Wednesday, January 31, 2018

The Burden of Using Words to Talk About Consent

by Sherry F. Colb

In my Verdict column for this week, I draw parallels between features of Miranda v. Arizona  and police interrogation, on the one hand, and attributes of the words spoken between people before they have sex, on the other. In particular, I propose that like concerns that giving suspects the Miranda warnings would shut down custodial interrogation, worries that requiring a man to refrain from having sex when his partner says "No" would interfere with consensual sex turn out to be unwarranted as well. Indeed, the real problem with Miranda and with "No Means No" is that they do too little. Neither a suspect in custody nor a woman on a date consistently feels safe and comfortable enough to say no.

In this post, I want to focus on a related matter: Why should people have to use language at all to let one another know what they do and do not want sexually? Why can't they just be passionate together and read each other's signals? It seems so unromantic for people to discuss their sexual interests. For some, it appears, we might as well ask people to take a long, cold shower before having sex. Part of the fun is spontaneity and body language, leaving words behind. Isn't it?

First, telling a partner "yes" after that partner has checked in on your feelings can be romantic. It need not be robotic or bizarre. A poster hanging on the bulletin board at the high school of one of my daughters gives examples of what people can say to ask for and receive consent. The poster examples show creativity and lustful enthusiasm. And I got the impression that students participated in creating the posters. Adults can presumably do just as well.

Here is the problem, moreover, with refusing to make conversation a part of consent. Men are, as a general matter, somewhat inept at accurately reading women's nonverbal cues about their sexual feelings. Men are apparently much more likely to report that they have received nonverbal cues signaling consent than women are to report that they have given nonverbal cues signaling consent. This is worrisome, because it means that when men rely on nonverbal cues to let them know that they have consent for sex, they may be confusing wish fulfillment with consent. They may, in other words, be proceeding without consent but with the belief that they have consent.

Is their belief in consent "reasonable," under these circumstances? One could give two answers to this question. If reasonable means typical, then their belief could be characterized as reasonable. We might say the same of obstetricians in the Nineteenth Century who refused to wash their hands before delivering a baby after having performed an autopsy on an infectious corpse. Lots of other doctors were doing the same thing, after all. But did that really make it reasonable?

Not if reasonable means doing what one ought to do to avoid causing harm to others. If a doctor is told that his patients will stop dying of childbed fever if he washes his hands, as many doctors were told, his refusal to do so is outrageous. And if men are told that proceeding on the basis of nonverbal "consent" risks subjecting their partners to nonconsensual sex, then a refusal to get verbal consent at that point becomes culpable as well. Culpable behavior is unreasonable, even if it is all too common.

If all that people had to go on in sexual encounters were nonverbal cues, then relying on such cues might be unavoidable, and doing so in error would perhaps be excusable. But fortunately, most people who are having sex are capable both of communicating with words and of understanding verbal communication. Some people are also good at reading nonverbal cues, but others are not, and as with many pursuits, the people who believe they are highly capable may be the most incompetent of all. Neither they nor their more humble neighbors should be entrusted with the job of reading minds.

Interestingly, defenders of men accused of ignoring a woman's signals seem to understand that it is unfair to expect men to read women's minds (an expectation that no one had, in any event). If demanding mind-reading is unfair, however, then it is surely wrong to permit men to have sex with women (or with other men) on the basis of nonverbal consent, a form of mind-reading that is often an illusion as well. Historically (into the 1970's, that is), to figure out whether a woman consented to sex in the past--in the context of a rape trial--jurors learned such things as the woman's sexual history and what the woman wore on a date. These were facts that would supposedly help them assess the odds of consent. In connection with the Aziz Ansari story in Babe, in keeping with this tradition, someone I know said that "Grace" (a pseudonym for the woman who accused Ansari of sexual assault) had "practically stalked" Ansari at the Emmy Awards about a week before their date (because she had flirted with him). These are all inferences from forms of mind-reading about consent, and none of them works very well.

What such things tell us is whether the particular woman likes having sex and (perhaps) whether she wants her date to find her attractive. But even if we can tell these inner thoughts through a woman's external conduct, and we often cannot, whether she consents is another matter. A woman can have lots of sex with lots of men and then want to have a quiet, nonsexual date with the man she is with on a particular evening. That is her absolute right, however "unfair" it might seem to him.

And even if a woman wants a man to think she is pretty (as young women generally want to be perceived as pretty by the people around them), that does not mean that she wants to have sex with him. She might just want him to be attracted to her but not to act on that attraction. Perhaps, in old-fashioned (and misogynistic) language, that makes her a "tease," but again, even a "tease" has an absolute entitlement to be free of unwanted sexual contact. Part of the thinking behind calling a woman a "tease" is the outdated and dangerous idea that once men become aroused, they cannot stop themselves from having sex with whoever aroused them. An expression like "you look ravishing"--a compliment that tells a beautiful woman that she looks rape-able--is testimony to this mindset.

It is difficult not to suspect, then, that when people try to come up with reasons to spare men the burden of having to seek verbal consent for sex, what they may be attempting to do is to replace actual consent with behavior that makes a partner really, really want sex. We might call this "waiver" through which a woman (though it can be a man in same-sex relationships as well) forfeits her right to refuse to have sex once she does some number of things triggering male desire (flirting, going out with a man, going to his home, kissing him). The right to refuse sex cannot, however, be "waived." That is why we no longer have an exemption from rape laws for people who rape their spouses. Marriage is not a waiver of the right to refuse consent. Consent, as in all other zones of life, means a communication of one's willingness to participate in what is about to happen. A simple check-in ("Is this okay?") followed by "Yes" is not burdensome, unless one is burdened by the possibility that if the question is posed, the truthful answer will not be to the questioner's liking.

It would not be that surprising if it turned out that men, who are physically stronger and more dominant than women in virtually every sphere of life, had somewhat distinct desires in the bedroom, desires that have unilaterally defined what is supposed to happen in a sexual encounter. This means that a woman could actually be attracted to a man but have a set of things that she wants sexually that is quite different from the sexual program that the man would set. Reading sexual desire in a woman's eyes--even if one reads it correctly--might therefore mean something quite different from what the reader thinks and hopes it means.

One context that could be surprisingly helpful in moving people from silent presumptions to conversation is the world of BDSM. I have learned about this world from the writer and podcast host Dan Savage, and my understanding of it is that people within it have to talk in advance to make sure no one does anything that his or her partner does not want. Parties also have a "safe word" or gesture that they agree to use to communicate that they want things to stop immediately. The point of such a word is to override whatever games a couple might be playing in which one pretends to be resisting what the other is doing while actually enjoying it.

One likely reason for conversing about BDSM plans and for having a safe word is that when the activities involve force and controlled violence, it is unsafe to presume that both parties are game for whatever either one happens to want to do to the other or that things can just continue as long as anyone is having a good time. As a consequence, though, there exists a community that can serve--at least in the communicative respect--as role models for those engaging in so-called plain vanilla sex. Those who think that vanilla sex properly follows a script that everyone is going to like turn out to be mistaken, as we see from all of the "bad sex" that people have been describing. If people can check in with one another and make sure everyone is comfortable, then it will be easier for those imagining that their sexual encounters are consensual to find out and act on the truth.

Ideally, women have begun and will continue to be more communicative not only about what they don't want but about what they do want in sexual relations. But in order for that to happen, a conversation has to start. If men proceed in their sexual relationships as the fictional characters do in the movies, then people will walk through apartment doors, start ripping clothes off, and follow the wordless script they have absorbed. In film, of course, the characters are all loving what is going on, unless there is force and/or resistance or the audience is intended to judge what they see to be a rape. In real life, however, there are inevitably gaps between what the two (or more) people in a romantic encounter are thinking and feeling. To ensure that no one ends up a victim of sexual assault, people would be well-advised to begin communicating about their desires. With words.