In this essay I will argue that consent needs to be verbally communicated. I am going to do this by looking particularly, at consent in terms of penetrative sexual intercourse. I have chosen to do this for two reasons. Firstly, is that it has been repeatedly proved that men are not very intuitive when reading nonverbal signals, and secondly, the stakes of consent are too high to simply work off an inference. There are various arguments against the argument for verbally communicated consent, and in this essay, I will address them and then refute them. I would like to acknowledge the fact that there are both male and female victims of rape, but for the sake of this argument, I will refer to the perpetrator as male.
Particularly surrounding the law, there needs to be some reform in what the criminal justice system calls ‘consent’. Remick (1993) argues there needs to be a clear and simple consent standard I.e. A law that states consent needs to be verbally communicated. An issue with the CJS is, in many court rooms there is an ‘asking for it attitude’. The CJS wrongly takes in to account the way a victim of rape was dresses when the incident occurred, her sexual history, her whereabouts etc. when considering her victimhood. Often, due of these irrelevant inquests, a women’s lack of consent is disregarded. I will challenge this line of thought, and argue that what a woman wears, or her sexual history should not bare any relevance to whether her consent or non-consent matters. The clear verbal standard for consent takes away the subjective element for non-consent. Hence, a change in the law to suit this standard would bring all instances of non-traditional rape cases clearly within the boundaries of criminal law.
This change in the law would also declare a women’s right to sexual autonomy absolute, rather than simply mirroring our sexually coercive society. As rape law currently operates in a patriarchal society and because victims of rape are, in most cases, female, this argument for change in the law is on the grounds of assuring sexual autonomy for women. However, this standard of verbal consent is not to suggest that consent standards shouldn’t be applied in a gender-neutral manner. This standard of verbal consent should assist the 10% of rape victims who happen to be men. Verbal consent in the eyes of the law would protect men’s sexual autonomy the same as it would for women. Moreover, even in terms of male perpetrators of rape, the undeniable advantage of this standard is that it gets rid of the grey area where consent can be argued either way. It would ensure the system in place for those involved in rape is both morally and legally sound and this is something that I will discuss later. This is a consternation for men.
Many argue the idea that verbal consent takes away from the romantic spontaneity of intercourse. Verbally consenting apparently “ruins the moment,” and this objection goes along the lines of “silence is sexy”. The idea that meaningful sex only occurs during silent interchanges of sexual advances. This idea is argued by Professor Neil Gilberts who puts forward that feminism is ruining passion, flirtation, and provocation, instead replacing it with a cool-headed sexual contract I.e. sign on the line to consent to sex. However, the mistake here is over-romanticizing the act of intercourse. Despite what films and novels suggest, ‘meaningful silence’ will rarely lead to any kind of mutual sexual pleasures. Also, silence is ambiguous, and men frequently misinterpret it’s meaning.
A profound issue with the “silence is sexy” standpoint is that it shares similar notions that lead to the harmful assumption that women enjoy being raped. As Pineau puts it, the assumption that pleasure is given to a woman during rape implies that the rapist intuitively knows ‘what buttons to press’ independently of any information the woman may give him. Considering there is a constant resistance, rather than a ‘more of this, less of that’ attitude would be a complete rarity, and the ‘silence is sexy’ approach would lead not to maximum sexual satisfying. This is disregarding the rare case in which it is a women's fantasy. Even in the case this is the way a woman would like to conduct sexual intercourse, to come to such a conclusion unassisted would be irrational and dangerous.
Similarly to my previous point, given the complexity and changeability of sexual desires and the ambiguity of non-verbal sexual signals, the best way for partners to achieve the best in their sexual relationship is to adopt a ‘communicative approach’, coined by Pineau. This, as well promoting a comfortable place to discuss sexual pleasures, is a comfortable environment for consent to be given or not given. Also, the ‘silent is sexy’ approach assumes men's sexual omniscience. Even if men want to believe this about themselves, woman’s freedom of choice by effective communication is undoubtedly more important than it. Verbal communication outweighs any possible benefit of allowing men to act in a fashion where communication is not given or overlooked. Therefore, the view that verbal consent is necessary is more important than a man’s vision of himself. Conclusively, a legal or moral standards based on verbal communication would not necessarily need the amount of communication prescribed above in Pineau’s ‘communicative relationship’. It would simply need a verbal “yes” obtained by the man for consent. In this way it can hardly be described as ‘ruining the moment’ or harming the romance of the situation.
I would like to address the fact that, in some cases verbally consenting isn’t completely necessary. There are rare occasions where non-verbal indications of willingness to have sex right. However, on the rare occasion that consent is wrongly assumed, the consequences are high. An analogy I’d like to put across, similarly to one I mentioned earlier, illustrates the consequences of assumption. When a doctor prescribes a patient strong drugs, another doctor is required to overlook the work done by the previous practitioner. In most cases the first doctor was successful in prescribing the right things. However, if on the rare occasion the doctor was wrong then it could be fatal. So, the second doctor is always required. I believe this to be very similar of consent. Although you may believe your intuition to be right it is important to receive verbal consent because a misassumption could be incredibly dangerous for both parties. Also, the likelihood of a man’s intuition being right is rare as previously mentioned there is repeated evidence as to men constantly reading signals from women as more sensual than implied.
A view that contrasts the idea that verbally communicated consent is needed with regards to sex is the “attitudinal view”. This is where morally valid consent can be given by simply adopting a certain mental attitude toward the situation. This attitude being intention. Hurd (1996) believes consent to be simply ‘intending’. Alexander (1996) argues that consent is an intention where one forgoes moral complaint against their partners actions. So, according to this ‘attitudinal’ view if an agent is competent, un coerced and of age, all that’s necessary for consent is a form of intention.
However, all theories should agree that intention is necessary for morally valid consent. A mere intention is not enough for valid consent. According to the ‘performative view’ Consent also requires communication. The performative view adopts the claim that morally permissible sexual consent must involve some form of communication. The performative view does allow for non-verbal consent if consent is shown in some form of communication. An example used is that of a hairdresser asking to shorten the length of their client's hair. In this scenario a client's nod creates moral permission. Even, a speaker can communicate with an omission, if the context ensures omission indicates a message. The ‘performative view’ of consent does somewhat well in constructing narrower circumstances for what consent is. However, it does not feel safe that non-verbal communication is allowed as morally permissible consent. This is because, with regards to sex, stakes are much higher than shortening someone's fringe. A circumstance with higher stakes I.e. borrowing someone's car or offering to babysit someone's children would not rely on non-verbal consent or mere omission. You couldn’t take someone's car simply because they ‘didn’t say you couldn’t’. Sex has even higher stakes than both cases. So, the view that non-verbal communication is enough for consent is not safe. In addition, as I will mention throughout this essay, there is repeated evidence that males often misinterpret women’s behavior as being more sensual than intended. To avoid this misinterpretation verbal consent is necessary.
For men it is sometimes deemed difficult to understand what counts as consent particularly with regards to the “attitudinal view”. A verbal communication puts the matter to bed and eliminates the grey area to consent.
An attitudinal view put forward by Husak and Thomas argue that there are various social conventions by which a woman implies her willingness for intercourse for example a long kiss. If a woman engages in such conventions, it is fair for a man to assume that she is consenting to sex. However, there is repeated evidence that males often interpret woman’s behavior in more sensual terms than implied. Archard points out that any of these ‘social conventions’ described above, are likely to be ambiguous or not hold any universal meaning. A man risks serious harm by relying on his interpretation of these conventions alone. So, a man shouldn’t rely on just the non-verbal behavior of his partner with regards to sexual consent and should seek more in order to avoid risks of un-consensual sex.
Pineau (1989) argues that legally and socially we should adopt a model of “communicative sexuality”, one that pushes for an “atmosphere of comfort and communication”. This is including a constant checkup of partners state to avoid the issue that one-time consent does not lead to eternal consent. This model observes the norms assigned to friendship and trust. Strong norms that lead to two people being consensually happy. The argument is that verbal communication is the way in which consent should occur. “Where communicative sexuality does not occur, we lack the main ground in believing, that sex involved was consensual. When a man does not engage in this “communicative sexuality”, he is not aware as to whether his partner is consenting. Hence, if he does not receive some form of verbal consent, yet believes his partner his consenting, his belief is unreasonable.
An issue that verbal consent deals is that if a man doesn’t seek verbal consent it means his automatic assumption is that women invite sexual advances. This idea is troubling as it makes women passive in the decision to have sex rather than active consenters. There are two common ‘reform positions’ to consent. Anderson (2005) distinguishes between the ‘Yes model’ and ‘No Model’. The No Model allows a sexual act to be consensual unless the victim says no or physically resists. Where the ‘Yes Model’ accuses a sexual act of rape unless consent is affirmatively given I.e. by verbal or physical behavior. An issue with the No Model is that often rape victims suffer from peritraumatic stress which can sometimes cause paralysis – that is conditions where trauma renders them unable to resist physically or verbally. The Yes Model also poses a problem, it assumes a woman engaging in activities such as heavy petting, or other sexual acts definitively wants penetrative sex. This is obviously not always the case. Also, both models rely on men correctly interpreting women’s behavior correctly and as I have mentioned, men, according to repeated evidence, fail in this endeavor.
Similarly, MacKinnon and Anderson see a fundamental problem with non-verbal consent, in that it implies a “a woman’s passive acquiescence to male sexual initiative” which is the issue discussed at the start of the previous paragraph. Anderson supports a form of verbal consent in negotiation, this is a form of consent, negotiation. Rather than just giving permission this model suggests an active consultation with someone to reach mutual agreement. The negotiation model works as it isn’t just one person seeking permission it emphasizes mutuality. Anderson’s approach is like Pineau’s as they both emphasize communication. However, they differ. Pineau’s model retains an overall consent standard, whereas Anderson’s approach abandon’s it. She puts forward that until a relational context has been established that enables partners to interpret reliably each other’s nonverbal behavior, the negotiations must be verbal. This argues that after a period, couples can successfully interpret what is consent (nonverbally). However, I would like to revert to my analogy of the double-checking doctors, although you think you’re understanding signals it always should be double checked as the stakes are just too high not to.
A problem with a simple verbal utterance for consent is that it doesn’t consider context in which the verbal communication has occurred. An example, if a woman says “yes” in order to keep a violent partner from becoming aggressive it would be absurd to call this behavior consent (or at least a meaningful form of consent). Although, “no” may always mean no, “yes” may also mean no. Another example is coercion. Another problem with verbal consent is that just because verbal consent is given, it does not always mean sex can morally happen. So, there is still a grey area with consent in fact even more blurred. Because a man receives verbal consent which he may view as conclusive when it is not. Occasionally a woman is in a situation where she is too intoxicated to make rational decisions, or she has been drugged. Under the influence of these drugs she consents verbally. A woman would struggle to win a battle in court if she verbally consented to sex especially if the law were to change. She would fail to win the case, even though what has been committed is a form of rape. However, the terms for consent should be that is only legally and morally permissible consent when verbally proclaimed by an uncoerced, sober, free agent. These further details deal with the above issue of coercion as well. However, it is fair to say that only uncoerced verbal consent is actually consent. The same concern is held for the “attitudinal view” of consent, however at least with the view that consent must be verbal there is some form of clarification and there is an option to verbally deny consent, and it would hold more stance in court.
In conclusion, consent must be verbally communicated in order to eradicate risk. I have successfully argued that verbal consent is necessary, by justifying the arguments for consent to sexual intercourse. Although I have acknowledging the apposing thoughts, the reason these arguments don’t hold-up, is because most of them rely upon the assumption that men can successfully infer what women communicate through non-verbal actions, and it has been repeatedly proven that men fail in this endeavor.