By Ava Sinclair
In 2003, a woman identified only as J.L. in court filings was having sex in the back seat of a car with a man named Maouloud Baby. The couple didn’t know each other well; they’d just met in the parking lot of McDonalds. J.L. agreed to have sex with Baby on the condition that he stop if she asked. He agreed, but when J.L. found the penetration painful and asked Baby to stop, he refused despite J.L.’s efforts to push him off her.
J.L. filed rape charges in the wake of the incident. Baby was initially found guilty, but the conviction was reversed based on a 1980 ruling by the state’s highest court which held that post-penetration withdrawal of consent was not considered rape under Maryland law. In 2008 the Maryland Court of Appeals ruled that “first-degree rape includes vaginal intercourse that continues with force or threat of force after the victim withdraws initial consent post-penetration.”
The message was clear: sexual consent can be withdrawn at any time, and if that “no” goes unheeded, a rape charge may follow.
In historical context, this ruling shows how far society has evolved. It wasn’t until 1993 that marital rape was recognized as a crime, and in many cases, the female rape victims, in general, were grilled in court by lawyers who implied that women imply consent by wearing a low-cut dress, drinking at a bar with men, or even not fighting back during an attack.
This isn’t to say that the court system is kind to rape victims; rape is still vastly underreported due to the treatment of victims, but court-appointed advocates and rulings like State v. Baby make a difference, especially when it comes to lessons about consent.
Consent? What is it?
We’ve all heard the term “no means no.” It’s a good message, but modern discussions of consent may grossly oversimplify the matter. For instance, when should the “no” be delivered? Despite the assertion of some men that “no” doesn’t count after penetration, the law says otherwise. And keep in mind that consent isn’t just about “no.” It’s also about “yes,” and if a person is legally underage or too impaired by alcohol or drugs, they cannot legally give consent. We’ve all heard “no means yes,” but when it comes to underage or inebriated people yes should always mean no. The same rules apply in situations where a person may feel pressured to consent to a person in authority, like a teacher or a boss even when they don’t want to.
Consent is about communication; it’s the agreement between both parties to have sex. Consent is also a process. At any point, one or both partners can stop without suffering emotional or physical intimidation as a result.
Consent is not evergreen
One of the things that made marital rape cases difficult to prosecute was the history of intimacy between a man and wife prior to the rape. Courts long held the archaic notion that once a woman had given consent to sex with a man, that consent remained an open-door policy. It wasn’t just wives who suffered from this reasoning; sex workers or even women with multiple partners have had to battle the notion that a woman’s body is not her own if she has an active, non-monogamous sex life.
Whether a woman is married or single, whether she has one partner or dozens, with each sex act the consent meter is set to zero. A kiss does not entitle a man to feel a woman up without her consent; if she consents to letting him squeeze her breast, that is not an open invitation to sex. Partners need to communicate through the process, and once it’s started consent can be withdrawn for any reason.
How to get consent
What about spontaneity? What if my fantasy is to play the trembling virgin to the rakish lord who takes me despite my protests?
Consent may sound cumbersome, but it doesn’t have to be. Announcing what you’re about to do (I’m going to touch you here now?) can give your partner a chance to decline. Asking your partner if what you’re doing is okay is another way to keep the feedback going. As far as that fantasy scenario goes, these things are always best discussed beforehand. Fantasies are about pushing boundaries, not throwing them away. Both partners should establish beforehand what boundaries will be pushed, and how far. A safe word is vital when it comes to power exchange and all play should cease if the word is spoken.
Yes means yes
Much emphasis has been placed on the word no, but when it comes to consent, the word yes is arguably more important. “No,” is often given during the moment when our boundaries are being violated, or during rape. Communication before and during sex with a sober, adult partner can establish that the green light has been given. When it comes to consent, assumptions can be devastating to both partners.
Consent applies to men, too
While the examples here have been of men not respecting consent, it should be noted that this legal pendulum swings both ways. Men can and are raped by women and men as well. Men also have agency, and women shouldn’t assume that a man is inviting a particular sex act without asking.
Spreading the word
The issue of consent has gained momentum since the #MeToo movement spotlighted the pervasive rape culture that allows for sexual assault and workplace harassment of women. Since then, the dialogue on what constitutes sexual assault has grown to include educating college students on consent. The message is a work in progress, however, especially when one considers the alarming misogynistic leanings of legislatures on both the state and federal level. Women and men should continue to advocate for consent and to acknowledge the importance of personal agency.
If your consent has been violated, you don’t have to be afraid to come forward. The National Sexual Assault Hotline is available 24/7 at 1-800-656-4673.
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