Can You Consent to Sex in Advance?

Clipped from: www.ottawacitizen.com (share this clip)

Via Salon.com

There’s an interesting court case going on in Ottawa. The case revolves around the question of consent when someone is passed out.

According to the Ottawa Citizen (article taken down as of 3/9/11), a male-female couple negotiated an erotic asphyxiation scene in which he would choke her to the point of unconsciousness. When she awoke, it was to discover that he had inserted a dildo into her anus. And two of the core issues here are whether she consented in advance to whatever he decided to do while she was unconscious, and whether it’s possible to consent in advance.

Without knowing more details, I’m not willing to come down on whether I think that this particular situation was sexual assault. The Ottawa Citizen says that she did not explicitly consent to anal penetration and if that’s accurate, then yes, this was rape. But I don’t know whether that’s what happened so I’m not going to jump to conclusions.

I’m also going to leave out the safety concerns around breath play and choking to unconsciousness. I have my opinions about that, as do many other people. But I don’t think it’s relevant when looking at the question of consent in general.

What I think is more compelling here is the question of “consenting in advance.” It’s a tricky area, especially when someone is incapable of rescinding consent, such as when they’re passed out drunk or unconscious. But there’s an argument to be made that one can consent and set limits to that consent in advance.

As a comparison, I once took my car to the mechanic. There was a possibility that I’d need an expensive repair and I was going to be unavailable for a phone call. I didn’t want to delay the repair by not being able to talk with the mechanic, and I also didn’t want to authorize unlimited work because I had a budget. So I told the folks at the shop what my limit was and that, once they got in there and saw what my car needed, to go ahead if it would cost no more than that amount. If it was over that, I asked them to wait until I could confer with them. I consented in advance, while also stating my limits.

Similarly, if the couple in this situation had negotiated that he could choke her to the point of unconsciousness and then anally penetrate her with a dildo, it seems to me that, yes, there would have been consent for how things played out. If she rescinded that consent upon waking up and he stopped, great. If she took her consent back and he didn’t stop, then it would be sexual assault, just as it would be if the period of unconsciousness had never happened and she wanted to stop what they were doing.

While that sounds simple, it gets a bit more murky when we try to apply this to sex. For example, Tracy Clark-Flory at Salon.com confuses things when she writes:

The bigger question at play here is whether a woman can give legally meaningful “advanced” consent to sexual activity while passed out — whether it be from choking, drinking or lord knows what else. Clearly, the answer the Supreme Court gives will set a profoundly important legal precedent. If the answer is “yes,” a man accused of raping a woman who is passed-out-drunk could claim that she gave “advanced” consent to sex by drinking so much and getting into bed with him.

From www.salon.com (share this quote)

This is a red herring because if someone does not explicitly consent to sex, then drinking a lot and/or getting into bed with him simply doesn’t qualify as consent, any more than my taking my car to the shop would mean that I had consented to whatever the mechanic decided to do. Implied consent doesn’t count, which is why the repair shop had me sign a form with an estimated cost and a description of what they were going to do. If you don’t actually say “yes, I want to do that” or the equivalent, then you didn’t consent.

Of course, sex is not the same as taking your car to the shop. There’s a long history of sexual assault,  the notion that women give up the right to say no to sex when they marry (or accept gifts, or dinner, or…), the importance of being able to change one’s mind at any time during a sexual encounter, and other related issues. Add to that the difficultly of discerning what happened  when it comes down to a question of who said what and it’s even harder to get clarity. From that perspective, I can understand the argument that any sexual contact when someone is passed out is sexual assault, regardless of their prior consent. In fact, according to this comment, it’s illegal to have sex with someone who is unconscious or sleeping in California (I haven’t checked on this).

But I think that’s the wrong tack to take on this because it’s not based on the real issue here. If someone wants to consent to sex while they’re asleep, drunk, passed out or unconscious, then that would need to be explicitly stated in advance, with whatever limits they want to set. That would be meaningful consent and I disagree with a law that says that people can’t do that.

And to be clear, if something was not explicitly consented to in advance, then doing that to them when they’re unconscious is sexual assault. Even if a given sexual act is something that they sometimes consent to, if they didn’t explicitly say that it would be ok while passed out or asleep, then it’s not ok to do. That is, if you enjoy anal play and often do it, unless you specifically consent to it before you’re drunk or unconscious and someone does that to you, that would be rape.

To refine this even further, I believe that one of the requirements of consent in this sort of situation would be the understanding that being passed out drunk or otherwise unconscious is one of the things being consented to. If someone agrees to have sex, that doesn’t mean that they agreed to be plied with booze until they pass out. Nor does that mean that they agreed to have someone have sex with them while passed out. If their partner goes ahead and does that, that would be rape. Not because they didn’t consent to sex, but because they didn’t consent to sex while unconscious.

But none of this negates the possibility of making room for people to consent in advance to sexual contact while they’re passed out or unconscious. And I think it’s a mistake to say that such consent is invalid or meaningless. As long as we have the ability to say yes or no, and as long as we are capable of understanding what we’re agreeing to, I believe our consent is valid. Even if we give it in advance. I think that anyone planning to engage in that would need to be very clear about what they’re consenting to, what their limits are, and what they expect from their partner. For that matter, it’d probably also be good to get it all in writing, or at least an email.

Clearly, there’s a lot more to unpack around this issue than first meets the eye. And whatever the facts are in this particular case, my hope is that the outcome leaves room for people to engage in meaningful consent AND give them recourse if something happens that violates consent. Of course, this is a court case, so I’m not going to hold my breath, but I can hope.