Tuesday, January 23, 2018

West on Sex, Law, and Consent

I just wanted to flag this outstanding essay by Georgetown Law Professor Robin West: "Sex, Law, and Consent" (published in The Ethics of Consent: Theory and Practice, Franklin Miller & Alan Wertheimer, eds.). It's about a decade old now, but it is incredibly resonant with ongoing debates, and deserves to be recirculated.

The thrust of the piece is a defense of "consent" as a demarcation between criminal and non-criminal sexual acts, coupled with a critique of "consent" as automatically delineating the difference between "good" (non-harmful, valorous, laudatory) and "bad" sex.  West's argument is framed as a critique of certain radical feminist and queer theorists who have attacked the importance of consent -- either because it understates the background coercive conditions and inequalities of power which often render "consent" constructed or empty (RadFem) or because it nullifies the radical transgressive power of sexuality which is hot precisely because it plays upon these inequalities of power (queer theoretics).

West suggests that both of these critiques are ill-advised because they don't take sufficient account of the subjective experience of harm that is distinctive to nonconsensual sex (i.e., rape). There is, West suggests, a difference between agreeing to an exploitative contract and being robbed -- both might be problems, and the former may actually in aggregate contribute more to the broader spectrum of injustice than the latter, but nonetheless the subjective experience of signing a contract under exploitative conditions is not the same as being held up at gunpoint, and people don't experience it as such, and people don't expect the state to respond to them in the same way. The way we stop exploitative contracting isn't by expanding the definition of theft and robbery to encompass it. That they both represent wrongs doesn't mean they should be collapsed into the same category of social injustice.

Yet at the same time, West argues, that sex may be consensual (and therefore, in her view, not properly subjected to criminal sanction) should not exhaust our moral vocabulary when speaking of sex. Sex can be fully consensual and yet still harmful. Sex can be fully consensual and desired and yet still harmful. Ironically, we're more likely to speak of the harms of consensual sex in the case where it is mutually desired, as when we're lecturing a teenager that sure, they might want to have sex, but there's always the risk of an unexpected pregnancy or a disease that can derail a promising career or trap one in a life trajectory one very much does not desire. Yet this all obscures a different but still important case of consensual but undesired sex. Even here, West is appropriately circumspect -- we consent to things we don't desire all the time (West gives the example of consenting to see a movie one does not actually wish to see, because one's partner or children wish to). This isn't necessarily a terrible thing in isolation, but it can be, if it becomes pervasive or occupies the entirety of one's sexual being (if one's entire life of movie-watching is one that is wholly about what others desire, with no regard to what you yourself would like to see, that's a pretty crappy cinematic life irrespective of whether all the choices are "consensual"). In those cases, one is being harmed in a very real way -- internalizing (as West points out, quite literally) the notion that one's body is solely for others pleasure and that one's own desires are immaterial -- even though it's also a very distinctive way from that which comes through nonconsensual sex.

The point, then, is to avoid the Charybdis of calling it all rape, because consent is an effectively meaningless concept (or, on the other side, all sexy transgressive power play because consent is a fictive projection of repressed sexual desire) and the Scylla of saying that none of it matters because it was all consensual. As we move from the unambiguously criminal actions of a Harvey Weinstein to the more complex case of an Aziz Ansari, the failure to make these distinctions becomes more and more of an obstacle to pushing the conversation forward. People read about the Ansari case and say "you want to throw him in jail for that?" or "was it really non-consensual?" But that's a product of a crimped imagination whereby a broad range of moral questions get collapsed into a legal (criminal) question which gets collapsed into a "consensual" question -- and there's much more to be said than that. What happened to Grace, in her telling, may not be something that should result in Ansari being incarcerated, but it also isn't the equivalent of Grace agreeing to see a movie she has no interest in because her partner wants to watch it (let alone the equivalent of an actively desired encounter which, in the aftermath, turns out to have negative consequences).

Anyway, when I started writing this post I meant it to be a single paragraph of consisting of "read West's essay", and I've gone on much longer than that. So I'll just let it rest here -- but you should definitely read her piece.

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