In October 2014, while we were at the Anarchafeminist Conference in London, we visited Feminist Fightback during one of there meetings at the Common House. A lot of interesting things take place there. In the same building, you can e.g. find London’s Plan C. So we took one of their bamn magazines, in which Tanya Serisier’s article ‘Is Consent Sexy?’ was published, with us.
German (queer)feminism often combines the fight against sexual violence with the ideal of ‘consensual’ sex. We even have a banner that says ‘We love consent’ 😉 Apparently, this is the case in English-speaking contexts, as well and those debates also have an impact on ours. Serisier criticises ‘the’ concept of ‘consent’ from a feminist point of view.
Reading her article, our wish to ‘import’ such debates (this also applies to articles about safer spaces,…) grew. Perhaps this can help to stop German debates from going round in circles or getting stuck in the same discussions over and over again – which is why we translated Serisier’s article.
Translating texts is, however, quite a lot of work and often one of the first things to be left undone, when there’s a lot going on (just have a look at the things that have been going on in Dresden over the last months…). This article took us half a year. If you speak German and English (or any other languages) and are keen on helping us with translations, let us know. Anyway, here‘s the German translation and this is the English original:
Is Consent Sexy? (Tanya Serisier)
‘Consent is sexy. Sex without consent is rape.’ This slogan comes from a US-based campaign (consentissexy.org) targeted at university students and aimed at promoting a ‘culture of consent’ on university campuses. But the slogan could easily come from any number of campaigns aimed at reducing sexual violence and changing sexual behaviour. The political logic of this campaign is so commonplace in countries such as the US and the UK that it is essentially a form of ‘common sense knowledge’ or even a hegemonic truth, broadly shared across the political spectrum. This logic is, mainly speaking, that rape – defined as sexual activities that one of the parties does not consent to -is a terrible thing and should not occur. Therefore, what we need to do is promote, socially and culturally, sex that is the opposite of this illegal, harmful and unethical sex. Following from legal definitions of non-consent, consent becomes the primary criterion for judging good, ethical and even ‘sexy’ sex.
The good intentions of the ‘consent is sexy’ campaign and others like it cannot be denied. Forty years after second-wave feminists first drew attention to rape as a political issue, coercive and unwanted sex is tragically and inexcusably common in our societies. The legal system systemically fails survivors of this violence and social stigma, silencing and victim-blaming remains widespread. Yet perhaps the most accurate description of current social realities is that sexual violence in the abstract is universally condemned, while actual instances of forced and unwanted sex continue to be excused, justified and normalised.
Taken together, however, the lack of success of legal reform or cultural change in diminishing rates of sexual violence or changing the stigma surrounding survivors should be cause to question the way that we respond to this violence. Particularly, we need to question whether ‘consent’ is the only or the best way of distinguishing between acceptable and unacceptable sexual encounters and behaviours, or of implementing a new and better sexual culture. In such circumstances it is absurd not to question the tactics and ideas that have so far failed to help us. We need to stop pinning all our hopes on consent, when it does not and, I would argue, cannot live up to our expectations. The argument of this article is simple. The concept of consent does not and cannot help us to eliminate rape or unwanted and undesired sex. It doesn’t help survivors of sexual violence to achieve justice or to redress the harms that have been done to them, and it doesn’t provide a basis for a liberatory or radical sexual politics. The reason for this is found in the history of consent and the way that history helps to shape the limitations of its contemporary application.
Consent, as it is used in relation to sex, is originally a legal concept found in contract, tort and criminal law. It involves an agreement between two legal persons, autonomous, consenting individuals, in which one agrees to the other doing something that is potentially or actually injurious to them. A classic example is consent to medical treatment which involves potential or actual negative side effects or the risk of injury, illness or death. The patient’s consent removes, or at least lessens, the doctor’s culpability for any harm that arise out of the treatment and transforms the patient from a potential victim into a consenting party. Classic consent theory only applies to unpleasant, harmful or risky acts. It makes no sense to ‘consent’ to something pleasant or beneficial. Consent theory also explicitly ignores structural sources of coercion or inequality that may mean an individual’s choice to consent – or otherwise – is largely illusory.
Prior to the Nineteenth Century, this legal notion of consent was not really applied to cases of rape or other sexually based offences. Women’s sexuality was highly regulated by the heterosexual marriage economy and women’s bodies were seen as property to be transferred from father to husband. The crime of rape was, primarily, a crime against these rights of property and as women were not seen to be fully competent liberal individuals, their consent – or lack thereof – was largely meaningless. Proof of rape was measured almost exclusively through evidence of male force and female resistance or incapacitation. Otherwise, women were often held to be culpable for their own devaluation.
Consent gradually became legally important to sexual relations in the late Nineteenth and early Twentieth Century, as a response to the growing economic and sexual independence of women. Women were increasingly asserting their legal personhood. This was expressed most famously in the suffrage movements, but they also sought to establish their sexual independence in cultural phenomena such as the ‘new women’ movements of the 1920s. Such moves, however, provoked a social and legal backlash, expressed through disapproval and the disciplining of immoral and promiscuous women, who could be subject to punishment for ‘prostitution’ regardless of whether there was a commercial element to their sexual relations. But it was also expressed through a discourse of ‘protection’ for women, who were presumed to be unable to know their own interests or to be particularly vulnerable to moral corruption. The first legal statutes that connected consent and sex in the US were designed to regulate the ‘white slave trade’, a shadowy system believed to be luring or coercing women across national borders and then, far from family and friends, into sex work. In rhetoric that is strikingly similar to contemporary discussions of ‘trafficking’, lack of consent was used as a marker of women’s legal status as victims and of their need to be rescued. Essentially, the legislation worked to deny the possibility that women could consent to participate in sex work, arguing that women’s participation could only result from coercion or brainwashing. Such a notion of consent was then expanded to miscegenation, again often defined as something women could not possibly consent to and thus often legally defining men of colour as rapists simply for having sex with white women.
As women gained increasing legal recognition as persons and also continued to demand and enact their own sexual autonomy, consent came increasingly to govern laws around sex and sexual violence. At the opposite end of the sexual spectrum to sex work or cross-racial sex was sex in socially sanctioned intraracial marriages. While women were deemed to be unable to consent to the former sexual acts, they were legally defined as always-already consenting to sex within marriage, regardless of their desires or wishes. The courts continued to rely on Seventeenth Century jurist Matthew Hale’s warning that ‘rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent’. In practice then, women were presumed to be consenting (although lying about it after) and proving ‘non-consent’ generally required extensive evidence of force and resistance as well as corroboration. The only exception to this was if a white middle-class woman alleged rape against a black or poor man. In this case, she was far more likely to be presumed to be non-consenting. If the man was rich and white the courts were highly unlikely to recognise any evidence of non-consent by a woman, particularly if she was poor or a woman of colour.
Far from the ideal of autonomous consenting selves then, the history of sexual consent has been less about what women want than the social roles they are expected to fulfil. The feminist political theorist Carole Pateman describes women’s history with consent this way:
Women exemplify the individuals who consent theorists have declared are incapable of consenting. Yet, simultaneously, women have been presented as always consenting, and their explicit non-consent has been treated as irrelevant or has been reinterpreted as “consent”.
The application of consent theory to sex entrenched a number of social facts around women’s sexuality. Sex itself was defined as something that men do to women and as an act that women merely accept or tolerate. The acceptability or otherwise of men’s sexual actions was not defined by women’s desires, but by their relative social position and power. Women’s choices around sex, even narrowly defined as the choice to consent or not, were consistently overwritten by legal and social definitions of appropriate and acceptable sexual behaviours. Far from empowering women, the application of consent to sex was primarily a way of regulating and controlling women’s sexuality.
In the late 1960s second-wave feminists began to confront the fact that rape was not only epidemic, but also largely socially and legally accepted. Early feminist activism around this issue took place in a wider context of feminist assertions of women’s rights to bodily integrity and sexual agency. These campaigns sought to challenge the assumptions behind the way that consent theory had been applied to sex. The question of rape law reform was highly controversial within feminist anti-rape activism, with many women asserting that the law could not be used to empower or even effectively protect women. However, given the severity and urgency of the problem, law reform was increasingly embraced as necessary in the short term, even if it did not ultimately solve the problems of legal paternalism and the regulation of women’s sexuality. Similarly, the slogan ‘no means no’ was a direct response to the fact that women’s and desires were consistently erased and ignored in the definition and judgement of sexual violence.
As the wider feminist movement fell away, however, feminist contributions to the politics of sexuality became more and more concentrated around rape reform and the right to say ‘no’. The result was that feminist movements ended up cementing consent as the primary means of differentiating between good and bad sex. Perhaps more importantly, feminist campaigns for social and cultural change exported the notion of consent from the courtroom into the wider social and political milieu. The decision to work with the model of consent is understandable. Cultural, social and legal recognition that ‘yes means yes and no means no’ is undeniably better than the failure to recognise women’s voices or decisions regarding sex. However, it meant that feminist politics of sexual violence were unable to effectively contest some of the biggest problems of the consent framework, especially the understanding of sex as something that the masculine/active partner desires/demands/takes and something that the feminine/passive partner accepts/tolerates/consents to. This model of consent implicitly reinforces heteronormative notions that men pursue sex while women defend against it, forcing women into the position of sexual ‘gatekeepers’ rather than active and desiring partners.
The feminist ideal of ‘no means no’ also, in many ways, reproduces the blindness of liberal contract theory and the fictive liberal individuals behind it; individuals who know exactly what they want and say exactly what they mean. In reality, this is not how interpersonal interactions work or how people, and particularly women, express themselves. For example, in many Anglophone cultures, if someone is asked for a favour which they do not want to fulfill, they are far more likely to make an excuse, avoid answering the question or even reluctantly agree, than they are to say a direct ‘no’. Such tendencies are only magnified in relation to sex, a topic which is intimate, sensitive and even uncomfortable for many people and where additional factors come into play: gendered power relations, the desire not to hurt someone’s feelings and the desire to not seem like a prude, to name just a few. The ‘no means no’ model of consent in many ways forces an unrealistic conversational and interactional standard onto women.
In recent years there have been attempts to iron out some of these problems, both legally and socially. Courts in many common law jurisdictions including the United Kingdom have moved towards requiring defendants to demonstrate the existence or reasonable understanding of consent. Socially, a model of ‘enthusiastic’ or ‘affirmative consent’ has become increasingly popular within campaigns such as ‘consent is sexy’. This model replaces the classic negative understanding of sexual consent, ‘no means no’, with an insistence that real consent requires an active ‘yes’. Essentially, this model, put forward as a form of ethical sexuality asks for all participants to ask for a ‘yes’ before engaging in any sexual activity through questions such as: ‘Can I kiss you?’ The model is designed firstly to address the problem of assumed consent; that a lack of ‘no’ can be read as consent to sexual activity. Advocates of the model also claim that rather than positioning women as sexual ‘gatekeepers’ responsible for stopping or preventing sex it allows them to express and assert desire. Finally, it is claimed that it is a way of making consent ‘sexy’ by incorporating speech into the erotics of sex, such as as hearing someone affirm their desire or tell you what they want.
‘Enthusiastic consent’, however, continues to take consent as a given. This merely tinkers around the edges, rather than confronting some of the fundamental problems with it. The first problem is that it continues to reproduce the liberal fallacy around the freedom of contractual relations. It presumes that a verbal contract between sexual partners guarantees a fee exchange, without considering gendered power relations or interpersonal dynamics.
Proponents of ‘enthusiastic consent’ would probably argue that such a ‘yes’, given reluctantly or uncertainly for whatever reason is not ‘genuine’ consent. The reality is that a reluctant ‘yes’ is closer to the original and widely accepted meaning of consent: agreement given to an unpleasant or risky act, than the notion of enthusiastic consent. A reluctant ‘yes’ is not enthusiasm or desire. In fact, enthusiasm and desire that are very different from the notion of consent. The other problem here is that it shows the circularity of this model. If you ask someone if they want to do something and they say ‘yes’, you have little choice but to believe them. There may be clues. The ‘yes’ may be less than enthusiastic in terms of tone of voice or body language, but this can quite often be ambiguous or unclear. The point is that the power relations or preconditions that shape ‘consent structure the whole interaction. Simply having a conversation that involves ‘yes’ or ‘no’ questions, may, far from avoiding these power relations, actually obscure and enable them.
Neither does this model of ‘yes’ or ‘no’ consent challenge the heteronormative presumption of an active partner pursuing sex from a gatekeeping or reluctant passive partner. Asking different questions, such as ‘what do you want me to do?’ does alter this dynamic, but strictly speaking it moves outside the framework of consent. Such a question presumes that consent already exists and begins to get into the territory of desire. While this is a positive move, as a guarantor of consent it remains within the logic of the verbal contract, the idea that asking and answering direct questions not only removes coercion from sex, but that it is the only or best way to have ethical sex.
The enthusiastic or positive model of consent risks imposing a new form of normativity around sex. While ‘no means no’ sought to stop bad sex, it left open the possibility of what good sex might look like. The enthusiastic consent model, on the other hand, proposes that a verbal contract model of sex is the best – or even only – way to have good sex, implicitly devaluing other forms of sexual practice or sexual communication. The point here is not that consent or asking about consent can never be sexy, S/M practices that play with consent show that this is clearly not true. But consent is not inherently or automatically sexy, nor is it an automatic guarantee of good sexual ethics or risk-free sexual interactions. The assertion that this kind of consent is the model of both ethical and sexy sex presumes there is something wrong with people who do not behave in this way. In this way, it promotes the idea of the contractual sexual encounter and the liberal sexual actor as good sex. It insists that sex would be good if we could all just become the kind of autonomous actors who know what they want and say what they mean. At its worst, this model risks labelling people who fail to live up to this ideal either as incompetent sexual actors, or partly to blame for their own victimisation.
A second, more insidious, consequence is that it normalises the contractual model as the best, or only, model for ethical engagement between human beings, a model that is blind to both structural oppression and inequality and also to the messiness and irrationality of much human interaction.
It is also based on an unrealistic and limited model of human interactions. Unlike liberal contract theory, our wishes and desires are not always simple, straightforward or clear and we do not always know where they may lead. This is illustrated in many familiar sexual situations, such as beginning sex when you are not sure if you want to, but you might enjoy it, or feeling nervous about attempting a possibly painful or uncomfortable sexual act for the first time. These situations all involve risk and potential discomfort. At the very least they mean embarking on actions when the outcome is unclear. In this way, they are not that different to sexual encounters in general. Sex, like all human interactions, involves a paradox of intimacy and distance. All sexual interactions involve physical intimacy and many also involve emotional and mental intimacy. The vulnerability that this leads to is exacerbated by the fact that other people are never fully knowable to us. We can never be entirely sure of what they are thinking, feeling or what they are about to do. There are a myriad of ways that you can be hurt by another person, especially someone you are intimate with, just as there are a myriad of ways that person can bring you joy. Both of these things can take you by surprise. When it comes to sex, our feelings of pleasure and pain are particularly pronounced, particularly intimate, and we recognise this both in the special status of sexual intimacy in our social relations and the particular condemnation that we make of sexual violence. Enthusiastic consent models are blind to the risk involved in all sex, including fully and enthusiastically consensual sex. Verbal contracts cannot remove this danger and it is mistaken to attempt to impose a model of ‘good’ sex as the only sex that meets a rational contractual standard or that only involves enthusiastic and straightforward desires. The riskiness inherent in sex is something that any sexual ethics must grapple with.
Much of the appeal of the consent model is, I think, to do with the lack of alternatives or a fear of what the alternative might be. We have largely come to accept that consent is not only the best model of sexual politics that we have but also the best that we can hope for, at least in our current society. Such claims are in part based on the real risk that to challenge consent is to challenge one of the only existing tools for challenging coercive sexual behaviour.
However, the fear of moving beyond consent can work to blind ourselves to the dangers of sticking with it. The consent model, legally and socially, has not worked to lessen instances of unwanted sex or to improve the experiences of individual victims and survivors. The legalistic and contractual aspect of consent means that consent continues to be retrospectively read onto sexual encounters regardless of the claims of survivors. Consent does not and cannot do the work that we want it to do and refusing to recognise that brings us no closer to changing dominant sexual cultures or politics.
What consent offers us is not a political tool for contesting sexual politics, but a fantasy that there is a single, regulatory or rule-based solution to the messiness of sex and its potential for harm and hurt. But the complex web of intimacy, vulnerability, desire, joy and pain that constitutes sex and carries with it the potential for real harm and the possibility that we could harm other people cannot be tamed with either the word ‘yes’ or the word ‘no’.
The problem of sexual violence is political. It is deeply enmeshed in histories of gendered power dynamics, heteronormativity and the regulation of sexual behaviours. Any solution is therefore political. The choice is not consent or nothing, or consent or danger, but a choice between the falsely simple solutions of liberalism and a radical political project that is prepared to engage with the root problems of sexual violence in our societies. These problems include, amongst other things, the uneven distribution of power between men and women in almost all areas of life, the coercive gendered norms of dominant models of heterosexuality and the ongoing public/private dichotomy that sees sex as somehow separate from the rest of our lives. Such a political solution should not only reject the false solutions of consent theory, but also the paucity of its promises. The notion that consensual sex is all we can aspire to is one that we should vehemently reject. The sex that we fight for should be wanted, desired and joyful, not merely consented to and it is this possibility that rejection of consent allows us to consider.