In the conversation there was disagreement over whether the woman consented. There was also a belief expressed that the outcome would have been the same in that scenario if the musician asked and then did nothing sexually unless or until the woman who didn't say no responded positively. This argument implies that asking, when there is absolutely no positive response (verbally or non-verbally), is nothing more than a legalistic requirement.
If the man's description of the interaction was accurate then my position is that, no, this woman didn't consent. However, if the musician had asked a question and waited for some positive response (verbal or non-verbal) she might have chosen to consent. These 2 beliefs placed together caused some confusion. They were perceived by at least 1 person as being incompatible.
Related to the issue of whether the woman consented is whether always viewing silence and inaction as non-consent denies women their agency.I say no. In this situation individual agency or lack of agency in a particular moment has been replaced with the generic agency of generic women. Any claim that a woman we know nothing about could have said no if she wasn't consenting is based on faulty assumptions. A situation one woman could handle with ease with a quick, "no," might leave another woman effectively paralyzed in shock. If that second woman is in the VH1 scenario she has been raped, but will most likely be called a false accuser if she reports what was done to her to the police.
When we say all women in a particular situation have the agency to say no we are invalidating real women and giving them false agency. In the situation from the VH1 show, the man also could have said no, but his reaction mirrored that of the woman he brought with him. Only nobody responded to his inaction and silence by yanking at his clothing and he wasn't assumed to be consenting because of his failure to say no.
To avoid the generic trap of assuming what women could do if they weren't consenting, legal consent must be something people do, not something people fail to do. If I'm fine with a particular action but have not communicated that willingness in any way I have not in fact consented to anything.
My response is in line with Minnesota law. Here's the definition of sexual consent used in Minnesota's criminal statutes:
Positive consent to sexual actions doesn't have to be verbal and I have always been careful not to say that it does have to be verbal. Any form of non-verbal genuine consent must be a positive (non-purely biological) response and not just the absence of a negative response. By non-purely biological I mean an erection is not a non-verbal sign of consent and neither is a woman's physical arousal.
(a) "Consent" means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.
(b) A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.
(c) Corroboration of the victim's testimony is not required to show lack of consent.
This is true whether the initiator is a woman or a man and whether the other person is a woman or a man. This doesn't dismiss anyone's agency, especially not women's agency, in fact it requires agency by all involved. Positive consent needs to be present from all involved and initiating a particular sexual action would fit this criteria.
It will help if everyone starts thinking of people expressing 3 states related to consent: 1) clearly & freely communicating consent, 2) clearly communicating non-consent and 3) no clear communication re: consent or being in conditions such that their freedom of choice is not assured.
When linking communication to actual willingness or lack of willingness, the third state links to unknown. If when providing evidence of consent the best someone can do is say, "she didn't say no," they are telling us nothing meaningful about her willingness and might as well say, "I simply guessed that I wasn't about to be guilty of sexual assault when I could have waited to ensure I wouldn't be guilty."
This attitude would not be legally acceptable if it were expressed as, "I simply guessed that when I pulled the trigger of my rifle that the movement I saw in through the leaves was a deer and not another hunter when I could have waited to ensure I didn't kill another person." We don't have to view the hunter who killed another man as evil to hold him legally responsible for his choices and the harm done by his choices.
If we are a society which truly supports everyone's right not to be sexually assaulted we cannot allow guesswork to be a valid defense.
Most of us at most times are in the third state of communication. When I went to the Minnesota Men's conference this weekend, I didn't introduce myself with, "Hi, my name's Marcella and I don't consent to have sexualized contact with you unless or until I clearly communicate that I do want that contact." By law in Minnesota I am considered non consenting unless I freely communicate consent. It's not my legal responsibility to ensure that everyone I meet or interact with understands my lack of consent or any limits on my consent. If someone asks for sex and I have no reaction then that person has no legal grounds to continue.
Those who are wanting to act on another person's communication (or lack thereof) must have the legal responsibility to ensure that their planned actions are acceptable to the other person and abide by all provisions of the law.
It's not good enough that proceeding while someone is in the 3rd state doesn't always result in sexual assault. Any non-zero percentage of sexual assaults is unacceptable.
The person who hasn't responded positively to someone else's wants might choose to do so if given the time, space and freedom in which to do so. When a woman is viewed as having little or no agency there is no need to wait to learn or verify what she thinks or chooses since that is irrelevant. As a person, she is irrelevant.
"She was there, she didn't say no and she was not screaming and scratching," from a man is not a description of someone using her agency and is not said by a man who truly understands and believes in women's agency.
If a woman doesn't know how to express her agency to either initiate or respond sexually then the person she's with who obeys the letter and spirit of the law will not give her what she wants until she can find a way to master her agency and actually provide that other person with positive indicators that she is freely consenting.
This structure may seem stilted and artificial, but that is only because it is radically different from the model of assessing consent so many people still use.
A man in the UK , Jason Froggat, who admitted punching a woman after he allegedly raped her said, "It’s not rape if she just lies there." He was talking about an alleged rape where his alleged victim called 999 (their version of 911) and left the line open until the police arrived. He is also denying another physical assault prior to the alleged rape.
His rationalizations feed directly from the common assumption that a woman's lack of resistance and lack of no equals consent. It doesn't matter if those supporting the, "She could have said no," assumption in the VH1 scenario clearly see this case as rape. Any support of non-communication as equaling consent contributes to the rationalizations of people like Froggat.