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Affirmative Consent

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"Why are we fighting this so hard?" he asks her. "It’s not doing us any good."

Between the power outage and candles, her flat tire, and the broken water main that closed the street in front of her apartment, it’s almost starting to feel like some cheesy screwball comedy.

"Why are we—?"

"It’s not working," he says. "The more we try to be adults, the more, something—God, Fate, I don’t know—the more we get—"

"I know," she says. "So what do we—?"

"Come upstairs with me," he says. "We can be adults, or we can act like high schoolers, but you can’t get home tonight anyway, and the universe seems to really, really want us to… "

"Okay," she says. "But just this once."

"Yeah?" He doesn’t quite believe it, and he arches his eyebrow at her, surprised.

"Yeah." She’s grinning at him, and she looks like she’s twenty years younger than she is, like she’s conspiring to pull some kind of prank, and he almost kisses her, right there in his car.

He doesn’t, though, he just nods. "Okay then," he says.

"Just this once," she adds, trying to keep pace with him in the stairwell.

"Just tonight," he confirms.

"Right," she agrees. "Just tonight. Except—"

"What?" He’s pretty sure she’s going to explain all the reasons why even one time is probably one too many.

"Except that it’s already after eleven, and—" That’s the thing about her. He loves that he gets her wrong, sometimes.

"And what time does tonight stop being tonight?" he asks.

"Exactly." The thing is, he thinks he likes it when it gets her right even better.

"Two forty-seven," he says, after a moment.

"Why two forty-seven?" she’s grinning again.

"Why not? Unless you think it should be later. Or earlier."

"No, no, it’s fine, it’s just– I can’t get back into my apartment, so I’m, what, sleeping on your couch?"

"Oh, right, I forgot. My alarm goes off at six-thirty, so, six-thirty?" he suggests.

"Six," she says. "If we can stop to can pick up my dry cleaning, on the way into work, I can get dressed in the office—"

"Of course," he agrees. They finally get to his floor and she pauses in the hallway to catch her breath while he reaches for his keys. "Are you going to want to shower, in the morning? Because I only have the one, so if you need to shower too, maybe five forty-five?"

"Five thirty-five," she suggests. "I have more hair than you do."

"Want a drink?" he asks, after a moment of awkward silence, standing in his living room.

"God yes," she says. "Except—"

"Right." He frowns.

"Is there an exception?" she asks. "Because tonight’s the exception, so—"

"Yes. Right. Good!" He grins at her.

"Should we be writing this down?

"Yes!" He grabs a notepad and a pen.

"Just tonight, and tonight ends at five thirty-five," she starts.

"Hold on— Alicia Florrick and Finn Polmar, hereinafter—"

"Alicia Mildred Florrick," she corrects.

"Mildred?" He gapes at her, laughing. "What the hell kind of a name is Mildred?"

"Ask my mother."

"Alicia Mildred Florrick and Finn Matthew Polmar, hereinafter 'the parties', hereby agree that the terms set forth as follows shall constitute the entirety of the understanding and agreement between the parties. This agreement, including the preceding sentence, shall be, hereinafter, referred to as the 'agreement.' The agreement shall be valid only on the night of the 23rd of November, 2014. For the purposes of this agreement, 'the night of the 23rd of November' shall mean the period of time commencing at 11:13 pm on the evening of November 23rd, 2014, and terminating at 5:35 am on the morning of November 24th 2014."

"Good. The parties further agree that— "

"Hold on, I can't write that fast—" he gets up and grabs his laptop, opens Word and starts typing. "Further agree that the conduct governed by this agreement shall include—"

"Sex," she says. "I mean, we are talking about— right?"

"Yeah, but I feel like we should include foreplay, too, right?"

"Shall include physical contact up to and including sexual intercourse?"

"'Physical contact’ shall be defined to include contact between the bodies of the parties, including hands, mouths, genitals—'"

"Tongues," she interrupts. "Get tongues on the list." She laughs, nervous, and Finn’s eyebrows shoot to the ceiling.

"Tongues," he says. "Definitely tongues."

"Right, good." She hesitates. "One time," she adds. "I mean, we said we were doing this once, right?"

"Yeah, but how are we defining 'once'?" he asks.

"The conduct governed by this agreement shall include physical contact, including but not limited to, et cetera — The list should be non-exhaustive, right? — Should sexual intercourse occur, it shall occur once. For the purposes of this agreement– Do we want to organize this with a separate definitional section?"

"Maybe. For the purposes of this agreement 'once' shall mean 'one time, culminating with the mutual satisfaction of both parties—"

"However, both parties shall, with the consent of all parties, possess an option to extend the meaning of 'one time' to include multiple times."

"Both parties shall possess an option to extend, et cetera. Exercise of this option shall require consent of all parties. Your way, it could be interpreted to mean that consent was required for possession, not exercise, and—"

"No, you’re right, that’s good."

"At the termination of the agreement, the parties agree that they shall continue to occupy the same bed, unless either party believes that the circumstances are such that the sofa would be preferable," he continues, typing as he reads.

"This agreement may be terminated at any time by either party, with no requirement for just cause— No, strike that — Either party may terminate this agreement at any time and for any reason or no reason at all. Termination shall be effective upon the terminating party providing notice to the non-terminating party that the agreement is to be terminated. Upon termination of this agreement, all physical contact between the parties shall cease immediately. Notice may be provided via oral or written communication, or by any other appropriate means."

"Termination of this agreement does not preclude the parties from negotiating any future agreement, including one which involves cuddling, which shall be separate and distinct from this agreement," he adds. "I like cuddling."

"I don’t think that’s necessary," she says. "I mean, I do too, but I worry that expressly including cuddling could be interpreted to preclude future agreements that don’t involve cuddling."

"Hmm, good point. No express inclusion for the ability to negotiate for cuddling."

"Termination of this agreement shall – you want to be consistent— shall not preclude the parties from negotiating additional agreements, which shall be separate and distinct from this agreement."

"Good. Do we want a severability clause? If any court or competent authority finds that any provision, or part of any provision, is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall–"

"No," she says, and she’s laughing so hard that she’s afraid tears might start rolling down her cheeks. "This can’t end up in court—"

"Neither party to this agreement shall file, in any court of law, any action to enforce this agreement, in whole or in part. The parties agree to resolve all disputes arising under this agreement exclusively with the other party. No party to this agreement may involve any third party in its execution, enforcement, or termination, or in resolution of any dispute arising under this agreement."

"This is ridiculous," she admits.

"Well, yeah," he says, and he laughs.

"Let me see it," she says, and she moves behind him, rests her chin on his shoulder as she reads. "You know what we’re missing?"


"Protection," she says. "I have an IUD, but…."

"The parties agree that a condom shall be employed prior to any genital-to-genital contact," Finn reads aloud as he types. "Said condom shall be provided by Finn Matthew Polmar. That's easy."


"I just assumed, I mean—"

"No, it’s good, I just—"



They’re both quiet for a moment, unsure how to proceed, when he says "I'm out of toner. For my printer. So a digital signature line?"

Alicia nods. "We’ll have to," she says. "Unless…."

"Having second thoughts?"

"No!" I mean—"

"You are."

"I’m not."

"Okay. Then…?" He waits, and he knows it’s coming, but her chin is still against his shoulder.

"I just— It’s probably unenforceable."


"And there are probably ethical rules that disallow it," she continues, and he thinks she’s cute when she flails and babbles like this. "Writing and signing a contract you know to be invalid."

"Competence, issues, maybe. Or misrepresentation problems."

"At the very least, it would require putting our names on a document we know to be legally inadequate."

"It might compromise our own professional standards."



"So we shouldn’t sign it," she concludes.

"Right." It’s a logical conclusion, really, as illogical as the whole thing is.

"I should go."

"Oh?" He tries not to be disappointed, because it’s not like he ever really thought that it would happen, but—

"I mean— We really shouldn’t."

"Right. We shouldn’t."

"I can sleep in the office," she says. "Or get a hotel room. People get hotels."

"I can take the couch, if you want to—"

"No, no, I’ll—"



That’s when she kisses him.