Silence Is Consent? … Not Now, It Isn’t

The news has been full of sexual assault cases that hinged on the concept of consent. Are we sure that we understand what consent is? How can we ascertain a subjective, invisible mental state with legal or moral certainty?
Russell Brand

UNIVERSAL CITY, CA – JUNE 06: Russell Brand arrives on the Red Carpet at the 2010 MTV Movie Awards at Gibson Amphitheatre on June 6, 2010 in Universal City, California. (Photo by Jonathan Nowak) © Dooley Productions /

September 20, 2023 23:55 EDT

The Atlantic’s Megan Garber wrote brilliantly of the word we use to indicate something quite the opposite of what’s being specified:

‘No’ is, in theory, available to anyone, at any time; in practice, however, it is a word of last resort—a word of legality. A word of transaction. A word in which progress collides with reticence: Everyone should be able to say it, but no one really wants to.

Culture is forever caught between the rock of libertinism and the hard place of asceticism. Ten years ago, British entertainer Russell Brand was obscene and humorous, his comic horniness amusing a generation inured to good-natured, but boorish and anti-feminist behavior. Today, he’s deadly serious. His repudiation of claims of rape and sexual assault sound like a deathbed repentance. Maybe they are. The death in question could be that of his showbusiness career.

The once-bright spark of British comedy is now desperately claiming he performed all those sexual peccadilloes of which he perpetually boasted and which formed part of his flamboyant showbiz persona with the approval of his paramours: He said his relationships were “always consensual.” At least four women disagree with that and maintain they didn’t consent to his advances. He presumably means that none of his conquests explicitly and unambiguously said “no.”

Consent also appears in another recent case of a man accused of an unwelcome misdeed. Luis Rubiales was all mirth and jubilation when he hugged and kissed Jenni Hermoso in the celebratory aftermath of Spain’s football World Cup win. Hermoso later kiboshed the mirth and jubilation by pronouncing she did not consent to the embrace and considered it a violation. Rubiales showed no contrition and, not being one of nature’s shrinking violets, blazed back, insisting that the interaction was consensual, leaving a “he said, she said” disagreement with no objective evidence save for video.

Historically, we have often treated consent as a straightforward agreement, especially in intimate interactions: Either both parties agreed, or they didn’t. Like everything else under the sun, it has changed as social contexts have shifted. By its very nature, the concept is subjective. It relies on the individual’s willingness to engage in or withdraw from a particular behavior or activity. While it may seem simple on the surface, the complexity arises from the fact that individuals’ desires, feelings, and boundaries can and do change over time. The consent granted at one moment may not necessarily apply indefinitely, perhaps because it was distorted. By alcohol, for instance.


In 2011, prosecutors accused Ched Evans, a professional football player in England, of raping a woman. Evans maintained the sexual encounter was consensual, but the prosecution argued that the woman with whom he had sex was too intoxicated to give informed consent. In 2012, the jury found Evans guilty and the court sentenced him to five years in prison. In 2016, after Evans had served half of his sentence, the Court of Appeal quashed his conviction and ordered a retrial. New evidence was presented, including testimony from two men who claimed to have had consensual sex with the woman around the same time as the alleged rape. The jury acquitted Evans and he was released from prison.

Alcohol was also involved in the Stanford rape case, as it became known. A jury convicted Brock Turner, a former Stanford University swimmer, of sexually assaulting an unconscious woman outside a fraternity house. Both had been drinking. Again, consent was key: Turner pleaded innocent and claimed not only to have asked the woman “if she wanted me to finger her” but to have asked if she liked it. He claimed he heard her confirm, “Uh-huh.” Turner was released from prison after serving half of a six-month sentence many considered way too lenient. The maximum sentence Turner could have received was fourteen years.

Both cases had happened before The New York Times published a story detailing decades of allegations of sexual harassment against the film producer Harvey Weinstein. The publication set in motion a series of developments, including the rise of #MeToo. Implicit in the Weinstein case and the manifold changes it catalyzed was the provision of consent: It should be freely given, without the presence of coercion, even if explicitly verbal refusal isn’t expressed.

This came to the fore in 2018, the case of Aziz Ansari, an entertainer and self-proclaimed feminist. Writing anonymously, a woman claimed she felt he coerced her into sexual activity, though she had not explicitly said “no.” She wrote an account of her experience on, a website for young women, and soon garnered 2.5 million views.

An untamable concept

Of the many potent consequences of #MeToo, the reconceptualization of consent is arguably the most influential. Feminism has, for years, taught that sexual assault is not about sexual gratification but male power and coercion, whether by gaslighting or physical force, and that this is impelled by decades, if not centuries, of misogyny. But these reminders have become too platitudinous to be interesting. Consent can’t be analyzed with clichés: It is too fluid and heterogeneous. For example, Julian Assange, the founder of WikiLeaks, faced allegations of sexual misconduct in Sweden with the accusers claiming that sex began consensually but turned non-consensual during the act. They said he persisted in having unprotected sex with them in defiance of their insistence that he use a condom. Prosecutors in Sweden dropped the investigation in 2019.

I have no answer to the question “what is consent?” But I’m sure the Brand and Rubiales cases are just a beginning. Never before have cases of sexual assault and coercion been so dependent on subjective states — and dynamic subjective states at that. I have no idea what Hermoso was thinking and feeling at the exact moment Rubiales grabbed and kissed her. Nor have I a clue what proportion of Brand’s partners were enthusiastic accomplices and what proportion were reluctant but too petrified to resist. We humans don’t think and feel linearly. And we don’t recall with coherence.

Ask someone to describe how they felt at a particular moment in their lives and they will reconstruct a version using their memory and imagination. That’s how we remember: creatively. So, when asked if we consciously and voluntarily sanctioned someone else’s behavior, we can sometimes be certain, but, at other times, not-so-certain. Social scientists have a term for it: Retrospective interpretation — and it is always selective.

None of this is intended to cast doubt on the testimonies of victims of sexual attacks, nor for that matter the accused, many of whom are, after all, innocent. But it stops us trying to domesticate what is, in many senses, a wild and untamable concept.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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