It’s been really excited to see the progress of California Senate Bill 967. If it gets signed, it will require all universities that receive financial aid to use a standard of “affirmative consent” in disciplinary hearings about sexual assault. In a nutshell, it shifts things from “did anyone say no?” to “did everyone say yes?” According to the text of the bill:
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
This would be a huge step forward because it would recognize the way that sexual consent really should work. Of course, some people are freaking out about it. There are claims that it would require a written contract or other documentation. There are claims that if you’re not yelling “yes, yes, yes!”, it would be considered rape. There are claims that consent has to be verbal. In fact, none of these are true.
The thing is, I understand where some of these fears are coming from. Leaving aside the folks who are actual rapists (including the 6% of men who won’t call what they’re doing rape, but if you call it something else, they’ll admit to it), changing the rules of the game is scary. We live in a culture that teaches and shames us into bad sexual communication. We shame men who don’t want to have sex within a narrow range of acceptable activities. We shame women who express their desires or want sex more than we think they should. (And slut-shaming enables rape.) We’ve created a performance model of sex, in which people copy what they see in porn because they don’t know any better. I’ve worked with a lot of people who are miserable because they’re performing sex rather than enjoying it. So when we talk about shifting what sexual consent means, even when it’s for the better, we’re stirring up a lot of pain, triggers, shame, and trauma.
One thing we need to move through this is a more clear idea of what “affirmative, conscious, and voluntary agreement to engage in sexual activity” looks like. It’s a great phrase for a legal document, but unless you get turned on by that sort of thing, it’s a rather dry concept. As a sex & relationship coach, I want to see something that you could actually put into practice in the bedroom.
This is important because a lot of people really struggle with this. In “How to Not be ‘That Guy'”, the workshop that Alex Morgan and I created, we regularly get people talking about their concerns about going too far or about not knowing how to read the situation. And it’s not just cisgender men who say this. We hear it from people of all genders and sexual orientations, though cis men often have the most anxiety about it. In my coaching practice, I’ve worked with plenty of men who worry about it so much that their anxiety causes them to have erection problems. Many of them end up avoiding sex as a result. Fortunately, I’m able to share powerful formula for verbal sexual communication that can help make it easier to talk about sexual consent.
But as difficult as it can be to talk about sex with a potential partner, things get even trickier when we’re talking about non-verbal communication. There’s much more room for ambiguity, miscommunication, and misunderstanding when we don’t use our words. So I posted on Facebook to ask folks what non-verbal affirmative consent might look like. Here are some of the things people suggested. (Note: all of these bullet points came from comments on my post. Click through for some more.)
- Looking me in the eye and giving me a hand signal that says ‘come towards me’
- When I guide someones hands and place them on my body nodding yes.
- I think that the only real test of affirmative consent is when the other person takes initiative of her or his own accord–without prompting or pressure. Without stopping and waiting for that initiative, there is just too much room for misunderstanding, especially with a newish partner. For example, when offering a kiss, coming close enough almost to make contact but not quite, and waiting for a partner to bridge the gap–or not–communicates both my desire to act and my desire to be met, without words. If there is hesitation, then I know that more verbal conversation is in order, and that’s good. It saves much grief all around.
- Reciprocation. Guiding hands. Asking about preferences. (Is this ok? Faster? Slower? How is this?) Taking initiative, responding in like, exploring your body with their hands, etc. Look for things about the hook up that your partner seems apprehensive about, such as stiffening up, pulling or leaning away, or generally letting you do all the work –pretty good indicator that you are with someone who isn’t into it and probably cannot tell you or is scared shitless to tell you.
- Gripping, grabbing, pulling me closer, reaching for kisses, initiating position changes, following after a touch when it stops or moves, nuzzling, smooching whatever part is near enough, and playing with my hair are all signs of active, engaged enthusiasm for me.
I really like this list because it shows some of the many ways that we can show someone that we’re actively enjoying a sexual experience. Of course, there’s always the chance that someone is performing rather than actually expressing their pleasure. Non-verbal communication can be faked, especially if someone feels pressured into it. Plus, it lacks bandwidth and it’s ambiguous since two different people might have very different ideas about what any of these things might mean.
That’s why non-verbal consent can only be relied on when you already know your partner and how they respond. Until you have that foundation, due diligence suggests making verbal communication your standard. It’s unfortunately easy to do something that you genuinely believe your partner is enjoying and then find out later that they didn’t. I’ve been on both sides of that and it’s no fun.
It’s also worth thinking about the ways in which we can withdraw consent non-verbally and I’m glad that Alex pointed this out on Facebook with these examples:
- Grabbing and moving the other’s hands/mouth/other fun bits away
- Shifting one’s body to reduce or remove stimulation (turning the head away from a kiss, or shifting one’s hips to move an overstimulated clit out of reach)
- “Waiting” for the other party to move or change stimulation, offering minimal nonverbal signaling or responsiveness and reducing or withdrawing any reciprocation (note: this is a move that can indicate unwillingness to signal one’s own desires, and I consider it a warning flag that someone isn’t up to my speed)
- Freezing up, going non-responsive (this can be a trauma response as well, and as such the party in question may go non-verbal and be unable to state a verbal boundary; ALWAYS honor this as a firm no to whatever is happening and switch gears to comfort touch, checking in, and waiting if necessary for their words to return)
I get that paying attention to these things can be challenging when you’re turned on. Being able to drop into the experience, manage your sexual energy, and give attention to your partner is a lot to juggle. If you focus too much on your experience, you don’t notice what’s going on for your partner. If you focus too much on them, you miss out on your own pleasure. It’s a constant act of recalibration from moment to moment and it takes practice.
Familiarity with your partner’s sexual response, communication style, and sexual desires (as well as your own) make it easier. But that just means that if you don’t know someone well enough to be confident that you can read their non-verbal sexual communication, you need to talk about it before and during sex. Not just once, but as an ongoing part of the experience. Yes, understanding how to talk about sex and how to read non-verbal communication can be tricky. And if you want to not hurt someone, you have a responsibility to learn how to do it. There are plenty of books, websites, and coaches who can help you with that.
Ultimately, what affirmative consent really looks like is someone enjoying themselves. When everyone is saying “yes” with their voices and their bodies, that’s when you know that everyone is having a good time. Go look at that first list again and you’ll see what I mean. That’s why I find it so fascinating to read articles that ask things like “Are we in danger, in the rush to legislate, of ruining the moment?” Would your evening at a restaurant be ruined by asking someone how they’re enjoying the food? Would an evening at a concert be ruined by talking about whether you’re having a good time?
That’s why this legal shift is so important. Adopting the standard of “did everyone say yes?’ when investigating complaints of sexual assault helps us shift away from questioning the actions of the victim and instead, places an equal importance on the actions of everyone in the situation. It allows us to ask things like what they each did to assess their partner’s consent and how they each responded to that. It removes the question of what the alleged victim did to say no, and focuses on the issue of what was done to invite a yes. And it makes it harder for the folks who genuinely don’t care about their partner’s pleasure and enjoyment to pretend anymore.