Why Prisoners Deserve to Vote: A “victim’s”/survivor’s perspective

CW: discussion of racism, human rights violations, discussion of sexual violence, mention of rape and abusive relationship, mention of the Christchurch terrorist, and police. And since I can’t add a footnote to the title, here’s a note on the “victim” language.1

On Friday, I gave an oral submission to the Justice Select Committee on the Electoral (Registration of Sentenced Prisoners) Amendment Bill, which would restore to prisoners sentenced to terms of less than three years the right to vote. The video is available on their Facebook page (my submission starts 9:40 from the end) and my written submission is here. Here is my oral submission in written form:

“Tēnā koutou members of the Justice Select Committee,

Thank you for inviting me to give an oral submission to you this afternoon. I have been told that you will already have had the chance to read over my written submission2, so I won’t go over all of it again.

I would, however, like to reiterate that I do not believe that this Bill goes far enough.

As I am sure you will be aware, the Supreme Court has ruled that current legislation is inconsistent with the Bill of Rights Act 1990 AND the Waitangi Tribunal released a report last year saying that section 80(1)(d) of the Electoral Act 1993 disproportionately affects Māori (which should be unsurprising, given that Māori are vastly overrepresented in our prison populations) and that it “is inconsistent with, and in part undermines, the purpose of the corrections system under section 5 of the Corrections Act 2004 and, therefore, prejudices the rehabilitation and reintegration of Māori prisoners; a further breach of the principle of active protection.” The Tribunal has called for this section to be urgently REPEALED, not replaced with a watered down version which this new Bill does.

I agree with Golriz Ghahraman who has said that we don’t have human rights because we earn them, we have them because we are human.

There have been questions raised by members of this committee about the fact that by detaining prisoners we are, in fact, taking away some of their rights already, so why do [those of us in favour of repealing the entire prisoner voting ban] think that that’s different. I can’t speak for all of us, of course.

For me, I think this quote from the Waitangi Tribunal report is the clearest response:

“The right to participate in the electoral system is exactly that – a right, not a privilege. Prisoners do not lose all their rights of citizenship when incarcerated. For example, prisoners are still entitled to their right to be protected from harm and torture. Incarceration is the punishment. Removing the right to vote is over and above the sentence of punishment and inflicts disproportionate prejudice on Māori prisoners.”

The Regulatory Impact Statement to the Ministry of Justice also makes the case that “Removing the right to vote is an additional punishment on top of incarceration, rather than incidental to it. There is no evidence that suggests disqualifying sentenced prisoners from voting deters people from committing crimes.”

If anyone is going to come at me with a question about “but what about this terrible person, are you saying you want them to vote?”, then:

Firstly, Dr Smith I am horrified that you find it appropriate to name him.3 I choose to follow the example of the Prime Minister and not name him.

Secondly, my answer is an emphatic YES!

I am a survivor of rape and an abusive relationship. Now, the man who raped me isn’t going to prison (though I wish he would), but if he were, I wouldn’t want him prevented from voting. What on earth do you think that would achieve?! Do you think he’s going to vote to make rape legal??

The solution here is better protection for those of us affected by violent crimes, not arbitrarily taking away prisoners’ human rights (when a sizeable portion of violent offenders aren’t even be covered by it!). We are better than that.

Keep in mind that only 10% of survivors of sexual violence report to police (I dearly wish I hadn’t!), and of those only three goes to court and one of those gets a conviction. So there are a lot of violent offenders still out there, like the man who raped me, who aren’t captured either by current legislation or this bill. The lines drawn here are arbitrary.

All that this achieves is a vague sense of “those people in prison are bad, they must be punished, so we will take things [in this case rights] away from them”, leaving us, on the outside with a smug sense of self-satisfaction. A sort of “gotcha”. But… that is othering, for one thing, acting as though the people in prison are different than, or less than us – they are still human, remember, and we have human rights because we are human, not because they are cookies we get if we’ve been good – and for another thing, do you honestly believe that everyone who has committed a crime is in prison and that there is no one in prison who has been wrongfully convicted?!

Think back to the statistics I just gave you about sexual violence. Remember all of those – yes, violent! – offenders who are still in our midst. And then think back to all of those statistics in the Waitangi Tribunal report about the vast over-representation of Māori in our prisons. Are you honestly going to tell me that you believe that Māori commit crimes at such vastly higher rates than all other ethnic groups in Aotearoa?

It seems to me that it is much more likely that our justice system is rotten, that it is racist, and that we, as a society ought to do whatever we can to treat our prisoners as humanely as possible, and not to forget that there but for the grace of a wrongful conviction go you or I.

So, what do we do? We look at the evidence. Fortunately for you it’s all in the Waitangi Tribunal report. The Ministry of Justice even compiled an excellent Regulatory Impact Statement which includes the advice from the Waitangi Tribunal report amongst others. Take note of their advice. Extend this Bill.

The Supreme Court, in its 2018 ruling that the 2010 Amendment is inconsistent with the Bill of Rights Act says that “The three year disqualification term had originally been included in the Electoral Act 1993 following the recommendation of the Royal Commission on Electoral Reform that such a term was comparable to the proposed loss of voting rights on three years’ absence from New Zealand.”

Now, correct me if I’m wrong, but prisoners in Aotearoa (unlike asylum seekers in Australia who are kept in offshore detention centres) are actually IN Aotearoa, and therefore not, in fact, absent from New Zealand.

It would appear, then, that the only conceivable (and I say conceivable here, and not defensible, because I do not consider it defensible) position that one might have for not extending voting rights to prisoners imprisoned for more than three years is because one believes that human rights can be granted and taken away arbitrarily, as though they were cookies and not, in fact, RIGHTS, or… blatant racism. Because surely none of us here are under any delusions that this affects tangata whenua more than anyone else.

In conclusion… I hope that you, as representatives of the Crown, ensure that in your reports back to parliament and in the way you vote on this Bill going forward, that you act consistently with te tiriti principles of partnership, kāwanatanga, tino rangatiratanga, active protection and equity and enact the recommendations from the Tribunal’s report!”

Finally, to have them all neatly in one place, here are all the relevant links (including the ones I used in my research for this) in one place:

1 I do not like to call myself a “victim”, however those on the (political) right, who oppose this Bill, have been continually weaponising those of us who are survivors of violent crimes, claiming that we would not want the perpetrators of these crimes to have voting rights, or that it would somehow harm us. These people do not speak for me. Yes, the bad ex harmed me, thereby making me a “victim” of a crime, but I am also a survivor. I speak for myself.

2 Written submissions should all be available online, however at the moment only 69 submissions are visible online, the same number there were when I made mine, so mine isn’t there yet. I heard one of the Committee members say that they had received over 2,500 written submissions, so I suspect they are working through the backlog and once I see mine has been posted, I will add a direct link. The link in the PDF of my written submission is broken, but it goes to Episode 6 of The Citizen’s Handbook.

3 I had watched a number of the oral submissions the day before I made mine, in preparation for making mine and had noticed that Dr Nick Smith found it appropriate, in his questions to almost each submitter I saw submitting in support of extending voting rights to all prisoners,to name the Christchurch shooter in order to ask submitters if they believed that he, too, should have the right to vote. I wanted to pre-empt that question. His response to me was to interrupt me after I said that I choose to follow Jacinda’s example and say “we still live in a free society… just…”.

Lateral Ableism Makes Everything Very Much NOT Okay

CW: discussion of ableism (especially lateral ableism) – particularly functioning labels, nonconsent, sexual violence (including rape), and reference/links to lateral… queerphobia/homophobia/biphobia/transphobia (gold star lesbians)

I recently had an exchange on twitter with one of the main actors of the show “Everything’s Gonna be Okay“, who as it turns out is also the show creator (Josh Thomas). It all started when I took to twitter to voice my displeasure with how the show had handled another main character, Matilda (who is autistic and played by Kayla Cromer, an actually autistic actor) having sex, and the ensuing discussions around nonconsent and disability.

But my main (albeit related) issue was around the use of language, and as I said in my tweets, I actually stopped watching when Matilda says “I’m high functioning, it’s not fair!”. At this point Thomas responded to my tweets telling me to “… maybe finish the episode?” in a tweet he later deleted.

I did. And I regret doing so, as I said when I responded (in a new tweet, tagging him because of the tweet deletion). And he responded to me, but it’s taken me several days to find the words and the spoons to be able to respond to what he said.

There were two parts to his response:

“The reason why I said to keep watching it is because Matilda makes the same points you’re making, and Nicholas and Genevieve realize they’ve probably been ableist.”

I never actually saw this, and I suspect that it’s not actually in the episode I stopped watching but in the next one which I could now watch this week, but honestly after how this was handled (especially the language issues), I am done with this show.

“Re function language: we had three consultants with different views, so I let our actors (who are autistic) use whatever language they wanted to.”

This is the core of what I want to address. Firstly, Thomas doesn’t specify if the consultants were actually autistic. However, even if they were (I know there are diverse views within the autistic community, though the vast majority of us detest PFL – person-first language – and functioning labels), the point he absolutely misses here is the issue of lateral ableism.

So, what exactly is lateral ableism? The simplest definition is that “lateral ableism is when a disabled person is ableist towards another disabled person”.

So let’s see how this actually plays out here. The thing with functioning labels, of course (as many people have written about before – I’m sure you’re able to google this), is that those of us who are labelled as “high functioning” are denied the supports that we do actually need, whereas those of us who are labelled as “low functioning” are considered so disabled that we’re unable to do, well, anything. Work, study, live independently, have relationships, and perhaps the key one here: consent to sex!1

Let’s use an analogy. Josh Thomas says that they let their actors use whatever language they wanted to. So, if they had a lesbian actor on their show who made a point of calling herself a “gold star lesbian”, would he be ok with that? Or would he take into consideration the myriad problems that people have been pointing out with that for some time?

And of course, he might have been fine with actors identifying as “gold star lesbians” on his shows, I don’t know, though that would rather entrench the problem, I’d say.

Updated to add (another analogy):

Most of the time when I go out, I have one of my snuggly dragons or my snuggly octopus with me (they are very stimmy). I have found that a lot of the time people will see the snuggly toy and proceed to talk to me like I’m a child. And there are times I want to grab them and yell “I’m NOT a fucking child!! I have a fucking Master’s degree (and I would have a PhD if it wasn’t for the PTSD situation)! I am fucking intelligent! Stop talking to me like I’m a fucking child!”

And then I stop myself.

Because it’s exactly the same as the functioning labels. Someone who is not “intelligent” (by what measure, anyway?!), someone who doesn’t have a graduate degree, just like someone who isn’t “high functioning” isn’t any less deserving of being treated as the adult they are; of being presumed competent.

I rarely say anything in situations like that (it’s usually just in passing anyway, in a store, or on public transport, or so). But if I ever do, I would make sure not to appeal to any measure of lateral ableism. Because there is nothing about me, nor about anyone else that makes me more deserving of being presumed competent, just like there is nothing about Matilda that makes her more deserving of having her consent taken seriously.

I absolutely get wanting to let people use the terms of identity that we choose! This is important and in most cases I would support this. However, in some cases there is actual harm being done, especially when the person has a significant platform (like being an actor on a TV show, one of the first to be acting as an actually autistic actor playing an autistic character), and allowing them to use that platform in a way that harms their community… is not great.

I could live with the PFL (just like I swallowed it when I saw Hannah Gadsby’s amazing show Douglas, which I can’t wait to see again when the Netflix special comes out), even though I have very strong feelings against PFL. But using functioning labels, especially in a way which insinuates that her consent ought to be valid because she’s “high functioning” (as though it shouldn’t be if she weren’t) is just too far.

Learn about lateral ableism. And do better.

And in future, don’t EVER tell an autistic survivor of sexual violence (and far, far too many autistics are) to continue to watch something that deals with sexual violence and/or ableism when we have explicitly said that it deals with it in problematic ways and don’t want to/don’t feel comfortable to continue watching it. You might think it gets better/the rest of whatever it is redeems the problematic aspects, but you are not in a position to make that call/that suggestion for someone who has experienced trauma (and yes, being disabled in a world not designed for us, facing constant everyday ableism is a form of structural, systemic trauma, quite aside from the trauma of sexual violence).

1 Because yes, the line was said by Matilda when they were talking about whether or not she could consent to sex. And of course, the idea that’s raised by Genevieve (Matilda’s younger sister) and Genevieve’s (bitchy/bullying) “friend” that the guy Matilda had sex with practically “raped” Matilda because she (Matilda) was drunk, sad/crying, and… autistic… is utter bullshit! Yes, alcohol/being drunk makes the whole thing blurry. Being sad… OMFG, seriously, how many allistics (of any gender) have had sex when sad and had it be completely consensual?! And the autistic part… well fuck, there’s your great big helping of ableism right there. (Also note that Matilda is the one who initiated the sexual encounter!)

But what compounds it all is the “I’m high functioning, it’s not fair!”, which Matilda later bursts out with to her older brother (Thomas’ character). Because, no! Even if she wasn’t “high functioning”, that wouldn’t invalidate her consent.

Let’s Talk About Sex! Part 2: A Defence of the Need for Explicit, Verbal Consent Negotiation; or A Rebuttal to The Rape Apologist

CW: rape, sexual violence, rape apology, ableism (especially dismissing autistic women)

So, earlier today I got an email asking me if I wanted to present at this year’s Work in Progress (WiP) Day at the Philosophy Department. I replied, thanking the person for thinking of me and explaining that I had, in fact, quit my PhD in April this year, so there wasn’t any progress to present.

That got me thinking, though. It got me thinking a few things. It got me thinking back to last year’s WiP Day (where I presented what I posted recently as the Let’s Talk About Sex Part 1 post and won two audience-voted awards)… it also got me thinking of the discussion that resulted from that presentation, both there and then during the Q&A, and what continued afterwards via email with a Person who had asked a Question and then with my supervisors, which did in fact result in significant progress.1

You see, one of the questions that was asked in response to my talk (in response, in particular, to my insistence on the need for explicit verbally negotiated consent) was about what if men could learn to read body language – would that change things.

This prompted some discussion, particularly afterwards, and led to me writing quite a bit more. But the question that was asked, and what the man who posed in wrote in response to me answering him… scared me. I see it as nothing short of rape apology.

So, I’d like to share another part of what I wrote for my thesis, which came out of the discussions from last year’s WiP Day.

A Defence of the Need for Explicit, Verbal2 Consent Negotiation

A frequent objection to this suggestion that we need to explicitly, verbally negotiate our sexual encounters is that it’s not sexy. Apparently, it takes away the natural give and take of reading and responding to body language and the sexiness and sensuality of flirtation and replaces it with a clunky script. This objection (often made by men), sometimes stutters briefly at least to a halt when they hear about the numerous studies which show that men consistently misinterpret women’s nonverbal behaviour.3

However, the question has come up as to what might happen if men could learn to read body language and whether that might change things with regards to this need for explicit verbal negotiation. Some people, the argument goes, are much better at “lying” with their words than with their body language so if someone is saying “yes” with their words but “no” with their body language, then one would want to take the body language into account.4

The simple answer to this is that this isn’t a possibility I can seriously consider because this isn’t a thing that is possible. Even if I were to grant that whatever we’d like to call “typical” nonverbal behaviour could be learned (and I have no idea if it can be or not because it’s not really relevant – bear with me here!) there is far too much diversity. And even if we were to grant that the vast differences in cultural expressions of body language and facial expressions and other kinds of nonverbal behaviour (across all the different cultures in the world) could be learned (by any one individual man), which would be a mean feat, and seems highly unlikely, this is still not possible. Because all of this doesn’t account for neurodiversities that impact these non-verbal forms of communication, and for social awkwardness that might lead to atypical (or a lack of) non-verbal communication.

Story time: I’m autistic, but I didn’t know that and wasn’t “diagnosed”6 until earlier this year, when I was 30. So, I have spent almost my whole life so far not knowing that I’m autistic. Part of being autistic for me means that my body language, and in particular my facial expression is definitely not “typical” (and in fact often blank), as has been confirmed for me by many friends and others close to me. If someone were to base their interactions with me more on their interpretation of my body language and facial expressions than on my verbal communication that would be a surefire recipe for disaster. Fortunately, now, I am able to communicate (verbally) to those around me that I am autistic and explain the situation about the non-verbal communication. For most of my life I haven’t been able to do so.

Why is this story relevant? There is a huge number of undiagnosed autistic people, researchers estimating around half of autisitcs don’t know they’re autistic, and the thing is, the vast majority of these undiagnosed autistics are women. The fact that the majority of autistic women go undiagnosed, are diagnosed late, or get misdiagnosed has a number of reasons. In part it’s due to misinformation in the medical field. There are countless stories of women who have had to fight to get diagnosed after having first been told that autism is something that only affects boys and men, so they can’t be autistic, or some variation of that. Part of the problem is also in the original diagnostic criteria (both for autism and for Asperger’s, the latter of which is now no longer considered a separate diagnosis7) having been based on studies which involved a lot more boys than girls. Another very major issue is that things which are pathologised in boys (being quiet, preferring to play by oneself, having intense obsessions) are often seen as quite normal and expected in girls, especially since quite often these intense obsessions are often related to things girls are typically “supposed to” take an interest in (such as fashion, horses, celebrities, or in my case fantasy books and religion when I was younger), rather than often with boys the stereotypical things like trains. Girls go undiagnosed because our autism is seen as another expression of typical femininity, but when everything is too much, and we get overloaded and we meltdown we are “difficult” children. Lastly, autistic women tend to be much better at masking/camouflaging our autism, which is essentially a survival mechanism for fitting into allistic society by pretending to be allistc ourselves since we’ve spent our lives learning the “right” mannerisms, social cues, scripts, etc. However, masking is extremely exhausting and is very detrimental to our well-being and especially our mental health and for a lot of autistics it can lead to autistic burnout. Masking is only very recently starting to be researched and discussed by the medical community, yet it is clearly another big reason why so many of us get so far through life without a diagnosis.

It is worth highlighting also, that on top of all of these reasons for women being un-/mis-/late/under-diagnosed, this is also an intersectional issue (at least in some parts of the world, I can’t speak to all parts of the world). Here in Aotearoa, for example, adults can’t be diagnosed through the public health system8 so in order to receive a formal diagnosis, adults need to see a psychologist or psychiatrist privately which can be very expensive (hundreds, if not thousands of dollars). For people living in poverty this is prohibitively expensive, and since we know that statistically poverty affects certain population groups more, groups who are already more marginalised (in Aotearoa these are, for example, Māori, Pasifika people, single parents – single mothers especially, and disabled people). When women belonging to one or more of these groups (or even just women living in poverty, since living in poverty is itself another form of oppression) are unable to seek a formal diagnosis, this becomes an intersectional issue (it’s always been a feminist issue). It is also one of the reasons why self-diagnosis is rather common in the autistic community and is fairly commonly accepted.9

The upshot is that it is a bad idea for anyone to make assumptions based on someone’s body language or facial expression! While Leo Kanner, who first published on autism in the 1940s may have thought that the prevalence was merely four in 10,000 people10, researchers now estimate that one in 40 people is autistic11 (and this number has increased from just four years ago when researchers were estimating the prevalence to be one in 5912). And considering that that number comes from a paper on autistic children, I can’t imagine it takes into account the numbers of us who go undiagnosed or who aren’t diagnosed until much later in life.

I have had people assume that I’m bored when I haven’t been bored at all, I’ve had people ask me why I’m so upset or sad, when I’ve felt absolutely fine and not at all upset or sad, I’ve been told I look like a scared squirrel when interacting with customer service people when I’ve felt quite confident (just a little dreamy, perhaps).13 And I’ve lost count of the number of times I’ve been asked “what’s that look on your face?” and wanted to respond with a snarky “I don’t know, I don’t have mirror in front of me!” If someone were to make assumptions about me, or about any other autistic person, based on our nonverbal behaviour, that wouldn’t get them very far. If someone seemed to be making those kinds of assumptions now, I might be able to pick up on that and tell them not to do that (though I’m not good at picking up on the nonverbal behaviour of others, which is also part of being autistic). Before I knew about all this, I would have been just as clueless and may have been trying to ignorantly guess my way through someone else’s nonverbal behaviour as much as they tried to make sense of my nonsensical face! The moral of this story is: no one bothered to tell me that my face was blank, and I didn’t know I was autistic until I was 30. You don’t know who you might be interacting with, nor how good at masking they might be. Expressing yourself clearly, explicitly, and verbally is the only way to go.

In an interesting, and somewhat related aside, Bessel van der Kolk writes about his work as a psychiatrist working with patients who have suffered trauma that a “characteristic they shared was that even their most relaxed conversations seemed stilted, lacking the natural flow of gestures and facial expressions that are typical among friends.”14 It would appear from this that atypical facial expressions and gestures (so, nonverbal behaviour) is not just something common to autistic people, but perhaps also to those with PTSD, or other survivors of trauma. In fact, it is well known in the medical community that in women, at least, autism presents quite similarly to PTSD, so that often a differential diagnosis needs to be made (though that is not to say that we cannot both be autistic and suffer trauma; in fact, being autistic makes us more susceptible to trauma since we are more easily taken advantage of, as the research also shows15).

This point here, regarding trauma, is actually very important. One might be inclined to dismiss all of the talk about autism and think that well, if it did turn out to be possible to learn the nonverbal behaviour of NT people, then that would cover the great majority of people at least (one in 40 is only 2.5% of the population, after all), so we’d be pretty safe grounding our assumptions on that… Except firstly, that’s a very dismissive and callous attitude to take. Secondly, look again at the note about survivors of trauma. A lot of people might associate PTSD with war veterans. But the great majority of people with PTSD are people (particularly women) who have survived rape and sexual assault. And the statistics on sexual violence are awful, even here in Aotearoa. One in three girls is sexually abused before she turns 16, one in seven boys before he reaches adulthood. One in five women experiences a serious sexual assault at least once during her lifetime.16 If there’s a chance that the effects of trauma can change the way our nonverbal body language presents (and I’m sure this will be different for each individual survivor of trauma) then considering how widespread such trauma is, we cannot assume for any given woman (or any given person, since men who are survivors of sexual violence report even less often than women do) that their nonverbal body language will be “typical”.

Taking all of this back to the negotiation of a sexual encounter… if someone, let’s say a man (who was unfortunately unable to learn the nonverbal behaviour of ALL people) gets the impression that their partner is saying “no” with their body-language/facial expression, then by all means, they should exit the sexual encounter, however (and this is very important) not because they think the other person doesn’t want to continue with the encounter. They should put a stop to the encounter because they themselves do not feel comfortable with it, and if they feel they are getting mixed signals they shouldn’t feel comfortable with it. This distinction matters, because if they were to stop the sexual encounter because they think the other person doesn’t want to continue with the encounter and actually said so to their partner then that would be telling their partner that they (the male partner) believe that their ability to interpret their (the female partner’s) non-verbal communication/body-language/facial expression is better or superior to the woman’s ability to communicate what she actually wants and how she is feeling. They would essentially be mansplaining her own feelings to her (saying “I can tell what your body is saying better than you can… or you are lying to me”). If, on the other hand they put a stop to the sexual encounter because they themselves do not feel comfortable with it, then they are taking responsibility for their own feelings and for their own confusion, which is a very mature thing to do. It is respectful of their partner to take them at their word and it is responsible and caring to themselves to take a step back and ensure that they are in a situation they are completely comfortable with themselves. The other option they have, of course, is to openly talk through their discomfort, if they feel they have the sensitivity to do so.

Before we continue, think back for a moment to the example of Sam and Alex from the previous post on sex, negotiating their sexual encounter within their established long-term relationship. It may seem odd that a couple who are in an established long-term relationship would communicate so explicitly about sex with each other. One might think they, at least, would already be able to “read” each other, that surely an argument could be made that even if men can’t learn to read non-verbal communication generally, surely we can say that we can get rid of this need for explicit verbal communication in long-term relationships because couples can learn to read each other, given some time!

I want to say yes, I really, really do. And yet, I remain cautious.

On the one hand, we might say that so long as general boundaries are negotiated to begin with and a safeword is always in place and an openness to renegotiation is always there, what’s the harm in saying go ahead and fall back on safewords if need be…? My caution lies in the fact that the majority of rape occurs between “intimate partners” (with most of the rest between “acquaintances” – stranger danger is really rather a myth).17 And this isn’t something that occurs only rarely to someone you might read about in the news. You can be almost certain that you know someone yourself who has experienced this in their own life. Statistics from the US tell us that “[n]early 1 out of 10 women in the United States (9.4% or approximately 11.1 million) has been raped by an intimate partner in her lifetime” and in addition to that, “[a]pproximately 1 in 6 women (16.9% or nearly 19 million) has experienced sexual violence other than rape by an intimate partner in her lifetime; this includes sexual coercion (9.8%), unwanted sexual contact (6.4%) and non-contact unwanted sexual experiences (7.8%).”18 Given Aotearoa’s notoriety for domestic violence, I’d wager the statistics here are no better.

Now take these statistics and consider whether we want to say, across the board that it’s fine to assume that we can read our partners well enough to do away with explicitly negotiating consent. Clearly, far too many people can’t and don’t. Given that, I would suggest that continuing a certain level of explicit consent negotiation even in long-term relationships displays trustworthiness, respect, responsibility, caring, and of course honesty. While the ideal might be for us to be worthy of our partner’s trust, to be respectful of our partner, to be responsible, caring, and honest, the minimum requirement, even in a long-term relationship should be that we act in ways which are trustworthy, that we treat our partners with respect, that we behave responsibly and with care and that we act honestly. The minimum standard is continence, though as we continue to practice these actions we will continue to build up our character traits and work our way towards virtue. The other reason to continue to clearly and explicitly negotiate and communicate in long-term relationships is that people don’t read minds and continuing to negotiate throughout a sexual encounter what feels good and what doesn’t is not only best practice ethically, but since it’s a way of giving feedback it can make for better sex, and positive feedback would surely be nice to hear.

In another twist on all of this, a response I have come across to all of this (or specifically to the insistence that yes, we really, really need to have explicit verbal consent negotiations) is the claim that goes, more or less “but wait, I’ve never done the explicit verbal thing in all of my sexual encounters thus far and I’ve never raped anyone!” This style of response was clearly framed by Matteo Ravasio when he said:

I am quite sure that all of my first-time encounters with a woman have been of this sort: whether it was initiated by her or by me, there was no linguistic agreement that we were going to have sex.

I think that insistence that this sort of explicit verbal consent is a necessary condition for a consensual encounter would result in a view that considers the vast majority of intercourse as cases of sexual abuse.19 [Emphasis in original]

I have two responses to this. The first is rather a blunt question: how can you be sure? If you didn’t explicitly negotiate consent, how can you know for sure what the other person(s) involved wanted and felt? Unless they told you, you can’t. Pointing back to the previous post, men are notoriously bad at reading women’s nonverbal behaviour and communication and if that’s all you have to go on… I’m frankly amazed at how anyone could be so certain. You might also want to consider the fact that a lot of survivors of rape and sexual assault wouldn’t confront their rapists with the fact of what they did afterwards. (I know I didn’t!!)

My second response is on something of a lighter note. We need to stop looking at sex as a dichotomy of good sex and rape. I mentioned the statistics earlier and yes, they are awful, and things desperately need to change. However, if you look at this within the virtue ethics framework then we can say that you may have been terribly irresponsible in not practicing explicit verbal negotiation of consent, you may have lacked respect and care for your partner(s), you may have been callous and insensitive to their needs (perhaps also to your own), you may have not communicated honestly about your own needs and desires. You may not have been generous with your time, perhaps your sexual expertise, your vulnerability and openness towards your partner(s). Maybe you lacked the courage to open up and speak openly and vulnerably about your desires and needs and fantasies with your partner(s). We can consider all of these things and say that the sex someone has is ethically problematic in one, a few, many, or all of these ways, and still not call it rape or sexual assault. But on our current vocabulary about sex, as soon as we identify sex as bad (in an ethical sense) it must be rape. This was the problem with the Aziz Ansari case;20 so many commentators read the story, couldn’t find rape and concluded there was nothing ethically wrong, so it must just be a case of “bad sex” (i.e. a lousy/unpleasant sexual encounter). Somehow so many people failed to notice the attempted rape, the manipulation, the callousness, the lack of respect, the lack of care about his date’s needs and desires.

1It also got me thinking about how I had to quit my PhD largely because I wasn’t coping because of my PTSD (which I have because the bad ex raped me) and the content of my thesis being very much to do with sexual consent (and therefore non-consent), so I wasn’t very well equipped to deal with things like the rape apologist whose question during the Q&A sparked the further progress which I’m sharing here… also, the University’s disability support (I found out in my last year before I quit that I’m autistic and ADHD, though the ADHD wasn’t formally diagnosed until after I quit, I think…) was absolutely useless!!

I know that my research is important and valuable, but because of the lack of support I’m never going to complete the thesis I wanted to/set out to. I also know that I’m not the only survivor of rape/sexual violence who has had to give up graduate study at least in part as a result of that.

2I had made the point elsewhere in what I’d written (in what was meant to be a chapter) that for people who are non-verbal other methods of communication, such as written, electronic text-based, or sign language communication would also fit the bill. For the sake of brevity, I am subsuming those into the “explicit and verbal” label, even though those forms of communication are not, of course, verbal.

3 Michelle J. Anderson, “Negotiating Sex,” Southern California Law Review 78, no. 6 (2005), 1406.

4 Thank you to Matteo Ravasio for this “interesting” question – I am sceptical of how actually interesting it is, of course, especially considering all of his follow-up comments, which as mentioned above, I see as nothing short of rape apology.

6 I now, of course, find the medicalisation of the idea of “diagnosing” us… distasteful, to put it mildly. Unfortunately a “diagnosis” is still necessary in order to access a lot of accommodations/supports (such as in education/employment), but this is a topic for another post.

7 In the DSM-V; in the ICD-X it still is, and the ICD-XI, in which it won’t be, hasn’t been released yet.

8 I have been told that it may be possible if someone is admitted for inpatient mental health care, possibly even only if that is involuntary, so under the Mental Health Act, but I don’t know how accurate that is. I do know that generally speaking it’s simply not funded through public health except for children.

9 Of course, as in any community, there is disagreement. Some hold firmly to the view that formal diagnosis is the only form that “counts”, however I have found these to be outliers, and often to be found in people who also hold very racist and misogynist views.

10 Simon Baron-Cohen, “Book: Leo Kanner, Hans Asperger, and the discovery of autism,” The Lancet 386, no. 10001 (2015), 1330.

11 Kogan et al., “The Prevalence of Parent-Reported Autism Spectrum Disorder Among US Children,” 1.

12 Baio et al., “Prevalence of Autism Spectrum Disorder Among Children Aged 8 Years – Autism and Developmental Disabilities Monitoring Network, 11 Sites, United States, 2014,” 2.

13 Most recently, I’ve had my older sister show me a photo of one of her cats who is terrified of her new puppy (and clearly looks very scared) and tell me that the expression on her cat’s face looks just like an expression that is often on my face. I do not see the resemblance. I don’t think I look like a cat (but apparently that’s not the point).

14 van der Kolk, The Body Keeps the Score, 26.

15 https://www.spectrumnews.org/news/girls-autism-high-risk-sexual-abuse-large-study-says/

16 HELP Auckland, “Sexual Abuse Statistics,” https://www.helpauckland.org.nz/sexual-abuse-statistics.html

17 Black et al., The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report, 1. It says, “[m]ore than half (51.1%) of female victims of rape reported being raped by an intimate partner and 40.8% by an acquaintance”. These are US statistics.

None of this is to say that rape and sexual assault by stranger doesn’t happen at all, simply that it is incredibly rare and that women are much more likely to be subjected to violence by a current or former partner or an acquaintance.

18 Ibid., 42.

19 Matteo Ravasio, email message to author, November 1, 2018.

20 Way, “I went on a date with Aziz Ansari. It turned into the worst night of my life,” https://babe.net/2018/01/13/aziz-ansari-28355

Phases in BDSM Negotiations Style: The type of play/sex Body: Bodily considerations, where touching is ok, what kind of touching, any injuries or safety requirement. Limits: What does anyone participating not want to do? What are your boundaries? Safewords: The exit conditions, usually in the form of the “traffic light” system (yellow = approaching the limit; red = stop NOW), using “stop” literally, or hand signals or gestures.

Let’s Talk About Sex! Part 1: Rethinking Sexual Consent: Kukla on Negotiation vs the “Yes Means Yes” Model

CW: sexual assault, victim blaming

I’d like to talk (or rather, write) about sex! Well, actually, consent.

First, let me start by saying that I had to quit my PhD earlier this year (I don’t want to go into the story of why right now), so I am never going to finish my thesis, but the stuff I was writing about was important. It mattered, and it still matters. And this particular thing is something I was reminded about tonight, so I thought I might start sharing bits and pieces of things I was writing. So here is something I put together as my “Work in Progress Day” talk for last year, 2018. (I’ve just made a few, tiny, edits, to update it.)

I’m sure we’ve all heard the age-old “no means no” story: If you’re doing sex things with someone and they [read “she”] says “no” then to continue would be sexual assault, so if during a sexual encounter someone [read “she”] says “no” or “stop”, then stop. The implication of that seems to be that unless someone [read “she”] says “no” it’s fine to just assume that everyone is fine with doing sex things and to go full steam ahead, boys! And it is, after all, clear that this message is addressed at men/boys insofar as it tells them to listen when women say “no” (what on earth would you do otherwise?! Oh right… think she’s playing hard to get… that old script… unfortunately still rather current…), yet also directed at women/girls insofar as it tells them (so, us) that it’s ok and even necessary to say “no” if we don’t want to participate. Seems pretty straightforward. The problem is, of course that it doesn’t work.

So, we get the lovely “new” “Yes Means Yes” model of consent, also known as the enthusiastic, affirmative model of consent. It’s the idea that in order to have ethically acceptable sex we need to give and receive affirmative (that’s the “yes” part) consent before actually getting on with our sexual encounter, and it needs to be enthusiastic.

Now I have a few issues with it. Several of them are nicely illustrated by Rebecca Kukla in her fantastic new paper “That’s What She Said: The Language of Sexual Negotiation” (which you should all go and read when we’re done here today – seriously, there is nothing more fun than reading about sex!). Her solution is to ditch the model and opt instead for the “Negotiation Model”. I don’t. I have a few reasons for this, and that’s pretty much what I’ll be talking writing about today.

My first problem with this model is the “enthusiasm” requirement. Just looking at that makes me exhausted and frustrated. There are many reasons that people, including women (yes, women are people too – that is the point of feminism!), choose to have sex. The thing is, we (as people in general, not only we as women) don’t always have to be enthusiastic about it in order for it to be good, or even excellent (and I mean good/excellent in the ethical sense, not in the sexual sense, though there may well be some overlap there). Sure, it can be great if we’re enthusiastic about it, but just to brainstorm a few reasons we might have sex that are perfectly (ethically) legitimate that we might not feel enthusiastic about… to get pregnant, or to get a partner pregnant (though, to be fair, absent enthusiasm, I do hear turkey basters are a thing, just sayin’), in a (consensual) kinky/BDSM relationship as an act of submission to the dominant partner by the submissive partner, or as a reward to the submissive partner by the dominant partner, in a long-term committed (perhaps even perfectly vanilla – i.e. non-kinky) relationship in order to maintain physical and emotional intimacy with one’s partner, or because one knows that even though one isn’t feeling enthusiastic about it at the moment, once the sexual encounter gets underway, that enthusiasm will get underway too. One of the issues with the whole “enthusiasm” thing seems to be that it gets used interchangeably with, or as code for, “horniness” or “being turned on” and to say that it’s not ethically acceptable to have sex (that one can’t truly consent to having sex!) unless you’re turned on is really messed up! The flip side is just as messed up because it says that you shouldn’t accept your partner’s consent unless they are turned on… and turned on by whose standard? Who’s judging that? You? Or them? If it’s up to you to judge if your partner is turned on enough to give “enthusiastic” consent, then perhaps consider this quote from Michelle Anderson’s paper “Negotiating Sex”:

At its core, the Yes Model relies on a man’s ability to infer actual willingness from a woman’s body language. Yet study after study indicates that men consistently misinterpret women’s nonverbal behavior. They impute erotic innuendo and sexual intent where there is none. Any theory that relies on a man’s ability to intuit a woman’s actual willingness allows him to construct consent out of stereotype and hopeful imagination.[1]

Also relevant is this passage from Emily Nagoski’s book Come as You Are:

If we persist in the false belief that women’s genital response reflects what they “really” want or like, then we have to conclude that if their genitals respond during sexual assault, it means they “really” wanted or liked the assault.

Which isn’t just nuts, it’s dangerous.

“You said no but your body said yes” is an idea that shows up both in the lyrics of pop songs and in the images at Project Unbreakable, an online gallery of sexual assault survivors holding signs with phrases said by their rapists, their families, or even police responders. … [B]odies don’t say yes or no, they only say, “That’s sexually relevant,” without any comment on whether it’s appealing, much less whether it’s wanted.[2]

I’m sure you can see why this is bad, and why we want women to be the boss of saying what we want and what we enjoy and when we are turned on and we’re not. It’s much, much safer than leaving that up to men to decide. It also goes along nicely with the idea that each of us is the boss of our own body and we have individual agency and if I say that I want to have sex, then (provided you haven’t been pressuring/harassing me about it, etc.) then take me at my word and don’t require evidence of “enthusiasm” or being turned on.

Which brings me to the next point. The affirmative consent model (I’m dropping the enthusiasm, but sticking with the overall model), seems almost contractual, we (verbally) sign on the dotted line, say “yes” to the sexual encounter, and then we’re good to go, right? Um… nope. See, I don’t know who actually does this (it’s ok, I’m not going to ask – though feel free to comment and let me know!), but it seems patently silly to decide together (let’s assume for the sake of simplicity that there are two people involved here) that you’re going to have sex, verbally agree (so you’ve done your affirmative consent thing) and then you… what? Do sex things together with no further communication about it?! Really?? If so, that either buys into the heteronormative assumptions that sex equals penis in vagina intercourse with (maybe or not) whatever it is you want to deem “foreplay” tacked on beforehand, or you’re really back in a “no means no” situation where you haven’t exactly (it seems to me!) given any kind of informed consent because you haven’t talked about what this sexual encounter is going to involve! So, this idea here has never been my understanding of the “Yes Model”.

See, I’m a virtue ethicist (um… I’ve got an admission to make here… I think I might not be anymore… but I won’t let that detract from what I was writing here!), and the thing I’m working on now in my current chapter is saying that affirmative consent is really a virtue ethics project (or it certainly ought to be). My conception of consenting isn’t just saying “yes” to a whole sexual encounter at the start, but rather to honestly, generously, and responsibly negotiate what each partner would like to do, to be caring and considerate of each other’s wants and needs before, during, and after a sexual encounter. To take responsibility for safe sex practices, to be respectful of each other’s boundaries. These should, ideally, be character traits of those involved, but at the very least, those involved should act according to these virtues, even if they do not yet have the fully formed virtues themselves; they can be continent[3].

Kink/BDSM Glossary BDSM: Bondage & Discipline, Domination & submission, Sadism/Masochism Bottom: “A person who agrees to give up control or receives the stimulation during kinky activities that may or may not include submission.” Top: “A person who is consensually in control of the action during kinky activities.” Kinky: Related to BDSM, usually in an unspecified way. Vanilla: Non-kinky Quoted definitions taken from https://fetlife.com/glossary
Kink/BDSM Glossary
BDSM: Bondage & Discipline, Domination & submission, Sadism/Masochism
Bottom: “A person who agrees to give up control or receives the stimulation during kinky activities that may or may not include submission.”
Top: “A person who is consensually in control of the action during kinky activities.”
Kinky: Related to BDSM, usually in an unspecified way.
Vanilla: Non-kinky
Quoted definitions taken from https://fetlife.com/glossary

Ayesha Kaak’s recent research into “Conversational Phases in BDSM Pre-Scene Negotiations” shows that

in … consent negotiations in BDSM contexts … [t]he data suggests that there are at least four distinct – but not discrete – phases present in these conversations. That is, the phases may be moved through in different orders in any given negotiation or they may blend or overlap with other phases but they are always present.

These phases include [Style], [Body], [Limits] and [Safewords]. [Style] encompassed the type of play to be done, the sensation that the type of play would elicit, the intensity of this sensation, and the toys that would be used in producing this sensation and intensity. [Body] allowed the negotiation of bodily considerations such as the location on the bottom’s body where play was acceptable, the position the bottom would assume during the scene, whether touch (sexual and non-sexual) was allowed, to what extent this touch was permitted, and finally, considerations of existing injuries or safety requirements that may impact the play to be had. Often overlapping with [Body] negotiations of safety, injury and touch was [Limits]. During [Limits] the boundaries of each practitioner … were outlined and agreed upon. … Lastly came an examination of [Safewords]. This phase allowed practitioners to negotiate and ensure mutual understanding of how the scene was to be ended in the event that the bottom reached their limits or experienced some sort of unexpected distress. Three ways of ending a scene were identified: 1) the use of the traffic light system where “red” signals the need to immediately end the scene, 2) the use of plain English where “Stop” actually means stop rather than being a kind of mock protest or way of managing pain, and 3) the use of body language such as gestures or hand signals.

Navigating these phases requires kinksters to have and display a certain level of social proficiency. This proficiency ensures that the locally produced understandings of certain terms can be agreed upon. It was shown on several occasions that this proficiency can be shared with others of a lesser proficiency – as an experienced top did with their inexperienced bottom during their negotiation, bolstering his proficiency by displaying her own.[4]

Phases in BDSM Negotiations Style: The type of play/sex Body: Bodily considerations, where touching is ok, what kind of touching, any injuries or safety requirement. Limits: What does anyone participating not want to do? What are your boundaries? Safewords: The exit conditions, usually in the form of the “traffic light” system (yellow = approaching the limit; red = stop NOW), using “stop” literally, or hand signals or gestures.
Phases in BDSM Negotiations
Style: The type of play/sex
Body: Bodily considerations, where touching is ok, what kind of touching, any injuries or safety requirement.
Limits: What does anyone participating not want to do? What are your boundaries
Safewords: The exit conditions, usually in the form of the “traffic light” system (yellow = approaching the limit; red = stop NOW), using “stop” literally, or hand signals or gestures.

All of these phases seem like important parts of pre-sexual encounter conversations/negotiations that vanilla people ought to be having too. The “style” part ought to include what sort of sexual encounter they want to have and what they want to include in the “sex” part of the sexual encounter (this should come naturally after agreeing that they do indeed want to do “sex things” together). The “body” part seems like a natural follow on and can be as simple as “please be gentle with my left knee, it’s recovering from a sports injury”, or “I like to be touched really gently/in a really rough way”, or “I’m really ticklish, so please don’t tickle me on purpose and if you accidentally tickle me I’ll be sure to let you know so you can stop!”, that sort of thing. This will, in a vanilla context, apply to both partners, since there would not be an unequal power dynamic. The tickling example carries over into limits (since tickling might be such a limit) or “I’m really not into anal” and sure, all of this might seem geared towards a first-time encounter, so let’s try to change up the script for a long-term relationship vanilla sexual encounter (where the couple have decided they’re going to do sex things together).

Alex might say: “I’d really like to go down on you tonight, how would you feel about that? And maybe you’d like to 69? But don’t forget I got my flu jab this morning, so be gentle around my right arm!” Sam might respond: “That sounds pretty hot! I’d also really like you to do x tonight, that would totally turn me on! Thanks for the reminder about the flu jab, I’d totally forgotten! Also, maybe try to avoid, or be gentle with y, I’m feeling a bit PMS-y…”

Now what about “safewords”? We use the “stop” variety in our vanilla relationships all the time, right? But it would certainly be responsible to actually explicitly discuss our exit conditions for sexual encounters, which Kukla makes an excellent point of, also saying that safewords should be taught in sex ed so that everyone is more aware of the concept and that even vanilla folk can and ought to use safe words. They might not need to be re-negotiated every time, but perhaps a brief reminder (“and our safeword is still x?” “Yup!”) is good.

Consider briefly the character traits displayed in such exchanges. Responsibility is obvious. Respect for one another’s boundaries. Honesty (about one’s own boundaries). In what Kaak mentioned of sharing proficiency with those who are less proficient there is a sense of generosity (after all, we’re not only generous with our money, time, but also our skill and experience; so, if we’re very proficient or experienced with something kink- or sex-related, then we can certainly be generous with that!). The agents involved could certainly be showing care for themselves and one another, and consideration. And that’s just in a very brief overview of a consent negotiation.

What I am essentially advocating for is much like Kukla’s negotiation model, but explicitly in a virtue ethics framework and I wish to very explicitly keep the affirmative consent name of the model. Kukla’s model is how I’ve always imagined the affirmative consent model, and how she (and those she quotes and refers to) characterise it isn’t at all how I have seen it, and yet looking at it again, that makes some sense. The reason I want to keep the name is that in our current social and political climate, to pull the focus away from consent would be problematic. Consent needs to be ongoing and negotiated, certainly. I believe that we are better off revising our understanding of consent than to get rid of it entirely. Saying that consent is not necessary for ethically permissible sexual encounters seems dangerous but renewing our understanding of consent is critical.

Keep in mind that it was just over 20 years ago that a judge on a rape trial here in Aotearoa said to the jury that “if every man stopped the first time a woman said ‘No,’ the world would be a much less exciting place to live,” and 20 years ago in Australia another judge defined consent to the jury in these harrowing words:

Consent may be words, may be by actions or even inaction … that is knowing what is about to happen and allowing it to happen or a combination of these. It may be hesitant, it may be reluctant, it may be grudging, it may even be tearful, but if the complainant in this case consciously permitted the act of sexual intercourse that you find occurred, if you do, provided her permission or consent is not obtained by terror, force or fear, it is still consent.[5]

We’ve come some way, what with #MeToo and #TimesUp but we have a long way to go still.

So, as I said at the start, I presented this as a talk at the Work in Progress Day, when I was still working on my PhD thesis… and there was time for Q&A afterwards. There was one question in particular which got me thinking further, which led to a lot of what turned into a major section of what was meant to be one of my chapters. I intend to share that next.

Stay posted!

[1] Michelle J. Anderson, “Negotiating Sex,” Southern California Law Review 78, no. 6 (2005), 1406.

[2] Emily Nagoski, Come as You Are: the surprising new science that will transform your sex life, Kindle Edition, London: Scribe, 2015, Chapter 6, Section “lubrication error #2: genital response is enjoying” (emphasis mine, I’m guessing – from memory!)

[3] Continence is a virtue ethics term meaning that you don’t have the virtue (yet), but you know what the right thing to do is, and you do it, but not because it’s part of your character to do so (e.g. you don’t do the honest thing because you’re an honest person, but rather because you know that’s the right thing to do), so it doesn’t come as easily to you as it does to an actually honest person. An incontinent person, on the other hand, knows what the right thing to do is… but doesn’t manage to bring themselves to do it.

[4] Ayesha Kaak, “Conversational Phases in BDSM Pre-Scene Negotiations,” Journal of Positive Sexuality 2, no. 3 (2016): 49-50.

[5] Both quotes quoted in Nicola Gavey, Just Sex? The Cultural Scaffolding of Rape, 23.

Bibliography Anderson, Michelle J. “Negotiating Sex.” Southern California Law Review 78, no. 6 (2005): 1401-38. Gavey, Nicola. Just Sex? The Cultural Scaffolding of Rape. New York: Routledge, 2005. Kaak, Ayesha. “Conversational Phases in BDSM Pre-Scene Negotiations.” Journal of Positive Sexuality 2, no. 3 (2016): 47-52. Kukla, Rebecca. “That’s What She Said: The Language of Sexual Negotiation.” Ethics 129, no. 1 (2018): 70-97. Nagoski, Emily. Come as You Are: the surprising new science that will transform your sex life. Kindle Edition. London: Scribe, 2015.
Anderson, Michelle J. “Negotiating Sex.” Southern California Law Review 78, no. 6 (2005): 1401-38.
Gavey, Nicola. Just Sex? The Cultural Scaffolding of Rape. New York: Routledge, 2005.
Kaak, Ayesha. “Conversational Phases in BDSM Pre-Scene Negotiations.” Journal of Positive Sexuality 2, no. 3 (2016): 47-52.
Kukla, Rebecca. “That’s What She Said: The Language of Sexual Negotiation.” Ethics 129, no. 1 (2018): 70-97.
Nagoski, Emily. Come as You Are: the surprising new science that will transform your sex life. Kindle Edition. London: Scribe, 2015.