What are we consenting to when we consent to sex?

By now you may have seen news coverage of stealthing, the practice of man removing  or damaging his condom without the consent of their partner during intercourse. Yale Law professor Alexandra Brodsky wrote about the phenomenon in the most recent Columbia Journal of Gender and Law (The full text is available for free here.), and CNN, CBS, and Huffington Post have been running stories on it.

Much of the conversation is about how to categorize this kind of activity so that we can better care for those who have been victims of it. One of Brodsky’s informants call is “rape-adjacent.” When the victim who believes that the condom is being used to prevent pregnancy, the act is one of reproductive abuse–sabotaging birth control.

Is it also rape?

(If you can’t wait to the end to find out my answer, it is: Yes.)

The FBI’s definition of rape, new since July 2103, is:

“Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

That’s much clearer than the old definition (“carnal knowledge of a female forcibly and against her will”), because it recognizes that people of all genders can be victimized and names specific acts. But the idea of consent–central to sexual assault prevention trainings on college campuses right now–remains unclear.  It must be verbal and “enthusiastic,” which means that it’s got to be explicit: Yes, I want to have sex. But, though we now have a law in California mandating enthusiastic consent prior to sex and enthusiastic consent is the go-to concept in teaching rape prevention on campuses, many people still don’t really understand it, and we do a lousy job of teaching it. It’s easy to get dismiss the conversation about consent by saying “Just don’t rape!” and while most people have no obligation to explain how not to rape to a potential sexual assailant, some of us (parents of teens and young adults, social workers and educators who work with teens and young adults) probably do.

Having taught, at this point, about 750 students in Sociology of Sex, I can say that many students are asking great questions about what consent means. Here are some of them:

Do you have to ask for and receive consent for every part of every sex act? (“May I nibble your left ear lobe? And the right?” If not for every act, which acts? And how do you ask without sounding “like a pervert or physician?”)

We have to have consent before contact between sex organs and any part of another person’s body, but what are “sex organs”? Penises and vaginas are obvious, and the law is explicit about anal contact. We’d probably easily put rear ends and probably but not as obviously women’s breasts in there, but what about men’s nipples? These narrow definitions seem to ignore the biggest sex organ of all (skin!). Sexual pleasure isn’t limited to sex organs (Yes, I’m linking to Cosmo, but readers can fill in the blanks however they like.), and we might be losing something when we keep the focus on penetration of/by “sex organs.”

How far from those consented-for acts can you stray without having to ask for consent anew? (“If she consents to a finger, can I use a thumb? Do I need to ask her again? Is a finger close enough to a thumb not to matter? But a toe–that would be too far off, even though it’s still technically a ‘digit’?” “If I ask if we can kiss, how specific do I need to be on details? And what if I don’t know what I want until we start?”)

Are other kinds of reproductive abuse also inherently acts of sexual violence? Lying about having an IUD or other form of long-acting birth control or deliberately misusing your or destroying your partner’s oral contraceptive are forms of reproductive abuse. Because they are non-consensual, are they also forms of sexual violence? (Answer: Yes.) If a cis man ejaculates into the vagina of a cis woman who claims to be using oral contraceptives but isn’t, he’s now having sex with a body (one without contraceptives in it) that he didn’t consent to have sex with, risking consequences he didn’t agree to risk. Is that sexual assault? If it’s not criminal, is there a civil case to be made?

What rights do we have to know accurate information about the bodies we have sex with?

We lie all the time in the pursuit of sex–about our height, our weight, our income, our sexual histories, our real hair color, the length and girth of our penises. Some of us lie about our HIV status, with legal punishments for lies or nondisclosure that vary widely and are often used to punish men of color in particular. If a woman consents to sex with a man who says he’s the real life inspiration for Christian Grey or the secret love child of Princess Diana and Dodi Fayed or Idris Elba’s body double and it turns out he’s not, is that rape since the penis involved is not the one the person it is attached to said it was? After all, she consented to a far more prestigious penis than the one she got. If those examples seem far fetched, what about a man who claims to be single but is really married? If I wouldn’t consent to sex with a married man, but I might to a man who is single, if a married man lies to me about this marital status, is a penetrative act now rape because I didn’t consent to sex with a married man? Or what if I consented to sex with a with a man I understand to be white (as I am) but find that he’s biracial? If he lies about his ethnicity or religion?

What deceptions constitute “rape by deception”?

And finally, what are the implications for trans people here? If a trans man presents as traditionally masculine or a trans woman as traditionally feminine, do they have to out themselves as trans prior to a sex act? Here I’m thinking specifically of the ways that trans panic has been invoked as a defense of violence against trans people. (In the “classic” version, a cis man consents to sex with a person he believes is a cis woman. When, during intercourse, he finds that she has a penis, he responds to what he sees as a breach of trust with violence, including murder.) A common thread in this defense is that the cis man “felt like he was being raped”–not because he was having sex against his will but because he didn’t consent to sex with a trans person’s body. “Trans panic” defenses have been successfully used in many cases in which a trans person–particularly trans women–have been killed. They are based on the idea that someone was lying about their body–and that lie somehow produced enough fear to warrant homicide.

In short, if we argue that all penetrative acts must be “consensual,” what information do we have to disclose to be consented to? “My penis has a funky curve in it” doesn’t seem to be a big deal. “My penis isn’t going to wear a condom” is. But how do we figure this all out?

And how do we teach this so that people can enjoy honest, great sex?

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So, is stealthing rape? Yes. Like other forms of rape, it is about power and control, rooted in misogyny (whether it is aimed at women or at men who have sex with men), and it aims to uphold patriarchy.