I’ve got good news and I’ve got bad news. The good news is it looks like spring is almost here. The bad news is most of you are sex criminals. Hey, I hate to be the bearer of bad news, but according to a helpful list I saw on Facebook, whose main tenets have been promoted in all corners of social media at this point, nearly every sexual encounter I’ve ever had is up for debate. Including some of the times I masturbated.
The list in question goes over some of what might be considered gray areas in sexual consent. Most of the items on the list are uncontroversial, and should be quite obvious: “Being in a relationship is not consent.” Of course being in a relationship does not mean one party gets to have sex with the other regardless of whether that person wants to or not. “Consent to one act is not consent to all acts.” Again, this should be obvious to all reasonable human beings, but of course it isn’t, and so sadly such lists are necessary.
“If they aren’t sober, they can’t consent.” Okay now, hold on a second.
I’d be lying if I said I’ve never elicited enthusiastic consent from a person who had anywhere from a few to more than a few alcoholic beverages in them. More to the point, I’ve given my consent on more than a few occasions when I had several drinks in me. What’s more, often on these occasions I woke up the next morning filled with regret. But to say that consent under the influence of alcohol is not consent is a very slippery slope. How many drinks is too many drinks to give consent? What about for non-sexual acts? If a person has too many drinks and then smashes the windows of their neighbor’s house, are they off the hook for that? Or is sex the only action that is completely beyond one’s control once they’ve imbibed? How much does inebriation alleviate a person of responsibility for their actions? In the state of Oregon, on any given Friday night, is there anyone having sex who’s not doing it with multiple beers in their bellies?
Let me take this opportunity to be clear; I’m not saying it’s okay to take advantage of a person who has had so much to drink that they can’t physically control themselves, and certainly not a person who is unconscious. If a person can’t walk or speak straight, then how would one be certain they’re consenting at all? These situations are what reasonable people would unequivocally call sexual assault.
But unwise decisions that would likely have never occurred without alcohol, and the buyer’s remorse that inevitably comes with them, are certainly not the same thing as rape. Stigmatizing a generation of high school and college students into thinking they are is a mistake we will most certainly regret as a society. Especially when it’s used to defend someone who has committed a rape. If one party can’t possibly give informed consent when they’re at all inebriated, it stands to reason a lawyer will soon be able to make a convincing case that their client also wasn’t responsible for committing the rape, because they, too, were under the influence of alcohol.
Then comes the big one: “If you have to convince them, it’s not consent.”
Say what? This is very clearly nonsense. If you have to convince them, it may not be a great idea. If you fail to convince them, and then insist on sex anyway, it’s most assuredly rape. But that they didn’t simply want to jump into bed with you sans discussion of any kind?
On more than one occasion in my life I have gone into a social situation not planning to or wanting to have sex and then been convinced by the overwhelming wisdom and clarity of purpose of another person. Again, on some of these occasions I woke up regretting it. But on none of these occasions was I coerced or forced into anything, and abdicating responsibility for them to an oversimplification of the complexities of human interaction would be dishonest.
Again, to be clear, I’m not saying that actual coercion, or non-physically “forcing” someone to have sex is not rape. It very clearly is. However, sometimes people get convinced to do things that end up being great experiences, and sometimes end up in social disaster. But to sweepingly declare the practice of trying to convince a person to have sex as rape will have weird and terrible consequences on the psyches of millennials. I might also point out, it makes every pornographic act or act of prostitution that has ever occurred into a rape. For these people would clearly not be having sex if not convinced by a financial agreement.
Confucius once said, “Better a diamond with a flaw than a pebble without.” Which is to say, there are gray areas in the human experience, and there are black and white situations. When we make preposterous policy prescriptions (say that five times fast) such as the ones in the consent definition list, we’re throwing the flawed diamonds out the window on a quixotic purity quest for perfect pebbles. By trying to separate gray into its black and white constituents, we’re making the perfect the enemy of the good. Or in this case, the impossible the enemy of reality. And it won’t end well for anyone.
By Sidney Reilly