As I write the verdict in the retrial of footballer Ched Evans has just recently been announced. The verdict itself is a shock but what is even more disheartening are the facts of the trial; that the complainant’s personal sexual history was used against her after the judge made a rare exception to allow it as evidence and that the family and partner of Evans was known to have offered a cash reward for information leading to his acquittal. The repercussions of this verdict and the precedent that the judge’s exception may set will undoubtedly be felt for years to come and is a huge blow for women who seek to bring their attackers to justice. Once again bringing prejudice to bear against the sexual history of women who report rape has become a legitimate line of defence. To put it simply, this trial in the way it was allowed to be conducted has made women less safe and men more secure in their ability to rape without fear of conviction.
At this time then a critique of the use of consent as an effective concept within the discourse of rape prevention seems inopportune. Shouldn’t we be defending the sanctity of the notion of consent since it was precisely the autonomy of the victim and her right to deny consent that was being undermined in the Evans retrial? On the other hand the trial also demonstrates the fragility of consent as a legal principle which allows us to identify harm in sexual matters. Given the right conditions, the right amount of prejudice, a sufficient amount of money and a legal system that still fails women time after time, a person’s right to give or deny consent can be overthrown. It is for this reason that a critique of consent and in the case of this article of the development of so called ‘sexual consent classes’ in universities is worthwhile. It is meant to be a sketch so my lines of argumentation are multiple but do not reach the depth that they would deserve in a fuller exposition. Also, given the climate, it will unavoidably appear as a provocation. What I wish to argue is that the concept of consent is inadequate due to its being imported from the legal discourse of property and contract and that as such it imprints a highly abstract and alienating form onto sexual relations that erodes the aspects of mutuality and reciprocal gift-giving which are at the heart of all worthwhile human intimacy.
“Not everyone has the privilege to feel enthusiastic about sexual consent but that doesn’t necessarily mean that they lack the freedom and capacity to make that choice…” (NUS Women, I Heart Consent Workshop Guide 2015)
Sexual consent classes are a phenomena that began in universities in the United States but have over the last two or three years become increasingly prevalent in the UK. Their implementation has been spearheaded by the NUS as one approach to tackling the high rates of reported sexual harassment on university campuses. Depending on the source those rates range from one in five to over 50% of female students experiencing some kind of sexual harassment or assault while at university in the UK. The NUS conceive of consent classes as part of the standard induction package all new students should receive along with more general health and safety material and information about IT and library recourses. This mirrors the reception of such measures in the US where they have been integrated into universities as part of their obligations under Title IX of the US Higher Education Act. Title IX is an amendment that covers safeguarding and how universities deal with accusations of discrimination and assault. To this end the UK NUS have produced a standardised guide for those organising consent classes.
Their introduction has not gone unnoticed and there have been several stories picked up by the mainstream media over the last two rounds of admissions. Last year we had George Lawlor at Warwick taking offense and arguing a common criticism of the classes that they imply all men are potentially rapists: “It’s just that I feel if you need to be taught what consent is and what consent isn’t, then you don’t have respect for other human beings.” This year as more student unions around the country introduced the classes there were even minor protests and walk-outs such as at York where third-year accounting student Ben Froughi encouraged a boycott arguing that the classes encouraged men and women to identify with the respective roles of potential victim and rapist. Interestingly the irked accountant also took issue with the implied contractual form of sexual bargaining: “There is no correct way to negotiate getting someone into bed with you. In suggesting that there is, consent talks encourage women to interpret sexual experiences that have not been preceded by a lengthy, formal and sober contractual discussion as rape”.
Despite increasing numbers of universities hosting such classes there is scant data either here or in the US, where they have run for many years, that the classes are effective in reducing the incidence of sexual assault. Indeed judging by the stats put out by the NUS the reported rates seem to be increasing; although like such data produced by the police and government this is often explained away by putting any increase down to the willingness of victims to come forward and thus something in part to be celebrated. However this is also an admission that there is no reliable data pertaining to the reality of the situation on the ground or as yet any empirical means to assess the impact of the classes. Like those mysterious proclamations on the invisible war put out by security services we can well imagine NUS officers proudly counting up the number of potential rapists neutralised by their programs of prevention and countermeasures. It is important however to be very clear; my argument is not that the problem of sexual assault at Britain’s universities is trivial or overstated, nor is it that these techniques of management could never be effective (although as yet there is no evidence that they are). My claim is that their potential effectiveness carries with it a problematic discourse which undermines the good intentions from within.
The starting point for the NUS guide is the definition of consent from current UK legislation. In England and Wales a person consents if they agree “by choice, and has the freedom and capacity to make that choice”. And in the Scottish sexual offenses act of 2009 consent is defined simply as “free agreement”. Both these definitions are highly abstract renderings of basic principles from contract law emphasising notions of free agreement and the absence of force and fraud. Immediately in its legal form sexual relations are taken in part to be an instance of the exchange of goods or services involving the free contracting of the parties involved. Consent classes, the principle subjects of which are rape and rape culture begin by reproducing this juridical and legalistic framework of sex crime legislation as well as the vagueness of some clauses within those definitions. The classes tend however to expand on the legal definition to include examples of additional clauses while maintaining the contractual style already inherent in the legal definition. For instance the NUS consent workshop guide includes “active, on-going conversation, and retractable” as attributes of consent while including “assumed, and previous consent” as examples of what genuine consent is not. Taken in isolation and as general pointers towards avoiding harm none of these examples is especially vexatious although in practice some may be difficult to implement. Taken together they flesh out the vagueness of the current UK definition of sexual consent into a more concrete contractual form.
One of the difficulties both in the UK and US legal definition is that it admits the possibility of non-verbal consent, though the US code excludes that as a possibility in cases resulting from the use of force, threat of force, or placing another person in fear. Although the NUS consent class guide does not state consent should be explicit and verbal, the additional glosses on the UK and US legislation (especially that consent should never be assumed) and the overall contractual framework make the implication clear. Transparency and predictability of outcomes are key.
The clearest indicator of the abstract contractual nature of consent being put forward in the NUS guide is that it is explicitly separated from any notion of enthusiasm or enjoyment, surely the prime reason all things considered for having sex besides purely reproductive motivations. For the authors of the guide consent functions seemingly as a purely formalistic concept within an exchange between two parties. The guide even goes so far as to describe enthusiastic consent (which we might translate as anticipating the possibility of actually enjoying the act) as a “privilege” and draws comparisons with the exchange between sex workers and their clients. This is a particularly striking comparison considering the continued “workerisation of sex” that I have drawn attention to elsewhere. In that case guided by neo-liberal notions of entrepreneurship and human/erotic capital advocates from the sex industry have argued against distinguishing sex-work from work in general using a similar set of conceptual tools around consent and personal bargaining that they argue would reduce the dangers to sex-workers and combat prejudice. Paul Mason has argued in his book Post-Capitalism that this reflects a trend of contemporary neo-liberalism to capture “externalities”; aspects of our social lives that do not obviously conform to market or value generating transactions.
The direction this is heading in seems clear; human sexual relations are just like any other form of exchange within the economy. The fact that money may not actually change hands does not mean sexual exchange should be excluded from regimes of management where pleasure is rarely a significant factor. Ultimately sex is just another instance of one party wishing to obtain goods or services from another, fitting squarely within prevailing legal discourses of property and contract. Lovers become contracted partners in an amorous exchange and the estrangement of immanent human relations into the legal/juridical framework is further normalised. As so often in the most developed societies, security and risk management are the banners under which we are rapidly burying all possibility of a joyful form-of-life. Consent classes are potentially then a correlate to the reimagining of prostitution through the logic of work, contract and entrepreneurship. And as such the prostitute becomes the vector by which all sexual relations are being reconfigured along economic lines.
The classes, which would presumably be appropriate for anyone are in fact part of a package from the US which includes the notions of “safe-spaces” and “trigger warnings” (both present in the NUS literature) which opponents argue have together contributed to infantilising an entire generation of students across the pond and is threatening to make relations between young people just as miserable and estranged over here. There has also been criticism of the use of safe spaces by some universities and interest groups to shut down legitimate criticism of Israel on the grounds that Jewish students felt threatened. This is however another issue entirely. Let me emphasise again that in no way am I suggesting that consent is an irrelevance for sexual relations (quite the opposite) or that one should casually reject the discourse around consent purely on the basis that it brings with it unforeseen consequences or types of language. Nevertheless it is all too often forgotten that life and Law are fundamentally distinct realms and the assumption that the former might be contained and safeguarded by the later is a mistake that western society in the modern period never ceases to repeat.
“Our suggestion is that the presuppositions introduced by the pornographic conversations persist in the conversations with real women” (Langton 2009 pg187)
Consent, when referring to a verbal or other sign form of agreement is an example of a type of speech act called performative. Performatives are not like regular descriptive speech that report something about the world; the cat is on the mat, etc. Performatives do not merely describe a state of affairs but actually bring that state of affairs into being through their saying. When someone says “I promise” those words are not representing a promise but constitute the promise itself. Performatives do what they say. Similarly J.L. Austin who first developed speech act theory in the 1960s uses the example of an umpire in tennis who when shouting “out” constitutes the ball ‘as’ out within the context of the game regardless of whether it actually was or not. Saying so ‘makes it so’. Indeed this reality constituting aspect of performatives is central to American philosopher Judith Butler’s queer theory and the possibility she sees of undermining prevalent norms of gender and sexuality; notably through the use of Drag.
Consent classes are not the first example of performatives being brought into issues around rape and sexual violence. Second wave feminists in the 1970s and 80s found Austin’s work on performatives invaluable in building their case against pornography on the grounds that it depicted women in ways that caused “illocutionary disablement” of women in general. In short the argument goes that the depiction of women in pornography as enjoying domination, as always available, as always saying yes and critically when they do say no not really meaning it, meant that a women’s capacity outside of pornography to refuse sex (refusal is also a performative) was negatively affected. As in the case of the Ched Evans retrial consent is for all intents and purposes assumed. As Catherine MacKinnon put it in an influential essay: “pornography brings its conditions of production to the consumer,…establishing what woman are said to exist as, are seen as, are treated as, constructing the social reality of what a women is and can be in terms of what can be done to her, and what a man is in terms of doing it”(MacKinnon 1993 pg25). Pornography is said to make comparable pronouncements on the status of women as an umpire in tennis calling the ball out or a jury ruling a defendant guilty. As such it does not simply describe a state of affairs but continually constitutes and re-enforces that state of affairs.
Saying no is a refusal and like utterances of consent are speech acts that aim at a particular effect and are as such dependent on factors Austin called felicity conditions. These are particular conventions and references that allow a performative to actually have the effect it is intended to have such as promising, accepting, etc. If however the one whom the refusal is directed to believes that women enjoy being coerced into sex, that for a woman to drink and enjoy herself is itself an invitation for sex and that even when they say no they sometimes mean yes, the act of refusal can fail to count as an effective speech act. The felicity condition whereby the speaker’s refusal is taken to reflect genuine intention is absent or disputed, as such it fails to count as an effective illocution. Between the speakers, as Jennifer Hornsby has argued, there is a lack of reciprocity (Hornsby in Dwyer 1995 pg224).
Although much of what MacKinnon and others argued about pornography at this time has been challenged, not least on the claim that it has a so called power of ‘divine performatives’ that can socially construct women unchallenged, there was a sophistication to their critique that brought in ideas of how the wider discourse on sex within a society effected an individual’s sexual relations at a fundamental level. Consent classes however appear something of a step back from this insofar as they take the concept of consent in a more or less uncritical way, as if it were not also dependent on particular conventions and subject to the vagaries and dominant interests within the wider discursive environment in which it is used. Although these classes do address the influence of rape culture (a term retained from MacKinnon’s era) it could well be argued that the claims made about refusal by second wave feminists apply equally to consent and that wider societal and ideological factors have a part to play in how such speech acts function and the sort of social relations they entail. The question we need to then ask is what are the felicity conditions that make consent intelligible in its contemporary form? I have already drawn attention to the legal economic influence which brings sexual consent into the realm of contract and exchange but what about other historical sources?
“When the ethical – and not simply cognitive – connection that unites words, things, and human actions is broken, this in fact promotes a spectacular and unprecedented proliferation of vain words on the one hand and, on the other, of legislative apparatuses that seek obstinately to legislate on every aspect of that life on which they seem no longer to have any hold” (Agamben 2011 pg70-71)
The etymology of consent leads back to the Latin consentio/consentire; literally to ‘feel-together’ or to be of the same mind. For the ancient Romans however the word never had the status of a technicus terminus in legal or economic writing and is instead found across the literature in numerous contexts evoking the sense of being of common mind or shared sentiment. The development of consent as a concept in modern legal discourse and the caveat in the NUS literature excluding enthusiastic consent makes clear however that sentiment or mutual feeling are not significant factors in its contemporary use. The sex worker does not feel the same about the act as the client. It should not surprise us that the etymological shift towards an increasingly abstract form of agreement took place during the 13th century when so much of the basic framework of modern systems of law were being worked out across Europe.
In English law it makes a prominent appearance near the end of that century in the Statutes of Westminster where for the first time the notion of sexual consent is developed independently of whether a girl (such laws dealt solely with girls) were married. In Roman and Canon law a girl’s perceived capacity to consent was tied entirely to the age of womanhood and marriage. Consenting to marriage necessarily implied consent to sex and the two were more or less indexed to the onset of puberty and as such the physical capacity to bear children. As Victoria Bates writes recently “Consent in itself was not the focus of these laws, in which a man’s right to take a girl’s chastity – ideally, but not necessarily, with her consent – came with marriage”. The marriage agreement was taken to give the husband a right in the use of the wife’s body, ostensibly for child rearing; a perspective on the institution of marriage that lived on well into the 20th century.
Bates also draws attention to the 1885 Criminal Law Amendment Act which gave us our modern two tier system of consent laws which set the felony age at 13 and misdemeanour age at 16. What is essential for our discussion is how the setting of the two ages reflected concerns about unruly sexual desire in young girls. “Before full maturity – physical and mental – girls were thought to need protection not only from men, but also from their own new and disorderly sexual feelings. This question of ‘capacity’ was a double-edged one: it complemented a child protection agenda, but also supported those who feared that girls (especially working-class girls) would ‘fall’ early and should not be given the opportunity to do so. This balance between protection and control ran throughout much Victorian legislation” (Ibid). In effect the raising of the age of consent to 16 reflected as much a desire to control young women as to protect children. I don’t believe it is too much to suggest that today’s discourse of consent as it plays out in the courts and social media and in particular how a woman’s clothing, her choice to drink, her choice of company and lifestyle retain the signature of this will to control and condemn female sexuality.
Leading into modernity there have then been two distinct but interrelated discourses on consent which now find themselves united in the contemporary concept. On the one hand a notion tied to the institutions of marriage, childbirth and ethico/religious obligations; on the other an increasingly general and abstract notion tied to the development of the law of property and contract and of the human being as an economic subject. It is clear that many aspects of the first discourse continue to influence the moral landscape around consent, with women bearing most of the negative consequences. It is also clear however that with the detraditionalisation of established sources of ethical norms such as the church, the family and the local community, that it is the economic discourse of consent which now holds sway over the field. More broadly, as the aspect of reciprocal feeling inherent in the ancient usage has receded the concept of consent has increasingly come to be associated with individuals embroiled in some form of negotiation. Its fate is like many other concepts in the Western metaphysical tradition; its character as an emblem of singular being-together, of common life, is hollowed out, abstracted and finally marooned as a mere statement representing the ascent of an individual to a matter present-at-hand.
“Making oneself vulnerable: Is that not what we do in friendship, and in desire?” (Doyle pg49)
The continued failure of the judiciary to properly protect women, instead perpetuating prejudice; and the proliferation of discourses collapsing the distinction between sex and other forms of economic activity are not phenomena opposed to each other. Both rely on the efficacy of the performative consent as a means to constitute harmless relations or identify harmful ones. As such consent relies on certain conditions of intelligibility, which Austin called felicity conditions in order to function. These include the distribution of roles, responsibilities and rights and obligations drawn from prevailing social relations. Or as Italian philosopher Maurizio Lazzarato put it in a recent critique of the emancipatory potential of speech act theory: “Just as the performative codifies enunciations, utterances, and their effects, it also institutionalises speakers and listeners, their respective roles and ranks, and the public space of their acts. The “subjects” that emerge here take no risks and do not engage themselves “personally””(Lazzarato 2014 pg174).
As we have seen the discourse of sexual consent is inseparable from its history as a means of managing female sexuality either in association with marriage and child rearing or the supposed dangers of precocious and disorderly female desire. Consent more generally is also inseparable from its development as a key concept in the history of property and contract law and in the present era the generalisation of those discourses as models for all human activity in the wake of the so called marketisation of life. It is for these reasons that I argue that making consent the foundational concept of any discourse dealing with sex will not help produce healthy, flourishing relations between people, nor ultimately prevent harm.
The situation in the courts and the continued prevalence of prejudice against women remain a salient example of how this historical baggage combined with legal exactitude are ensuring the failure to prevent or even identify that harm. Victoria Bates’ reflections on the 19th century consent laws and their ambivalent motivation similarly allow us to understand this strange dual view of women as simultaneously ‘at risk’ and ‘a risk’.
Returning to the situation in the universities Jennifer Doyle’s recent book Campus Sex Campus Security (Doyle 2016) describes how concerns around sexual harassment have articulated with the university security apparatus in the US. Doyle claims that outmoded paternalistic myths about female vulnerability have been generalised in the contemporary era and are now captured within the ubiquitous discourse of risk management. The appearance of consent classes as well as safe spaces is “shaped by the affective economy of a security culture in which a sense of injury and exposure revolves around sexual possibility – a possibility with the organizing force of a black hole” (Doyle 2016 pg28). This discourse of protection Doyle claims not only re-enforces but actually produces the subjectivities it claims to protect. Ultimately it constitutes a particularly insidious apparatus for normalising and inscribing both the essential fragility of the student-subject and the policing power of the university in its neo-liberal phase. Within these regimes of risk management sex appears as a thing, as a dangerous property possessed by “sexual sovereigns” that someone else might try to take away, or that we may misuse, and which we demand the state and university protect. Just as pre-nuptial agreements were meant to protect the property of the rich in acrimonious divorce settlements, and modern sugar daddy agencies seek to formalise that type of relationship outside of marriage, here the juridical framework of contract is again called upon to smooth over precarious interpersonal relations which in an atmosphere of cultural anomie and litigious anxiety increasingly lack any other grounding. The historical unfolding of contract and consent while always carrying with it the mark of freedom and individualism has also and always been a way for life to be captured in Law.
“We must think that what exists is far from filling all possible spaces. To make a truly unavoidable challenge of the question: What can be played?” (Foucault 1997 pg140)
This is meant to be a sketch for a critique and I make no claim to any magic bullet for the problems of sexual violence and how Western societies are addressing them. However to bring this to some sort of conclusion it may be worth reflecting on one kind of utterance that Lazzarato opposes to the performative. Michel Foucault’s late work included extended reflections on the ancient Greek practice of parrhesia, a word with no direct translation but which is to do with truth telling or true speech. This is however not the kind of speech that merely describes a state of affairs. As Foucault put it in almost tautological fashion: “parrhesia involves the way in which by asserting the truth, and in the very act of this assertion, one constitutes oneself as the person who tells the truth, who has told the truth, and who recognises oneself in and as the person who has told the truth” (Foucault 2011 pg68). In such speech it is the speakers themselves who appear rather than in the case of performatives like consent where what appears is merely the matter present at hand. The latter case brings in nothing that is not already decided upon or pre-assigned to accepted roles and responsibilities, of what can and cannot be said. Whereas in parrhesia it is the speakers freedom that appears and their courage.
In his writing on this “courage of truth” Foucault describes different situations where parrhesia is in play, several of which are political in nature such as Pericles speech to the Athenians during the Peloponnesian war. Indeed at times it is as if for the French philosopher the function of parrhesia takes on a significance for the wellbeing of a political community that surpasses even that argued by Cicero for classical rhetoric. For our purposes on the interpersonal level it is also crucial to emphasise that this openness in truth is a deeply ethical one that always demands a reciprocal openness on the part of the other which Foucault describes as the “parrhesiastic pact”. This is especially the case as the question of the free and moral subject “comes back to the question of the true discourse in which this moral subject constitutes itself and the question of the relation of power in which this subject is formed“(Foucault 2011 pg68). What is crucial to this argument is that for Foucault this kind of truth telling is the highest exercise of freedom, albeit a dangerous one.
Dangerous perhaps because unlike the performative parrhesia does not produce a codified effect, rather it opens up an unspecified risk (Foucault 2011 pg62). As such it is entirely opposed to the contractual logic animating the contemporary discourse of consent with its emphasis on predetermined, predictable outcomes and risk management. Parrhesia as an eruption of truth means that the situation between the partners is open, no longer predictable and that consequences cannot be known in advance. A declaration of love or desire always carries with it great risk for both parties. However clarity is essential here; parrhesia is not opposed to consent. On the contrary, at the very fundamental level of not forcing people to do things they do not wish to, consent is presupposed by parrhesia. Within a parrhesiastic situation the will to dominate the other must be entirely absent for the play of risk and openness to function, and it is only through such an interplay that a break with the predictable, with the closed and cold logic of sexual exchange can be made, that love and sex might reach the level of an event.
This is admittedly a somewhat vague and certainly more difficult form of relation to think compared to the familiarity of legal terms that increasing guide our public and personal lives. I hold however that it and other similar notions constitute a far better starting point for ethical sexual relationships than the limited and tainted discourse of consent. If there is any will left in this world to resist the transformation of all social life into market transactions; any desire to resist human intimacy being subsumed under economic categories; or any imagination left to think a break with the conditions of the past, then it will involve re-thinking sexual relations and sex education along these kind of lines.
Agamben,Giorgio – 2011 – The Sacrament of Language (Cambridge, Polity Press)
Doyle,Jennifer – 2015 – Campus Sex, Campus Security (Semiotext, California)
Dwyer, Susan (Ed.) – 1995 – The Problem of Pornography (Belmont, Calif.:Wadsworth Publishing Company)
Foucault, Michel – 1997 – Ethics:Essential Works of Foucault 1954-1984 Vol 1 (London Penguin Books)
Foucault,Michel – 2011 – The Government of Self and Others (New York, Palgrave Macmillan)
Langton, Rae – 2014 – Sexual Solipsism (Oxford University Press, London)
Lazzarato,Maurizio – 2014 – Signs and Machines: Capitalism and Production of Subjectvity (Semiotext, California)
MacKinnon, Catharine – 1993 – Only Words (Cambridge, Mass: Harvard University Press)