What is dubious consent?

I saw a tweet the other day that said dubious consent is a misnomer. If the consent is dubious, she said, then it’s not consent. The implication being that it’s rape.

There is outright, straightforward consent, where both the man and the woman absolutely, positively want sex and say so out loud, and never question it throughout or after the act. Then there is outright, straightforward rape, where either one or the other does not want sex, and says so, and fights back, and reports it after as rape. Both of these cases are as clear as day, but there is a whole lot of gray area in between.

For example, what if a woman consents to sex but changes her mind? What if she consents to sex but the man is too rough? What if she never verbalizes the word “no” or fights back, but she is thinking them the entire time? To be honest, most people consider these rape, and I would agree tend with them (though specifics matter too).

It gets more ambiguous. What if a woman feels pressure that she will be physically harmed if she does not comply? Probably that’s rape, but what if the man never really, directly threatens her? What if he does not even realize that’s her fear? Does it make sense to label him a rapist because he’s too stupid to realize it and she did not verbalize her refusal?

Or, if instead of fear of physical harm, what if she is concerned about financial harm? Maybe her kid is sick and she needs the money or maybe she just wants a new Prada bag. And what about blackmail, like to expose someone’s past or dirty pics or whatever, does it count as rape? What if a woman chooses to have sex with her husband every night, though she doesn’t enjoy it, so that her kids will have a roof over her head. It may not be rape, but it definitely counts as dubious consent.

To me this is the biggest grey area of all: misunderstanding. Words of consent or force are not often spoken. So much is nonverbal or built into other words through innuendo. Even the most nicest guy, who would never dream of raping a woman, rarely demands the words “Yes, I want to have sex with you” before going in. No, he relies on cues, which means there is room for error. The tragedy of these scenarios is that the woman may feel violated and suffer shame, and yet the man is not a rapist.

In the prologue to “Yes Means Yes”, Margaret Cho has an essay that is very compelling, but her story is that she was in man’s apartment. In the middle of the night, he came and had sex with her. I don’t want to put words into her mouth, but it seems like it felt like rape to her. As a reader, I got that feeling. And yet, she didn’t say no. How is that different from so many other non-rape sexual encounters, where the woman was a totally willing participant?

One difference is that she didn’t want it. And yet, desire can’t really be used as a litmus test for rape. There are women who’ve experienced orgasms during rape, that doesn’t make it any less so. And conversely, a woman who has no physical desire may consent, and it’s not rape. One does not imply the other, either way.

The thing I’ve found, in discussing these issues, is that every woman falls at a slightly different point, making it virtually impossible to make blanket statements. Now, back to the woman who made the comment about dubious consent = rape, that might be true for her. I’m doubtful she considered all the situations that fall into dubious consent, but maybe she did. Perhaps she looks at every single scenario I’ve described here, and some I haven’t, and feels that anything other than verbal, explicit, 100% consent is rape. That may be true for her.

Verbal consent is a rare thing to give. Who starts off sex with a Q&A session? BDSM does formalize this process, which is ironic since its players are sometimes accused of being rapists. But who among the vanilla folks checks in about consent and limits between the after-dinner coffee and hitting the sheets?

Truth is, dubious consent is more common than not.