The Soapbox: How We Talk About Consent Absolutely Matters

How we talk about consent absolutely matters. How we talk about it in private conversations, in academia, in public discourse — all matters.

So for ELLE to publish an essay attacking “Yes Means Yes” policies — and during Sexual Assault Awareness Month, no less — is unconscionable even if it is penned by a survivor. The editor’s note introducing Cristina Nehring’s piece “Are Today’s Legal Definitions of Rape Helping or Hurting Women?” calls it “passionate, smart, and thoughtful” rather than the more appropriate “misguided, sex-negative, and victim-shaming.”

As a survivor who has worked hard (with much success) to enjoy sex and learn to communicate both my desires and my triggers to my partners, I was jaw-droppingly horrified at Nehring’s conflation of her shy start to a long love affair with a graphically-described violent rape from her youth. After telling writing about her first time in bed with the French man who would end up being her partner for six years, she reflects, “But then again, this was the 1990s. And this was Paris. Were it today and in the U.S., our first time together could readily be considered ‘rape.’”

Nehring is referencing the trend on college campuses to enact policies that put the onus on potential perpetrators rather than victims to stop sexual assault. The goal is to eliminate (or, realistically, reduce) the interrogations survivors endure when they decide to report: “Did you say no?” “How did you say it?” “Did he hear you?” “Could he have thought you were enjoying it?” The policies also help educate young students on the legal definitions of rape, thus equipping eager young people on how to engage with each other in healthier, non-coercive ways. The specific California law Nehring is referring to reads:

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…be assumed to be an indicator of consent.

Outstanding. Consent should never be implied or assumed and either (any) party should feel free to bow out at any time, even if they’ve had sex before (sorry, marital rape is off limits too!).That sounds like a policy that allows everyone equal power and provides a safe space for exploring fantasies and broadening horizons!

But Nehring willfully misreads the law and attempts to restate it as a contractual requirement where one or both (or all) involved participants must continually sign wavers lest “the encounter may legally be determined a rape, even if … no threat was implied.” So, her conclusion is that under this law, her French lover would have been shit out of luck:

My French lover today would have almost every strike against him. His conquest: a disoriented foreign visitor, to whom he’d given drinks and never clearly told she was headed to his domicile; a girl who hadn’t uttered a word of assent during their encounter and with whom he lacked any previous “dating relationship” but enjoyed a power differential via both local savvy and his status as director of an art group I’d just joined.

That Nehring refers to herself as his “conquest” is interesting, but to conflate what she presents as a consensual if shy, first-time sex experience with her own brutal rape as an eight-year-old in the next part of her piece is her decision and not the fault of “Yes Means Yes” laws. Using these two anecdotes to essentially posit that “real rape” must be violent, and anything else — which “Yes Means Yes” policies hope to curb — is just “regret,” negates the majority survivors’ experiences.

At times in her lengthy piece, it becomes challenging to follow how Nehring — clearly a well-read, well-traveled, educated woman — could have thrown the logic dart so far from the bull’s-eye. By the time the phrases “regret is not the same thing as being victimized” and “college-rape panic” make their appearances, her disdain for communication has become rather apparent:

As sex has become an expectation between available single persons rather than a surprise or a transgression, it has also become less tempting and meaningful.

Wait, a surprise? What exactly is “surprise” sex? There’s no time to figure it out because Nehring flows right into a slam on dating apps and sex workers while making an unfortunate veiled reference to the purity culture notion that women can be “used up” when they put out too often:

… as touch—via ‘Cuddle Up To Me’ parlors, Tinder-style apps, and ubiquitous massage and sensual ‘service’ providers—has become available on tap, it has grown easy for a person ‘tapped’ to feel used and unsatisfied—especially when she is emotionally invested. But these are the risks of freedom.

An odd conclusion considering Nehring wields some errant Shakespeare as a lead-in to this victim-blaming gem:

[T]here are endless risks and trade-offs we embrace in our lives. The fruit of these risks can make us legitimately unhappy or unproud or angry.

With all this risk, you’d think she’d be interested in some safety precautions and fostering a culture of communication.

She then waxes on about our eroding American Dream, quotes random classical literature, and decides for us all that expecting potential and current sexual partners to communicate with one another somehow has the power to “turn[s] the clock back on gender equality and gender relations both” — a hypothesis without any support.

Not only is she misreading the law, she has a horrifyingly narrow view of what she calls “the erotic wilderness” — the mystic passion between lovers that vanishes the moment one tells the other what they’re yearning to do to them. Seriously, has this person never sexted? Apparently not:

I would never have pursued anything in love or bed had I been asked to consent to it in advance or explicitly name it afterward.

This is unfortunate. Consent is HOT. It’s so hot there’s an entire subsection of Etsy with “Consent is Sexy” and “I <3 Consent” products. Asking me what you want, telling me what you’ve imagined, asking what I would do next, or now, or later tonight when I see you is spectacular foreplay. If you don’t agree, purity culture and the patriarchy have a serious hold on you. Do you magically know what your partner wants? Are you telepathically letting them know what you want? How on earth is either of you ever satisfied — chance?

Worse than the “Leave It To Beaver”-age views on initiating and communicating is Nehring’s outright disdain for those who tell their stories publicly to change culture and law. Reading a survivor spend thousands of words decrying “Yes Means Yes” policies because when “everyone is a rape victim, no one is a rape victim” felt like being sucker punched. Who is she to say who is a rape victim? She certainly doesn’t speak for me.

It took me years to understand that the power imbalance my ex wielded like a weapon was exactly that; we may have been dating, but I wasn’t allowed to say no if he initiated. What happened to me was rape — every time. Nehring puts her discomfort communicating with her sexual partners over my safety and the safety of the one in five female students who are assaulted during their time on campus.

I hope ELLE’s next piece in their week-long “reported stories on the topic of sexual consent” have less rape culture and more advocate and sex educator input. When our narratives are driven by those who seek to minimize their own discomfort rather than maximize justice and safety, we perpetuate victim blaming and our natural tendency to self-blame. It’s long past time our default settings were to believe survivors and foster a culture of openness and widespread satisfaction.

Katie Klabusich is a writer, reproductive justice activist and media contributor. You can follow her work at KatieSpeak.com and on Twitter at @Katie_Speak.