Let's be clear: to me, consent is an extremely important, essential, and indispensable concept. But the word, in its etymological origin, is a legal term, which simply speaks of a person agreeing to a contract or situation. Originally, the word "consent" does not mention how it happens, nor the initial desire, let alone notions of enthusiasm and pleasure - it only mentions the fact of not being forced.
There is currently a shift in its meaning, which is a good thing. But to me it remains a formal notion, which I find both sad and insufficient.
- Sad, because the word comes from the legal domain, and for me it immediately evokes the notion of rape (the two are antonyms); and especially because I hear in it the hypothesis that humans, even in sexuality, are by default in a logic of competition, with intentions that are inherently selfish – the idea that a contract is necessary to prevent spoliation. This is not how I want to practice sexuality.
- And insufficient, because formal consent is not the guarantee that one will listen to the other and want to do them good, and bring them pleasure... even, one can have a formal consent and do a lot of harm to the other, sometimes even voluntarily.
"Do you accept the contact of my hand on your cheek?" Depends : will it be a humiliating slap, or a loving caress? Both are "technically" the same gesture. Likewise, depending on its intent, force and speed, a sexual touch can bring the greatest pleasure or pain, be an act of love or hate. Talking about "sex" or "penetration" is like talking about a "hand on the cheek": we don't know what we are talking about, neither in intention nor in result.
When it comes to sex, I think it is important to talk about respect and reciprocity.
The notion of respect necessarily includes consent: if I respect a person, I will not do something that he or she does not want, nor will I impose an act that is not pleasant for them (which still requires information on consent bias). But respect is not a matter of legal formalism, and it goes much further: it implies a willingness to ensure the well-being of the other.
The paradox of legality: the law applies only when there is a problem.
If a woman falls asleep on the couch at the home of a boy she vaguely knows, and he takes advantage of this to penetrate her sexually, it is rape. And that seems obvious.
Legal formalism does say that sex with a sleeping person is rape. The law protects.
If two lovers on their honeymoon make love several times a day, and one night, while asleep, embracing, they make love again; it will be beautiful for both of them, and both of them will wake up amazed at their complicity. To say that this is a case of rape would be absurd.
This particular case does not mean that the legal definition is without foundation. Furthermore, our lovers are unlikely to find themselves in court.
The law is NOT there to define ALL behaviour, the law is there to solve cases where there is a problem. It is not an absolute condemnation of the situation as such, its meaning is to show where the fault lies in the case where the situation has been problematic, when there is a dispute - and in particular bad intent or a traumatic result.
And that is a very common misinterpretation of what law is supposed to be: most often, the rule is there only for cases where someone is harmed.
Insufficiency of the concept
Conversely, there are cases where a person will give formal consent, but the sexual act is in fact a crime. There are at least two that seem obvious to me:
- The case where there is initial consent, but the way it is done is not appropriate for one of the two people. This is unfortunately more often than not the case in first encounters, where a woman wants a sexual exchange, but in the end it is much more brutal than she expected, and instead of the pleasure of a reciprocal act, she feels great pain (which is why I often say: it is not enough to say "penetration").
- The case where one of the people involved acts under the coercion of a third party. For example, trafficked persons formally "consent" to sexual acts, but they do so because they are forced to do so by pimps. It can also be the case in cases of emotional blackmail, or duress from someone who has some authority.
In both cases, the lack of reciprocity of the act is clearly perceptible. And the risk of trauma is obvious. But if your notion of “proper” sex is based on respect and reciprocity, both cases will never happen: with respect and reciprocity, you will ensure that the sexual act is pleasant to both, and the risk of trauma is basically null and void.
The problem of Respect versus legality.
Warning: The notion of respect has no legal meaning. It cannot be put into law - because respect cannot be demonstrated, proven.
That's why the law focuses on consent, a notion that is more or less quantifiable, observable. This means that our honeymooners could, potentially, be charged with rape (though they would probably be acquitted since no one is harmed). And, unfortunately, this also makes it difficult for some very problematic behaviours to be qualified by the law - because the law cannot predict everything, let alone measure everything.
But our lives are not courts of law. It would be a mistake, I believe, to model all our behaviours on legal definitions.
In our daily lives, focusing on the notions of respect and reciprocity allows us to assess a situation much more accurately than with legal notions.
Example: Surprise is one of the conditions that leads to non-consent in a court of law. But if I want to give my beloved a gift, I'm not going to ask for her consent. Better yet, if I do it in the "surprise" mode, it will bring her even more joy. There is no prior consent, but if I have listened to her, and I give her a surprise that comes from a position of respect and kindness, she will be delighted (but if I make her a surprise that is only for my pleasure and does not take into account her preferences, it will be a source of conflict).
The key principle is respect, benevolence, listening.
Conversely, I can "consent" to a lunch at their parents' house, and feel humiliated once in the situation - or find myself in an imbalance of reciprocity, that will bring resentment and jeopardize our relationship.
I don't think it is desirable to judicialize our private lives, our relationships with friends and lovers.
Unfortunately, it has often become a necessity because many people do not have these notions of respect, benevolence and reciprocity, and are in a logic of opposition, of competition even in their intimate relationships - and also because some people have a vested interest in this drift (e.g. lawyers...). But I think that if we try to lead our lives in a respectful way, judicial notions should not be a necessity, at least most of the time.
Respect and Reciprocity as a basis for acts of love.
If I respect a person, I will, at all times, take into account their feelings.
Maybe at some point I will do something she doesn't like, or make mistakes in my readings, but because I respect her, I will realize very quickly that there is something wrong with her, and ask her about it, and adjust. As I listen to her, the painful experience will only last a moment. And she, on her side, will realize that it was an honest mistake, and will not feel any trauma. She will feel respected. That's how a healthy sexual relationship works.
Better yet, if I am in a sincere and respectful relationship, I will try to surprise my partner, with the intention of pleasing her. This surprise is not the same kind of sneaky ambush that defines a rape, in fact it is the exact opposite. If I see that what I'm about to do doesn't please her, I'll stop in my tracks, because I look at HER as a person with dignity, and HER feelings are important to me.
And I'm not going to break her consent, because as I listen to her, I will realize whether or not she feels like doing this or that.
It's not perfect. Nothing is perfect. You can always make mistakes, fall short. But I think this is the best indicator of consent - better than endless lists of formal rules or criteria for what is and is not acceptable behaviour (don’t get me wrong: these criteria are important and mandatory in a formal setting, such as a courtroom or a “sex-positive” event where you expect sexual acts between people who don't know each other).
The rules of shared orgasms go beyond consent, they reach to intentions: caring, listening, respect, seeking reciprocity.