Sex Column: You Want Sex? Just Say Yes

Before we had sex for the first time, my boyfriend asked if I was sure I wanted to proceed.

“Oh yes!” I said. “You?”
“Definitely!” he responded. The rest, as they say, is history — or would be, if we were important enough to warrant a mention in the text books of future generations.
This is an example of what is called enthusiastic or affirmative consent. Enthusiastic consent is an idea that has caught on over the last few years and the basic premise is that consent should not be the absence of a “no” but the presence of a “yes.”
Granted, the above exchange doesn’t sound particularly romantic or sexy – although it was. That’s because I’ve left out the milieu — candles, music, decent whiskey and the fact that he’d made me a delicious dinner beforehand. As every heterosexual woman knows, there are few things sexier than a man who can cook, except of course, a man who is concerned about your sexual enjoyment.
If you’ve been following the news, you’ll be aware that sexual assault on American university campuses has recently become a much-debated topic. After a number of high-profile reports about the sheer number of assaults and in many cases, cover-ups or lack of response on the part of the university authorities, lawmakers in California have proposed that students should ask for explicit consent before engaging in any sexual activity.
This seems like a small thing to ask, so it is surprising that many people have thrown up their hands in a horrified manner – as if sexual freedom was under threat. The libertarian journalist Cathy Young called the proposed law “absurd” and “dangerous” and law professor David Bernstein argued that it would make almost every American adult, male or female, a rapist. Critics of enthusiastic consent fear that the idea is unworkable, will criminalise most intimate relationships and may eventually require two people to sign some kind of contract before having sex. But this, I believe, is a wilful misunderstanding of the idea.
First off, enthusiastic consent doesn’t necessarily have to be verbal. It’s probably true to say that the vast majority of sexual encounters are not preceded by explicitly asking whether or not your partner would like to have sex. This is simply because, for the most part, it is unnecessary to do so. On many occasions, the question is implied — by asking someone if they want to come home with you; negotiating safe sex; telling them how turned on you are; or indicating in some way that you wish to have sex.
Even if that is not the case, you can pretty much always tell whether or not someone is eager and aroused, or uncomfortable and unwilling. This is doubly true if you are in a relationship with someone, although technically speaking, all sexual encounters require consent, whether you have just met or been married for years.
However, if you are with a new partner, getting a verbal go-ahead can only be a good idea, particularly if you are young or not sexually experienced enough to be sure that you understand non-verbal cues. Besides which, if you are with somebody new, there could be myriad reasons why they may not be keen on, or ready for, penetrative sex just yet. Perhaps he doesn’t have condoms; perhaps she is menstruating; perhaps one or both of you would prefer to wait until you know each other better. I have always felt that discussing what you are happy to do beforehand doesn’t kill the mood: it heightens it. Talking about sex and knowing what your partner wants and enjoys are both turn-ons.
Secondly, despite the name, enthusiastic consent doesn’t mean that your partner has to jump up and down with delight at the idea of having sex with you. I mean, obviously they should — you’re pretty darn amazing — but some people like to express their excitement in a more gentlemanly or ladylike fashion.
Some critics have suggested that requiring affirmative consent would make even innocuous sexual encounters criminal offences. Did you ask before kissing your girlfriend? Did you get permission to run your hands up your boyfriend’s back under his shirt? No? You’ve committed a sexual assault!
This is patently nonsense and nobody is seriously suggesting that you stop and get a yes every step of the way, or run through a checklist beforehand. All enthusiastic consent requires is that both parties are happy to have sex, and that nobody is doing so because they feel pressured or coerced in any way.
This leads us on to the big fear about the idea — namely that if affirmative or enthusiastic consent becomes the standard, women may abuse the law and claim they were raped if they have had a sexual encounter they regret.
My own feeling is that this is not very likely. A study conducted between 2011 and 2012 by the UK’s Crown Prosecution Service found that false allegations were very rare, although the belief that many accusers are lying is widespread. That is not to say that false accusations never occur. A report by Trinity College Dublin and the London Metropolitan University found that 9 percent of rape allegations in Ireland could be deemed “false.”
Here’s where things do get genuinely murky. The report found a link between false allegations and alcohol consumption. This would suggest that the accusers were either so drunk that they don’t remember consenting, or that they behaved in ways they would not have done had they not been drinking.
Some people claim that this is simply a case of buyer’s remorse; others contend that anyone who has been drinking is unable to consent, and that having sex with a drunk person is always rape.
My own view is that the issue isn’t quite so clear cut — but it is a personal opinion, not a legal one. If a man or woman is passed out, incoherent or barely able to stand, of course they cannot consent. That much is obvious to everyone, and the Trinity study also found a link between rape and drinking as well. If you target someone who is unable to say yes or no because they are incapacitated by alcohol, that’s certainly a crime, no two ways about it. But if both people have been drinking and engage in sex that wouldn’t have happened otherwise, that’s either a drunken mistake or both are equally guilty of assault. I think most of us are smart enough to know the difference between the two.
Furthermore, the Sexual Abuse and Violence in Ireland (SAVI) report — a landmark investigation into sexual assault in Ireland – found that rape is massively under-reported. Only 1% of male and eight percent of female victims report an assault to the Gardaí, and a measly 8% of reported assaults result in a conviction. Whatever way you cut it, you are far more likely to be a victim of sexual assault than to be jailed under a false allegation.
Proponents of affirmative consent argue it should apply to everyone — that whether you are a man or a woman, straight, gay or bisexual, you need to assent and obtain consent before having sex. This highlights the fact that whatever your gender or sexual orientation, you have the right to say yes or no to sex.
For most people, a partner who is willing is the bare minimum for any sexual encounter. hy would you want to have sex with someone who is not interested? Even if they don’t say no, there’s nothing sexy about that.
Critics of the affirmative consent seem to be stuck in an old fashioned way of thinking about sex — namely that men pursue it relentlessly but women are less keen so it’s up to us to set the limits, either letting a man have his wicked way or barring him from the magical vajayjay like a hatchet-faced prison guard.
C’mon people! It’s 2014 and by this stage we should all accept the fact that most people want sex. The question is simply whether or not they want to have it with you. If you’re not sure, the smartest thing to do is ask.