Consent is not enough: If You want a Sexual Partner, Look for Enthusiasm; OR You May Be Looking for an Attorney

As an attorney, I am getting this question asked in various formats more frequently in light of the current social dialogue and #metoo movement:

Are you a man about to leap into bed with a woman, worried that you might not later be able to prove in court that you’re not actually a rapist?

Welcome to dating in the post-Harvey Weinstein era. With the Hollywood mogul’s downfall, the ripples are still spreading, moving out from sexual harassment at work towards more intimate relationships. Nights that might once have been grimly chalked up to experience, classed as bad dates or near misses, are being exhumed and re-evaluated. It is as if women are watching the film of their lives from a different vantage point, searching for something they missed at the time.



Look again.

If sexual encounters can be divided into roughly three categories – happy and consensual; rape; and a hazy area of acts you did not want to do but to which you ended up giving in – then it is the third that now consumes attention. It is the things women go along with out of politeness, pity or embarrassment, or they were taught that, in rejecting any overture, “we mustn’t make a man feel bad about anything”.

No means no. For anyone over 40, that phrase still feels almost radical; a generation fought tooth and nail for the idea that, no matter what the victim wore or how she behaved, no still always means no.

The law does not specify how consent should be expressed, stating only that a person consents “if he agrees by choice, and has the freedom and capacity to make that choice” – for example, they are not underage, mentally incapacitated or so drunk as to be incapable.

But juries still like to see evidence of complainants clearly saying “no” – and so does the court of public opinion.

Yet “no means no” is increasingly seen by younger women as an embarrassingly basic approach to consent. They argue it encourages men to assume that, so long as their partner did not audibly say “no”, they are covered, even if that partner was shrinking away, asking them to slow down or frozen with fear.

Badgering someone into queasy submission might technically be within the law, but it is not the road to a happy sex life and it may no longer protect a man from public censure. What young men should look for, is not the potentially ambiguous absence of “no”, but the enthusiastic presence of a “yes, yes, yes” or affirmative consent. “

In 2018, ‘no means no’ is totally antiquated. It puts all the pressure on the person in the most vulnerable position, that if someone doesn’t have the capacity or the confidence to speak up, then they’re going to be violated,” she says. “If somebody isn’t an enthusiastic yes, if they’re hesitating, if they’re like: ‘Uh, I don’t know’ – at this point in time, that equals no.”

Dating like this requires men to focus much harder on what their partners are thinking and feeling and means more talking than some are comfortable with (although, it is better to kill the moment by asking if something is wrong than to make a mistake and ruin your life).

It is undeniably challenging for men who are not good at reading emotions; some struggle even to gauge a first date accurately, never mind anything more. “They’ll say: ‘I just don’t get it, I did everything right and she was laughing and smiling and now I’m calling and she’s not answering.’ And you have to go through the date with them and say: ‘Well, sometimes people laugh out of politeness.’ Or sometimes when a date ends and a guy says: ‘Would you like to go out again some time?’ the woman will say: ‘Yeah, sure,’ but she doesn’t really mean it, she just doesn’t want to sound mean. You have to get more adept at reading the body language.”

Affirmative consent puts female pleasure unashamedly centre-stage

But it also requires women to get over any coyness about articulating their own desires and to stop expecting men to read their minds. For affirmative consent puts female pleasure unashamedly centre-stage.

Like generations of feminists before them, millennials have been accused of being puritanical killjoys or making it practically impossible to have sex at all. But, in some ways, the reverse is true: their whole point is that sex is meant to be fun, that being browbeaten into it is miserable and that more communication should mean better sex for everyone.

That is the point where two halves of the millennial psyche – the #MeToo movement and a lusty, libidinous sex-positive movement seeking to reclaim the word “slut” as a joyful thing – come together.

“‘Slut’ is a great word. It just sounds perfect – so sharp and clear and beautiful,” writes Karley Sciortino in her book, Slutever: A Memoir and a Manifesto. A Vogue columnist, sex blogger and host of the explicit Vice show Slutever, Sciortino is hardly a prude. Yet she argues that both movements are about women claiming ownership of their bodies and their desire. If anything, the wilder sex gets, the more consent is taken seriously (think of the safe words agreed between dominants and submissives or the elaborate ground rules negotiated by couples in open marriages).

What #MeToo is doing, is pushing this language of consent into the mainstream and prompting women everywhere to wonder why the most liberated generation in history still seems to be having so much terrible sex. “I really think it’s like a sexual revolution in its own right.”

And what if older generations still look on young people’s increasingly complicated sex lives, with their baffling terms and outrageous practices and alien moral codes, in despair? Well, plus change. Once upon a time, it was how the previous generation felt about theirs.

Sex is still a crime because of the uneven, hierarchical power dynamic between the parties. So whomever counseled Harvey Weinstein and other accused predators to claim that sex acts were “consensual” are morons.

Because this sort of denial functions in fact as an admission of guilt. Especially due to the unequal power dynamics – for example, physical size, money, the power to affect someone’s (Salma Hayek’s, Mira Sorvino’s, Ashley Judd’s) career and livelihood, etc.

“Consent” means that two adults – who have the right to make unimpaired and unpressured decisions – agree on a particular interaction that is occurring or going to occur. “Consensual” is most frequently employed to connote that an action that has already taken place was agreed upon at the time that it occurred. Thus, when someone says that “all sex acts were consensual,” and the other party says, “No, I did not consent,” by admitting to partaking in a sex act, the accused is inadvertently admitting to rape. Because both parties must consent and for the act to be consensual. If she says that she did not consent, and there is no written agreement or physical evidence that she consented, then the act was not consensual, and thus must have been rape. His word against hers.

In order to secure safety for all workers, new rules, regulations, protocols, and even laws must be established. When an employee signs an employment contract, there should be clauses , “You agree not to attempt to romantically or sexually pursue any of your employees, any of your bosses, and anyone with whom you conduct business. Transgression of this agreement will result in immediate firing and substantial penalties.” And the owners and boards of directors for all companies must abide by as well as enforce these regulations.

This type of disincentive creates a safe environment and is necessary to create the same frame for all professional relationships and safeguard the unsuspecting from small-spirited, insatiable powermongers – American Psychos.

Regulations must preclude business meetings taking place in hotel rooms or anyplace where any of the parties could feel compromised.

And what effect would such regulations and laws have on dating and mating? Women from my generation were taught to play “hard to get.” So when a man asks a woman out TWICE, will that now be considered “sexual harassment?”

Hint: You don’t want to find out.

When a millennial texts “Wanna hang out?” to a potential lover who texts back, “Sure,” does that constitute mutual consent to engage in a sex act? Hint: You do not want a jury answering that question.

Thanks to Rose McGowan and the 80+ other brave women – out of the thousands that have been defiled or violated, as well as those who consented to sex (or even offered sex) in order to advance their careers – these are the questions that now confront us.

The vagueness of previous courtship rituals must be retired. The myth of romance is moribund; passion may be comorbid with a level of dysfunctionality that has become insufferable. Hereafter, all roads must lead to authenticity and authentic communications. So no, Woody Allen, you may no longer wink at pretty, young girls.

But what would it mean to be authentically romantic?

Could romance actually require a touch of insinuation?

Do you understand what you consider to be erotic and why?

Does anyone watching pornography think, “Oh, that is so sweet! They really love each other!”? No, they don’t. Because pornography is not about love, it’s about power.

In 2015, California enacted the “yes means yes” law, which defines consent on college campuses is affirmative consent, or “knowing, voluntary, and mutual decision among all participants to engage in sexual activity.”

If states had consent laws that were “easy to understand and easy to teach, then you’d see people engaging with consent in a completely different way.”

While each state defines sexual assault differently under the law, “the hallmark of sexual assault is some form of sexual contact that is with an intimate body part of the victim or penetration or oral copulation that occurs without the consent and against the wishes or will of the victim,

Sexual Assault is usually a felony that can result in a significant prison sentence.

Sexual harassment, however, is typically not an offense charged in a criminal court but is most often handled in civil court.

What Is Sexual Assault?

Sexual assault is any sexual act that includes penetration of the mouth or private parts without a victim’s consent.

There are other facets to the criminal statute, but the key factor is that victims did not give their consent before the act occurred.

In fact, although the legal language is different in most states, sexual assault usually involves a victim that did not or was unable to give consent.

Victims of sexual assault can include spouses as well as members of the same gender, and in most states, the law doesn’t allow minors to give consent, even if they agreed to participate in the sexual act.

What Is Sexual Harassment?

Sexual harassment is enforced under Title VII of the Civil Rights Act of 1964 and applies to any U.S. company with 15 or more workers.

According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.(1)

The EEOC further defines sexual harassment as conduct that the victim finds offensive and unsolicited, conduct initiated by a supervisor, co-worker or non-employee, and conduct between a man and woman, or two members of the same gender.

Common types of sexual harassment include:

Unsolicited requests for sex

Unwanted physical or visual contact

Sending sexually-explicit photos, emails, or texts

Using sexually-charged language

Exchanging job favors for sex

It’s important to remember that every state provides different protections for victims of sexual harassment.

Some states have specific laws regarding sexual harassment, and other states rely on federal laws.

Victims of sexual harassment must report all incidents to their human resources department to create an official paper trail.

This documentation is also necessary when victims file a complaint with the EEOC, and when they decide to file a civil lawsuit against their harasser.

The idea is that by documenting the existence of a hostile work environment, victims can show that they didn’t feel safe and protected at the workplace.

Differences Between Sexual Assault and Sexual Harassment

There are several major differences between sexual assault and sexual harassment, including the fact that sexual assault is a criminal offense and sexual harassment is handled under civil law.

This means that people accused of sexual assault face prison sentences, but people accused of sexual harassment face civil penalties that could result in fines and the loss of their jobs.

Another difference is that sexual assault is always handled in a court of law, whereas sexual harassment is typically handled through a hearing with the EEOC.

Definition of “Consent” In Illinois

In the Illinois law addressing criminal sexual assault, “consent” is defined as:

“a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent.” 720 ILCS 5/11-1.70(a)

The law also states:

“A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct.” 720 ILCS 5/11-1.70(c)

(Source: P.A. 96-1551, eff. 7-1-11.)

And then we have the teenagers……

When teenagers begin to date, usually they meet at school and most often, they are the same age. As teens branch out however, meeting people from other schools, hanging out with people from work and meeting new people in the community, they sometimes date older men or women.

When a teenager under the age of 17 dates someone that is 17 or older in Illinois, the relationship can get complicated.

Statutory rape is any type of sexual intercourse that occurs between someone under the age of consent, which is 17 in Illinois, and someone that is a legal adult (18). Essentially what this means is that if someone under 17 and someone 18 or older in Illinois willingly have sex, charges can still be filed against the older person because the partner is a minor.

Although this law typically pertains to men and women that are significantly older than their underage significant other, it also technically applies even to high school students who may only be a couple months apart in age. In those few months in which one partner has reached the age of consent while the other has not, they are committing statutory rape when participating in sexual activities.

More often now than ever, high school students are having sex. It may be from peer pressure and it may also be attributed to the fact that kids are simply growing up faster than they used to, physically and mentally. If you are a teen or if you have a teen that may be considering having sex, be sure that he or she understands the seriousness of the activity.

Not only is sex a big deal mentally and physically, but also emotionally, and it could be legally too.  Most parents will not press charges against their son’s or daughter’s boyfriend or girlfriend if they are just a year older, but older people may get into more trouble. An underage person having sex, even with a significant other, who is much older, is putting that significant other at risk of getting in trouble with the law.

If you are charged with sexual harassment, criminal sexual assault, statutory rape or any other form of rape, or perhaps you are considering charging someone else with sexual harassment, sexual misconduct, criminal sexual assault or rape, you can contact me for help. I will help you through the court process to get the outcome that you want. Call me, Roy F McCampbell at (708)878-7957 (24 hour number)

About royfmc

BS in Environmental Engineering from Northwestern University's McCormick College of Engineering MBA from DePaul University's Kellstadt's College of Business JD from DePaul University's College of Law Website:
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