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Nov 9, 2010
by Jaclyn Friedman
A Canadian court is currently considering the case of a woman who consented to breath play (what they’re calling "erotic asphyxiation") with her partner, but did not consent to the anal penetration she woke up to him perpetrating on her. And it’s all being covered as a test of whether or not a woman can give "advance consent."
People. If you think this case is about whether or not a woman can give "advance consent," you have a very twisted definition of consent. Because what she’s accusing him of is precisely the opposite: doing something to her sexually to which she had never consented.
See, contrary to what seems like popular belief, sexual consent isn’t like a lightswitch, which can be either "on," or "off." It’s not like there’s this one thing called "sex" you can consent to anyhow. "Sex" is an evolving series of actions and interactions. You have to have the enthusiastic consent of your partner for all of them. And even if you have your partner’s consent for a particular activity, you have to be prepared for it to change.
See, consent isn’t a question. It’s a state. If, instead of lovers, the two of you were synchronized swimmers, consent would be the water. It’s not enough to jump in, get wet and climb out — if you want to swim, you have to be in the water continually. And if you want to have sex, you have to be continually in a state of enthusiastic consent with your partner.
I know that bums out a lot of people. It’s so hard! It’s such a burden! It involves talking! And allowing your partner to be a fully-formed human being and not a toy that becomes yours as soon as you touch her!
Well, at the risk of mixing metaphors, suck it up. If you’re not mature enough to treat consent like a continual process, you’re not mature enough to be having sex. By which I don’t mean "OMG teh kidz can’t have teh sex!" I mean, if you can’t grasp and act on the basics of consent, you’re taking on a responsibility you’re not equipped to handle. Like stealing your parents’ car when you don’t know how to drive, you can really hurt yourself or someone else that way.
Back to the case at hand. It’s hardly confusing. She said "yes" to one act (the asphyxiation which rendered her unconscious). She never said yes to the anal penetration. The only world in which this case is a question of "advance" consent is one in which we’re still thinking of consent as a lightswitch. As a single question with only two possible answers and no takebacks. Sex? Yes/No? She said yes to a sex act (a kinky one at that, so she’s probably that kind of woman, wink wink, nudge nudge, rape apology rape apology), and therefore she said yes to ALL sex acts. (And don’t forget, no takebacks!)
Do I really have to break down the levels on which this model of consent fails? I guess I do. Let’s start with "no takebacks." There are a million reasons someone might say yes to a sexual activity and then later withdraw consent. Some of them are uncomfortable to think about (maybe your partner says or does something that makes you feel suddenly unsafe), but some of them are pretty mundane. Maybe your leg cramps. Maybe you’re getting sore. Maybe you thought it would be hot but now that you’re doing it (whatever "it" is) you realize you’re not into it, or you’re just no longer in the mood. Maybe IT DOESN’T MATTER WHY. If you no longer want to be doing something sexual with another person, and you let them know that, and they don’t stop? That’s sexual assault. Period.
But that’s not even what happened in this case, because she. never. consented. Not to anal penetration. How is that hard to understand? How does "yes, let’s try some breath play" somehow sound like "yes, please shove a dildo into my anus"? Only in a world in which both of those sentences sound like "Yes to sex. Kinky sex! All of it! Woo!" And that’s exactly the problem with the lightswitch model of consent. It makes sex into a yes-or-no question, the same way it separates women into sluts and prudes. And if you’re a slut, if you say yes to sex, you say yes to all sex, whenever, however, and if you don’t like it, well, tough — you should’ve thought of that before you said yes. In other words? The lightswitch model of sex is one of the main pillars holding up the entire rape culture.
That’s the real danger in this case. It’s not just that the court might find that "advance" consent is a valid argument (um, duh, an unconscious woman can’t withdraw consent, so you’re NOT IN A STATE OF CONSENT), but that the court is upholding the lightswitch model of sex so firmly that it doesn’t even notice it’s doing so.