emanix

emanix


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


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"...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.)

Edited at 2012-10-17 03:38 pm (UTC)

Good point! I missed that one.

I am totally adopting the concept of Schrödinger-sex!

Me too. By never having the courage to ask, I never collapse the wave form, so I'm in effect constantly almost having hypothetical sex. Which is more than I usually get. :-P

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.

Erm, yeahhh... that's pretty much how the world works. Why is that disturbing, exactly? You want random strangers coming up to you and grabbing any bit of your body to do what they like with without your consent?

I'm not saying all consent has to be in written format, signed in triplicate and witnessed by a solicitor. There are plenty of ways in which you can ask for consent in a more subtle manner. And nor am I talking about accidentally bumping elbows in the street. That's covered under the 'stepping on feet' paragraph. Why would you take it to the police if someone accidentally stepped on your toe? You wouldn't, and I imagine it would be laughed out of court if you did. If someone repeatedly and deliberately stepped on my toe in a way that hurt or inconvenienced me, though? Then I probably would.

To take an every day example, if you meet someone new, you might decide you want to shake their hand. You invite them to shake hands with you by making eye contact, proffering your own and seeing if they respond. You've informed, by making a 'shake hands with me' gesture, and they've consented, by grasping your hand in order to shake.
On the other hand (as it were), if you were to sneak up on someone from behind and grab their hand without having sought consent in such a manner, I believe that is known as a common assault, at least in the UK. Chances are not many folks would take it to the police unless they were particularly frightened by you as a person, but it is still, technically, assault.

If you were instead to grab a sexual part of someone without seeking consent in such a manner, or as I saw in a recent article, grab *their* hand and say, stick it down your pants without asking if that's okay, then that's sexual assault as well, and significantly more likely to get you into serious trouble, and for good reason.

For some reason it always seems to take a hell of lot explaining to get across such a simple concept: My body is mine. You don't get to touch it unless I agree. Your body is yours, I don't get to touch it unless *you* agree. etc. etc. Anything else IS some form of assault, yes, even if nobody feels like being upset by it.

What about touching someone to get their attention? Allowed or not? For example, this morning as I was getting off the train, I noticed that the young lady in front of me had left her woolly hat on the seat. As she was ahead of me and I couldn't make eye contact, I tapped her arm and said 'Excuse me?' to get her to turn around so I could point out the hat.

It's about this point one realises that the lawyers (a) like absolute rules, and (b) love exceptions. In particular in consent to bodily contact the law is often willing to find "implied consent" if the general circumstances of the world are such that anyone would say that a ("reasonable") person would have consented had they been asked in advance. So, for instance, in a public street (train station, etc) they will often imply consent for the everyday sort of touching that happens in that situation -- bumping elbows/shoulders as you work through a crowed, stepping on someone's shoe, and -- I think -- someone tapping your shoulder or touching your arm to get your attention to something you need to know about. (The same thing happens with, eg, sports that involve physical contact -- going on to the field of play is taken as implied consent to, eg, being tackled.) This "implied consent" (due to the circumstance) is pretty limited, and at the point it goes beyond the narrow exception it goes back to being assault (so, eg, punch-ups on a sports field are still assault -- and barging into someone in a crowd and pushing them aside would also be assault). It's also possible for someone to explicitly withdraw that implied consent by telling you in advance (eg, "stop touching my arm" to someone being annoying in a crowd -- or probably even if automatically if they were doing it "too much", more than a "reasonable" person would think was allowed).

So, personally, in a crowd, to legitimately get someone's attention to something they needed to know, I'd consider tapping them on the arm (once or maybe twice) to be part of that limited exception of implied consent. I still might be inclined to try yelling at them ("hey, ma'am, you've dropped your hat"), but obviously that doesn't work very well in a noisy crowd, especially when people are distracted and in a rush.

Personally, after thinking about this a lot in the last 20 years, I'm not convinced that "any touching without (explicit) consent is assault (oh, but there are lots of exceptions)" is a useful formulation for real world interaction (even if most ridiculous counter examples would be considered "de minimis" -- not worth the court's time -- by the law). It seems almost inevitably to lead to such "unproductive" discussions by anyone trying to pay attention to the letter of the law, and many others just seem to say "that's stupid, I'm ignoring that".

That said, I certainly agree that spanking people on the bottom as they walk past without having obtained prior consent</a>, is assault. Even if you "think they will like it". Even if it turns out, luckily for you, that they did.

Ewen

Added a clarifying paragraph in response to this and a similar parallel discussion on facebook:

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!


Edited at 2012-10-17 10:16 pm (UTC)

Good question! And clearly I'm not the arbiter of what you can do with anyone else's body. Ultimately that's up to the person you're touching.

For me, though, I think I'd make the call based on whether it's for their benefit or mine: Tapping someone's arm to get their attention because you want to do them a favour, great. To ask for their phone number? A little more iffy, but still room for consent, and they might possibly benefit from being friend with you, who knows... To ask them for a favour? Okay, that's for your own benefit, but it may also make them feel good to be able to help. Humans are complicated like that! Just because you feel like making them turn round? Significantly more dodgy. (Takes me back to my previous post 'I Am Not Here For Your Entertainment')

Pondering a little further, I think it also makes a major difference if someone can *get away* from the touch easily. A tap on the shoulder is minimal contact and can be moved away from easily. An uninvited hug can't be, which is why one would normally be more careful to check consent before hugging someone than tapping them on the shoulder.

It's definitely can be less.... creepy if the other person has the option of moving away from the touch, and I agree that seeking more consent in advance, where your action will reduce their ability to move away is a good thing (and/or doing things in such a way that moving away remains an option).

However it's also clearly not the only thing. A "smack on the bottom as you walk by" is easier to move away from than a hug too. But I think I'd want to see more consent to "being smacked on the bottom" than a brief hug (possibly depending on how much "Californian-style hugging-as-greeting" culture is operating.)

Ewen

Your body is yours, I don't get to touch it unless *you* agree. etc. etc. Anything else IS some form of assault, yes, even if nobody feels like being upset by it.

I can see how this works legally, but, to my perception, assault is violation & makes one a monster. It seems like you don't see the connection to being a monster; I prefer not to see certain things as an assault as per edm's limited exceptions of implied consent.

I'm afraid you're not making sense. On the one side you seem to be complaining that too many things require prior consent, and then on the other you seem to be offended at my assertion that having made a judgment call and occasionally gambled on a friend's amusement at my playful abuse of their person doesn't make me a monster. This isn't about excusing people who blithely trample all over other people's boundaries without giving a crap. It's about making people think a bit more about how they themselves may actually have assumed other people's consent without thinking about it, and encouraging everyone to be a bit more conscious about it.

What 'certain things' do you prefer not to see as assault? That comment worries me. And please define 'violation', and define 'monster' for that matter (I am aware I didn't define the word either, when I used it, but since I was saying I *wasn't* it, I wasn't in a position where I had to).

As I say in my clarifying paragraph, the point is that the only way to be *100% certain* that you're NOT going to end up with a criminal record for assaulting somebody (sexually or otherwise) is to look for active consent. Which is generally a way to have better, more satisfying interactions with everyone concerned anyway.

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.

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!

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").

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.

Edited at 2012-10-18 12:16 am (UTC)

YES!!

This is EXACTLY what I was trying to say! :)

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 :-)

(Deleted comment)
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