Note: After reflecting on your comments and thinking about who I really meant by "we," I have gone in a very different direction than I expected. As I was thinking about how I wanted to edit my first essay, I realized that my opinion had changed in response to new information that I learned while contemplating edits. As a result, this essay is actually quite different from my initial one. I want to continue revisions after this one to tighten up my ideas.

The Importance of Teaching Consent

-- By JenniferDayrit - 27 Feb 2018

One RAINN study reported that occurrences of sexual assault and rape have fallen by over half since 1993. However, the issue is still pervasive. At the moment, it has been brought to the forefront of media attention by several accusations against high profile and powerful men, not only in Hollywood, but also in the highest offices of the American government. These incidents prompted national response and general support of the victims, notably in the "Me Too" and "Time's Up" movements that were visible on social media and in the coverage of several prominent Hollywood events.

It is against this background, that I found myself feeling surprised and disappointed when an article depicting a women’s uncomfortable sexual encounter with Aziz Ansari was published. My feelings were not a response to his alleged behavior, but a response to some of the reaction pieces to the article. Responses written in the Atlantic and the New York Times critically emphasized the woman’s failure to actively protest or leave the situation. While the articles did also disparage his “unattractive” behavior, the essence of the articles was highlighting the responsibility the woman had in getting herself in and out of the situation.

Whether or not the woman did the “wrong” thing (or should not have recounted her experience publicly), the encounter was clearly problematic. The authors’ attention on the woman’s actions felt uncomfortably similar to ye olden days when victims of sexual assault were automatically assumed at fault in the encounter. One author justifies this focus by saying that although we should address the social and cultural issues that led to this scenario, “the solution to these problems” begins with women being “more verbal.”

I disagree. I think that the solution to these problems starts by addressing these gray area sexual encounters and how we can prevent them. And I think this should be done through education. At the heart of these articles, I see the authors’ desire to place the majority of the blame on the woman as coming from their resistance to labeling Ansari as a person who would sexually assault someone. I think this attitude comes from the binary nature of the criminal justice system. Someone is either guilty or not guilty. Intuitively, we struggle to reconcile how good people can do bad things, especially in the realm of sexual assault. So the sequence of conclusions becomes: Does the "perpetrator" seem like a bad person? No. Then, they are not a rapist. It doesn't matter that any consent procedures were not followed. They are not a mind reader. Although this is not how the criminal justice system would define the situation, most of the general public is not familiar with the Model Penal Code. Their knowledge extends only so far as guilty/not guilty and so that is the context through which sexual encounters are defined. So what can we do about this? Instead of focusing on blame assignment after grey area sexual encounters occur, schools should provide comprehensive sex education that includes consent as a broad topic.

In order to combat this overarching presence of the criminal justice system, comprehensive sex education that includes lessons on consent could vastly improve the way people interact with each other sexually. However, there is no national standard for sex education and when it is provided it focuses on disease and pregnancy prevention. The CDC has provided a list of 16 Critical Sexual Education Topics that primarily focuses on the health and physical aspects of sexual relations while consent is noticeably absent. Instead, they list “communication and negotiation skills.” There are so many important discussions that need to take place when people are learning about sexual relations for the first time in order to establish healthy and respectful dynamics. But a lack of clear curriculum means that those lessons will easily be swept aside.

There are several hurdles that need to be overcome in order to get this information into the classroom. Many schools only mandate abstinence only education. But some states have their foot in the door. Although New York’s Department of Education does not explicitly state consent in their requirements, they do recommended discussions of healthy relationships, open communication, and protecting oneself from unwanted sex. California requires that any school that has a health education graduation requirement, inform their students about the state’s affirmative consent standard. This is a step in the right direction to have the chance to educate young people about the social factors that create grey area sexual encounters and that can lead to real social change. An increase on the focus of the personal responsibility of all parties to sexual encounters will hopefully mean that the expectation to be accountable for their behavior will be distributed evenly to every party involved.

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REFRAMING THE WAY WE THINK ABOUT CONSENT

INTRO

ROC and GREY AREAS

When the situation is more complicated and nuanced, we enter trickier consent territory. What if both participants were conscious, but slightly intoxicated? What if someone stayed silent and still, but did not leave? What if someone used nonverbal cues to indicate their discomfort, but their partner misunderstood? What if someone said "okay," but only because they were afraid? In these "grey" area interactions, where the ROC would be the most beneficial, the sequence of conclusions no longer takes a linear form. When it is unclear whether there was unequivocal consent (or non-consent), we abandon out previous mantra of "yes means yes" and focus on the perceived character of the actors. Why? Because someone is either guilty or not guilty. Intuitively, we struggle to reconcile how good people can do bad things, especially in the realm of sexual assault. So the sequence conclusions becomes: Does the "perpetrator" seem like a bad person? No. Then, they are not a rapist. It doesn't matter that the ROC were not followed. They are not a mind reader.

THE PROBLEM

SOLUTION

The most important way to make this better, I think, is to be clearer about who the "we" is who should be asking more questions. If criminal law is going to be applied, as you say, there will be either guilty or not guilty, and this will depend on the jury's determination about the presence or absence of doubt about consent as a matter of fact. (That's an important point you didn't make clear enough in this draft: because reasonable doubt is a very exacting standard, a jury either has no serious doubt about the absence of consent, or it is responsible for acquitting the defendant.) But we cannot be sure that a jury does indeed consist of people who have internalized the Antioch Rules or their equivalent. Therefore we can expect a binary view of consent to arise everywhere within range of criminal prosecution, but cannot expect the definition of consent on which you depend for your hope that we will transcend it,

Other parties may indeed be able to "step away" from the idea of consent. Indeed, almost any lawyer's theory of social action that usefully embraces a realistic understanding of intrapsychic multiplicity and a state theory of personality will put in doubt the clarity of "consent," and the various states of culpability under the Model Penal Code, and most other forms of legal reasoning that depend on the presence or absence of a state of mind that is likely, in real people, to be present and absent in some combination all the time.

A therapist, a novelist, an anthropologist, a biographer trying to interpret human behavior rather than judge it will undoubtedly apply something more complicated than your rules of consent to her understanding of peoples' sexual lives. A university dean, a police detective, a prosecutor, a judge, and a jury foreperson might all have more complex views of the matter than their assigned social roles permit them to act out. We want everyone in the system of responding to social harm, wherever in society it occurs, to have a complex a view as possible. We also want certain standards of care and action—healing interactions with survivors, victims, families, etc.; due process for persons accused; respect for privacy rights; transparency to public scrutiny various social organizations' performance in responding to harm—to be observed by the relevant social actors, meaning that individuals will have to be complexly aware and rigorously careful to observe important and potentially conflicting guidelines.

Like other elements of justice, this is plainly a chaotic system in the technical sense: nonlinear in its dynamics, vulnerably subject to a range of initial social conditions, non-stable. You can't sum over all the locales and conflicts in 1,000 words. But by editing more sharply the parts you do have, removing every unnecessary word, you can make quite enough space in the next draft to address some of the "we" your current draft doesn't quite define.

Paper Title

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