Accidental Assault, Due Diligence, and Consent
Here’s a question that someone sent to me that is definitely worth asking:
Is it possible to accidentally sexually assault someone?
My short answer: yes. And I think there’s a lot to say about this.
One of the biggest difficulties when we’re talking about sexual assault and consent is the question of what consent is and how we know when someone has given it. Some folks will say that if a person says “yes,” that’s sufficient. I think that’s an overly simplistic perspective because there are a lot of reasons that someone might not be able to say no. They might not believe that they have the right say no, or they might think that it won’t make a difference or that it will will lead to unpleasant outcomes. They might feel fear, even if the other person has no intention or thought of violence. It might not even occur to them that they can say no. (Note- this might not be the legal definition of sexual assault, but for this post, I’m less concerned with the legality than how people feel about their experiences.)
It’s important to be mindful of the fact that saying no is a skill. It’s something that we need to learn, to be encouraged to develop, and to practice. And it’s something that we need to have opportunities to try in safe settings so that we can become more confident about doing it in sexual situations. People who think it’s easy usually seem to have a fairly limited understanding of how complex it can be.
One reason that Cuddle Parties are so amazing is that they give participants a chance to lean into their edges around physical contact, and with hearing and stating boundaries, all within a larger container in which actual sex isn’t going to happen. Learning a skill needs to take place in as realistic a situation as possible, which is why pilots learn in flight simulators and chefs learn in kitchens. Setting boundaries during sex is different from setting them in most other circumstances, so it’s no wonder that lots of people have difficulty with it. Most of us aren’t taught how to say yes or no to sex, and far too many people are taught that their “no” doesn’t count. There are gendered trends that affect that, of course, but that’s not the whole picture. Cuddle Parties, interactive workshops, sex therapy, and similar experiences create room to learn the skill of saying yes or no, or to make a counteroffer, or find another way to respond.
I’ve been on both sides of this. I’ve had sexual partners who didn’t tell me that what we were doing wasn’t comfortable for them. Some of them told me afterward, and unfortunately, there have probably been others who didn’t. I’ve also been the one who wasn’t able to speak up and tell my partner that I wanted something different, or that I wanted to stop. I know what it’s like to feel like my partner assaulted me, even as I recognize that they had no idea at the time. I know what it’s like to not say no and feel violated, and I know what it’s like to find out later that someone felt that way about an experience we had. Both sides of that are pretty awful.
How do we know that we’ve done enough to be reasonably sure of our partner’s consent? I think this comes down to is a question of due diligence. Due diligence is taking a reasonable amount of care before entering into an agreement with someone else. It acknowledges that we rarely have all of the information when we make a decision. It means that we do our best to get as many of the relevant facts as we can. And it also recognizes that there’s a difference between saying that we made a mistake and saying that we made the best choice we could with the information we had at the time.
When it comes to consent, my due diligence includes things like asking my partners to tell me what they want to do, in enough detail and with enough interpersonal engagement that I have confidence that they want to do it; sharing their STI testing history, and their safer sex needs; checking in with them often enough to feel confident that their ongoing consent is present, without doing it so much that it’s annoying; making sure that we’re sufficiently sober to be able to make decisions we’re unlikely to regret later; and choosing to not have sex with someone who doesn’t seem clearly capable of doing all of these things, no matter how hot they are. I also expect my partners to do all of those things in return. I’ve learned to do take these steps because I know that it’s possible for one person to feel violated or assaulted, while the other person had no intention or desire to assault them. I don’t want to be on either side of that again.
Of course, due diligence doesn’t mean that that situation will never come up. In those cases, all it does is help us know the difference between “something unfortunate happened” and “I hurt someone.” That’s not a small thing because I have more capacity to respond with support and care when I’m not feeling shame for acting dishonorably. I can acknowledge what I’ve done and the reasons behind my choices without taking on blame or shame for not being perfect or for not being able to read their mind. And once the feelings of injury and hurt are attended to, it gives us more room to rebuild the connection, whether sex is part of that or not.
So, yes, it is possible to accidentally assault someone, in the sense that we can do something that we didn’t realize they didn’t want to do. When that happens, we need to hold onto the fact that an injury happened AND the fact that we didn’t intend it. Those are equally important, although I find that healing works best when the fact of the injury gets attention first. And having said all that, it’s also important to be honest with ourselves about whether we’ve actually done enough to qualify as due diligence. We need to have the self-awareness and honor to be able to acknowledge when we could have done more. We need to be able to be honest with ourselves and our partners about whether we really did the best that we could.
Whatever the specific situation, accidentally assaulting someone can be a tough thing to heal from. It’s a different experience than being the one who was hurt, and both of you deserve the space to do what you need to do. It’s important to get some help with figuring out whether you really did your due diligence, with getting the support you need to learn from the experience so you can develop new skills, and to be able to take responsibility without without sinking into a shame spiral. I strongly suggest getting that from someone other than your partner, because they’re too close to the situation to be able to give you the care you need. And while you might be willing and able to offer them some help, they need to get at least some of their support elsewhere, for the same reason.
So there’s the long answer to your question. If this is about a situation that’s happened to you, whichever side you were on, I hope you get what you need to be able to move forward.
This is by far the best piece I’ve read on this highly inflamed topic – realistic and clear. Thank you.
Due diligence means knowing yourself, not just knowing your partner(s). That means not putting you or anyone else in a situation that exceeds your risk tolerances. Great post!
Very well explained, Charlie. I’m glad you mentioned it on the AASECT listserve. If it’s pemissable, I’d like to give it to my students in The Psychology of Human Sexuality. It would be a good discussion starter. Let me know if this is OK. You can send me a message on Facebook.
Marian Shapiro, MSW
Santa Barbara City College
I’ll just add a mention of the concept of “enthusiastic yes”.
Sometimes people give a half-hearted yes when they are really unsure, and you don’t really want to proceed with a partner who is unsure. A good policy that goes along well with your “due diligence” concept is to always regard anything less than an “enthusiastic yes” as a NO.
Ramon Selove, Say what ??? always regard anything less than an “enthusiastic yes” as a NO ??
So No means NO and YES means YES……unless it means NO. Nuthin’ like clarity and clear communications. Sounds like politically correct claptrap disguised as sensitivity.
Not really. It is an acknowledgement that people don’t always feel free to say no. The ability to bully someone into saying yes should not be confused with consent.