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.)

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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

[world-rim-walke.livejournal.com]

Violation is intentionally going where you know you're not supposed to, where you have no right to be. A "monster" in this case is a bad person, in this case referring to someone who intentionally violates someone's personal space & safety. So that would be the "people who blithely trample all over other people's boundaries without giving a crap".

As I read your original post, it sounds like one would need prior consent to make physical contact with anyone else lest it be deemed assault. This could apply to affection between friends or even touching someone's arm or shoulder just to get their attention. A crowded room becomes the location of a massive brawl, with everyone assaulting everyone because it's impossible not to touch others in that situation.

Those are the sorts of situations in which I feel it's safe to assume implied consent, which makes the contact not assault. If I have, with consent, hugged, rubbed the head of, scratched the back of, smacked the ass of, et al., a friend before, I feel it's safe, in similar situations, to assume that I have consent to do those things again. If I need to get someone's attention, I assume I have consent to touch their arm or shoulder in order to get their attention.

I was not offended at your judgement call; I agree with it, I was more stating that we probably disagree about where the disconnect in "physical contact without consent=assault=violation=monster" equation is. I can see, in looking over my previous comment, that wasn't clear & I apologize for that. I would also agree that the only way to be 100% certain is to ask for consent every time. However, getting explicit consent before any change in physical contact with another person can range from silly, as with asking a friend you've hugged thousands of times for permission to hug them, to absurd, like asking permission to brush past everyone in a crowded room or to touch someone's arm or shoulder to get their attention as at that point you've already gotten their attention.

So, while asking for consent will ensure that you never assault anyone, it's safe to assume consent in some situations &, whether you are right or wrong in specific situations, it doesn't make you a monster.