation and outright rape is that the person suffering the non-consent could have said no and didn’t do it.

As we can see, there is a whole sliding scale that goes between fully negotiated, verbal and explicit consent, to assumed consent, all the way to non-consent.

Still, these are not simple, one dimensional situations. To the dimension of how the consent is given we need to add an orthogonal one represented by the FRIES criteria. We could have paradoxical situations in which explicit, verbal consent is non-ethical—because it was not informed, for example—while assumed consent turns out to be okay.

External and internal consent

Some scientific papers about consent make a difference between internal and external consent.  Internal consent is the willingness and intention to engage in sex, whereas external consent is the communication of that willingness to the potential partner (Willis and Smith, 2022).

However, nobody has the obligation to be a mind-reader. Hence, nobody should be accused of violating internal consent. It is the obligation of everybody who is about to engage in sex to communicate their limits and desires. There is also a reciprocal obligation to listen to those limits and desires, and to provide an environment in which in this communication can take place free of pressure and coercion.

I think that the discussion on internal versus external consent should take place with the goal of enabling this communication by teaching people how to identify and express their inner feelings.

Consent in BDSM (bondage, dominance, submission, sadism, masochism)

In the 1980s, the BDSM community that started to get organized faced the double problem of eliminating abuse from its members and legitimizing its existence in front of society and the law.

Whereas sex is something commonly done, hitting people, tying them up or making them obey our orders are things that infringe upon the most basic norms of behavior. BDSMers faced an uphill battle to convince society that these things are okay provided that they are consensual, safe and arising from a sane frame of mind.

This is how the criteria of safe, sane and consensual (SSC) were born. Later, the debate continued about whether they needed to be replaced by other criteria like Risk-Aware Consensual Kink (RACK). In this article I limit myself to discussing consent, which is common to both approaches.

People in the BDSM community use explicit consent more frequently than vanilla people (Harris et al., 2023). BDSMers also show more opposition to a variety of attitudes that condone sexual abuse and rape (Klement et al., 2017). Indeed, BDSMers have a lot to teach us about consent.

Negotiation, limits and safewords

Over the years, BDSMers developed three practical tools to ensure consent: negotiation, limits and safewords. They could be used for regular sex to establish explicit consent according to the FRIES criteria. Particularly for sexual practices a bit out of the norm, like anal sex.

Negotiation is simply to discuss what is going to happen and not going to happen during sex. Here, all the required information can be exchanged. It also provides a space to discuss likes and dislikes. Negotiation doesn’t have to be formal. It can serve as an exciting preparation for sex, full of intimacy and anticipation.

Limits are things that are a turnoff or considered too dangerous to happen during sex.

The safeword is an especial word that signals withdrawal of consent during sex. When used, sexual activity should cease. A discussion of what went wrong and emotional care should ensue. In BDSM, a traffic light system is often used, with yellow signaling a small problem to be addressed and red the complete interruption of the activity.

Importantly, safewords protect both the top (dominant, sadist, rope rigger) and the bottom (submissive, masochist, rope bottom) by putting on the bottom the responsibility to signal when something goes wrong. Still, the top has to take into account that some BDSM scenes put the bottom in a non-verbal state in which using the safeword is not possible.

Consent continues to be a problem

Unfortunately, there is a big gap between the ideal consensual sex and what happens in reality. Ideally, there should be explicit, verbal consent according to FRIES. In practice, a lot of sex happens with non-verbal or assumed consent, with no means no as the last-resort barrier to stop rape.

Problems are also common regarding receiving full information, particularly regarding STDs and risky practices like choking. There is also a lack of specificity regarding what is being consented to. The use of a safeword could improve reversibility of consent during sex.

The BDSM community has shown how education and techniques like active negotiation, limits and safewords can be used to improve consent without detracting from the fun of sex.

Definition of consent by the American Law Institute

Recently, the American Law Institute (ALI), working with the National Coalition for Sexual Freedom (NCSF), proposed the following legal definition of consent:

(a) “Consent” for purposes of Article 213 means a person’s willingness to engage in a specific act of sexual penetration or sexual contact.
(b) Consent may be express or it may be inferred from behavior—both action and inaction—in the context of all the circumstances.
(c) Neither verbal nor physical resistance is required to establish that consent is lacking, but their absence may be considered, in the context of all the circumstances, in determining whether there was consent.
(d) Notwithstanding subsection (3)(b) of this Section, consent is ineffective when it occurs in circumstances described in Sections [reserved].
(e) Consent may be revoked or withdrawn any time before or during the act of sexual penetration or sexual contact. A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—establishes the lack of consent or the revocation or withdrawal of previous consent. Lack of consent or revocation or withdrawal of consent may be overridden by subsequent consent.

ALI also proposed a revised Model Penal Code on Sexual Assault. The NCSF hopes that it would help decriminalize consensual BDSM practices.

Consent and sexual repression

In the wake of the #MeToo movement, there has been a push towards the intervention of the law, the state, universities and the HR departments of companies and in the consent decisions of adults.

The fact that this introduces a serious element of coercion and brings the interest of third parties into intimate decisions has been overlooked.

The power differential between a citizen and the state, or between a corporation and its employees, far surpasses any possible unbalance of power between individuals. And yet, we have been granting paternalistic powers of oversight to universities and corporations over private matters. Corporative HR departments can now destroy love relationships between employees if they are deemed a legal risk for the company, independently of the feelings of the people involved. Universities have a track record of extralegal persecutions of students and faculty based on spurious accusations or rules tailored to the interests of the university.

Conservatives and radical feminists have been interested in sexual repression for their own ideological motives, and use consent as a Trojan Horse to introduce doubt and fear into sexual relationships.

Conservatives want to eliminate casual sex and confine it to marriage.

Radical feminists have been persecuting BDSM, pornography and sex work for half a century, and now want to cast them as non-consensual activities. For example, PSOE, the socialist party currently in power in Spain, tried to use a new law to “guarantee sexual freedom” to make sex work illegal. At the same time, this new law does not include a clear definition of consent, or takes into account any of the problems discussed in this article.

In this article, I have tried to show that consent is a complex issue with many gray areas. Discussing this issue with attitudes of outrage, blaming, and absolutism is not helpful.

Labeling as rape instances of non-consent that were caused by lack of information and miscommunication can backfire by minimizing cases in which rape is accompanied by extreme violence.

People who infringe on the sexual consent of others should be held accountable, but in a way that is proportionate to their offense.

Better yet, we need to prevent sexual abuse and rape through education, disseminating tools that facilitate consent and communication about sex.

References

  • de la Torre Laso J (2023) The Reality of Tonic Immobility in Victims of Sexual Violence: "I was Paralyzed, I Couldn't Move". Trauma Violence Abuse:15248380231191232.

  • Harris EA, Morgenroth T, Crone DL, Morgenroth L, Gee I, Pan H (2023) Sexual Consent Norms in a Sexually Diverse Sample. Arch Sex Behav.

  • Herbenick D, Guerra-Reyes L, Patterson C, Rosenstock Gonzalez YR, Wagner C, Zounlome N (2022) "It Was Scary, But Then It Was Kind of Exciting": Young Women's Experiences with Choking During Sex. Arch Sex Behav 51:1103-1123.

  • Klement KR, Sagarin BJ, Lee EM (2017) Participating in a Culture of Consent May Be Associated With Lower Rape-Supportive Beliefs. J Sex Res 54:130-134.

  • Möller A, Söndergaard HP, Helström L (2017) Tonic immobility during sexual assault – a common reaction predicting post-traumatic stress disorder and severe depression. Acta obstetricia et gynecologica Scandinavica 96:932-938.

  • Willis M, Smith R (2022) Sexual Consent Across Diverse Behaviors and Contexts: Gender Differences and Nonconsensual Sexual Experiences. Journal of interpersonal violence 37:Np18908-np18934.


Copyright 2023 Hermes Solenzol.

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