What's So Confusing About "Enthusiastic Consent"?

Not being a rapist appears to be hard work for some of us.
Publish date:
July 7, 2015
rape culture, enthusiastic consent, campus rape

Nearly a year after California passed its landmark "affirmative consent" bill — only have sex with people who enthusiastically say yes to sexytimes — a "Washington Post"/Kaiser Family Foundation poll reveals that a whole lot of college students still don't really get the affirmative consent thing, reports RH Reality Check. This is, to say the least, rather troubling, given the fact that many advocates presented the bill as a cornerstone in fighting the college rape crisis. If people don't really get what the bill is mandating, and don't understand their role in it, we're back at square one with having to educate people about sexuality.

Here's the thing: I really think most people don't want to be rapists. A very small percentage of the population rapes, with estimates putting the current rapist population at about six percent. However, a lot of people don't understand consent and sexuality very well, and that leads to the dreaded "gray rape," which isn't about "bad sex" or any number of other euphemisms. It's rape, even if victims and survivors themselves struggle to define it as such, because they call it "rape culture" for a reason.

When we talk about rape, we often flippantly say that the solution to rape is that people shouldn't be rapists — if you don't want to be accused of rape, don't rape people. If you're worried you might rape someone, don't. These snarky shorthands sound great on the surface, but they don't really address the fact that there are people out there who genuinely don't know that what they are doing is rape.

That was the whole point of the enthusiastic consent bill, to drive people into thinking about sexuality and having proactive conversations about sexuality. Rather than assuming passive consent — he took his clothes off so he must have been interested in sex — the law requires that people specifically affirm that they want to have sex — "oh yes, please, do me, you handsome devil you." Yet, the poll shows that people are still having trouble grasping what "affirmative consent" means, which bodes ill for college students — especially women, who tend to be the most frequent targets of rape.

Participants in the poll were given three scenarios: Sexual activity when one person is impaired or unconscious, sexual activity when both parties are impaired, and sexual activity when both parties had not specifically and clearly agreed to sex. They were asked whether one or any of these scenarios would be viewed as a rape, and the results were... disappointing, to say the least.

Thankfully, most participants agreed that the first scenario was indeed a rape. That reflects years of advocacy and outreach to get people to understand that having sex with people who cannot consent is in fact rape. In the case of the second scenario, though, nearly 2/3 of respondents were unsure if it was rape, and 19 percent said it definitely wasn't. In other words, if both parties aren't able to consent by way of being under the influence, 19 percent of people think that's not rape — even though 96 percent of respondents thought that a situation where one person is sober and the other is not constitutes rape.

The divide highlighted the fact that people are still rather confused on how consent works and what it looks like. They could understand lack of consent in a sober on impaired situation, but not in an impaired on impaired situation, in which nobody involved has the capacity to consent to sexual activity. After years of advocacy work teaching people that people who are under the influence do not have the capacity to consent, we've seen people come to the understanding that if you're sober and you "have sex with" someone who is not, what you've actually done is rape that person. Two negatives in this case doesn't equal a positive, but people don't understand that, which is troubling.

In the case of the third scenario, respondents still had a tough time despite the fact that affirmative and enthusiastic consent have been dominating the news recently, especially in California thanks to the state's shiny new law. 47 percent of respondents agreed that when both people don't give explicit consent, it constituted rape, but 46 percent weren't sure, which is rather dismaying. Moreover, when you get into the fine grained details of these responses, more problems emerge.

What constitutes "consent" and "affirmative consent"? These are important questions to ask, because one person's definition of an active yes might be another person's passive yes or someone else's no. For respondents to the study, some thought that things like nodding, taking clothes off, and getting a condom were all evidence of consent. None of these things, notably, involve explicitly saying "why yes, I would like to have sex," though some imply a strong interest.

It feels a bit awkward — the result of a great skit on sex contracts, actually — to explicitly ask someone "would you like to have sex" and wait for a verbal response, and to keep checking in to make sure that everyone is still having fun. But being clear and direct is how enthusiastic consent works, and it doesn't have to feel stiff and clunky. It can be worked into foreplay, turned into an integral part of a sexual encounter as partners banter back and forth, tease, and check in with each other on what they are (and aren't) going to do.

Affirmative consent isn't something that comes naturally right out of the gate, but it's an important learned sexual behavior. Many students are arriving on campus with poor sexual education in general, and really poor information on affirmative consent standards. While 83 percent of students have heard of affirmative consent — whether their colleges set such a standard or not — many of them still don't actually understand its mechanics, which speaks ill of the way we're preparing our youth.

This is clearly closely related to our terrible sexual education standards and the fact that people in many states barely even get sex ed, or receive abstinence only and nothing else. When these students graduate and go to college, they don't know how to negotiate their own sexuality and that of others, and some people pay a very high price for it. Maybe it's time to have a little "How Not To Be A Rapist!" class as part of college orientation, perhaps with some killer Powerpoint slides.

I mean, if we tell people not to be rapists, we should probably teach them how not to rape first.