Who Controls Consent?

Posted: December 14, 2013 in Uncategorized

There’s been a lot of chatter over maymay’s and my recent essay You Can Take it Back: Consent as a Felt Sense which argues that “consenting” does not mean “giving permission” but rather “having an internal experience of okayness.” One of the concerns that’s come up over and over is the fear that this gives survivors of sexual violence too much control over determining whether or not we were raped; so much control, in fact, that it might be bad for us.

I’ve heard this very same concern expressed from everyone from your run-of-the-mill rape apologizing MRAs to progressive feminists with a background in survivor advocacy. Being a progressive feminist with a background in survivor advocacy myself, I understand how, at first blush, the ideas discussed in “Consent as a Felt Sense” might initially sound problematic for survivors. But the exact same fear is being expressed by people on opposite sides of the political spectrumg (if we can really call Survivor Advocacy vs Rape Apologism a “political spectrum”) and each of those sides attributes our ideas to the “other side” (rape apologists think we’re “radical feminists” and radical feminists think we’re rape apologists.) This cross-armed fingerpointing is generally a sign that the “problem” with an idea is not that the idea is inherently problematic but, rather, that it doesn’t fit easily into the current political binary around that topic. In other words, we’re saying something new.

New ideas take some time to understand and sometimes require painstaking explanation. Certainly, we wish that our ideas and other tools for fighting rape culture would just make sense off the bat and be widely incorporated right away. Because the sooner that happens, the better things get for survivors faster. Maymay has an observably visionary track record of instigating positive social change; I have a great deal of faith in my own intellectual clarity, political integrity, and interpersonal compassion; and peoples’ actual lives are at stake. But since that’s demonstrably not enough (and perhaps it shouldn’t be) to get most people to give a new idea the benefit of the doubt, to try building on it first rather than just trying to poke holes in it, I’ll give the painstaking explanation thing a shot. (Much thanks, as always, to maymay for being the world’s best sounding board and for thinking through these ideas with me.)

I want to address these two concerns — that consent-as-felt gives survivors too much power, and that the power it gives survivors could be harmful to us — separately, so let’s start with the first one. What kind of power does a consent-as-felt model gives survivors that we don’t already have? First, we need to understand what each of these two models is doing with consent.

“Non-Consensual Sex” vs. “Sex I Did Not Consent To”

A consent-as-permission model is using “consent” as criterion to assess sex. In a consent-as-permission model, sex is defined as “consensual” if all the people involved agreed that X would not happen and then X did not happened. It is “non-consensual” if people agreed that X would not happen, and then X happened. The focus is on whether or not the sex itself met the conditions of the contract.

A consent-as-felt model is using “consent” as a criterion to describe human experience. In a consent-as-felt model, our focus is on the experiences of the people having the sex, not on the sex itself as an abstract object. We want to stop arguing about whether a particular instance of sex between Bob and Andy was, itself, objectively “consensual” or “non-consensual” and instead concern ourselves with the questions, “Did Andy consent to the sex he had with Bob?” and “Did Bob consent to the sex he had with Andy?”

Here’s an analogy that might help clarify the distinction I’m making: Sometimes, people engage in an activity together and we ask if they “had a good time.” When I ask Bob and Andy, “Did y’all have a good time?” I’m not asking if the time they had was objectively good. I’m asking about how they each (and collectively) experienced their time together. If Bob had a good time, and Andy had a good time, then chances are they might say, “Yeah! We had a great time together!”

But maybe Bob had a great time and Andy had a terrible time. Maybe Andy had a bad time because of Bob, or maybe Bob knew Andy was having a bad time and didn’t care, or even wanted Andy to have a bad time. Or maybe Bob thought Andy was having a good time, maybe he even asked and Andy said he was having a good time, but he wasn’t. Maybe even Andy thought he was having a good time, at the time, and then later he looked back and thought, “Whoa, that actually wasn’t fun at all.” Or maybe Andy feels kinda mixed about the situation and isn’t really sure whether he enjoyed himself or not.

In all of these situations, what remains the same is that Bob’s (or anyone else’s) second-hand assessment of whether Andy had a good time doesn’t change whether Andy actually had a good time. So, it’s ridiculous for people who are not Andy to get into an argument about whether not Andy had a good time. And it’s even more ridiculous to argue about whether “the time Bob and Andy had together was good” based on whether Bob’s or Andy’s experience of that time is more valid.

Likewise, when we talk about consent, asking “Did Bob and Andy have consensual sex?” is akin to asking “Did Bob and Andy have a good time?” What matters is not the objective goodness or badness, the consensual or non-consensual quality, of the “time” itself. What matters is what Bob and Andy each experienced with regard to their time together.

Did Andy have an experience that felt like rape? If he did, he did. Period. Andy experienced rape. We don’t need to take our assessment any further. Andy had a bad time. We don’t need to start asking weird existential questions about whether that means, abstractly, that “the time Andy and Bob had was bad.” We need to start asking questions like, “How is Andy doing? What does he need right now? Why didn’t Bob notice or care that Andy was having a bad time? How should we let Bob’s other friends know about that? Who’s the best person to talk to Bob about this? Is this a worst-case scenario in which the only solution is to prevent Bob from spending any more time with people? If so, what’s the most ethical way we can ensure that happens?”

Notice that in the example above, punishing Bob is pretty low down on the To Do List compared to taking care of Andy, taking care of Bob and Andy’s community, and getting information about Andy’s experience to other people who might need it. Consent-as-felt still has space for strategizing around “deterrence”, but it’s not the be-all end-all of the consent conversation.

This focus on responding to survivors’ often fluid and complicated internal experiences first, rather than on determining the Objective Verifiable Consent Status of a Given Sexual Instance, is a problem for a consent-as-permission model, because consent-as-permission is first and foremost about putting people in jail. Instead of asking people who have sex, “Hey, how’d that go? Did you have a good time? Do you need anything?” it hangs a big glaring neon sign above our bedrooms blinking, “ALL TIMES MUST BE GOOD TIMES. BAD TIMES ARE PUNISHABLE BY LAW.” It’s no surprise that consent-as-permission then leads to some totally wacky, neurotic, self-destructive, and dangerous self-signaling and social-signaling around whether or not we’re actually consenting to stuff.

So, what is the power that consent-as-felt gives survivors that we don’t already have under consent-as-permission?

It doesn’t give us the power to redefine historical facts. But that’s because whether an instance of sex was “consensual” or “non-consensual” is not a factual descriptor of sex itself; it’s just a shorthand way of talking about whether the people involved felt okay about the sex they had. It gives us the power to reassess our own experience — and it claims that what we actually experienced matters more than what other people think we “should” have experienced based on “the facts” about what happened in the situation.

Consent-as-felt gives survivors the power to name our experience of a situation as consensual, or non-consensual, or “not exactly non-consensual but not the most consensual thing I’ve ever done,” or “I’m not really sure right now. It’s complicated. I feel sort of weird about it,” etc. in whatever way feels most true to us at the time. And it says that’s what matters most.

Consent-as-Felt in a Victim-Blaming Culture

Now I’ll go back and address the second part of the concern, which is that having this kind of power is dangerous for survivors in some way. Arguably, because if we give survivors total control over determining whether or not we were raped, then if we do decide to call our experience “rape”, that makes being raped our fault.

Or, as Crosswords puts it in this post:

If consent is a felt sense, then the onus of consent falls on the person whose consent has been violated. If someone feels that their consent has been violated, and consent is a felt sense, then it removes the fact that the person who violated consent purposefully did something wrong. In a sense, rapists are no longer responsible for rape in this model. People who feel raped are responsible for rape.

Suggesting that by describing my experience as rape and saying that matters more than anybody else’s description of my experience, I’m now “responsible for [my own] rape” is technically true in some kind of very esoteric linguistic sense; but in the real world, that’s a type of victim blaming. By choosing to call my experience “rape” based on feeling like I’ve been raped, I haven’t absolved the person who raped me of raping me. Quite the opposite. I’ve said that person who raped me did rape me no matter what anybody else says about it.

So, let’s take one more look at our analogy about having a good time. Let’s say I run into Andy somewhere and I say, “Hey! How’s it going? I heard you and Bob hung out! He said you two had a good time.”

And Andy says, “Seriously? He said we had a good time? I mean, we were supposed to get together and study for the test on Monday. But, first of all, he picked me up an hour and a half late. And then he had to run, like, seven errands, so that took another hour and a half. And probably half an hour of that was me sitting in the car idling outside of this super sketchy house on the edge of town while he was in there doing some kind of drug deal. When we finally got to the coffee shop where we were supposedly going to study, he spent the entire time talking my ear off about this girl he met at a party last week and how he’s ‘totally going to bang her’, and he was incredibly rude to the waitstaff, and knocked over an entire cup of coffee that drenched all my notes for the test. It was fucking stupid. At some point, he disappeared to the bathroom, probably to do whatever drugs he’d picked up at that house, and after that he was totally wound up and couldn’t sit still, and I just wanted to go home anyway, so we left. Out in the parking lot he got all hopped about doing some kind of Fight Club thing, and kept lunging at me and trying to get me to punch him, which I totally did not want to do, but I finally just agreed to punch him once so that he’d take me home, and then he HIT ME BACK! By the time I got home, I was just pissed off and exhausted and I didn’t get any studying done and I’m probably going to fail that test on Monday and now I have this fucking bruise on my shoulder. So, no, I would not say we had a good time.”

Yes, of course, there are going to be some assholes who hear this story and respond with, “Oh, come on Andy. That sounds like a good time to me. Bob’s a fun guy. You just have a bad attitude.” And, again, that’s victim-blaming.

Victim-blaming happens because we live in a culture of victim-blaming. Victim-blaming happens under consent-as-permission all the time. (“She said no.” “But she said no in her underwear.”) And no, consent-as-felt does not make the culture of victim-blaming go away. Victim-blaming is a problem, and it’s one that needs to be addressed. Since the way that society victim-blames survivors under consent-as-permission won’t work under consent-as-felt, it’s true that society will come up with new ways to victim-blame under a consent-as-felt model. And, yes, this might put survivors at risk — of more victim-blaming. Because, in a way, the devil you know is safer than the devil you don’t. But the fact that people who define consent as a felt sense will get victim-blamed, just like people who define consent as permission get victim blamed, is not an inherent problem with either one of those models; it’s a problem with victim-blaming culture.

Meanwhile, according to the consent-as-permission model, we should respond to Andy’s story with, “Whoa! That’s not studying! Bob said you’d be studying! Bob should never be allowed to study again!”

Whereas, in a consent-as-felt model, we start by saying, “Man, that sounds like it sucked. I’m so sorry Bob did that to you. Do you want some help studying for that test?”

This is not actually that different from the way survivor advocates, domestic violence shelters, rape crisis centers and, y’know, friends already respond to people who’ve experienced sexual violence. But because words define reality, we need our conceptual language to catch up to our compassion. Stat.

  1. Ms Mahler says:

    I’m afraid i’m over tired and not tracking very well, so I’ve more skimmed then read this. That said I’ve been thinking about MayMay’s ‘consent-as-felt’ on and off for a few weeks, and this has crystalized something in my thoughts.
    I think there is a language/perspective issue on this topic that people are mostly talking around without actually talking about. MayMay touches on it when they say that consent-as-permission is legalistic, but I think that full import of that is going to go over most peoples heads. God knows it took me weeks to go from “Huh, there’s something about that” to “big issue in 5 five words or less.”

    I think it basically comes down to a legal verse medical model of rape.
    If my leg is broken, legally it makes a big difference whether someone broke it intentionally, someone broke it accidentally, or I tripped and fell down the stairs. Medically, the doctors dn’t give a shit, I’m knjured and I need help.
    Consent as permission is, as maymay says, a legalistic approach–consent as permission establishes whether the violator acted out of intent, screwed up and hurt someone on accident, or did nothing ‘wrong’.
    Consent as felt doesn’t give a fuck about any of that, someone is hurt and they need help!

    Personally, I think have separate terminology for the two might be helpful for these discussions–just as we say that some whose leg was broken intentionally was battered but anyone whose leg was broken has been injured, we could say (for instance–other ideas and suggestions welcome) that someone whose consent-as-permission wa ignored ignored was raped and anyone whose consent-as-felt is breeched as violated.

    Apologies for any incoherence due to exhaustion.

    Also–people are seriously saying consent as felt harms survivors?? WTF!!!!!

    • Anne says:

      That sums up my own thoughts.

      I’ll add that the majority of people I have met already have huge problems correctly fielding and attributing legal concepts of consent (consent as a permission), which to me is the basis on which to discuss any additional problems.

      Yes, of course you may end up feeling that an inadequately performed activity feels, in hindsight, like rape. However, what are you going to do with that feeling? Calling someone a rapist who legally did nothing to earn that accusation is going to muddy the waters. I think that this may be what people are afraid of. I would be as well.

      • bandanablog says:

        Ms. Mahler has a good point about this problem being approached differently in different contexts: the legal-responsibility context vs. the harm-experienced context. I agree that it would be helpful to have different words to differentiate which one we’re talking about.

        I think that what Ms. Mahler has backwards, and what Anne has even more backwards, is WHICH word should be used in which concept. When I say “I was raped,” what I’m trying to express is not, “Somebody broke a law”; it’s “I was violated and meaningfully harmed.”

        It’s ridiculous to argue that we need some new and different word that survivors can use to describe our experiences of sexual violence, because the word “rape” is already taken by lawyers.

        What “muddies the waters” in this conversation is not “calling someone a rapist who legally did nothing to earn that accusation.” What muddies the waters is failing to call someone a rapist because we’re more concerned with whether or not they committed a crime, rather than with whether or not they actually raped someone.

        In short, if you don’t like people using the same word to describe “someone who sexually violated me” and “someone who can be proven in a court of law to have penetrated a vagina or anus without previously obtaining permission to do so” then YOU come up with a new word for the second thing. The word “rapist” is already taken, and it means the first thing.

        > I think that this may be what people are afraid of. I would be as well.

        That is, of course, exactly what people are afraid of — and they should be, if they’re rapists.

      • Ms Mahler says:

        As someone who has been raped in both the consent-as-felt and consensent-as-permission meanings, I used violated for consent-as-felt b/c I do not see my partner, who honestly thought he was doing what I wanted, stopped as soon as I was able to vocalize that there was a problem, and still left me with significant emotional harm, as a rapist. I also find it easier to have a conversation with a partner who violates me consent-as-felt if I say “I feel violated by what you did. I know I told you it was okay ahead of time, but it turned out really bad. What can we do/here’s what I need you to do to keep that from happening again,” as opposed to, “You raped me.’ (conversation immediately gets bogged down in assumptions related to emotional content of the word ‘rape’).

        That said, I’m perfectly open to applying words either way, I just think have seperate terms will help. If the consensus is that consent-as-felt harm are refered to as rape, and consent-as-permission are referred to as violation, or sexual assault, or something else entirely, I’m cool with that.

      • thirdxlucky says:

        My guess is that there’s never going to be real consensus on what any of these words mean, because experiences of trauma are so individual and complex. Using words the way you described, and the ways that works for you within your own relationships, makes sense to me. Someone else might need the opposite formulation in order to make their relationships make sense to them. Ultimately, words are communication — if they’re not communicating what you mean, you can change the words, or change the meaning. Mostly, I want to make space to complicate those conversations.

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