Consent

Approx 3000 words = Approx 12 minutes reading time

 

Written by Diarmaid Ó Conaráin

This blog is intended to be an addition to the chapter on Consent in my book Why You’re Wrong. Unfortunately this book was pushed together far quicker than was ideal, and as a result is far from being a perfect end product. Aside from not being the end product it may well have been, some chapters, particularly the one on Consent, end somewhat abruptly, in a manner that if I’m honest leaves me stunned in hindsight. There are simple flaws that I am shocked escaped my attention. I can only conclude that moving entirely too quickly for my first project, while having not stood back from the work for any amount of time at all, led to my overlooking of flaws that are painfully obvious to me now. With that being said, for any readers who may have been considering purchasing my book I would advise that you wait, soon I will address the issues and future copies will be the polished version, likely sometime early in the new year. It hasn’t taken quite this long to realize that the title needed additional work. However, due to personal circumstances I found myself simply unable to bring myself to work on the project again. That time is passing and I intend to rectify as many issues as possible within a few months.

Along with potentially needing further elaboration, I later arrived at what I felt was an important point I had not included in this chapter. The last point I should have made in the chapter on consent is in relation to the method I believe I have demonstrated will be the only valid proof in a court of law, written consent. I arrive at this conclusion based on the inevitable destination of this movement, should it decide to keep pushing forward with its new model for affirmative consent. Given that potentially any intimate situation may turn to a legal accusation, then when we speak of affirmative consent we must consider it from the perspective of being defensible in court against an accusation.

To summarize briefly for those who have not read the book, if we are to agree that “yes means yes” as opposed to “no mean no”, I believe it is a reasonable conclusion I reach that only written consent can be considered “proof”, or perhaps an audio recording of consent. I use the word proof because I do not imagine it will be long before the #MeToo movement and others begin pushing for further legislation regarding consent. Given that verbal consent could well be given through intoxication or intimidation, it will not be sufficient as a defence in court. Situations have also arose where consent had been given verbally prior to the sexual encounter, yet the woman in question decided the next morning that she had not given consent, and rape had occurred. With the above points in mind we see that verbal consent is not only unreliable with regards to affirmative consent, but can quickly devolve into one individuals word against another, in which case neither testimony can be considered proof. And if verbal consent is insufficient then it would appear rhetorical that any lesser attempt at justifying consent will fall on deaf ears. Physical contact, flirting, or even an expressed desire to go somewhere more private are not expressions of consent to sexual conduct, and will not be accepted in court as a defence to a charge a rape. No amount of “but judge she was really giving me the eyes and wrapping her arms around me” , “she said she wanted to go somewhere more private” will suffice, nor should it in all honesty.

Therefore as I have stated only written consent can truly serve to fully protect an individual legally from accusation in this new model. There may be readers who feel I am being overly presumptuous, before continuing with this article I advise readers to visit the links below. The consent form is already well under way as a conception, and it likely will not be long before politicians or the media begin agitating for it to become law.

https://www.nationalreview.com/2015/07/college-affirmative-consent-contract/

https://www.sampleforms.com/sexual-consent-form.html

Sexual Consent Form

The point I failed to make in the chapter was one of the problems with written consent, it is almost impossible to retract. When contemplated fully, we will find that written consent serves to place women in potentially more danger, and at risk to a legally binding consent form. Consider for a moment if a woman was to give written consent to a man. They then begin to have sex, yet almost immediately the woman feels it is not what she desired, or too rough for example, and she is no longer comfortable proceeding. Now imagine she tells the man to stop, she’s not happy. Any normal man will stop, but sexual predators in this situation now have the written consent they need to legally protect themselves. What if in this mans mind he decides he already has consent, he has proof of it too, so he may feel that if he doesn’t want to stop he doesn’t have to, and actually his consent form will protect him legally. We now see that consent forms could facilitate rape in some cases, as before a woman had the right to say stop or no at any point, and call a halt to it immediately.  Whereas now from a legal standpoint the woman has given the man consent, and he has proof of it, so we must ask how is the woman to withdraw consent at this point? Write another note? Even if that were plausible this will result in a he said she said once again in court, as two notes signed by the same person at different times become the evidence of the case. This of course is assuming we ignore the impossibility of a second note being written mid forcible intercourse.

It is rhetorical that even with Consent, if either partner wishes to stop at any point then both should stop. However, as pointed out the written consent will somewhat serve as a license to continue to those sick enough to use it, and arguably by giving written consent a woman has potentially deprived herself of the opportunity to later say no and have it taken serious in a legal manner. This is a complete upheaval of the method currently used in western society, and serves to reverse the legally binding term from no, to yes. Which as I believe I have shown is highly dangerous and open to manipulation.

Nobody logical would dispute that rape can certainly happen within a relationship also. Again usually the term No was binding , though are we to expect couples regularly exchange consent notes to avoid the potential accusation of rape someday? After all men must protect themselves also, as it appears there is a tiny percentage of women willing to abuse this movement. Women who may potentially decide years later that an incident of sex she didn’t really enjoy, or wasn’t really in the mood for, but did to satisfy her husband or partner, was rape. We have seen from recent public #MeToo cases that this can certainly happen, they were not within a relationship, but they were made a legal matter years after the incident in question. So should a man accumulate and file his consent notes? In the event that like the #MeToo movement, or the Kavanaugh accusations, a woman decides to claim sexual assault years after the fact, in what could potentially be nothing but a public hit job on credibility? You might say a consent form would have saved Kavanaugh a great deal of trouble, but it was not needed and the truth was discovered inevitably, as is the case with most accusations. Law enforcement and criminology have become extremely advanced, and few false accusations survive scrutiny for long. This being the case I believe it highlights that not only are consent forms unnecessary, they are an imposition on the entire population for an absolute minimum of circumstances, which likely do not require them either way.

Like the other modern deceptions, the new consent argument is designed to seem just and rhetorical, yet if we imagine it playing out like a game of chess considering as many possibilities as we can, we find it is not a better policy than what we currently have. And in truth will not only serve to put both sexes in danger, but will also make everybody’s intimate relationships more formal, contractualized and significantly less spontaneous. Most of us will agree that the majority of sex does not happen because a set of partners asked each other would they like to have sex. The majority of intimate encounters are largely non-verbal, and may begin at any time through escalating physical contact, which eventually results in sex. Again both partners have the right to say stop or no at any point during these encounters.

One of the relatively recent court cases in my own country relating to accusations of rape has shown the sexism a minority of women carry with them as a whole. The women in question do not respect a courts decision, and furthermore, it seems no issue to women to intensely and completely believe a woman they have never met, and know nothing of her character. Yet the nonsensical and sexist #BelieveWomen encourages blind sexist tribalism, and loyalty to strangers based purely on their sex, and accusation. This is not justice, it is not rational behaviour, and it is void of common sense, or respect and adherence to the law.

Again these issues are shaped in such a way that anyone who disagrees immediately looks terrible. A slogan is thrown out into the public like the #BelieveWomen one, and anyone who disagrees is branded sexist and misogynistic. Immediately the claim is that if you’re not willing to believe any and all strangers you’ve never met, because they are female and have an accusation, then you must be a terrible person. I have asked women directly why they believe a woman they have never met so intensely, and their only response is “why would she lie?”. My apologies if this seems overly harsh, but that is one hell of an innocent way to approach life. If that is the only logical recourse for a court decision that considered evidence and statements from both parties, I would argue that your stance has no grounding in any reason or logic, but in the hopefully naive method of presuming everyone is good, and nobody would lie. Furthermore, I believe most would agree that to falsely accuse someone of rape is something only an extremely vengeful or largely imbalanced person would do. If vengeance is the motivation then the motive is clear. However, if we’re dealing with an unbalanced individual then trying to rationalize irrational behaviour will prove a fruitless pursuit. Anymore than we can rationalize a mass shooters mentality, because it is not rational. We cannot seek logical explanations for irrational actions perpetrated by potentially unbalanced individuals. To presume every individual on the planet is perfectly rational and well balanced is a false presumption, and leaves us vulnerable to the manipulations of those who do not share our societal sense of morals or justice. I would also point out that up until now our current system has worked just fine, both in determining guilt or innocence of the accused. Our current system delivering an incorrect verdict is no more likely than an incorrect verdict on any other accusation or crime.

Another way to highlight the contrast between what is being proposed and our current system is to imagine the implication or social translation of both terms. Consider that the simple term no or stop afforded women the opportunity to maintain the right to declare themselves uncomfortable at any point. What might have been fine yesterday or 5 hours ago may not be fine again now, and that is the way it should be. By our current system the words no or stop are a woman declaring to a man that she no longer wishes to proceed, and should he try to continue he is now committing a punishable crime. This opportunity is available at any point during sex under our current system. Now consider that an exchange of the new form of consent will likely deprive individuals of this opportunity. It may seem comical, or even a concept to be sneered at, but I see no other destination that the argument for affirmative consent may travel to other than written consent. Not if we are to consider a legal defence for an accusation of a lack of consent. And not if we are to move toward a system that promotes consent as law, rather than a lack of.

Never would I seek to wilfully discredit or attack a movement that does indeed have a just cause, but equally I cannot turn a blind eye to the fact there have been blatant manipulations of that movement. I believe individuals should certainly have each other’s consent to engage in sexual activities, but I do not believe that turning our current social or legal system into its polar opposite is any kind of an answer. From an ideological and practical standpoint it is likely more dangerous to all involved. Consent notes will put women at risk, while not filing your consent notes for all sexual partners might leave any of us open to later accusation, for which we have no recourse should this movement continue pushing until it eventually advocates for legislation.

The point being we would have previously taught our sons that if a woman says no or stop, you stop. Whereas now they advocate we should teach our children to ask for permission for each perceived advancement. That being the very problem, advances can be based on an individuals opinion of what qualified as the next step. As often judging when is the right time to advance physical contact or move a relationship to the next level of intimacy is a circumstantial matter, decided differently by each combination of individuals. Should the establishment move toward legislation on this issue it will be necessary to create a legal definition, on what are considered stages of progression sexually. Proving that as mentioned we will be moving toward contractualizing our most intimate encounters in a legal manner.

It becomes clear either way that this is a complicated matter that requires far more consideration of its policy and implications than it is being given. Apparently even by it’s advocates, who seem to have either missed or ignored the potential pitfalls of this new policy in the future, if it’s ever enforced on society. I do not believe the danger posed by the newly proposed system can be underestimated. And I do not hold to the belief that it is a guarantee we are currently at our peak of wisdom and enlightenment. There are those who believe that simply because it is 2019 then we simply must be smarter than all previous generations. That if we should have an idea that conflicts with writings of a famous historical figure or pre-existing systems then we must be right, because they are of the past, and we are the glorious humans of the present. This of course is nonsensical, and I draw attention to it to make the relative point; that just because we have a shiny new idea it is no guarantee of its superiority to our currently accepted ideas. Simply saying that some ideas are no longer modern is no rebuttal regarding their ideology, applicability or reason. It is essentially an Ad-hominem of an ideology, claiming it is dated, therefore must be outdated, and no longer applicable or the best course of action. I would dispute this attitude wholeheartedly. We are firmly in an age of manipulation of ideas. Individuals or organizations will spin a narrative any way they can to achieve the desired result. But while there are those who believe identifying as something other than the two genders is perfectly coherent, and there are alleged scientists who agree, then I would argue we have lost our way momentarily as a civilization, and believing ourselves to be the current highpoint of human intellect and reason is glaringly incorrect. This attitude has resulted in an overconfidence in the new ideas being advocated, while failing to fully consider their ideology, due to this overconfidence. Their assurance that they are leading the way leaves absolutely no room for further reflection or contemplation, meaning their blind allegiance to act has neglected the process of ensuring that the action is correct initially.

With that being said, I believe we must resist major policy change regarding this movement. Its advocates seek to turn the current system upside down entirely. Certainly further consideration regarding sexual harassment in the workplace may not be a bad course of action. Yet to change the legally binding term from no to yes, and to enforce a system that essentially requires written consent from all involved, is to make an already complex situation even more contrived for those involved.

In summary I agree wholeheartedly with the sentiment of the #MeToo movement, and that no woman should be sexually exploited, blackmailed or harassed. However, I do not see the path currently being pursued as the correct one, and it seems strange that so many are prepared to turn our current laws into their complete opposite, while remaining ignorant to the consequences. Once again, it was a seemingly unerring suggestion to assert that both partners should exchange consent prior to any sexual activity, though upon contemplation we find it is not nearly as innocent a suggestion as it appeared to be at first, and it requires a deep level of scrutiny before we should simply agree and allow it to march on. I also dispute the notion that society as a whole has a problem understanding or accepting the principle of consent, simply because a minority of men refuse to act morally. Like racism, this is an issue being deliberately inflated by the media to facilitate changes in policy or culture. All manner of crimes are committed daily, yet there is no major movement asserting that the population does not accept the laws against theft, which is likely a crime in far higher occurrence. There is no major movement acting as though the population does not accept the laws regarding murder. We accept as a society that certain individuals are simply criminal, and their actions are not a reflection of the population as a whole. It strikes me as odd then that we cannot apply the same logic to sexual assault and rape. It is likely due to the establishments desire to impose new legislation, which seeks to limit the amount of contact between individuals, likely to facilitate declining demographics, as we are all forced to walk on eggshells with regards to one of the most natural and human of interactions. This kind of movement and legislation will discourage sexual contact under constant threat of legal repercussions, which will of course in time affect the demographic of nations embracing such a policy.

On a final note I would say my concerns on the issue of Consent are largely in view of intimate relations between partners or potential partners. I do not doubt that sexual harassment is an issue in the workplace for example. I agree that encouraging the notion of consent for physical contact may be effective in lessening the amount of unwanted contact individuals may experience from those around them in the workplace. As few honest individuals could deny that seemingly innocent physical contact can often be far from innocent, when done by a minority of sleazy individuals. That being said, I stand by my view that we should not allow our current system to be turned upside down, and often encouragement will suffice where legal deterrent is simply unnecessary. Although arguably the #MeToo movement was necessary, in Hollywood even moreso than elsewhere, it’s over zealous approach and it’s proposed solution to the problem is likely incorrect. And I would ask that we acknowledge that simply because a movement did indeed highlight a genuine problem, it does not automatically equate to a certainty that their proposed solution will be equally correct. We don’t need to be a plumber to spot a leak, but we will likely need to be one to fix it. And with this in mind I believe it is imperative that we resist this upheaval of our current system, by those who have apparently overlooked the potential problems. This may not be an immediate issue, but I do believe before long we will be hearing more about affirmative consent, and legislation supporting it. I sincerely hope I am wrong, though I fear I will not be.