I’ve written and spoken quite a bit about consent. There’s an ongoing discussion about consent, enthusiasm, and agency at the splendid Yes Means Yes blog. The book with the same title, edited by Jaclyn Friedman and Jessica Valenti, also explores the intersections of desire and culture and agency. One topic that has always come up in my talks about consent — and which came up in the book as well — was the difficulty of defining those sexual encounters that do not meet the prevailing legal standard for rape, but are still non-consensual to one degree or another. (This problematic concept is explored in a very fine piece by Latoya Peterson, a “Yes Means Yes” contributor: The Not Rape Epidemic.)
A recent survey in the Journal of Sex Research has led to the adoption of a new term to describe one aspect of the problem: sexual compliance. The authors define compliance as “consent without desire”. That’s an exasperating way of couching it — after all, as I usually point out in my workshops and lectures, consent comes from the Latin consentire, which means literally “with feeling” or “with desire.” Consent, I argue, both etymologically and ethically shouldn’t be understood as the mere absence of a “no” or even the mere willingness to comply with another’s wishes. Authentic consent is always charged with desire; “enthusiastic consent” is, in a very real sense, a redundant term!
But I recognize that the common understanding of consent refers to the granting of permission rather than the presence of desire, and I suppose that a lesson in Latin isn’t going to change that interpretation.
One way to think about sexual ethics and the problem of what Latoya Peterson calls “Not Rape” as well as what the Journal of Sex Research calls “sexual compliance” or “consent without desire” is to imagine a spectrum. Think of a long flat line, but without any numbers on it. (This isn’t quite the Kinsey scale of sexual identity.) Imagine that the left end point of the scale is marked “Absolute Enthusiastic Consent” or, better yet, “Hell, Yes!” The right end point of the spectrum is marked “Neither Consented to Nor Desired” or “Hell, No!” or “Everyone in Their Right Mind Would Agree that This is Rape!” It’s pretty clear that a lot of what happens sexually in our lives or in the lives of the people we love happens somewhere in between these two poles. Listening to the stories of how real people live — and in many cases, reflecting on our own pasts — most of us realize fast that it’s a false dichotomy to insisist that every act of sex is “either rape, or it isn’t.” There’s a lot of space in between our two poles.
What meets the legal standard of rape occupies, say, the right third of the spectrum. If most people’s vision of something that is “obviously rape” involves the stereotype of a stranger in a ski mask jumping out of a bush and sexually assaulting a woman at gunpoint, the law takes a broader view. The law notes that sometimes consent can’t be given, even in the presence of a “hell, yes.” Intoxication vitiates consent in the eyes of the law, as does (in many places) the minor status of one of the participants in a sexual act. A drunken “yes” or a “yes” from a fourteen year-old isn’t at the right extreme of the spectrum, because genuine desire may be present (alcohol takes away reason, not horniness), but it’s still in the area the law considers legal rape. Most of us are glad for laws about statutory rape and the use of intoxicants. They make good sense.
Then in the middle third of the spectrum, we find the intersection of ambiguity and anguish. It’s in the middle of our “rape spectrum” that I’d place my sexual behavior with my students during my “acting out” years early in my career. I slept with many students who were enrolled in my classes at the time we had sex. In every single instance, I perceived enthusiastic consent from these women, all of whom were legal adults. I perceived it perhaps because it was there, or perhaps because I wanted to perceive it. But I held the power of the gradebook, and I held the mystique of the “professor fantasy” that is a cultural staple. Did the power of the gradebook vitiate consent in a way similar to the way that alcohol — or minor status — might? I think that at least in some instances, it may have. Not to the same degree, perhaps. What I did fell into the “unethical, but not illegal” category. (It wasn’t even a violation of college policy at the time, as PCC did not have such a policy until I created it as part of my amends process.) So when I wrote yesterday that my actions fell on the “rape spectrum”, I didn’t say “I was a rapist.” I was making a point about the way in which power imbalances tend to undermine consent. Sometimes those imbalances cross the line from problematic to illegal, and sometimes they don’t. But those imbalances are never found on the far left end — the “ideal consent end” of the spectrum.
But there are other scenarios that end up in our middle third of the spectrum. I’ve written often about the ways in which one partner in a relationship will badger or nag or pressure the other for sex. Men in particular have been trained not to take “no” for an answer, but instead to keep plugging away in order to turn that “No” into a “Yes” or at least an “Okay, I guess.” If a man ignores a woman’s “No”, then he’s clearly in the right third of the spectrum, the area shaded in as “legally rape.” But what if he pesters and persists until the “No” becomes not a “Hell, Yes!” but a resigned “Okay”, or a “Do what you want” or an “If you really want to” or a “Whatever” or perhaps just an acquiescent silence? That’s not legally rape in most instances — but it sure as hell falls miles short of the standard of enthusiastic consent! Not all coercion meets the legal standard for rape.
And even on our left-hand side of the scale — close to the “enthusiastic consent” ideal but still well short of it – are the sexual dynamics familiar to many folks in long-term relationships. One partner is in the mood, the other isn’t. The lower-desire partner may feel a desire to please their higher-desire mate, and so her or she willingly consents to sex. But we need always to distinguish between the desire to please another and one’s own sexual desire. Both can lead us to consent, and in the best encounters, all parties involved are both very horny and very eager to bring pleasure to those whom they are with. But uneven desire is a staple of countless relationships, and most couples end up working out compromises in the face of this libido disparity. Those compromises are clearly legally consensual. They are also often charged with mutual desire. But the mutual desires often take different forms. Sex that feels obligatory, sex that is charged with a sense of duty, falls short of the “left-side ideal” of “enthusiastic consent.” And the truth is, a great many of us will end up having that kind of sex sooner or later.
When I bring up the spectrum, I bring it up in order to inspire conversation. I want people to expand their understanding of consent and of rape. I want them to see that desire is complicated, and to work to discern the desire to please another from one’s own desire for sexual satisfaction. Those aren’t always mutually exclusive, but they sure as hell aren’t the same thing either. We need to work to make sure our laws are enforced, but also to make sure that we challenge a lot of the behaviors that fall into that murky “middle third” of the spectrum. And that means talking, listening, and demanding the truth from ourselves and others.