In an earlier blog post about shifting definitions of rape, I discussed the moral and legal importance of sexual consent. I claimed that consent was an act, not and state of mind, and, as such, it needs to be given. Lack of a "No" is not equivalent to a "Yes." It is a mistake to infer consent to sexual activities from the absence of an explicit "No."
Yet explicit consent is not usually sought or given in established and stable sexual relationships. Sexual partners who know one another well communicate their desires through gestures which are understood against the backdrop of shared past experiences. Tacit consent has an appropriate place within such relationships. But even such relationships are not "beyond consent." Having consented to sexual intercourse in the past does not constitute indirect consent to future sexual encounters with the same partner. Marital rape can, and sadly does, occur.
Consent, however tacit, is necessary to keep sex from constituting assault.
Casual sex is the realm within which explicit sexual consent is most ethically relevant and necessary. That's because there is so much room for misinterpretation between people who have less context for interpreting non-verbal cues. Yet a standard worry, perhaps especially among men, is that people will be falsely accused of having engaged in nonconsensual sex when the sex was, at most, regrettable. People do sometimes consent to sex and wish later that they had not.
In the early 1990s, Antioch College got a lot of press for enacting a formal Sexual Offence Prevention Policy requiring explicit verbal consent to sexual acts. The stated intent of the policy was to make date rape less likely and to improve communication.
Lots of people made fun of Antioch College's policy about sexual consent, because of its demand that consent be both explicit and specific. "Can I put my hand here?" "Can I remove your shirt?" Critics asked, "Isn't all that talk awkward and artificial?" Too much talk, not enough spontaneity. Where's the fun in that? But Antioch College was trying to help students avoid painful sexual misunderstandings.
Some time ago I noticed that an enterprising person was selling a solution to worries concerning consent on E-Bay. Packs of "Sexual Consent Cards" were available which had a place for the signature of the parties and could be used to spell out in writing what the terms of the sexual encounter were. Insisting that one's partner sign such a card betokens lack of trust, but such a lack of trust is not out of place when engaging in casual sex with a virtual stranger, or even with an acquaintance. Using Sexual Consent Cards might be more than a little awkward. I'm not a fan of either these cards or of casual sex, but for those who engage in casual sexual encounters these cards are at least a gesture toward due diligence in preventing disastrous misunderstandings.