The Inadequacy of Sexual Consent?

Earlier today, I fell down one of those Internet rabbit holes reading reflections about the Aziz Ansari story. (I confess to having previously had no idea who he was.) In truth, I jumped in myself, once I realized what was really at stake here, since it's something in which I've been increasingly interested myself over the last couple years. The best piece I read was by Amanda Alcantara, on The Lily. Here's the crucial bit:

[This] story...pushes us beyond the parameters of what we've been saying about consent: That "no means no", or to seek an active "yes". This form of teaching consent focuses on feelings of power during intimacy. It's a response to a request—"will they let me have sex with them?"—rather than seeing sex as something mutual. The question should be, "Do they want to have sex with me?" That is essentially where this conversation lies. Is consenting about "wanting" or about "letting"?

That's almost right, I think. But the real lesson, which seems to run just under the surface of a lot of these discussions, concerns the limitations of the notion of consent. In fact, this is not a new idea. See this piece by Rebecca Traister in The Cut, for example. But perhaps it's an idea who time has come.

The problem with the notion of consent, I want to suggest, is that it is basically a legalistic notion. It's well-enough suited to helping us distinguish legal sex from criminal assault. But it has turned out to be very ill-suited to helping us distinguish ethical sexual interactions from unethical ones, even when it's prefixed with "affirmative" and "enthusiastic". Think about the kinds of things to which we consent: Surgery; having your car (or person) searched; having private information shared. In short: You consent to violations. Paradigmatically, consenting is indeed about letting.

But surely sex shouldn't (morally, ethically) be like that. If someone "gets consent" and then goes about taking their pleasure with absolutely no concern whatsoever for the experience of their sexual partner, then the mere fact that such sex is legal doesn't make it right. It's still a shitty thing to do to someone. It's just using them, and it makes them feel used and disregarded and awful. (See this piece on Feministing from a few years ago.)

It is already very dangerous if sex is conceptualized in terms of 'letting'. That is about half a step away from thinking in terms of pursuer and pursued, predator and prey. But the truth is that this model of what (heterosexual) sex is runs deep.¹ Sex is something women have and men want. Sex is something men do to women and women do for men. Sex is something for which men ask and to which women consent (or not).

In the piece from The Cut I mentioned above, Traister quotes Maya Dusenbury, then editorial director at Feministing, as having suggested that feminists need "to put forth an alternative vision for what sex could be [but] isn't". But, unless I'm missing something, there has been far too little discussion of what an alternative model might be like. At least in the popular press—and the discussion around the Ansari story is as good a reminder of this as any—people still try to parse it all in terms of consent. That just the lines again between what's criminal and what's decent: As long as there was consent, it's as if anything goes. But it doesn't.

In a way, what most struck me (and what was most depressing) about even the best pieces I read is the fact that no-one seems aware that a really impressive discussion about this topic has been going on in a number of different circles recently. There are lots of resources on which to draw here.

There's a wonderful piece by Thomas Macaulay Millar in Yes Means Yes that takes up these issues. He rails against what he calls the "commodity" model of sex and proposes instead a "performance" model, which analogizes sex to a jam session (an idea wonderfully developed in this video by Karen K.B. Chan). On one level, what Millar is trying to highlight is just the importance of mutuality. But the real question is what that means, and on that issue Millar is not as explicit. The beginnings of an answer are implicit in the jamming analogy: Mutuality requires a sensitivity to another's experience, a modulation of one's own activity in response to that sensivitity, and so forth. But there's a lot of work still to be done developing the theoretical tools we need to discuss these things sensibly. So I'm going to gesture in the direction of some of that.

Most fundamentally, "ethical" sexual interactions require a full appreciation of the other's subjectivity, and it's far from clear what that actually involves. I'm inclined to think that Jessica Benjamin's notion of 'recognition' could prove invaluable here, but this is a really difficult topic.

The philosopher Ann Cahill has done some really good work on sexual ethics. See, for example, her papers "Recognition, Desire, and Unjust Sex" and "Unjust Sex vs. Rape". Cahill herself draws heavily on work by the psychologist Nicola Gavey, whose book Just Sex is required reading for anyone interested in these matters.

There's also been some really interesting discussion recently inspired by the paper "Faking to Finish", by Emily J Thomas, Monika Stelzl, and Michelle N Lafrance. The paper highlights, more than anything, the lack of an adequate vocabulary for people to articulate sexual experiences that don't constitute rape or assault but are nonetheless experienced as not really wanted. (For an early attempt to articulate that distinction, see this paper by Zoë D. Peterson and Charlene L. Muehlenhard.) Indeed, Thomas et al aren't quite sure what to call the sorts of interactions in which they're interested, settling upon the neutral term 'problem sex'.

There are some terrific commentaries awaiting proper publication, including this one by Hannah Frith and this one by Melanie Beres, both of whom have been poking around in the same area for some time. There's also a fascinating follow-up by the original authors, in which they reflect on their experience discussing these things with the press. They remark that "... many pieces reproduced the very problem our article intended to clarify, collapsing all negative experiences of sex
into either 'rape' or 'just sex'...".

At some point, I hope to wade into this territory in my own work. For now, though, I'll be satisfied if I can just bring the great work that is being done to wider attention.

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Minor update: "Any conception of sex that doesn't also consider, and consider very carefully, how our actions in the bedroom affect each other—even if we don't want to marry one another; even if we're super sex-positive poly bad-asses and don't believe in marriage; even if we don't know our partners' last names—is bad sex. It's not about being touchy-feely-romantic. It's about being socially just and emotionally respectful." (Reina Gattuso)

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¹ I'll limit my discussion here to heterosexual sex involving two people. Such dynamics also play out in other sexual interactions, to be sure, and I'm sure there is much to be learned from studying them. But that's not a topic on which I'm qualified to speak.