Courtney Chatellier



California’s Senate Bill 967 made “affirmative consent” the new standard for adjudicating sexual assault cases on the campuses of California state schools last year. The bill was created in response to what has come to be considered a crisis of sexual assault on college campuses and to reflect a broader cultural shift regarding what counts as consensual sex (as well as to counter the still bafflingly common belief that a deliriously drunk or unconscious person is capable of giving consent). SB-967 was greeted with a lot of snark and eye-rolling, which is understandable: intimate violence is, of course, really hard to prosecute because to some extent it will always be a matter of he said/she said. Moreover, as many writers have pointed out, there seems to be enough leeway in the wording of the law to pervert its meaning into a parody of political correctness: under the letter of SB-967, one New York Times writer observed, a female student could, for instance, be brought before her school’s judiciary committee for giving her boyfriend a hug without his giving her explicit and timely consent to do so.

Other critics of affirmative consent laws have objected on the more tenuous grounds that capricious young women could now, in the days or weeks after sex that was merely awkward or otherwise regrettable, be enabled to decide retroactively that they were “raped”; that much of what has hitherto been widely considered “natural” or “normal” sexual activity—specifically, the more “active,” “convincing” role that young men have been socialized to perform—could now be re-defined as rape (thereby trivializing the presumably infrequent and perfectly legible cases of “real” rape); and that this two-pronged assault on the healthy sexual practices of red-blooded American college students—the injunction, on the one hand, that both parties communicate their ongoing desire to participate in sexual activity over the course of an encounter; and the possibility, on the other hand, that women will accuse the well-intentioned football players who really thought she wanted it of raping them—was going to, in the words of one writer, “ruin both good men and good sex.”

The actual text of SB-967 is less scandalous than these objections would suggest. It mandates first of all that the governing bodies of California schools “adopt and implement written procedures or protocols to ensure that” sexual assault victims “receive treatment and information,” and that schools “adopt policies … including an affirmative consent standard in the determination of whether constent was given.” The bill then defines affirmative consent—“affirmative, conscious, and voluntary agreement to engage in sexual activity”—and specifies that the involved parties’ being in a relationship, or having had consensual sex in the past, does not automatically imply consent.

Implicitly or explicitly, objections to SB-967 raise the spectre of women who cry rape, suggesting that when a woman says she’s been raped, there is a pretty good chance she is lying, and that all rape claims should consequently be approached with skepticism. Placing so much emphasis on language—(she didn’t say no, but did she say yes? but was it yes the whole time?)—affirmative consent bills (so the objection goes) give undue weight to the victim’s words, to what she said at the time as well as what she says she said. Whether your response to this is, Well yes, finally, let’s take what the victim says seriously; or, This doesn’t fix anything because it’s still one person’s word against another’s; this focus on testimony, on what can be said about what was or wasn’t said, still misses, somehow, the point, which is less about eradicating uncertainty (which remains an elusive hope), and more about a conceptual shift, away from understanding consent as something that is automatically there until someone says no, towards understanding it as something that must be actively demonstrated, announced, enacted. New York’s affirmative consent bill, which was signed into law in July of this year, specifies that “consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual acitivty” and that consent “may be initially given but withdrawn at any time.”

As opposed to a negative, or “no means no” standard, which prefigures women as sexually available up until the moment they protest (more or less violently, in order for “lack of consent” to hold up in court), an affirmative standard (“yes means yes”) rejects silence, disinterest, lack of participation, and other passive forms of discomfort as sufficient proof of willingness to engage in sexual activity. Further, a woman’s sexual past—even if that past is as recent as a few moments ago—does not constitute consent either (consent “may be withdrawn at any time”). The “older,” “no means no” definition of consent (which, to many, is still the current, common sensical one) rests on the assumption that “normal” sexual behavior for women is inherently silent and suggestive, and may present as an unwillingness or a lack of desire that it is the male partner’s role to overcome. Catherine MacKinnon’s argument that “[i]n the permissible ways a woman can be treated, the ways that are socially considered not violations but appropriate to her nature, one finds the particulars of male sexual interests and requirements,” also rings true in this moment of legally codified transition from negative to affirmative consent: definitions of consent contain assumptions not only about female sexuality, but also about male sexuality. The amount of sexual agency that the shift from “no means no” to “yes means yes” attributes to women, and the amount of sensitivity it attributes to men—not to mention the amount of clarity and specificity it will demand college students to have about their desires—are all points that have raised a certain amount of discomfort for critics of affirmative consent bills.

Ultimately the implementation of affirmative consent standards may provoke useful self-reflection and, hopefully, greater respect and empathy between partners. And yet, despite how right it sounds in theory, it still seems, nevertheless, sort of useless in the courtroom (or the campus judiciary committee hearing) because it is, of course, impossible to enforce; because, between two people alone together, it remains impossible to know what was and wasn’t said, impossible to retrieve something as thin and fleeting as the tension in the room, the tone and inflection and feeling of the words that were exchanged. Although we ask so much of them, words have a way of disappearing. They are there, we hear them, and everything can seem to follow or shape itself to them, like they’ve carved the room into a story; but then, try to reconstruct them later, and what do you find? No trace, no residue in the air, no imprint on the walls—just nothing. It may not even be what is said, or what we say or think or believe was said, but the nature of speech itself that is shifty and that challenges our ability to believe each other.

The present generation of college students, though—perhaps uniquely in history—find ways of leaving a trace of nearly everything they say. Even private and ephemeral-seeming conversations are preserved and available as evidence, thanks to Facebook, Gchat, Snapchat, texting. I have been thinking about this intermittently since I first saw Emma Sulkowicz while I standing in the checkout line at the Whole Foods in Union Square last fall. This was when New York magazine had her on the cover, propping up her mattress, and it seemed a galvanizing moment; like millions of other people who walked past this image on checkout-line magazine racks or sidewalk newsstands, I got the impression that the world had sided with Sulkowicz. New York’s optimistic headline—“A Very Different Kind of Sexual Revolution on Campus”—suggested a tidal shift away from the culture of disbelief and silencing that had kept so many instances of acquaintance rape swept under the rug.

Yet in the following months, as Columbia dismissed the charges against Paul Nungesser, Sulkowicz’s alleged assailant; as Cathy Young picked apart Nungesser’s and Sulkowicz’s Facebook messages, and the New York Post cast Sulkowicz as a liar backed by the “cabal of feminists,” the backlash against Sulkowicz (who continued, regardless, to carry her twin-extra-long mattress to all of her classes) seemed to transmute into a larger obsession with knowing (or not knowing) what really happened between these two people. It no longer seemed to matter that so many rapes had gone unreported, and that even when women did bring complaints to campus authorities or police, they were so often discouraged from pressing charges; and that now, finally, there was this woman who was unabashedly speaking up and allowing other victims to speak up; what mattered was that it was her word against his word and so—because of the Facebook messages, and because she had waited months to come forward, and because we live in a world that’s obsessed with celebrity and self-promotion—it was probably Sulkowicz, the world decided, who was lying. The problem, again, was one of believing someone’s words: even if you were willing to believe that, in general, rape is underreported; that, in general, colleges have egregiously mishandled their responses to rape allegations; that, in general, a deeply entrenched culture of male entitlement has made acquaintance rape a shockingly banal facet of college life; even if you could believe some or all of this, the specific case – epitomized by Sulkowicz’s accusation of Nungesser – ultimately remained a problem of one individual’s word against another individual’s word, making belief so much more fraught.

Responses to Sulkowicz’s Mattress Performance and the attention paid to her Facebook chats with Nungesser over the past year foreground the deeply-seated anxiety that accompanies this question of belief as it pertains to adjudicating date rape and other forms of intimate violence: the uncertainty seems insurmountable, a kind of ethical roadblock. Implied by this frustration at not being able to know for sure whose version of the events is the true one, is the fantasy that, with the right technology, someday, this will cease to be an issue (the way that DNA technology seemed, at first, a miracle for the truth). This fantasy turns the core problem of justice into one of information rather than interpretation, of truth rather than belief; if we could all just see what happened, it would all be so cut and dry.

In her more recent performance art piece, Ceci N’est Pas Un Viol (“This Is Not A Rape”), Sulkowicz seems to indulge us in this fantasy of precision and voyeuristic ominiscience, sort of. Ceci N’est Pas Un Viol is an eight-minute video that was released online on June 3rd of this year. Presented in split screen through the perspective of four “hidden” cameras, the video depicts two people (Sulkowicz and an anonymous actor whose face is blurred out) entering a dorm room and having sex that begins as consensual before turning violent. Although the video’s content seems almost blatantly to reproduce Sulkowicz’s encounter with Nungesser, based on Sulkowicz’s own highly publicicized description of what happened, the text that accompanies the video states quite adamantly that it is not a reenactment: “Ceci N'est Pas Un Viol is not about one night in August, 2012. It's about your decisions, starting now. It's only a reenactment if you disregard my words. It's about you, not him.”

If you disregard her words, Sulkowicz suggests, you have no business watching this video; in fact, if you disregard her words, you do not have her consent to do so. Instructing, “Do not watch this video if your motives would upset me, my desires are unclear to you, or my nuances are indecipherable,” she puts the viewer in the awkward position of having to account for why we believe we have her consent or why we believe we don’t have it. This is an importantly different reconfiguration of consent than the one performed by affirmative consent laws: whereas affirmative consent standards redefine consent along the axis of prohibition/injunction (or “don’t”/“do”), Sulkowicz turns it from the consent-giver’s problem to the consent-receiver’s problem. The problem, she suggests, is not whether she’s being clear or not (and of course, she’s being deliberately unclear); the problem is with you: with your demand for clarity, with your insistence on hearing answers only to the questions you are interested in, with your assumption that because something as benign as a video is there, it is free and available and asking to be consumed. “If you watch this video without my consent,” Sulkowicz writes, “then I hope you reflect on your reasons for objectifying me and participating in my rape, for, in that case, you were the one who couldn't resist the urge to make Ceci N'est Pas Un Viol about what you wanted to make it about: rape.” Many viewers were left, predictably, confused and indignant, as evidenced by the comments section that appears below the video. Some variant of “how could I possibly be participating in your rape” appears again and again; “how could it possibly be my problem.”

Perhaps, then, the video itself is incidental; perhaps the piece happens in the user’s decision to click “play” (or not to). Watching it, there is only further confirmation that “consent” may be so hard to see that certain allegations will always remain unprovable (even in the slightly nightmarish best-case scenario in which everything is caught on tape—a scenario that some have suggested, jokingly-uneasily, is the only “answer” to legally enforcing an affirmative consent standard). Sulkowicz seems very nearly to be baiting those critics of affirmative consent laws who have outwardly denied that consent, once given, can ever be rescinded, who have argued that it is simply impossible to tell if a person has “changed her mind.”

Watching the video, despite my own, admittedly subjective gut reaction that something is wrong, it really is just so hard to tell. It’s hard to hear what’s being said, if anything; impossible to know what preceded the scene, and the list of unknowables goes on forever if we start to think about desire and intent not as immaterial but as essentially part of what actually happened. While the lack of visible affection or eroticism is apparent, it also seems normal within the depressing, dorm room minimalism of the setting. And when it starts to look bad, is it possible that this is what she wanted, that this is just what two people do together? And if she texts him later, does it change anything (or everything)? How do we decide what it means when we have such limited access, we wonder, even when here, it seems, is everything, finally, all laid out to be seen and judged? What is troubling about Ceci N’est Pas Un Viol then is perhaps not that it shows so much but that ultimately it shows almost nothing, and we are left where we started, believing whoever we decided to believe, or not knowing who to believe, or feeling like belief itself might just be a scam, if belief is always a kind of story-telling, an interpretation of events, caught between the two unreliable terrains of words and the real.

In addition to highlighting what is seemingly irresolvable in adjudicating date rape—the problem of one person’s word against another’s, the problem of not knowing who to believe—Ceci N’est Pas Un Viol also engages with the very complicated and internal nature of believing (or not believing) that a particular cultural narrative or script applies to one’s own experience. Which is perhaps what belief, ultimately, is: the act of choosing, from among the limited available tools of language and story, what best seems to fit your feeling of what is or was or will be. Although none of this is spoken (how could it be?) the video’s final minutes – in which the man dresses and leaves, and the woman lies motionless for a while before standing up to make the bed, getting under sheets and going to sleep – seem to enact the process of realization setting in, or being denied, pushed out of the way, amid the slow-motion obscurity of shock. What is haunting is the portrayal of a body perhaps not even knowing what has just happened to it, a mind not actually believing anything yet.

The fear that critics of affirmative consent legislation have voiced—that women may, in light of this new definition of consent, “decide” that a particular encounter was non-consensual, i.e., that it was rape—is not unfounded. It is well documented that the first instinct of many rape survivors is to try to pretend that nothing bad happened. A law enforcement system that approaches rape accusations with the attitude that women are crying wolf about half of the time, of course, exacerbates the tendency for victims to blame themselves, to question the veracity of their own memories, to second-guess their own beliefs.1 A “yes means yes” standard may, to some degree, allow rape survivors to see, more clearly, whether they did or did not give consent, which will perhaps make it easier for them to say, “I was raped.” Although so many words slip away, sometimes words may also stick and help to cement beliefs, in which case they can become a framework for processing an experience that may otherwise be too fragmented or frightening to encode as memory.

Aside from or in addition to what Ceci N’est Pas Un Viol provokes the viewer to ask about his or her own intentions and desires, what the video itself evokes, from a visual-aesthetic standpoint, is the banality of rape, and even the banality of sex itself, or of a particular kind of sex: sex without intimacy, without desire or pleasure, performed under bad, fluorescent lighting, surrounded by the intensely bare cinderblock walls of a dorm room; sex, in other words, that neither party would be likely to remember in ten years or in a year if it weren’t for what happens starting around the third minute. Yet even traumatic sexual experiences often turn out to be surprisingly unmemorable: culturally, we tend to forget that they have happened and continue to happen, because they are so seldom reported; individually, survivors of rape often either try to forget what happened, or retain only what appear to be “unreliable narratives,” in the high school English class sense of the term: their sense of the sequence of events seems broken, normal “rules” of perspective do not apply, and, most importantly, the reader has been primed to suspect that the narrator is lying. Survivors’ memories of what has happened to them, rather than linear timelines in which certain events “definitely” precede or follow other events, instead appear “imagistic,” and this lack of narrative specificity—this inability to put things in order—is often used to discredit them.

Depending on the situation, the words that would give a generalizable—and, therefore, communicable and believable—shape to the amorphousness of particular experience, may or may not be available. Or only the wrong words may be available: you are wrong, it’s your own fault, you are lying, stop thinking about it. The invention of affirmative consent as a concept is so important because it can be used to create all these new word-shapes with which to support what were hitherto unnamed, perhaps unnameable, impressions. While affirmative consent laws are seen – correctly, then – as having the power to retroactively frame as rape something that was, at the time, perceived by one or both parties as “not a big deal,” “a misunderstanding,” or simply a black hole in memory (“nothing happened”), this is exactly the point. And if this seems alarming, it may be important to remember that the creation of “marital rape” as a concept had similar consequences. Resistance to the conceptual shift implied by affirmative consent laws echoes the earlier objections to the criminalization of marital rape: the argument that “marital rape” was a kind of contradiction in terms, since marriage, as everyone knew, implied consent, and a husband having sex with his wife could not possibly be a rapist, under any circumstances and, moreover, marriage was too private a space for the law to interfere in. (It was not until 1993 that marital rape was illegal in all fifty United States—four years before most of this fall’s college freshmen were born.)

In the final section of the text that precedes the video of Ceci N’est Pas Un Viol, Sulkowicz provides a list of questions to help the viewer “reflect”: questions about herself—“Do you think I'm the perfect victim or the world's worst victim?”—as well as about the viewer—“What are you looking for?” This is not at all the way we have all grown accustomed to approaching videos on the internet; as one commenter put it, How in the hell can we watch it without your consent if you posted it on the internet and personally wrote a long, stupid questionnaire about it? I can't watch your video without your consent, girl: because you were asking for it! Sulkowicz’s piece by itself can do little to inspire the kind of wide-scale self-reflection that is necessary to unmake rape culture, yet the bare existence of a world in which she was able to conceive of such a piece suggests a shift, however faintly perceptible, from being fixated on the problem of believing other people, to recognizing the problem of not being able to believe ourselves.

1According to who you ask, of course, the incidence of false rape accusations is either alarmingly high or alarmingly exaggerated, yet law enforcement officers tend to believe it is quite common, accounting for about half of all accusations. In Missoula: Rape and the Criminal Justice System in a College Town, his study of several rapes and attempted rapes that took place and were tried in Missoula, Montana between 2010 and 2012, Jon Krakauer cites Missoula police chief John Muir’s explaining to a rape victim that he had asked her whether she had a boyfriend because many women try to cover up infidelity by claiming they were raped. When this woman expressed to Muir that she found his question and its implications inappropriate, Muir responded that about 50 percent of rape allegations are false. Krakauer cites David Lisak’s 2010 paper—“False Allegations of Sexual Assualt: An Analysis of Ten Years of Reported Cases,” the most highly-regarded peer-reviewed study on the subject—which estimates the rate of false rape allegations to be between 2 and 10 percent.

The Hypocrite Reader is free, but we publish some of the most fascinating writing on the internet. Our editors are volunteers and, until recently, so were our writers. During the 2020 coronavirus pandemic, we decided we needed to find a way to pay contributors for their work.

Help us pay writers (and our server bills) so we can keep this stuff coming. At that link, you can become a recurring backer on Patreon, where we offer thrilling rewards to our supporters. If you can't swing a monthly donation, you can also make a 1-time donation through our Ko-fi; even a few dollars helps!

The Hypocrite Reader operates without any kind of institutional support, and for the foreseeable future we plan to keep it that way. Your contributions are the only way we are able to keep doing what we do!

And if you'd like to read more of our useful, unexpected content—leave your email below to hear from us when we publish.