I’ve written a couple books on the power of no, which I call the philosophy of negation. And when we are talking about consent, we are talking about the power of yes and the power of no.
Consent consists of up to four stages and four transitional actions. They are pre-introduction, introduction, pre-consent, negotiation, arbitration, consent, non-consent, and violation. Let’s review them one by one.
In pre-introduction, you have not been introduced to the other party. This is the stage in which we sit with most of humanity. Even if we know a person’s name, what they look like, their interests, etc. we have yet to have meaningful communication with them. This is the state of coworkers that we haven’t talked to.
This is the state in which we are in when we join a dating site and start browsing others. This is the state of a child when they first arrive at a playground and see all of the other kids playing that they don’t know.
This state can be changed by any individual that initiates introduction. At this point, we begin communication and establish a relationship of association. This introduction is our first steps into meaningful communication. We establish rapport. We establish rapport when we walk up to someone in a social setting and introduce ourselves and begin conversation.
Once we have established rapport, we have transitioned into pre-consent. Pre-consent is the stage in which we have communication with a person, but we have not arrived at any level of meaningful consent with the other person to pursue any other activity with them beyond meaningful communication.
This happens when we are talking with someone and haven’t yet asked them out. This happens when we are in a job interview, and haven’t been given a job offer. During this stage, the goal is often to establish a deeper level of rapport. We’re feeling each other out to see if we even want to progress further.
When one of the people decide that they do want to progress further, this transitional period is called negotiation. When we enter into negotiation, we are seeking to move from pre-consent to consent. If negotiation fails, we may end in nonconsent.
For instance, a man might say to a woman, “I really like you and think we would have fun together, would you like to have dinner with me?” This is a short form of negotiation for a light form of consent. Higher forms of negotiation are often built upon higher forms of consent, in which we’ve already built a structure of consent that defines a relationship. For instance, a married couple might negotiate on a house to buy, which a couple just meeting at a bar would not have. The married couple have multiple layers of consent, including the consent to marry each other. Upon all of the consent that they have built up to that point, they can negotiate higher forms of consent.
When parties feel that they cannot successfully negotiate, but both parties must come to resolution, they can enter another state of transition called arbitration. Arbitration can take many forms. Companies suing each other go to court, which is one form of arbitration. A couple that can’t successfully negotiate on their own might go to a couples counsellor because they need a third party to help mediate but not directly decide an issue for them.
Arbitration is simply defined here as any form of third party assisted negotiation, which is different than negotiation in that it involves a disinterested party.
Negotiation ends in a state of consent or nonconsent.
Arbitration almost always ends in a state of consent when the resolution is binding on both parties, which they agree to through social contract or direct consent. But there are examples in which arbitration through mediation can end in nonconsent. There is no resolution.
When a negotiation or arbitration ends in consent, this is a stage in which the persons remain until negotiation is reopened or the consent is violated. When negotiation or arbitration ends in non-consent, and the negotiation or arbitration is abandoned by either or both parties.
Parties remain in consent or nonconsent until negotiation or arbitration is attempted again, but this itself requires a negotiation to enter into such talks again. In other words, if the woman at the bar turns the man down for dinner, he has entered into non-consent with her. He must back up, and can now only properly negotiate if he can maintain communication with the possibility of a date with her.
This is why guys who ignore this are generally considered assholes who push issues of non-consent, which we will talk about in just a second with the transition of violation. Ethically, the man being turned down can say any variation of, “I’m sorry to hear that. But I’m still interested in hanging out with you in the future, would you like to keep talking?” And in this instance, he is not seen as unethical by the party he’s interested in. This is following the proper pattern of negotiation from a state of non-consent which doesn’t cross into violation.
Violation is when anyone operates outside the stages of introduction, negotiation, or arbitration, or it can also be violation when someone ignores the current proper state of consent, whether it is pre-introduction, pre-consent, consent, or nonconsent.
Let’s example violation in all of these cases.
Violation of pre-introduction would be moving to any stage before introduction. Introduction is socially accepted as the only transitional action that is nearly universally allowed at all times, though there is an exception to explicit non-consent issues. Such an issue might be someone being approached by a man who makes explicitly clear that they aren’t interested in talking to a man, such as a lesbian who has self identified as such or in some social settings a woman wearing a wedding ring.
Violation of pre-introduction would be walking up to someone and asking them out without having said a single word to them. This is usually considered a faux pax. But it is not entirely unethical, but a violation of most social norms since it does not violate consent, but rather, etiquette.
Violations of higher forms is almost always a violation from a point of acting before consent or acting against non-consent. A man going up and kissing a woman before establishing consent is committing the transitional action of violation. This could result in being slapped, having a drink thrown in his face, or even being arrested.
Violation has a wide variety of forms and definitions. Because violation can occur before consent is established as well as when consent is denied, it can be defined slightly but significantly differently.
Violation that occurs before consent is established is called passive violation.
Violation that occurs after consent is denied is called active violation.
Passive and active violation does not correlate to the damage inflicted by the violation. This should never, ever be confused as the case.
For instance, hitting a victim over the back of the head and raping them is a form of “passive violation”. However, this act would be considered one of the most monstrous actions a person could be subjected to. The word passive here simply means that the violator acted without even attempting to gain consent.
Active consent, on the other hand, could be as simple as eating someone’s sandwich in the work break room refrigerator that has their name on it. By putting their name on the item, they have established non-consent to anyone else eating the food. By violating an established non-consent, the violation is an active violation.
And so while we can label a violation active or passive, this is simply for the determination of the nature of the violation, not the judgement on the severity of the action taken.
Moving up the chain of consent always starts in pre-introduction, and the goal of moving up the chain is to reach the stage of consent. When the goal reached is non-consent or violation, we are moving back down the chain.
At all stages in the chain, the most powerful action that any can take is to say, “No.”
The word “no” has the power to stop all introduction, negotiation, arbitration (to the extent to which one is allowed by society to do so), consent, and violation.
Going past a no is an active violation of consent.
And we must establish that there is always an implicit “no” before negotiation or arbitration starts.
One must establish a yes before one can physically contact another individual, either as a passive yes (weak consent) or an active yes (strong consent). One cannot simply pull down the pants of a person in most settings by assuming “yes”, for instance. This is passive violation.
And these introduce more nuances for us, the weak form of consent and the strong form of consent.
What is a weak form of consent? A weak form of consent is an understood, often implied, yes to consent to an action. A husband leaning over and kissing his wife is predicated on the fact of a weak form of consent. The husband, through experience, past consent, and the low level of action when compared to their other forms of action, may have a weak form of consent to such physical bonding actions.
However, this is where there is often confusion when it comes to consent. Thinking back to movies of the 1980s, we see a theme in rape victim movies where the defense of the rapist is that of weak consent. “She dressed like a slut, therefore she was ‘asking for it’.”
Thankfully, courts have roundly dismissed this intellectually bankrupted view of consent. A proper intellectual review of navigating weak consent among humans easily reveals that there must be certain characteristics present to establish weak consent.
First, there must absolutely exist a higher form of consent. What is the gold standard of establishing lower and higher forms of consent? It is defined by the level of personal freedom required for the action. An action which is inclusive of prior consent actions would be a lower form of consent, for instance. A couple that has had sex that involved kissing, for instance would have sex as the higher form of consent, while individual elements of that action are lower forms of consent.
These are not hard and fast definitions. Some couples may not engage in kissing as a form of sex. To one person, kissing may be more intimate than the act of penetration. And so, kissing this person is, in fact, the higher form of consent. By establishing that the act was not inclusive in another act is an easy way of establishing higher and lower forms of consent.
A man may be willing to have his body mostly nude, save for a pair of shorts on a beach. But he might consider it a violation to have his shorts removed by another even in the privacy of his own home. Removal of the shorts was not inclusive in any prior act.
Weak consent must also be an act that has been performed before with the person. Let us use sex and kissing again as our example. A man may talk to a partner that they have kissed during sex before, but the person they tell this to is not someone they’ve kissed during sex. There is no implied consent that kissing is ok, even outside of sex, in this case. Only when the act has been performed once can there be weak consent.
Weak consent never occurs during escalation of consent. For instance, there is no weak consent to have sex if the only established relationship is kissing and hugging. This must be stated separate from inclusive to make this issue clearer, even if both are covered, because it is different.
Let’s say that two coworkers had drinks at the bar, and then had sex later that night. The next day, they go to the office, and one of the coworkers kisses the other in front of other coworkers.
In that case, there is a violation because there is no implied consent. “But,” you say, “wasn’t kissing a lower form of consent that was inclusive of the previous higher form of sexual consent the previous night?”
Yes, that is correct. However, there is a clear social norm that public displays of affection is a higher form of consent than even the previous night’s sexual consent. Why? Because the previous act was private, while the act of kissing in front of coworkers is public. The change from private to public cannot be a weak form of consent because the environment was not relative or inclusive of the previous act of consent.
Escalation includes elements of novelty, originality, privacy, and/or distinction.
One might have had oral and anal sex with a partner, but switching from one to the other in the wrong order introduces a novel and distinct act.
One might have two sexual partners separately, but having sex in the presence of each other or inclusive of all parties introduces novelty, originality, privacy, and distinction issues.
One might dress up as a hooker during a role playing game in the bedroom, but bringing the costume to work to show coworkers introduces a privacy issue.
And from this, we can state the following about weak consent. Weak consent is inclusive of prior acts as a lower form of consent to previous higher forms of consent, is an act that is relatively performed before between the parties engaging in the action, and is not an escalation of consent to a higher form.
Therefore, we can example some situations by which weak consent can and cannot exist.
Regardless of how a person dresses, they are never “asking for it” when another person moves to have sex with them and does not have strong consent. Instead, they have committed a passive violation.
Revealing parts of a partner’s body by removal of clothing in public is also a passive violation.
Kissing a partner in public when they are already an established couple publicly, and in a social situation where this is the norm, and the other person has expressed a willingness to other forms of public displays of affection, would be a form of weak consent.
Having sex in public can even be a weak form of consent if the couple has engaged in the activity before in a familiar and safe environment.
A strong form of consent is more explicit, and is usually what we think of when we think of consent. Someone saying yes to a request is a strong form of consent. But verbal consent isn’t the only form of strong consent.
An invitation, whether verbal or physical, is a strong form of consent. Turning your face to someone and puckering up is a strong form of verbal consent for a kiss. Other body queues can be read to establish strong consent.
We often don’t think of these as consent, because we don’t register the request for consent or negotiation. Rather, the person is giving strong consent through the act of request.
Another example of this is that of giving consent through request. Upon making a request to open up negotiation, consent is implied in a strong manner to the request. One simply doesn’t ask for consent to have sex who does not want to have sex.
“Do you want to have sex? I mean, I don’t want to have sex. I’m just curious if you’d be ok with sex with me, though I don’t,” is said by no one but a complete idiot or a moral sadist.
The request and implied strong consent is usually the opening round of negotiation, followed by statements of opinion, questions, and answers. The person opening negotiation starts from a position of strong consent. The other person either gives consent, presents an alternative option, or outright rejects consent.
Negotiation opens with strong consent and must end in strong consent. Again, this can be non-verbal. If you ask someone, “Wanna fuck?” And the other person drops their pants, there is a very strong consent that you are both on the same page to have sex.
The Feminazi Response
Some consent purists would like to move all consent away from weak consent to strong consent, and from strong non-verbal consent to strong verbal consent. Their argument is that there is just too much room for misunderstanding. They believe that any weak consent and any non-verbal strong consent simply promotes what they call “rape culture”.
They would, in fact, argue that simply because a woman drops her pants, bends over the bed, and gives the “come hither” look, that this is not consent and that simply initiating sex without a verbal consent is tantamount to rape.
These consent purists today tend to be females claiming a stance of ultra-feminism. Feminism aside, their ideas simply do not conform to normative human behavior. Many even advocate that consent must be continually confirmed after the initial consent, and that removal of this continued consent must result in return to negotiation and/or non-consent.
In other words, both parties having a sexual act (though they usually say the woman, exposing that they are closer to the term feminazi than feminist) need to alternate between questions of “Do you like that?” and answers of “Yes.” And if that question goes unasked or unanswered, that there is some form entering the bounds of rape.
But in my experience and in the responses I’ve seen from individuals from both sexes to these suggestions is that such an ideal is utterly ridiculous, and I agree.
If even animals can understand weak and strong consent in a completely non-verbal way, I believe a reasonable human being can also understand these things, even in most cross cultural settings. Culture, after all, does not trump consent. And when there are the possibilities of cross cultural confusion, care on both sides to be more explicit is generally sufficient to compensate.
Simply because in one culture the act of looking at a person gives weak consent to sex, does not change the fact that we’ve established several rules for weak consent that prevents the possibility of boundary breaking. For instance, if it’s not a prior act, it wouldn’t qualify in any case. Thus, she’s never “asking for it” unless you explicitly did ask for it.
Taken to their extreme, such intelligence-negative views would have us continually asking silly questions and writing 100 page contracts with partners. “May I put my hand on your hand,” asks the husband to his wife of 20 years.
In our understanding here of consent as it is actually practiced and understood to be completely ethical and equitable, we dispense with absolutists who wish to mold the human condition to a deep overriding fear they have to being triggered into a rape response while having consensual sex with a boyfriend of a year because he doesn’t ask “Do you like that?” every 5 seconds.
Rather, those who are have trigger issues should be under the care of a professional, licensed therapist; society doesn’t conform to the lowest common denominator, but rather to the mean/median of societal norms. And we can either confirm or deny these norms through ethical consent rules.
As laid out here, ethical consent norms of these types are acceptable both on a societal norm level and a legal norm level.
Those who cannot conform to these norms and ethical levels needs to include their personal requirements at the negotiation phase. If you truly need your partner to say, “Do you like that?” every 5 seconds, then you need to establish such strong verbal consent during negotiation.
And what you should not do is subject the rest of humanity to all conform to your special edge case of insecurity which is at best annoying and at worst unhealthy manipulation.
This is not to say there are not issues in consent that enter grey areas. I’ve been turned down for a kiss in a nonverbal way with a wife. I’ve been turned down for sex with a partner in a nonverbal way.
Your partner, at all times, has the right to say no.
For instance, I have informed all partners than I’m very touchy feely during sleep. I’ve rarely had any partner who doesn’t spend more than one night with me that says, “You were fondling me in your sleep.” And so, I’ve always informed every new partner that such is a possibility in the middle of the night. If it happens, I feel very embarrassed about it, especially if I don’t remember because I never woke up.
Sometimes, I wake up and seek weak or strong consent. If there is no consent, or if they push me away or say no, I stop and turn over.
If the partner is not comfortable at all with that possibility, I choose to sleep elsewhere. But I inform every partner, every time.
I’ve had only one issue of consent with this that I had to have a discussion with a partner with.
The issue was this: The more a partner spoons or cuddles with me, the more sexual I will react in sleep. If a partner pushes their butt into my crotch, I’ll have a genital reaction, and my hands will eventually start making sexual moves. But if the partner is asleep, and I’m asleep, it’s difficult to establish strong consent.
Though weak consent is always present, as this never happens with a non-sexual sleeping partner, one partner did express that they wanted strong consent.
They didn’t just want strong consent at these times, but at all times sexually. They wanted negotiation each and every time, without any weak consent.
They acknowledged that when they said no, I stopped. Of course, because “no” is a powerful word in my vocabulary and I react immediately to it. “No”, “stop”, or “red” are words that I’m highly attuned to both sexually and in highly negotiated BDSM scenes.
But what they wanted was a stronger ability to say “yes”. And that is completely understandable and acceptable.
But while this was ok with me at all other times, it was not workable during sleep. The only solution open to me was to sleep separately. Even without cuddling, I could not guarantee to be hands off while sleeping together. They were fine with cuddling, but there isn’t such a difference in my sleep.
And not having sex made the problem worse. Being extra tired also made the problem worse.
The best I could give them was sleeping on the couch. And after a long conversation about sex, and then not having sex, and then going to bed late after such a conversation, I told them that I was moving to the couch. It was not exactly what I wanted, but I respect anyone’s position on their sexual availability.
This seemed the most responsible action I could take. Unfortunately, this caused a very bad reaction in my partner. They thought that I was punishing them for their stance, even after I explained the issue. They simply thought I could “turn it off”, and that simply wasn’t true.
The relationship fell apart the next day when the stress of me sleeping on the couch, and our highly compatible relationship was threatened by this issue. We each had to choose what mattered more to us. Strong verbal consent at all times, but sleeping apart. Or weak non-verbal consent with strong non-consent options, and sleeping together.
The option of both was simply untenable. And that last night, she insisted that I do not leave the bed. Needless to say, I did not sleep very well.
So realize, that there is a clear chain of consent that is completely ethical and workable in every situation. But this does not mean that you will always reach consent or consensus. This does not mean that you will not come to an impasse that even a couple that loves each other tremendously unravelling because they are involving multiple issues into a single negotiation that are mutually conflicting.
This mutually conflicting problem is not one that any simple ethic or rule can overcome. It is simply human nature.
It is my nature to desire to sleep with my partners in the same bed when I spend the night.
It is my nature, fully communicated to all partners, to be possibly be overtly sexual while asleep in the same bed with a sexual partner.
If I’m with a partner that has issues with sleep being interrupted by sex, and is not willing to allow the partner to stay and sleep separately, then this becomes a mutually conflicting requirement, and there is no solution that arrives at consent.
As such, and for many other issues, that relationship ended when rather than allowing me to sleep separate, she chose a path of removing all levels of consent. The decision to end that relationship was hers.
That relationship is now a cautionary tale that communication and negotiation is never done. Issues that seem to be settled can pop up again weeks or months later for renegotiation. And those renegotiations may end with completely different conclusions.
This is simply the nature of human relationships.