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 