The Joy of Consent
Thorough Outline
The Joy of Consent: A Philosophy of Good Sex
By Manon Garcia
Introduction:
The way we (meaning society generally, not our friend group) think approach consent is vague. For example, when we agree to enter a hotel room together, the folks entering might have different ideas of what they want to happen next, or what the agreement to enter the hotel room means.
This touches upon a false idea: “non verbal consent”, that is, that sexual activity was agreed upon by entering the room together.
Different groups have different ideas about how this type of “agreement” might work. For example, in one Scandinavian country (I believe Norway), Syrian refugees are enrolled in courses to understand the new culture they are entering. In their home country, many were taught that a woman in a short skirt was “asking for it”, and the onus fell upon women to not wear short skirts…which isn’t true in Norway.
Another type of “agreement” might be behavior that expected after sexual activity, eg., if a man said he was looking for a relationship and withdraws after sex, or turns controlling and/or violent post-sex.
The book is fairly cis-heteronormative in its explanation of consent and sexual activity.
The law doesn’t dive into consent in this way - rape is legally defined as “penetration, however slight…without consent”. There’s a different between the law and what our morals dictate.
And the morals of different groups are different. For example, some people will argue that Harvey Weinstein or Donald Trump’s victims were asking for it, or “that’s just how rich men are”.
About 75% of survivors know their attacker according to RAIN, and 33% are a current/former partner. In France, 91% of survivors do.
What is the distinction between rape and non-consensual sex? Does mens rea (intent) factor into it in your opinion? It does in US law. What about the victims’s response - eg, is it “not rape” if she doesn’t fight back?
I think we’re all at least a little familiar with “fight, flight, freeze, or fawn” responses.
On California campuses, consent is “affirmative consent” (yes means yes, not no means no) by law. This signals mainstream/wider adoption of consent as going beyond “no” or fighting back. This predates #metoo (2014).
The author “rejects a neutral analysis of consent, which argues that men and women can consent to sex in exactly the same way…” because of the effect of male domination on society as a whole. She also states that discussions around consent reflect women’s liberations.
So again, this is fairly cis-hetero-normative, and I feel that it’s where her approach falls flat. Unfortunately, one of four NB folks will be sexually assaulted in their lifetime, whereas one of five women will be (and one out of thirteen men). Consent and consent violations aren’t simply a male-female issue.
Antioch College adopted an affirmative consent policy in 1991.
Which means that the notion of affirmative consent isn’t new, and has been around as long as most of us have been sexually active.
Saying Yes to Sex Is Not Like Saying Yes to a Cup of Tea
Sexual consent is a subcategory of consent. If we understand it this way, then we draw upon political, legal, and philosophical consent to inform our views of sexual consent.
A General Definition of Consent: to consent is to give somebody one’s agreement on something. One cannot consent alone. Lawyers and philosophers agree taht consenting gives someone a right that they would not have in the absence of consent.
In most of the sexual assaults I’ve “dealt” with, the person who did harm seemed to believe that they had the right to this right. In some rare circumstances, they mistakenly believed this.
In a study I quote often - by Lisak - when college aged men were asked if they continued with sexual activity despite a lack of consent, many men said that they did, but refused to call it rape. I’ve spoken to other people who “deal with” abuse/assault and have found similar patterns through their dealings.
Three Domains of Consent: law, politics, and interpersonal relationships.
Consent is, at its core, analogous to the ideas that underlie legal contracts, eg, a person must be “of sound mind” to agree to a contract or to consent to sexual activity.
There are at four problems embedded with the problem of political obligation:
The limits of the obligation (when, when not?)
One question that arises with what I do is: what standards are folks in a community held to outside of their participation in the community? So, for example, if two people met in the community, but one of them assaults the other after a date, does that violate the policy/agreements of the community, and if so, how does the community act upon that? What if a member of community assaulted several people prior to joining the community?
Garcia dives into the concept of the social contract. We can apply this concept to the social contract of a defined community, eg, in agreeing to participate in/be a member of a defined community, you agree to follow the morals of that group outside of the times you are active in the community.
The locus of sovereignty (who must you obey?)
The difference between legitimate authority and mere coercion
How would you apply this thought to sexual consent? What constitutes coercive/manipulative behavior? How would that impede consent?
The justification of the obligation
The Ambiguities of Sexual Consent
“Consent is both the will of each contracting party and the agreement of their wills,” Jean Carbonnier
What is the intent of the parties? What is the action?
Do we focus on intent, or how people reach an agreement, how that agreement manifests, and how they communicate?
Another ambiguity: choice and acceptance.
Eg, two people willing coming together to form an agreement (choice) versus someone making an offer and another person accepting it - the latter is acceptance and it is more passive.
Sexual Consent is not about Contract
For example, if you sign a contract, you are obligated to whatever you agree to do under that contract. However, if you consent to sex Friday, you may still change your mind on Saturday (Richard Posner).
You have a “unilateral and discretionary right of withdrawal” IRT sexual consent.
You can change your mind about sexual activity at any time, including during the act.
She also tries to draw a distinction that consent violations are criminal versus contracts are civil
Sex is special:
How Does Consent Make Things “Good”?
Sexual consent and affirmative consent are still controversial, but support for the concepts is increasing, eg, the California campus law, Germany’s 2016 redefintion of rape “against the recognizable will of the victim”, and Sweden’s 2018 Act defining rape as any form of sex without consent (this makes the definition more gender-inclusive than ours in the US).
“Consent is perceived as a silver bullet: it is the only way to prevent rape…”
I personally disagree with this notion. Many harm doers know they did not have consent, but continue to violate consent even while acknowledging they were aware of the lack of consent.
Liberal tradition (John Stuart Mill) versus Kantian tradition. We are using a more liberal tradition, but we want to use incorporate Kantian perspective, which will allow us to justify the emphasis on consent.
The Right and the Good:
Is consent “moral magic”? That is, sex with consent is just sex, sex without consent is rape? With consent, it is “good”, “right”, and without, “bad”, “wrong”? The liberal tradition gives us this.
The Kantian tradition goes one step further: that consent is crucial to pursuing good sex. If we want to have good sex, we need to think about and have full consent. This includes mutual desires, equal “will” in engaging sexually (eg, no manipulation, lying, coercion, harassment, external pressures).
[skipping over thoughts on whether thinking about consent and sex in moral terms is “Puritanical”, this relates to the European view that Americans are “Puritanical”]
Moral Analysis Comes First
Laws stem from morality.
The repression of rape was motivated by men’s will to ensure “their” women’s bodies would not be used by others
The earliest thoughts of laws around rape viewed women as property: if a woman was raped, her body was devalued by the rapist. The property “owner” was either her father/male guardian (pre-marriage) or her husband (post-marriage).
Moral Intuitions:
Nonconsent is not - in and of itself - a sufficient consideration for rape. It is a necessary condition for sex to be permissible.
So: what else makes sex rape?
Consent is necessary for sex to be morally good.
Some argue that consent is sufficient for sex to be morally good (most don’t)
Can you consent to give up a right?
Sexual consent as a special case of consent, one in which one gives up the exclusive right to use of one’s property - giving up right to not have the other person(s) touch you sexually.
Until 1974, marital rape was legal in EVERY state. This meant that one gave up the right to say no to one’s spouse through the act of marriage.
Liberal/Utilitarian views: when making a choice, you decide if the choice is “good” or “bad” based on how it contributes to your happiness - and happiness is the tool by which “utility” is measured. The only reason your choices might be curtailed is if they have adverse consequences for another individual. Consent is the manifestion of individual freedom.
The problem with this is of course that it is: individualistic, focused on interactions between individuals, and not based on the notion of a broader community or communal good. Consent violations usually impact more than just the person violated - they have rippling effects throughout the community.
According to Mill, consent must be free, voluntary, and undeceived. Consent is a formal and formally valid agreement that generates permissions.
One question I’ve often pondered is: is consent truly voluntary in when one feels pressured by the environment or community to engage sexually? For men (I’ve heard), you might feel inferior if you’re not getting lots of attention at a party. For me and other women, it manifests as a sort of pressure to engage with more people sexually, that you’re seen as somehow “uncool” if you turn down opportunities for sex. How can communities - especially polyamorous/sex+ ones - work to undo these types of pressures?
Kant views consent as the expression of the autonomous will of human beings and thus, their dignity.
Kant: deontology. One acts because of one’s duty, not to make oneself happy. Duty is core to our social contract, and you can act with duty (eg, because it is beneficial to do so) or from duty (eg, because there is a rule/law that dictates your behavior).
Behavior should be universal, eg., it contributes to the greatest good if everyone behave X way, or if everyone behaves Y way, then things would become impossible (eg, if some people repeatedly violated consent in a particular community, participation in that community would become impossible for many, and the community might cease to exist).
The Kantian view acknowledges people as ends in and of themselves. Kant’s “formula of humanity” argues to never treat others “merely as a means”.
The formula of humanity requires having respect and love for others.
Mill’s definition addresses the basics for a defiition of consent. Kant’s definiton gets into the nitty gitty, it humanizes us, it looks at dignity and acknowledges the complexity of humans and of consent.
Normative Ambiguities
Garcia gives an example: “Chris” meets “Robin” on Tinder. Chris’s behaivor - affectionate, considerate, etc., implies that Robin might be a long term love interest. However, Chris only wants a one night stand with Robin. Robin agrees to sex with Chris under the pretext that he wants a longer relationship. How consensual was this?
“Hit Me Baby One More Time”
Aka, Kantian definition of consent through the lens of BDSM
Some people use contracts in BDSM, as a means of “guaranteeing” the consent of the other party, in modern parlance, but in earlier times, it was a tool for excitement and to address specific desires.
In many BDSM contexts, consent differentiates kink from sexual violence.
A safeword replaces “no”
A contract usually includes procedures and conditions for either party to end the scene/relationship. Contracts are usually negotiated.
Consent is seen as temporal: it can change over time, things someone agreed to may not feel consensual or good when actually doing them. Rather than addressing “surface level consent” - that the person who feels/felt bad technically consented, many kinksters would say the nonverbal and emotional is more important.
This is one reason post-scene debriefing is crucial.
Can you agree to being physically hurt? Garcia argues that BDSM is analogous to certain sports, like MMA fighting or football - these activities put you as physical risk
Human Dignity: does kink take away dignity?
Under British law, the principle of respect for human dignity overrides the consent of the parties, and kink is judged based on risks incurred not actual harm experienced.
Difficulties in establishing consent:
Sex is usually a private matter, between two people, with only those two as witnesses.
How do you establish consent when there is a severe power differential between the party(s)?
The concept of consent usually presumes that humans are rational actors not facing epistemic or emotional complications, that people are fully conscious and in control of their “will” at all times.
How might not being so affect consent and the perception that one’s consent was violated?
Sex is Political
The liberal view of consent can’t help us (1) discern sex from rape, nor (2) acheive greater sexual autonomy. This chapter gets away from the individual approach and toward a structural one in its view of consent and sexual pleasure.
Intimate relationships are shaped by the patriarchy, the sociopolitical system that organizes the domination of women by men.
This is to the detriment of women, noncis, and nonhetero people. The sexual revolution is key to the liberation of women, noncis, nonhetero people.
I’d also argue that it’s to the detriment of men too, as bell hooks argues in The Will to Change.
Foucault’s History of Sexuality: (1) sexuality is a construct that is inherently political, and (2) we can’t untangle “ourselves” from the ways in which our sexuality shapes us. The subject that consent is shaped by their consent - it’s not that they knew exactly what they wanted prior to consenting - and they are shaped by the experience. These are both shaped by relations of power
This is interesting, because of the way the harm doer and the harmed are both shaped by a consent violation, which is a type of sexual experience (albeit a “bad” or “negative’ one). There are numerous psychological affects - eg., rape has a higher correlation to PTSD than combat does - and these are shaped by power, or the feeling of powerlessness that the harmed suffers, and those feelings are exacerbated by the community/people around both parties.
Foucault argues that modern bourgeois life and “Puritanism” reduced pleasure to the reproductive act, essentially eliminating pleasure. This isn’t because sex isn’t talked about - it is discused - but pleasure and desire aren’t addressed positively.
Foucault argues that people have different types and levels of power: no one is subject to power solely, and no one is solely the target of power.
Instead of focusing on the sensations as source of pleasure, we as a society seek “The truth” of sex
This is interesting - especially in light of “our” explorations of non-monogamy, kink, consent agreements, etc.
An example of this: we switched - as a society - from seeing a cis man who has sex with cis men as someone who commit sodomy, to seeing that act/type of sex as part of their essence and identity.
Through the definition of “homosexuals” and the years of fighting for LGTBQIA+ rights, we see how sex and sexuality are politisized.
Foucault doesn’t address power dynamics in his theories; he ignores what the authors repeatedly refers to the social domination of women by men (I’d call the patriarchy - the idea that cis males are supposed to dominate others, which harms all involved).
Foucault also argues that BDSM (S&M, as he called it) is “freed” from political, because in it, pleasure is separated from sexuality
A new understanding of rape: rape went from being exceptional to women talking with one another to realize that rape is commonplace.
Is rape an individual act, or is rape a manifestion of the patriarchy?
One trend I’ve noticed: in groups in which there is less power disparity between genders, there is less disparity in the genders of harm doers - that is, greater equality means that not all harm is done by men.
Both people who do harm and are harmed - that is, abusers and their victims - usually have higher ACE scores. There’s a particularly strong correlation between living around substance abuse as a child to becoming an abuser or a victim.
Garcia brings up BDSM activists versus the anti-porn/anti-hetero brand of feminism. That brand of feminism argues that heterosexual sex is by nature patriarchal.
Is BDSM actually negating the patriarchy? Presuming maledom/fem sub, the masochist/submissive gets greater choice in the fantasy. Sociologist Damien Lagauzere argues that kink is “masocentric”.
The goal of kink is pleasure, and a purely physical pleasure, as such, it is apolitical.
However, the majority of men are dominants, and the majority of women (by a large margin) are subs). So are we really getting away from the patriarchy with BDSM?
Jay Wiseman found that many women had been raped during kink, and continued to engage in kink. He theorized that some women saw rape as the “cost” of participation in kink, in having their sexual desire gratified.
Garcia argues that Wiseman can’t see that women have adapted to having their desires and wishes disregarded, that women’s social subordination makes them continue to consent to sexual subordination.
Catharine MacKinnon notes that the women’s liberation benefitted men - in that it made women more sexually available, but women themselves are still vilified if they have “too many” lovers, female pleasure is seen as more psychological than sexual/physical, and men aren’t sole providers but they also don’t have to contribute to sharing family duties (eg, chores, cooking, child/parent care).
Catharine MacKinnon is the person who usually credited with starting legal thinking around sexual harassment. She was a lawyer on the Vinson case, which was the first SCOTUS decision on sexual harassment
Is Consent a Woman’s Problem?
Women have “consented” to marriage for centuries, yet marriage has been mosty bad for them. Will “consent” be a similarly double-edged sword?
What’s wrong with our view of consent: sexual consent is almost always presented as exclusively a woman’s concern. Only women must consent to sex. Women receive proposals for sex (which means they are passive), men always want sex.
In this chapter, Garcia argues that the “intuitive” view of consent disguises the inequalities of a patriarchal world.
In this view, women and men are separate and unequal
The view ignores the power dynamics, that there are relationships of power and domination that harm women and perpetuate patriarchal structures.
When women have historically have far fewer rights, eg, the right to vote, to open a bank account or credit card, to own a car, how can women have the will to “consent”? As individuals, women are seen as “free”. Yet, women can’t fully participate in the social contract, or couldn’t until fairly recently. The recent-ness still affect us today, eg, our grandmothers couldn’t open bank accounts without a man signing off on it - we’re still influenced by this very recent history.
Women make less money than men (the number is $0.77 per dollar a man makes). This number is also influenced by race: a Latina woman makes $0.54 per dollar for a white man. How might this economic inequality factor into sexual and other decisions that women make? How does it affect the ability to truly consent.
In communities, social power - access to communities, to friends, to “leadership”, etc - can be seen as a replacement for economic inequality.
When you include time for household tasks, women work something like 14 hours more per week on average than men. How does this affect the “will” of women, that is, the ability to truly be able to consent?
The political theory of citizenship and the ones underlying our laws assumed women to be not equal to men. The doctrine of coverture - that a wife was her husband’s possession and “slave”, that she was “civilly dead” - only ended in at the end of the nineteenth century (so, about 125 years ago).
It influences us today: eg, a woman drops her father’s name upon marriage and takes her husband’s.
“To yield is not to consent”
Mathieu argues that men’s values are a consequence to male domination, not a cause.
Is the threat of sexual violence a corrective for women, to “put them in their place”?
Most women I speak to have changed their behavior in some way(s) to reduce the spectre of rape.
Women trade the tasks they do (eg, childcare, household care) for protection and safety. Under these conditions, can we say women “consent”?
Do women know what they are consenting to?
Mathieu argues that it is men who consent to domination over others.
That women are too overburden to resist, and so they yield; that women don’t have an autonomous will
If women don’t realize/aren’t aware that they are dominated by men, can they consent?
Mathieu argues that women instead assent.
Sexual Consent as Men’s Law
Does the law reinforce men’s access to women’s bodies?
Why Legal Consent is Worse than Useless
Legal consent assumes equality
However, social inequality has an impact on the way individuals make choices
Eg, sex work is likely influenced by systemic inequality
The law doesn’t address motives for assenting to sexual acts that may not be desired.
The Psychic Dimension of Power
Psychological alienation renders resistance near-impossible
Rape Is Not Sex Minus Consent
Consent is not the ultimate tool to fight sexual violence
It renders sexual violence a problem of communication between individuals, whereas the true foundation of sexual violence is a patriarchal ideology that justifies men’s use of women
I’d argue that yes, while gender inequality - including cis-male privilege over other genders factors into the causes of sexual violence, we also have to consider that much abuse stems from trauma. People who create sexual violence generally have higher ACE (adverse childhood experiences) scores than people who don’t - there’s a high correlation between growing up emotionally neglected, from a household in which parents are not together, and substance abuse, and of course, of emotional/physical/sexual abuse as well. The same goes for survivors of sexual violence. As well, communities that do not act when they become aware of sexual violence wind up becoming hot beds of sexual violence, to which perpetrators of sexual violence graviate. In order to address the structural underpinnings of sexual violence, we need to recognize these patterns.
A lack of affirmative consent is insufficient to distinguish rape from permissible sex.
Eg, Do women seek sex for secondary benefits that they can derive from it (eg, access to money, status, or protection?)
The idea that men constantly seek sex and will have sex with anyone is harmful.
In one instance I dealt with in which a woman sexually assaulted a male bodied person, the woman said she realized she wrongly thought that men always “want it”, basically the idea above.
Note that I also describe the person above as “male bodied”, they identify as male bodied and use they/them pronouns, and want to create greater awareness around the sexual assault of men - when they spoke up, they said many men approached them to say that they’d (“many men”) experienced similar violations.
Do men have a “right to sex”?
Eg, incel movement and mass killings like Elliot Rodgers
I think Amia Srinivasan makes a better argument around the idea of “a right to sex” (her collection of essays is titled “The Right to Sex”, highly recommendede!) - that this notion harms both men and women, and plenty of men suffer under patriarchy as well.
For example, race and class play into which men have a “right to sex”, eg, Srinivasan interviewed Asian men who said it’s sadly common to see “sorry, no Asians” on dating apps.
Also, the idea of sexual performance - of behaving sexually like a male porn star is harmful to men.
It also is a cause of sexual violence/consent violations - some men will incidentally violate consent because they see similar behavior in porn and think it’s expected of them. This pattern (IMO) is especially common when men are expected to be dominant in the kink context.
The author cites a study in which 30% of 150 men interviewed said they’d knowingly engage in rape if they was zero chance of prosecution (!!!)
Women sometimes go along with sex because of socialization and societal expectations, eg, don’t be a tease, be personable
I’ve also spoken to many women who said that at least once in their life they went along with sex because they were afraid they’d be raped if they didn’t go along with it.
Epistemic Injustices
Women are too often deprived of the opportunity to be heard and listened to.
Certain people’s claims and knowledge are routinely ignored or distrusted.
Who gets to have a voice? Who gets to be understood? Who gets to be understood and believed?
For further reading, Deborah Tuerkheimer published an essay titled “Credible” on Lithub (and followed it up with a book of the same name) on who is believed and who isn’t.
Notice that the “famous” rape cases which result in convictions are all well off white women? Eg, E Jean Carroll (defamation, not criminal), Brock Turner (the Stanford rape case, in which the victim’s family was wealthy - though she’s half Asian/hald white). It correlates to “Missing White Women syndrome” - that white, female survivors/victims of physical and sexual violence get media attention but BIPOC do not.
Black and indigenous women, in particular, are assaulted at much higher rates than white women.
Similarly, black men are prosecuted successfully for rape at much higher rates than white men.
In our communities, in which there are far fewer Black and indigenous women, Asian women are assaulted at higher rates. Last March, I calculated that over 68% of the survivors I’d connected with are Asian-American. My friends/communities do not skew Asian-American (which I’ve been asked before)
Testimonial injustice - that some people, eg., BIPOC women, are not seen as credible.
Contributory injustice occurs when privileged people refuse to use or even seek out information about the less privileged - because broader society cannot recognize these experiences
This reminds me of the slogan “White silence is violence”
Adaptive Preferences
Have women in particular adapted to what they see in porn as desirable?
If you can’t change it, even if you personally don’t want it, then do you just go along?
Sex as a Conversation
I didn’t take notes on this chapter, because it feels like more of the same. It gets into the idea that women are unequal in society, and thus “the third view” of consent as a conversation can be problematic because of power dynamics.
Awareness of power and attunement can offset these problems, of course, as most of our communities espouse…however, we are all influenced by society and its norms, and I’d argue that sex, especially sex with people you don’t know super well is inherently risky.
Overall, I thought this book had some excellent points about the dangers of viewing consent and conversations as a solution for the prevention of rape (it’s not, and the book helped with framing language around that), but it is weak in that it espouses a strong gender binary with women suffering and taking privilege and power, and viewing men as “bad”, privileged, powerful, etc.