Consent doesn’t have to be enthusiastic
06 Thursday Sep 2012
The concept of consent has been in the news recently with the Assange case, Galloway and Akin comments. In the West, most rape is perpetrated under conditions of pre-existing relationships, and most issues over the justification for a rape being perpetrated tend to come from the conditions under which a woman consents to sexual intercourse.
McKinnon famously stated that
“In a patriarchial society, all heterosexual intercourse is rape because women as a group are not strong enough to give meaningful consent”
Catherine McKinnon, Professing Feminism
In an earlier blogpost, I looked at some of the social narratives which reduce women’s ability to withhold consent for sexual intercourse. Rape culture, legal structures and the all-seeing eye of patriarchy conspire to place women in situations in which the refusal to give sexual consent when requested is undermined. Under certain conditions the request for sexual engagement can rely on those structures to obtain consent where none would have been given had the choice been a free one.
Most sexual encounters don’t involve explicit verbal agreement. Thats not to say that they shouldn’t but in practice, most don’t. This is especially true in the context of an established sexual relationship, where you have a degree of familiarity with the boundaries and non-verbal responses of your partner. It is in response to this that the concept of enthusiastic consent has been developed to to explore at what point consent becomes valid. Lisa Millbank discusses consent both from the position of no, and the position of yes while there is an guide to consent over on ScarletTeen, which talks both about verbal and non-verbal consent, but the assumption made in the Scarleteen post is that sexual interaction is about desire
Sex that people really want and fully participate in does not tend to be a whatever or something we need to be dragged into. When we have strong sexual feelings and want and feel ready to put those feelings into action in some way, we experience that as a strong desire, much like we can feel when we’re hungry and smell our favorite meal cooking.
But sexual consent isn’t exclusively about sexual desire. Thats the simplest form of consent, and the easiest to give. The boundaries are defined by what each partner actively desires, and fortuitously the other person(s) desires complimentary activities. But just because enthusiastic consent is a good thing, it doesn’t necessarily invalidate other forms of consent. In many cases there is a mismatch between the sexual desires of each participant, there is no enthusiasm on behalf of one party for the desired behaviour of the other. Consent is a rational decision, not based on pure desire, but on the interaction of sexual desire with mindful decision making. Desire alone is insufficient.
What then does non-enthusiastic consent look like and can it be valid.
Bodily trauma, such as childbirth, surgery, severe injury and violence, both sexual and physical can lead to a nervousness around corporal engagement. The anticipation of pain or discomfort both physical and emotional puts enthusiasm in terms of “really wanting and fully participating in” beyond reach. External factors beyond the limits of the individual encounter makes the participation limited and the wanting conditional. In such a case the consent can hardly be described as enthusiastic, but regardless a rational decision to engage has been made and to deny the validity of the consent in such an instance is to deny the rational aspect of decision making.
In other situations, where there are no such external factors which pre-limit sexual desire, the absence of desire again need not negate consent. Within relationships, romantic or social, sexual favours may be requested and granted through altruism. This is not to confuse such altruism with social pressure to grant such requests, but an appreciation that a lack of sexual desire does not necessarily equate to a lack of consent. Within the asexual community in particular, the implications of enthusiastic consent risk infantalising those who experience no desire, but choose regardless to engage in sexual activity.
Wrapping consent together with enthusiasm is the flip side of social pressure brought to bear on wo/men to engage in sexual activity on request. It is demanding that sexual intercourse can only take place for reasons of desire, rather than rationality, and by implication that sexual desire is sufficient for consent. Consent is separate from desire, and just as there may be desire without consent, there may be consent without desire.
Rather than enthusiastic consent, what we should be aiming for is meaningful consent. Consent which is aware of power structures which strip women of their ability to withold it, yet which is freely sought and obtained, regardless of the desire or otherwise. Consent which is meaningful is not contingent on the enthusiasm or otherwise of the parties involved, because it is only rationality which can see through the power structures which would deny women’s lack of ability to consent, and it is only rationality that can strengthen their power to challenge it.