“Yes, no, maybe. I don’t know. Can you repeat the question?”—They Might Be Giants

You’d be forgiven for being confused right now about how we’re supposed to navigate the language of consent.

First there was the New Yorker’s viral short story “Cat Person,” a fictional depiction of an awkward date and all the delicate power negotiations in intimacy that come with it. After that came its real-life counterpart, a breathlessly and clumsily reported story on babe.net of an anonymous young woman “Grace” and her problematic experience with self-proclaimed feminist comedian, Aziz Ansari. For Grace, her verbal and non-verbal signals of discomfort seemed obvious enough that Ansari’s persistence in the face of them counts as sexual misconduct. Ansari’s subsequent response to the allegations shows he believes the interaction was entirely consensual. The off-the-cuff reactions to this exposé were decidedly mixed, with certain prominent commentators effectively discounting Grace’s side for surprising reasons—which are largely linguistic.

In both experiences, crucial signals—both verbal and non-verbal cues—are sent but not received. Somehow, there’s a disconnect in the discourse. The question is, was it due to willful passivity, willful ignorance… or something else altogether?

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What these two stories share is an all-too-common occurrence. Many may dismiss such stories as making a big deal about a “bad date,” or unreasonably requiring someone to be a mind-reader. But the enduring relevance of the #MeToo movement, not so fragile as to be toppled by a mere slip of a story, surely has allowed for conversation about both sexual assaults and really bad dates, even if they’re not equivalent. And it all hinges on how consent is assumed to be communicated.

So, how should we, as a society, characterize this gray area, this fallow field of uncertain consent? As International Women’s Day commemorates the struggle for women’s rights and equality, it’s worth unpacking why the discussion of sexual consent has been so unequal and unbalanced, with much of the burden and the blame placed on the person who frequently has the least amount of power in situations that require the most sensitivity and attention—from both participants.

Is “Utmost Resistance” the Only “No”?

There’s “no means no” and there’s “yes means yes.” There’s not so much discussion of the gray area in between, where many of these stories lie. Many social commentators have noted that saying yes or no—a direct, clear, verbal cue—is a basic requirement for signalling consent or refusal.

Grace’s verbal and non-verbal cues have been criticized as simply not being unambiguous enough. Grace’s immediate attempts to negotiate this delicate discourse politely and safely, for many, don’t count because she also stayed and participated in sexual activity with Ansari when directed to. If you don’t communicate properly, can you really expect hapless dates or potential aggressors to read your mind? Should she have resisted in a more direct and forceful way by saying no, in no uncertain terms, or leaving the apartment if her date persisted? To do otherwise is seen as a failure of character by some.

Linguist Susan Erlich calls this the deficiency model of miscommunication. In her discourse analysis of sexual consent, the third parties that judge the guilt or innocence of a defendant in a sexual assault case, such as at a university tribunal, often lean heavily on whether verbal and non-verbal cues were unclear and misinterpreted. If so, the assumption is that the complainants were “deficient” or “inactive” in properly signalling non-consent (not showing the “utmost resistance,” or “no means no”). This strongly implies that the defendant has a “sexual prerogative,” a right to continue the aggression and that any blame or responsibility rests squarely with the victims for not resisting clearly enough.

In Erlich’s case study, what’s curious is that, as in the Grace/Aziz story, the signals are also mixed, with one of the victims at one point leaving her dorm room and telling a male friend that she’s being taken advantage of. As her friend tells her she’s worried about nothing, she gets back into the room with her aggressor and even stays in the same bed. She states “I was afraid to ask him to sleep on the floor. It crossed my mind but I didn’t want to get hurt. […]  ((crying)) I mean I was just thinking how to survive that second. I mean I didn’t care if that meant getting back into bed with him. If he didn’t hurt me I didn’t care at that second.”

When signals are mixed in cases such as these, under a “deficiency” model, they tend to be interpreted selectively, in favor of any cues that signal consent, even if (as stated by a victim), they were done out of fear or paralysis. Interestingly, legal cases in the past that draw on the “gay panic defense” have assumed that a sexual advance between two men can be automatically considered an attack, in the absence of any signals, deficient or otherwise, enough to justify murder.

Is “Yes” the Only Affirmative?

To many of us, the very words “yes” or “no” are simply so basic we can’t imagine language without them. Isn’t it easier just to say it plainly to avoid mixed signals? The literal words seem so important that a Scottish man was once held in contempt of court and jailed for 90 minutes for answering “aye” instead of “yes.”

Surprisingly, “yes/no” words are not universal. There exist languages that have no words for “yes/no,” such as Latin or the Goidelic languages including Irish and Scottish Gaelic, and to some extent Welsh (which uses its words for yes/no rarely)

In these languages then, does the expression of “yes” and “no” become murkier? Actually, the opposite. Often, with no shortcut word, the verb is echoed in response to make it clear and unambiguous, as we see in this Latin example:

Placetne? (Does it please you/Do you like it?)
Placet (It pleases, i.e. yes, I like it)

Even if it’s not a case of “Yes, We Have No Bananas,” the ambiguity built into English’s supposedly unambiguous yes/no is clear in a sentence like “So, you don’t like bananas?” A plain yes or no could be interpreted in different ways, such as “Yes, that’s correct, I don’t like bananas,” or “Yes, actually I do like bananas.”

With only two forms to choose from (and a couple of “substandard” forms “uh-huhs” and “huh-uhs” that do the same thing), English yes/no has to be used grammatically and pragmatically for more than one discourse function. This can make communicating a little more confusing than it is in a language like French, which has three forms: oui, si, and non. Si is used to contradict a negatively framed question, such as “tu n’aimes pas les bananes, n’est-ce pas?” (You don’t like bananas, do you?)—“Si!” (Yes, I do).

So linguistically, “yes” and “no” don’t always behave as clearly as we expect. There may be multiple pragmatic functions we can use yes for, such as the default affirmation, but also as a pause filler, to get attention, to signal that you’ve received information and are following the conversation, etc. These words can even change their functions. For instance, Australian English slang is famed for a discourse construction that can confusingly start “yeah, no” (when intending to say “no”) or “no, yeah” (when intending to say “yes”). Want to show enthusiastic affirmation in American English? Just say “no… totally!”

Of course, even if yes/no words can be at times befuddlingly ambiguous, they’re not the only ways we can signal any of the related functions we often use yes/no for. More direct verbal expressions that consent or refuse are also possible, and yet for some reason, aren’t always used.

Beyond Yes and No

Japanese, for instance, uses a rather complex system of discourse in many sensitive situations, to delicately negotiate face-saving, social status, and power, all wrapped in a cozy blanket of indirect politeness. Practically speaking this sometimes results in the bizarre situation of seemingly saying “yes” to something when the intention is to say “no.” This leads to cross-cultural misunderstandings, as Richard Nixon famously discovered in 1969, when he demanded through a translator that the Japanese restrict their exports that were flooding the American market. “Zensho shimasu” was the response, which literally means “I’ll do my best” or “I’ll take a proper step” but which every Japanese person apparently knows, effectively means “no way!” when taken in context. So what was thought to be enthusiastic agreement turns out to be very much otherwise.

Okay, but English speakers can’t be expected to read minds with all these indirect cues, right? Except that we commonly read minds all the time. In everyday situations, English speakers are culturally quite attuned to each other’s cues (an amazing ability that sometimes seems to disappear when consent is involved). If I ask, rather obscurely, “Is there salt over there?” or “Can you reach the salt?” in a meal-related context most people would not simply respond literally with “Yes” but would divine that I probably want the salt. The comic cliché “I have to wash my hair tonight” is an indirect response that rejects an unwanted admirer politely without hurting any feelings.

These are indirect speech acts, which not only have their literal meanings, but can also have a pragmatic force that causes a performative event in the real world, such as a request or refusal. The fact is, in practice, English speakers are often indirect and non-literal. Very rarely do people, even in positions of power, issue direct commands. Instead, they couch their requests in indirect terms, such as “Do you mind…”, “Could you…?”, which is often a way to show politeness, because conversation is not just about direct information sharing, but about negotiating social dynamics as well.

Peter M. Tiersma and Lawrence M. Solan’s study of legal consent (and indeed there can be other types of consent) shows how strikingly similar some of the issues are to sexual consent cases. For those who are relatively powerless, there’s a vested interest in staying polite, staying safe, and complying with directions, and so people in these fraught situations tend to be even more linguistically indirect and sound more uncertain. In both kinds of consent there’s a linguistic inequality and selective interpretation between those with the most power and those with the least.

For instance, courts tend to hold suspects to a much higher linguistic standard than the police. Tellingly, while judges will accept a pragmatic reading of indirect police statements such as “Does the trunk open?” as an obvious request for consent, they often will take a suspect’s indirect statements purely literally, such as “Maybe I need a lawyer” or “I think I might need a lawyer,” or “Didn’t you say I have the right to an attorney?” If they really wanted a lawyer, they should have said so, by directly and literally invoking their right to one, according to the courts.

Even if those in positions of power use more polite indirect speech, such as “Do you mind if I check your person?” this will clearly be taken by someone with less power as a command with the threat of the law behind it and almost forces an assumption of tacit consent. Suspects, very often, seem to tacitly consent to searches by going along with police direction, even if they know they have something to hide, and even if they have repeatedly refused consent at any stage. Talk about mixed verbal and non-verbal cues. (Interestingly, by the age of three, children also show a bias towards saying yes to questions, even inappropriately, possibly because of the learned social pressure to comply).

Doesn’t all this indirect speech get confusing? Yes, it’s true that these signals are not always clear, and not everyone can be expected to get them perfectly. Both participants in the conversation have to draw on pragmatic information as well as the relationship and any power dynamics between the parties to understand the performative aspect of what’s being conveyed. So in high-stakes situations that are particularly sensitive to misinterpretation, rather than placing the responsibility on more direct, literal communication coming from just one person, the onus is on both parties to take particular care when it comes to figuring out those murky linguistic cues of consent.