Sexual Consent and the Social Contract




THE #METOO MOVEMENT, at its core, highlights failures of consent. What’s gone wrong in the underlying cases is that a person, usually in power, acted without explicit permission, forcing another person into an unwelcome situation. At best, it’s been uncomfortable; at worst, it’s been assault.

Participants in the movement — victimizers and victimized, men and women both — are publicly sharing their stories. Many of these traumatic outcomes have been brought on by professed ignorance of or indifference toward norms and habits of appropriate sexual conduct.

Part of the reckoning with these transgressions has been renewed debate about the meaning of sexual consent. For example, a British PSA drew plenty of attention for charmingly explaining it in terms of serving tea: “If you say, ‘Hey, would you like a cup of tea,’ […] and if they say, ‘No thank you,’ then don’t make them tea. At all. […] If they’re unconscious, don’t make them tea. Unconscious people do not want to drink tea, and they can’t answer the question, ‘Do you want tea?’” But such explanations, no matter how cutely presented, are not enough. Thinking there’s more to the problem than clearer explications of consent can solve, some commentators have renewed a call for cultural adoption of affirmative consent, the view that says the conventional “no means no” must be replaced with “yes means yes.”

Where the “no means no” standard demands that partners interrupt proceedings when they’re not (or no longer) consenting, “yes means yes” instead encourages sexual participants to check in with one another, to make sure everybody’s enjoying themselves and wanting what’s happening.

While “yes means yes” is a relatively recent arrival to the culture at large, “no means no” has been the standard in American sexual consent since the 1990s. Its operation may seem obvious enough: if you’re not into what’s happening, just say, “No.” One of its problems, though, is that people stay silent for lots of reasons, not just that they’re comfortable with what’s occurring. Without enthusiastic affirmative consent, sexual partners, especially new ones, may be left with too much ambiguity about one another’s desire and enjoyment and thus be unable to ensure informed, voluntary decision-making. Affirmative consent demands greater attention to power dynamics, coercion, and the subtleties of intimate encounters. Without it, there’s no guaranteed way to avoid the messy, risky uncertainty of “gray area” sexual experiences, those that wind up unwanted and regrettable, even if not illegal.

“Yes means yes” has attracted critics who hold that it’s both cumbersome and profoundly unerotic. Writing in The New York Times, Daphne Merkin claims, “Asking for oral consent before proceeding with a sexual advance seems both innately clumsy and retrograde, like going back to the childhood game of ‘Mother, May I?’” Arguments like Merkin’s imagine robotic, stepwise encounters, in which participants disengage every few moments to plot their subsequent action. On this telling, after each completed phase of a sexual encounter, partners return to the disembodied sterility of discourse. This, however, misunderstands affirmative consent’s possibilities and requirements. Proponents aren’t asking partners to write up contracts (though there’s a host of smart phone apps for just this purpose). Rather, they’re suggesting that people treat one another as intelligent adults, checking in and sharing feelings and desires rather than acting without concern. It’s about deciding together what comes next. Such conversation can happen during an embrace or in a seductive tone; it can create a space for partners to communicate not just their consent but also what they enjoy, desire, or imagine. Contrary to assumptions, one doesn’t need to put on a necktie and adopt legalese.

The deepest imperative of affirmative sexual consent is that even while exploring and expressing our most primal physical desires, we must remember one another’s humanity. Jaclyn Friedman, co-editor of the 2008 Yes Means Yes! Visions of Female Sexual Power and A World Without Rape, puts the need for rethinking our understanding of consent in explicitly moral terms:

Real consent requires us to really be present when we’re having sex with someone. It requires us to see our sex partners — whether they be anonymous hookups or life partners — not simply as instrumental to our own pleasure but as co-equal collaborators, equally human and important, equally harmable, equally free and equally sovereign.

Part of the conceptual shift Friedman offers is from seeing sexuality as something that’s done by one to another to something that’s done together, a mutual planning of behavior for joint pleasure. And though the understanding of consent she endorses is new for many people, the foundation of moral equality on which it rests isn’t at all novel.

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The contemporary notion of sexual consent has its origins in a wholly unsexy domain: English legal philosophy. Thinkers from the 17th and 18th century, including John Locke, argued that while, by nature, almost everything belongs equally to everybody, the same isn’t true for the body: “[E]very man has a property in his own person; this nobody has any right to but himself.” Our bodies are our own, uniquely; if anybody wants to make use of them, they must have our permission. Or, on Locke’s heteronormative telling, “conjugal society is made by a voluntary compact between man and woman, and […] it consist chiefly in such a communion and right in one another’s bodies as is necessary to its chief end, procreation.” Voluntary agreement is what makes sharing, enjoying, or otherwise using the private property of another person’s body morally permissible.

But sex isn’t the only element of contemporary culture where consent matters. Signing a contract or taking out a loan requires consent. So does getting married. Accepting a medical treatment plan is, at its best, giving informed consent: the patient understands what ails them and what steps their doctor will attempt to return them to health. And consent is fundamental to US politics. For example, midway through the Preamble to the American Declaration of Independence appears, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” When Thomas Jefferson penned that line, he invoked an English intellectual tradition to explain the legitimacy of American independence from England. That tradition was Locke’s.

Just after arguing how to share bodies consensually, Locke explains how legitimate political sovereignty works: “[N]o one can be […] subjected to the political power of another, without his own consent. The only way whereby any one […] puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another.” The language here couldn’t be clearer: justified political power over others requires each one’s individual consent.

Locke’s account of the origin of the state isn’t without its detractors. Some scholars have pointed out that, historically, many people have been left out of this contractarian political framing. Carole Pateman, in her 1988 The Sexual Contract, argues that Locke downplays women, making them exclusively subjects of contracts instead of parties to them. Likewise, Charles W. Mills’s 1999 text, The Racial Contract, identifies Locke’s social contract as one only between whites. And then there’s the obvious critique, that the ahistorical Lockean telling assumes both an overly individualistic pre-social situation and a clear moment of discourse and agreement that forms the state. From what we know of both the family and the messiness of life before states, there’s no way sovereignty originated from a rational conversation among disconnected individuals.

Those who wish to endorse the Lockean view tend to shrug off these concerns, arguing that the account is a political fiction showing not what occurred to bring about the state but instead what would be necessary in order to have a morally justified sovereign. And though Locke’s telling clearly leaves some people out, this exclusion can be read as an artifact of his social-historical moment rather than as an absolute defect of the theory. Locke’s “every man” can be read more broadly without loss, much as we squint at the Declaration’s “all Men are created equal” and see that it points beyond Jefferson’s sexist, racist time to an eternal truth — or at least ideal — about all people.

Regardless of the fictional character of the Lockean origin of the state, more recent American political figures have embraced it emphatically. Major speeches have been regularly peppered with references to the consent of the governed, with each speaker offering his or her own take, shaded to their own political aims. It’s one of those populist lines that can be deployed by most anybody to support most anything. For example, Abraham Lincoln invoked it to argue against slavery, holding that “no man is good enough to govern another man, without that other’s consent.” And then Ronald Reagan suggested, in his first inaugural address, that because the government showed “signs of having grown beyond the consent of the governed,” he’d downsize it. Even NSA whistleblower Edward Snowden justified his leaking classified documents by claiming “the consent of the governed is not consent if it is not informed.” One must know what one’s getting into in order to consent truly.

If the Lockean story is right, and justifiable political power requires voluntary agreement to the setup, what legitimates the current American system? After all, no one asks newly born Americans whether they want to be ruled. More troublingly, an August Rasmussen poll shows that 53 percent of likely US voters believe the federal government doesn’t have the consent of the governed. Is it the case that the United States, despite its lofty founding ideals and its politicians’ assertions, doesn’t care about consent?

Locke’s answer to this question — endorsed by both the Founders and subsequent generations of mainstream liberal political thinkers — is that by living peacefully, citizens are giving “tacit,” or silently implied, consent. If people don’t like it here, they should leave or do something about the injustice. If they’re not rebelling, they’re consenting. This understanding of political consent is the analogue of “no means no,” and it’s just as ripe for abuse and misunderstanding as its sexual cousin.

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While “yes means yes” may be good for sexuality, some will bristle at the thought of applying affirmative consent beyond this narrow field. Yet it is the standard in almost every other practice that requires consent: the earlier-mentioned contracts, loans, marriage, and medical treatment plan all require one to sign on, not just fail to object.

Governance is one of the few places where “no means no” seemingly remains acceptable. Perhaps this is appropriate in that political consent isn’t the perfect mirror of all the others mentioned. Sexual encounters mostly occur among small numbers of people who can converse face-to-face during their interactions. States, on the other hand, are made up of thousands if not millions or billions of people. Their interactions are mediated by both distance and institutions. For political participants to check in with one another continuously would require unthinkably sophisticated technology and unimaginably flexible political institutions. Despite this difficulty, there are important features both politics and sexuality share. Most notably, both are about other people having a say over key aspects of our bodies and lives.

Our current political system is not entirely without methods for going beyond tacit consent and instead checking in on people’s continuing support and explicit political desires. These include taxation, elections, and public comment sessions. But taxation comes with a threat of punishment for non-compliance, and coercion always undermines voluntariness. As for the other modes of asking for affirmative political consent, the percentage of citizens who take part in elections and public fora is low, and, as with sexuality, the silence of non-objection is not necessarily evidence of agreement with the status quo.

There’s also no guarantee that any individual’s expressed political preferences determine any political outcome whatsoever. Elected representatives regularly sit silently through public comment sessions, understanding them as a ritual to be endured, not as an important moment of contact between government and governed. And even when people have a chance to affect policy directly, not everyone’s desires are realized. Americans make sense of these facts with a nod to “the majority rules,” but this idea doesn’t, by itself, explain President Trump’s election without a majority of the votes cast in 2016. It also doesn’t account for the workings of most non-presidential elections, in which more than half of Americans vote for no one by choosing not to vote, or those cases, like marijuana legality, where the majority of Americans want the exact opposite of the nation’s current laws.

A further trouble in mapping affirmative consent onto politics is that it often isn’t clear to what participants might be consenting. In sexuality, there is, or at least can be, clear demarcation of this action from that, allowing a “yes” to touching here but not there, to kissing but not to intercourse. By contrast, the current political system, with all its assumptions and bureaucracy, has a complexity that can be difficult to understand, let alone to disentangle. The sort of affirmative consent that most easily applies to contemporary politics is that found in accepting a social media site’s terms of service. There’s some scrolling through and skimming of dense legalese, a shrug, and a click on “I accept.” Participants agree because they want or think they need access, without beginning to understand what they’re getting themselves into. It just isn’t clear that this is a meaningful sort of consent.

These disconnects, along with the general difficulty of determining ongoing affirmative consent at scale, lead some political thinkers to reject mass politics and instead to support anarchism. Their position doesn’t embrace the colloquial sense of the term, in which there are no rules and everything devolves to tire-fires and madcap chaos. Rather, it’s the idea that worthwhile consenting requires people to discuss and affirm the rules that bind them: laws shouldn’t hold power over you just because they are laws — but only because you’ve consented to them in a meaningful way. This idea, called voluntary associationism, is, in one author’s telling,

the freedom to form whatever groups and collectives we want without being compelled to participate in any. We never had the chance to say no to capitalism, to government, to police, to all the systems of hierarchy that impose their rule — so clearly those can’t be consensual in any meaningful way.

Anarchist ideas about the operation of legitimate consent and its impossibility in the current system inform anti-state cooperative projects underway worldwide.

For those who believe that states are here to stay, however, the important question must be whether and how political consent may be revivified in light of challenges brought by the ongoing development in sexual consent. The most pressing challenge arises from the shift in seeing sexuality as something done by one to another to instead the planning together of actions for mutual satisfaction. In understanding sexual consent, only this view respects each person’s humanity and equality, their self-sovereignty and their ability to express desires and set ends. Is it possible to understand governance along similar lines?

This is to ask what possibilities there are for both the government and the governed, the politicians and the people, to plan their futures together, explicitly fantasizing about what might come next in the nation’s democratic experiment. Such a shift would require a radical rethinking of what sovereignty means. Without this work, there’s no clear way to distinguish the current silence of apparent political consent from the silence of hopelessness, fear, or abuse.

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Steven A. Miller is a visiting professor of philosophy at Ripon College, in Ripon, Wisconsin. He likes cats and justice.

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Feature image by Rob Shenk. Banner image by William Chen.


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