Podcast Resources / 03.10.2020

Real Talk With Susan & Kristina: The Ins and Outs of Consent

Gone are the days where consent could just be “assumed.” In this episode of Real Talk, Student & Athlete Defense attorneys Susan Stone and Kristina Supler discuss modern consent in the age of Title IX and #MeToo, and what it means to obtain proper consent. Listen now. Check out the transcript below.

Kristina Supler:

Welcome to Real Talk with Susan and Kristina. I’m Kristina Supler.

Susan Stone:

I’m Susan Stone.

Kristina Supler:

Thanks for joining us. Today we’re going to talk about consent. Susan, why are we talking about consent? This is like, the most dumb basic thing ever.

Susan Stone:

It’s actually not dumb, and it’s not basic because every case that we have where there’s an allegation of sexual misconduct, the person who makes the charge basically says, “I didn’t give consent for the specific sexual activity.”

Susan Stone:

What’s really dumb and basic is I don’t think the discussion ever was had until recently, whether there was or was not consent. It was something that everybody always assumed when you fooled around in the back of a car, or in a dorm room, everyone thought of course there was consent.

Kristina Supler:

And I think that on a practical level, as parents, when we’re talking to our children about sex education, some of the messaging we’re giving to our kids is a bit outdated. Then there’s also the related idea of no one ever wants to think that their child or loved one would engage in any sort of sexual activity without obtaining consent. My kid’s not a rapist. My child would never make someone feel uncomfortable. But we’re in a day and age with Title IX proceedings across campuses nationwide where just that is happening. Regularly students are being accused of non-consensual sexual intercourse.

 

What is consent?

 

Susan Stone:

And I think most of it isn’t because people are trying to hurt each other. I think it’s because there’s a huge misunderstanding of what is obtaining proper consent. So let’s talk about what is consent? What’s going on?

Kristina Supler:

Sure. So what is consent? Consent, first and foremost is not silence. Silence does not equal consent.

Susan Stone:

You mean if I’m just going along with the flow that’s not consent?

Kristina Supler:

That is not consent. Nor is it a situation where if someone, the absence of a stop, don’t do that, or cringe means by default you have consent. That is not at all how Title IX works.

Susan Stone:

The easiest thing you can do is just ask someone, “do you want to have sex tonight? Are you interested in having oral sex? Do you want a kiss? Do you want to hook up?” Whatever way feels comfortable. Just ask. That’s the easiest way.

Kristina Supler:

Susan and I give talks across the country to groups of parents and students, and we joke sometimes, although it’s really not a laughing matter, but obtaining consent is often like the game, Mother, May I? May I place my hand on your breast? May I place my hand in your pants? Can I remove your clothes? At every stage and increment of the sexual interaction, there’s got to be a request for permission and a response.

Susan Stone:

Not to get it all boring or geeky, or nerdy on you, but if you’ll look at the policies at every campus across the country, it has some version where you must get consent at each and every instance of sexual activity. That’s why Kristina is saying at each and every interval it’s really good to check in with your partner and say, “is this okay? Does this feel good? Do you want that?” It doesn’t have to be in a really highly structured way, but there does need to be an ongoing discussion, and I know that’s embarrassing, but if you’re willing to take your clothes off with someone, you should be willing to engage in a conversation.

Kristina Supler:

And I would just want to add that particularly in dating relationships, sometimes there’s this idea or this thought that, “well, we’ve had sex a hundred times prior. We had sex four times yesterday. Of course he or she was okay and a willing sexual participant for today’s events.”

Kristina Supler:

But in fact that is a really dangerous assumption. Every time you have sex with someone, regardless of whether you’re in a dating relationship or it’s a first time hookup, there needs to be a clear and unequivocal request to in fact proceed with that sexual activity.

Susan Stone:

There’s a recognition that you’re not always at each and every interval going to have a conversation, and we don’t want to make it seem that this should be a clinical experience because that’s not what engaging in sex is, and that’s not realistic. But there needs to be some nonverbal cue to the other person that they’re interested in continuing. Are they removing their own clothes? Are they lifting their hips? Are they kissing back? A passive person, if someone’s really not participating, that’s a cue that they might not be that interested in engaging in sex with the other party.

 

Drinking & Sex

 

Kristina Supler:

Something else that’s really important to communicate in terms of consent is the idea of mixing sex and drinking. We often talk about this idea. You can have drunk sex, but you cannot have sex with someone who’s incapacitated. If you don’t know the who, what, when, where, why, how of a situation, if someone can’t answer those questions intelligently, that person is not able to provide valid consent. That’s a big issue that we see a lot on campus Title IX cases.

Susan Stone:

And listen, if you’re drunk, your being incapacitated is not a defense. We have at least 10 times a year someone saying to us, I was so drunk too. Well, unfortunately it’s not a fair world, and two drunk people doesn’t equal a fair view of how it’s evaluated. You need to have your head together when you’re engaging in sexual activity, and you need to make sure that the other person has their head together. If not, go home. And that’s not real, we understand that, but we see some really sad consequences.

Kristina Supler:

The bottom line is that to have valid consent, there should be constant communication throughout the sexual experience. It should be an ongoing dialogue ideally, but if not a dialogue at a minimum, ongoing physical actions that indicate that this is in fact a sexual experience that two people want to participate in.

Susan Stone:

I think Kristina, we should do a whole separate podcast on what is blackout drunk, what is gray out drunk, because we know we talked to a lot of kids about the fact that someone seemed fine, and later said that they were blackout drunk. However, a good rule of thumb again is if you see someone drinking a lot, and you’re at a bar, it’s probably not a good idea to hook up with that person.

 

Dating Apps

 

Susan Stone:

And one last stage is that if you’re going to be on a dating app, and you’re going to hook up with someone from Tinder or your other favorite app, because I know new ones come out all the time, just remember you don’t know that person. You don’t know that person’s baggage. Be careful. It’s not like ordering a pizza. You just don’t know what you’re getting. And then what kind of topping you have.

Kristina Supler:

Thanks for joining us today, and we look forward to talking to you again soon.