Why consent is not enough

Consent is the magical fairy dust which turns rape into sex; trafficking into free speech; and sexualized abuse, torture, and subjugation into sexual liberation — or so many people claim. Many “sex-positive feminists” acknowledge the legal standard of consent (defined as a lack of active resistance) is problematic: it is victim-blaming, it normalizes male sexual aggression, it arbitrarily draws a line between how much coercion is “too much” (it generally does not allow direct physical coercion, but permits social, emotional, and economic coercion), and it is irrelevant whether a woman wants to engage in sexual activity or merely submits to it.

For many, valuing individuality through permitting us to pursue our personal preferences and determine for ourselves how we live is central to human dignity, which is why consent is used as the dividing line between sex and sexual violence. But are my preferences expressions of my individuality? If you were raised in a Western industrialized culture and were given cockroaches for dinner, you would likely be disgusted — possibly physically sick. There is nothing natural about this reaction; cockroaches are edible and nutritious. Even a very visceral reaction can be, and usually is, socially conditioned or created.

Feminists argue that gender and sexuality is a social construction, specifically, that masculinity is constructed in terms of social-sexual dominance and femininity in terms of social-sexual subordination. We can see how this manifests out in our social-sexual norms: coercing women is sexy, women are commodities to be used by men, hurting women is sexy. This social construction of our identity is possible because our self-conception as well as our desires and preferences are conditioned and constructed by interpersonal interactions and our social environment. We become how others treat us, and there are numerous well-documented ways in which social norms shape who we are and what we do: stereotype threat, self-fulfilling prophecies, implicit bias, and adaptive preferences.

Adaptive preferences pose a particular problem for the idea that pursuing whatever preference we have expresses our status as free and equal human beings. Adaptive preferences result when we unconsciously change our preferences to adapt to our circumstances. Women often do not feel entitled to equality with men, bodily integrity, sexual pleasure, or even basic necessities such as sufficient food, because they have been placed in a situation where these are not available to them or these are systematically denied them. But there is another, and even more pernicious psychological fact: women are often not aware of the abuse they suffer at the hands of men as abuse (this is why so much second-wave feminism concentrated on consciousness-raising).

Jennifer Freyd is a psychologist who has studied the repression of childhood memories of abuse. She argues that humans are “hardwired” to react with withdrawal or confrontation when they are betrayed. However, in relationships where there is dependency or power imbalances, the subordinate stops being aware of the abuse because he/she does not have the option of withdrawal or confrontation. If we add to this that women are invalidated or subject to various degrees of social violence when they do not comply with gender norms, we have a serious problem for “individual choice.”

Problems with Consent

Rosalind Hursthouse once said that if one read all the literature on the ethics of abortion, one would have no idea what pregnancy was actually like or that it involved men having sex with women. Similarly, pro-BDSM or pro-pornography discussions tends to focus on women’s choices, not men’s actions or the experiences of women who have been harmed through these practices. They tell women it is sexually liberating to experience physical or sexual abuse provided that is what women “choose,” but they never ask why it is acceptable for men to inflict pain or harm upon women. In doing so they often ignore, invalidate, and silence women who have been harmed by these norms and practices while endorsing the eroticization of violence under the aegis of the “consensual.”

Consent relies upon the presumption that people will choose in their own self-interest, or at least in ways that does not fundamentally violate their humanity. As demonstrated in the case of adaptive preference, that is simply false. But there is an even deeper problem: consent precludes evaluation of the act ethically or politically (e.g., tying someone up and abusing her/him), and instead puts the “blame” for the rightness or wrongness of the act on the person suffering it (the person being abused). Defending ourselves is extremely difficult in the best of circumstances, as it is emotionally exhausting and the desire for social belonging often overrides basic self-protection: even, and perhaps especially, white males are subjected to sadistic hazing rituals in fraternities, sports teams, and the military. When women are taught that they are objects to be hurt and to be used, it becomes even more difficult. We should never put someone in a position of needing to demand respect from others; this puts the emotional, social, and moral burden on the person at the “receiving” end of potentially abusive or exploitative behavior, rather than on the perpetrator.

Another problem occurs when we consider how much violence consent can legitimate. If consent is supposed to have such transformative power, when does the fairy dust stop working? How much pain, harm, and injury is it acceptable to inflict upon someone before it is no longer justifiable? At permanent injury or mutilation? Is consensual murder acceptable? Sex-positive feminists and BDSM supporters have the problem of arbitrarily determining how much violence is acceptable before it is “too much” (sounds rather like the way patriarchalism arbitrarily determines how much coercion is acceptable before it is “too much.” Hmm…) We cannot presuppose that people will simply not consent to something “harmful;” women have “consented” to death when an abortion could easily save their lives.

But BDSM advocates have a particular problem. Even while they take themselves to be the “gold standard” of consent, it is not the consent that is eroticized: it is precisely the coercion (bondage, domination) and the violence (physical abuse, “rough sex”) that is sexy. A man who has raped, tortured, and enslaved women has a genuine complaint against BDSM advocates who try to condemn his activities: how can they say what he did was wrong when he has merely done what they said was sexy?

Perhaps, they will say, he should have obtained his victim’s consent beforehand (it is an open question as to whether emotional coercion, power imbalances, or, for example, convincing a woman with low self-esteem she deserves abuse would count as “consent”). Everyone, so the pro-sex feminists argue, should be able to have the kind of sex they want — even if this involves hurting someone else, provided that it is “consensual.” Let’s see if that would be actually the case.

Suppose we have a world in which we define consent as active, explicit, and ongoing. In addition, we will assume that we have a legal system that reliably and adequately deals with cases of sexual assault. However, we will keep the other social-sexual norms intact (normalization of pain, eroticization of violence, and instrumentalization of women). In this world, Alice is a heterosexual female who wants the physical and emotional intimacy of a romantic relationship. She does not want to engage in any sexual activity that is painful or degrading for her; instead, she wants sex to be mutually pleasurable. What are her options?

1) Find a man who does not have a preference for eroticizing violence. This is going to be extremely difficult because men are strongly socialized into norms that train men’s sexual responses to situations in which women are harmed and objectified. Since not hurting women is merely a “preference,” there is no motivation for men to not have those responses or to be concerned about sex being reciprocal.

2) Never have a sexual or romantic relationship with a man.

3) Habituate herself to the social-sexual norms.

I am not saying that Alice is owed a relationship. But is Alice coerced? The answer is yes, because she is denied an equal opportunity to pursue a relationship to satisfy her need for emotional and physical intimacy. If we required, for example, that all black people must first be physically abused before they are able to earn their college degree, this would clearly be unjust. Similarly, a romantic or sexual relationship for Alice — something which people often think is a genuine human need, or at least an important personal good — comes at a cost that men do not have to pay, and the cost is her own suffering and bodily integrity. Would Alice no longer be coerced if she habituates herself to engaging in painful or degrading sexual behaviors in order to attain the intimacy she desires? It seems this is an even greater form of coercion; a coercion that becomes so ingrained that she can no longer see herself as deserving anything other than pain or abuse.

And this is precisely what happens. Consent is vulnerable to the “Wal-Mart Defense”: a robust understanding of consent might be able to deal with certain small-scale types of coercion, but once the coercion becomes so deep and pervasive that it constitutes a social norm it suddenly becomes “too big to fail.” Consent obscures, rather than attacks, the root cause of gender inequality: that hurting women is sexy.

Answering Objections

“You can’t shame people for their sexual preferences or sexual orientation.”

First, I have already noted that preferences are (often) socially conditioned. Second, the mere fact of having a preference, orientation, or identity carries no weight. We can, and should, make judgments about the content of that preference or identity. Some people strongly identify as white supremacists and neo-Nazis. Some people may consider their sexual orientation to involve pedophilia or rape or murder; the fact that it is their sexual orientation does not make pedophilia or rape or serial murder acceptable.

“You don’t speak for all women. These women don’t see it as a harm.”

I do not deny that a woman may genuinely feel that pain and subjugation is sexy. This is precisely why consciousness-raising is a necessary component to the feminist political project. As a feminist, I can validate a woman’s experience without endorsing the content, which has been shaped by conditions of inequality. For example, I do not deny that women are ashamed of their bodies and feel the need to be impossibly thin, but I do not endorse that they should be ashamed of their bodies or that they should starve themselves.

Harm is not subjective and cannot merely be a product of someone’s feelings. First, because we know that people, due to socialization, invalidation, and inequality, are not always aware of the harm as harm. Second, because we would not say, for example, that men are “harmed” if they cannot have sex with any woman they want or that Christians are “harmed” by homosexuality — even though many clearly feel that way.

“You are denying women their agency and not valuing their individual choice.”

There is never a question of a woman’s agency. At a trivial and metaphysical level, we are always free to choose what we do unless we are unconscious, under the influence of hallucinogens, or physically disabled. I am not judging or arguing against what women are choosing when they “consent” but what men (and some women) choose to do to them. What is important is the social norms, practices, and conditions that make that choice possible. Prostitution could not be a choice if there were no demand and if we did not think that people were things to be bought and sold.

“What if we make pornography with men in the submissive role?”

Equalizing violence does not create equal conditions. We do not solve the problem of racial inequality by having the police arrest and violate the civil liberties of an equal number of white males; we eradicate inequality by eradicating the conditions of subordination and creating positive, material change that truly values all people as free and equal.

C.K. Egbert is a current graduate student in the Philosophy Department at Northwestern University. Her research focuses on feminism and equality.

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