CONTINUOUS CONSENT Needs to be in your Repertoire

A couple weeks ago we were studying sex crimes in my criminal law class. We looked at different statutes regarding sexual assault, battery, and rape. We discussed force and consent. As we discussed Rose v. State I felt compelled to raise my hand and say something that I've written about, podcasted about and shared with students, "we don't teach girls to say no." This follows girls into adulthood.

If you are cultured female, you are taught to be polite, amicable, friendly and agreeable. The server brings the wrong order, we are encouraged to grin and bear it. Why then, in a moment of terror and extreme stress have we said, "this can't be rape because she never said no." She didn't adamantly resist therefore she is lying?

The answer of course is both simple and complex. Simple in that gender inequality is woven into the fabric of our society like racism. We do not see women as equal to men. We see women as a monolith who all should be concerned with beauty and pleasing men. This notion has slowly and vigorously been challenged in numerous waves of feminism (which tend to overlook black, indigenous, and latinx women who are deemed overtly sexual and labeled as sexual play-things). Even today its remnants are deeply embedded in implicit bias and we see that in our criminal justice system.

The idea of the perfect victim is too often the standard when survivors go to the police. A young, white able-bodied cisgender woman, who was sober when they were attacked by a stranger is more likely to have their case be heard. This goes against the statistics of sex crimes where many victims know their abuser, had consensual sex with them in the past, or were under the influence during their attack. The "perfect victim" completely excludes men or trans people. Even though we know at least 1 in 6 men have been assaulted in their lifetime and trans people are more likely to be the victim of sex crimes.

On Twitter this tweet, which I felt was simply a statement of fact proved to be extremely controversial. Let's unpack this tweet together.

"Many men aren't checking in with their partner." While I acknowledge that another problem with how sexual misconduct and assaults are communicated in our community is that we only assume men can perpetrate these types of crimes, when it comes to consent it is too often communicated as the burden of the man. This narrative excludes women as autonomous beings and ignores members of the LGBTQIA+ community. However, toxic masculinity and a culture which doesn't see women as autonomous is paramount in this conversation. This first line is simply explaining continuous consent, this idea that as you engage in sex acts you are asking your partner, "is this okay," "do you like this," "are you comfortable," etc.

Line 2, "if you don't do this you are selfish and most likely violating consent. We have this idea, that is forced into our minds, that consent is this one time exchange, where no means no and yes mean yes. It has evolved to be "affirmative consent" where we aren't looking for an, "I guess we can have sex," but rather an enthusiastic yes. While this is good, it gets people thinking and talking about consent, it leaves out the fact that it needs to be continuous. It doesn't matter if you are married. A marriage certificate is not a fancy way of saying, you always have consent to have sex with your spouse. It doesn't matter if you have had sex with someone before, you can still violate consent by assuming that if they gave their body to you before that means you don't have to bother asking again, this also means that while you are having sex you ask, if they are okay. People think this isn't sexy. I respectably disagree. If we draft a contract with all the sexual ways we plan on pleasuring one another, and  sign off on it-complete with safe words and descriptions, that's pretty hot to me, but maybe that's why I'm studying law. Also this idea that married couples shouldn't require consent is despicable but also plays into why spousal rape isn't recognized in all jurisdictions. How many people have had body issues? Maybe you had a child, gotten visibly older, gained/lost weight due to a change in medication, have a scar from a recent surgery or have developed a physical disability. This can all change how you view sex, especially with a long term partner. Things that you felt comfortable doing before, may now cause you a lot of anxiety. So consent needs to be discussed every time. The inverse is, you having sex in silence uncaring about if the other person is experiencing pleasure-which is the epitome of bad sex.

The next point made in this tweet is basically, conversation during sex is awesome. It enables consent but also pleasure. If you don't like something, if something is taking too long, if you aren't into it, all this needs to be communicated with your partner. If you don't feel comfortable doing so, perhaps this intimate act shouldn't be shared. Sex is awkward. We are naked and there are weird sounds and smells and there all these expectations. Communicating can help make it fun and mutually enjoyable.

If you think continuous consent is strange or disconcerting, that's years of enculturation saying that you deserve to receive pleasure and the person who is providing that deserves nothing more than to be present and silent. If you were encultured female and the idea of being vocal about what you like creates anxiety, discuss this with your partner. Safewords are great because they aren't the harsh "no," but a mutually agreed upon, potentially nonsensical word that has the same effect without having to overcome years of being told "you can't say no," during a pivotal moment.

So please, because the laws against sex crimes are only part of it, be sure to check in with your partners. Watch their faces, and pay attention to how their bodies react. If they scoot away from you, if their back stiffens, if they refuse to look at you, if they ignore your calls after. These are all indications that they weren't into it and you may have wanted to check in more. One last thing, continually asking for consent is not the same as "talking someone into it." If you ask, "do you like that," and their response is no. You don't say, "oh come on, you liked it before."

Be safe. 💜