Consent Confusion

The following column was published in The Observer on Friday, November 14, 2014.

Consent is a strange place to start. It’s a confusing concept that’s somehow supposed to govern our relationships and provide the framework for sexual intimacy. The focus on consent as the primary framework for intimacy, however, often creates more ambiguities than protections. 

DuLac says: “An incapacitated person is incapable of giving consent.” So if two drunk people have sex, have they sexually assaulted each other? If consent “means informed, freely given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity” and cannot be inferred from inaction or previous activities or relationships, how often does one need to “double-check” that consent still exists? Who is responsible for checking? If “any sexual touching” requires consent, can a student go to the Office of Student Affairs if he or she is “grinded on” at Legends?

Does consent to sex imply consent to its consequences? Does a couple consent to pregnancy if birth control fails or she decides not to use birth control? Does a man consent to a woman aborting his child under these circumstances, with or without his knowledge (under current law, he does). The International Planned Parenthood Foundation’s “Young person’s guide to their rights, sexuality and living with HIV” states: “You have the right to decide if, when, and how to disclose your HIV status… There is no right or wrong way to have sex. Just have fun, explore and be yourself!… It is not always possible to talk about to your partner(s) or to practice safer sex.” So when you consent to sex, do you consent to sex with someone with an STD and to the possibility of contracting this STD yourself?

I find consent to be an extremely unhelpful concept for building authentic human relationships. Nonetheless, I advocate at least one form of it: negative consent. One evening, I was at a bar with a group of friends. A stranger started talking to us and at one point groped one of the women in the group. None of us noticed it, but we all heard her calmly but firmly tell him, “I did not consent to you touching me.” Instantly, his demeanor changed. He started apologizing (saying something like, “I’m sorry you felt that way,” which isn’t at all a real apology) and he backed off. Often, men (wrongly) don’t take “no” seriously, but they know that “consent” is a legal term with legal consequences. You shouldn’t have to say it, but clearly saying that you don’t consent can help protect you and your friends.

This doesn’t protect everyone. In a 2002 survey of 1800 men, 120 admitted to committing 439 legally-defined rapes, all unreported. Though a very small percentage of men had committed rape (six percent), this minority largely consisted of repeat offenders. NPR reported the most common strategy: “They’d often ask a girl to come to a party, saying it was invite-only, a big deal to a nervous freshman. Then they’d get her drunk to the point of incapacitation so they could have sex with her… Alcohol was the weapon of choice for these men, who typically saw themselves as college guys hooking up. They didn’t think what they had done was a crime.” This happens at Notre Dame.

What this study shows is that consent often doesn’t matter. But the situation isn’t hopeless. You can make a difference if you intervene and intervention doesn’t have to be a scary or awkward thing.

When you’re at a party, keep an eye open for body language. If a drunk woman appears to be cornered by a guy, put on your best drunk face, stumble over to her and break into the conversation. “Hey, didn’t we have a class together last year?” If a girl is falling over because she’s wasted, get a group of friends and offer to walk her back to her dorm.

Rape is disgusting. And truly responding to rape culture requires a much more holistic conversation than we often have, especially as a Catholic university. But even with colleges’ largely fragmented responses, you as students can do more. Rape has probably happened in your dorm, but you don’t have to sit by and let it happen. Intervene. Don’t let your friends think getting someone drunk to have sex is ok. It’s not. It’s rape. Don’t let people joke about rape. Care for each other. If Notre Dame really is a family, then you are your brother’s (and sister’s) keeper.

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