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Sexual assault
The law

The hidden politics of ‘consent’

As critics have pointed out, the social media ‘movement’ #MeToo hasn’t really moved much since October last year.

Global conversations on sexual assault notwithstanding, we’re stuck with personal narratives, an emphasis on high-profile individuals, and little by way of a broad, institutional challenge to coalesce around.

Despite this, it’s hard not to think that we might be in the midst of a generative time for new, critical insights on sexual violence.

The much maligned Germaine Greer has released her latest essay, On Rape, and to no one’s surprise, it has caused a bit of outrage, with her rather conservative conclusions on the subject rightly being held up to scrutiny.

But we should not so hastily turn away from what has been injected into the debate: in this particular historical moment, where the radical substance of feminism has been so thoroughly diluted, what are our options? How do we reflect critically on how we theorise sexual violence? How to do so in a way where the voices of victim survivors are centralised?

Here’s what we know; are tired of knowing.

The stats are bleak. Sexual violations occur predominately in private and few instances are reported. Proving the absence of consent in law is difficult and complex. Juries sympathise with ‘average’ looking men and expect more evidence than the complainant’s testimony. There are often no witnesses. Most legal and juridical systems fail to systematically deliver justice to victims.

 

In 1993 in the United States, young women students at Antioch College developed an affirmative consent policy for sex, as part of a student-led response to campus rape. Subjected to intense media scrutiny, this policy was one the first of its kind in calling for a model of ‘affirmative’ or enthusiastic consent.

The New South Wales Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, recently described this model as one where ‘[y]ou must explicitly ask for permission to have sex’.

Enthusiastic or affirmative consent is now part of mainstream, public conversations about sex. Although not uniformly enshrined in criminal law across all Australian states, affirmative consent models are reflected in law reform efforts, most recently in NSW, but also internationally.

Making consent cool has been feminist business now for some time. Most of us have heard the consent advocacy slogan ‘consent is sexy’.

But the affirmative consent model has received its own muted criticism: one partner (often coded as active, initiating and masculine) duteously asks the other (coded as relenting, as feminine) to consent. So we have a heterosexist framework of sorts where one partner pursues sex and the other defends against or permits it. There is also the incongruous formality of the set up and an imposition on one partner to perform enthusiasm. What about other sexual cultures, or when desiring is performed differently?

Regardless, affirmative consent advocacy has done important work in educating the community, in the hopes of fostering better sexual practices by encouraging open and honest conversations about sex. This is to be applauded, and this work is, sadly, far from over.

But, many of these projects are also about rehabilitating the concept of ‘consent’ for a feminist political project, and in feminist practice and language, consent itself still feels ill-fitting; a blunt tool for demarcating violence from non-violence. In law, consent as legal principle still fails victim survivors, time after time.

 

Feminist philosopher Linda Martín Alcoff’s book, Rape and Resistance: Understanding the Complexities of Sexual Violence, published earlier this year, provides a new critical perspective. Alcoff takes a post-colonial approach to consent, drawing on her own perspective as a victim survivor and calls for a more nuanced approach.

Consent, she argues, doesn’t help us with what she calls ‘gray rape’ – the spaces in between. Consent’s moral binarisms don’t allow for the multiplicities of experience of victim survivors – and it is a poor indicator for what distinguishes ethical from ‘harmful’ sex.

Professor of Law and Philosophy, Robin West, in a similar vein, has used the term ‘unwelcome sex’ to describe the ‘consented-to sex’ which is often not wanted, welcomed or desired, ‘but is also neither non-consensual nor coerced.’

Alcoff’s work is not without its shortcomings, namely its retrograde take on sex work and failure to consider the agency of sex workers, but her general point is well-made and, in my view, welcome: consent is so often an inadequate metric for understanding sexual violence.

 

In her 1988 text, The Sexual Contract, a classic text of second-wave feminism, Carole Pateman demonstrates how central consent is to the modern, Western political tradition.

The Sexual Contract is partly an exploration of consent and the body of knowledge it originates from – the law of contract, tort and criminal law; and more widely, Western social contract theory.

Consent is central to liberal, philosophical notions of interpersonal transactions and understandings of the body as ‘property’. These are the hidden politics of consent. This is the part of consent’s baggage that make it, should make it, in fact, a bad coupling for feminism.

Pateman shows how, for contemporary contractarians (or libertarians), all of our social life and relationships originate from a fictive, original contract that we as citizens make with the liberal, democratic state. In this worldview, social life is nothing more than an unending string of contracts, where all relations are created by free agreements.

Our making of contracts takes on a special meaning: it is part of what it means to be an individual and make meaning of public life. We are people because we make contracts.

Pateman powerfully cautions us in ‘making feminist demands in contractual terms’ while being unaware ‘that the ‘individual’ as owner is the fulcrum on which modern patriarchy turns.’

If we are increasingly willing to accept that an abstract juridical form, containing within it law’s logics of adversarialism, objectivity and detachment, impressed onto sexual relations does not, and has not, worked for feminist ends, how might we begin to think differently about sex and sexual violence?

 

Consent’s attachments – its underlying principles – are the indispensable companions of, in today’s world, neoliberalism. At a scholarly level, the politics of consent are being examined. How now to translate this at the activist level and into feminist practice?

What would a retreat from consent look like, as opposed to our more recent attempts to subvert it for our own purposes?

Acknowledging that all options open to us are, at some level, inflected with the constraints of patriarchal power, which concepts are still useful to us in our political struggles? What would doing away with the hidden politics of consent make possible? What would we find?

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

If you like this piece, or support Overland’s work in general, please subscribe or donate.

Amber Karanikolas is a writer living on the lands of the Kulin nations in Narrm. Her work has appeared in Overland and Balkanist, among other places. She tweets at @grim__tweet.

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Comments

  1. Thanks for this thought provoking piece. I see the argument for consent as a last ditch gospel of despair, a coping strategy that concedes that men are so numb they cannot accurately read and respect another’s sexual impulse and desire… and can’t even imagine an alternative. When does a person have to ask fo enthusiastic verbal agreement? When they are completely numb to the intuitive communication between feeling bodies, and/or just not interested in the other as an agential being.

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