As colleges and universities try to get on-campus sexual assault under control, the dominant framework for educating college students on the issue centers on the concept of “consent.” I obviously understand why this framing suggested itself, and as a practical matter, I don’t know what if anything could replace it. Yet I think it has pitfalls that have perhaps not been fully addressed.
In a typical conversation about this issue, students will tend to object to the idea of “obtaining consent” on the grounds that it seems like it will kill the vibe, ruin the mood, etc., etc. To some degree, this response is naive, but I think if we have ears to hear, they’re objecting to the use of legalistic language in the context of sex. It seems artificial and inorganic to the situation, like you have to bring a notary with you to the bedroom.
Clearly no one involved intends that (unless you’re into that kind of thing, I guess), and it’s easy enough to clear up the fact that you need to make sure the other person actually wants to be involved in what you’re doing, including when the nature of the activity significantly changes.
That’s all well and good, except that a shadow of legalism persists. Think of the way some men object to the idea that women can withdraw consent at any time. The way they talk about it, you begin to suspect that they believe that when a woman gives them sexual consent, it effectively means that the woman is their property until such time as they have ejaculated. That’s a horrible, destructive attitude — and it’s one that the legalistic language of “consent” could actually encourage.
If you frame the sexual encounter as a contract, then you’re framing it as a situation in which at least one of the participants is giving up their free agency and subordinating themselves to another person’s needs. This is how contracts always work everywhere else in society. You consent to be bound to an agreement in which someone else will have rights over you. And if you violate the contract, there are negative consequences.
In The Sexual Contract, Carole Pateman points out how destructively this works in connection with the marriage contract, and from that perspective, it’s a bitter irony that the same kind of legalistic language that has so often been used to subordinate and dominate women is being deployed in an effort to protect them.
As I said in the opening paragraph, though, I don’t have a ready alternative. The emerging idea of “enthusiastic consent” may be the least bad option. Switching to something like “make sure they really want to” seems to open up all kinds of destructive doors, such as the idea that you can know what someone wants better than they do, etc. And in the end, the problem can’t be solved at the level of rhetoric. In a sexist society, anything involving sex is going to be at least potentially distorted and destructive — especially at institutions that up to a few decades ago were completely male-dominated and that still function to perpetuate male privilege in virtually everything they do.