Making Sense of Sexual Consent

Mark Cowling, Paul Reynolds, Mark Cowling, Paul Reynolds

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351920711
• Edition: 1
• Topic: Psicología
• Subtopic: Sexualidad humana en psicología

The issue of sexual consent has stimulated much debate in the last decade. The contributors to this illuminating volume make sense of sexual consent from various conceptual standpoints: socio-legal, post-structural, philosophical and feminist. The volume comprises a range of studies, all based around consent within a specific context such as criminal justice, homosexuality, sadomasochism, prostitution, male rape, learning disabilities, sexual ethics, and the age of consent. It is the first collection to publish exclusively on issues of sexual consent, and both makes sense of sexual consent in contemporary society and guides debate towards better consent standards and decisions in the future. Making Sense of Sexual Consent will excite considerable discussion amongst academics, professionals and all those who think that freedom to make decisions about our sexual selves is important. It will set the agenda for debate on sexual consent into the 21st Century.

PART 1

(MORE) GENERAL AND THEORETICAL THEMES

Chapter 1

Rape, Communicative Sexuality and Sex Education

Mark Cowling

Introduction

In this chapter I discuss what approach to consent should underpin anti-rape education, whether this takes the form of student codes at colleges, specific educational activities, or public discussion aimed at avoiding rape amongst young people. After pointing out that the very widespread extent of unrecorded and unprosecuted rape makes it highly unlikely that the problem of rape will be solved exclusively by a more vigorous prosecution regime I discuss the Antioch College Ohio Student Code. This demands that students at the college should secure explicit verbal consent to each new level of sexual escalation. It is not, I maintain, at all clear what this would mean in practice. The best way to make it clear would be to carefully specify each act which requires verbal permission. This would be unduly elaborate and cumbersome. Might it be possible to simplify things by using a version of the commonsense idea that – for example – a woman who consents to sex also implicitly consents to kissing on the mouth and having her breasts felt but does not implicitly consent to group sex? Unfortunately this idea is too vague to work on its own. I propose instead an approach based on recent research about how sexual consent is actually given, and argues that proposals developed from this would be the most realistic.

Why Sex Education?

There is widespread agreement that most instances of rape and sexual assault do not result in convictions in court. In England and Wales in 2001–2, for example, the police recorded 9,008 women as having been raped, resulting in 559 convictions or cautions (Home Office recorded crime statistics). Myhill and Allen, using data from the British Crime Survey, estimate that in 2000 61,000 women aged between 16 and 60 were raped, i.e. 12.6% of victims reported the incident to the police (Myhill and Allen, 2001, pp. 48–9). In my book Date Rape and Consent (Cowling, 1998) I looked at various estimates extrapolated from surveys which would show that there were anything up to 270,000 incidents of rape and attempted rape each year in England and Wales. Whilst it is very difficult to find an exact estimate on which most people would concur, it is clear to all that there is far more rape and sexual assault than appears in either recorded figures or convictions. Further, if rape was prosecuted at anything like the rate at which it occurs the prison population of England and Wales, currently at a record of around 73,000, would need to at least double.

Efforts should certainly be made to raise the rate of conviction for rape. The Sexual Offences Act currently before Parliament is partly intended to do this, as was the Youth Justice and Criminal Evidence Act, 1999. However, there is no massive programme of prison building; my impression is that only a modestly increased rate of conviction is anticipated. Rape legislation, therefore, is partly a matter of publicly stating what is acceptable behaviour as a form of education. The hope is that by stating what is allowed and what is not in the law there will be a shift in what men see as tolerable. This can certainly happen on the basis of very few convictions, as can be seen with the legislation on race relations, and as may have happened to some extent with the criminalisation of marital rape in 1994.

Education is certainly one of the goals of the Sexual Offences Act. Its very first clause extends the definition of rape to include forced fellatio on the basis that this causes just as much distress to victims as vaginal or anal rape. This in turn led to a debate in the House of Lords, with critics asserting that although they accepted the point about seriousness there is a public perception that a ‘shiner’ is distinct from, and possibly a bit less serious than, vaginal rape (see House of Lords debates, 31^st March 2003). Arguably much more important, the proposed Act fleshes out the current definition of rape as sex without consent by defining consent as ‘free agreement’, and includes in the statute a non-exhaustive list of examples of situations in which free agreement does not exist. I have argued that this goes as far as the law should to writing the ideals of communicative sexuality into statute (see Cowling, 2002a).

The Antioch Code

Although the law can act as a form of sex education, it has a relatively limited role. There has been more discussion in the British press about the clause in the Sexual Offences Bill which would have made it illegal to have sex in your garden than there has been about the issue of free agreement. I teach a final year university course on rape and sexual assault, and I am afraid to say that only two or three of the 50-odd students on the course had heard of the Sexual Offences Bill.

Surveys suggest that the peak age for rape and other forms of sexual assault, both for victims and for perpetrators, is the late teens and early twenties. It is also clear that the rapes which are least reported are those by dates and acquaintances. All of this suggests that there should be a role for forms of sex education focused on rape and directed at this age group. The most famous attempt at this is the Antioch College Ohio code, written by students at Antioch College, Ohio, but with widespread campus discussion, in 1990. The code is based on the idea of communicative sexuality, i.e. that sex should ideally be based on mutuality and friendship. Elsewhere I have offered some criticisms of this ideal (Cowling, 1998, 2002a), briefly that it does not work directly for established relationships, and that it points to an artificial criterion for rape which would be rapidly discredited if passed into law. Here I want to look more extensively at sex education. By this I do not mean the pedagogical details but the basic underlying principles of sex education directed at minimising rape. Let us start by examining the Antioch code.

Antioch College Sexual Offence Policy (part)

1. For the purposes of this policy, ‘consent’ shall be defined as follows:

the act of willingly and verbally agreeing to engage in specific sexual contact or conduct

2. If sexual contact and/or conduct is not mutually and simultaneously initiated, then the person who initiates sexual contact/conduct is responsible for getting the verbal consent of the other individual(s) involved.

3. Obtaining consent is an ongoing process in any sexual interaction. Verbal consent should be obtained with each new level of physical and/or sexual contact/conduct in any given interaction, regardless of who initiates it. Asking ‘do you want to have sex with me?’ is not enough. The request for consent must be specific to each act.

4. The person with whom sexual contact/conduct is initiated is responsible to express verbally and/or physically his/her willingness or lack of willingness when reasonably possible.

5. If someone has initially consented but then stops consenting during a sexual interaction, she/he should communicate withdrawal verbally and/or through physical resistance. The other individual(s) must stop immediately.

6. To knowingly take advantage of someone who is under the influence of alcohol, drugs and/or prescribed medication is not acceptable behaviour in the Antioch community.

7. If someone verbally agrees to engage in specific contact or conduct, but it is not of her/his own free will due to any of the circumstances stated in a. through d. below, then the person initiating shall be considered in violation of this policy if:

a. the person submitting is under the influence of alcohol or other substances supplied to her/him by the person initiating;

b. the person submitting is incapacitated by alcohol, drugs and/or prescribed medication;

c. the person submitting is asleep or unconscious;

d. the person initiating has forced, threatened, coerced or intimidated the other individual(s) into engaging in sexual contact and/or sexual conduct.

The policy then spells out a series of offences which are implicit in the above: rape, i.e. ‘Non-consensual penetration, however slight, of the vagina or anus; non-consensual fellatio or cunnilingus’, sexual assault, i.e. basically attempts at rape; sexual imposition, i.e. non-sexual touching of ‘thighs, genitals, buttocks, the pubic region, or the breast/chest area, followed by other offences less interesting from our point of view such as sexual harassment or failure to disclose HIV positive status. The rest of the policy describes how it will be enforced.

Critique of the Antioch Code

The Antioch code led to extensive American, and indeed, world-wide controversy and ridicule. Like everyone else involved, Alan Guskin, the president of Antioch College at the time the policy was developed, was surprised at the intense media interest in the policy. He puts this down partly to a public interest in sex, but more specifically to the requirement that students should talk about it (Guskin, 1996, p. 157). Whilst I am sure he is right about these two factors, the degree of ridicule which the policy aroused leads me to think that there is a further factor: the code was widely felt to impose artificial requirements on an intimate area of life in a mechanical fashion. There is a popular image of Antioch students setting off for dates with a pile of consent forms, a lawyer and a breathalyser. Although this caricature goes well beyond the code, I think its mechanistic quality is why, despite the fact that I defend the code as an attempt at a serious solution to a serious problem, my students always seem to laugh when I first mention the code (which they have usually at least vaguely heard of). In the course of his article explaining and defending the policy Guskin quotes a letter written to The New Yorker in its support. The author, Julia Reidhead, describes the code as an ‘erotic windfall’: ‘What man or woman on Antioch’s campus, or elsewhere, wouldn’t welcome the direct question “May I kiss the hollow of your neck?” The possibilities are wonderful…’ (Guskin, 1996, p. 158).

In its way this letter sums up many people’s general reservations about the code: it is requiring everyone to rewrite their erotic conduct, most of which seemed to be working adequately before. The Antioch policy seems to me to be flawed on this point. It talks of obtaining specific verbal consent to ‘each new level of physical and/or sexual contact/conduct’, but does not specify what exactly is involved in this. Would most people surely understand what is meant by a level? The more I have thought about this the less clear I have become. Kissing somebody on the mouth presumably requires permission. Would kissing someone upon the mouth with tongue contact require further permission? How many times would a man who wants to kiss his date’s breasts have to ask permission? Which of the following are otiose and silly? (I am assuming that right and left breasts are on the same level.)

Table 1.1 Possible Steps to Breast Kissing Following Antioch Policy

1. May I touch your breast through your clothes?

2. May I remove your overcoat?

3. May I unbutton the top two buttons of your blouse?

4. May I put my hand inside your bra?

5. May I take off your blouse?

6. May I take off your bra?

7. May I kiss your breasts?

Except as a one-off special event, sex following the Antioch code is getting to look tedious, particularly in a long-standing relationship where the couple have come to know each other’s preferences well. How many levels are there in total? The following is a Guttman scale produced by Cowart and others:

Table 1.2 Example of a Guttman Scale

31	Bondage
30	Use of mild pain
29	Finger penetration of partner’s anus
28	Sexual intercourse, sitting
27	Sexual intercourse, standing
26	Hand contact with partner’s anal area
25	Sexual intercourse, from rear
24	Male tongue manipulation of female genitals to orgasm
23	Shower/bathing with partner
22	Sexual intercourse, female superior
20	Sexual intercourse, face-face, side
19	Mutual oral stimulation of genitals to orgasm
18	Male tongue manipulation of clitoris
17	Male tongue penetration of vagina
16	Sexual intercourse, partly clothed
15	Male mouth contact with vulva
14	Clitoral manipulation to orgasm by male
12	Sexual intercourse, male superior
11	Male manipulation of vulva
10	Female mouth contact with penis
9	Male lying prone on female, no penetration
8	Manipulation of penis by female
7	Clitoral manipulation by male
6	Partner’s observation of your nude body
5	Your observation of nude partner
4	Male finger penetration of vagina
2	Male mouth contact with female breast
1	Feeling female’s nude breast

(Table adapted from Cowart and Pollack, 1979 and Cowart-Steckler, 1984, found in Hall, 1998. This table is for males; the one for females is very similar, with minor differences in order. Omitted activities are presumably solitary, notably masturbation and the contemplation of pornography.)

Although this is a good start on a possible list of levels, readers will have no difficulty in making additions. The list should surely mention kissing, and probably French kissing, before anything more directly sexual is dealt with. At the other end, what about anal intercourse and rimming? Some levels might need sub-division – do the couple become nude at one bound? What about using or not using condoms and/or contraception for various activities? There is nothing here about having more than one partner. What about the use of ice, oils, whipped cream, chocolate spread, orgy butter? What about sex toys, vibrators, Thai beads, dildos, nipple clamps and the like? What about the use of assorted drugs on a voluntary basis? What are the partners to do with the metal ornaments which are the result of body piercing? The sado-masochistic possibilities considered are very limited. What about filming the event on video? Perhaps, also, combinations of possibilities should form additional levels: an additional partner, chocolate spread and an anal vibrator could be seen as different in combination than these items taken singly. It looks as though an appendix to the code offering examples of levels would run into at least the low hundreds. Things would get worse if the code also specified levels for gay and lesbian sex, which it certainly should. As the basis of sex education for, say, fourteen year olds this is beginning to look much too complex and alarming.

One possibility might be a simplification based on the idea of a Guttman scale, which is that someone who has carried out the acts in the higher levels (with higher numbers in the list above) has also carried out the acts in the lower levels. This could be the basis of a convention about consent: if you consent to an act with a higher number you consent by implication to the acts with lower numbers. Thus a woman happy in a particular situation about sexual intercourse from the rear would also be happy to have her nude breast felt, but not vice-versa.

There are several reasons for resisting this seductive approach. It tends to reinforce the patriarchal teleology in which heterosexual encounters lead inevitably onwards and upwards towards genital sex. In contrast, one of the ideals of communicative sexuality is that the partners should explore all sorts of activities which may give them pleasure. In addition, people do not agree fully about the levels on a Guttman scale, which are the product of averaging. Thus part of what was at stake in the House of Lords debate already mentioned was whether or not fellatio is on the same level as genital and anal sex. Similarly, Hall asked his subjects in which order they had moved through 12 levels of engagement ranging from kissing and hugging through to anal sex in their most recent sexual encounter. It seems a reasonable assumption that people would normally progress from the lowest levels such as kissing and hugging through to intercourse, but out of 300 subjects the best exact correlation of sequences he could come up with was four women who had moved through eight levels in the same order as each other. Agreement about higher or lower levels might be rather better than this, but any list would obviously involve an average which violates some people’s preferences. There is nothing to stop individuals having their own, idiosyncratic, order of levels. For example, a man who was happy to do virtually anything else might object to having his chest stroked. There might also be straightforward reason...