Photo via Ell Brown on flickr.
Jezebel’s recent piece “The Slippery Slope of ‘Advance Consent’” is, to say the least, complicated. The story can be summarized with this excerpt:
The woman has been locked in a custody battle with the man, who also has a history of domestic violence convictions. The two had agreed to try erotic asphyxiation and had discussed anal sex, but the woman said she hadn’t consented to what she woke up to, which was anal penetration with a dildo.
The man was convicted of sexual assault, but then a higher court overturned his conviction, saying she had essentially consented to sexual activity before she blacked out. They framed it as an issue of not criminalizing adult activity, which is confused to say the least.
The questions coming out of this case are many: is advance consent a real, legitimate, and legal concept? Does advance consent work if you aren’t in the right state of mind to think about taking it back or talking it out? And it brings up issues that are more familiar and easier to delve into: No, consent for one sexual activity is not consent for another. No, sex with an unconscious person is not okay.
According to the court decision and transcript, the act of anal penetration was something the two had discussed at a previous time when they were “experimenting,” and no final decision was made:
A. Well, as I had said before, we had done the choking before, so yes, that had already been discussed. The tying up, that was almost common routine at the time, so yes, that was also discussed, and we had discussed other – yes, that other final point matter with the butt, and we had both expressed, I guess, a certain interest in what it would be like.
Q. Okay. When you said you discussed what was allowed and what was not allowed, what did you indicate to him was not allowed?
A. That was something we had discussed long before the events in question, so it wasn’t like we sat there that night and stated what was going to happen and what was not going to happen. I mean, it was quite spontaneous what happened that evening. Certain things not allowed, just silly things like, when I say let me go or we are done, then we’re done. Just certain things like that, basically stating ground rules.
When cases like this are “debated” the consequences belong to all of us. The longer it is considered “questionable” to commit sexual acts with unconcious people, or commit acts you do not have explicit consent for, and the longer judges “deliberate” about whether women consented to acts they define as rape the longer all people will suffer from a culture and society that doesn’t care about their sexual health, emotional well-being, or physical safety. This case of “advance consent,” and the idea that it is unclear whether this act was okay, is more than a “slippery slope.” It’s a large slide backward.
