No Means Yes If You Know How To Spot It

[bigfield]

Against their will? No? Without their explicit permission? That's how many people have sex all the time.

if you do not have their explicit permission, it is against their will.

It is quite possible - not to mention normal - for people to communicate their consent to sex implicitly, even subtly. To declare such consent not to be consent is absurd.

Based on your comment on Emily Lake's anecdote, I doubt that everyone in this conversation is using the same definition of explicit:

http://www.thefreedictionary.com/explicit
http://dictionary.reference.com/browse/explicit
http://www.merriam-webster.com/dictionary/explicit

Depending on which of the various valid definitions one uses, Emily Lake's anecdote could be interpreted as either explicit or implicit consent.

 

[RavenSky]

if your mind reading is inaccurate and you failed to get explicit consent, then it is assault. The point of explicit consent is to minimize miscommunication that results in sexual assault.

I still do not understand how anyone views this as a bad thing.

Because they don't think it works in practice?

and rape does?

People are used to conducting their lives on the basis of implicit communication.

examples?

Please use one of the examples already provided.

none have been provided.

He usually comes down the stairs from the shower, and waggles his twig and giggle-berries in my general direction while asking "Is it sexy time now?"

To which I usually reply "Oh baby! Sexy, sexy!" And promptly follow him up to the boudoir.

This is after 20+ years together.

Now that is explicit

No, it isn't. It's implicit, based on a mutual understanding. Exactly what the proposals ban as assault. That's the problem.

. No, it was explicit. By his actions and words he made it clear he wanted sex. By her words and actions, she made it clear she agreed. Could either of them have changed their minds once upstairs? Sure. That is why ONGOING consent is needed. But that exchange as described meets the very definition of "explicit"

No, it doesn't. This is point at which we disagree. You seem to think that anything that is blatant or obvious is explicit and thus covered by the rules. That all they really do is require people to be certain. That's not what they say. Explicit permission for each stage of intimacy means that at each stage of intimacy you have to get explicit permission for that stage. Jiggling at someone is an obviously invitation to something, but it's not explicit what it is an invitation for. Someone is perfectly entitled to jiggle at someone to encourage them to them to kiss them, or to take their clothes off, or to have penetrative sex, or to invite them to a threesome with their sister. But the jiggle by itself is not an invitation to sex, it's just an invitation, and it's ambiguous what exactly it is an invitation for.

What other meaning would you attribute to her husband waggling "his twig and giggle-berries in [her] general direction while asking "Is it sexy time now?""

Mutual masturbation? Oral sex? Naked wrestling? The point is not whether it is reasonable to attribute a meaning to the gesture, the point is that you are attributing a meaning, rather than it being explicit.

What other meaning would you attribute to her response: ""Oh baby! Sexy, sexy!" And promptly follow him up to the boudoir."

That could be anything from an invitation to make out to full sex. I'm not saying it's not fairly obvious, given the context. I'm saying it doesn't qualify under the proposed rules, because you're not explicitly seeking permission for each stage of intimacy. That's why the proposals are unworkable.

ex·plic·it adjective \ik-ˈspli-sət\
: very clear and complete : leaving no doubt about the meaning
: openly shown
:* fully revealed or expressed without vagueness, implication, or ambiguity :* leaving no question as to meaning or intent

At the specific point in time described by Emily, there was an EXPLICIT invitation to "sexy time" and an EXPLICIT consent in both word and action. You are jumping ahead to what may or may not have happened upstairs, but that is specifically addressed by the "ongoing consent" portion of the typical law/policy we have reviewed.

As I already stated, either party could have withdrawn consent once they were upstairs, but at the precise moment on the stairs that Emily describes, there was an EXPLICIT invitation (in every sense of the word ) and her EXPLICIT consent. Once upstairs, there would have been further invitation and consent communications that would have determined whether this particular "sexy time" was oral sex or mutual masterbation or hot doggy sex or swinging from the rafters. Ongoing explicit consent.

But I will again point out, since it seems to be getting ignored, Emily was discussing how she and her long-time husband communicate. Even if there is some implicit communication going on, no third party is going to be in their bedroom to leap out from under the bed and arrest them for rape because her wink implicitly but accurately communicates "I like that"

Where the assumption of implicit agreement causes problems is between people who don't know each other well enough to know what that wink actually means - situations such as the casual sexual hook-ups on university campuses that these law/policies are specifically directed to. "Implicit" by it's very definition includes assumption... and it is the assumption of consent where none actually exists that turns a sexual encounter into a sexual assault. The very easy fix for this is to simply check one's assumptions by getting explicit consent.

 

[RavenSky]

Works for whom? It certainly isn't working for the girls being raped.

Its works for some. We can't abandon any possible solution simply because none are perfect.

um... yes we certainly can. We, as a society, abandon "solutions" that work for "some" because the alternatives are really really bad for others all the time.

This is exactly what Athena was talking about... a case of blue balls is NOT as bad as a case of rape - for either party.

The problem with just "no means no" is that the absence of "no" does not automatically mean "yes"

The woman passed out drunk is not saying "no" but I don't believe you are advocating that this would be consensual sex.

No, I'm not, and I agree that absence of no doesn't automatically mean yes. But the passed out drunk problem is mainly a problem of being unable to meaningfully give consent. If the girl gave a giggle, said yes to something (who knows what?), and then passed out, that's technically consent, but it still seems like rape to me.

To take a less obvious example: hypothetical woman (perhaps someone who has been previously raped) and hypothetical man - one of those "persuasive" don't take "no" for an answer dudes Derec champions. The more he "persuades" the more she shuts down, but she never actually says "no" or even struggles. She just goes inside herself and tries to shut out what he is doing to her. Do you think he had consent?

No. Not implied consent, and not explicit consent.

yet she didn't say "no" - which is the only criteria you have advocated for: "no means no"

I think you are misunderstanding the meaning of the word "explicit" even though I have quoted the dictionary more than once.

 

[RavenSky]

if you do not have their explicit permission, it is against their will.

It is quite possible - not to mention normal - for people to communicate their consent to sex implicitly, even subtly. To declare such consent not to be consent is absurd.

Based on your comment on Emily Lake's anecdote, I doubt that everyone in this conversation is using the same definition of explicit:

http://www.thefreedictionary.com/explicit
http://dictionary.reference.com/browse/explicit
http://www.merriam-webster.com/dictionary/explicit

Depending on which of the various valid definitions one uses, Emily Lake's anecdote could be interpreted as either explicit or implicit consent.

I am willing to agree that Emily's anecdote could be interpreted as either explicit or implicit, mainly because the dictionary definitions of "implicit" are ambiguous - most using the word "implied" to define "implicit"

But in every definition of implied consent, there is an assumption of consent. That assumption could be accurate or it could be inaccurate. If it is accurate, no harm-no foul. If it is inaccurate, someone was raped and someone is a rapist.

It is to avoid the inaccurate assumption of consent that universities are setting the bar at "explicit consent".

Why would anyone think that a mistaken assumption that results in rape be the better option to simply getting explicit consent?

 

[RavenSky]

I think the examples in this Wiki article of situations wherein "implied consent" is considered valid to be an interesting contrast to discussion of sexual encounters: http://en.m.wikipedia.org/wiki/Implied_consent

An EMT has "implied consent" to put their hands on an unconscious accident victim in order to give aid. The victim cannot later object and say they didn't give explicit permission - not even if the woman is a Muslim and the EMT is an UN-related man and that touch goes against her every religious dictate.

The driver is deemed to have given "implied consent" to road-side sobriety tests by virtue of having a driver's license even if that idea twists the heart of every libertarian alive.

Is that really the standard we want with regard to sexual encounters on our college campuses? Guy assumes "implied consent" because girl wears short skirts and has a few drinks, therefore even if she tells you in no uncertain terms after that she did not consent - too bad so sad for her, he is immune from censure because he assumed he had consent?

From Law.com:

b) the defense in a "date rape" case in which there is a claim of assumed consent due to absence of protest or a belief that "no" really meant "yes," "maybe" or "later."

Is that really the standard we want?

 

[bigfield]

I am willing to agree that Emily's anecdote could be interpreted as either explicit or implicit, mainly because the dictionary definitions of "implicit" are ambiguous - most using the word "implied" to define "implicit"

But in every definition of implied consent, there is an assumption of consent. That assumption could be accurate or it could be inaccurate. If it is accurate, no harm-no foul. If it is inaccurate, someone was raped and someone is a rapist.

It is to avoid the inaccurate assumption of consent that universities are setting the bar at "explicit consent".

Why would anyone think that a mistaken assumption that results in rape be the better option to simply getting explicit consent?

People settle for implied consent because it is sufficient.

If you are conflating implicit consent with assumed consent then a further distinction in terms needs to be made. Implicit consent includes non-verbal communications which affirmatively communicate desire for sex without being explicit by any of the definitions of explicit found in this thread. That is not the same as assuming consent when there are no signs of non-consent.

To assume consent is to suppose one has consent without any evidence. If one infers consent by non-verbal signals, then one is not assuming consent.

 

[RavenSky]

I am willing to agree that Emily's anecdote could be interpreted as either explicit or implicit, mainly because the dictionary definitions of "implicit" are ambiguous - most using the word "implied" to define "implicit"

But in every definition of implied consent, there is an assumption of consent. That assumption could be accurate or it could be inaccurate. If it is accurate, no harm-no foul. If it is inaccurate, someone was raped and someone is a rapist.

It is to avoid the inaccurate assumption of consent that universities are setting the bar at "explicit consent".

Why would anyone think that a mistaken assumption that results in rape be the better option to simply getting explicit consent?

People settle for implied consent because it is sufficient.

Given the college campus rape statistics, obviously it is not "sufficient".

If you are conflating implicit consent with assumed consent then a further distinction in terms needs to be made. Implicit consent includes non-verbal communications which affirmatively communicate desire for sex without being explicit by any of the definitions of explicit found in this thread.

Wrong.

That is not the same as assuming consent when there are no signs of non-consent. To assume consent is to suppose one has consent without any evidence. If one infers consent by non-verbal signals, then one is not assuming consent.

Wrong.

I think the problem is that you (& others) are conflating "explicit consent" and "express consent". They are not the same thing, but every complaint against "explicit consent" in any of these threads appears to actually be against "express consent". A perfect example is the SNL video - as funny as it was, it was also demonstrating "express consent"

Every instance of "express consent" is also "explicit consent" but not every instance of "explicit consent" is "express consent".

Those of you who insist that Emily's example was "implied consent" seem to also agree that it was explicit, yes? There was absolutely zero room for confusion as to whether her husband wanted "sexy time" was there? And even if you want to argue that her following him up the stairs was implied agreement rather than express (written or verbal) agreement, there is zero doubt that it was explicitly by her own volition, yes? She followed him up the stairs in response to his invitation to "sexy time".

Once upstairs, there would be further explicit communication, even if it wasn't written or verbal (express). And (as I have said repeatedly) even if there was some implied communication, given their knowledge of each other, it was likely also accurate - no misunderstandings.

 

[Derec]

A girl has been flirting with this guy all night. She takes off her clothes and slips into his bed.

Now that should be as clear an expression of intention that even the most clueless university administrator that has read way to many Andrea Dworkin and Christine MacKinnon books might understand.
If sex is not her intention the onus would be on her to set him straight. If she didn't intent sex but goes along with it anyway that is not "sexual assault" even if there wasn't "affirmative" or "explicit" consent.

 

[dx713]

We have two problems here (and note that we are already far from the OP, where "no" could mean "yes", I'm happy to see that has been evacuated quite fast by most participants).
1) Affirmative (yes means yes, by any mean) vs assumed consent.
2) Explicit vs implicit consent.

The campuses seem to have problems with the first one. "No means no" has shown that, although a first step, it can't protect the victim because they might be too drunk, or intimidated, to formulate a clear objection. And you end with a rape.
So, what they actually want is just affirmative consent.

But I think we can see the other side of the fence: horny drunk youngsters aren't known for their ability for clear thinking. So, if they allow implicit clues, they might end with rape because someone might be dumb or drunk enough to think that getting drunk at a frat party after having exchanged two words was implicit consent. And then, problem not solved, they still have a rape case on their hands.

So, to make sure the rules are clear, they require explicit consent.

So, while I understand the reluctance to make this a law, I understand why it could be a campus rule. Call that a part of education? (all college education is not done in the classrooms) Of course, it would help that education, and make it much less necessary (while making explicit consent requirement much easier to ask or formulate) if our society wasn't that squeamish about sex in the first place.

Myself, I like the "enthusiastic consent" wording. It seems to me it makes it clear that "lying around half-drunk" or "just letting them put the moves to not look prude" is not consent, while highlighting that said consent does not need to use words. But I suppose it's difficult to include in an official text or rule.

 

[Derec]

To take a less obvious example: hypothetical woman (perhaps someone who has been previously raped) and hypothetical man - one of those "persuasive" don't take "no" for an answer dudes Derec champions. The more he "persuades" the more she shuts down, but she never actually says "no" or even struggles. She just goes inside herself and tries to shut out what he is doing to her. Do you think he had consent?

No, that's precisely not what I was championing.

- - - Updated - - -

I had a girlfriend who hated being taken for granted. She didn't want to just sleep with me, she wanted to be seduced. She got off on the idea of a smooth-talking guy who could charm the pants off her. She wanted someone to put in the effort of persuading her. Without the effort, she wasn't interested.

It's a bit like the people who don't want to buy a car, they want to be sold one. They want the full performance.

That's kind of what I meant with 'playful demurring'. Not her "shutting down" more and more.

 

[Togo]

Because they don't think it works in practice?

and rape does?

Fallacy of excluded middle:
http://changingminds.org/disciplines/argument/fallacies/excluded_middle.htm

ex·plic·it adjective \ik-ˈspli-sət\
: very clear and complete : leaving no doubt about the meaning
: openly shown
:* fully revealed or expressed without vagueness, implication, or ambiguity :* leaving no question as to meaning or intent

At the specific point in time described by Emily, there was an EXPLICIT invitation to "sexy time" and an EXPLICIT consent in both word and action.

And vagueness as to what 'sexy time' means. They assume based on their past relationship, but it's not explicit.

there was an EXPLICIT invitation (in every sense of the word ) and her EXPLICIT consent.

To what? Something sexy sure, but what is there in that communication that specified without vagueness or ambiguity, what was being proposed? Obviously Emily is in a position to assume what is meant on the basis of experience with their relationship, but it's not explicit what is being consented to.

Once upstairs, there would have been further invitation and consent communications that would have determined whether this particular "sexy time" was oral sex or mutual masterbation or hot doggy sex or swinging from the rafters.

None of which would be necessary if the initial invitation and acceptance were unambiguous.

But I will again point out, since it seems to be getting ignored, Emily was discussing how she and her long-time husband communicate. Even if there is some implicit communication going on, no third party is going to be in their bedroom to leap out from under the bed and arrest them for rape because her wink implicitly but accurately communicates "I like that"

So what? Either we have a rule people can be expected to follow, or we don't. If the rule clearly and obviously covers non-rape as well as rape, it will not be adopted, It will be ridiculed and abandoned, and we'll get more rapes as a result. What possible utility is a rule that you can't avoid breaking?

Where the assumption of implicit agreement causes problems is between people who don't know each other well enough to know what that wink actually means - situations such as the casual sexual hook-ups on university campuses that these law/policies are specifically directed to. "Implicit" by it's very definition includes assumption... and it is the assumption of consent where none actually exists that turns a sexual encounter into a sexual assault. The very easy fix for this is to simply check one's assumptions by getting explicit consent.

Then it's a great guideline, but still a lousy rule. Any rule that doesn't allow normal sexual interaction is going to be abandoned.

 

[bigfield]

People settle for implied consent because it is sufficient.

Given the college campus rape statistics, obviously it is not "sufficient".

Of course it is sufficient.

The problem is that the "she didn't say no" date rapists are not even getting implicit consent; they are just assuming they have consent because the other person is non-communicative.

If you are conflating implicit consent with assumed consent then a further distinction in terms needs to be made. Implicit consent includes non-verbal communications which affirmatively communicate desire for sex without being explicit by any of the definitions of explicit found in this thread.

Wrong.

That is not the same as assuming consent when there are no signs of non-consent. To assume consent is to suppose one has consent without any evidence. If one infers consent by non-verbal signals, then one is not assuming consent.

Wrong.

Any dimwit can resort to one-word responses. You, on the other hand, could respond by explaining why you disagree.

I think the problem is that you (& others) are conflating "explicit consent" and "express consent". They are not the same thing, but every complaint against "explicit consent" in any of these threads appears to actually be against "express consent". A perfect example is the SNL video - as funny as it was, it was also demonstrating "express consent"

I described what I meant by implicit consent: Non-verbal communication of consent that is not precisely and clearly expressed, graphically detailed, without reservation, etc.

Every instance of "express consent" is also "explicit consent" but not every instance of "explicit consent" is "express consent".

That depends on which source you reference: http://www.privacysense.net/different-types-consent/

Those of you who insist that Emily's example was "implied consent" seem to also agree that it was explicit, yes? There was absolutely zero room for confusion as to whether her husband wanted "sexy time" was there? And even if you want to argue that her following him up the stairs was implied agreement rather than express (written or verbal) agreement, there is zero doubt that it was explicitly by her own volition, yes? She followed him up the stairs in response to his invitation to "sexy time".

I already stated that, depending on which definition of explicit one uses, it could be considered either explicit or implicit. For one thing, it was not explicitly by her own volition that she followed him up the stairs - it is implied by the fact that there was no force or coercion involved. His actions were explicit; hers may not have been (events in the actual bedroom notwithstanding).

 

[Malintent]

Let's all practice this together.. 'cause it seems to be a point of difficulty for some people... ok, here we go, try to keep up...
"Yes, she said yes.. every step of the way, verbally. It was clear."

OK, we all set now?

 

[Derec]

Clemson started a Title IX reeducation camp that asks student intrusive questions about their sex lives and drinking habits.
Clemson University Requires Students to Disclose Number of Sexual Partners or Face Disciplinary Action

This whole thing, kicked off by the Obama administration in 2011, is getting more and more out of control.

 

[Jimmy Higgins]

Clemson started a Title IX reeducation camp that asks student intrusive questions about their sex lives and drinking habits.
Clemson University Requires Students to Disclose Number of Sexual Partners or Face Disciplinary Action

This whole thing, kicked off by the Obama administration in 2011, is getting more and more out of control.

Was this anonymous?

 

[Nice Squirrel]

Clemson started a Title IX reeducation camp that asks student intrusive questions about their sex lives and drinking habits.
Clemson University Requires Students to Disclose Number of Sexual Partners or Face Disciplinary Action

This whole thing, kicked off by the Obama administration in 2011, is getting more and more out of control.

Was this anonymous?

Yes, but students had to enter their ID numbers to access the survey which does raise suspicion.

And as you can see in the right wing article below. Obama himself would pass the information to Bill Clinton who would visit them in the middle of the night.
http://www.huffingtonpost.com/2014/09/18/clemson-sex-lives-student-survey_n_5845038.html

 

[Sabine Grant]

Something which was not brought up in this discussion is what could contribute to a male being confused as to whether "she wants it". IMO (mind you it is only an opinion), many males have a need for instant gratification which may very well impair their ability to apply an objective interpretation of their female partner's verbal and body language communications. The need for instant gratification triggering a subjectively induced interpretation, one leaning towards the fulfillment of his need.

Other influential factor being how different female sexuality is from male sexuality. Most males having a 100% guarantee that they will experience an orgasm during intercourse. Which is of course not the case for many females. Females who will need efforts on the part of their partner to insure she will experience pleasure. Of course in casual sexual encounters, there is a high potential for those efforts to not be part of the male's willingness to. Usually, long term partners are far more familiar with each other and mutual will to please each other is part of the entire package for a mutually satisfying romantic and functional relationship. There is usually no confusion as to whether they are both mutually consenting to sexual intimacy while they work together to make it pleasurable for both. Of course there are always exceptions, but generally both partners expect the mutual willingness to please each other rather than one partner focused on instant gratification and becoming dismissive of the verbal and body language of their partner.

IMO males who are not driven by instant gratification but are part of the delayed gratification group are going to be far more alert to a female partner's body and verbal language. She would not need to repeat "yes" at every step or give a "firm no" for him to pursue or disengage. He will also not assume that because she is willing to make out with him and engage in petting , it can only mean she wants to have intercourse. Delayed gratification males enjoy very much leaving it at making out and petting rather than engage in intercourse.

 

[Jimmy Higgins]

Was this anonymous?

Yes, but students had to enter their ID numbers to access the survey which does raise suspicion.

And as you can see in the right wing article below. Obama himself would pass the information to Bill Clinton who would visit them in the middle of the night.
http://www.huffingtonpost.com/2014/09/18/clemson-sex-lives-student-survey_n_5845038.html

Yeah, a bit troublesome having to log in. I suppose if the school involved the student council to show that there was no recording of the data attached to the ID, that could help alleviate some concerns.

The other side of the argument is that if they don't limit the number of tests a single person can do, a single person could turn the college into an alleged brothel.

 

[Jokodo]

How do you define "under pressure"?

spikepipsqueak thinks that if your behaviour and conversation don't make somebody of the opinion that sex with you is something they want to do, then arguing them into it is boorish and self involved. These are 2 attributes that are not illegal, but any consent to sex obtained by these methods is.

No it isn't. Not by any sane legal standard. Consent is consent, it doesn't matter if you think the guy was "boorish" or "self-involved". If the action used to get consent is itself legal then the consent thus obtained is legal as well. <snip>

This is very obviously wrong, and I bet you can see that as soon as you apply the concept to any other situation.

Boasting about your car is legal. Selling it under false pretenses is illegal. Revealing true but embarrassing facts about someone is legal. Blackmailing them by threatening to reveal those facts is illegal. Are you declaring those legal standards insane too?

 

[Jokodo]

are you also suggesting fucking that person without their permission?

Against their will? No? Without their explicit permission?

If you have sex with someone without their explicit permission, you don't know whether you're doing it against their will or not. This is all the more pertinent if we're talking about casual hook-ups with people you hardly know. (And, no, explicit doesn't have to mean verbal.)