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by Gabrielle Birkner

Consent and the Single Girl

As a college junior, I spent the fall semester in Paris — staying mostly with a host family, but occasionally with the parents of a childhood friend, who was away at college. One night my friend’s handsome older cousin came by the apartment. Flirtatious banter led to making out, and before long he was putting on a condom. “I don’t want to have sex,” I said in English, and in French for good measure. He kept insisting that I would like it; I kept trying to talk him out of it. I had never been a shrinking violet — I was voted “class feminist” in high school and I covered women’s issues, including sexual violence, for the college radio station. But when my words didn’t work — I shrank. I didn’t push him away or beckon my friend’s parents, who were asleep in next room; they had to be up early, and I didn’t want to wake them. So I just lay there, quiet and still, and waited for it to be over. The next night, I went to bed early, only to be awakened by the cousin, climbing into the bed. That time, I didn’t say “no” in any language. Rather, I resigned myself to what was about to happen, lying there frozen until I heard him leave the room. I never saw him again, except on Facebook — we are not “friends” — where his profile picture shows him holding a little girl, maybe his daughter.

To this day, I can’t think about my time abroad or see a painting by Egon Schiele (one of his more erotic prints hung above the bed) without thinking about what happened. But what had happened? I simply didn’t know how to name it — still don’t. What I do know is that this conundrum is not mine alone. The dynamics of sexual consent have been murky ever since Eve and Adam ate that apple together in the garden. Who is seducing whom? At what point can a woman consider that an act of seduction has crossed over into an act of violence? Or at the least into an act to which one partner has not consented, which is in and of itself a form of violence. And if that happens, what renders a person capable of resisting? What makes one feel powerless to do so?

The politics of consent have made headlines in recent months. Just weeks before such cringe-worthy terminology as “legitimate rape” and “forcible rape” entered the national lexicon — thanks, or no thanks, rather, to Missouri Congressman Todd Akin — Lilith convened a small group of women to discuss the fraught topic of sex and saying yes. Unmarried women in their 20s and 30s, from across Judaism’s denominational spectrum, attended our living-room conversation in Brooklyn; there were straight, gay, queer and bisexual women, women who were born Jewish and those who had converted; most identified as single, though women in committed, monogamous relationships, engaged women and divorced women were also present. Despite the relative diversity in the gathering, nearly all the women spoke about past sexual encounters that they felt hadn’t been totally consensual.

“There’s this assumed binary of consent — Yes or No. But there are shades of yes and shades of no,” said Melissa, a 28-year-old observant Jew, who works at an educational website. “My problem is that I’ve said yes to all sorts of things I haven’t wanted to say yes to.” *

The women in attendance recounted incidents of “emotional coercion,” and how their partners misunderstood “going back to his place” as a tacit agreement to go all the way. Some recalled sexual experiences during which they changed their minds partway through, but didn’t feel like they could speak up. There’s a sense, said Lana, 33, who works for a Jewish non-profit organization, that “if you change your mind, then for some reason whatever happens to you is your fault.”

Emily, 29, recalled a sexual encounter with a much older man. He was an acquaintance whom she “had a desperate crush on,” and whom she had run into, quite unexpectedly, at a Tel Aviv restaurant. She ended up going home with him, and things began moving more quickly than she had anticipated. “I was starting to get nervous — he was more assertive, taking charge, leading,” she said, noting that, given their two-decade age difference, the power dynamic was heavily in his favor. “It became clear that we were going to be having sex, not because I consented, but because it was just the way it was going to be. I even said ‘not yet’,” which she thinks he may have interpreted as “more foreplay.”
But what Emily meant was “No.”

“The next morning, I was still, on the one hand, very happy, because I had a big crush, and on the other hand I was so pissed that he ruined it,” said Emily, a university instructor. “It was going to be the most incredible night, and then he had to go and ruin it and have this nonconsensual…. ”

Meanwhile, Alicia, a 27-year-old gay woman, recounted finding herself on the “other side,” wondering if she had violated the boundaries of a woman she had only recently met online, and with whom she had gone home after a date. The two women were making out, and Alicia’s date told her explicitly that she didn’t want to have sex. “I said, ‘Great, let’s make out’. We made out, and then we had sex, and I was certain that it was consensual,” she said.

But the next day, Alicia, who is a writer, panicked. “I just had sex with someone who said she didn’t want to have sex. Fundamentally, that’s not okay.” That was her first thought. “But then I thought, she’s a grown up, she wasn’t stoned or drunk. She changed her mind” — and wanted to have sex. “Right?”

The confusion over what constitutes consent stems in part from the reductive way we’ve been taught “sex education.” As early as kindergarten, young children learn to recognize the difference between a “good touch” and a “bad touch,” as a way to avoid sexual predators. Teens learn about the potential for those life-changing consequences of sex: unintended pregnancies and sexually transmitted diseases.

Then comes college, when young people start to take responsibility for their own choices, and when, for many, sexual initiation takes place. (Over the past two decades or so, the percentage of teenage girls having sex has fallen 10 percentage points, to 27 percent, according to Centers for Disease Control and Prevention statistics, meaning they’ve been less likely to have been sexually active before their college years.) And college is also where the story becomes more Jewish, as Jews are represented in institutions of higher learning at rates about twice that of the general population.

In the course of an academic year, three percent of college women are the victims of a rape or attempted rape, according to National Institute of Justice statistics — making rape the most common violent crime on American college campuses. And of the college women whose sexual encounter meets the NIJ researchers’ definition of rape, nearly half of them don’t consider that what happened to them was rape. Perhaps because there wasn’t a knife to their throat, or perhaps because they didn’t exactly say “No.”

And those early sexual experiences can inform how young women and men approach sex and relationships for decades to come. But for all of the talk on campus about sex — for all the free contraceptives and STD tests, for all the Take Back the Night rallies and “No means No” rhetoric — colleges often leave their graduates dangerously ignorant in the area of sexual communication. So it’s possible, probable, that young people enter adulthood without ever having contemplated what they want out of a sexual relationship, or how to let a partner know when to proceed and when to stop. That leaves them ill-equipped to navigate the range of sexual experiences they are likely to encounter during the growing number of years that bridge Hillel and the chuppah.

“[Women] haven’t had the opportunity to think about it until they are in the moment; they haven’t been given the structure to talk about it, reflect on it,” said Susan Marine, who served as the first director of the Office of Sexual Assault Prevention and Response at Harvard University.

“What colleges don’t understand is why people who are well adjusted enough to go to college still commit sexually violent acts,” said Marine, who went on to direct the Harvard women’s center before joining the faculty of Merrimack College in Andover, Mass., last year. “It’s really overwhelming for most colleges to think about that, so we spend too much energy on the languages of yes and no.”

But what we are socialized to understand in terms of “yes” and “no,” the Talmud — compiled some 1,500 years ago — parses with remarkable nuance. The Talmud, in tractate Nedarim 20b, sets a high bar for sexual consent, prohibiting intercourse while intoxicated, angry, fantasizing about someone else or contemplating divorce. “The rabbis placed a very high premium on being present,” said Rabbi Danya Ruttenberg, who edited the 2009 anthology The Passionate Torah: Sex and Judaism “As deeply problematic as the traditional texts can be, there was an understanding that saying ‘yes’ isn’t enough; you have to mean it.”

Ruttenberg, campus rabbi at Northwestern University’s Hillel, noted that the Babylonian Talmud requires consent even in marriage. Given that the last U.S. state to outlaw marital rape — North Carolina — didn’t do so until 1993, “that the Gemara talks about this is very, very significant,” she said.

She said that one of her favorite stories in the Talmud centers on a student who hides under the bed and listens as his teacher has a loving sexual encounter with his wife. When the teacher finds his disciple and asks him to leave, the student replies: “This is Torah, and I must learn,” the lesson of tractate Berachot 62a being that sex is worthy of study and consideration, said Ruttenberg, adding: “There’s a sense here that we need a strong role model — that we don’t figure out how to love and respect each other in a vacuum.”

Moishe Kavod, an organization that provides social action-oriented programming for Jewish young adults in the Boston area, spent the better part of two years devising a sex education curriculum for Jewish 20- and 30-somethings. Over the past year, the group piloted a series of six sex-ed workshops — on topics such as “communication in friendships and relationships,” “sexual violence and boundary violations,” and “consent and sexual communication.”

Julie Eisen, a public health professional who helped develop the Moishe Kavod curriculum, compared “no means no” rhetoric to the mantra “say no to drugs.” It’s good advice, to be sure, “but it doesn’t provide the tools we need in real situations.”

Eisen, 26, said that understanding consent is about more than thwarting assault. “One thing that stuck with me is that if someone is asking for something you don’t want to do, you shouldn’t do it. But you also shouldn’t make someone feel ashamed,” she said. “It’s about respect, and treating the other person as an actual person, rather than just a threat.”
But that requires the very type of sexual communication that many young adults leave college without.

“Sometimes you need to say no to things, but I worry that people aren’t going to like me, or say I’m a bitch,” said Rachel, a frum 27-year-old who works in the literary arts, and attended the Lilith-sponsored discussion. “The times I’ve done things that I feel like I haven’t actively consented to — when I haven’t listened to that [inner] voice — it’s because I’ve been worried about disappointing people.”

The Moishe Kavod workshops included role-playing exercises in which participants practiced saying “no” — clearly, but also compassionately — rather than acquiescing to a sexual act that made them uncomfortable.

“Many of the men in my generation were brought up on free Internet porn, where women are often subservient and, frankly, just receptacles,” Eisen said, noting that a lot of her male contemporaries have had unlimited access to online porn from the time they were 12. “Women may think they have to do these things seen in porn, even if they don’t want to,” to be considered desirable.

The result of these pressures and others? “[Y]ou have young women who just shrug their shoulders and say ‘I guess,’ and it can have really toxic consequences,” Rabbi Ruttenberg explained. “… Even if you do say, ‘No, don’t do that,’ women are trained to doubt ourselves and to wonder, ‘Did I really say it? Did he hear it? Did I mean it?’”

No matter what insight the Talmud brings to the issue of sexual consent, or how much foresight that ancient text shows, these days, it is popular media that are most likely to influence views on the issue. Take, for example, the new HBO dramedy, “Girls,” which has been widely praised for its realistic portrayal of just how confusing singles’ sex can be. Several women at the Lilith-convened discussion talked about the show’s depiction of just-going-along-with-it sex and submissive sex, and the scene in which the central character’s boyfriend, without warning, pees on her in the shower.

“[‘Girls’] shows the potential for trauma to happen very subtly, under the guise of a presumably pleasant sexual encounter,” Emily said. “There is trauma that is so subtle that you might have missed it, but it sucked — and that has the potential to damage.”
Slate magazine’s popular “Dear Prudence” advice column is also shaping the popular cultural conversation about sex and consent. Two recent columns on the subject elicited thousands of responses, many of them angry. The first, published in January, was based on a letter from a woman whose friend had sex with a stranger after a night of heavy drinking. In the days after the encounter, the friend referred to the incident as a one-night stand, but, upon reflection, considered what happened to be rape, since she was too drunk to have given consent. The second, published in July, was from a woman who is contemplating divorce because her husband initiated sex after the two had gone to a wine-tasting event. The next morning, the woman felt that the alcohol had precluded her from giving explicit consent to the sex. In both cases, Emily Yoffe, who writes “Dear Prudence,” is loathe to categorize the incidents as assault.

In response to the woman with the hard-partying friend, Yoffe writes, “It sounds as if she wants to punish the guy at the bar for her own poor choices.” And she tells the wine-tasting wife that “if two adults are in love and have frequently made love then each can assume implicit consent to throw such legalistic caution — as well as panties — to the wind,” chiding her to “[s]top acting like a parody of a gender-studies course catalog and start acting like a loving wife.”

During the Lilith discussion, many women, especially Lana, took issue with Yoffe’s “course catalog” comment. It’s “like, if only feminism hadn’t taught you to have complicated feelings about things or to look at gender as a problematic thing or just to think about the murkiness of the whole situation,” Lana said.

In an interview with Lilith, Yoffe doubled-down on her published replies. She said she rejects the notion that when two drunk adults — particularly two drunk strangers — have sex, the man should be held responsible for his actions, and the woman should be deemed completely irresponsible for hers. “How does that advance women?” Yoffe said. “If you left that bar drunk, got into car and killed someone, your alibi couldn’t be ‘I have two x chromosomes’. … Women are raped all the time, but to extend the definition to ‘I went to a wine-tasting and had sex with my husband’, that is very destructive to the prosecution and awareness of what rape is.”

While Yoffe recently tackled expanding definitions of sexual assault, the author and activist Jaclyn Friedman has long focused on expanding the definition of consent beyond “no means no.” She advocates a “yes means yes” approach, what she calls “enthusiastic consent.” Simply put, it requires partners to check in with one another if and when they are unsure of the other person’s desires or boundaries.

Friedman, the author of the 2011 book What You Really, Really Want: The Smart Girl’s Shame-Free Guide to Sex and Safety, said “no means no” is important, but incomplete. “It suggests that women are the gatekeepers of ‘no’, and that men have to keep pushing until they get a ‘yes.’ When you leave it at ‘no means no,’ you get the defense, ‘She didn’t say no,’ even though she was lying there whimpering and frozen and panicked,” she said.

Back in 1993, Antioch University, in Yellow Springs, Ohio, garnered media attention for its interpretation of “yes means yes.” The school’s then-new sexual assault prevention policy required consent to be verbal, mutual and “reiterated for every new level of sexual behavior.”

Emily said that back in college — not at Antioch, but at a venerable East Coast school — the idea of getting verbal consent every step of the way appealed to her in a way it no longer does. “Seeking consent explicitly feels like something beginners do,” she said. “Now, I don’t feel hung up on consent. I’ve let go of the grammar book because even if I make mistakes, I can speak the language and intuit my way through it.”

At the same gathering, Lana said that while verbal consent is an “important feminist concept,” a way to negotiate power imbalances, she feels conflicted about consent Antioch-style. “I was thinking, ‘Of course people don’t like that.’ That’s not sexy; that’s not spontaneous; that’s not like a ravage-me-randomly kind of thing. Am I gonna feel hot if you’re like, ‘Now I’m going to unzip your jeans’?”

Although critics have jested about needing notarized consent when they want to go from fondling a woman’s left breast to fondling her right breast, Friedman said that “yes means yes” need not be a buzz kill. “You can ask questions in sexy ways,” she said. “It’s like improv comedy; you’re checking in with each other to see where you want to go next.”
And like improv, the results can be mixed. The same way we learn to view our dating experiences as “research,” some sexual encounters fall into the category of research, too, Friedman suggested. They need not be labeled as coercive or drive us crazy with guilt — despite the fact that we may feel ambivalent about them before, during or after, Friedman said. “You have to have sexual experiences when you say, ‘I kind of wish I hadn’t done that,’” she said. “That’s not a failure; you’re learning. But you have to have chosen the risk.”

It’s been more than a decade since I spent that fall semester in Paris. Memories of what happened, of the fear and distorted pressures that caused me to retreat into survival mode, don’t terrorize me the way they once did. But sometimes I find myself imagining how I would have handled differently those frightening moments — understanding full well that my actions may have made no difference at all. I would have worried less, I tell myself, about tarnishing a friendship or waking up two people who had to be up early the next day. I would have been better able to communicate my boundaries. Because I would have had contemplated what sexual consent, or the absence of it, looked like, sounded like, felt like — before was too late.  

Gabrielle Birkner is a writer and editor in New York City. She founded the Forward’s women’s issues blog, The Sisterhood.