By Hanna Kozlowska at The New York Times
The debate about rape culture and consent in sexual intercourse has spread from college campuses to the front pages of national media, and even to state legislatures. A particularly heated discussion about consent surrounding a case of alleged sexual assault in the publishing world has unfolded online.
In recent years, many colleges have failed to report cases of sexual assault to the authorities, inciting a nationwide movement to hold the schools accountable. Today, the Department of Education is investigating 55 institutions for their handling of sexual abuse claims, while the White House started a campaign to end sexual assault on campus.
A key facet of the debate has been the definition of rape and the question of consent during intercourse. What constitutes sexual assault? What is a “no” and what is a “yes”? Activists have been pushing for an “active consent” solution, where proceeding with a given sexual activity is permissible only after the other party involved has clearly voiced their approval.
In September, California Gov. Jerry Brown signed into law the first bill in the nation that legislates the definition of consent, urging colleges to have a consent policy at the risk of losing state funds. “Lack of protest or resistance does not mean consent, nor does silence mean consent,” the law says. “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”
And this notion of “affirmative consent” that must be continuous, repeated throughout the interaction, has been highly controversial. The standard is not new — introduced at Antioch College two decades ago, it was widely criticized and mocked, including in a “Saturday Night Live” sketch.
Though perhaps less satirical in tone, the idea of “affirmative consent” still draws criticism, with opponents pointing to the overwhelming burden on the accused.
Joseph Cohn of the Foundation for Individual Rights in Educationtold The Economist that the idea is “not consistent” with the way adults behave.
“Under this consent standard, if one partner touches his or her partner in a sexual way, and the person says ‘I am not interested tonight,’ that person has already committed sexual assault because he or she didn’t get permission upfront,” Mr. Cohn said.
At The Week, Shikha Dalmia says that partners are seldom equally excited at the same time.
“What’s more, whether due to nurture or nature, there is usually a difference in tempo between men and women, with women generally requiring more ‘convincing,’” Ms. Dalmia writes. “And someone who requires convincing is not yet in a position to offer ‘affirmative’ much less ‘enthusiastic’ consent.
Ms. Dalmia adds that sometimes the party has to be “coaxed” out of their comfort zone, and that this would be criminalized under affirmative consent laws.
Some people bring up the argument that this definition of consent will stifle the encounter, add boundaries and remove the fun. “Most people prefer spontaneous give-and-take and even some mystery, however old-fashioned that may sound,” says Cathy Young at Time. She adds that sex therapists advise “‘letting go’ of self-conciousness” for good sex.
Ann Friedman at Time disagrees, saying that confirming consent leads to a better overall experience. Ms. Friedman says that the new law is conducive to communication and agreement on what both parties enjoy. “In essence, the new law forces universities — and the rest of us — to acknowledge that women like sex. Especially sex with a partner who wants to talk about what turns them on.”
But that is just the surface of the pro-affirmative consent argument. The law’s premise is, first and foremost, preventing sexual assault. “A partner who is asleep or passed out can’t say ‘no,’” writes Amanda Hess at Slate. “Neither can a partner who’s frozen in shock or fear when an encounter escalates into an assault.”
“Just like with any other violent physical assault, many victims respond by shutting down, going silent, or laying motionless, hoping not to anger their attackers further, or disassociating from the attacks as an attempt at self-preservation,” Ms. Hess writes. “Also, consenting to sex one time doesn’t mean consenting to sex any other time.” She adds that agreeing to one sexual act does not imply consent to other acts, hence the need for the “continuous” character of consent.
In a piece for Vox, Amanda Taub puts the debate in a larger contextof gender relations. The law responds to a status quo where sexual predators can claim “to see consent in everything except continuous, unequivocal rejection.” Women thus have to “constantly police their own behavior” in order to avoid the appearance of giving passive consent. “That’s not only exhausting; it’s limiting,” Ms. Taub writes. “It reinforces power imbalances that keep women out of positions of success and authority.”
Ms. Taub’s article describes a situation that has been discussed by many others in recent weeks. It is the case of the writer Sophia Katz, who described in a post on Medium her encounters with a star editor of the alternative literature (or alt-lit) world, whom she describes as “stan” but who was later identified by others as Stephen Tully Dierks, the editor of the literary magazine Pop Serial.
Ms. Katz, a 20-year-old writer from Toronto, decided to come to New York to establish connections in the literary world. She had no money for a hotel, and she said she accepted an offer from “stan” to stay with him. She writes that she was aware of his non-platonic intentions, but decided to stay with him anyway.
Throughout her trip, Ms. Katz alleges that he insisted she sleep in his bed, initiated and carried out intercourse, unprompted and unwanted by her. Ms. Katz’s account includes many phrases such as the following: “I remained frozen, unable to make any decision at all” or “He began kissing my mouth. I felt nauseous.”
She recounts that she repeatedly said “we shouldn’t” during his advances.
In a contentious essay for the literary magazine Hobart, Elizabeth Ellen, one of its editors, criticizes Ms. Katz for publicly shaming her aggressor. She cites an email from her mother, which stated her thoughts “almost verbatim.” Ms. Ellen’s mother writes that she would not call “stan” a rapist. “The Sophia female clearly tried to dissuade him but didn’t say no, didn’t get up and go in the other room, didn’t stop what was going on.”
Responding to Ms. Ellen’s essay at The Toast, Mallory Ortberg writes, citing phrases Ms. Katz used to describe the encounter. “A woman who says ‘No thanks, I’ll sleep on the floor’; a woman who freezes up and tenses at your touch; a woman who says ‘I really don’t want to’ and ‘We really shouldn’t’ and ‘We can’t’ and ‘Please at least wear a condom’ is not saying yes to you, and if you would like to pretend that that is unclear, you are a liar, you are being disingenuous, you are lying and you know it.”