Consent — Intuition and Reality

Like many of us, I have been following the modern conversation around sex closely.

Now, it is no secret that our society is divided on the issue.

To be honest, internally I am divided too. 

The modern insistence on consent, or rather the practical philosophy that emerged around it, always leaves me feeling ambivalent. 

In our society, there is the intuition that some sexual acts are undesirable, perhaps immoral, and should never be allowed to be imposed from the outside. But as we are learning fast, there are also many other intuitions which are hard to square up with the conservative consent-based modern zeitgeist.

It’s always been hard to encode into law a spirit of justice and fairness. Words are imperfect instruments and can at times sometimes lead us astray if we read too much into them. I think something like this has happened to the idea of consent. 

On face value, it’s a no-brainer that no one should proceed without consent. At least in the abstract, consensual sex is the common ideal we all share.

Yet, as the recent years have shown, there are many questions left unanswered. For example, how is consent obtained? If the whole ethos of sexuality-based-on-consent is that one must always have a green light before interacting with another, then a natural question is: is this even possible?

In other words, if one needs consent for sex, does one need consent for establishing consent too? The answer is hard from clear. One might think speech is safe from any consent requirement, but we have long established norms against verbal sexual harassment. If some forms of speech (e.g. any sexually suggestive word, cat-calling, etc.) are off-limits, it seems that any and all are potentially so too. After all, maybe the law is too liberal on sexual speech and “hey, you’re beautiful” is already crossing a line?

Thus, we are at the unfortunate position of having de facto ruled out speech as a means of establishing consent. But where does this leave us? How are we to have sex? Maybe the solution is to find a different way to signal sexual interest (a la Tinder, etc; but what if one doesn’t consent to these new forms of consent…)?

If only it were that simple. Since it was already mentioned, let’s go with the Tinder model of consent. Well, as far as it goes, it seems to work well in the beginning. But as soon as the relationship is brought back to the real world, a multitude of problems emerges once again. Culturally, we have an intuition that a person can reasonably change their mind about another, so we say “consent can be revoked” and “consent must be continually granted”.

And then we go down yet another rabbit hole. How does one know when consent is revoked? And if it is, what can one reasonably do? Clearly, not speak up, god forbid, touch. And if consent is permanently pegged to a fleeting emotional state, then is there any hope of sustaining it permanently? Is there any hope of not involuntarily transgressing such volatile boundaries? Are we all doomed to be sexual violators according to the law?

But it’s not like the Tinder model is bullet proof. Recent cases have shown us that consent is not always enough. Consent to consent is required too. If you go along with a sexual act, i.e. you consent, but for whatever reason (e.g. ideological, “I shouldn’t be consenting to this!”) you don’t want to consent, then we got a problem. Either wanting sex is not enough or wanting it implies wanting to want it, and wanting to want to want it, …. ad infinitum.

All of the above can be combined with a semi-deterministic view of the world to produce ghastly results. If sexual consent is merely (or mostly) the result of a surrounding culture with which one disagrees (i.e. one does not consent to consent) then it looks like nothing short of destroying all culture (and by extension, society and its social norms) would bear the promise of actually taking consent seriously. If one thinks a Tinder culture that displays their picture to the wrong people is too liberal (just like some argue that the wrong people staring at us sexually is harassment?), then one must put an end to the Tinder culture as it’s perpetuating sexual violence.

In any case, the upshot is always the same: any situation can become one of harassment as soon as one wills it be. Of course, that’s no way to write good law, but that’s the direction we’re headed now. What started out innocently enough is now turning into an incoherent philosophical view: we are all told to both give and take consent, but hardly anyone knows what this means anymore (especially when the same problem reappears immediately as soon as one attempts to ask for consent)

It could be said, and not entirely without justification, that the idea of consent is simply unfit to handle the fast impulsive nature of casual sex. Consent is all well and good if, whenever one thinks of it, one imagines the explicit commitment present in long-term relationships and marriages. Saying “Yes, I do” in order to stay with him/her till death does you apart is a form of consent that has significance and behind which stands years of deliberate thought. One night stands are simply not the same — both in principle and in practice.

So, perhaps the framework of consent is simply not of the right shape for all of human sexuality to fit in. Perhaps what we really care about is not so much consent, but rather the potential for harm — both physical and emotional? I don’t know. But it’s interesting to think about. Until then, we are doomed to keep mulling over potentially meaningless questions such as “can you consent while drunk (how drunk?)”, “can two people simultaneously be raping each other”, and “can anyone ever really consent outside of cultural and environmental factors (if being drunk strips you of the power to consent, what else in the environment does so too? patriarchal ever-present norms? the enthusiastic lustful efforts of the other trying semi-desperately to seduce you? what else?)”.

The result I fear will be not only a confusion about human sexuality, but also a conceptualization of it that is at clear odds with the actual experience of it. Personally, I have always found the language of harm clearer than the language of consent. The latter has been an ideological construct and a sort of mantra that has been repeated over and over without any real effort made to explain it (and when people purport to try to explain it, it’s usually done under a veil of condescension, i.e. “consent — it’s not that hard (you dumbo). just don’t engage sexually with another if they don’t want it”). In reality, when we’re having sex, we’re mostly trying not to cause harm — sex is supposed to be pleasurable for all parties involved, after all!

It’s a bit ironic that the supposed champions of free sex have to come to a philosophy which punishes impulsive sexuality by imposing a standard so frequently impossible to meet. If there are no clear rules about which sex is ok, then, of course, it will be casual sex that meets its demise. Married people (and the proponents and practitioners of conservative sexuality)  would hardly lose any sleep over consent. The modern discussion of consent is far from the ideal of making sex free. Quite the opposite, it is making sex so expensive that one requires a pre-existing relationship to be safe from unfair accusations.

At least when it comes to sex, the west is terribly confused…

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  1. floatinggold January 23, 2018 @ 11:56 PM

    This just makes me angry. Of course, there are bad, abusive people out there, but if you put anything on a stage, you invite a microscope, which will in turn drag out the most ridiculous of things.

    Oh, so now, in the heat of the moment, when both parties are participating “willingly” in kissing, touching, etc, are we supposed to stop and ask them to sign a waiver? Don’t their actions speak louder than words? Absolutely ridiculous. And even if they sign a written consent, at some point, someone can question it, arguing that you forced them to do so.

    And with the compliments that you mentioned. Saying “you’re pretty”, or “you’re handsome” can now be considered sexual harassment. C’moooooon. Please, then do not complain to me later that nobody tells you how beautiful you are.

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