In a recent article in America magazine, Nathan Schneider alleges that the left’s ideas about consent are eerily reminiscent of neoliberalism — and then jumps to the conclusion that the left should lurch toward a more traditional understanding of sexuality. I want to explain in detail why this is a bad-faith use of the critique of neoliberalism.
My primary critique of neoliberalism is the way that it entraps us through the illusion of free choice, effectively blaming us for any bad outcome we experience on the grounds that we freely chose it and need to live with the consequences. Consent discourse in leftist circles does not function in that way at all. It is a negative safeguard, based on the principle that any participant in a sexual act has the right to opt out at any time for any reason. This means that contemporary consent discourse is actually the opposite of the neoliberal rhetoric of choice, in that you explicitly don’t have to live with the consequences of a previous choice (consenting to begin a sexual encounter) if it did not turn out the way you hoped.
Rather than giving everyone just enough agency to be blameworthy, it empowers them in an ongoing way. And in this sense, it is not a contractual way of thinking, because as Carole Pateman reminds us, a contract removes agency — once agreed to, it effectively binds the contracting party. From this perspective, the “traditional” view of sexuality is much more neoliberal because more contractual: once you agree to marry someone, for instance, you are obligated to service them sexually in perpetuity. And while this would fall outside Schneider’s desired sexual morality, the old-fashioned patriarchal view that a woman who consents to sex basically signs herself over to the man for the duration would represent the same kind of neoliberal-style entrapment.
As for whether consent discourse can ground a more positive ideal of sexuality — obviously it can’t, but it doesn’t claim to. With its negative gesture, consent discourse is opening up a space for experimentation, grounded in a trust that if a culture of consent truly takes root, people will naturally tend not to consent to acts that are harmful or destructive. That is, it opens up the possibility of developing a sexual ethic not based on arbitrary taboos or scapegoating of sexual minorities, but upon lived experience.
The article does have a small sliver of a good point, because consent language does carry the danger of slipping into contractual thinking. And yes, at that moment, consent language devolves into an echo of neoliberalism — but at its best, it models an anti-neoliberal way of thinking about free choice and agency.