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.
An und für sich 
Very difficult subject and a noble one to address in AUFS. The problem with consent might be that ‘consent’ is not quite the right term. Legalism aside, the sexual field is governed more by ‘assent’. Relationships evolve over time, whether hours or months and any recourse to ‘yes’ must always be sequential. There is never a moment prior to the moment of explicit sexual contact that can be construed as ‘consent.’ Let’s take the example of a college man and woman. The assent to going on a date, is only that: there is no implied consent to a ‘kiss.’ The assent to a kiss is no implied consent to another type of touching. Assent to touching ‘more than a kiss’ is not implied consent to…so you get the picture. Assent is sequential and incremental—discrete (discreet too). The ‘frame’ (absolutely the right word) is developing along with its content. Behaviors are not foregone conclusions based on other behaviors. Assent is always therefore to ‘increments’ that may be an end to themselves without even a hint at inevitability. A ‘no’ anywhere along the sequence is the meaning of that sequence which just ended. A ‘no’ means that assent has ceased to inform the sequence, and incrementalism has ceased.
Rape is not one about one member of the relationship getting ‘carried away’—it is about that member making horrible and degrading assumptions about the assent of the other member. Or worse, it substitutes its own assent for the other, thereby negating the other. It is therefore always violent. Relationships are not intrinsically violent, but that does not mean that they cannot become violent. In the absence of a sense of what it means to be violent, or what constitutes violence, no amount of legalism, definitions of consent, etc., will ever suffice. In any healthy relationship, sexual or otherwise, freedom is never compromised. When freedom is abrogated, a relationship has become pathological if not criminal. The infringement of freedom is always violent, whether that freedom is violated in government, the workplace, school, the backseat of a car or the bedroom.
Teach what violence is first, and the concepts of assent, consent, the law, right and wrong will align themselves accordingly. “Enthusiastic consent” cannot be the model because anyone can create it out of certain mind-altering substances. Violence. Freedom. Real freedom, not the kind that emerges from a bottle, vial or syringe. Violence has many shapes.
A number of posters at my school address the non-verbal aspects of the “contract.” These also emphasize the option to take back consent: a person is allowed to change their mind. I tend to think commitment is general is not an ideal that our current university age people tend to strive towards anyway. Why should commitment have a higher importance in the bedroom (or wherever)? The answer might be that the desire to keep one accountable to their commitment *feels* suddenly very important. But in a committed relationship, killing the mood becomes less of an issue, provided there is good communication. The one-night-stand is where the communication of consent has not yet been firmly established. Thus, it is all the more important for there to be as many consensual signs as possible. Furthermore, to the students who don’t want to “kill the mood,” the result is basically one where the first few nights may be rather legalistic, but if that prevents more sexual assaults, then that’s definitely a good thing.
Right, like I said, I’m in favor of what the “consent” language is trying to get people to do in practice. Obviously one-time encounters require more formality in this regard, because there’s not the background of understanding and communication. And I think most people would do that more or less organically and not find it to be “mood-killing,” hence why I called the students’ objections naive — they’re likely based on TV and hearsay rather than actual experience with moods, killed or otherwise.