Sex Can Be Complicated. Consent Is Not

On last week’s episode of The Mindy Project, the necessary conflict between the show’s two leads—who’ve entered a happy, loving relationship after two seasons of will-they-or-won’t-they?—was provided by anal sex. Or, more specifically, by ongoing issues of consent within a committed relationship, occasioned by an attempt at anal sex. 

The basic scenario is this: While watching a reasonably tasteful shot of the bedroom door, we hear Mindy and Danny happily getting it on. Suddenly, Mindy yelps words to the effect of, “Danny! That doesn’t go there!” followed by a clumsy separation and a bullshit apology: “I slipped.”

He didn’t slip, of course. (As the show makes clear, no man has ever “slipped” and ended up with his penis in the wrong hole.) But over the course of the episode, these two people—who’ve known each other for years and communicate amazingly well for a sitcom couple—speak frankly about their sexual desires, sincerely apologize for lies and other relationship failures, and eventually come to a perfectly reasonable, grown-up agreement: If you want to try something drastically different in bed, ask first.

I thought the episode was groundbreaking, not just because it was the first depiction of attempted butt sex on prime time, but because I can’t recall ever seeing adult partners on TV negotiate their sexual boundaries, in and out of bed, using words! The show is a comedy, but it took consent more seriously than approximately 99.9 percent of pop culture offerings in my memory. As a staunch feminist and author of a forthcoming book on rape culture, I was delighted—until I discovered that some people are characterizing Danny’s thwarted attempt to “steal fifth base” as sexual assault. According to this logic, because Mindy hadn’t signed off on anal in advance, at the precise moment peen hit butt, he became a rapist.

Oof. You guys. Let’s just think about this for a minute. I don’t usually find myself saying this to people who are extremely sensitive about sexual boundaries, but I do find myself saying it a lot in my line of work: For pete’s sake, consent is not that fucking complicated.

*

What is it about sex and consent that makes people think regular Earth logic is insufficient?

The recent “Yes Means Yes” legislation passed in California (and under consideration in New York and New Jersey), has otherwise sensible people—people who purportedly oppose rape—losing their damned minds. The California law requires colleges that receive state funding for financial aid to “to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant.”

That standard is described like so:

“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Basically, if at any point, you’re not completely sure your partner is into what you’re doing, you need to stop doing it (if you’re a student at a college that relies on state funding, and you don’t want to risk getting thrown out). This is neither rocket science nor appalling government overreach. This is being a decent human being.

Take The Mindy Project‘s Danny. About one split second after his girlfriend said she wasn’t cool with what he was doing, he stopped—not just the offensive act, even, but the whole sexual encounter. That’s being a decent human being, and taking responsibility for ensuring that “consent must be ongoing throughout a sexual activity.” Mindy’s lack of enthusiasm was portrayed as an instant boner-killer, as it damn well should be.

Sure, in an ideal world, boyfriends would always ask before trying to penetrate a new orifice—and they definitely wouldn’t try to cover it up with a weak lie after the fact. Danny is duly shamed for that crap, by the way, and Mindy doesn’t forgive him until he’s apologized and they’ve agreed on how to handle things in the future so neither of them ever feels unsafe. To my mind, the episode sent exactly the right message about consent—it’s not a black-and-white contract you sign before having sex, but an ongoing series of communications between sexual partners, whether that takes place during a single encounter or over several years.

Again, that fact should neither frighten nor confuse anyone who’s had sex before. When you become sexually active, you quickly learn that sex as it’s practiced in the real world nearly always demands small, quick renegotiations as you go along. Sometimes a long-term partner wants to try something new in bed, and sometimes even the old things hurt if you do them at the wrong angle. Sometimes the person on the bottom wants to be on top, or somebody’s arm gets squished, or a head bashes into the headboard. Sometimes, an act that felt great when your partner started it actually makes you feel sore after a couple of minutes, and you need it to stop, even though you enthusiastically consented to the act before and loved what was happening up to that point.

Real people having real sex deal with this shit all the time. Practicing affirmative consent means being cognizant of how your partner’s responding to everything that happens, doing everything you can to make sure you’re both happy, and respecting the other person’s boundaries even when they conflict with your immediate desires.

In other words, it’s what decent people already do, without being told.

*

Sex is a mutual adventure that promises pleasure for all parties involved (even if it doesn’t always deliver). Doing quasi-sexual things to someone who isn’t clearly consenting is a violent, dehumanizing act. Accordingly, it is not something most people would or could do by accident, no matter how drunk. It’s something relatively few people do, because they want to. Because that’s what gets them off.

Confusion about this basic, crucial point—that sexual assault and rape are deliberate acts most people would not find sexually exciting—causes people to fear being legally required to do what they’re probably already doing in bed. And boy, are we ever confused about that basic, crucial point. Especially when alcohol is involved.

I recently witnessed a conversation among longtime feminists in which one admitted she had no rebuttal for the argument that the flipside of “too intoxicated to consent to sex” is “too intoxicated to know the other person hasn’t consented.” If we acknowledge that victims can be out of their mind on alcohol and drugs, aren’t we obligated to acknowledge that perpetrators can be as well?

Well, sure, of course they can. That just doesn’t absolve them of responsibility for any crimes they commit while wasted. Someone who robs a bank, punches a fellow barfly, or kills his wife while kneewalking drunk has committed a crime. So has someone who rapes while drunk. Easy-peasy.

But one of these longtime feminists, a woman I admire greatly, rejected those analogies on grounds that all of those other crimes are just as criminal if you’re in your right mind. Sex, on the other hand, is not a crime when you’re sober!

Well, sure, of course it isn’t. But who was talking about sex?

Rape is a crime whether you’re drunk or sober, just like robbery, assault, and homicide.

Sex—contrary to feminist caricatures so pervasive they can even trip up a longtime supporter of the cause—is not a crime under any circumstances. And no one is trying to make it one, I promise. If you’re still awake and agile enough to get it on after you’ve killed a bottle, and you have a partner who’s equally awake, agile, and into it, huzzah! Barmaid, bring a pitcher! You have my bone-a fide feminist blessing to get naked and have as much fun as the bedspins permit.

The thing that magically turns sex into rape is not alcohol. It’s the lack of consent. A partner who’s had a lot to drink and says, “Woohoo, let’s bone!”—then continues to give verbal and non-verbal clues that they’re enjoying everything—is not secretly a victim. And a partner who’s half-passed out, or disoriented and ill, or giving unclear signals about what she wants, is not actually a partner.

When you genuinely grasp that rape is a crime of dominance, sex is mutually agreeable fun, and the two are not so easily mistaken for each other, the fear that you—or your golden child—might unwittingly do something illegal in the heat of the moment falls away. If you’re fundamentally not the type of person who would use another human being as a warm-blooded sex toy, no amount of alcohol is going to change that.

Even if sexual violence were legal—and let’s be real, in a country where the FBI estimates that 92 out of 100 rapes are never prosecuted, it basically is—wouldn’t most of us still feel so viscerally frightened and disgusted by the thought of drunkenly raping someone, we’d do anything necessary to avoid it? If we as a society truly see rape as the second worst crime after murder—and let’s be real, we don’t, but we sure like to say we do—shouldn’t the prospect of losing control and committing it seem at least as terrible as being falsely accused of it?

I mean, the thought of being framed for murder, and put on trial for a major crime I didn’t commit, is chilling as hell. But the thought of actually killing someone, of ending a life with my own two hands under any circumstances other than self-defense, is much, much worse. I simply can’t imagine how I’d live with myself after that. So for me—and I’d wager for most people—the priority order goes: 1) Never murder anyone. 2) Hope nobody ever sets me up so it looks like I murdered someone while I was drunk. With about a million miles of distance between the two.

If we wouldn’t buy the argument that alcohol obliterates a person’s ability to distinguish between hugging and strangling, why do we believe it can erase the obvious differences between consensual sex and rape? Why do we accept the myth that the line between consent and non-consent is filament-fine, or easily blurred?

That myth doesn’t protect innocent men from being accused of rape by vengeful bitches; it protects people who get off on dehumanizing and dominating victims who never agreed to that, by conflating their actions with normal, healthy sex.

The affirmative consent model, on the other hand, does offer some protection to innocent people having actual sex. First, it should offer us all a measure of extra confidence that as long as we pay attention to our partners’ responses, looking for active enthusiasm and making changes as the situation warrants it, we’ll never accidentally stumble over the line between sex and rape—because that’s really more like a wall that some people deliberately scale.

And if for some terrible reason we ever find ourselves falsely accused by a consensual sex partner, we’ll be able to say honestly and assuredly that we received numerous indications of enthusiasm throughout the encounter—not just that we never heard a “no” or took a punch to the face.

If Mindy reported Danny for putting his penis in her anus without consent, for instance, he could honestly tell investigators that prior to that moment, she was moaning, saying yes, telling him what he was doing felt good—and the second she told him what he was doing didn’t feel good, he stopped. He was constantly aware of her level of engagement, and he respected the boundary she set.

That’s a way better defense than “Well, she was lying still for most of it, not saying ‘no’ or throwing me off her, but when she did yell at me to stop, I stopped.” It’s also a description of way better sex. Affirmative consent is a win-win, because the only people who wouldn’t want a clearly enthusiastic partner are the ones who benefit from laws and policies that say a victim must prove she’s done the utmost to resist, or it wasn’t rape. Which is to say, people who are looking for victims, not partners, in the first place.