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?
I talked extensively about these topics to five academics: Hannah Frith, Nikki Godden-Rasul, Anna Carline, Sarah Cefai and Gareth Longstaff. What follows was informed by our discussions.
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.
The problem with “consent” is clearly seen on college campus’ where women file assault charges because he didn’t send flowers after a quickie. Women especially can be internally conflicted about what they want. They may like a guy but feel uncomfortable getting naked. Want sex but feel guilty. etc. This makes their “consent” not entirely consent. Consent also is something that can change when you start kissing and discover that this person really turns you on (or has bad breath and turns you off). The attempt by academics to make sex an intellectual enterprise leads to a disconnect with real sex and real people. Sex is mostly unconscious feelings and impulses. When you talk about it too much it starts becoming argle-bargle. The idea that you should confront the cad (not rapist) who wasn’t a real gentleman and “fix” him sounds much like the Maoist “struggle sessions”. Who is going… Read more »
“Consent””You Keep Using That Word, I Do Not Think It Means What You Think It Means” Read CS Lewis’ Studies in Words for the meaning of “Consent”. The originally legally significant version of the word is “Consenting” as in the question, “Was she consenting in the act?” Meaning was her mind/will acting in tandem with her body, which is to say her will is directing the action of her body, i the performance of the act, as opposed to the situation in which her body is being moved against the direction of her will. Consent merely means that whatever it is that your body is doing, it is doing it at the direction of YOUR mind. In such circumstances you are “consenting”. That is why, when legal draftsmen still understood the meanings of words, the law in relation to rape was that “consent” was “Vitiated” by threats of harm, or… Read more »
@Helen Pluckrose, “…We lean left incidentally” – No, this is not an accident. You really cannot give up your leftist dogmas. You only want to dress them in less nasty clothes. But these clothes are the same Emperor’s new clothes.
@Eisso Post, “I thought…” – Me too made the same mistake, but they decided to prove that they could break through any bottom
Seems to me that consent is that thing men made up so that it gives them modern-day authority and access to something they STILL feel entitled to. And it’s an absurd concept, in particular when nothing has moved the needle to “teach” men what “no” can look, sound, and feel like. Then ask yourself why you are in a position of having to negotiate consent? And before you get all biological with me and say, “Sex is about keeping the species alive”, think about what would consent would like if men were the ones who had to ask, “Can I make a baby inside you?”
Amazingly strange article.
So far, women have not had big problems saying “no”. At least, in normal circumstances (rapists, according to statistics, always make up a very small percentage of human males).
It suddenly turned out that they needed numerous academics, artists, activists, policy makers, politicians; women needed “a new model of sex, that includes communication, autonomy, desire, bodies, power, structures and consent, and a conception of justice.”
Let me make a cautious suggestion that feminism, having become an official policy, began to develop according to the Cyril Northcote Parkinson’s laws. As Parkinson said, “officials make work for each other” and the number employed in a bureaucracy rose by 5–7% per year “irrespective of any variation in the amount of work (if any) to be done.”
If so, then feminism is immortal and the author of the article can be sure that she is guaranteed a perfect retirement savings.
Steve’s comment is very confused because feminists have been the main lobby OPPOSING the kind of flexible definitions of womanhood that he describes. Modern day feminism is the only moment that coherently and consistently does define accurately what a woman is, without resorting to Orwellian Newspeak to confuse audiences and re-frame the issues.
I can’t quite make up my mind when it comes to feminism. I’m somewhere between “feminism is poison” (Margaret Thatcher) and “feminism is cancer” (Milo Yiannopoulos). Let’s remember that modern-day feminism is the women’s movement that cannot define what a woman is. That I, as a biological man, could “self identify” as a woman — and, now, under Victoria’s state government in Melbourne — receive a birth certificate stating that I am, in fact, a woman… this is the ideological path down which feminism has gone in the search for “equality”. I laughed when I read “Maori communities in Australia”, the linked article obviously being about New Zealand… as though that wasn’t enough of a hint for the author. A group of PhDs couldn’t even get this right. What a joke. “Gendered passivity”. Yet more postmodern drivel based on magical “power structures of oppression”. Yes, I’ve read Foucault etc., too.… Read more »
I agree with the broad principle that respect for human dignity dictates that society should cage a human being only as a last resort. However, this approach is extremely problematic once we move beyond nonviolent offenses. Rape and sexual assault are among the worst forms of violence, and what they rob their victims of can never be fully restored. Furthermore, they are often habitual or serial crimes. As such, they richly deserve punishment. My impulse is to say that punishment should be death or castration, but I realize that is an unreasoning, emotional response. But at the very least, rape and sexual assault demand incarceration, as anything less than that is the proverbial slap on the wrist, as well as a threat to public safety. The punitive aspect of our justice system almost certainly exercises a deterrent effect, and not just on rapists leaving prison (who surely have a strong… Read more »
This piece is confused, as are most of the comments. The key issue here ought to be about the distinction between public and private spheres. With vulnerable individuals, there is a murky legal area due to the conflict between citizens’ right to privacy on the one hand, and individuals’ right to bodily sovereignty on the other. This dilemma can involve partental treatment of children, since the state genreally allows parents to have sovereigny over their own household and allows them to raise their children in some admittedly dubious ways. However, the state IS justified in interfereing to prevent harm to children where it is clear that neglect or abuse is taking place within the family home. A similar issue arises in the sexual sphere as women (and vulnerable individuals per se) need to have a right of consent/refusal and sometimes are unable to “negotiate” the boundaries, at which point they… Read more »
The problem with metoo is not that it relies on “traditional forms of restorative justice” it’s that it circumvents them in favour of medieval forms based on suspicion, social shaming, rumour and mob rule. A return to ‘tradition’ in this case would be welcome: evidence, reason and the presumption of innocence.
I am a fairly smart person. But I genuinely have no idea what this article is asking for. What do you actually want to happen? If you are going to write “we don’t need consent” it seems deeply irresponsible not to explain the alternative pretty clearly.
The problem with consent is that women routinely want to keep their chips. Women want to be seduced because it leaves them with their options open. They want to seem reluctant even when they aren’t. I have never had ‘consent’ in my life. I have never really needed it because so far I have not run afoul of entrapment.