Tea, Spam, and Sex: Defining Consent

lurkerbynature 02/27/2018. 6 comments

Apropos to Martha’s last post and a couple other conversations I’ve had recently, I’m going to talk a little bit about consent. Because this is something we navigate all the time and affirmative consent isn’t that damn difficult guys! (I know, preaching to the choir.)

This video went viral a while ago, and I love it:

We do consent all the time, socially. We know what valid consent looks like. We also do it in business communications all the time, and have very clear rules around it.

You know how you hate getting spam? Spammers are using your email address to send you shit without your consent. US rules for email marketing focus more on making sure you have an “Opt-Out” unsubscribe function that is listened to; basically, NO MEANS NO. Sound familiar?

EU rules around email marketing are more based around affirmative consent. With some clear exceptions — basically, if you’re marketing email is to someone who is already a customer and you’re offering similar products to what you’ve bought from them — businesses are not allowed to use email or phone numbers to market to people unless they consent or “Opt-In” in to being contacted for marketing purposes beforehand. This is a YES MEANS YES model.

There are some clear legal definitions of what constitutes valid consent for these purposes. Consent must be:

  1. Freely given: to be valid, consent can’t be sought in a situation where there is a significant power imbalance or where the individual feels they can’t freely say no without consequences. You can’t withhold other agreed services or products where processing this information isn’t necessary unless they consent to be marketed to.
  2. Fully informed: they need to know exactly what they’re consenting to.
  3. Specific: businesses can’t get a one-size-fits all consent. They have to be specific as to what they want to use the contact details for and communicate this before collecting it.
  4. Unambiguous.
  5. May be revoked at any time: every marketing communication has to provide a free and easy way to Opt-Out of further communication.

Businesses that don’t think things through very well go, “But wait! I can’t get a signature for every little thing on a webpage!” They don’t need to. Consent may be made clear “either by a statement or by a clear affirmative action that signifies agreement”. (That’s a quotation from legislation.)

Another consumer protection law thing: pre-ticked boxes agreeing to something (ie. in contracts) are illegal. Making it so that someone has “consented” to something because they didn’t specifically find that paragraph and un-tick the box is not valid consent. People have to affirmatively consent for it to be valid, and you can’t set up a situation where they’ve “said yes” unless they actively search out and opt to say NO.

Any “consent” that does not meet ALL of these criteria is not valid.

Geez. If we can get these rules straight for email, I think we can do it for sex.

So . . . if you’re necking and the person you’re making out with is clearly into it and initiating more, that’s a “clear affirmative action”. If your sexual partner is really into vaginal penetration, they’ve specifically consented to that, not anal penetration. Consent is specific. If they feel pressured, it’s not freely given. You don’t get to do a bait and switch. They need to know what they’re agreeing to do and clearly and unambiguously agree to it. And if at any time they change their mind and decide this isn’t fun right now, they get to say no and you stop.

As far as I’m concerned, the only reason people have for thinking this is too difficult a model to follow is that they don’t care about whether the person they want to fuck really consents or not. With email, that’s spam. With sex . . . that’s rape. They don’t care if they’re a rapist or not. They just don’t want to be called one.

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