Getting Away With It: How you are probably a sex criminal too.

[emanix]

I originally wrote this as a FetLife post, referring to some events that were happening on there, but several recent conversations have reminded me that I wanted to share it more publicly as well.

I'm going to take an angle on discussing consent that isn't often addressed. It may be a little uncomfortable to think about. Hells, it's uncomfortable for me, especially admitting that I have transgressed these rules a few times myself, but I really feel the need to point this out.

The headline:

Touching someone without asking is assault. EVEN IF THEY LIKED IT.

Touching someone - anyone - without their prior consent, in a sexual manner is sexual assault. That includes fondling, groping, kissing, biting (actually that last counts as Actual Bodily Harm in the UK, if it leaves a mark, I don't know what it is in the US or Canada) and so on.

Prior consent is the important bit here. If you haven't asked first, that's assault. No matter how the person responds afterwards. Even if they enjoyed it, even if they came, even if 'they secretly wanted it but wouldn't dare to say' like all the rapey tropes in bad porn, and even if it's funny, even if they THANK YOU FOR IT, if you didn't ask first, you still assaulted them.

Consent is established by saying 'yes' before the fact, not by 'not saying no' when something is already happening. Only YES means yes. (There's a group set up to talk specifically about this on FL, in fact: https://fetlife.com/groups/39158 plus there are blogs and websites dedicated to the idea outside of the kink world, too.)

If someone decides they're okay with it after the fact, if they decide to accept your apology (or if they decide no apology is necessary), if you remain friends with each other, or lovers, or coworkers, that doesn't mean you didn't assault them, it just means they decided they're okay with it. You were lucky. YOU ASSAULTED SOMEONE, AND YOU WERE LUCKY. Consent after the fact doesn't make it not assault, it just means you are 'getting away with it'.

If someone decides they're okay with it, accepts an apology, but then later says in effect 'dude, what you did, you do know that was assault, right?'... then that's not an attack on you, that's a statement of fact.

I will add that, yes, I have assaulted people myself. I have swatted the occasional butt that was bent over enticingly in front of me without asking for permission. I've assumed consent on a couple of occasions when it wasn't explicitly stated up-front, either because I thought the humour of the situation warranted it or because I thought the other person(s) involved would be okay with it. I made a judgement call and I got away with it. That doesn't make it any less assault, however, and if I'd gotten that judgement wrong and upset someone, I'd damn well hope to be called out on it.
As kinksters we play with consent and with trust all the time, as doms and subs and as tops and bottoms. If my judgement is off, I want to know it, so I can learn from it, and I want the people around me to know it, so folks can protect themselves and me.

So I've gotten away with assaulting people. That doesn't make me a monster. It also doesn't make my friends (because yes, I'm talking about occasions when I was messing around with friends or lovers) into doormats or liars or put them into the wrong for not having gone to the police about a casual butt-swat. Those people who insist that a crime didn't happen unless it's recorded by the police are almost as problematic as the folks who believe that none of this is important at all. Sometimes it makes sense to take it to the police. Sometimes it really doesn't, and there are a million valid reasons why someone might not, including that they Just Don't Want To. Even stepping on someone's foot is a form of physical assault. Can you imagine a world where you weren't allowed to mention that someone was clumsy and had a tendency to step on feet, unless you were willing to take it to the police?

If I was to vandalise a friend's car as a joke* and he finds it funny, that's a shared giggle. If he doesn't find it funny, he could choose to take it to the police, or he could decide that our friendship is worth more than that. Whether he finds it funny or not, and whether the police were involved or not, a couple of years down the line he'd still be entitled to say 'watch out for Emanix, she vandalised my car a couple of years back'. Why would we apply a different standard of proof to discussion of sexual assault? Why do we still allow anyone to get away with the idea that if you think you can succeed in making someone enjoy it, you don't need to ask permission**? And why do we assume that we will know a rapist when we see one, when every one of us at some point has violated somebody's consent, deliberately or otherwise, even if only by stepping on a foot. It doesn't make it okay, but the idea that these things are only perpetrated by 'monsters' who are easily recognised allows far more leeway for the folks who think that because something was okay once, with one person, that it's automatically okay with everybody else, the folks who assume they have the ability to tell without asking what's going to be okay with any particular person, and of course, the otherwise pleasant to be around folks who just happen think they have a right to other peoples bodies. There, my dears, be dragons.

*I would never do this, I just couldn't think of a better example right now & I know folks who have. Please do not vandalise my car.

**I think of this as Schrödinger-sex. You don't know until you open the box whether it contains an orgasm or a jail sentence. Why on earth would anyone find that attractive??! (E.L. James, I'm looking at you, here.)

---

Edit for clarification:

2012-10-17 22:53

Seems a couple of folks are getting bogged down in the rules-lawyering about what one can and can't get away with doing in what situation and why. (Including me!)

The point I'm trying to make by means of exaggeration is not really that one is automatically in the wrong to work without explicit verbal consent, because we've all done it on occasion, but on the flip side the only way to be *100% certain* that you're NOT going to end up with a criminal record for assaulting somebody is to look for active consent, otherwise you're having Schrödinger-sex: You never quite know for sure there's a spot on the sex-offenders registry waiting for you inside the box or just an entertaining evening.

The only person who can tell you whether they're consenting to what you're doing with someone is the person you're doing it with. If you want to be entirely sure what you're doing is okay, don't ask me, ask them!

Comments

[beenabadbunny.livejournal.com]

"...the idea that these things are only perpetrated by 'monsters' who are easily recognised allows far more leeway for the folks who think that because something was okay once, with one person, that it's automatically okay with everybody else..."

...or with that same person at another time or in other circumstances. (The original point still stands, of course.)

[valkyriekaren.livejournal.com]

I am totally adopting the concept of Schrödinger-sex!

[world-rim-walke.livejournal.com]

That's a very interesting concept, though also quite disturbing. It seems to say that I can't make contact with anyone in any way without in some way violating their person, save if I obtain their free & informed consent.

I LOVE THIS POST.

[terriaminute.livejournal.com]

Once or twice, I know I have hugged someone and only realized too late that touching was not welcome. As often, nonverbal consent after the fact was given - but still it was bad form on my part. The nonverbal arms out, eyebrows up gesture of 'want a hug?' is enough for the unmoving or slight withdraw of 'no thanks' or a hug as a 'yes please' is all that's needed. Consideration of what another person can do, is open to, or is not in the mood for or cannot tolerate. For those of us adept at reading body language and not averse to, you know, using our words, this isn't complex.

It is incredibly sweet to me to have someone tell me to please say so if anything happening should stop, at any point. That I have full autonomy of my body no matter what we are doing. That he cares what I think and feel. I can't think of a more caring and cherished way to share touch. I like that so much that it's the feeling I want everyone around me to share. Not only is it okay to ask for consideration, it is okay to demand it when violated. It is okay to say I forgive you, it is okay to say no, but lets do this instead. We're humans, we are inventive and clever and we can be incredibly kind when incentive is there. And we screw up. But we can learn!

[alexmc.livejournal.com]

Wish I had a constructive comment right now. I was at a munch this evening and definitely was conscious of not knowing individuals' touching policies. So the only people I touched were people who offered hands to shake and a friend who offers hugs - and waits to see if the offer is reciprocated.

In my other social life - science fiction fandom - people are far less careful about touching without consent. I have seen people in tears because they were hugged without permission - and I have been uncomfortable in that way on more than one occasion


(and I am a "big bloke").

[joreth]

I think it's very important to be pointing out that any violation of personal space, body, or autonomy is, by definition, an assault even though there are gradations to it, and I think it's also very important to be pointing out that such things do not automatically make one a monster.

One of the biggest problems that I've been seeing in the community defenses of unacceptable behaviour is this us vs. them mentality. No one likes to think of themselves as a monster or a bad person. Pretty much everyone can justify everything they've done in some manner to reconcile the action with their image of themselves as a Good Person.

But that makes it all the more difficult to address the very real issues of assault, "legitimate rape", and other violations because everyone is sitting around thinking "well I'm not a rapist, that's this other dude who jumps out of bushes and beats up women in dark alleys!" So we can't get to the heart of the issue of assault or doing those things that need to be done in order to change society because we're all sitting around thinking that these rules and these discussions are for some other guy. We, of course, would never do something like that!

So, yes, it was an assault, but I'm still not a bad person because not every action is equal in scope, violation, or penalty to every other. Now that I know that this action is not the best choice I could have made, I can make better choices in the future, without defending my actions in order to maintain my image of myself as a Good Person. That's pretty much the definition of a Good Person, so I don't have to deal with any cognitive dissonance and I can get down to the business of improving the world around me, which makes me an even Better Person than before.

[going-sploring.livejournal.com]

Interesting post, which brings out some very valid points. I think it is over simplified on the legal side but thats probably me putting on my lawyers hat.

Firstly, If you step on someone's toe, or accidentally walk into someone in the street, its not an assault. Its an accident. I think what the post leaves out is the necessity of having the right mental state (mens rea) to commit an offence. For most of the offences we are talking about here (assaults, sexual or otherwise), a person must be reckless as to whether an offence will be committed. That is a higher standard than negligence, and even that would rarely be present in a genuine foot standing accident.

I think its important to realise the difference between two situations you outlined in your post - that between intentional touching with questionable consent, and unintentional touching. I think considering the latter is muddying the waters as its got nothing to do with lack of consent but genuine (unactionable) accident. It reminds me of the line from the West Wing (don't know if there are any fans out there) - "last night I accidentally slept with a call girl" "did you slip and fall or something" or words to that effect anyway.

Secondly, I don't think you give enough reliance on 'reasonable belief of consent' which is present in most sexual offences, including the catch-all sexual assault. Whilst I agree with you that most of us put ourselves in situations (sexually, non sexually, both) where we are acting on presumed rather than explicit consent, I would hope that most of us would at least have a reasonable belief in consent. Otherwise what on earth are we doing!

To an extent, I think everyone plays with fire over consent issues occasionally, although obviously some situations are more high risk than others. We are all adults and we have to live with the risks we take, including the legal ones.

Anyway, those are my thoughts

Ceridwen the lawyer :-)

[weegoddess.livejournal.com]

I have this habit of tabbing posts for later that look too important or interesting to let go by. This was one such post...

thank you for posting it.

::sends virtual hug if you are consenting::

;-)