How "Free" is Your "Freely Given" Consent?

France just passed an affirmative consent law sexual engagement. If an affirmative (“yes”) to having sex is not present, then any sexual activity which proceeds is in violation of the law. Specifically, it requires that consent be freely given, informed, revocable, specific, and given prior to engaging in sexual activity. Silence or a lack of an objection to activity are not enough to qualify as consent. If this version of consent is not present, then the acts are considered assault.

This is a similar definition of consent as promoted by Planned Parenthood here in the US and often taught in sexuality classes in universities. It is a move toward a more consent-based culture and away from rape culture.

This form of consent doesn’t work unless there is a collective understanding of what these terms mean. In lieu of mass education and a huge improvement in secondary school sex ed, the law is weakened.

This week, I watched You Belong to Me: Race, Sex, and Murder in the South. This documentary tells the story of Ruby McCollum who, in 1952 shot and killed a white man who had repeatedly raped her. What becomes apparent in watching the folks interviewed about the case is that there is no communal understanding of consent.

I’ve italicized the following text which includes descriptions of rape and murder so you can skip it if you need too.

McCollum was a Black woman living in Live Oak, Florida and married to a prominent Black man. The lone white doctor in town decided he wanted to have sex with Ruby. He showed up at her home and proceeded to rape her. He told her she now “belonged to him” and repeatedly returned to her home to rape her. Finally fed up, she goes to his office and shoots and kills him.

In interviewing lawyers, historians, and family members of people involved in the case, the contention that she was repeatedly raped is questioned. There was no denying the sexual relationship between the two parties. A child is born and is clearly half-white and Ruby acknowledged the paternity. Outside of a lone historian, the rest of the folks interviewed are hesitant to call it “rape.” Several folks suggest that she may have seduced the doctor or been happy for the attention from a white man. These statements demonstrate our communal lack of understanding of the terms of consent set forth by French lawmakers this week.

Freely Given

We talk about consent being “freely given” in the kink community a lot. Generally, consent educators provide examples of “freely given” as lacking physical or psychological threats. For example, if someone says they won’t let you leave a location until you have sex, that isn’t freely given. Most examples are like this- interpersonal. What it lacks is structural, historic, and social power dynamics which do not have to be voiced to serve as a form of coercion.

In 1952 Florida was ruled by Jim Crow laws. Lynching of Black people remained a threat. While the number of annual lynchings had decreased since the 1930s, the more than 4,300 lynchings of Black folks in the US at that time would be well-known. Additionally, her family and their ability to make a living, go to school, and receive healthcare would be threatened if white folks decided to target her.

The doctor was a prominent and wealthy member of the white community. He would eventually run for elected office. Her ability to tell this man that she did not want to do what he was demanding she do would have meant her safety and that of her family would be threatened.

Many of the white people being interviewed for the documentary discounted this as a threat. Several men even suggested that it was Ruby who enjoyed the relationship and might have encouraged it.

This lack of structural, historic, and social awareness of power differences between people of various races and genders persists today. When most of us talk about “freely given” consent we fail to recognize the current social structures we are functioning in.

Gender

Gender differences are the first structural difference which should be addressed. Women grow up learning that rape and murder are always a possible outcome for a date. The first time I was warned about rape, I was five. I was going to a friend’s house for a sleep over. She lived in town (I grew up on a farm). My mom warmed me that if we walked into town together, I could be hurt by men who would want to take my clothes off and do things to me. I was five.

Through my teens I heard stories from friends who were harmed when they told boys no. They were hit, raped, bullied, and harassed by boys they rejected. As girls, this teaches us to calculate how safe we are saying no to someone. Depending on the location, how many men we are surrounded by, how capable we are to get away safely, all factor into a decision if staying silent and not objecting is safer than saying “no.”

Size and strength also come into play. Women who are smaller than the men approaching them may also feel a physical component to the threat, even if the man is not raising a hand in anger. We learn to calculate who could physically overpower us on the way to our car and factor that into our decisions.

Race

Race is another factor which comes into play in structural consent. For people in interracial relationships (short term or otherwise), there is an awareness of racial differences. With every Black and Brown male dominant I have played with, we have talked about the fact that they are at a structural power difference. If I decide to claim he harmed me (even if I previously agree to activities) it is more likely the authorities will believe me (a white woman) and his potential punishment will be enhanced because of the racial difference.

For me, being an out, kinky person who documents much of what I do provides some level of safety for both of us. I cannot claim that I am not into BDSM, impact play, and other fetishes. I am open about the type of play I enjoy and many of my initial negotiations with partners are documented in text and other messaging forms.

Not every interracial coupling has this level of documentation. People who practice in private and even those who are not part of the BDSM community may not have open and complete discussions about what they want to occur in a scene.

The power dynamic would is reversed for Black and Brown women playing with white people. The intersection of race and gender makes them more vulnerable before the law. Black and Brown women are eroticized and hyper-sexualized in many spaces. This nonconsensual hyper-sexualization has been used to discredit claims of rape and harm.

Class

Money creates a power difference. If you are in a relationship where your housing, food, or other necessity is resting on the income of a partner, there is an inherent power difference. People often agree to stay in relationships because they lack the funds to leave. If saying “no” to specific activities could result in being thrown out of your home, having needed funds for food or healthcare reduced or revoked, there is a level of coercion to the relationship.

What Freely Given Should Mean

When deciding if something is consensual, we need to look at the ability to say no. For it to truly count as “freely given” a person must feel that saying “no” will not result in physical, mental, legal, or monetary harm. This means each of us needs to understand what power we bring to a relationship (short term or otherwise).

Power based on social position isn’t universal for every relationship. As a woman, I lack structural power over men. As a white person, I have structural power over Black and Brown folks. My class, reputation, disability, public persona and more all change how my interactions are weighted with each person I have a relationship with. Their identies and power also matters in calculations of consent.

Freely given becomes more complex the more our intersecting identities are counted. A famous person has power over those not famous. People with a large social platform have power over those who are silent on socials. Some jobs provide structural power over others even if the income isn’t great (read: police, child protective service workers).

Until we have a better collective understanding of power and a willingness to talk about the power each of us has and lacks, defining consent as “freely given” is incomplete.