Consent Is Not A Contract

Consent Is Not A Contract December 22, 2018

After teaching about sex education for a semester, my students and I had a lot of conversations about what consent is and why American schools aren’t handling the topic well. This comes down to – in part – a faulty understanding of consent.

Photo by Rawpixel from Unsplash. In public domain.

What is consent? I don’t know that I’ll be able to definitively solve this thorny issue in a blog post, but I can start with what consent is not: a contract.

In recent years, there have been a lot of great approaches to talking about consent: the proposal of the standard of enthusiastic consent, consent as tea, and so on. I view these as useful puzzle pieces that help us get closer to a better definition of consent even as we acknowledge that one of these pieces may not yield the bigger picture (for example, making enthusiastic consent the absolute standard risks alienating people who less-enthusiastically choose to have maintenance sex in a relationship, or sex workers who consent to do their job with the same enthusiasm as anyone who goes to work on a mediocre day).

One of the things that I somehow made time for this semester was reading a good chunk of the book Rape & Resistance by philosopher Laura Martín Alcoff. In it, she writes: “Relying on consent is the main way many argue we should normatively distinguish between good and bad sexual practices, but consent is always embedded within structures that pose challenges for low-status groups of all sorts” (77). This is a reminder that consent is not a neutral, value-free thing that exists on its own merit, but rather it is impacted by other aspects of identity and situation. One might go so far as to say that consent is intersectional, in that people impacted by multiple overlapping kinds of oppression will be disproportionately less able to access a simple, unproblematic kind of “yay/nay” consent. Which is not to argue that disempowered people are unable to consent, because that just takes away their agency which is not okay, but rather to say that the less power or agency someone has, the more problematic or fraught their consent becomes.

All of this negotiation and nuance around consent is not helped by having a contractual concept of consent, which I argue is prevalent in many contemporary American contexts. This is related to viewing sex as a commodity which I’ve already discussed here, meaning that sex is viewed in a transactional way by many people: buy the gal a dinner and she’ll put out, that kind of thing (ugh). This is a cornerstone of rape culture.

But here’s the thing: when someone verbally consents to an act, whether a sex act or not, that verbal consent usually does not carry the same legal power as signing a contract to do that thing. That’s why contracts exist – to be able to legally enforce things people have said they’ll do, things to do with property and finances and such.

One of the clearest explications of consent I have seen comes from feminist legal scholar Lois Pineau, who masterfully argues that court criteria for consent (especially when it comes  to date rape cases) has become entangled with

a number of mutually supportive mythologies which see sexual assault as masterful seduction, and silent submission as sexual enjoyment. Because the prevailing ideology has so much informed our conceptualization of sexual interaction, it is extraordinarily difficult for us to distinguish between assault and seduction, submission and enjoyment (222).

In other words, due to antiquated norms about heterosexual pursuit styles and women’s need to preserve their virtue, we’re stuck with a series of ideas about consent – that have legal validity – that can be used to rationalize sexual assault. In other words, sexual aggression is seen as an ordinary part of seduction/courtship. This, incidentally, directly feeds my argument about the uneven distribution of trauma in heterosexual dating.

However, this gendered paradigm leads to a contractual view of consent that carries, as Pineau describes, devastating consequences for women:

Attempts to explain that women have a right to behave in sexually provocative ways without suffering dire consequences still meet with surprisingly tough resistance. Even people who find nothing wrong or sinful with sex itself, in any of its forms, tend to suppose that women must not behave sexually unless they are prepared to carry through on some fuller course of sexual interaction. The logic of this response seems to be that at some point a woman’s behaviour commits her to following through on the full course of a sexual encounter as it is defined by her assailant. At some point she has made an agreement, or formed a contract, and once that is done, her contractor is entitled to demand that she satisfy the terms of that contract. Thus, this view about sexual responsibility and desert is supported by other assumptions about contracts and agreement. But we do not normally suppose that casual nonverbal behaviour generates agreements. Nor do we normally grant private persons the right to enforce contracts. What rationale would support our conclusion in this case? (227)

In the remainder of her article, Pineau likens sexual interactions to conversations rather than contracts, engagements meant to mutually fulfill a desire for authentic connection rather than complete an obligatory term, under duress of enforcement from the state if need be. And yes, this should bring to mind the recent debates in American social media about whether enforced monogamy would help with the problems created by men becoming violent because they feel deprived of the sex they think they’re entitled to. By which I mean heterosexual sex with attractive women, of course.

Following the inherent logic of consent being something that reasonable parties can be assumed to have said yes to, Pineau also writes: “Nor can we reasonably suppose that women have consented to sexual encounters which we know and they know they do not find enjoyable” (239). So what gives men (and again, I understand that it’s not just heterosexual cisgender men abusing instances where consent is thought of contractually, it’s just useful shorthand) the right to decide that an implicit agreement for sexytimes must always be followed through on, and to decide that their enjoyment trumps that of their partner?

Well, the series of beliefs surrounding hegemonic masculinity, for one thing. And, as Pineau points out (229), the inherent distrust of women’s capability to know themselves hence convey trustworthy information. The causes and consequences of this paradigm are pretty entangled with one another, though, as heteronormative gender roles feed into and result from messed-up gendered notions of consent as contract.

Other negative consequences of this paradigm include putting women in danger for saying no to sex, and consequently making them responsible for delivering a gentle let-down to try to defuse any dangerous negative situations. The unfair distribution of emotional labor when it comes to managing the entanglement of sex and emotions has always infuriated me; I want everyone to be raised to learn how to take “no” for an answer when it comes to consent being withheld or withdrawn (hint: if you get turned down, try saying something like “thank you for taking care of yourself”).

I’ll wind this post down, though there are more insights from Pineau and Alcoff that I would love to share on this blog at some point. The take-homes I want people to have from reading this, though, are:

  • Verbal consent (especially for sexy things) is NOT a contract, ever
  • Viewing verbal consent as a contract often carries implicit gender norms that are harmful
  • Multiple social systems – from our court system to how dating tends to work – need to catch up and stop viewing consent in legalistic, contractual terms

 

References:

Alcoff, Linda Martín. Rape and Resistance: Understanding the Complexities of Sexual Violation. Medford, MA: Polity Press, 2018.

Pineau, Lois. “Date Rape: A Feminist Analysis.” Law & Philosophy 8 (1989): 217-243.

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