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Debate over Title IX affirmative consent standards has assumed that consent is the best basis for a feminist sexual politics. But what if it isn’t?
This essay is adapted from Screw Consent: A Better Politics of Sexual Justice.
In the summer of 2017, Teen Vogue published an article titled “Anal Sex: What You Need to Know.” Penned by sex educator Gigi Engle, the essay is cute and candid (“Here is the lowdown on everything you need to know about the butt stuff”) and emphasizes the importance of sexual communication between partners. Engle explains that anal sex is pleasurable if tricky at first, and stresses the importance of dialogue with one’s partner: “Whether you are planning to give or receive anal sex, a conversation must take place beforehand.”
In our search for an egalitarian and feminist sexual culture, consent talk at best diminishes and at worst perverts our sexual justice politics.
What draws me to Engle’s article, though, despite its overall awesomeness, is its approach to sexual consent. “Enthusiastic consent,” Engle writes, “is necessary for both parties to enjoy” anal sex. This is untrue as a factual matter: enthusiastic consent—or for that matter, any consent—is not necessary for a sexual experience to be enjoyable. Teenaged Billy or Becky might only hesitantly consent to sex that turns out to be the best, most mind-blowing experience ever. Becky might even slip a finger in Billy’s butt without Billy consenting in advance and Billy might absolutely, unequivocally love the sensation. Conversely, Billy and Becky might emphatically consent to sex and even derive sexual pleasure from doing so and yet find the ensuing sex thoroughly terrible.
This example illustrates my concern that in our current moment of sexual politics—let’s call it the Consent Moment—we risk collapsing consent into desire into pleasure, not (yet) as a matter of law or policy, but as a matter of political rhetoric and possibly embodied experience.
This is not to say that I advocate for eliminating consent as a core component of sexual assault law. An affirmative consent standard is the least-bad standard available for sexual assault law when compared to “force,” “resistance,” or nonconsent standards. At the same time, though, consent is a poor basis for progressive sexual politics. In our activism and advocacy for an egalitarian, feminist, and more democratically hedonic sexual culture, consent talk at best diminishes and at worst perverts our sexual justice politics.
One key problem with the primacy of consent in our sex politics is that its conceptual thinness has been remedied by increasingly more robust, sometimes ridiculous redefinitions of consent as enthusiastic, imaginative, creative yes-saying. But the unfortunate corollary is the cultural coding of non-enthusiastically desired sex as sexual assault, which generates conservative and sometime feminist backlash (“Bad sex is not rape, after all,” sings this chorus) and perhaps exacerbates one’s sense of injury when sex goes awry.
A second key problem with the primacy of consent in our sex politics cuts the other way. Bad sex, even if consensual, can be really bad, and usually worse for women: not just uninspired, unenthusiastic, or boring, but unwanted, unpleasant, and painful. That problem cannot be addressed by consent. Worse still, the problem of bad-as-in-really-bad sex is deprioritized by the consent-as-enthusiasm paradigm, which divides sex into the categories awesome and rape and leaves unaccounted and unaddressed all the immiserating sex too many people, typically women, endure.
In this essay I consider contemporary consent-based sexual politics, along with the pushback that politics has received from some quarters of the academy. I suggest too an alternative aspiration for a progressive, feminist sexual culture: what I have come to think of as a politics of democratic hedonism. A politics of democratic hedonism imagines a world in which pleasure and intimacy is not so systematically and unfairly apportioned to the privileged few. Unlike a politics of consent, with its paeans to enthusiasm or affirmation and its focus on the immediacy of the sexual encounter, a politics of democratic hedonism takes a few steps back in time and space, querying how opportunities for intimacy and pleasure might become more accessible for more people, and how people’s capabilities as sexual decision-makers might be better cultivated and informed.
• • •
The consent-as-enthusiasm paradigm divides sex into the categories awesome and rape and leaves unaddressed all the immiserating sex too many people, typically women, endure.
From the spring of 2011 onward, colleges and universities overhauled their sexual misconduct policies and procedures. These reforms were initiated by student activists and student survivors of sexual violence. They aimed to hold academic institutions accountable for their failures to redress sexual violence under the sex nondiscrimination guarantee of Title IX of the Education Amendments of 1972. At the same time, the Obama administration enumerated and expanded universities’ Title IX compliance obligations. While the federal directives address disciplinary procedures, standards of proof, and reporting requirements, they do not mandate the adoption of a specific consent definition into sexual misconduct codes. Nevertheless, the Obama Title IX directives have come to be associated with “affirmative” consent guidelines, which many universities adopted to fulfill what they perceived to be their spirit. Such guidelines redefine consent as necessitating a positive sign, rather than simply the absence of refusal. In addition, some states have enacted laws that require their public universities to adopt an affirmative consent standard (along with certain disciplinary procedures). Buoyed by this wave, over the past few years the American Law Institute debated (but ultimately rejected) adopting positive consent as the gold standard for sexual assault law in its Model Penal Code (MPC).
Harvard law professor Janet Halley is one of the most vocal critics of the potential MPC revisions, affirmative consent, and, more generally, Title IX–based reforms to university sexual misconduct policies and procedures. “The campaign for affirmative consent requirements,” she warns, “is distinctively rightist.” Among her many concerns, she contends that an affirmative consent standard authorizes broader administrative and statutory intervention that “will often be intensely repressive and sex-negative”; that feminists are “seeking social control through punitive and repressive deployments of state power” and are “criminalizing as a first rather than a last resort to achieving social change”; that an affirmative consent standard potentially invites women to claim as rape sex they desired but later regretted; that the standard reinstalls gender norms of women as emotional and weak and men as sexually predatory and (yet) responsible for absorbing all risk; and that, to the extent that affirmative consent policies will result in greater surveillance and punishment, populations already targeted by the criminal justice system—black men, primarily—will disproportionately suffer under these new regimes. Finally, the most panic-inducing consequence of affirmative consent for Halley is that the standard culminates in the criminalization of undesired sex. It is not merely forced sex, sex under threats of force, or even nonconsensual sex that will qualify as a criminal sex offense. Now, or soon, affirmative consent standards will shift the threshold from force to nonconsent, to affirmative consent, all the way to wantedness, which for Halley represents nothing short of totalitarianism (or “governance feminism” gone ballistic): “A requirement of positive consent will deliver the boon many feminists are seeking: sex that women have that is dysphoric to them at the time will be punishable.”
Halley is not alone in her dissent. Her fellow Harvard law professors Jacob Gersen and Jeannie Suk Gersen argue that we are now “living in a new sex bureaucracy,” in which the federal government and nongovernmental organizations—chief among them institutions of higher education—are enacting and enforcing ever-expanding sex regulations. Insidiously enfolded into this “bureaucratic sex creep,” they warn, is the regulation of “ordinary sex” itself. By broadening definitions of, and requiring more robust administrative responses to, sexual violence, sexual harassment, and sex discrimination, “the bureaucracy” is regulating and attempting to change the norms of ordinary sex, which the authors define as “voluntary adult sexual conduct that does not harm others.”
Gersen and Suk Gersen share Halley’s concern about state overreach and about entrusting more and more power to institutions to solve social problems and govern our everyday lives. They express an additional concern that newly revised affirmative consent standards of campus sexual misconduct codes invasively extend such regulatory oversight to ordinary sex. By redefining consent to entail “enthusiasm, excitement, creativity, and desire,” colleges and universities are reregulating norms of sex full throttle, punishing students who fail to meet the companionate, “marriage-like” sex ideals of university bureaucrats. The authors list Gordon College, Elon University, University of Wyoming, and Georgia Southern University, among others, as drafting especially unreachable and moralized definitions of consent. For example, Georgia Southern defines consent as “a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement.”
Even accounting for legitimate concerns over state and university overreach, affirmative consent is not the bad guy.
Trumpeting a similar note, Yale law professor Jed Rubenfeld laments in the New York Times that his university’s definition of sexual consent reclassifies ordinary sex as rape: “Under this definition [of sexual consent] a person who voluntarily gets undressed, gets into bed and has sex with someone, without clearly communicating either yes or no, can later say—correctly—that he or she was raped. This is not a law school hypothetical. The unambiguous consent standard requires this conclusion.” In her polemic against the transformation of campus sexual misconduct codes and policies propelled by the federal expansion of Title IX, cultural critic and Northwestern professor Laura Kipnis opines that “sexual consent can now be retroactively withdrawn (with official sanction) years later, based on changing feelings or residual ambivalence, or new circumstances. Please note that this makes anyone who’s ever had sex a potential rapist.”
On the one hand, Halley, Gersen and Suk Gersen, Rubenfeld, Kipnis, and several others are right to shine light on these fast-paced, sometimes half-baked developments that can seem motivated more by threat of liability than by sex nondiscrimination. And students, like the rest of us, risk disempowering and depoliticizing themselves by surrendering social agitation and democratic deliberation to third-party declarative fiat. Take, for example, the Northwestern University students who demanded that Laura Kipnis be sanctioned, rather than debated, for her writings about sex between professors and students.
On the other hand, this scholarly sex panic about our campus sex panic seems, at times, even more panicky than the alleged panic. For even as Kipnis insists she does not “mean to be hyperbolic,” she nevertheless terrifies her readers by claiming that on campus, via campus codes, “virtually all sex is fast approaching rape.” This is hyperbolic. In fact, sexual consent cannot “now be retroactively withdrawn (with official sanction) years later.” Kipnis is reporting on a relationship that soured between a graduate student and a philosophy professor at Northwestern; the student subsequently accused the professor of initiating an inappropriate relationship with her and, on one occasion, having sex with her without her consent. The accusations triggered a Title IX investigation of the professor, who was eventually forced out of the university (the student subsequently filed a Title IX complaint against Kipnis herself for writing about the incident).
But this is the important part: the student claimed to have not consented to sex with the professor on one drunken night, not that she consented and retracted that consent. Based on conflicting evidence, Title IX administrators concluded that they could not determine whether the sex was nonconsensual and found the professor in violation of university policy on other (shaky) grounds. There are many ways in which the Title IX officers and other stakeholders at Northwestern bungled and perhaps manipulated this case. But even according to Kipnis’s own account, Northwestern adopted no policy whereby consent could be retroactively withdrawn. The student simply said she never consented. If she is lying, that is a question of fact. The student might have “flip-flopped” on consent, but the university in no way ratified the flip-flop. Codifications of affirmative consent do not weaponize sexual regret.
Rubenfeld’s imagined scenario—in which a Yalie commits “rape” by getting into bed with a woman who has “voluntarily” gotten undressed—is not simply far-fetched but nigh impossible. Yale’s consent standard, like nearly all university and college consent standards, does not require a verbal “yes” for the subsequent sex to be permissible. “Voluntarily” getting undressed would likely adequately meet the affirmative element of affirmative consent. Rubenfeld also misleadingly refers to such conduct as “rape” and to university sexual misconduct hearings as “rape trials.” Halley likewise slips into the language of “crime,” “criminalization,” and “carceral” in reference to university policies and procedures. To be clear, the severest forms of punishment for violating a college’s sexual misconduct policy is suspension or expulsion, not imprisonment. While Gersen and Suk Gersen convincingly document that the sex bureaucracy “operates largely apart from criminal enforcement . . . [though] its actions are inseparable from criminal overtones and implications,” it is one matter to look like a duck (“overtones and implications”) and another matter to be a duck (throwing fraternity brothers into prison).
Sex is always shot through with norms. In the United States, those norms are often informed by sex education curricula that are homo- and erotophobic, are medically inaccurate, and reinforce traditional, restrictive gender norms.
Gersen and Suk Gersen raise alarms that some of the sex norms that university administrations and student groups are promoting are both suspiciously traditional (for example, campus administrative literature extolling the values of a “more caring, responsive, respectful love life”) and convoluted (campus literature that describes non-sober sex, rather than intoxicated sex, as nonconsensual and therefore assaultive). Yet I am also inclined to agree with Susan Appleton and Susan Stiritz that there is no such thing as pre-regulated, “ordinary sex” on college campuses; that sex is always already shot through with norms; and that in the United States, those norms are often informed by sex education curricula that are homo- and erotophobic, are medically inaccurate, and reinforce traditional, restrictive norms of femininity and masculinity. Looked at panoramically, Title IX–based initiatives to facilitate more informed and more egalitarian campus sexual cultures are (or could be) correctives to prior modes of sex regulation and sex superintendence that are largely indefensible.
As for the apparently absurd university definitions of sexual consent that incorporate elements such as enthusiasm, sobriety, respect, and verbal agreement, Gersen and Suk Gersen are correct that University of Wyoming, Gordon College, Elon University, and Georgia Southern University include these lofty, rather dubious notions of consent in their student life brochures or in their Annual Security Reports (ASRs) to the federal government. However, these are not the definitions of consent in the institutions’ actual sexual misconduct policies. Georgia Southern, for example, defines consent, in part, as “words or actions, as long as those words or actions create mutually understandable clear permission.” The policy also states that silence alone will not meet the consent standard.
Finally, despite the thoroughness and incisiveness with which Halley criticizes the American Law Institute and California for potentially injecting an element of desire into their respective definitions of sexual consent, I do not see it. California, along with a few other states, has legislated that its colleges and universities adopt a standard of consent requiring “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Given that the standard is an expressive one, a person could very well be reluctant, ambivalent, or even uninterested in sex, yet the sex will not be rendered assaultive (or in violation of a school’s misconduct policy) so long as the person in some way performs something—some behavior, some cue, some token of willingness—beyond frozenness or silence. In other words, affirmative does not have to mean enthusiastic.
I agree that some federal regulatory and university administrative trends in the governance of sexual misconduct are worrisome. Secretive hearings, for example, threaten the due process rights of defendants. But it strikes me that the main problems regarding sexual violence, harassment, and discrimination are that incidents still go largely unreported; that women are still largely disbelieved; that student defendants are rarely expelled for violating their universities’ sexual misconduct policies; that police, prosecutors, and medical examiners routinely neglect victim complaints or discourage rape victims from pursuing charges; that arrest rates, conviction rates, and sentencing terms for sex offenses are still so thoroughly racialized; and that sexual violence, harassment, and discrimination are epidemic.
And even accounting for legitimate concerns over state and university overreach, affirmative consent is not the bad guy. The bureaucratic buildup, the due process concerns regarding university misconduct hearings, the stringencies and negative externalities of federal reporting mandates—all of these phenomena can be debated and redressed without skewering affirmative consent.
• • •
If we wish to facilitate mutuality, respect, and women’s self-advocacy, then we must focus on ways to facilitate mutuality, respect, and women’s self-advocacy, rather than simply renaming those values consent.
But neither can consent be the end goal of our sexual politics.
In a 2017 New York Times op-ed, Middlebury College graduate Amelia Marran-Baden laments the clunkiness of campus programming around sex and sexual violence. Because “communication and education” are the “roots of the problem” of unwanted sex and sexual violence, Marran-Baden explains, simply drilling into students that no means no or yes means yes does next to nothing to facilitate better sex and better sexual culture. Having students repeat a school’s consent policy does not help those students learn to communicate with their partners, to navigate drugs and alcohol, or to negotiate fears of rejection and inadequacy.
Yet even as Marran-Baden bemoans the inadequacy of college consent workshops, she cannot help but try to resuscitate consent, to make it stand for all the values good sexual citizens ought to hold. Marran-Baden is a cofounder of the Consent Project at Middlebury, which aims to redefine consent to entail “self-advocacy, respect, and mutual fulfillment—and not to treat it like a checkbox.” At times resignifying language is a political necessity, but at some point we are in worlds and words of nonsense. While we may legitimately debate the proper criteria for sexual consent to be valid in law, on campus, and in life, it verges on absurdity to redefine consent to entail respect, desire, fulfillment, and enthusiasm. Consent is a checkbox.
A feminist, democratically hedonic sexual culture—one that facilitates and more equitably distributes its possibilities for pleasure and intimacy—requires much more than the check of consent. Student activists and all others campaigning against sexual violence should undoubtedly advocate for sex that is fulfilling, respectful, and participated in enthusiastically by all parties. But it is politically mistaken to stuff those defensible values into the small, legalistic box of consent.
Consent talk narrows the spatial and temporal parameters of what we perceive as the problem. If we are debating what counts as the presence or absence of consent, we are by definition talking only about a sexual encounter between two or more persons in the immediate present. Consent talk cannot address binge drinking endemic to so much university social life; the culture of sexual pressure that infuses fraternities, sororities, and athletic teams; impoverished sexual education; people’s sexual skill set or lack thereof; the routinized violence of homosociality; (consensual but sexually abusive) hazing; or better ways to communicate in the sexual encounter itself in order to enhance possibilities for pleasure and decrease possibilities for discomfort or regret.
Put most broadly, if we wish to facilitate a feminist, more democratically hedonic, better-informed sexual culture of mutuality, respect, and women’s self-advocacy, then we must focus on ways to facilitate mutuality, respect, and women’s self-advocacy, rather than simply renaming those values consent. I have no doubt that Marran-Baden and her fellow activists are having conversations about “pleasure, anatomy, and masculinity,” but then why call the campaign the Consent Project? How about the Pleasure Project? Or the Reciprocity Project? By packaging our substantive and wide-ranging sexual values into the procedural and winnowing talk of consent, we are sacrificing a far more capacious project that could zoom out of sex and zoom in on sexual culture. What values, norms, and practices in our culture facilitate mutually fulfilling, creative, non-blah sex? What values, norms, and practices in our culture enable unpleasant, unwanted, or even assaultive sex?
If we are going to train young people to labor in markets and participate in our democracy, we should make sure too that they are skilled at sex and sexual decision-making.
If we are going to train young people to labor in markets and participate in our democracy, we should make sure too that they are skilled at sex and sexual decision-making. We might equip young folks with the resources, material and discursive, that allow them access to sex and a sexual culture that revolves not around pressure but around redistributed pleasure.
A politics of democratic hedonism, at the most general level, entails providing girls and women, queers, and everyone else with information about sexual health and pleasure; readily available, publicly funded access to birth control, other reproductive services, and pre-exposure prophylaxis (PrEP); workshops on improved sexual communication, better sex, safer sex, better masturbation, and so forth; good lube; and a variety of contraceptive options. Many universities currently offer these sorts of programs and resources. Nevertheless, such programs are too easily perceived as gratuitous in comparison to the “real issue” of sexual violence. Rather, these programs should be understood as essential to transforming immiserating sexual culture that leads to so much unpleasant and unwanted sex.
Consider the rigid, unforgiving norms of femininity and masculinity that stifle most people’s sexuality, especially those historically tasked to sexually satisfy others rather than be gratified themselves. What institutions and spaces sanction or support stifling modes of masculinity and femininity, and how might those expectations quash sexual autonomy or, worse, encourage sexual coercion and misconduct? “Having institutions with cemented gender norms controlling social life on campus seems like a really bad idea,” comments journalist Vanessa Grigoriadis. So is having “boys in charge of social life.” Might we consider rerouting resources from fraternities, binary-gendered bathrooms, and other sex-segregated spaces, and toward facilities that desegregate sex, thereby encouraging a wider latitude of gender expressions and stylizations? Might we understand sex desegregation campaigns as rooted not only in equality but also in a commitment to democratizing sexual access? Reactionaries are half correct when they fret that ending the sex segregation of public spaces such as bathrooms might increase “sexual access”—they are just wrong that this is a bad thing. All-gender bathrooms and the gender desegregation of privileged social spaces such as fraternities do move in the direction of greater sexual access, in the sense that queers, people with disabilities, transgender people, and women might finally be able to fully participate in the curricular and extracurricular life of the university—to pursue friendships, partnerships, and sex—without being harassed, beaten, or made to feel inferior.
A commitment to democratic hedonism requires access to publicly funded comprehensive sexuality education. Virtually nonexistent, either now or in the past four decades, are publicly funded sex ed programs in which sexual desire is celebrated as a “force for good,” as esteemed sexuality educator Al Vernacchio puts it. Rarely are sex acts—what they include, what they (should) feel good, how to refuse or initiate them, how to perform them well and safely—discussed plainly and positively. The “plumbing” lessons that constitute most sex education likewise rarely include critical interrogations of gender normativity, heteronormativity, and cultural valorizations of able-bodiedness and able-mindedness. Nor does sex ed typically entail less lofty but no less important lessons regarding how to start and end relationships, how to respectfully argue with intimate partners, and how to determine and revise one’s sexual and relational values. Comprehensive sexuality education programs that extolled sexual pleasure and sexual safety, emphasized sexual and intimate decision-making, and assessed the force and ethics of cultural norms would democratize sexual access and better foster sexual autonomy for all people.
A politics of democratic hedonism is not a facile celebration of more people getting off more of the time. Nor am I proposing, for example, that deans of student life hold workshops to help students locate their clitorises. Rather, my point is that if we aspire to a detoxified sexual culture, we must think more boldly and strategically about democratized access to pleasure and intimacy, neither of which a politics of consent can deliver. Let us stop trying to make consent do more than it can. Our sexual politics deserves and demands more.
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