Sexual consent, #MeToo and carceral feminism (see below) are often linked in discussions of gender relations, sex and justice. Consent is understood as something that can be easily and fully given by women in any situation; eradicating sexual harassment and assault against women is seen as a priority; and criminal punishment, including imprisonment, is seen as the best feminist way to further both those ends.
I think we need a new feminist approach to sex that is supportive of the #MeToo movement, but is also anti-carceral. By anti-carceral, I mean that I reject carceral feminism: the belief that the law, including incarceration, is the best way to enforce feminist goals.
Sex that falls outside traditional norms—e.g. gay sex, BDSM, sexual freedom, practices that centre female sexuality—can conflict with regulatory norms like consent. We need a more positive sexual ethic, wherein sex is seen as driven by negotiation, exploration—and even, when desired, transgression. This might include thinking about sex as a site of political resistance, social agency and experimentation. Might the entire endeavour of regulating sexual relations be ineffectual, since sex is ultimately ungovernable?
We are all troubled by links between the consent model, #MeToo and carceral feminism. The consent model is very problematic. I am not arguing that permission should play no role in sexual interactions. Of course it must. But we need to discuss its limitations, in order to create a more capacious legal and ethical framework.
The problems with the consent model begin with its liberal roots: by liberal, I mean the idea that we are discrete, rational actors, able to exercise our free will in all circumstances and in spite of structural impediments (i.e. women are fully free to consent or not). This ignores potential power relations, constrained choices and sociocultural norms. I do not agree with Catherine MacKinnon’s radical feminist position that, under patriarchy, sex is always coercive, but the consent model ignores the ways in which desire is communicated in practice (i.e. implicitly and through bodily cues). It enforces gendered passivity: men are seen as the aggressive party and women as submissive—meaning that women acquiesce to, but tend not to initiate, sex and their pleasures and desires are therefore discounted.
Consent has historically been treated as a contract: sex was once a property relation and rape was considered a violation against the husband or father who had ownership over the woman. As a result, consent was defined in legal terms. Consent law frames sex as a purely rational act—while it is anything but. It is a physical act (i.e. not just verbal); it involves implicit and explicit relationships; and it is based on vulnerability. Consent treats heterosexual sex as the norm. Also, under slavery, in the US, the right to consent to sex was often denied to both black and white women (the latter on the basis that a white women could or would not consent to intercourse with a black man). More recently, consent laws have been used to criminalise sexual minorities and racialised groups through discriminatory policing practices.
Models like sexual autonomy and communicative/affirmative/enthusiastic consent are better than the straightforward consent model, but don’t address all its shortcomings. Sexual autonomy and communicative consent still assume the existence of a liberal autonomous subject and do not adequately address the bodily nature of sexual relations, unequal gender relations or consent’s potentially discriminatory effects.
One of the key insights from our discussions was that we need to fundamentally change how we understand sexual relations, rather than using consent as our only baseline. Respecting the boundaries people set for each other is important, but we must also grapple with the inarticulateness of sex—what Lois Pineau describes as the strange dialectic of desire and danger that renders sex difficult to govern. We need to think about power, race, class, gender, dis/ability and sexuality. Whether #MeToo is up to this challenge remains an open question.
#MeToo relies on traditional forms of punitive justice. There is a rich history of feminist support for incarceration. Yet, this approach feels anachronistic in today’s woke political environment, in which social justice goals like prison abolition and restorative justice are seen as vital.
Howard Zehr defines restorative justice as “an approach to achieving justice that involves, to the extent possible, those who have a stake in a specific offense or harm to collectively identify and address harms, needs, and obligations in order to heal and put things as right as possible.” Prison abolition and restorative justice have a rich history in the US, Canada, and Australia. Attempts to achieve alternative forms of justice have included victim-offender dialogue, community reparative boards (used by Maori communities in Australia), family-group conferencing, and circle sentencing (used by Indigenous groups in Canada). These practices centre the survivor, rather than the state, allow for culturally relevant responses, address harms directly and facilitate healing and rehabilitation in a non-adversarial environment. They can result in reparations, community work, education and other ways of making amends to the survivor, community and family (to whom the offender is accountable).
The potential for restorative justice to act as an alternative to incarceration for gender-based violence is especially fraught, due to the unique nature of sexual violations. Yet, it is a desirable alternative to the existing punitive justice system—which is failing—and should be taken more seriously by proponents of #MeToo. Restorative justice is a feminist alternative to carceral feminism since it is local, relational and talk-oriented and allows people to do things differently. It allows for more openness to others, and for direct healing and moral accountability, since the offender must admit guilt. Nonetheless, there are some real concerns about control of the outcome, standardisation of the process, likelihood of revictimisation, and the lack of stable and accountable communities in today’s changing environment. A particularly salient concern is that power dynamics involving race, gender, class and culture, within restorative justice practices, might jeopardise the openness of the process.
So is it possible to craft a feminist approach to sex and sexual relations that is generally supportive of the #MeToo movement, but is anti-carceral? Yes! But it will involve tackling lack of will, cultural inertia, bureaucracy and entrenched political ideologies. It is relatively straightforward to explain the problems associated with consent, the current state of sexual relations in the context of #MeToo and the need for restorative justice. However, such a programme would require a significant amount of work by academics, artists, activists, policy makers, politicians and the public. We need a new model of sex: one that includes communication, autonomy, desire, bodies, power, structures and consent, and a conception of justice that is survivor-centred rather than punitive. This is the goal I am working towards.
A special thanks to Dr. Hannah Frith (Brighton University), Dr. Nikki Godden-Rasulv (Newcastle University), Dr. Anna Carline (Liverpool University), Dr. Sarah Cefai (UCL Goldsmiths), and Dr. Gareth Longstaff (Newcastle University) for participating in conversations that informed this work.