Yes means Yes – feminist musings on consent in sex
The question of consent has moved greater minds than mine again and again. Legally, it is the foundation on which the definition of rape rests. Socially, the concept has caused innumerable problems, mostly because socially, we ourselves are not quite certain of it. Is a man having sex with a drunk woman who gropes him committing rape? Is a husband waking his sleeping wife with sex actually committing rape? Is the predator waiting in an alley just as culpable as the dominant tying up a woman? Or are there different kinds of rapists? The answer to all of these questions is yes. The difference does not lie in the act or the identity of the rapist – it lies in the question of consent. It needs to be said here that most of the points here could also be applied to men. The reason why I chose to concentrate on women is simply because the existing research on rape is mostly based on women and thus there is very little data regarding the effect on men as the victim.
Consent and the Law
Consent and the way we treat it has legal, social and most of all feminist connotations and all are closely linked to our historical and cultural understanding of the role of the woman.
Legally, here in the UK, the definition of rape as a criminal offence is regulated by the Sexual Offences act of 2003 and defined as:
“(1) A person (A) commits an offence if —
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to
ascertain whether B consents.”
Consent, in (b), therefore forms an integral part of the legal definition, but the problem is that legally and culturally our understanding of consent differs widely. Historically it was argued that marrying someone implies consent as sex is a marital duty of the woman. Culturally, there is still an element of this in the way we treat it. For example in regards to the question above — has the man waking the woman with sex committed rape? Our instinctive reaction is “No”, we might even consider his act romantic. What if we add the detail that she told him before bed that she will be leaving him the next morning and never again wants to be touched by him? This is where it is getting borderline. His act might be seen as a last ditch attempt to rescue the marriage, as something almost excusable for some. No matter, he had no reasonable belief that she consented to the act. It is rape. How about if we say these two are not married at all and they shared a bed in a youth hostel somewhere. Most would now argue that it is rape without a question – so some would still say that the fact that she got in the situation of sharing a bed means she consented, but in general we can leave the extreme opinions out here.
One of the reasons why this whole debate worries so many feminists is because in its very nature it is anti-feminist. Even in the definition of rape the woman is an object. “She does not consent” is, in many cases, interpreted to shift culpability onto the woman. It is not the act of the man which makes it the offence, but rather the lack of action by the woman. She did not give consent. Every part she has in it is passive. Even in our cultural understanding we often assign only passive aspects to the consent. She gave passive consent by the way she dressed, because she did not stop flirting, did not stop drinking.
In our cultural understanding, rape is defined more through the inaction or passive action of a woman, than through the offence committed by a man.
Consent and Feminism
Even anti-rape campaigns encompassed this for a long time. “No means No” was its slogan, the battlecry to unite behind. A woman saying “no” is what makes it rape. Why? The common argument has been that it is based on an over-sexualisation of the female body in our culture and society. That a woman’s purpose is sex is the underlying rhetoric of our lives.
I think the reason is rather the reverse – the woman lacks sexuality. She does not like sex, should never enjoy it whilst the man is seen as the perpetually sexed predator with an insatiable sex drive. The man needs sex always and the woman never wants it. A woman does not say yes to sex. Sex is perceived as an activity which is not enjoyable, or at least not as enjoyable, for the woman. It all hinges on her “no” – she is inclined to say it anyway and thus if the man does not hear it, it was not given anyway.
There is no requirement to ascertain consent prior to sex as she is biologically disinclined to give it. It seems that for a woman to engage in sex there needs to be an ulterior motive: pregnancy, marriage, wanting a man in your life. The “no” is the basic state of affairs and she just has to voice it. The flip side of this is, as sex is something shameful and uncomfortable for her, all her yeses are passive ones as well. Her clothes, a look, a drink too much ordered. The woman has no right to say “No” because she does not have any desire to ever say “Yes”. She is defined as a sexual object without independent sexuality.
Many feminists have therefore called for a change in the slogan. No more “No means No” but rather “Yes means Yes”.This is to shift the social awareness to the need for a man to ascertain consent before engaging in sexual acts. The onus of responsibility I therefore shifted to the man who has to actively ask for consent in contrast to waiting for the woman to deny the consent. Part two of the legal definition ((2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.) was shaped to reflect this in the 2003 act.
Consent and BDSM
It is interesting that one of the areas of sexual preference most criticised for glorifying rape is actually the one with the least problems regarding the concept of consent. BDSM is built around the concept of one partner consenting to give up power over his or her choices to another. Consent is the cornerstone which makes that partnership work (no matter how many units form part of a relationship there is always a partnership in regards to consent). Consent given at the beginning, but also consent that can be withdrawn over time. Without consent there would not be a transfer of power.
Rape fantasies and their enactment are often one of the most criticised aspect of BDSM play, though the fantasy is very common in mainstream women as well (Critelli 2008). The importance here however lies with the fact that rape fantasy is a misnomer. All partners consented to engage in the play and thus the fantasy is not about rape but rather about a form of forced seduction. The fantasy rarely involves any form of violence or the woman as a true victim – and in the case of the purely mental exercise as well as in the enactment the woman is a willing participant who is an active sex partner and enjoys the interaction. And, most importantly, the fantasy includes elements which make it clear that no harm is intended towards the woman, and that her fantasy partner would protect her against any possible harm. Her desire is purely not to take the first step, which is to approach a man to have sex.
Why? Why do so many women fantasise about not taking the first step? About not being given the choice to have sex with a man. The predominance of the fantasy could be argued to be related to the societal creation of female sexuality as something shameful and passive. A woman cannot affirm her enjoyment in sex as something good within our culture and thus dreams of having the “reprehensible” aspect taken from her. Most of these fantasies do not involve violence or, for that matter, see the woman as passive participant without reaching orgasm.
Our inability to allow the woman an active, hedonistic participation within sexual acts is the root problem for consent to sex, and thus rape, in our modern world. As long as we do not allow women to say “yes” to sex, there will not be a societal and cultural recognition of her right to say “no” either. She will remain the agent of the man.
Critelli, Joseph W., and Jenny M. Bivona. “Women’s erotic rape fantasies: An evaluation of theory and research.” Journal of Sex Research 45.1 (2008): 57-70.
Dr Nicola Corkin is an academic working in the areas of politics, law and feminism. She has a book on the topic of Erotic Fantasies and Feminism coming out in 2017.
This post is part of a guest series to promote the release of Show Me, Sir by Sonni de Soto.