User:Eleanorg/thesis/draft1.1/Critique of consent

Too Many Quiet I Guess So's: The Feminist Critique of Consent

On a cold November night I was out in the Oxford rain, shouting "whatever we wear, wherever we go: yes means yes and no means no!". It was the annual Reclaim the Night march, resurrected in Oxford in (year?) and, sadly, looking set to continue slogging away at the same ABCs for the forseeable future. No Means No. Yes Means Yes. Consent Is Sexy.

The appalling statistics on sexual violence attest to the pressing need for a greater cultural undestanding of consent. These slogans are a vital starting-point, in a culture which still fosters the violence of playing cut & paste with women's words ("No means yes and yes means anal")(SocietyPages News). Until there is general agreement on the fact that, for example, a short skirt or shiny shoe or fetching hat is not semantically equivalent to the word "yes", we seem doomed to continue shouting in the rain.

But my voice is getting hoarse from these simplistic slogans - and I'm not the only one.

A famously crass government poster campaign should have given us pause for thought recently. Having apparently digested feminist demands, it emblazoned pub toilets across the UK with the image of an intimidating male inmate staring out from a prison cell bed, captioned by the question: "If you don't get a 'yes' before sex, who'll be your next sleeping partner?" (Home Office). Leaving aside the campaign's homophobia (and its almost unbelievable achievement of implicitly condoning (prison) rape), the telling phrase is this: "get a yes".

Get a yes. Consent as an item to be aquired; as a commodity; as a type of insurance or entrace ticket. After all: yes means yes.

A recent anthology of feminist visions for "a world without rape" uses this slogan as its title (yes means yes). Tellingly, many of the essays contained therein are at pains to debunk it. One article written for the book (though not eventually included) gets straight to the point: "the problem, of course, is that there is more than one kind of 'yes'... Too many 'yeses' are coerced; too many quiet 'okays' and 'I guess sos' are interpreted as blanket permission." (hugo s) Uncritical demands for consent-as-standard can backfire, and badly. Looking upon this muddle with a lawyer's eye, Alan Wertheimer ('Ethics of Consent' p. 195) summarizes:

"[To say that sex should be consensual] raises more questions than it resolves. ...Firstly, in what does consent fundamentally consist? Is consent... a state of mind or is it an action? ....If an act of consent is necessary, is it sufficient? ...[W]hen does someone's 'token' of consent... render it permissable for the other party to proceed?"

'Consent', then, far from being a straightforward democratic model, is a complex and thorny terrain. How we define and demand it are urgent questions with far-reaching political implications. Behind the black-and-white slogans, it is the recognition of this painful truth that is making the feminist movement today one of the more interesting discursive spaces in which to explore the meaning of consent, collaboration, and thus democratic decision-making more generally. There is a growing body of feminist writing and practice which problematises the formula "yes means yes and no means no", and in so doing, articulates important challenges to any simplisitc championing of 'collaborative', 'participatory' or 'consensus' processes. By extension, this body of theory gives us tools to evaluate how consent is encoded in formal systems, including in collaborative software.

The Nature of consent

In order to lay out the terms of the debates surrounding consent, I'll use a framework outlined by the legal philosopher John Kleinig (2010) in his essay "The Nature of Consent". According to Kleinig, consent has (among others) the following three components: an ontology (what it is), a signification (how it is tokened), and a grammar (who is involved, and how they interact).

How the ontology, signification and grammar of consent are defined are political questions. These three terms give us starting-points for getting to grips with the various political positions available. (Footnote: I will take it as a given here that 'consent' is informed and voluntary; what interests me in this essay are the grey areas lying even well within the borders of legally and morally valid consent. Point to Wertheimer's discussion of legal/moral consent & coercion.)

Firstly, what is the ontology of consent? "Does it consist primarily in a state of mind... Or is it constituted by a peformative act or the conventional signification of agreement...?" (Kleinig pp. 9-10) The answer to this question splits clearly along political lines. The feminist movement unambiguously endorses the "performative act" theory ('no means no') over the "state of mind" theory ('she wanted it') (Rape Crisis Scotland; RTN; Suzanne Holsomback). Wertheimer summarizes, "a woman's secret desires have little bearing on whether [another's] action is permissable." (Consent to Sexual Relations, p.149) According to this view, it is possible to want or desire something without consenting to it (Kleinig; footnote Wertheimer distinction between want & desire). And importantly, by distinguishing between consent and desire, this theory also carries the disconcerting implication that it is possible to consent to something without wanting or desiring it. 'Yes' means 'yes I will'; it does not necessarily mean 'yes I want to'. This poses a problem for any campaign based on consent.

Secondly, how is consent signified? This is perhaps the most familiar of the popular debates surrounding consent. What, if anything, apart from 'yes' can signify consent? When we hear that a woman wearing a short skirt is "asking for it", an argument is being made about signification. Feminists are again fairly unified in rejecting this stance (see 'Not Ever', Rape Crisis Scotland), delimiting certain acceptable signifiers ('saying yes'), and rejecting others (short skirts, being drunk, flirting - see Oxford RTN 2011). There is still uncertainty within the feminist movement, however, about the finer points: must explicit verbal consent be given for each and every action? How often must it be sought and reiterated? Etc. (See critiques of the Antioch college policy in Wetheimer & Yes Means Yes). Various solutions have been offered for this question (give examples from Cochrane - 'short cicuiting' & Holsomback 'grey areas').

Thirdly, what is the grammer of consent? Kleinig (2010) proposes the following grammar: "A consented (to B) to P" (p.5). There are always three parties involved: B, who seeks some kind of permission; A, the agent whose consent is sought; and P, the act for which permission is sought. P is "a course of action... for whose pursuit A's authorization, permission, or agreement is required... which B has no right to expect of A absent A's consent" (p.7). Kleinig notes here that consent is a reactive gesture; to initiate a course of action (for example, to make a sexual advance) is different from consenting to it.

This seems fairly straightforward - and indeed Kleinig introduces it as uncontroversial groundwork in his essay. However, the grammar of consent is perhaps the most politically charged aspect of a working definition. Kleinig's favoured grammar is heavily loaded with gendered assumptions: an active (male) subject seeks the consent of a reactive (female) other. Millar & Wertheimer (2010, 'preface to a theory' in Ethics of Consent p.79) paint an unwittingly gendered picture when they summarize that consent works a "moral magic" that "make[s] it permissable for A to act with respect to B in a way that would be impermissable absent B's consent." Kleinig uses the still more telling metaphor that this type of consent "functions like a... gate that opens to allow another's access". The metaphor of the "gate" or "moral magic" is telling: the proposed act is understood as static and self-evident - indeed, the image conjured in these descriptions is of an act that will go ahead whether or not consent materialises. The only transformation it might undergo is in its ethical status; a blessing bestowed by (female) consent. It is from this grammar that the bluntly instrumentalist imperative to "get a yes" originates.

For these reasons, many feminists today are drawing attention to the poverty of "mere legally valid consent" (Kramer-Bussel, 2008). In feminsit spaces, the word 'cosent' is increasingly prefixed with various qualifiers: "healthful consent" (Holsomback 2013); "enthusiastic consent" (OUSU workshop materials?); "meaningful consent"; "affirmative participation" (Thomas Millar p.40); (get example from consenst is sexy campaign.)

These prefixes attempt to get around the awkward problem described above: that consent on its own does not preclude coercion, hierarchy or the absence of desire. Some feminists therefore demand enthusiasm /over and above/ consent. (Clare C.) Others attempt to re-define the term 'consent' itself, so that enthusiasm and active participation are part of a working definition (Holsomback).

At this point I will generalize that the feminist movement's most visible, public campaigns for consent largely concern themselves with ontology and signification. Suzanne Holsomback's workshops look at "what consent is, and what it's not", and tackle questions such as, "does it always have to be verbal?" (Holsomback 2013). Campaigns from Rape Crisis, similarly, parallel Reclaim The Night motifs of laying out what "consent" is and isn't, and what "asking for it" is and isn't. (ref flyers)

However, behind the scenes, the more radical question of grammar is up for debate. Arguments for a re-definition of the ontology of consent give us a useful 'way in' here. If "affirmative participation" is not an added extra but is built into the ontology of consent, then a parrallel shift in the relationships of the parties involved is implied. It is in this search for a better grammar of consent that the most interesting feminist theories of consent emerge - and where links to practices of radical democracy become most clear.