CONTENT WARNING: Due to the nature of the topic, non-consensual sex is mentioned, albeit in a very general way.
Recently, I have been thinking about consent to sex, and the conclusion I’m reaching is that any single model of consent is going to make at least one of the following errors if it is applied universally:
Type 1 Error: Describing sex which was consensual as non-consensual.
Type 2 Error: Describing non-consensual sex as consensual.
I’ll give an example of a model which is prone to Type 1 Error: “enthusiastic consent”. Sciatrix describes pretty well the problems with the “enthusiastic consent” model and asexuals, but its problems aren’t limited to asexuals. For example, what if A wants a biological child, thinks B would be a really good co-parent, and therefore decides to have sex with B, in spite of the fact that A feels no enthusiasm for the sex itself. And let’s say that B thinks and feels the same way, and they have communicated all of this clearly. I think this is clearly consensual sex, yet it does not meet the standard of “enthusiastic” consent.
As far as a model which is prone to Type 2 Error – “if they don’t say ‘no’, then it’s consensual.” I hope that it is obvious how this model of consent leads to a lot of Type 2 Errors.
There are other models – such as Emily Nagoski’s model which I think is less prone to error than a lot of the others, but as far as I can tell, all of them are going to produce errors in some situations. That’s because people, and their motivations for having sex (or not) are complicated.
Some people insist that consent must be communicated in words to be valid. I think that using words is an excellent guideline, and I encourage everyone to use words if they want to express and/or request consent. But even though I think using words is better, I also think it is possible to have consensual sex without the use of words, even between strangers.
Asexuals get hit by both sides of this. On the one hand, there are the models of consent which deny asexuals their agency (see the Sciatrix post linked above), but asexuals are even more vulnerable to the forces of compulsory sexuality than the general population.
I prefer models which are prone to Type 1 error over models prone to Type 2 error because, of the two types of errors, Type 1 error is less bad. I’d rather bother people who have consensual sex than encourage non-consensual sex. This is why I support laws against statutory rape. Is it possible for a 16 year old to consent to sex with a 30 year old? I would say, technically yes. But the power imbalance is such that there is a higher than usual probability than the 16 year old is being coerced in some manner, and I think statutory rape laws prevent some sexual abuse which would otherwise happen. One thing which makes statutory rape laws particularly effective is that it is a lot easier to prove the ages of the people involved than whether or not they expressed consent, which makes it much harder for sexual abusers who exploit younger people to get away with it. I think it’s more important to prevent that sexual abuse than to make consensual sex between 16-year-olds and 30-year-olds completely legal.
Since no single model of consent can be applied universally, one must have a solid understanding of the thoughts and feelings of the relevant parties before determining which model is most applicable. And there might not be a best model. And it might not be clear at all if it falls into the the grey area of consent.
The Notes Which Do Not Fit 
Thanks for this post. Consent has been on my mind alot lately. I’m particularly interested in exploring the ways in which asexuality invisibility interacts with consent issues. When there is a cultural expectation of compulsive sexuality, and when asexuality is not known as a viable sexual orientation, this can create real problems for people who do not realize their lack of enthusiasm or repulsion is legitimate.
Much has been written about that (I highly recommend the post about the grey area of consent which I linked to).
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I can’t agree that Type 1 is “less bad” than Type 2. The consequence of a Type 1 mistake is not just “bother[ing] people who have sex”, but potentially a long jail sentence for the one alleged not to have gained consent, and life-long ostracization from most social and professional opportunities. Is that so clearly less serious than Type 2 errors, which result in rape?
That can only be a consequence for a model of consent which is written into law, which most models of consent are not. Statutory rape laws are well-known, and people can choose whether or not to obey them. I would rather have people avoid having consensual yet illegal sex because of concern about the legal consequences that remove those legal protections for a group which is very vulnerable to sexual abuse.
As far as the majority of models of consent which are not written into law … yes, a Type 1 error is much better than a Type 2 error. Type 1 errors do not result in rape.
I was talking about false accusations rather than statutory rape. I don’t know the stats so maybe it’s statistically unaugnifucant but i would have thought it worth considering.
In this post, I am discussing situations based on the facts of the situations, not whatever misrepresentations (intentional or not) there may be. I am talking about ‘given x, y, and z, is this consensual’ not ‘what if x happened, but somebody said it was actually y’.
EDIT: Granted, I think ‘enthusiastic consent’ would be a terrible legal standard for consent. But at long as the law was clear (which I am not sure is possible with a term like ‘enthusiastic’ – it’s not nearly as straightforward as ‘people over age x should not have sex with people under age x’), and the people required to obey it knew about it, people would still have a choice about whether or not they had illegal sex.
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