We Need to Talk About Consent During Sex — Not Just Before
I was lying on my stomach and Tyler* was having sex with me from behind when all of a sudden, something started to feel off. I asked him to stop and turned around. He had taken off the condom without asking me.
"Wait, what happened to the condom?" I asked.
He explained that he had recently had blood work done and knew I was clean, so he "made a judgement call that it was OK." But it wasn't OK — not at all.
Before we had sex, I told Tyler multiple times that we absolutely had to use a condom. Thankfully, I noticed before he came, and a trip to Planned Parenthood afterward confirmed that I was clear of any potential sexually transmitted infections. But I was still furious. I felt dirty and violated. Yes, I'd agreed to have sex with this person, but that didn't mean I'd also agreed to whatever the hell he wanted to do in bed.
My experience with this man raised a question that I later realized was shockingly common: If you consent to having sex with someone, what happens if they do something that you hadn't said yes to? What if they slap you in the face, for instance, or pull a bait-and-switch and try to go for the butt without permission, as seen in an episode of the Mindy Project in which Mindy's boyfriend claims his penis "slipped"?
In the ongoing conversation about consent and what does and doesn't qualify as sexual assault, what happens when the initial "yes" suddenly becomes a "no"?
When good sex becomes very, very bad sex: In a New York magazine article about bad consensual sex, writer Rebecca Traister quoted then-Harvard senior Reina Gattuso's column for the Crimson. Feminists, Gattuso wrote, "sometimes talk about 'yes' and 'no' like they're uncomplicated ... but ethical sex is hard."
When we talk about ethical sex and consent, we typically talk about the importance of checking in with your partner before sex and making sure that they're OK with what's about to happen. But no one talks about what happens during sex, after both parties have given the initial all-clear. Just because someone has agreed to sex doesn't mean that "yes" is a blanket OK for any sex act or code for "anything goes."
"Consensual sex means just that – two people have to agree," Anne Brown, a psychotherapist and author of Backbone Power: The Science of Saying No, told Mic. "If you have known partners who have a history and known agreements, that's one thing. But if you have new partners, you have to see [them] sort of like a treasure chest. There's lots of little treasures to give, and you just can't take them."
Ideally, "ethical" sex involves having an ongoing conversation with your partner about what is and isn't OK in bed — but as I and others have experienced, that unfortunately doesn't happen all the time. Kate*, 29, said her ex-boyfriend of nearly a decade took the fact that she would happily agree to sleep with him as a free pass to have sex with her while she was unconscious.
"I would wake up in the night and he would be sleeping with me," she told Mic. "I'm not sure [how my brain justified it], I think I just thought, 'That's normal. I guess that's fine.' But I don't know if I was ever that comfortable when that happened."
Blurred lines: While Kate's story is horrifying, what's even more disturbing is that there is little legal recourse for those who experience consent violations after agreeing to have sex.
In 2012, for instance, a school teacher from the Bronx, a New York City borough, was raped orally, vaginally and anally by a police officer at gunpoint. While she had not consented to any of those acts, the jury initially could not convict her attacker on rape charges, due to the fact that New York law only counted rape as "forcible vaginal entry." This inspired the charge for the "rape is rape" bill, which would clearly define forced anal and oral entry as rape. (In July, the New York Daily News reported the Assembly has since passed the bill, but not the Senate.)
Jeff Herman, an attorney who represents victims of sexual abuse, told Mic there shouldn't be any distinction between various sex acts. "Legally, no means no," he said. "If you don't consent, you don't consent. From a legal perspective, there's no difference in the law. If you don't consent to anal sex and someone makes you have anal sex, that's against the law."
But unfortunately, these types of gray-area cases where a violation occurs beyond a point where consent was obtained are difficult cases to prove — even more so than cut-and-dried sexual assault cases, which are already notoriously difficult to try in court.
"As a practical matter, these cases are much more difficult to prosecute," Herman said. In civil court, where the burden of proof is much lower, "I'm often able to prosecute a civil case on behalf of a victim that wasn't criminally prosecuted," he said. "But I have had cases where it was exactly the scenario you presented me, [where] they disagreed on sex without a condom. And that was very traumatic for the person. They're difficult cases though, I will tell you that."
A solution that should be easy: In theory, there's an easy way to prevent these types of situations from happening. John*, 34, told Mic that he always makes sure to discuss what his partner is and isn't comfortable with in bed. "Agreeing to not use condoms needs to be explicit; any butt stuff needs to be explicit," he said. "It seems very obvious to me."
He said he mentally switches places with his partners to help understand whether or not he needs to ask their permission for various sex acts: "Like, as a guy, are you OK with someone slapping your balls [without consent]? Would you want that to happen if you hadn't told them? No, of course not."
That said, the conversation about consent is complicated by the fact that figuring out what you like and don't like during sex isn't always a yes-or-no question. Sex can get messy, and good sex can get even messier; sometimes, we can only figure out what we're into in the heat of the moment, whether it's nipple pinching or dirty talk or anal play. The fact that we might not even know what we like before we experience it leads to an awful lot of sexual gray areas.
Now out of her previous decade-long relationship and happily involved in the kink scene, which prides itself on its approach to negotiation and consent, Kate said the answer to figuring out what you like in bed without feeling violated is communicating with your partner during sex itself.
"I have girlfriends who absolutely love being rimmed," Kate said. "If you like it, just ask. And the flip side of that, is that if someone says no, they don't like that, that's OK. They're not shitting on you or how you're doing it."
Kate also added that vanilla people, or people outside the kink community, could learn a thing or two from kinky people about discussing consent, such as the importance of using a safe word. "I've always enjoyed BDSM," she told Mic. "I like my sex hard, [my] hair pulled ... I am down for that. It's fine when you have a safe word, and you absolutely know what you're doing."
With all the confusion about what does and doesn't constitute consent, it can often be difficult to ask for consent in your own sex life without sounding dry or perfunctory or clinical, which is why a lot of critics of consent laws have argued that asking for consent will make sex less sexy. But talking about serious topics like consent doesn't have to be done in a stone-faced, clinical way. Done right, it can be super hot.
But it's also an important conversation to have beforehand because, as anyone who's ever been about to come can agree, it can be hard to think clearly once you're getting it on.
"Everything needs to be negotiated ahead of time," John said. "I don't want to say there shouldn't be any real-time negotiation, but it would be more like, ensuring [what you discussed before]. Initial consent should all happen beforehand. You shouldn't be in the middle of [sex] and asking the person if it's OK to hit them here. First of all, it's super unsexy and breaks up the rhythm. ... You want to be negotiating on an even keel and thinking with a clear head."
Now that I'm in a monogamous relationship, I'm okay with doing a lot of things I would've said no to with a casual partner. I'm fine with not using condoms (we've both been tested) or having a hand around the neck, as well as a bunch of other kinky stuff I won't get into out of respect for my partner. Yet I acknowledge that unplanned things like choking or hair-pulling can be really hot, even if you're not expecting them — which complicates the consent narrative a bit.
Still, I try to have an ongoing dialogue with my partner about what's OK and what's not as well as an initial conversation beforehand. Aside from ensuring that I don't feel violated, it helps us maintain our awesome sex life — and it helps us do it in an ethical and consensual way.