We risk turning sex into a legal transaction, writes David Quinn
A poster currently appearing on university campuses around the country reads: ‘You asked her name. You asked her out for drinks. You asked her back. You asked her if she wanted to have sex, right? Sex without consent is rape.’ There is an equivalent one aimed at women.
The posters are part of a new campaign called ‘Ask Consent’ which was launched last week by Justice Minister, Frances Fitzgerald.
The campaign has been prompted in part by a survey conducted by the Union of Students in Ireland (USI) which found that 16% of those who took part in the survey had experienced some form of unwanted sexual experience while at university.
How accurate is this survey? Who knows?
The campaign is based on the idea that consent cannot be assumed simply before one or other of the would-be sexual partners did not say ‘no’ to having sex. There must be explicit consent. Both parties have to explicitly agree to it. They have to say ‘yes’ and explicit permission must be given to each individual sex act.
Sex, in other words, becomes a sort of legal transaction where the partners have, in effect, to sign on a dotted line as they proceed from one sexual act to another.
If explicit consent is not given, then one or other person can be accused of rape. That will almost invariably be the man.
There are now calls for something like the ‘Ask Consent’ principle to be enshrined in our laws.
How would this work out in practice? If a woman said she did not give explicit consent to sex, how would she prove this? Would it be up to the man to prove that she did give explicit consent?
Apps for smart phones already exist that are designed to record both partners giving their explicit consent to sex. Will these become widely used?
What happens when one or both partners are drunk? They’re very likely not going to remember to explicitly ask for permission to have sex let alone record receiving permission via an app. Will the assumption be that most drunken sexual encounters are rape, especially when one partner is drunker than the other?
Basically, the ‘Ask Consent’ campaign, especially if backed by law, is going to potentially criminalise an awful lot of sexual encounters by making it much more likely that a given encounter will considered rape.
We will move from a scenario where someone must refuse to have sex and are forced to do so against their will before it can be considered rape, to one where a failure to ask permission and gain explicit permission will be considered rape.
Will we now see sex scenes in movies change? At present, if two characters disappear into a bedroom for sex no script-writers have them pause to ask one another for permission to have sex. The fact that they have followed each other to the bedroom is assumed to be permission enough.
The ‘Ask Consent’ philosophy would change all that. Will script-writers now follow suit and have the two would-be lovers reach for their smart phones to bring up the ‘Ask Consent’ app and only proceed to have sex after they have each given consent and recorded it via the app? (What happens when one or other then puts the recorded permission on Facebook so they can boast about last night’s ‘sexual conquest’?)
At the end of the day, the ‘Ask Consent’ campaign is really an attempt to reintroduce some kind of sexual rules into a scenario where almost all the rules have disappeared.
The ‘Ask Consent’ campaign is actually an indictment of what sexual ‘liberation’ has wrought. The people behind the campaign won’t see it that way, of course. Nonetheless, it is what has happened.
Prior to the sex revolution, people basically had to be married before they had sex. Moral conventions ensured this. The moral conventions developed because of the facts of biology; sex led to children. Getting married before having sex basically meant getting married before having children.
The invention of effective artificial contraception changed all that. The fear of becoming pregnant outside of marriage diminished hugely. No longer did people have to wait until marriage to have sex. In fact, they didn’t even have to wait until they were in a relationship of any sort to have sex.
The new rule of sex morality – the only one really – became ‘anything goes between consenting adults’. The way was wide open to casual sexual encounters with someone you met two minutes ago and might never meet again.
Now we see there can be huge problems with the idea of ‘consent’ in such an environment. When two people have just met, and they’re both drunk, can consent really be given?
If she goes back to his place and they’re both sober, she may only want to go so far, but he wants to go further. She doesn’t explicitly refuse him. He gets his way. She regrets it afterwards. Did she really give consent? The ‘Ask Consent’ people would say she did not because she never said ‘yes’ and that she was a victim of rape.
If they were both in a relationship, it would be a totally different story. Presumably the ‘Ask Consent’ people wouldn’t go so far as to say that two people in a long-term sexual relationship (including a married couple) would have to give each other explicit consent every time they have sex?
Presumably in this case, we could assume that the existence of the relationship was a standing ‘permission slip’ as it were, to be revoked only when one or other partner explicitly refused to have sex?
So it is actually the disconnect that the sex revolution has caused between sex and relationships (never mind marriage) that has created the anarchic world in which a campaign like ‘Ask Consent’ is felt to be necessary.
In the final analysis, the ‘Ask Consent’ campaign is a sort of counsel of despair. Much better than criminalising a potentially vast number of sexual encounters, would be to encourage the idea that sex ought to take place within an established relationship.
For Christians, of course that relationship ought to be marriage, but an established relationship of some kind would be a big step in the right direction compared with where we are now, and what the Ask Consent campaign is a response to.