Feminism | Posted by Fiona L on 06/6/2014

Erasing the Gray Area: Why Enthusiastic Consent Is Essential To Eradicating Sexual Assault

Yale University

One Friday evening this spring, I stood in the courtyard outside my dorm with a friend. The sun was setting and students were performing their pre-party rituals around us. It was the first temperate day of the semester and a surge of giddiness seemed to have engulfed the campus. Yet I’d spent the last hour and a half consoling my friend, who was grappling with the process of filing a complaint of sexual misconduct against a fellow Yale student.

It wasn’t the first time I’d found myself in this situation. In my time at college, I’ve heard many stories, generally from heterosexual women, ranging from hazy one-night-stands that went further than intended, to dance-floor-make-outs that felt pressured, to sexual encounters in which the victim was inebriated past the point of consent. These women have all expressed that something was wrong or displeasurable about their sexual encounter, but few have been entirely confident in placing blame. One thing they all agree on, however, is that they never would have done to someone else what was done to them under those circumstances.

At Yale, freshmen are required to go through sexual consent training based on the concept of “positive, unambiguous, and voluntary agreement.” During these workshops, students explore the concept of non-verbal consent through skits in which they ask each other out for frozen yogurt. The skits involve one person taking on the role of the asker and the other taking on the role of either an enthusiastic or reluctant respondent. The exercise is supposed to demonstrate that even when a person is trying to be polite, and not verbally objecting, it’s easy to tell if that person isn’t interested in participating in an activity. In theory these workshops emphasize the importance of non-verbal cues and empathy, but the “froyo skits” have been the source of much amusement, criticism, and ridicule. This is due not only to bad acting and the somewhat ludicrous substitution of the word “froyo” for sex, but to the idea that something so lighthearted can stand in for every possible violation of sexual misconduct–from sexual pressuring to penetrative rape.

In a recent Time magazine article, Jed Rubenfeld, a professor at Yale’s law school, criticizes Yale’s standard of sexual misconduct for being “overbroad,” and not allowing room for the gray areas that arise within sexual encounters. Rubenfeld writes:

“If two Yale students are kissing and one of them touches the other sexually, that person has apparently committed sexual assault (unless they stopped and negotiated in advance) even if they’ve done it before.”

 At first I was disturbed by Rubenfeld’s assumption that sexual boundaries are irrelevant if the participants have engaged together in sexual contact before. I also took issue with his implication that without verbal consent, it’s impossible to tell whether someone would like to be touched sexually. I believe that humans have the capacity to perceive whether or not others want to do something, and that, accordingly, there should be no “gray area” during a sexual encounter; anything less than enthusiasm should be perceived as an indication of reluctance.

However, after much thought and consideration, I do acknowledge that miscommunications can occur during sexual encounters, due in part to the discomfort many girls have with expressing enthusiasm about sex. In a perfect world, where both girls and boys are raised to be comfortable expressing sexual desire, gray areas would not exist. Unfortunately, many girls are taught that it is shameful to express sexual desire or initiate sexual encounters. When girls don’t speak up about what they want and enjoy, silence sometimes becomes code for “yes.” Many boys may therefore learn from sexual experiences that sometimes even when girls are interested in a sexual activity, they don’t necessarily express their enthusiasm. In the worst-case scenario, social norms blur these lines further by socializing girls to express reluctance about sexual matters, regardless of their desires. Boys are socialized to ignore the cues that girls give, but girls are also socialized to give the wrong cues.

For me this debate is as much about saying “yes” as it is about respecting “no.” It is about not only teaching our sons that sex is not a right to which they are entitled, but teaching our daughters that sex is a desire about which they can and should be vocal. “No” should mean “no,” but its meaning is weakened in a world where “yes” is rarely uttered by women.

The responsibility to encourage women to express and act on sexual desire falls on all of us. It falls on fathers who congratulate their sons for dating many girls at once, but joke that they’ll shoot any boy who comes near their daughters; it falls on peers who respect a boy who is forward in sexual encounters, but ridicule a girl who acts similarly; and it falls on the media to present more examples of heterosexual courtship that reflect female desire.

This is not to say that perpetrators of sexual misconduct should be exempt from punishment, or that girls should be blamed for conditioning boys to interpret silence as consent. In fact, I think that Yale’s “overbroad” definition of sexual misconduct is helpful, even if it does sometimes result in the punishment of men who didn’t know what they were doing was wrong. The campus code can educate people about the complexities of sexual misconduct and may even motivate partners to elicit verbal consent.

The women I know who have been victims of sexual misconduct all agreed that they would never have behaved as their male perpetrators did. They not only couldn’t put themselves in the shoes of these men because these men broke a code of conduct, but also because the entitlement with which most boys are taught to approach sexual encounters is inconceivable to most girls, who are taught to be bashful and passive about sex. Before we can truly move forward on issues of sexual misconduct, we need to eliminate the gray areas, by teaching both that “no” means “no,” and that it’s okay to say “yes.”

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  • Roberta @ at 8:36 am, June 7th, 2014

    I largely agree with what’s said in this article, but I don’t know if it’s possible to completely eliminate all ambiguity in sexual situations.

    You say it’s possible from discern, from body language alone, whether or not someone would like to be touched sexually. This is true, but only after the touching has already occurred.

    Imagine that a man and a woman are consensually kissing. The man would like to move to second base, but is not sure if he should. He’s reading the woman’s body language and she seems to enjoying the kissing. He lowers his hand to the woman’s buttocks, and immediately senses her tense. He quickly removes his hand and apologizes.

    Hasn’t that man already committed sexual assault? How is he to tell, from body language alone, whether or not she wants him to touch her IN ADVANCE of the actual touching? She seemed eager and comfortable, but that could just mean that she’s enjoying the kissing. Not that she’d be comfortable with anything more.

    He could ask, of course, but even then miscommunication is possible. Let’s say the man stops in the midst of kissing and asks: “Can I touch you?” That’s far from an unambiguous question. Touch her where? With what? For how long? How hard? Aren’t they already touching? (kissing with arms around each other)

    He could be more explicit, but that creates other problems. He could ask: “May I place my hand upon your breast?” What if he wants to touch her butt? Does he have to ask again? What if he stops touching her breast and then wants to do so again later on in the make-out session? Does he have to ask again?

    Does he have to ask to touch her breasts if they’re in the midst of intercourse?

    As I said, I agree with the thrust of this article, but human communication is an imperfect instrument. It’s impossible to completely remove all grey areas from any type of human interaction. At the end of the day, we have to rely on the reasonableness of our fellow human beings.

    The man in my scenario probably shouldn’t be reported for sexual assault, even if you could potentially make a case for it. At the same time, anyone initiating sexual contact has a duty to be as careful as is reasonably possible and to desist immediately when they sense that they’ve inadvertently crossed a line.

  • Ariel @ at 2:26 am, June 11th, 2014

    I think it would be simple enough to ask before hand how far things can go. And if your asking and the person says that they will decide as you go then it has to be talked out if that means that they will direct you to what kind of touching they are okay with or wanting or if you are allowed to roam with your hands until they put the breaks on. If you have sex with someone this should also be used. Especially for the first time the two have sex. And then go by that each time thereafter. It has to be said that if the release of women to be vocal about what they do and dont want is given that they will be. If you as a partner remove this cultural tape from their mouths they will speak. It really is as simple as asking what they want and are okay with, letting them list, and then going by that.

  • Josh @ at 9:08 am, June 11th, 2014

    Enthusiastic consent is a sham. What is enthusiastic? By whom is that definition defined? Also last paragraph projection of male bad female good. Same tired (ill)logic nonesense.

  • BurkeU @ at 9:50 am, August 11th, 2014

    It’s so simple. Form a Consent Under Negotiable Terms Committee and they can vote on consent issues. Two people can register for one of several consent forms before the date. These terms and conditions are even slightly negotiable.

    Here’s the kicker. The committee can monitor the event remotely and vote while the “transaction” is ongoing. “Is she thrusting her hips against the perp, as they are known in the trade, as she whispers “No, don’t stop”?”

    They can all vote. Is there a comma there or not? Of course, you need 100% vote one way or another to move forward.

    If the vote is less than 100% then the event can be cut short by an electric shock delivered to the collar around the perp’s neck.

    What man would fail to wear a collar in exchange for access to women’s Vaginas?

    I must say, you are a mature and politically astute crown here.

    I hope my small vote of support helps.

  • BurkeU @ at 1:59 pm, August 11th, 2014

    Of course you realize that the ideology behind this whole approach is simply Marxist class-warfare extended to the realm of sex: One victim, one oppressor and one great big mediator with the power of god in the middle. How nice, if you’re a Marxist. And if it doesn’t work out the way we planned? Oh well, we tried so hard, it felt so good, so right, and as a side benefit we got this great all-powerful government. Oh goodie.

    And if you’re not a Marxist? Well your suffering is unavoidable. Too bad for you.

    I don’t believe in Hell, but if there is one there is certainly a cold, cold place in it for the heartless, soulless monsters who turn humans into machines and humanity into politics simply because Marxism is simple enough for them to grasp and manipulate, so they did.

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