“Come here! You may kiss me, if you like.”

                I kissed her cheek as she turned it to me. I think I would have gone through a great deal to kiss her cheek. But I felt that the kiss was given to the coarse common boy as a piece of money might have been, and that it was worth nothing.

Charles Dickens

Great Expectations

A familiar debate has come to the foreground once more of late, this time catalysed by reports that Boris Johnson “squeezed the thigh” of a journalist at a private lunch some twenty years ago. Thankfully enough, our discussion here need not involve the minefield that is Johnson any further. The question before us concerns consent to touching, and in particular what constitutes communication of this consent. The touching involves an entire spectrum of physical contact, encompassing the stroking of an arm, the pecking of a cheek, the slipping of a tongue and an expansive array of more sexual contact which need not be specified just yet.

A brief note on sex and language: though I acknowledge wholeheartedly that there are biological differences honed by millions of years of natural selection that mean that the roles in the discussions to follow largely apply to one sex over the other, the wholesale implications are what matters. As such, I will continue where possible with neutral language so that the applications of the examples can be as wide as possible. I will also use the word “intimate” to describe the touching under discussion. I use it here not interchangeably with “sexual”, but rather to distinguish with other touching such as a platonic pat on the back.

A common assertion in the wake of this news appears to be that one should always ask first, and I intend here to take a stance against this proposition by pulling gently at its threads to reveal the practical implications that it holds for courtship, sex and much of our culture besides. Riding along with this assertion is the contention that embarking upon some physical contact without verbal assent is tantamount to sexual assault, and this too will be pulled apart.

Putting the claim at its strongest, the contention is that non-verbals alone are insufficient to know whether another individual truly reciprocates one’s feelings and wishes to make, continue or progress physical contact. There are some individuals who, perhaps through nervousness, may give off false signals of approval when they really do not wish to be touched. It would be wrong for these individuals to be subjected to unwanted touching, and this risk is not outweighed by any other considerations. Thus, in the interest of being safe and best protecting all involved, communication of consent to intimate touching must always be verbal.

I have written of “clever legislators” previously with respect to the Sexual Offences Act 2003, and particularly with how it deals with matters of consent. The pertinent issue at court during trials of alleged sexual assault and rape is very often consent. Did the complainant consent, or didn’t they? Section 75 of the Act deals with “evidential presumptions about consent”, whereby a jury may be directed that if they find as a matter of fact that any of the scenarios listed were real at the time of the sexual act, they should presume that the complainant did not consent. For example, if there was violence used or threatened against the complainant, if the complainant was asleep or unconscious, or if the complainant was unlawfully detained at the time, they would be presumed to have not consented.

Crucially, the defendant must also have known that these circumstances existed to allow these evidential presumptions. And it this theme—of a defendant’s knowledge and belief—which is most relevant to our discussion.

There is an identical subsection occurring in sections 1, 2, 3 and 4 of the Act (dealing with Rape, Assault by Penetration, Sexual Assault and Causing to Engage in Sexual Activity, respectively), which states that “A does not reasonably believe that B consents”. Thus, to prove any of these offences, the prosecution must (as well as proving that the complainant did not consent) prove that the defendant did not reasonably believe that consent had been given. The next subsection states that “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.” Rightly, nothing within this legislation calls for these “steps” to entail any verbal communication at all.

Thus, mercifully, we can rest assured that when we speak of consent in this context of sexual assault it is meaningless unless we include in our equation the variable of what the would-be-assailant believed at the time.

Let us take a nightclub dancefloor as our setting. The music is deafening and it effectively nullifies the possibility of verbal communication as a viable source of understanding the wishes of the other individual. Two people dance in separate groups but in close proximity to one another; their eyes meet and they step closer. As they dance the first physical contact is accidental as their hands brush past each other. Their eyes are locked and the DJ brings in the mood, playing something vaguely Latin. The smile, the locked gaze and the hitherto reciprocated dancing suffice. A hand on the hip brings the bodies together, and from there everything that may follow, and how intimate the dancing may become, comes purely from the indications communicated to one another through their bodies, without a word uttered by either.

Very little of the above would be possible in a world where we demanded verbal assent from one another before engaging in intimate contact, and that, to my mind, is a great shame. Before moving on completely from the question of sexual assault, however, we should understand that if at the point that one party placed their hand on the hip of the other to pull them closer, the other party pulled away instead, there would still be no sexual assault. Leaving aside the question as to whether it is actually “sexual”, the point is that there was a reasonable belief that they would consent to this touching.

As mentioned, the possibility of the scenario described above is but one thing being risked by unthinking calls to “always ask first” when thinking of touching someone intimately. It is one of the implications of this short-sighted policy. Elsewhere, when followed to its logical conclusion, I submit that it falls foul of the good old reductio ad absurdum.

Usually, before a culmination in unequivocally sexual contact such as intercourse, there is a progression of intimacy which becomes more sexual. The inception may be something as simple as a kiss or a light touch on the arm to plant the seed in a mind as to one’s mood. However long foreplay might happen to last in a given partnership, and whatever time it takes to move between the various stages of intimacy and sexuality, that these stages exist is uncontroversial. Is it really feasible, I ask sincerely, to at each point (and each point may be impossibly difficult to define) ask verbally for permission to do a given thing and await a verbal go-ahead? Let’s pull at that thread.

Our couple are sat on a settee, having enjoyed a bottle of wine (and I’ll abandon the linguistic neutrality for this example). Assuming that verbal consent has already been given to touch her arm, he poses a question as to whether he might kiss her. She agrees and he does. Breaking form the kiss for the first time, he asks if he can place his hand on her thigh. “Yes”, comes the answer, and he obliges, returning to the kiss only to break away again and ask if he can open his mouth while he kisses her. Again, she agrees. He considers the hand on her thigh, and how he would like to move it up her leg towards her pelvis, but he is concerned about what the right units are. Has she only given consent to touch the patch on which his hand is currently resting? Upon what increments must he ask for further authorities to move it up? She’s wearing jeans, so there isn’t a hem-of-a-skirt variable to contend with. He settles asking her only once if he can move his hand up her thigh, and again, she says, “yes”.

Breaking from the kiss once more, he asks if he can kiss her neck instead. Rolling her eyes now, she agrees. He finds this to be more beneficial to the general effort as he needn’t contend with her lips obstructing his necessarily incessant speech as he asks for further permissions for each button on her blouse which he wishes to undo. Mind now wondering, he contemplates, as previous consent for actions does not count now, whether each thrust later on will be its own fresh act requiring prior, verbal approval.

Ridiculous though this may be, it is nevertheless the logical implication of a policy to “always ask first”. I reject the idea, and as such, I am under no obligation to try to make the nonsense above any less nonsensical. It is instead incumbent upon those who make the ridiculous assertion under discussion to draw the lines and identify the units. There is, of course, a wholly more sensible option available.

At some point, a simple acknowledgement must be made. Sometimes, appropriate communication of consent can be (and really ought to be) completely non-verbal.

There is also a deeper point here. In the age of social media, untested but popular hypotheses which sound to many like the foundations for good policies have a habit of gaining traction rather quickly. Such proclamations can now be highly consequential, and this is something we should take special notice of. In his new book, The Madness of Crowds, Douglas Murray writes the following: “[We] have begun trying to reorder our societies not in line with facts we know from science but based on political falsehoods pushed by activists in the social sciences. Of all the things that are deranging our societies, everything to do with the sexes—and particularly relations between the sexes—are perhaps the most deranging of all. Because the facts are there all the time, in front of our eyes. It is just that we are not meant to notice them, or if we notice them, we are expected to stay silent.”

The implications of the assertion under discussion constitute such facts. They are there to be considered and understood so that the contention that one must “always ask first” can be seen for what it is: a vacuous and myopic proclamation. Naturally, my experience on Twitter in trying to engage with this issue has been riddled with suggestions that I must “assume that because you kissed them . . . you can Fuck them”, and talk of “Entitled men who continue to make excuses for disrespecting the right of a woman to choose who touches her body” amid calls to “check your male privilege”.

Something often underappreciated, perhaps more lately and because it is hard to quantify, is the variable of fun. Courting, romance and sex really ought to be fun, and I submit that part of that fun is the mystery of not always knowing what the other individual in the partnership is thinking, and certainly in not constantly insisting that it’s put verbally. There is beauty in the journey of learning to understand one another through touches as means to this wonderful end, not as mere ends in themselves, to each be chronicled and given prior, verbal approval. Insisting on verbal communication of consent is not only absurd and unworkable; it undermines a crucial part of intimate exploration of one another: the very act of seeking to understand the partners in our intimate relationships on a level unreachable by words.

Thanks for visiting. You can follow me on Twitter at @SecDetective.