Introduction
Consent is the accepted organizing principle of legal responses to sexual harms (Green Reference Green2020; Hurd Reference Hurd1996; Sikka Reference Sikka2021; Wertheimer Reference Wertheimer2003). Yet, this is not without critique (Anderson Reference Anderson2005; Buchhandler-Raphael Reference Buchhandler-Raphael2011; Halley Reference Halley2016; MacKinnon Reference MacKinnon1989, Reference MacKinnon2016; Rubenfeld Reference Rubenfeld2013; Schulhofer Reference Schulhofer1998; West Reference West1993). One central concern is that its operation depends on a clear binary – “yes” versus “no” – through which sexual encounters are rendered legally legible, set along a continuum toward two extremes. To function as doctrine, consent must be constructed as a determinate condition, one that resolves ambiguity rather than coexists with it. Consent and ambivalence therefore stand in tension: consent appears to denote the definitive authorization of a sexual act or gesture, while ambivalence marks the persistence of uncertainty, hesitation, or contradiction. This conceptual polarization, analyzed empirically and theoretically in this article, is especially entrenched in criminal law, where liability and adjudication typically require relatively stable line-drawing between authorized and unauthorized sex.
Yet, the demand for definitional clarity that makes consent administrable as a doctrine also screens out the complex situational dynamics through which authorization is actually negotiated. Real-world sexual encounters are sometimes marked by shifting desires, relational pressures, and embodied uncertainty that resist the neat categorization demanded (and presumed) by the legal construct of consent (Gruber Reference Gruber2016; Sikka Reference Sikka2021). The result is a structural mismatch: law treats ambivalence as a difficulty to be resolved, while ambivalence is a constitutive feature of how sexual encounters actually unfold.
The aim of the present inquiry is thus to complicate this taken-for-granted binary consent paradigm that continues to resist nuance, by looking more deeply at how ambivalence is structurally produced and, in turn, how consent functions under certain structural conditions. Despite the legal framework of sexual offenses having evolved significantly over the past century (Decker and Baroni Reference Decker and Baroni2011; Estrich Reference Estrich1986; MacKinnon Reference MacKinnon2006; Ristroph Reference Ristroph2011), its underlying logic remains that consent is either present or absent (Decker and Baroni Reference Decker and Baroni2011). This work seeks to expand current scholarly conceptualizations of consent by (i) theorizing ambivalence as a constitutive, and potentially generative, agentic feature of sexual consent negotiation, and examining the structural conditions – cultural, spatial, temporal – under which it arises; (ii) examining what this theorization reveals about the limitations of current consent frameworks and asking how they might better account for the complexity of sexual life; and (iii) inviting further reflection on criminal law’s interpretations and meaning-making around sexual consent, as viewed from sexual minority experiences that, while remaining infused with conventional heterosexual gender roles, cannot be fully articulated through them.
The scholarship has increasingly attended to the ambiguous areas of sexual experience where encounters do not fit neatly into a consensual-versus-nonconsensual classification. This work has proven essential in documenting how binary consent-interpretation can obscure coercive dynamics (Cottone Reference Cottone2023; Dowds Reference Dowds2022; Hansen Reference Hansen2025; Littlejohn and Weiss Reference Littlejohn and Weiss2025; Muehlenhard and Peterson Reference Muehlenhard and Peterson2005; Nicoletti et al. Reference Nicoletti, Angelone and Jones2024; Peterson and Muehlenhard Reference Peterson and Muehlenhard2007; West Reference West2020). However, it remains largely anchored in heterosexual contexts and centered on women’s experiences (cf. Brodt et al. Reference Brodt, Lamb and Kosterina2025), leaving open the question of whether its insights extend to, or may be nuanced by, attention to differently structured or gendered sexual encounters.
To interrogate the misalignment between law’s categorical demand and the myriad varieties of lived sexual experience, this article turns to sexual minority settings. The analytic value of sexual minority contexts lies not in their simple “difference” but in their capacity to test, and thereby destabilize, assumptions that remain implicit in the prevalent theorization of sexual consent. LGBTQ communities have long been subject to conditions of partial recognition and uneven legal protection (Daroya Reference Daroya2022), yielding norms for negotiating sexual consent that are more openly contested and reflexively deliberated. Some negotiation norms that remain observable today, such as covert consent cues in public sexual cultures, developed historically as adaptive responses to the criminalization of homosexuality, rather than as extensions or derivatives of heterosexual scripts (Daroya Reference Daroya2022). Relatedly, sexual minority individuals may be more likely to resist conventional gendered expectations, including scripts organized around roles such as the female sexual “gatekeeper” (Beres et al. Reference Beres, Herold and Maitland2004; McKenna et al. Reference McKenna, Roemer and Orsillo2021).
This does not mean, however, that heteronormative or gendered scripts have simply disappeared; they may continue to structure same-sex encounters in altered forms (Webber et al. Reference Webber, McCready and Yurkovich2024). Heteronormative patriarchy remains a broader structuring condition within which non-heterosexual sexual cultures take shape (Butler Reference Butler1990; Connell Reference Connell1992): norms around which sexual positions are to be adopted often draw upon heteronormative gendered scripts of dominance and submission (Hoppe Reference Hoppe2011; Kippax and Smith Reference Kippax and Smith2001; Moskowitz and Hart Reference Moskowitz and Hart2011), while expectations of constant sexual availability are, themselves, gendered expressions of power (Gaspar et al. Reference Gaspar, Skakoon-Sparling and Adam2021; Ravenhill Reference Ravenhill2017). Even where a sexual minority culture does provide recognizable scripts of its own, their meanings may be fluid or readily contested, functioning as “shorthand” that can facilitate communication but also pass for explicit discussion that, in fact, has not occurred (e.g., Johns et al. Reference Johns, Pingel, Eisenberg, Santana and Bauermeister2012).
This indeterminacy cuts in multiple directions: the loosening of fixed sexual scripts can generate ambiguity that heightens the risk of confusion or coercion, but it can also open space for more flexible expectations and more considered negotiation. The result is a set of LGBTQ sexual cultures in which the relationship between consent, ambivalence, and agency cannot be mapped neatly onto existing frameworks. It is also crucial to remember that, historically, consent statutes have been used to incarcerate gay men, as well as trans and nonbinary individuals, undermining their trust in legal consent frameworks’ protective capacities (Fischel Reference Fischel2016). Attending to gay and bisexual contexts, as the present inquiry does, therefore achieves more than merely filling an empirical gap. It renders visible forms of ambivalence that consent frameworks, informed by dominant heteronormative scripts (Guadalupe-Diaz and Whalley Reference Guadalupe-Diaz, Whalley, Fileborn and Loney-Howes2019), tend to flatten, thereby refining the conceptual tools through which consent is theorized and adjudicated.
Over the last 20 years, #MeToo discourse has emerged worldwide, including in the LGBTQ community. Incidents once dismissed as belonging to a borderline area between consensual and nonconsensual sex have now faced public scrutiny and political contestation. Yet, this political discourse has relied on what Gunnarsson (Reference Gunnarsson2024) terms a “politics of clear boundaries,” aiming to draw clear lines between permissible and impermissible conduct. While such clarity is crucial for the legal processing of sexual violence cases, it overlooks the lived complexities of sexual encounters in contexts where sexual norms – around desire, communication, vulnerability, and responsibility – are less settled and more openly contested. It is precisely in this terrain that ambivalence as a feature of sexual life calls for closer socio-legal examination.
This article responds to that call through an original qualitative study focused on the sexual experiences of Israeli gay and bisexual men.Footnote 1 The study examines how consent is perceived, experienced, and practiced when heteronormative sexual scripts and norms are unsettled and where the pressure to render experiences legible, as either consent or non-consent, is especially acute. Yet, it does not treat “consent” as an end in itself. Instead, it is attuned to what lies between categories: accounts that do not straightforwardly map onto the binary structure of consent doctrine, and sexual encounters that participants themselves describe as confusing, “borderline,” or difficult to read. By centering how individuals respond, or fail to respond, to moments of ambiguity in such encounters, the analysis brings into view dynamics that formal legal categories tend to obscure or overlook, and in doing so identifies the limits of leading consent models in accounting for ambivalence.
This perspective illuminates how legal categories of consent map onto, and diverge from, the social classification of sexual harm. Criminal case law captures only a narrow subset of encounters, filtered through reporting barriers (Wieberneit et al. Reference Wieberneit, Thal, Clare, Notebaert and Tubex2024), prosecutorial discretion, and evidentiary thresholds, and reduces complex interpersonal dynamics to doctrinal elements such as force, resistance, or verbal refusal (Buchhandler-Raphael Reference Buchhandler-Raphael2022; Dancig-Rosenberg Reference Dancig-Rosenberg, Natti Ronel and Bensimon2008; Larcombe et al. Reference Larcombe, Hanley, Fileborn, Henry and Powell2016; Yung Reference Yung2017; Tuerkheimer Reference Tuerkheimer2016b). Qualitative inquiry, by contrast, accesses the “messy” relational and situational dynamics obscured by binary consent doctrine (Small Reference Small2020). Maintaining a focus on experiences that resist binary classification matters for several reasons. Feminist theorists describe sexual ambiguity as a defining feature of contemporary heteronormative sexuality, where confusion over whether an encounter constitutes a violation provides cover for rationalizing harms. Gavey’s (Reference Gavey2019) influential work on “gray zones” situates such ambiguity within patriarchal sexual cultures, mapping a continuum that runs from coercive, unwanted sex to consensual, desired sex, with intermediary forms that are variations of consented-to-yet-unwanted. Cahill (Reference Cahill2016) similarly theorizes such experiences as “unjust sex,” a category falling between consensual sex and rape.
This feminist body of work is invaluable in showing that, in the heteronormative contexts it examines, it is not individual confusion or anomaly that is at play. Rather, it is sexual ambivalence, which is produced by structural conditions of gender inequality that systematically constrain women’s sexual self-determination. Further, this feminist oeuvre helps us understand why certain forms of vulnerability escape consent frameworks that are organized around binary distinctions between consensual and nonconsensual sex. However, much of this literature theorizes ambivalence primarily through the lens of patriarchal domination. By treating sexual “grayness” simply as reflective of patriarchal power, it risks reproducing the very binary these scholars seek to critique: one that forecloses the recognition of complexity within gendered power dynamics (Cahill Reference Cahill2016). The limitation extends to the nascent scholarship on non-heterosexual contexts. While documenting related dynamics, such as hypersexual ideals, expectations of constant sexual readiness, and persistent difficulties declining advances (Gaspar et al. Reference Gaspar, Skakoon-Sparling and Adam2021; McKie et al. Reference McKie, Skakoon-Sparling, Levere, Sezlik and Humphreys2020; Sternin et al. Reference Shulamit, McKie, Winberg, Travers, Humphreys and Reissing2022), the idea that ambivalence might arise for reasons other than a person’s limited sexual agency has thus mostly remained beyond the realms of possibility for both bodies of scholarship.
Recent scholarship has begun to complicate this picture, however. Beres (Reference Beres2022), drawing on the accounts of participants with diverse sexual identities, observes that desire is not necessarily experienced as an “either/or” and examines encounters in which, even while reluctance and discomfort are felt, they may coexist with enthusiastic (verbalized) agreement. Hindes’ (Reference Hindes2023) study of “bi+ people’s experiences” similarly shows that sexual scripts “do not just constrain but can also give possibility to the ways in which people negotiate sex” (468). Yet, it is not ambivalence itself that concerns these authors, but the relational knowledge and social scripts through which consent is communicated and negotiated. The structural production and normative stakes of ambivalence itself remain undertheorized. What if, as Hindes’ findings seem to suggest, gray zones are not merely evidence of impaired agency but sometimes part of how sexual agency is experienced and negotiated? What if sexual grayness emerges not only from patriarchal coercion but also from sexual cultures that resist binary classification? In other words, is there room, within this study of sexual consent negotiations, for more ambivalence?
We acknowledge that cultivating (or dwelling on) ambivalence is normatively fraught. Feminist researchers, while appreciating the value of an ambivalence-as-analytic orientation, are right to warn that “sitting with” or “holding” seemingly incompatible feelings can become a way of tolerating, and ultimately sustaining, conditions of inequality (Coccia et al. Reference Coccia, Harris and McClelland2024). In sexual minority contexts, this risk is especially pronounced: discourses of sexual freedom can expand possibilities for experimentation, yet may be mobilized to mask coercive pressures. In a similar vein, scholarship on sexual violence between men often highlights how men may be socially pressured to downplay harm, including through norms of masculinity that discourage them from “naming” experiences as assault (Braun et al. Reference Braun, Terry, Gavey and Fenaughty2009; Menning and Holtzman Reference Menning and Holtzman2014; Namaste et al. Reference Namaste, Gaspar and Lavoie2021). But it is equally important to avoid the inverse error: suggesting that men who do not label their experiences as assault suffer from “false consciousness” – a paternalistic move that dismisses their self-understandings while purporting to protect them (Webber et al. Reference Webber, McCready and Yurkovich2024).
Our aim, then, is neither to romanticize ambiguous encounters nor to normalize sexual harms under the guise of ambivalence. Instead, we are interested in pinpointing what binary interpretive framings tend to miss or devalue. As the sociological literature has shown (Carolan Reference Carolan2010; Connidis and McMullin Reference Connidis and McMullin2002; Ghosh Reference Ghosh2019; Merton Reference Merton1976; Ombagi Reference Ombagi2023), ambivalence is shaped by the social conditions within which encounters unfold, sometimes in manipulative or coercive ways (Gavey Reference Gavey2019). Accordingly, we argue that it is imperative to remain open to its multiple forms and meanings. The article’s primary contribution, therefore, lies in analyzing how gray-zone encounters are structurally produced within gay sexualized venues. In this respect, it enriches the conceptual vocabulary available for thinking about sexuality, agency, and vulnerability, and about the relationships between these factors. We are mindful that undertaking this inquiry carries a representational risk: research on sexual misconduct within sexual minority communities may inadvertently reinforce stereotypes of sexual “deviance” or danger. Yet, avoiding such inquiries can, itself, reproduce systemic homophobia by rendering violence within these communities unspeakable. Confronting this tension, we believe, is integral to responsible socio-legal inquiry.
Methodological approach and study design
The methodological approach we selected to guide our analysis was dialectical sensibility: an interpretive practice that refrains from seeking to “resolve” the tensions in participants’ accounts and avoids collapsing them prematurely into either/or interpretations of agency versus victimization. We employed dialectics to help us elucidate how ambivalence is produced, rather than to develop a definitive theory of ambivalence.Footnote 2 Ambivalence, as discussed here, refers to a lived phenomenon: the simultaneous experience of contradictory impulses within a sexual encounter, including willingness felt alongside unease; pleasure combined with discomfort; or agency overlayered with vulnerability. Accordingly, analyzing such experiences on their own terms requires an interpretive framework that is attentive to contradiction. It also means examining empirical materials from a position of curiosity about what has been missed, overlooked, undertheorized, or excluded by dominant frameworks. It directs attention to moments where participants themselves resist binary classification – where they describe sexual encounters as simultaneously wanted and unwanted, chosen and coerced, pleasurable and harmful. This curiosity is not about celebrating ambiguity; it seeks to understand the conditions that produce it, the manner in which it shapes such encounters, and its role in producing (non-)consent. Rather than treating such accounts as confused or incoherent, dialectical sensibility takes them as analytically generative – as revealing structural tensions and contradictory norms that binary consent models obscure.
In terms of design, the study employed semi-structured, in-depth, one-on-one interviews with 48 men, with interviewing continuing until thematic saturation was reached. Participants self-identified as gay, bisexual, or pansexual, except for one who self-identified as heterosexual, and frequented public spaces significant to the Israeli LGBTQ community. These included gyms, bars, restaurants, and nightclubs and their internal sub-spaces (bathrooms, dance floors, and darkroomsFootnote 3), cruising areas such as parks and beaches, saunas, and informal private gatherings known as “chills.”Footnote 4 These settings represent a particular segment of gay culture, as opposed to gay culture more broadly. The study focuses on casual sexual encounters in these settings, between strangers, friends, or acquaintances, rather than within established intimate relationships. These spaces were central to our analytical goals: unlike private dyadic settings, they function as social arenas in which shared norms are produced and negotiated, often under conditions historically shaped by legal regulation and criminalization vis-à-vis homosexuality (Daroya Reference Daroya2022), situating individual experiences within the broader structural contexts in which they arise.
Participants ranged in age from 20 to 60 years old: 20–29 (N = 14); 30–39 (N = 26); 40–49 (N = 6); and 50–60 (N = 2). They varied in educational attainment and socioeconomic background, as well as in the timing of coming out (see Appendix A). They were recruited through snowball sampling, liaison with two leading Israeli LGBTQ organizations, and advertisements posted in LGBTQ-affiliated Facebook groups. Eligibility required prior engagement with LGBTQ public social or sexual spaces.
Interviews took place between March and June 2024, using open-ended questions. All interviews were conducted in Hebrew and were audio-recorded, transcribed, and anonymized. All translations of quotes from the interviews are our own, with the assistance of a professional editor to ensure the preservation of the original meaning. Participants provided informed consent in accordance with ethical approval from the affiliated institution and could choose to be interviewed by whichever of the two researchers (one male, one female) they wanted. Participation in the study was entirely voluntary, and no compensation was provided. The interview protocol was designed to elicit multiple positions within the consent dynamic, addressing a gap in prior scholarship that has largely centered on coercion and victim-centered narratives (Webber et al. Reference Webber, McCready and Yurkovich2024) while underexamining the perspectives of those accused of causing harm – or those who struggle to classify their own or others’ conduct. Participants were therefore invited to describe encounters in their own terms, including experiences they perceived as unwanted, boundary-crossing, or nonconsensual; encounters in which they worried they may have crossed a boundary themselves; and encounters marked by uncertainty. This multi-perspectival design enabled comparison across positions and analysis of the conditions under which encounters resist binary classification. To enhance the reliability and accuracy of the present data interpretation, we manually coded the data independently of one another, held regular reflexive meetings to compare interpretations and resolve discrepancies, and revisited coding decisions as themes developed. This interpretative rigor was crucial because we, the researchers, differ in gender and in affiliation with the LGBTQ community.
We analyzed the transcripts, using a grounded theory-informed thematic approach and manual coding. We each independently coded the interviews, generating 50 codes organized into 11 categories, followed by comparison and reconciliation of discrepancies to produce a shared coding scheme (see Appendix B). These codes were iteratively refined through cross-case analysis into broader themes, enabling comparison across interviews and identification of structural conditions shaping participants’ accounts. A recurring pattern emerged: participants’ accounts of sexual encounters resisted binary categories of consent and harm, instead reflecting the simultaneous presence of seemingly opposing elements such as autonomy and vulnerability, pleasure and danger, desire and coercion. Informed by sociological scholarship on ambivalence (Carolan Reference Carolan2010; Connidis and McMullin Reference Connidis and McMullin2002; Ghosh Reference Ghosh2019; Merton Reference Merton1976; Ombagi Reference Ombagi2023), we therefore developed the dialectical interpretive framework to theorize these dynamics.
Before proceeding, we wish to acknowledge several limitations of our study. First, the sample was restricted to gay and bisexual men, and did not capture consent dynamics among lesbian and bisexual women, transgender, nonbinary, or intersex individuals. We therefore frame our claims as grounded in a specific segment of LGBTQ public culture. The subsequent phase of our ongoing research examines the experiences of lesbian and bisexual women, enabling comparative analysis across gender. Relatedly, the sample, while diverse in age, socioeconomic background, and timing of coming-out, included only Jewish Israeli participants. Potential interviewees from the Arab sector declined to participate due to concerns about exposure. This limitation reflects the compounded vulnerabilities facing sexual minorities within minority communities and underscores the need for community-based research to broaden inclusion. Finally, the findings are situated within Israel. We do not treat Israeli gay public spaces as representative; rather, they provide a concentrated site in which broader dynamics become visible. That said, similar patterns have been documented in comparable settings in North America and Western Europe, and we draw on this literature throughout the analysis to relativize our findings and to mark where they extend or complicate existing insights. Furthermore, Israeli sexual-consent law shares substantial features with that of the U.S. and other Western liberal democracies. Under Section 345 of the Penal Law, rape is defined as an act of penetration carried out without free consent, alongside enumerated circumstances in which consent is deemed absent. Although the “affirmative consent” benchmark has not been formally adopted, Israeli courts recognize that non-consent may be established without verbal or physical resistance, and acknowledge the role of power asymmetries in shaping sexual encounters (Twatsao v. State of Israel (2011); John Doe v. State of Israel (2009)). Courts do also acknowledge that power imbalances can shape sexual encounters in ways that bear directly on the interpretation of consent (Kamir Reference Kamir2004; Lowenstein Lazar Reference Lowenstein Lazar2019). These features reflect wider conceptual difficulties in consent doctrine – including the persistence of “rape myths,” the challenges of identifying non-consent absent explicit refusal, and ongoing contestation over its definition – that cut across jurisdictional boundaries. Accordingly, we present our framework as an analytical vocabulary that may travel, while treating the empirical patterns as context-dependent and open to comparative testing.
Findings and discussion
In this section, we develop the article’s core dialectical claim. First, we situate the analysis by describing the settings and wider infrastructure in which the relevant encounters took place. Next, we examine the spatial organization of sexual consent in these settings – in particular, how spatial “consent codes” affect, and are affected by, a sense of eroticized danger. Finally, we turn to the temporal organization of consent and its more problematic features. Overall, this section explains how both of these dimensions give rise to dialectical patterns that complicate prevailing legal models of consent. Although analytically distinct, the temporal and spatial dimensions operate together, in practice, shaping how sexual encounters – and, within them, consent – are experienced, perceived, and interpreted. Across both axes, the same tension emerges: the very conditions that enable erotic openness, experimentation, and agency simultaneously generate vulnerability and unwanted pressure.
The infrastructure of erotic openness
Gay men’s public venues are often described as spaces of sexual liberation and empowerment, enabling a level of sexual freedom and identity affirmation that is largely unavailable elsewhere. Our findings build on the extant literature (Gear Reference Gear2005; Aspin et al. Reference Aspin, Reynolds, Lehavot and Taiapa2009; Braun et al. Reference Braun, Terry, Gavey and Fenaughty2009; Grov et al. Reference Grov, Cruz and Parsons2014; Bourne et al. Reference Bourne, Reid, Hickson, Torres-Rueda, Steinberg and Weatherburn2015; Ford and Becker Reference Ford and Becker2020), while extending it in a specific direction: we identify two dimensions through which these venues foster sexual autonomy and agency, while also generating conditions for self-restraint.
The first dimension is erotic intensity. In settings such as sex parties or gay clubs, the dim lighting, the heightened sensory input (often intensified through substance use), and the visual impact of watching semi-naked bodies all generate an atmosphere in which inhibitions are lowered and erotic experimentation becomes possible (interviews 6, 9, 10, 14, 18, 19, 24, 27, 36, and 39). This sense of expanded permission is amplified by the corporeal cues: when “everyone takes off their shirt,” the environment signals a shared erotic openness (interview 19). The second dimension is cultural belonging. These venues function as arenas where recognition and community affiliation are produced through shared embodiment: being surrounded by “people like me” generates a felt sense of safety and human connection, while also expanding the range of sexual boundaries that individuals feel able to test (interviews 8, 9, 14, and 15). According to Dave (interview 15): “Within the community, we allow ourselves more than we would with coworkers … We speak and act more freely. In our own clubs, we allow ourselves more than we would in a straight club.” Thomas (interview 14) captured the experiential shift this produces: “Until I came out, everything was ‘no, no, forbidden.’ But when you arrive at a place where everyone is like you, it’s like taking your foot off the brake.”
Yet, this communal embeddedness can also create pressure. Several men described fearing reputational fallout: objecting to unwanted touch, especially in front of others, could be read as “making a drama,” strain friendships, or circulate as a negative story in a relatively bounded community (interviews 4, 10, 21, and 23). These pressures interact with the venues’ spatial and temporal conditions. As Norris (interview 27) explained, “personal space is extremely reduced … [creating a baseline level of physical contact that] already creates the grounds for sexual touch,” while Alden (interview 19) noted that crowding in these settings enables contact “without asking or without consent … sometimes there’s a stroke or a grab without any eye contact beforehand.” In sum, the same infrastructures that enable erotic openness produce conditions under which boundaries are inferred rather than communicated. This duality is taken up in the next sections.
The spatial dimensions of consent
Spatial consent codes and presumption
The spatial infrastructure of gay venues does more than enable erotic openness; it organizes how consent is communicated and understood. Within these settings, consent does not operate as a discrete moment of (verbalized) authorization but as a spatially mediated process, shaped by shared practices and movement across zones of interaction. Participants described relying on community-generated consent codes to render spatial permissibility workable in practice. These informal codes or conventions – eye contact,Footnote 5 bodily orientation,Footnote 6 momentary touch,Footnote 7 or entering particular sub-spaces within a given venueFootnote 8 – function as legible and expected signals through which interaction is initiated and calibrated.
These codes operate along a spatial gradient of erotic intensity. The potential meanings of a gesture shift depending on where it occurs: movement between zones within a venue (from the main dance floor to the darkroom, or to the bathroom area, for instance) signals escalating erotic openness. Participants described this progression as a trajectory of intensifying sexual possibilities, in which each spatial threshold crossed is read as a deepened willingness to engage. In more explicitly sexualized spaces – darkrooms, saunas, or chills – consent is partly presumed through the act of spatial entry itself.Footnote 9 As Dave (interview 15) put it: “A darkroom is a dark room. It is clear from the outset that the boundaries become blurred, and everyone tries to touch everyone in a much more extreme way.”
This presumptive logic raises a fundamental question: consent to what? To specific sexual acts, specific partners, or merely the possibility of interaction? The content of that consent remains substantially undefined. Participants thus knowingly enter a field of indeterminacy, where contact may occur without prior negotiation, and boundaries must often be asserted in real time. This permission structure sits in tension with sexual consent’s legal doctrine, particularly challenging the “affirmative” paradigm that has become central in contemporary sexual assault law and theory.Footnote 10 Affirmative consent is premised on a specific communicative logic: to be legal, sexual contact requires clear, prior agreement, either verbal or through unambiguous non-verbal cues, establishing authorization prior to the sexual act (Gruber Reference Gruber2016; Tuerkheimer Reference Tuerkheimer2016a).Footnote 11 The legal burden rests on the initiator to ascertain consent. Our findings suggest that a different communicative logic is at play in gay venues. Rather than treating touching as an act that must be authorized in advance, participants described environments in which, once inside, individuals are understood to have at least given their contingent authorization, and anyone who does not welcome touch in any given moment can only hope to avoid it through active refusal. As Andrew (interview 4) put it, “the starting point is inverted. Suddenly, the side from whom consent should be requested needs to reject. Instead of the person acting needing to ask, suddenly the burden of proof, if you will, is reversed.”
This inversion was treated as routine, especially in more overtly sexualized areas of these venues. Many described making initial contact directly with a stranger’s stomach, chest, or buttocks as a legitimate opening gesture, with only persistence despite a clear refusal marking the behavior as harassment (interviews 4, 2, 19, 10, 46, 20, 14, 44, 29, 23, 9, 33, 31, 40, and 48). As Mark (interview 2) explained: “A slap on the bottom, that’s okay. If someone does it a second time after I said it’s not appropriate, then it’s not okay.” Spatial threshold-crossing thus functions, in its own right, as provisional consent. While not a blanket authorization, it raises the baseline of permissible sexual interaction that would likely constitute a violation in other contexts.
The notion of presumed consent has been heavily criticized in feminist legal scholarship for obscuring the absence of genuine choice, and for shifting blame onto (mostly) women for their own sexual victimization (Burgin and Flynn Reference Burgin and Flynn2021; Cahn Reference Cahn1992; MacKinnon Reference MacKinnon1989; Moran Reference Moran2003; Vandervort Reference Vandervort2013). Yet, in the context we examine, many participants experience this presumed consent – and the ambiguity that makes it possible – not as inhibiting but as enabling, as a mode of sexual agency.
This does not render implicit consent unproblematic. Rather, our findings underscore its ambivalence: the same venue-specific norms that widen the repertoire of legitimate openings also expose people to harms that remain difficult to name. Using venue-specific codes can produce interpretive misalignment: a sexual gesture that is intended as harmless flirtation by one person may be internalized as a sexual violation by the other. As Mike (interview 12) put it, “a gesture that, at a straight party, would be automatically considered harassment – a man touching a woman – may, at a gay men’s party, be read as a sign that something [desirable] is starting.” A small minority of interviewees explicitly rejected the permissive script that others treated as normative (e.g., interviews 6, 23, and 37). More strikingly, several participants recounted incidents in which their own reliance on this script resulted in unexpected accusations of sexual misconduct. Mark (interview 2), for example, recalled playfully flicking an acquaintance’s genitals on the dancefloor, only to be confronted: “What are you doing?! What do you think you’re doing? Why are you touching me?” The reaction shocked Mark precisely because he assumed such contact to be “normal” within the setting.
Chase’s account, too, is illustrative (interview 11). At a gay pool party, after sensing that another man was “into” him, he placed his hand gently on the man’s stomach: “And then he took my hand off and said, like, ‘Don’t touch me.’ … I felt basically like a rapist. Not that I actually did something to him, but I understood: okay, you didn’t pick up the right signals.” In the mirror image of this scenario, Thomas (interview 14) described being on the receiving end of such physical contact at a public pool:
Someone I know from the city made a point of touching my stomach – it wasn’t like he moved his hand and accidentally brushed me; he touched me deliberately, he was talking to me, and he touched my stomach. I totally froze; it took me a moment to understand what I should do with this situation, and for me it was a boundary-crossing in the grossest way. […] I froze for a long time; I didn’t know how to respond.
Juxtaposing these two instances of the same gesture in similar settings illustrates that even seemingly accepted practices can generate discomfort and uncertainty about whether an interaction is, in fact, consensual. Importantly, this is not only a problem of communication: when venue-specific codes normalize touch as an “opening gesture,” participants may experience an interaction as, at once, ordinary and troubling, which can delay refusal, mute the impulse to complain, and make harm harder to recognize.
Against this backdrop, the inadequacy of consent in its traditional doctrinal form becomes visible. The question is not simply whether consent exists in these liaisons but how it is constituted. What requires examination is the structure of consent within these spaces. To better understand this, we now turn to examine how pleasure and risk coexist within a single encounter.
The spatial dimensions of eroticized danger
The accounts shared by our interviewees regarding public gay spaces, particularly the sexualized ones, raise several questions. Do these sites offer pleasure and excitement or the risk of sexual violation? Do they function as sites of agency and control or, rather, of victimization? Based on our findings, we argue that they offer both, simultaneously. In effect, these spaces function as zones of danger that become eroticized, such that spontaneous sexual acts may be risky and potentially violative, but are also experienced as enjoyable and are born of choice. Rather than resolving into rigid categories, the very tension between these poles is, itself, constitutive of the experience.
This dynamic was particularly visible in how participants described entering these spaces. Liam (interview 9) talked about his experience of darkrooms thus:
You do it by choice. You enter this place, it’s like entering the “lion’s den,” you know that a situation can happen where someone will do something to you, will touch you … [And] when I’m in such a space, … the assumption is that there is a possibility that, like, … people hit on them in a more aggressive way or more direct, let’s call it that.
Choice and risk are positioned here not as opposites but as inseparable. Participants knowingly confront risk, aware they will likely experience direct, even aggressive, touching without prior consent, yet frame their entry as an act of volition. Risk, and acceptance of that risk, often go hand-in-hand with the thrill inherent in unfamiliar sexual experiences: “That’s also part of the excitement for them,” as Adrian (interview 23) noted, referring to men who visit darkrooms. Norris (interview 27) explained his decision to enter one of these “eroticized danger” zones as follows: “I think I partly wanted that excitement. There is a certain hypocrisy to it. If someone came and forcibly stripped me, then no. But touches and caresses, that is part of the thrill of the darkness, and that is what attracted me there to begin with.”
Crucially, this dynamic suggests not just the presence of ambiguity but its active production. Where consent doctrine, particularly in its affirmative formulation, aims to clarify boundaries before they are crossed and to eliminate uncertainty, these venues often treat boundary-blurring as part of the encounter’s erotic architecture, rendering gray zones structurally foreseeable rather than exceptional. This is the generative potential of grayness, for it points not to failures of consent but to alternative structures of desire.
The “hypocrisy” that Norris referred to is the dialectic inherent in these structures of desire: wanting the very ambiguity that creates vulnerability, seeking the thrill of the unexpected, wanting an unpredictable sexual caress from an unknown person. While the specific touch may be unexpected and nonconsensual – participants cannot know when or from whom the touch will come, nor where exactly it will land – the general possibility of such an interaction is understood as inherent to the space and, accordingly, welcomed.
The “chill” reveals an additional dimension of the dialectic: autonomy and self-restraint operate not only through erotic ambiguity but also through relational pressure. Mark (interview 2) described the chill’s distinctive character:
… consent [in] there really is a bit ambiguous. Because a chill is not just an orgy, it’s not just a darkroom where people turn up, participate in the sexual encounter, and leave … There are lots of interactions that are friendly, suddenly people go out for a cigarette, chat, talk, then come back inside … and then this seam between everyday friendship and the chill situation, that boundary gets blurred.
It is precisely this blurring between friendship and sexual encounter that can generate a sense of both social and erotic obligation – a particular form of pressure. Participants described agreeing to sexual contact they did not want in order to sustain the group’s harmony. Owen (interview 39) called this a kind of generosity: “Even if I’m not very attracted, I’ll let him suck me for a moment … sometimes it’s from a place of ‘go ahead, enjoy.’” For others, however, the pressure operates through the exposure that intimacy produces: the sense that refusal, in a small and familiar gathering, becomes a conspicuous act. As Nate (interview 6) put it, “it’s in someone’s apartment and it’s much more intimate … And then consent is much more blurred … suddenly it’s hard for me to say no because everyone hears and everyone sees ….”
While such pressures are not unique to chills, what distinguishes these informal private gatherings is how they are produced through, and masked by, the very conditions that otherwise enable erotic autonomy. Intimate visibility, collective “friendly” energy, and blurred boundaries between sociability and erotic expectation make refusal conspicuous, and compliance seemingly natural. This makes it uniquely difficult for participants to determine whether an act was genuinely consented to or subtly compelled. Crucially, when a boundary-crossing occurs in the presence of others, who then do not intervene, their silence can further normalize the interaction and impede the recognition of harm.
When harms do occur within these spaces (and are recognized as such by the participants), the logic of spatial consent can transform the experience of violation into a source of self-accusation. As Nate (interview 6) explained:
There is a very thin line between the dissonance between wanting to explore and sexual openness … and the self-blame that comes when I experience something unwanted: “Why did I go there?” As if it’s my fault for going. If I had just stayed home, it wouldn’t have happened.
This self-blame is not incidental but structurally produced. When consent is presumed through spatial entry, unwanted contact can be difficult to label as a violation precisely because they “chose” to enter, and because the same affective states that characterize ambivalent encounters – uncertainty, discomfort, confused arousal – are also present in fully consensual, desired sex.Footnote 12 Masculinity norms likely compound this difficulty. When the same conduct that would be perceived as harassment in heterosexual contexts is reframed as ordinary flirtation (interviews 1, 2, 4, 6, 9, 12, 14, 25, 34, 35, and 29) or “part of the masculine atmosphere” (interview 16), participants face an additional interpretive burden. As Mike put it, what would be “immediately, harassment” between men and women becomes, in gay venues, something that “might be read as him starting something with me” (interview 12). As Ravenhill (Reference Ravenhill2017) highlights more generally, masculinity norms position men as naturally able to resist unwanted advances, contributing to self-blame when participants struggle to reconcile their discomfort with internalized expectations about masculine self-protection. These norms represent one way in which broader heteronormative gender hierarchies may be reproduced within men-who-have-sex-with-men (MSM) sexual cultures, even as participants may reshape or resist conventional heterosexual scripts.
The difficulty thus extends beyond self-blame to a more basic uncertainty: how do men who frequent such spaces even recognize when they have been harmed or when they have harmed others? Participants are left with experiences they cannot clearly name – not because they lack language, but because the experience itself resists categorical placement.
These narratives sit uneasily within the dichotomous frameworks that demand classification as either victim or agent. As feminist scholar Schneider (Reference Schneider1986) identified in a different relational context, the “portrayal of women as solely victims or agents is neither accurate nor adequate to explain the complex realities of women’s lives.” Schneider’s critique exposed how dichotomous frameworks that demand classification as either powerless subject or autonomous actor fail to capture realities that are characterized by both dynamics (see also Mahoney Reference Mahoney, Fineman and Mykitiuk1994; Raghavan Reference Raghavan2023).
What emerges in these sexualized spaces reflects precisely this dual character. Participants cannot be said to have fully transparent, pre-formed preferences, unaffected by social context. Yet, they nonetheless exercise agency: a capacity to act, choose, and derive meaning within and through conditions of uncertainty, risk, and power. This is not agency despite vulnerability, but agency configured through vulnerability, a form of self-determination that does not require the absence of pressure but operates within and sometimes through it (cf. Cahill Reference Cahill2016; Tuerkheimer Reference Tuerkheimer2013).
The temporal organization of consent
Accelerated tempo
Sexual interactions in many gay public venues are characterized by an accelerated tempoFootnote 13: a compressed rhythm in which initiative and response occur almost simultaneously, leaving little pause between visual attraction and physical touch. This tempo is produced by the venues’ aforementioned material and affective conditions – exposed bodies, physical proximity, dim lighting, loud music, and, frequently, substance use – and intensifies reliance on non-verbal cues such as eye contact, bodily orientation, and gesture. Such acceleration reshapes how consent is communicated and experienced. Rather than unfolding through deliberation or prior agreement, sexual interactions are often initiated impulsively, with perception, response, and evaluation occurring almost simultaneously.
These dynamics complicate models of consent that assume time for deliberation and a clean separation between authorized and unauthorized contact (Hurd Reference Hurd1996; Schulhofer Reference Schulhofer1998; Vandervort Reference Vandervort2012; Wertheimer Reference Wertheimer2003). Yet, for some participants, this immediacy is not experienced as a limitation but as a source of sexual agency and pleasure. Immediacy enables unfiltered, unmediated sexuality in which unexpected touch can be arousing precisely because it is unexpected. Mark described how, “speaking personally …, many times it arouses me when someone puts their hand in my pants, it arouses me when they come and grab me.” The transgression itself becomes part of the erotic payoff; it is both the generator and the outcome of pleasure. Note how, in the interaction between risky spaces and compressed tempo, consent is often read as already present, thus enabling spontaneous, welcome sexual gestures and simultaneously rendering it difficult to recognize when boundaries are being crossed in the moment. The window for assessing what is happening and deciding whether one welcomes it or not thus narrows. As Damian (interview 35) put it, “sometimes we agree just because we want something, but not this thing; and sometimes we don’t agree but let it happen because it’ll be over in a second.” In such contexts, the body may respond before the mind fully registers what is occurring and escalation may outpace perception: “There are spaces with a stronger sexual dynamic … darkrooms, saunas … it usually begins with a light touch … suddenly someone grabs my genitals … with no warning, sometimes before I even see [the person]” (interview 6). This intensified pace can also function as a tacit justification for those who initiate contact. Samuel (interview 30) described encounters that unfold “so fast that it’s like a casual hit-and-run … and the people doing it don’t necessarily attach much importance to it; they tell themselves that this is the vibe here, that everyone’s on everyone.” Observe how speed weakens perceived accountability: what happens quickly is treated as carrying less weight and, therefore, as falling outside the social definition of consent violation.
When the transition from gaze to touch may be split-second, the analytic task, then, is not to determine how coercion can be eliminated so that agency can flourish, but how consent should be understood where the interplay between autonomy and vulnerability is, itself, the erotic encounter’s organizing logic.
The processual structure of consent
When interactions unfold so quickly that a brief pause for static deliberation is unfeasible, consent can take on a processual character: a dynamic condition that is sustained, renewed, reexamined, and, at times, reinterpreted across the course of an encounter (Derry Reference Derry2025). Our data show that consent is often constituted and reconstituted throughout the encounter. Sexual touching may begin without explicit preauthorization, while desires may shift in real time (interviews 1, 11, 2, 4, 6, 9, 12, 14, 19, 23, 25, 29, 34, and 35). This continuous process shifts consent discourse from mere risk avoidance to (also) fostering collaborative pleasure and intimacy (Gunnarsson Reference Gunnarsson2024). Further, it allows for “active participation” (Beres Reference Beres2010) and “communicative sexuality,” based on a continuous dialogue about desires, boundaries, and preferences, and verifying communication as a means of consent (Anderson Reference Anderson2005; Pineau Reference Pineau and Francis1996).
However, two related challenges follow: how to determine when consent must be renewed within an unfolding encounter; and how subsequent affirmation or repudiation bears on earlier moments within the same encounter.
The challenge of renewal
The question of when consent holds and when it lapses is not unique to the settings we examine (see, e.g., Gunnarsson Reference Gunnarsson2024). Here, however, the rapid tempo of sexual encounters, the interactional conditions, and the spatial characteristics amplify this ambiguity. Participants described encounters in which consent operates across multiple dimensions and actors, making its boundaries harder to locate and easier to stretch. As Hudson explained, “you’re consenting to different people for different things – one may watch but not participate; another may join later,” creating “many different levels” of consent (interview 3). Mateo similarly noted that, “sometimes, someone brings someone [else to the private sex party] and you don’t know this person at all, raising the question: ‘Does my initial consent to experience a multi-participant experience also include consent to participants who weren’t in the initial experience?’” (interview 46).
In such contexts, consent risks illegitimately being treated as a single, all-encompassing permission, where an initial “yes” authorizes everything that follows unless actively revoked. When consent is continuous and revisable, it becomes difficult to determine which moments require renewed authorization and which are assumed to follow from prior agreement. The same flexibility that allows consent to develop responsively also enables it to be negotiated implicitly, and sometimes not negotiated at all.
The challenge of reversal
Several interviewees described consent as taking shape not only through prior signals but also through the unfolding of an interaction. Hence, willingness/consent may emerge, shift, or recede over time, complicating the idea of a single, identifiable moment of authorization.
This temporal plasticity introduces a distinct dialectic. On the one hand, the fact that sexual meaning is allowed to develop through mutual responsiveness grants participants interpretive agency. A person may initially receive a sexual gesture or physical touch as unwanted or uncomfortable, only to discover that it becomes desired, playful, or mutually engaging. On the other hand, this same interpretive openness can make refusal harder to stabilize as refusal, leaving individuals with experiences that feel neither clearly consensual nor clearly coercive.Footnote 14
Two patterns illuminate this dynamic. In the first, the meaning of an encounter transforms during the interaction. Mason (interview 25) described it this way:
There are situations where you’re walking around and suddenly someone touches you, and it doesn’t feel right. I have no idea who you are, I haven’t talked to you. But sometimes it turns me on, like, okay, that’s interesting. Whether I do it to someone or someone does it to me, suddenly someone with a towel, with a big di** or a nice a** or whatever, it’s not wanted, but it’s exciting, and it develops into a fun situation.
In the second pattern, continued interaction fails to reconcile the initial discomfort. Kai (interview 45) described this dynamic:
I can testify that I wasn’t comfortable, and they asked me: “Do you consent?” I move away and stand. That doesn’t pass [muster], let’s say. But there are those [situations] where I really said, “Enough, this isn’t pleasant for me,” and still people push in that direction. And, there, it’s borderline consent because the interaction afterward can still be pleasant and continue. But, in that moment, there was something there that wasn’t settled on whether it was okay.
Both accounts involve the same temporal sequence – unease or refusal followed by engagement or pleasure – yet, they diverge in outcome. For one, subsequent experience reconstructs the initial act as desired; for another, continued interaction renders consent indeterminate rather than clarified. The point is not simply that interpretations vary but that the boundary between consensual and nonconsensual is sometimes drawn and re-drawn during the encounter’s unfolding.
This dynamic is particularly consequential in contexts where uncertainty is erotically normalized and where refusal is socially costly. Under those conditions, later pleasure or continued participation may function as tacit approval for earlier boundary-crossing, allowing what registered as a violation in the moment to be absorbed into the encounter’s “unremarkable” script, even when the person experiencing it has not reached a stable sense that it was “okay.”
These dynamics sit uneasily with criminal law’s temporal logic. If consent was absent when the act occurred, and the initiator of the act was aware that consent was absent, the harm is complete and the offense already committed (Witmer-Rich Reference Witmer-Rich2011, quoting State v. Hartigan, 32 Vt. 607, 611 (1860); Battle v. State, 414 A.2d 1266, 1269 (Md. 1980)).Footnote 15 Permitting subsequent consent to retroactively redefine an earlier absence of consent risks excusing sexual harm, exposing victims to pressure and manipulation (Gersen and Suk Reference Gersen, Suk, Fagan and Levmore2017). This much is clear. However, our interviewees described a different form of “subsequent” consent – one that is withheld as the act begins, but is then given as the act continues, and may even ebb and flow thereafter at different moments during the experience.
In this regard, Witmer-Rich (Reference Witmer-Rich2011: 393) observes that Anglo-American criminal law offers no “meaningful support” for the notion that consent emerging during an encounter’s unfolding (such as a sleeping person’s agreement to sex upon awakening) arguably “constitutes legally valid retrospective consent or legitimizes what otherwise would be criminal conduct.” The concerns that Gersen and Suk (Reference Gersen, Suk, Fagan and Levmore2017) identify retain their force, at least to some extent, when the affirmation occurs while the encounter is still in progress. The most pressing concern, in our view, is that treating an ensuing “yes” as curing an earlier “no” would create a doctrinal opening for coercion (Chwang Reference Chwang2009), particularly in settings whose structures make refusal socially and practically problematic, as in the spaces we explore here.
Yet, the dialectical account developed here exposes a deeper asymmetry in the law’s temporal logic. While criminal law permits the withdrawal of consent,Footnote 16 it remains resistant to the reverse move. That asymmetry is the price paid for doing the work of protection, because treating an ensuing “yes” as curing an earlier “no” would open a doctrinal pathway for coercion. But it leaves the law ill-equipped to capture experiences in which meaning does not crystallize into a single, fixed status at a single, dispositive moment. What begins as “not wanted” may become “exciting,” or what becomes pleasurable may still carry an unresolved earlier boundary-crossing. A framework that insists on one settled classification at the legally salient moment can therefore misdescribe experiences constituted across time.
Toward a dialectical framework in sexual consent law
This section draws out the analytical implications of applying a dialectical framework to sexual consent considerations. It addresses three immediate reservations that this proposed approach may prompt, each of which is expressed on a different level of analysis. The first concerns the nature of criminal law itself: whether it has the capacity to accommodate dialectical experience. The second concerns the discourse and doctrine of consent: how the dialectical approach sits relative to existing critiques of consent doctrine. The third concerns application: how consent doctrine should apply when the sexual scripts that shape ambivalence are community-specific. Naming these reservations helps clarify the analytical contribution of a dialectical framework and the normative tradeoffs it implies, and points to the key questions this approach leaves open for future work.
Can criminal law accommodate dialectical experience?
It is clear that criminal law is premised on the need for binary rules, whereas sexual life is not always organized along such lines. One predictable reservation about cultivating dialectical sensibility is therefore that it may appear to unsettle the conditions that criminal law requires in order to function: non-negotiable lines defining impermissible conduct that warrants criminalization, strict categories for enforcement and deterrence, and the ability to communicate to the public what, precisely, is prohibited. If sexual interaction can be experienced as irreducibly ambivalent, how can individuals know in advance whether their intended conduct is lawful?
We argue that this concern, while grounded in plausible institutional interests, conflates two levels of analysis. At the adjudicative level, binary determination is necessary because conduct is ultimately classified as criminal or legal, and the defendant is deemed guilty or not guilty. But, at the analytical level – the interpretive framework through which facts are understood, and consent indicators are assessed – binary thinking is not necessarily the optimal one.
Existing critiques of criminal law’s binary structure correctly identify how dichotomous categories (victim/offender, consensual/nonconsensual, guilty/innocent) can obscure complexity, fail to account for gray zones, and disadvantage marginalized groups. But our argument does not contest the need for binary definitions and verdicts. Our claim is that dialectical sensibility, when applied analytically, can enrich the contextual understanding that underpins binary judgments without displacing them. Accordingly, we do not propose that criminal law adopt “dialectical consent” as an element in sexual offenses. The legal definition of consent should remain clear: a commitment grounded in core principles of criminal law, including the expressive function of criminal law that depends on unambiguous messages of moral condemnation to the public at large (see, e.g., Hopwood Reference Hopwood2017; Teichman Reference Teichman2017), and the need to contain prosecutorial discretion and guard against arbitrarily motivated enforcement (Diamond Reference Diamond2010). The continued need for binary judgments is further justified by concerns of administrability, including the need to minimize adjudicative costs within mass systems of criminal justice (Picinali Reference Picinali2018), and by the evidentiary difficulties that already characterize the prosecution of sexual offenses (Gruber Reference Gruber2016). What should be refined, instead, is the assumption that the interpretive framework preceding that verdict must be equally binary. We contend that there is nothing in the institutional functions served by binary rules that requires criminal law’s interpretive lens to be equally binary. On the contrary, an artificially flattened account of sexual interaction at the analytical stage risks misidentifying what conduct should count as wrongful in the first place.
The harder question is whether criminal law can integrate dialectical understanding without generating consequences that undermine its own legitimacy. Consider a concrete illustration from our findings. Spatial entry into a darkroom at a gay club is often read (by participants and by the venue’s implicit norms) as a proxy for sexual consent. But that proxy operates within conditions that can simultaneously produce apparent willingness and hamper the ability to refuse: compressed temporality that forecloses deliberation; eroticized uncertainty that renders ambiguity itself desirable; and community norms that make explicit refusal socially conspicuous and potentially costly. A dialectical sensibility shifts the analytical focus from whether presence “counts” as consent in the abstract to whether, in context, spatial presence can justifiably support an inference of consent. This reframing raises hard questions for criminal law: should spatial presence suffice as a basis for inferring consent when the very conditions structuring that presence are the same conditions that may compromise decision-making? Can acquiescence constitute legally valid consent where the willingness it expresses is a product of situational pressures that participants describe as coercive or, at a minimum, ambivalent? When consent is spatially presumed rather than interpersonally negotiated, at what point does the burden-shifting logic (from initiator seeking authorization to recipient actively refusing) lose its normative justification?
This analytical focus poses a dilemma for criminalization. If criminal law were to adopt dialectical sensibility in its analyses and interpretations, this could expand the scope of conduct that could be prosecuted. In many gay sexual venues, where erotic interaction routinely unfolds without explicit consent verification, this expansion could risk transforming an entire sexual culture into a site of potential criminal liability, not because its participants experience themselves as victims, but because the structural conditions under which they interact satisfy the formal legal elements of an offense. The result would be a form of overcriminalization that penalizes subcultural sexual practices and disproportionately targets communities whose modes of sexual expression already operate under heightened legal and socia scrutiny.
Our inquiry is intended to nuance this dilemma by articulating the tradeoffs at stake, including when contextual proxies, such as spatial presence, may justify an inference of consent, and by identifying what distributive costs follow from extending criminal liability in subcultural sexual venues. Once it is acknowledged that criminal law may deem certain practices that are normalized (or even valued) within particular sexual cultures to be nonconsensual, the question becomes whether criminal prohibition can, or should, be expected to bear the full regulatory burden of governing sexual conduct and protecting sexual autonomy.
So, can criminal law accommodate dialectical experience at the interpretive stage? We believe it can, but it cannot fully contain it. Making this limitation explicit strengthens the case for complementary approaches beyond criminalization, such as community-based norms, restorative justice practices, and transitional justice capable of addressing ambivalence and complexity without the binary determinations of culpability.Footnote 17 Such approaches may prove especially valuable in LGBTQ contexts, where communal sexual practices, such as indirect or covert modes of sexual negotiation, have historically developed in the shadow of institutional marginalization (Daroya Reference Daroya2022; Kaplan Reference Kaplan2020; Loney-Howes et al. Reference Loney-Howes, Longbottom and Fileborn2024; McLeod Reference McLeod2015). This raises a further question: whether diversifying regulatory modalities for sexual harms in LGBTQ communities might better address sexual vulnerability. Yet, this move carries its own risk. Alternative frameworks may replicate, rather than displace, the logic of state intervention – the very logic against which these subordinated communities, and their distinctive sexual norms, have long organized. We will take up these questions in the next phase of this project.
Reframing the limitations of consent
The second reservation vis-à-vis fomenting dialectical sensibility in the discourse around sexual consent concerns the question of what this paradigm actually adds to the current discourse on consent. Feminist and critical scholars have long discussed the limitations of consent as the element that distinguishes permissible sex from violation, demonstrating how consent can legitimize sex produced under conditions of inequality, dependence, or social pressure (Anderson Reference Anderson2005; MacKinnon Reference MacKinnon1989). When the law frames consent solely as an individualized autonomous choice, it often ignores the broader contexts, such as gendered power asymmetries, economic vulnerability, racial hierarchy, and entrenched sexual scripts, that shape what outwardly appears to be agreement (Dripps Reference Dripps1992; Gardner Reference Gardner2018). By asking only whether consent was given, the law risks treating deeply pressured or exploitative sex as legitimate (West Reference West1993), while sidelining notions such as care and mutuality, and normative values such as dignity (Fischel Reference Fischel2019; Gardner Reference Gardner2018; McJunkin Reference McJunkin2024).
Acknowledging the complexity of delineating consent, a growing body of research seeks to progress toward frameworks that allow for a different, often broader, conceptualization of sexual interaction. Tuerkheimer (Reference Tuerkheimer2013) and Cahill (Reference Cahill2016), for example, offer the concept of sexual agency to capture sexual interactions that exceed binary frameworks, such as encounters that are legally consensual yet unwanted, or desired but defined by power imbalance. Their work seeks to broaden the discourse around sexuality in ways that expose power dynamics while simultaneously recognizing sexual pleasure. For them, agency offers a broader vision of sexual encounters – one that helps spotlight gray zones of ethically problematic sex. Their analyses, however, remain structured within a heteronormative framework, focusing primarily on how power imbalances limit women’s sexual autonomy. Other critiques go further, advocating for the elimination of consent as the governing consideration in the legal analysis of sexual offenses, and proposing that it be replaced by other principles, such as coercion, reciprocity, or codetermination (MacKinnon Reference MacKinnon2006).
Acknowledging this extensive scholarship on consent, our analysis provides a new analytical prism that facilitates the identification of the sexual dynamics at play. It illustrates that a dialectical sensibility perspective can add depth and nuance to our understanding of why, precisely, the law’s time-bound, binary framing of sexual content may struggle to capture all citizens’ lived sexual experiences. This analytical perspective yields an empirical and theoretical specification of how ambivalence is structurally produced and the mechanisms by which consent operates within those structurally informed conditions.
While the extant scholarship focuses primarily on consent’s limitations, our analysis identifies dimensions of consent that have received insufficient attention in the literature. It identifies three interwoven mechanisms through which sexual ambivalence is generated: presumptions that encode consent through entry into specific physical spaces rather than verbal negotiation; temporal compression that narrows the window for deliberated authorization; and community norms that eroticize uncertainty and blur the boundaries between consent and non-consent. By demonstrating how these conditions produce encounters where autonomy and vulnerability, pleasure and danger, operate in tandem, and how these dialectical relations shape the interpretation and practice of consent, our findings illuminate why gray-zone sexual experiences among gay and bisexual men resist binary classification. The contribution of the present analysis thus lies in the systematic account it offers of how gray zones are produced: under what conditions, through what mechanisms, and with what structural regularity. It therefore not only challenges consent doctrine but also enriches the conceptual vocabulary available for thinking about sexuality, agency, and vulnerability.
Much of the extant literature treats ambivalence primarily as a symptom of patriarchal domination. And we concur that, although the sexual culture examined here is not organized around a traditional (male–female) hierarchy, it remains situated within the broader heteronormative culture in which gendered norms persist (albeit in reconfigured forms), most visibly in masculinity norms that cast men as perpetually available and at ease with rebuffing unwanted advances. However, what the findings show is that gender does not operate alone when it comes to consent but is entangled with other factors. It appears to work through certain conditions (community belonging, sexual norms, cultural codes, reputation and situational pressures, including the pressure not to disrupt the collective erotic atmosphere) and alongside others (including accelerated tempo and spatial codes and configurations). All such conditions, we found, shape ambivalence. The findings also unsettle the prevailing account in a further respect: ambivalence may sometimes function as enabling as well as inhibiting. As the interviewees attested, it is not exclusively a marker of compromised agency but may, itself, be experienced as a source of erotic possibility that is integral to what some individuals associate with desire and sexual agency.
This matters for the law. Recognizing that ambivalence can emerge from structural conditions in addition to patriarchal domination, and can sometimes function as an integral part of agency, challenges both sides of consent reform debates. It cautions affirmative-consent advocates against presuming that all ambivalence signals coercion (Gruber Reference Gruber2009), while simultaneously warning critics (mostly, proponents of the sex-positive approach) who may romanticize sexual “risk” against obscuring genuine exploitation that also springs from these same conditions.Footnote 18
Recognizing the ambivalent nature of sexual encounters does not obviate the need for a legal threshold separating lawful sex from rape and sexual assault. We remain of the view that, while consent may be normatively thin, it remains the most serviceable doctrinal tool for criminal adjudication. Force-based standards are underinclusive, missing a wide range of coercive and autonomy-violating encounters (Rubenfeld Reference Rubenfeld2013). Willingness-based frameworks blur the line between criminal wrongs and imperfect, regretted, or unfulfilling sex (Murphy Reference Murphy2015), and risk collapsing into evidentiary contests that put complainants’ credibility and interior states on trial (Gruber Reference Gruber2016).
These recognized limitations point to a more complex difficulty. The problem with consent doctrine may not lie solely in its binary structure but also in its attempt to capture, within a single organizing principle, a huge variety of values and sexual experiences. This invites a broader question that our analysis raises: what would be the normative value that a dialectical account of sexual consent seeks to protect? Would it be autonomy (Schulhofer Reference Schulhofer1998; Wertheimer Reference Wertheimer2003)? Agency (Cahill Reference Cahill2016; Tuerkheimer Reference Tuerkheimer2013)? Dignity (McJunkin Reference McJunkin2024)? Equality (MacKinnon Reference MacKinnon2016)? Freedom from harm (Chiesa Reference Chiesa2017)? The framework developed here equips future scholarship to examine which of these values criminal law is best positioned to advance, and at what cost. Whichever value the law ultimately privileges, we argue that consent should be framed not as a comprehensive moral account of sexual harm but as a minimal legal threshold – an imperfect yet indispensable mechanism – thereby distinguishing wrongful from licit sex within the constraints of criminal law (Chamallas Reference Chamallas1988).
That consent remains indispensable despite its acknowledged inadequacy illustrates a broader tension. Liberal criminal law is commonly understood to attribute criminal responsibility to individuals on the basis of choice and individual agency (Berger Reference Berger2006; Hart Reference Hart1968; Yaffe Reference Yaffe and Christopher2014), while its conduct-guiding function requires sufficiently clear and determinate rules (Ashworth Reference Ashworth1995; Robinson Reference Robinson2005). In the sexual context, consent translates an encounter into a set of facts about what one party agreed to and by what means, and what the other could reasonably infer from that. Consent’s absence marks an infringement of the freedom to choose sexual contact, while its presence protects the freedom to engage in sexual conduct by leaving such conduct presumptively outside the scope of criminal law (Green Reference Green2020). Note, then, consent’s limited ambition: it does not signify that such conduct is wanted, welcome, equal (Munro Reference Munro2005; West Reference West2010), or adequately responsive to the participant’s agency (Kukla Reference Kukla2021), as reflected in the greater caution warranted in assigning criminal culpability rather than moral blame (Dempsey Reference Dempsey and Hörnle2023; Hörnle Reference Hörnle2024). Consent nonetheless supplies the operative threshold, distinguishing conduct that remains outside criminal prohibition from that which falls within it (e.g., rape). The limits of such a threshold mean that some harmful, pressured, or ethically troubling encounters will accordingly remain outside criminal prohibition. This does not necessarily constitute a unique failure of consent doctrine: criminal law does not prescribe “a receipt for a good and/or morally laudable life” (Hörnle Reference Hörnle2024: 52), and moral wrongfulness alone does not warrant resort to criminal law (Duff Reference Duff2018; Husak Reference Husak2008).
Multiculturalism in the regulation of sexual consent in law
Accepting consent as a necessary, if flawed, legal threshold, our findings point to a further problem of application. When the conditions that structurally produce ambivalence are tied to community-specific sexual norms, the implementation of that threshold itself becomes contested. This raises a set of questions concerning multiculturalism in the regulation of sexual consent in law. Should criminal law acknowledge community-specific sexual scripts when assessing consent, culpability, and sexual harm? Could the sexual norms of sexual minority groups – whose shared experiences around sexuality are central to their community formation or identity – be considered “cultural” for the purposes of adjudicating sexual victimization? And, if so, what normative weight should such considerations carry?
The dialectical account developed here renders these questions unavoidable. Many of the interactional conventions we have documented function as shared norms that have partly emerged as adaptive responses to the heteronormative marginalization and hostility that the participants experience outside their communal public spaces. In this regard, Richardson (Reference Richardson2022) contends that, as a sexual minority, gay men developed a sexual culture outside the dominant heterosexual sphere, including distinct modes of consent negotiation shaped by conditions of criminalization and stigma.Footnote 19 Some interviewees linked contemporary codes to this history of living “under the radar,” framing heightened sexual expressiveness as reclaiming what was long suppressed – a need to challenge limits or even taboos within community venues because “without breaking boundaries, what are we?” (interviews 27 and 28). This background may help explain why these norms are experienced by some men not merely as practices but as culturally meaningful forms of belonging and resistance, and why some of our interviewees expressed greater tolerance of behavioral ambiguity in these venues, acknowledging that boundaries are more permeable (interviews 8 and 12). For some in the gay community, these sexual dynamics are inherent to the unique culture of the community and are associated with group belonging.
Yet, these same norms can also heighten vulnerability, distribute interpretive burdens unevenly, and render refusal socially costly. Crucially, they generate internal disagreement about what counts as harm, violation, or acceptable risk: some participants defended these conventions as enabling sexual autonomy, while others experienced them as coercive, and others navigated both simultaneously. The question of “whose norms,” then, cannot be resolved by invoking community practice as if it were unitary.
This produces a familiar multiculturalism dilemma in a new register. A purely majoritarian baseline risks misdescribing minority sexual practices as inherently suspect. But deference to group norms risks turning culture into a partial excuse for harm (Guadalupe-Diaz and Whalley Reference Guadalupe-Diaz, Whalley, Fileborn and Loney-Howes2019). The question, then, is whether, and how, the law can acknowledge the cultural production of consent norms while maintaining a defensible floor of sexual autonomy and protection against victimization, especially when pleasure and danger are constitutively intertwined rather than readily separable.
Treating sexual minority norms as “cultural” also raises a further complication. Unlike ethnocultural or religious communities, whose practices multicultural legal theory typically addresses, sexual minority communities might be defined centrally through sexuality itself, the very domain in which consent operates and harm occurs. This creates a distinctive circularity: can the norms that constitute community identity simultaneously serve as standards for evaluating sexual wrongdoing within that community? If not, which voices should law privilege when adjudicating sexual harm, and on what normative basis? The puzzle of how to translate culturally embedded norms into objective doctrinal standards continues to preoccupy legal discourse in different legal contexts. Parallel dilemmas arise in other contexts of gender regulation, such as polygamous communities (Aburabia Reference Aburabia2017), where criminal law confronts practices framed as culturally embedded. Yet, the stakes may differ where the community is defined not only by a shared identity but by shared sexual practice, too. Future work will need to address whether sexual norms constitute the kind of cultural feature that warrants accommodation, and whether other community types raise analogous questions. Multicultural, non-heteronormative experiences may be particularly valuable in informing such an inquiry precisely because they expose the spatial and temporal conditions through which ambivalence is structurally produced.
Conclusion
This article interrogates the binary consent paradigm by reconceptualizing ambivalence in sexual consent negotiation. Specifically, it examines sexual minority settings where certain forms of ambivalence that are often obscured within dominant consent frameworks are made salient. The article’s contribution lies not only in empirically documenting ambivalence and revisiting its meanings but in explaining how it is produced. What emerged from the data is a portrait of sexual life in which ambivalence is neither an aberration nor a failure of communication but a structuring – and, at times, generative – feature of consent negotiation. This reframing complicates accounts that cast ambivalence as primarily suppressive or as a residue of compromised autonomy. And it opens conceptual space for understanding gray zones as potentially productive of erotic possibility and agency, even as they also carry the risk of producing harm.
By analyzing the temporal and spatial dynamics of these gray zones, the article draws attention to dimensions that remain comparatively underexamined in socio-legal theories of consent. Doing so helps reframe longstanding dilemmas surrounding presumed consent and its processual structure, including the challenges of consent renewal and reversal. Importantly, by adopting a dialectical sensibility perspective, it also invites new understandings of sexual encounters in which risk and desire, agency and vulnerability are dialectically constitutive rather than opposed. Engaging with these tensions demonstrates that the limitations of the prevailing consent paradigm may lie not exclusively in its binary structure but also in the assumption underlying that structure: namely, that sexual meaning can be fixed independently of the spatial, temporal, and communal conditions through which sexual interactions might unfold. These tensions become especially difficult for consent doctrine to resolve when the norms structuring ambivalence are, themselves, tied to forms of community belonging and sexual culture. The question of how criminal law, with its categorical demands, should evaluate sexual harm extends far beyond the sexual minority setting chosen for this particular inquiry. More broadly, our analysis suggests criminal law can accommodate dialectical experience at the interpretive stage – by allowing a more context-sensitive assessment of the conditions under which consent is produced and inferred – but only within limits, given its adjudicative function and the determinate categories that criminal liability requires. Consent exemplifies this broader tension. It remains indispensable because criminal liability requires sufficiently determinate thresholds, even when sexual experience is ambivalent – yet, the very qualities that make it legally workable also limit what it can capture. Our aim is to illuminate this tradeoff and to argue that it must operate alongside interpretive sensibilities capable of registering the dialectical conditions through which sexual meaning takes shape.
Acknowledgements
This article benefited from comments provided by Zvi Triger, Rivka Weill, Andrew Gilden, Orna Alyagon-Darr, Yael Rimer Cohen, Adi Youcht, Ben Ohavi, Alon Shilo, and Hadas Raichelson. We thank Linor Levy for her research assistance.
Conflicts of Interest
None.
Appendix A: Sample characteristics
This appendix summarizes the demographic characteristics of the 48 participants interviewed for this study, as explained in the section entitled “Methodological approach and study design.”
Appendix B: Coding categories and thematic structure
This appendix sets out the 11 analytical categories developed inductively from the codes generated during the coding process described in the section entitled “Methodological approach and study design.”
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