This framework focuses on nuanced principles to inform higher quality consent practices rather than a binary approach to consent-or-not. It takes a subjective experience approach to address non-criminal consent accidents. It is a harm-reduction, preventative, education-based strategy.
confident – explicit – clear – verbal and nonverbal
reversible – withdraw at any time
What will happen? How risky? What are folks’ risk profiles?<br>inclusively negotiated – honest – forthcoming
balanced – risks within risk profiles – accountability discussed
encouraging body language – engaged facial expressions – enthusiastic tone of voice
negative states managed – guilt, shame, fear of disappointment managed
medicated (appropriate substances taken (medicated) – appropriate substances avoided (sober)
Discussion: Consequences and Proof
Our criminal system is responsible for incarceration (9/10 sexual assault cases “substantiated by police” reports do not result in a conviction according to Stats Canada 2009-2014). There are many reasons including lack of traditional evidence because consent is an experience of social markers not easily evidenced in court. In civil law, there’s a balance of probability burden of proof since freedom isn’t at risk (suggesting survivors could sue in civil court for costs associated with current and future counselling and be far more successful than pressing criminal charges).
Therefore, once we don’t consider incarceration as an outcome (we have systems that do), we no longer have to deal with a “beyond a reasonable doubt” burden of proof that derails so many conflict resolution processes.
In interpersonal relationships, we need a higher standard than the bare minimum for conduct we can get away with in a courtroom. A higher standard needs new definitions.
Getting consent usually means obtaining a written or verbal contract of agreement. Agreements differ by situation. Businesses may need contracts, but do intimate relationships? This definition fails to recognize long-time partners who don’t want to get verbal consent but self-report consensual experience. Similarly, it fails to exclude circumstances where folk are coerced into giving a yes where they afterwards self-report non-consent.
Instead, we could think of consent as “an experience of agreement to do the activity while it was happening among the parties as self-reported by the consenting persons.” This may not work well in business or criminal law, but offers us a lot of flexibility to do relationship repair and to understand the exploitation of power dynamics.
Subjective experiences of consent also mean we cannot know for certain the people we’re interacting with are having an internal experience of agreement. This reduces shame from genuine mistakes.
Remember, those systems of factual, evidenceable consent still exist. I’m not advocating to end criminal justice. Instead, I’m advocating for an additional layer of re-examining consent with reduced consequences, a reduced burden of proof, and an increased opportunity to grow yourself and learn to treat people better.
Another way to talk about the shift from shame to growth is a shift from punitive to transformative values. Focusing on “bad people” and punishments as deterrents only works to deter intentional violation – and we have little to no authority as citizens to enforce punishments anyways (except social punishments like cancel culture which is just an analogue for incarceration or other punitive justice).
This framework assumes good faith, meaning that parties:
- are not intentionally violating or harming each other
- have a vested interest in helping and caring for each other
- all lose if relationships are or disposed of or further damaged
Instead, this framework focuses on self-improvement and disruption of any harmful patterns of interaction. Harmful folks are rarely harmful as a pattern with everyone – it’s far more likely they are harmful in certain ways that can be identified and disrupted with their cooperation only. The transformative value of volunteer participation of the harmful part(y/ies) is critical in identifying if this framework should be applied.
Motivations / Goals
- Give consensual experiences
- Avoid dubiously consensual actions
- Avoid being publicly accused
- Be accountable
- Encourage call-ins
- Know and express our own boundaries
- No shaming (we all learn it somewhere)
Values and Goals
This Values list is in this order:
This Goals example list is in this order:
People are the experts of their inner experience. That means we can’t tell people they had a subjective experience of consent or what their intentions were, even for harmful folks! We cannot assert others did things deliberately or that they personally had subjective experiences of consent.
Behaviors (or policies) that may fail to meet those goals can be said to be “high risk.” Consent in this context can then be said to be “low quality” meaning there is more risk than necessary that someone will not have a subjective experience of agreement during the activity. Regret is not the same as not consenting at the time.
Risk of Future Harm
When these processes are said to be “survivor-centered” or “victim-centered” they often focus only on the current survivors or victims.
Example: if a harmful person cannot be convicted and the court system will essentially do nothing for us, what are our other options if this person has done this before? If you had an opportunity to show compassion to that harmful person and knew a few hours of re-education might reduce their future survivors from 8 to 3 and reduce the severity of the harm they cause, would you be able to to invest that time knowing there would still be 3 more survivors?
High Quality Consent
Consent in this framework is said to be “high quality” when the risk of nonconsent is no greater than it needs to be for the activity.
No one is perfect, so this framework works best when people iterate or focus without expectation of perfection or shame of failure on continuous self improvement.
High Risk Activities
Some activities like Consensual Non Consent (CNC – think role playing sexual assault or rape) will be inherently higher risk behaviours with more moving pieces that could go wrong. However, so long as the people engaging in the activity are minimizing risk for their specific activity, it would be considered high quality consent for a high risk activity.
Participating in high risk activities, also called edgeplaying, is best done with education on how to reduce risk (through workshops put on by organizations like Metro Vancouver Kink). It’s also best to work up to advanced play like edgeplay while developing and mastering skills like negotiation and other core skills. These are examples of Best Practices.
Accountability is often a life long process of personal improvement. If someone says they had a non consensual experience, it’s worth avoiding defensiveness. No one is put in jail for listening. Hearing feedback of what led to this situation helps us avoid the situation coming up again. That’s the first step in accountability. There are others.
There are people who don’t say no or who say yes when they mean no for many reasons and while we aren’t expected to be mind readers, the risk of that situation is knowable meaning those situations are in part avoidable. This is one reason why some avoid those situations while others blunder into them again and again. So what’s your goal? Do you want to avoid those situations?