Consent - is it a meaningful concept?(324 Posts)
On the recent ‘Invisible Men’ thread, the concept of consent came up and was discussed. I posted referring to the following quote from Catharine MacKinnon in which she questions whether consent in male female sexual relations, within the context of a patriarchal society which is founded on dominance /submission is a meaningful concept; and she concludes that it is not. Which is quite a statement.
Quite a few posters expressed an interest in having a thread on the subject of consent and MacKinnon’s analysis of it. I have been meaning to start the thread for a while, so here it is.
Here is the quote from MacKinnon. It is from her book “Toward a Feminist Theory of the State”, specifically from the chapter ‘Rape: On Coercion and Consent’ which you can read Rape: On Coercion and Consent here (It does help to read the whole chapter which is a searing piece of feminist analysis from an utterly brilliant woman. )
"The deeper problem is that women are socialized to passive receptivity; may have or perceive no alternative to acquiescence; may prefer it to the escalated risk of injury and the humiliation of a lost fight; submit to survive. Also, force and desire are not mutually exclusive under male supremacy. So long as dominance is eroticized, they never will be. Some women eroticize dominance and submission; it beats feeling forced. Sexual intercourse may be deeply unwanted, the women would never have initiated it, yet no force may be present. So much force may have been used that the woman never risked saying no. Force may be used, yet the woman prefer the sex - to avoid more force or because she, too, eroticizes dominance. Women and men know this. Considering rape as violence not sex evades, at the moment it most seems to confront, the issue of who controls women's sexuality and the dominance/submission dynamic that has defined it. When sex is violent, women may have lost control over what is done to them, but absence of force does not ensure the presence of that control. Nor, under conditions of male dominance, does the presence of force make an interaction nonsexual. If sex is normally something men do to women, the issue is less whether there was force than whether consent is a meaningful concept."
Another text which was brought up in the discussion was the section on sexual intelligence by Andrea Dworkin in the chapter “The Politics of Intelligence” from her book “Right-Wing Women”.
Here is a link to a pdf of the book, I’m afraid the quality isn’t great. The relevant section starts on page 50 of the pdf (page 54 of the book).
I can’t select the text due to the format so have typed up a section from my copy of the book – please forgive any mistakes! The entire chapter and book is brilliant feminist analysis so I urge women to read it – it is one lightbulb moment after another and wonderfully written, Dworkin’s pace is incredible and her clarity of thought exceptional. (I have added some paragraphs in order to make it easier to read.)
“Sexual intelligence asserts itself through sexual integrity, a dimension of values and actions forbidden to women. Sexual intelligence would have to be rooted first and foremost in the honest possession of one’s own body, and women exist to be possessed by others, namely men. The possession of one’s own body would have to be absolute and entirely realised for the intelligence to thrive in the world of action. Sexual intelligence, like moral intelligence would have to confront the great issues of cruelty and tenderness; but where moral intelligence must tangle with questions of right and wrong, sexual intelligence would have to tangle with questions of dominance and submission.
One preordained to be fucked has no need to exercise sexual intelligence, no opportunity to exercise it, no argument that justifies exercising it. To keep the woman sexually acquiescent, the capacity for sexual intelligence must be prohibited to her; and it is. Her clitoris is denied; her capacity for pleasure is distorted and defamed; her erotic values are slandered and insulted; her desire to value her body as her own is paralyzed and maimed. She is turned into an occasion for male pleasure, an object of male desire, a thing to be used; and any wilful expression of her sexuality in the world unmediated by men or male values is punished. She is used as a slut or a lady; but sexual intelligence cannot manifest in a human being whose predestined purpose is to be exploited through sex.
Sexual intelligence constructs its own use: it begins with the whole body, not one that has already been cut into parts and fetishized; it begins with a self-respecting body, not one that is characterized by class as dirty, wanton and slavish; it acts in the world, a world it enters on its own, with freedom as well as with passion. Sexual intelligence cannot live behind locked doors, any more than any other kind of intelligence can. Sexual intelligence cannot exist defensively, keeping out rape. Sexual intelligence cannot be decorative or pretty or coy or timid, nor can it live on a diet of contempt and abuse and hatred of its human form. Sexual intelligence is not animal, it is human; it has values; it sets limits that are meaningful to the whole person and personality, which must live in history and in the world.
Women have found the development and exercise of sexual intelligence more difficult than any other kind: women have learned to read; women have acquired intellect; women have had so much creative intelligence that even despisal and isolation and punishment have not been able to squeeze it out of them; women have struggled for a moral intelligence that by its very existence repudiates moralism; but sexual intelligence is cut off at its roots, because the women’s body is not her own.
Okay. The OP is pretty huge so I will leave it at that and post my own thoughts in subsequent posts. This one is just meant to provide the material for discussion. I suppose this thread should really be in the feminist theory section of MN but I don’t really agree with the existence of that section so here it is in the regular feminist hang out!
I agree about agreement! I always think of consent as "oh all right then if you must".
This thread has been great, and very challenging. I have to think more about this (and perhaps some of this has been covered already).
When I think of even the word "consent" and how it is used every day, it has a passive connotation. One consents to someone else doing something.
When you look at business contracts, the parties don't "consent". They make an agreement. They say they agree to do something. It is much more positively stated. When you see the word "consent" in a business agreement it is generally a passive concept or a giving up of a right.
Then when you think of marriage vows - "I take you .... It's even more positively stated.
I think consent is the wrong concept in sex. There needs to be agreement.
I agree with the case posted that it clearly wasn't informed consent. I think partners do have to disclose information that they think might stop someone agreeing to have sex with them e.g. if they are married, have HIV, are trans, are pretending to be a sex they are not. Sex should be a lovingly shared mutual activity.. Not something that one partner tricks another partner into.
Hi Beach. Just want to quickly say that I think this thread has lots of life left in it, lots of avenues to explore. I don't know about others but I've been keeping off it recently because I was afraid of penis-beaker and AIBU interlopers spoiling a great thread. I think and hope they've gone so I was planning to post again this weekend.
Hi again everyone, don't want to unnecessarily bump the thread but just wanted to say thanks to everyone for their input.
I got a lot from this thread and hope others may have too. We are lucky to have this space on MN to have these sorts of discussions. Have a nice weekend all
In the appeal case of R v EB, the defendant was convicted of rape in any event. This conviction remained.
It was then asked however as a side issue - that is - if it would have been rape merely for not disclosing his HIV positive status to the complainant. It was on that question - as if that was the only criminal issue to be resolved, that the court decided that it wouldn't.
Ah yes, I thought it might be sth like that.
I've just had a vision of The Importance of Being Ernest. (Informed consent and all that.) That prob means I should go to bed.
The HIV case here is that it is not rape if HIV or other sexual transmitted diseases are not disclosed but, it it is an offence against the person, so they can be tried, but not for rape.
But is it rape carol? Legally I mean. Can't remember that HIV case.
Beachcomber I agree with your last post about sexual violence and dehumanization. Added to this though is that in an abusive relationship the man may totally deny that the sex was non consensual. Even if it so blatantly was non consensual. They may have reasons or explanations for what happened and why they did it if confronted. But none of those 'explanations' reflect the reality, they won't say 'I don't know what came over me I should not have done that to you when you made it very clear you didn't want it'. At least not in my experience. I think it is the dehumanization coupled with the denial it ever even happened that is so terrifying yet also so confusing.
At least in a medical scenario, where say a vaginal examination is badly handled, you would expect a complaint to be properly acknowledged and given a considered response. Well, ideally I suppose, though I guess that maybe doesn't always happen either.
It seems to me that if one person knew something that they could reasonably anticipate would affect the other's consent then they do have a duty to disclose it.
But the writer's preference is not the law. The law has upheld that the deception in the article (a femal pretending to be a male) was illegal as it was not informed consent. this is also the case in HIV positive sex.
The law has also considered wealth and found that pretending to be wealthy does not impact on consent.
There was previously a breach of promise law where, if a man renaged on a marriage after engagement, the woman could sue.
Informed consent is an interesting comparison Basil.
There is case called Miller v Miller - this was not a criminal case, but a divorce case where the Courts were asked to come to a financial settlement. Such a settlement ought to be a fair one. One of the Judges in that case said this of 'fairness'.
Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case
'Common-sense' could I think be described in a similar way - the people making such decisions in a criminal Court would be the Jury. In the McNally case the defendant pleaded guilty, and therefore the issue did not come before a jury.
I was thinking of another thing about why sex is different to other activities - someone on here mentioned dissociation upthread and that got me thinking about sex as a form of violence/sexualised violence etc.
Sex must be one the the few areas of human interaction where the same act can be one of love and one of hatred and extreme violence. Doing the dishes or flipping burgers and all the other silly comparisons one hears sometimes, do not have this element to them.
And then that got me thinking about things like gynaecological examinations - which can be not very pleasant procedures, like they can be damaging and traumatising, depending on how they are done.
And when you listen to women talk about things like birth trauma or upsetting vaginal exams, they will very often talk about a number of things aside from things like physical pain. One of them is about losing control, not being in control of your own body, another is a feeling of violation and overstepping of a personal boundary, another is the invasion of intimacy, usually unwanted vulnerability is mentioned and often a feeling of a breach of trust.
Also women will often mention having to shut off from themselves to get through it - which of course is dissociation, which is a technique for coping with stress.
For a woman there is something immensely stressful about having a man overstep a physical boundary and there is a combination of violence and intimacy that is particularly humiliating and degrading. And terrifying.
Coming back to birth trauma, women often say they felt like a piece of meat - by saying this, they are saying that they felt dehumanized. And I think this is a key element as to why we feel differently about sex compared with other human activities. The right to bodily integrity is a human right, and having bodily integrity is an acknowledgement that you count in society as a human - a person with rights, the same rights as everybody else. When someone infringes on that right, they dehumanize you. They treat you like a piece of meat and not as a whole person with the right to agency and a connection between what goes on in your body and what goes on in your head. They disconnect you. They take you apart for their own self-purposes and take the bit they want and ignore or reject the bit they don't want (or can't be bothered with). And they do all this whist being physically inside your body and in a place where they could really hurt you or make you sick, pregnant, etc.
They violate you physically and they dehumanize all - all whilst engaging in an activity that is as intimate as it is possible for humans to get (with the possible exception of a pregnant women and foetus).
And if that isn't fucked up, I don't know what is.
Can I just mark my place to say that this a really great thread with loads of lightbulb moments and nodding along. Sorry it's taken me so long to join in. I wanted to devote some proper time to it and I just haven't found that time this week. I hope to come back this evening with something more to contribute.
“the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way”
Comonsense as defined by whom?
In any other area of life, allowing your bodily boundaries to be breached, requires informed consent. If your doctor or even dentist doesn't inform you of the potential side-effects of even the most minor medical procedure, s/he opens him/ herself to a lawsuit in the event of it going wrong. If your financial advisor sells you PPI on a false basis, or hundreds of them do the same to thousands of people, the banks are forced to pay millions in compensation.
It's only in sexual relations, that informed consent is considered some kind of luxury. Except when you're under the age of consent though - the law accepts that a child can't give informed consent, though s/he can give consent. In the case of a child, consent by itself is insufficient for the law, because it can't be informed consent. In the case of an adult, it doesn't need to be informed consent. Is that right?
Mildred It is a minefield.
Can it ever be the case though, that the nature of deception is irrelevant ? Say in the case of a poor man pretending his is wealthy, or say not an Asian but a heavily tanned 'white' man, or say, a catholic not a protestant - where of course all those latter conditions for sex were made plain.
Or - as in this case, a 'woman' not a 'man'.
"My own view is (2). To deceive someone of full capacity in order to have sex with them is morally reprehensible, but it seems to me that it should not attract the sanction of the criminal law, especially when you consider the severe consequences. "
this is truly yuk - the writer is blatantly saying that a certain offence should not be considered an offence because, boo hoo, it attracts a heavy punishment. That is like saying an umpire at a tennis match should refrain from calling a fault if it will make the player lose, and they will lose a valuable trophy, and be sad.
Here is a question: in a society in which sex outside marriage is heavily taboo (say our own 100 or even 60 years ago) what if a man put on a sham "marriage" (a ceremony conducted by someone posing as a registrar or a priest, with no authority to marry), and then persuaded the woman to have sex with him because she consented believing she was married to him, and then she found she was unmarried (perhaps pregnant, certainly believing herself seriously violated and defiled) - could that be grounds for considering consent to have been negated?
My gut feeling is "of course" even though the pre-existing moral framework is so yuk that it is hard even to navigate within it
Of course, this is contrived, but in real life what women used to often found they had ruined their lives doing was to have sex with a man who said he was about to marry them. If that was a conscious lie (perhaps he is already married to someone else, so a provable conscious lie) what effect should that have on the integrity of "consent"?
I am not comfortable with buying into any of these social or moral codes to the extent of even arguing in theory within them, though
Pegwin - hope you can access it now.
Here's an interesting case re: the concept of consent.
difficult consent article
It will interest me to hear the views of others on the case. I'm still forming mine.
Could someone repost link above in linky form- cannot follow it on phone and would be interested to read.
Here's an interesting case re: the concept of consent.
It will interest me to hear the views of others on the case. I'm still forming mine.
rosabud, I sniggered about "a russian doll is...." too
caroldecker, good point that if we aren't talking to those closest to us even, how can we really change anything. this is one of many areas in which I am finally seeing I just have to get out of my comfort zone.
About why sex is different: I don't have the answer to that but I have some vague musings... when I started work, firstly in sales and then as various temp admin / receptionist jobs, it was very clear that I was being hired for my "personality" - not my real one, but the one it was assumed I could put on, as young educated pretty woman. It was understood that I could be smiley, "bubbly", kind, open, available, always smiling, always cheerful, always empathetic. I tried to do all this (had to, to make a living) and it jarred with me, hard. I am a natural introvert and I had been educated at a time and in places where the emphasis was on academic cut and thrust: rigour, knowledge, arguments, strong essay writing basically - as opposed to many areas of education now where I gather that being "personable" or "a team player" is part of the deal. It was hard for me to find I was forced to make a living by, essentially, massaging other's egos, as a social instrument, and I compared it in my head to prostitution, while recognising it is not the same. Much more recently I read Nina Power's book One Dimensional Woman and recognised my disquiet of the time very clearly in her examination of the woman who is always polishing the Self, along with the CV. It is the person that is available for work, not just the receptionist / administrator / designer / whatever you do.
Oddly I am sure some people are very positive about this as they see it as a lovely warm privilege to take your whole person to work rather than being treated like a robot. I found it very hard and creepy and have only gradually come to terms with it - and to the extent that I have it is because I have bent the rules and found ways of throwing in the bits of myself that it relieves me to express: analytic skills (even when they result in negative or critical conclusions); sarcasm (when not too rough and results in a feelgood laugh, not against anyone); knowing my shit (because I do). all this is possible only because I am 42 now, and no longer (in my job that I have now and have had for 6 years) expected to be that "bubbly girl". I am not sure it will travel should I get another job.
Minitheminx, the no-consent-to-murder thing is so interesting, and reminds me of how nuance can be allowed here but not there, eg, in Catholicism killing innocents is ABSOLUTELY NEVER ALLOWED EVER when the innocent is a foetus; but there is such a thing as a Just War, which may result in the deaths of innocents, because you can't seriously expect men to entirely relinquish the possibility of going out and fighting, can you.
cailindana "the fact that children are complicated demanding human beings who are not just silent receptacles for knowledge." Right. but the funny thing is that outside teaching, it is generally recognised that Communication is a skill, a Thing; it is not by any means easy to get large numbers of people to understand what you want them to, nor to buy into the project in the first place. there are vast armies of highly paid marketers and PR people in all industries, who are vastly rewarded for doing this very tricky job of winning the attention of an audience and imparting what you want them to know. why is this not recognised in teaching?
Dad - the glans doesn't actually equal the clitoris. Yes they are both physical organs that produce sexual pleasure. But the clitoris has many more nerve endings on it than the penis, and most of it is internal.
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