[Note: Revised somewhat for clarity and to weed out excess asterisks. —fl]
I’ve been writer’s-blocked over this for more than a week, but I’m starting to have a real problem with the notion of “consent” as the be all and end all of heterosexuality. Qualifying with “enthusiastic consent” is even creepier.
It’s not that I want to chuck the whole idea of consent. In the context of a legal tradition going back to the Code of Hamurabi, the legal principle of consent is unquestionably critical. But critical in the same way the principle of contracts is critical: a bedrock factor when things go wrong. But when you want to keep things from going wrong then, just as one needs more than a principle of contracts in business, I think one needs more than a principle of consent in sexual relationships.
What I’ve been struggling over is articulating the disempowering downsides of framing everything in terms of “consent.” Things like “consent” implies passivity rather than participation… a granting of a favor, in other words. Things like “consent” being a synonym for “yes” and therefore the nearest opposite being “not consent” or “declining consent,” where the implication is that saying no to someone else is denying them. Things like “consent” being a response to someone else’s initiative and not a independent act. All of which, I think, contributes to an atmosphere where, despite pages, chapters, books, statutes, dissertations, and legal decisions we still wind up with so-called “gray areas” where, for instance, victims blame themselves afterwards instead of blaming the perpetrators. In other words I’ve been struggling with dissatisfaction over the limits of “consent” in the context of abuse of consent.
So since I’m stuck on that I’m going to go back to the other huge problem I’ve got with consent, the one that kick-started my recognition that the dominant paradigm makes women the no-sex class. It’s not a problem with the whether or wherefore of consent, it’s a problem with the when.
Consider that there’s not just one way to give consent but two. When someone asks “would you like to have sex” one can say
1) Now that you mention it, yes, I consent.
But one might also answer
2) Yes, I consent — I’ve been waiting for you to ask.
Consent is given in both cases, and under the law they both mean the same thing. But! One of these things is not like the other one. At all. Because in the second (and, one imagines, more common) case the decision to consent was made before the request is made!
One can only consent to something in the face of a request for consent. That’s great if you buy the heteronormative assumptions that men don’t just initiate sex but men also want sex whereas women** would rather say no. But in real life the timing, the “when,” can be out of sequence.
In the heteronormative universe of the no-sex class and its Two Rules of Desire, there’s no possibility that the decision to consent could come before the request!
If consent is the only tool you can run into (absurd) solutions like “well, if she wanted to consent why didn’t she ask him to ask her for it?” Which would be silly, of course. A more sensible way to be “non-gender” about it would be to say “well, she should just ask him for consent.” It would all even out that way.
But…
Ok, I said I wasn’t going to get into questions of abuses of consent but… the thing, no matter who’s asking for consent the implication is that sex is something one person wants and the other person has to agree to. But all requests for consent locate the action outside the person who’s asked. Which, when you think about it, is just more of the same old heteronormative assumptions… maybe just with a “gender neutral” twist.
In fact, though, “consent” is a result of an act… a decision to say yes or no. But we don’t talk about it that way.
The thing about a decision is it occurs independently of any other individual. It occurs independently of any request. And more to the point, even when there is a request, a decision occurs before consent or non-consent is communicated.
Which is why I’m starting to believe, strongly, that it’s really, really important to start moving even further past the importance of consent in favor of the importance of decision.
—-
Oh, and another thing: when you get down to it, except maybe inside the no-sex class mentality sex isn’t the result of a request that’s accepted. It’s a mutual decision! And as long as we talk in terms of consent we miss that rather important point.***
So. While there’s a lot more I could say… and would if I thought I could talk coherently about it because I think it’s really, really important… I’m going to stop here.****
[** I discuss all this in terms of men asking women because for better or worse almost all conversation about consent is heteronormative. —fl]
[*** Remember, the no-sex class paradigm designates men as the “sex class,” the class that rather than implicitly distaining sex is implicitly obliged to be sexual. And so inside the no-sex class mentality men there’s no room for men’s decisions to have sex either: we’re simply failures, or, worse, not “real men” at all, if we don’t. Just something to keep in mind. —fl]
[**** I had dinner at a Chinese restaurant yesterday and my fortune cookie said “You are open and honest in your philosophy of love.” Didn’t say anything about clear or concise though so… right again! :-) —fl]
Submitted by 2819 (not verified) on Sat, 2009-04-04 16:59.
Umm... yeah. You're not being clear or concise at all. ;)
From a legal perspective, it really doesn't matter when or why consent was made. And it probably shouldn't, since thought processes leave no detectable evidence, so only the person who gave the consent can truly know when the decision occurred, if they remember at all. (Of course they could tell other people when, or give hints through body language that the decision was only just made, but people can pretend or lie.)
From a social perspective, consent is not particularly active or passive. It's usually either proactive (deciding to consent or not in the event something occurs) or reactive (consenting or not only when the event actually occurs). If you "desire to consent" to something, then that's just getting into weird semantics. Either you have *already* consented in the proactive sense and the key thing here is "desire", and the situation is more about desiring something which hasn't happened yet. Or else you wouldn't normally consent to something because some portion of your mind is strongly aversive, and some other part of you wants to be forced into a situation where that portion of your mind would consent in a reactive sense. But that's still more about desire than consent. Even if it's because the no-sex-class mentality is the issue that's getting in the way.
So yeah, I'm not getting what you're trying to say.
[Eek! Have I been saying "desire?" That would *seriously* distract from what I'm trying to say! (I'll go check the text in a minute and fix it if I find it.) I agree it's semantics, Nightfall. I just happen to think semantics is really important. I didn't mention it because I'm still trying to say it clearly, but consider the so-called "gray area" situation where someone blames him or (usually) herself for a sexual situation she didn't really want. While you're right that *in court* it may not matter but in *reaching resolution* they might feel ambiguous if you ask "but did you give your consent to so and so?" Compare that to asking "did you *decide* to have sex with so and so?" Oh, and final point? I'm not saying what's important is whether you "decide to consent." That really would be just semantics. Instead I'm saying the distinction lies between "giving consent" to someone who's decided they want sex with you vs. "deciding to have sex" or "deciding not to have sex." --fl]
Submitted by 2819 (not verified) on Sat, 2009-04-04 20:24.
Actually, I was going to say you're much clearer than I would be, so, Kudos!
This isn't actually anything I've ever thought of before, but now that I do, I think you're right. The concept of consent isn't really gender neutral only because of the way society has set up the no-sex class paradigm. In this equation, men are always,--100% of the time-- the ones seeking consent-- not the ones who are giving consent. (Though, in my practical experience, I know this isn't true. But that's the way it's framed, I think.) Women are therefore the guardians of virtue once more...
That women have to be passive recipients when it comes to general male attention and to sex in particular is part of this dynamic -- this passivity is the difference between being object and subject. Men make decisions, and women can only REACT to those decision.
I see where you're going... right? (unless I'm off base.)
(As a side note-- Can I tell you how much I love the blog? You always make me think. And I think the no-sex class paradigm and the 2 rules are right on, and I tell everyone who will listen about them. Any book in the works about this?)
[First of all thanks for your kind words, Hypatia. I thought I was ready to write a book a couple of years ago, but it turned out I didn't know what it would be about. Now I'd write it about this. If anyone wanted to publish it. Or, more importantly, edit it! :-) As for your comment, you said "I know this isn't true. But that's the way it's framed" Yes, that's my point too -- it *isn't* true, it's *framed* to make us think it is. (And, I contend, it's men who do the framing and... generally hate the results... which is dumb because it's *our frame!*) At any rate it sounds like you get what I'm trying to say, which is great! Thanks! --fl]
Submitted by 2819 (not verified) on Sat, 2009-04-04 21:10.
One small request: you use asterisks for emphasis a lot, and it's gotten to the point that I have trouble reading some sentences. Could you switch to italics or underlines, please? With so many words emphasized, I've started to lose which asterisks are starting and which are stopping.
[Excellent suggestion, Diatryma. I started out using asterisks before italics was an option, and then kept doing it because it's so much easier than typing italics tags. Maybe too much. That and I've been doing too many ellipses. I'll see what I can do. Thanks for the nudge, because you can't be the only person it bothers. --fl]
Submitted by 2819 (not verified) on Sun, 2009-04-05 08:55.
It seems to me that it is possible to decide "I will say yes if X asks me to have sex", and also, "I will ask X for sex", but to decide "I will have sex with X" seems to put X's willingness or otherwise to have sex (with me) as irrelevant. This, needless to say, is troubling to me.
I've quoted all of this, but the thing I really want to focus on is "...the implication is that sex is something one person wants and the other person has to agree to."
Consider two people, X and Y, who might want to have sex with each other. there are for each person, three possible states: a) Active desire for sex with the other person; b) willingness to have sex with the other person; c) desire not to have sex with the other person. If XcYc then obviously there is no need for anything to happen. Similarly, if XbYc or XbYb then there is no need for any communication of decision or consent, because neither side actively wants sex so sex isn't going to happen (NB XbYc and XcYb are equivalent by symmetry). That leaves the situations (assuming symmetry again) where XaYc, XaYb and XaYa. Obviously, if XaYc then any sex between X and Y is rape by X. If X asks Y for sex, then Y will say no. If XaYb then X can decide to ask Y for sex, can decide not to ask Y for sex, or can not-decide (and thereby not ask). If XaYa then both X and Y each have these options.
If XaYb and X decides to ask Y for sex, then Y (being willing but not desiring sex) will make a decision "yes, I will have sex with X" (which equates to consent) or "no, I will not have sex with X".
If XaYa then either X asks Y for sex or Y asks X for sex or neither asks for sex (which means that both go disappointed!) If X asks Y for sex, then Y will almost certainly decide to have sex (since Y is also eager for sex with X)but this still qualifies as "consent". If Y asks X for sex, then X makes the decision to have sex (because X also is eager for sex with Y).
In no case can the decision to have sex be made without reference to the other person, because it is impossible to know whether the other person has also decided to have sex - and in fact, the other person may never have considered the possibility but be perfectly willing (in a pleasure-taking way) to do so. The decisions are "Do I want sex? (and if so, with whom?)" "Will I ask for sex? (and if so, whom shall I ask?)" "If asked by person X, will I say yes to sex?" "I have been asked - so do I want to have sex with the person asking?" The decision is never "will I have sex?" until someone else indicates their willingness to have sex with me.
While it is possible to make a decision about one's own desire for sex, and how one relates to that (i.e. whether one will ask or not-ask, and how one will answer if asked) it is not possible to make a decision about sex itself without reference to someone else's consent.
It seems to me that what is being argued for is a form of language that we might call seeking a concordance for having sex as opposed to consent to having sex, but I think the OP seems to skate over how that concord could be achieved. Someone always has to raise the possibility of sex, and the other person then has to agree or not. The sex may then be negotiated so that both/all partners know what exactly is being agreed to, and that is much more of a mutual decision together, but it still requires an initial "will you...?" answered by "yes". That, to my mind, is summed up by the word "consent".
[Hi SE. Everything you say about consent being the result of individual and mutual decision-making is true. In fact it's absolutely, wonderfully true. And well thought out as well. Which is why I think it's so important to shift attention away from the end result and on to the process for *deciding* it. In other words, if I didn't agree with your argument I'd agree with you. But I do agree with your argument so I don't agree with you. :-) Saying "consent" is sort of like saying "apples come from the store." Thanks! --fl]