We do not have a good way of talking about consent. Good in this case means, leading to more consensual sexual encounters, and more clear agreement about what is and isn’t okay, and who needs to take responsibility for what.
A lot of think pieces in the last few days have concluded that we need a new way of discussing consent, but I haven’t seen any propose such a way. Here I will make some pretty graphs that hopefully can start that discussion.
There is still a long way to go, so please chime in by leaving me comments here; this is really meant as a jumping off point.
[p.s. I say “men” and “women” a lot here but most of the time it is just shorthand for any victim and perp combo, regardless of gender]
We use language to differentiate between things that we agree are things. A baby experiences a stream of sensations that it cannot make sense of, but by the time they are an adult, they are constantly making sense of everything around them, more or less flawlessly. And we mostly agree about how to make sense of things; except for edge cases, we can all talk about “cars” or “wood” or “birds”, and know that we are referring to roughly the same thing. There are other things, like “love”, “dread”, and “tact”, that are harder to come to agreement about because they can’t be pointed at, and yet we have roughly come to agreement on them.
There are two “buts” to this statement.
Groups of people who share a culture (and often a language) that divide up the world slightly differently. For example, when you are thinking in a language that divides blue into two different colors, you’re quicker to tell them apart than when you’re thinking in terms of “light blue” and “dark blue”.
We all become experts in different things and to different degrees, and that means that we divide things even further than others in our culture in those domains. When we think about or even just perceive those things, we process them at lower levels of granularity. Instead of “wood” we think “mahogany”, instead of “car” we think “Honda” and instead of “bird” we think “bluejay”.
There is a certain amount of subjectivity to the way we split up the world that has no normative or value judgment, it’s just based on our experience of what has been important.
I would like to argue that the main confusion happening around consent is based on a difference of granularity in viewing sex, communication, and responsibility.
No one would blame someone for reporting actual rape (doubts of the validity aside for now), and everyone would be confused why anyone reported awesome consensual sex that wasn’t explicitly based on verbal “yes-es” at every step of the way. It is of course the grey area that we are worried about. Here is a rough sketch of the spectrum of quality of sexual acts as it relates to communication:
As much as it is tempting to say “consent is binary”, refusing to look at the grey areas is never going to lead to mutual understanding and better sex for all. And the grey areas are all about communication (which makes sense, since we’re talking about consent).
How can we nail down something subjective and on a spectrum? The way different people perceive it is based on their experiences and thus the granularity they see the world in. For example, someone without much experience may only see a few categories of communication. The simple categorization is: did communicate (and therefore it was either totally consensual or total assault) vs didn’t communicate (and therefore it was either a good hook up or it was the victim’s fault). Slightly more nuanced would be: enthusiastic consent vs ambiguity vs clearly refusing. It would probably be helpful to all get even a bit more granular than that with how we think of communication.
There’s also the granularity of responsibility. The simple view is the unexamined one: its the man’s responsibility or it’s the woman’s. Just defaulting to blaming the victim isn’t helpful but neither is painting men as predators. We need to get onto the same page of granularity, so we are all talking about the same thing and can all see sexual encounters, communication, and responsibility in a nuanced way.
Let’s look at the recent Aziz Ansari case, which has been the most in-the-grey example so far.
There is overall agreement that this is bad and also that this happens all the time: one party (usually the guy probably) doesn’t realize the need for communication. In his not-very-granular view, this is consensual because he isn’t physically forcing her to do anything. In this view, she’s free to leave, and everything she chose to do was her own decision. In the granular view, he failed to hear her attempts at communication, and failed to read between the lines because he wasn’t looking between the lines. He forced himself on her despite her communicating that she didn’t want it.
Critics of the original Babe article have mentioned that the details Grace describes are very small, like the incident of choosing the wine. This is a clue. She was paying attention at the granular level, whereas for him this probably processed something like “we both drank wine”.
That’s why the public discussion is so divided: we have two cultures, one that is differentiating between different types of wood (lol) and one that is simply saying “yeah, wood, I can use that to build a house”. Both expect everyone to process things the same way that they do, and thus cannot figure out when people get offended at small things or do not notice obvious signals.
Let’s get rid of the plausible deniability of a “bad hook-up”.
Bad is not just bad in this case, it’s unacceptable. In the new paradigm, the expectation is mutual communication. If communication isn’t happening, it’s either because there is no need because everything is going perfectly (in which case there is definitely still non-verbal communication), or it is a sign to communicate more. The responsibility falls to both parties. And if it’s unclear, that means it isn’t going perfectly.
Usually, the problem tends to be the combination of two things, to various degrees:
1) the woman doesn’t feel she can assert herself
2) the man disregards cues and feedback unless it’s incredibly direct
Of course, the man and woman roles can be switched, but regardless, both of these patterns need to be fixed.
We have to be able talk about the woman’s responsibility without victim blaming.
If you’re hooking up with someone and the communication isn’t happening, you’ve tried and it’s not working, it is on you to leave. You’ve gotten your information; you’re not on the same page and not capable of getting on the same page, at least at this time. Now you know for a fact that this person is going to process the kind of communication you want as “reading minds”, because according to his level of granularity, it does not register as perceptible.
If communication is successfully established, the worst a hook-up can be is “just okay”. If you stay despite learning that the other person is not communicating then you are putting yourself at risk. If we discuss this publicly, then women will get better at recognizing what is going on and feel more comfortable leaving when they begin to get uncomfortable.
I think that currently this is not common enough. Women are intuitively afraid that men will get aggressive, but way fewer men are willing to push past a firm “no” than are willing to ignore obvious but indirect cues. In the cases of sexual assault this of course won’t help, but in so many other cases, it will.
There was likely not reason to fear for her life in the case of Grace and Aziz. Rather, she confused herself by thinking that he is a feminist, or hoping to get into the mood, or being enamored with him, and only realized what was going on too late. (This is where “power” gets so interesting; she gave him power over her by caring what he thought. But this rabbit hole deserves its own article) My hope is that in a future scenario Grace would feel empowered to leave, assuming this is truly Aziz being oblivious and there is no serious reason to fear negative consequences.
If all discussion of the woman’s responsibility is quickly disregarded as victim blaming, we are continuing to deny women the agency to do what they feel is right in each moment, and actually perpetuating rape culture.
But there is a lot more responsibility men have to take on too.
In this new paradigm, they will no longer have the plausible deniability of “not knowing they need to/how to communicate”. You can no longer label everything you’ve never paid attention to as impossible to see. Start paying attention or you won’t get any unless you take it by force, and then you will have no plausible deniability.
Aziz, a 34 year old man, should not think that this is how hook-ups go. If the woman seems hesitant, check in. If she says something awkward but negative, take it as a no. She will correct you if that’s not what she meant.
Both sides need to take more responsibility for communication. Women need to be aware of when they are uncomfortable, and aware of how directly or indirectly they are communicating. Men need to err more on the side of processing ambiguity as a no. Neither victim blaming nor painting men as predators is going to fix this.
Counterintuitively, by making consent less binary, we actually allow more clear lines to be drawn.
Here we are going to define the grey area, and detail how to get out of it, so that ignorance will no longer be a viable excuse, for men or for women. Women will be expected to be forthcoming and remove themselves from situations they are not comfortable in, and men will be expected to err on the side of more communication and less sexual advances when the situation is ambiguous.
Complications: Power and Severity:
A power differential makes this even more complicated. If you perceive yourself as having less power, it is harder to speak up and affect the situation by force. This means that rather than being split equally, the responsibility falls more to the person with more power. With great power comes great responsibility. I just made that up just now but I think it’s pretty catchy, I think society can probably learn to remember that little phrase.
You can think of power as “ability to make stuff happen.” Let’s take this to the extreme to see the pattern: Imagine that you had a superpower: a very strong ability to make stuff happen, as in, if you just wanted something hard enough, it would automatically happen, even if other people didn’t want it. And now imagine you are hooking up with someone. You probably want to make sure they are only doing the things they want to do, and not just doing them because you want the things to happen and you have the superpower that makes things happen if you want them. So you check in. And even if they meekly say “no, it’s fine” you keep checking in, because you never know when your superpower/curse becomes the reason they are doing something. This thought experiment skips all of the details people tend to get caught up in when thinking about power, and just shows the most important part for us in this context: if you force someone to do something they don’t want to using your power over them, that’s coercion and thus sexual assault. It can be far from obvious when this is happening to the person who has the power, but it is still their responsibility to make sure that isn’t the case. (And to the degree that power is in the eye of the beholder, for the other person to not give people power over them.) The less skewed the power differential, the easier it is to avoid coercion.
This is very obvious in cases such as Louis CK. In his apology, he wrote that at the time he thought it was okay because he was asking permission, but he learned only too late that he didn’t realize he had power over the women and thus it wasn’t really true communication. This gets closer to the actual problem with power: it’s not when we realize it, but when we don’t realize it, that it can be the most destructive. And often we don’t realize it because it is in the subjective experience of the other person (e.g. they want us to like them for example, or they are enamored with our work). This leads some to say that power should be ignored altogether. But I don’t think that’s the way to go, since it is still so important. Rather, I think we should ask ourselves whether we have more power than we realize, instead of convincing ourselves we have less.
Or we can take the example of Trump: “when you’re famous, they let you do anything… grab em by the pussy…” In his very coarse view of these interactions, not saying no is permission. He is missing a few elements, but specifically, since we haven’t named publicly power as an important element in our discussions of consent, Trump had the plausible deniability to himself that those women were “letting him do it” or in other words, giving consent. If this were common knowledge, then we could easily say, Trump knew he had power, and therefore should have known better. Power should make it more difficult to actually get consent, not less.
It might be easier to think about this in very simple, everyday situations. If I have a guest, it’s on me to be hospitable and make sure that it’s not too hot or too cold in my house. Of course, my guest can ask for the temperature to be changed, but they will feel less comfortable than I do, since we are in my house.
By default, celebrities, bosses, etc. have more power than other people. Also by default, men can be thought of as having more power than women (in the sense of average physical capabilities). For this reason, women often discuss the fact that they have learned to “fear for their lives” and have internalized the need to “let them down easy” and “preserve their dignity”. (The “default” is almost never all there is to it, but it is a reasonable place to start.)
It doesn’t mean that with time, as people get to know each other, this can’t end up evening out, but that is because over time they can build a rapport in which there is not a power differential. Unfortunately, the way power differentials work is that those with more power get to be more oblivious. This is the trend we must reverse. Not through guilt and remorse for the past, but with a new language of communication and greater attention in the future.
One way is by discussing all the different ways it’s possible to have power and not realize it. Interestingly, I think there are quite often situations in which both parties feel the other party has more power. For example, often men have huge insecurities about women so even though they have physical strength or money or fame they feels the woman has more power over the situation, whereas the woman at the same time might be feeling that the man has greater power, and is accommodating to the point of not even checking in wither herself about what she truly wants and what is her wanting to please (and why!).
In fact, it’s unclear how it all shakes out if we include all the subjectivity and all the dimensions of power, but to put it simply, people need to take responsibility for any power they may have and consider how it may be coercive. There is a lot more to say here but it probably deserves its own article.
Dancing is not the same as kissing, which is not the same as groping, which is not the same as sex. This point is often brought up by those who are worried that too much is being lumped into the “problematic” bucket. This is true and it should be acknowledged. Again, by delving into the grey, we can actually make it more clearly black and white.
As severity of the sexual act increases, the stakes rise, and the consequences become greater. All this means is that the patterns described so far get more pronounced. There is less room for error when deciding how much needs to be communicated, and if you have a power differential, it has more of an effect on the division of responsibility.
The spectrum discussed above can also be pictured like the graphs below. The green indicates areas that are acceptable. Low communication is only acceptable when things are very clearly going very well. (And even then, nonverbal communication is expected; I don’t know anyone who lies limply when they are having the best sex ever). This means that if there is any doubt, there should be communication. And the person with more power should actively be looking for doubt. The general shape is the same, but the acceptable area gets smaller the more serious the encounter is.
Help! Now I know I have to, but I still don’t know how to communicate or how much I am communicating!
True, this will take some time to learn. But here’s a rough idea so you can’t just continue to get away with ignorance:
This framework helps explain our different reactions to different recent cases, and why public opinion sometimes doesn’t match the legal rulings. First, let’s see where each of the following men fall on our graph:
- Communication was nowhere near high enough but not crazy low.
- Power differential was high.
- Severity of encounter was very high.
- Quality of the encounter was low.
- Communication: got verbal consent but that’s it
- Power differential was very high.
- Severity of encounter was not super high,
he didn’t touch them.
- Quality of the encounter was very low.
- Communication was at 0, since she was unconscious
- Power differential was at max, since she was unconscious.
- Severity of encounter was very high, as they had sex.
- Quality of the encounter was very very low, since she was unconscious.
(Hot tip! You’re not going to score well if you have sex with unconscious people!)
The point is, none of these are anywhere near the acceptable range.
Heck, the average random hook-up is likely nowhere near the acceptable range. But the only way we’ll get to a point at which they are, is to be explicit about what we mean by acceptable.
Responsibility needs to be seen more clearly. There is no blanket approach: it is always shared. Usually BOTH the victim needed to be more careful/honest with themselves, etc. AND the perpetrator needed to err more on the side of ambiguity-means-no. Beyond that, the person with more power should take more responsibility. Most cases are not clear cut, and by painting them that way we are denying both men and women the opportunity to grow and be better.
Legal rulings on the other hand, deal only with the most extreme cases:
That doesn’t mean that we need to change the bounds of what is legal and make bad communication a crime. It means we need to contextualize it and get rid of (both willful and honest) misunderstandings. We don’t need to divide people into rapists and not rapists, or categorize interactions as consent or lack of consent in order to switch to a new paradigm. We need to heighten our granularity, bringing the situation into focus so we can see it more clearly.