Enthusiastic consent

More feminist fantasy than real world sex

Ivan is 74 years old. He has been making love to his wife, Suzie for thirty-five years. Their foreplay starts early, sometimes at the breakfast table. He writes:

“Remember the song, Come on Baby, Light my Fire? That can mean starting the mating dance hours before. If the signals are faint, I’ll gently see if I can strengthen them … with a lingering kiss or a touch here and there. If there is no obvious inclination, then I won’t push it. I’ll back off. I look for tacit communication that she is in the market—or could be. The communication is in the eyes—and the way they look into mine. I can feel instantly if we’re on the same wavelength”.

He knows what to do if he senses she is interested:

“I can then be emboldened to make suggestions, like ‘How’s your skin at the moment? Does it need to be creamed?’ We both understand the code. We are both averse to being obvious and blunt. We prefer innuendo and teasing.”

This long-married couple like to keep things subtle. He’s aware she doesn’t want him to ask for consent. He’s spent decades learning to decipher her desires:

“This is a woman who has real trouble talking about sex and whose main method of communication is a whispered yes, a small groan, a tensing of her leg muscles, so it was a difficult process.”

Ivan’s lucky. He lives in West Australia where their lovemaking is still legal. But in NSW it is now a different story. Enthusiastic consent legislation has been law for the last two months.

According to Attorney General Mark Speakman it is all “very simple”. Consent now has to be communicated by the other party “saying or doing something." Subtle interpretation of long-established codes is not enough to let the accused off the hook. “A reasonable step has to be an act or something said to ascertain the complainant's consent."

That’s it, you see. Most people don’t seek consent before and during lovemaking and nor do they have any interest in doing so. But that means we are all now prospective complainants or alleged perpetrators.

Consent is certainly not “very simple,” Mr Attorney General. It’s obvious you and all the other people making these laws don’t have a clue about what goes on beneath the dancing doona. There are many, many women like Ivan’s wife who’d be appalled if their husbands asked them for permission for sex. They expect their men to be able to tell if they are receiving a green light... or not… and sometimes to work hard to achieve it.

I’ve had people talking to me about these complex interactions for much of my adult life, having started my career as a sex therapist using the media to encourage more open conversations about sex. It recently occurred to me that I’m sitting on just the evidence to show why this simplistic talk about consent makes no sense.

I have diaries I collected from hundreds of couples during a 2007-9 research project about how they negotiate differences in sexual desire. I’ve already used this material for books about the gender desire gap and why sex means so much to men. But these revealing his-and-hers diaries offer clear proof as to why enthusiastic consent laws are totally barking mad. And whilst they focus mainly on people in long-term relationships, the research did include some very young people who’d only just met and believe me, here the communication is even more dense and bewildering.   

Let’s have a look at another of my diarists – I called him ‘Anthony’ (unsurprisingly most of the participants preferred their names withheld from this revealing project). This 47-year-old man just couldn’t get his wife, Adele, to be open about her desires. He was yearning for her to admit that she wants him:

“To just say she felt like sex and wanted me to do it to (or with) her. I would like to see her wanting sex the way I want her to want it (now there’s a selfish, unrealistic thought!). I would really like her to verbalise her sexual thoughts. Over the years I have tried to move toward that point but have been frustrated by her apparent difficulty in finding the words or willingness to share them. Tactile is OK but it’s so damned ambiguous. I don’t want to imbue her touch with my meaning, I want to know what she’s been thinking to want to touch me. I want to know how she wants sex. I want to be inside her head.”

Now, see here, where he describes one of their interactions:

“Before I get out of bed, I pick up my book for a half hour of reading. Adele usually wakes before me, and she is reading already. She rests her hand on me and from time to time strokes my skin with tiny finger movements. The movements themselves and the places being touched don’t carry any overt sexual overtones at all but the persistence of them tells me she probably wants something. Whether it is to please me or to please her I don’t know. I don’t trust my judgement about that anymore. After a while I begin to think about the possibilities—imagining she wants pleasure and I feel a slight sexual response developing.

“Adele persists. She treads a narrow path so well—lots of practice, I suppose. She makes no overt sexual move and thereby avoids making the exchange unambiguous, ie with the potential for rejection. I put my book down and cuddle up to her. I can’t see her face but I’d bet anything that she is smiling.”

Look at this, Mr Speakman. She is touching him but deliberately making her approach ambiguous, so she won’t be seen to be asking for sex and won’t risk rejection. She’s ensuring it is up to him to make the next step.

This is classic of the complex dance of desire playing out in even the most harmonious of couplings. What makes you think you can go stomping into this delicate arena using your brand new, glistening legal jackboots and work out who is raping whom?

I have hundreds of such interactions I could trot out here, all showing why today’s sexual thought police are on the wrong planet. Clearly today’s 4th Wave feminists never bothered to read the classic 70s sexual works that educated and enthralled many of their mothers. Like Nancy Friday’s famous collection of real women’s sexual fantasies, My Secret Garden, full of steaming rape scenarios and women who want men to take charge. They are still well and truly out there, Mr Speakman.

Here’s another of my diarists, Anthea, describing a fling she had with an American guy, who was ten years her junior:

“From the outset it was aggressive, hard, powerful and incredible, so much so I cannot really begin to do it justice with a description. During our second day together, I gave him my vibrator to do what he chose with. His response was to throw me to the bed, tie me up with a tie that happened to be hanging on my bedroom door and then use the vibrator on me to get me to reach multiple orgasms. He said nothing before we did this, there was no discussion, he took charge, and it was incredible.”

She wanted him to take control, not ask for permission to throw her on the bed, to tie her up, and use the vibrator to drive her crazy. It was a perfectly straightforward, mutually advantageous transaction.

But imagine this scenario was happening now and the younger man tired of her attractions. What if this wonderful fling ended badly and Anthea decided to take advantage of this open invitation from the government inviting her to rethink? To retrospectively withdraw her consent and claim he’d overwhelmed her. The man was a marine after all, a big burly aggressive toxic male. Who’d believe him in a she-said, he-said legal battle if she decided to play the aggrieved victim?

It’s a simple fact of life that most love-affairs, most hook-ups end leaving one party disappointed. When the wounded party is a woman, she is now presented with a new legal weapon targeted to destroy the man who has let her down. Oh yes, in theory the legislation is gender-neutral but the reality is that women are rarely charged with such crimes, even though our most recent ABS Personal Safety Survey found almost one in three people claiming to be victims of sexual assault were male (28.4%). Men rarely take action over such crimes, knowing that if they do, they are unlikely to be believed.  

Men are the ones in the firing line – primarily because their stronger levels of sexual desire mean they are usually the ones pushing for sexual consent. “Men want sex more often than women at the start of a relationship, in the middle of it and after many years of it,” reports Roy F Baumeister, psychology professor at University of Queensland and a world expert on gender differences in desire. And as my diarists proved, most women still prefer men to initiate, partly because the female psyche seems to struggle more with sexual rejection.    

The new sexual consent laws are all about encouraging women to rewrite the history of their sexual relationships in order to find more men guilty of sexual assault. These laws wilfully ignore women’s own ambiguity and confusion which means men face a lethal guessing game.   

For one final example of these complexities, here’s a his-and-her version of one couple’s lovemaking session:

Terry’s diary - Wednesday, 26 September

“Last night she was drawing on my back. This is unheard of—her touching me like that. So, I lay there for a bit and enjoyed it. Then she ran her finger down my side and it tickled so I laughed and she rolled over, so I turned and cuddled her and we were having a good moment together gently stroking each other and cuddling. But then she pushed me away, saying ‘You always reject me!’ I protested and said I was enjoying our time together but she had made up her mind, ‘No, you rejected me. That’s why I don’t make a move on you, it hurts me to be rejected.’ I tried to say sorry, but it fell on deaf ears.”

Megan’s diary - Wednesday, 26 September

“We got into bed, he turned his back to me and I started stroking his back. He said it was nice. Then I tried to reach around to touch his penis and he started being really silly, saying that it tickled. I felt rejected so I pulled away. He then came over to my side of the bed and cuddled me but it was too late. I was lying there thinking mean thoughts about him. Then I said to him ‘Why did you do that? You could tell I was making an effort to initiate sex with you and you knocked me back.’ To which he responded, ‘What? What? I didn’t knock you back.’ He didn’t make an effort to make moves on me (it probably would have been unsuccessful), and he fell asleep shortly after.”

He says, she says. Two totally different versions of who did what, written within days of the actual event. Go figure….

Now we are expecting juries to sort out what actually took place years after a confusing liaison which one person claims took place without consent. In our current climate there’s a very real risk that such contradictions and confusion will be just swept aside, and those twelve ordinary men and women will step up, conform to the zeitgeist and believe-the- woman.