A couple of weeks ago I posted a critique of another historian/blogger’s essay about campus sexual assault policies. That post spurred a long back-and-forth in comments about the concept of “enthusiastic consent” — a standard under which consent is defined not as the absence of objection but as enthusiastic participation.
At the time, I said that I wasn’t endorsing enthusiastic consent as a legal standard or as a standard to be used in campus judicial proceedings, because I hadn’t done enough research to have a settled opinion on the question. Since then I’ve done a little more research, and I’ve done a little more thinking.
This morning I read a post from the abyss2hope blog that helped me clarify some of the stuff I’ve been mulling recently. For starters, the post relies on the concept of affirmative, rather than enthusiastic, consent, and I find that language far more appealing.
Enthusiastic consent is a great concept when we’re talking about what makes good sex, or what makes ethical sex, but it’s a little blurry for use in a court of law. Consent is properly an either-or proposition — either it exists or it doesn’t. Enthusiasm, in contrast, is a sliding scale. You can be a little enthusiastic or a lot.
The concept of affirmative consent, in contrast, preserves the idea that consent is binary while articulating the definitional shift that’s taking place. As Marcella at abyss2hope puts it, traditional consent defines consent as “opt out,” and affirmative consent defines it as “opt in.”
What does this mean?
Well, it means that in a traditional definition of consent, a person initiating sexual activity is free to operate under the assumption that consent exists until consent is explicitly withdrawn. When you initiate sexual contact, you’re presumed to have a green light to keep moving forward until you’re told to stop.
Under an affirmative consent model, consent can never be assumed. It must always be confirmed. Both parties must “opt in” for consent to exist. When you initiate sexual contact, you have an obligation to pay attention as you go to whether your partner is receptive.
And no, this doesn’t mean you have to get a verbal “yes” in response to each act. It just means that if one person is doing all the initiating, that person needs to be responsive to their partner’s reactions. An overt affirmative response, whether verbal or non-verbal, constitutes an opt-in. In the absence of such a response, you back off or you ask what’s up.
That’s it. That’s all there is to it. If you don’t know whether your advances are being well received, you don’t keep advancing. Pretty simple.
As for the question of whether such a standard can work in a legal setting, Marcella points out that we know it can, because it does. Here’s how the state of Minnesota defines consent:
“Consent” means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.
Consent, in the state of Minnesota, requires “words or actions … indicating a freely given agreement to perform a particular sexual act.” It is not satisfied by a showing that the complainant “failed to resist.”
And I have to say, I’m sold. As a legal standard, this strikes me as straightforward, reasonable, and proper.