Affirmative consent

In Sex Is Serious, Christian (presumably liberal) philosopher and theologian Elizabeth Stoker Bruenig parallels the politics of affirmative consent and conservative Christian, especially Catholic, sanctification of sex. Bruenig highlights a perspicacious, crucial element of conservative sexual ideology: fertility is, in their view, the essential, ineluctable component of sex; to withhold fertility is to render whatever physical acts ensue as not sex. Indeed, by withholding fertility, people corrupt the physical act, rendering the act something not just irrelevant but deeply and perhaps permanently harmful. Critically examining the ethics of affirmative consent, with the recent passage of California's SB 967 as a paradigmatic example, Bruenig notes that advocates of affirmative consent hold that consent, in the strongest form, is the essential, ineluctable component of sex; without consent, whatever physical acts ensue are not not sex, and deeply harmful. Bruenig juxtaposes affirmative consent with the general feminist complaint against pornography to draw the conclusion that like conservative Christianity, "consent feminism" seeks to use state power to impose normative sexuality, a vision of what sex ought to be: "The law makes a statement about the nature of the right kind of sex in general, and also claims that the right kind of sex is serious enough to merit legal intervention." While Bruenig accurately notes a similarity, the similarity is trivial and misses the truly important question: who decides what kind of sexuality is right or wrong?

The juxtaposition of consent and pornography is specious. The feminist critique of pornography has never been that viewing sexual activity for the purpose of arousal is by itself inherently bad. The critique is, and always has been, that in a patriarchal society, pornography is predominately a tool used to culturally normalize the inferior and subordinate status of women. As Gloria Steinem says in the interview Bruenig links to, "We have to say pornography is not erotica, porn means female slavery. It means the depiction of female slavery." There are exceptions, but pornography as normalization of subordination is so pervasive that it deserves general condemnation; the exceptions truly are exceptional. A good analogy, perhaps, is with the police: in theory, the police serve an important, perhaps necessary social role; in practice, however, in a misogynist, racist, capitalist society, the police so predominantly serve as an instrument of oppression of women, people of color, and the poor and working class that they deserve general condemnation. The practical critique does not necessarily negate the theoretically positive value. Pornography is not about sex at all; it is about subordination. But pornography is a side issue.

Because sex happens between (at least) two people, sex is an inherently social act. The frequent use of erotica (and perhaps pornography in the feminist sense) in masturbation makes even this apparently individual act deeply social. Thus, the question is not whether we construct social norms and customs about sex; the question is what kind of social norms and customs we construct. Even the idea that people should have nothing at all to say about others' sexuality would be a social norm, in need of construction. And even then, we would still have to socially negotiate what are appropriate and inappropriate ways, places, and times that people get into sexual relationships. Advocates can unreservedly admit to the charge that we are trying to use the law not to codify existing standards but to change the culture. [ETA] Bruenig herself is trying to advocate her own vision of what sex should be - fluid, spontaneous, without a lot of niggling worries about consent. [/ETA] If Bruenig were just trying to draw and deep parallels between conservative Christians and consent feminists just on the basis of participating in the social construction of sexual norms, she would be making a completely trivial point: social people are social.

To my knowledge, no one believes that sex is unimportant or trivial. Affirmative consent ethics are not at all hypocritical or contradictory. Sex-positive feminism is not dedicated, as Bruenig claims, to "everyone having fun"; sex is not "little more than a silly pastime." The "SlutWalk moment" was not about affirming the value of "frivolous no-strings-attached" sex. It was about establishing women unapologetically as sexual beings, who want sex, and, more importantly who get to choose and consent themselves to expression of their own sexuality on their own terms. If that happens to be casual sex, well, that's their own choice, not mine. Consent is not necessary to protect casual sex; the fundamental point of SlutWalk is that sex is not something that must be pushed onto categorically sex-averse or -ashamed women; women can and do consent to sex, for their own enjoyment and fulfillment. Again, were Bruenig simply saying that affirmative consent ethics upholds the importance of sex, she would be making another trivial point.

But Bruenig has a deeper point: affirmative consent takes something important away from sex. Bruenig argues first that the law has always required consent; new laws change only the "expression of consent, which is an intervention into the way sex is [emphasis original]." According to Bruenig, affirmative consent ethics promote

a particular kind of sex, specifically that which is marked by mutual concern, unreserved enthusiasm, and ongoing mutual engagement—a shared focus on body language and verbal cues, refreshed step-by-step, underscored by an honest concern for the other person’s mental and emotional state with regard to the sex act

but ignore "bored sex, disinterested sex, or sex with reservations [emphasis original]." Affirmative consent ethics make women fundamentally mysterious: "women are essentially unknowable, that the usual ways of reading us can’t be trusted, and that our minds must be constantly probed for affirmative signals." Affirmative consent ethics, according to Bruenig, change how we have sex, but do not address sex as it actually is.

Bruenig, however, massively overstates her case. Even in a perfect world, without a hegemonic patriarchy, and even if affirmative consent laws were applicable generally instead of just to higher education institutions in California, affirmative consent does not change how sex is except to exclude rape. First, Bruenig unaccountably asserts that according to SB-967 excludes body language as a form of consent. Antioch College's 1993 sexual assault policy does require verbal consent (which in context is not a terrible idea; see below), but SB-967 says nothing of the sort; it mandates that agreement must be "affirmative, conscious, and voluntary" as well as ongoing. I've been sexually active for around thirty years, from one night stands to marriage, and I have never had a problem interpreting body language as unequivocally granting or withholding consent. Consequently, I have never had a problem with a woman later asserting that I had unconsciously or inadvertently violated her consent. Establishment and maintenance of consent has never caused a lack of passion, spontaneity, fluidity or any other positive aspect of sex.

The only thing that affirmative consent ethics establish is that "I didn't know he or she did not consent" is no longer a defense against sexual assault. SB-967 says that the only legitimate defense to sexual assault is "I had good reason to know he or she did consent." Indeed, SB-967 does not change the legal theory of sexual assault that much. In edge cases, such as statutory rape above a particular age, consent been an affirmative defense against charges of sexual assault: the defendant has the burden of proof, not the prosecution. Fundamentally, I would never defend myself against a charge of sexual assault by saying only that I didn't know a woman did not consent; if I do not know — and have good reason to know — a woman really does consent, I don't have sex. I have been at every stage of sexual activity when a woman has subtly or obviously indicated that she wants to stop. I stop. Period. I do not proceed unless and until I am absolutely clear that she wants to stop. Period. This is not rocket science. Affirmative consent places zero additional boundaries on my own sexuality.

I am personally a relatively sophisticated, perceptive middle-aged man. Not every college student, however, has the benefit of my upbringing and experience. It is critically important to understand that SB-967, as well as the Antioch College policy are aimed not at sophisticated, independent, self-confident adults, but at college students. These are typically young men and women, both sexually and socially inexperienced. Yes, we want to let them experiment, we need to allow them, as the 1993 New York Times article, 'Ask First' at Antioch,, that Bruenig cites, to make mistakes. But only some mistakes. Although no longer acting in loco parentis, college administrators need to help young people avoid catastrophic mistakes. We do not, for example, want to blithely allow young women to mistakenly become pregnant. We do not want to allow young people to mistakenly get sexually transmitted infections. And we do not want young people (indeed anyone) to "mistakenly" violate the personal autonomy and integrity of another person. Hence colleges prohibit bullying and fraternity hazing. And they should also take steps not ordinarily necessary for adults to prevent non-consensual sex. Even the Antioch College policy is reasonable. There are, of course, sexually and socially sophisticated eighteen year olds, who will largely take care of themselves, but if you're become sexually active with an inexperienced eighteen year old, especially if you yourself are more experienced and sophisticated, you could do a hell of a lot worse than establishing explicit verbal consent at every stage. That's how a person becomes sophisticated and experienced, and can move on to more subtle forms of communication.

Fundamentally, consent is first of all complex, and it is not about only sex: consent is the fundamental virtue of liberalism. (The Marxist critique of liberalism and capitalism does not deny the value consent; we claim that consent is necessary but not sufficient, especially in cases of indirect economic pressure.) Even a world without patriarchy, establishment of affirmative consent just brings this fundamental liberal value to the realm of sexuality.

But of course we do not live in a perfect world: we live in a world where patriarchy, although compromised, still retains considerable power. Men do get raped, and violation of consent for men, especially young homosexual men, is an important issue. But rape and sexual assault is a special problem for women. As Susan Brownmiller argues extensively in Against Our Will: Men, Women, and Rape, for centuries, perhaps millennia, the patriarchy has used rape (among other means) to exert its power and domination over women. Rape is not an isolated criminal act; rape has been, and still is, a tool to maintain the subordination of women. Even overt, forcible rape is still inadequately prosecuted, especially on college campuses when committed by high status male students such as athletes and fraternity members. (e.g. here, here, here, here, and an attempt at a depressingly long comprehensive list of just college rapes football players). A frequent defense in these overt rapes is that the perpetrators believed the victim had consented, placing the burden of proof on the victim to show she unequivocally did not consent. Shifting the burden of proof to the perpetrators can help shut down this legal strategy.

[ETA (forgot to pay off my thesis statement!] It's unclear why Bruenig tries to compare conservative Christians. If she were writing a college "common ground" essay, she would argue that the common ground between conservative Christians and consent feminists was a good thing (if it were to exist; I'm unconvinced that conservative Christians really have the temporal fulfillment of human beings at the forefront). Instead, she seems to take more of a "pox on both your houses" view, an Eric Hoffer communists-and-fascists-are-the-same view that people who are genuinely concerned about sex and its place in society are both trying to ruin it, or at least subordinate sex to a political agenda. But the question is not about what sex should be, it's about who decides how sex should be.

There are really only three possibilities about who should decide. First, morally privileged authorities such as the church. If you think you're enjoying sex, but it's not procreative, then they know, because they have privileged information about what God thinks about sex, that you're just fooling yourself, and you need to be protected from your own stupidity and moral ignorance. Second, the powerful (with, obviously, some overlap with authority). Men are typically stronger and more powerful than women; the mob is more powerful than the individual. Whatever men can get by force, overtly or subtly, is by definition good. Third and finally, the individual. It is the great paradox of liberalism* that the rights and privileges of the individual can be guaranteed only by the state; otherwise, the individual is always subject to the mob. Fundamentally, that's what feminist affirmative consent ethics do: make sex whatever each individual wants it to be, irrespective of what anyone else might think, necessarily using state power to protect the weaker from the stronger, and the individual from the mob. Intentionally or not (probably unintentionally), Bruenig regrettably comes down on the side of the stronger against the weaker.

*Socialism expands and does not resolve this paradox; communism (hopefully) resolves the paradox by securing to each individual sufficient economic power to truly make the state wither away.

The message that affirmative consent gives to women, especially young women, is that their sexuality is their own, no one else's, and they are free to consent, and free to withhold consent, at their pleasure, not anyone else's. This is the basis not only of modern liberal virtue but of the empowerment and freedom of every woman. These standards deserve our unequivocal, uncompromising assent.