Women in Philosophy: The Limits of Consent in Sexual Ethics

by Ellie Anderson

When it comes to sex, public discourse today revolves around consent. ‘Affirmative’ consent, ‘enthusiastic’ consent, and “Yes means yes!” movements abound. Consent is so universally championed that it often appears to be the only relevant criterion for sexual encounters. Yet it’s quite a different story within feminist philosophy. Here, scholars argue that consent may not be the best—let alone the only—concept for distinguishing positive sexual encounters from harmful, assaultive ones. At least since Carole Pateman’s The Sexual Contract in 1988, feminist philosophers have argued that consent by no means guarantees sexual equality. Recently, the #Metoo movement has given feminist scholars all the more reason to question the notion of consent. Feminists seek ways to render the unique harms that heterosex can engender even when consent seems to be given. The controversy around last year’s New Yorker short story “Cat Person,” for instance, revolved in part around whether the twenty-year-old protagonist who felt degraded by her fling with an older man depicted merely the feelings surrounding bad sex, or the feelings of being a vulnerable young woman exploited by a man in a position of relative power within toxic dating culture.

Within the past year, Linda Martín Alcoff has shown that consent is necessary but far from sufficient as a regulative concept for sex. Rebecca Kukla has persuasively argued that sexual encounters are better rendered by the notions of ‘invitation’ and ‘gift’ than by that of consent. And Joseph J. Fischel has suggested we “screw consent,” in the sense of exerting pressure on the concept in order to open us up to alternatives. These positions suggest that the role of consent has been so inflated in discussions about sex that it has edged out richer ways of rendering the phenomenology of sexual encounters.

There are many reasons to reject consent as the regulative concept for sex. These include the following:

1. Consent functions primarily to shield those accused of sexual assault. Consent allows one accused to say, “Well, she consented to X, so nothing bad happened.” Even the enriched notions of ‘enthusiastic’ consent and ‘affirmative’ consent do not significantly depart from this function.
2. Consent is based on a proprietary notion of selfhood derived from social contract theory. It legalistically suggests that humans ‘own’ their bodies and can sign them away through a statement of consent. As Ann Cahill suggests, consent may suggest that the one consenting owes the activity involves to the recipient of consent, and thus that the recipient can claim harm if the one consenting does not ‘deliver.’
3. Consent reinforces the idea that men ask for sex and women respond, as Pateman and Alcoff point out. Within heterosexual contexts, sex is figured as something that men are always gunning for, putting the onus on women to decide how far things will go.
4. Consent fails to register the temporally unfolding nature of sexual encounters. It artificially breaks up sex into discrete segments, failing to account for the way that desires may emerge intersubjectively over the course of an encounter.
5. Consent does not capture the ambiguity of many sexual encounters, including what is referred to as ‘gray rape.’ In Screw Consent, Fischel addresses the backlash to the #metoo movement that claimed that it suggested ‘all bad sex is rape!’ For Fischel, the alternative to this slippery-slope reasoning is to investigate how bad bad sex can be. Although bad sex is different from sexual assault, bad sex is often bad in a way that perpetuates broader social scripts operative in sexual assault—and this ‘bad sex’ has serious detrimental effects on the parties involved.
6. Consent may prevent individuals from putting in the work of cultivating nuanced attention to the desires of sexual partners. Consent makes it seem like all one needs is a red light or a green light, without also needing to learn the many rules of the road. Heterosexual cultures generally lead to women putting in the work of attempting to learn about men’s desires, whereas the converse is not expected of men. Peggy Orenstein depicts the chilling results of this in her book Girls and Sex.
7. Consent presumes a level of self-knowledge that individuals often lack. Many of us are often ignorant of our own desires, so suggesting that we can know what we want the moment we are asked overlooks historically coded forms of behavior, the effects of past experiences, and the relative power of differing social locations.

For a long time, I avoided thinking about the philosophy of sex because I suspected that my work on selfhood would commit me to some uncomfortable conclusions. As a continental philosopher trained in phenomenology and deconstruction, I believe that the self is a fiction. I don’t think people are self-possessed rational decision-makers capable of contracting out their bodies and pleasures. My dissertation developed the theory that self-relation is not different in kind from relations to other persons. I took inspiration from Judith Butler’s claim that “my own foreignness to myself is, paradoxically, the source of my ethical connection with others.” Many of the advances in continental philosophy within the past century have come from arguing against the presumed autonomy of the self and from crafting alternatives that take the self to be a construct or even an illusion. This approach contrasts with views of the self as an autonomous, self-possessed homo economicus. It rejects self-knowledge as the primary mode of self-relation.  I argued in my dissertation that, because the self is heterogeneous, self-relation is a self-other relation. Drawing on insights from Simone de Beauvoir and Jacques Derrida, I claimed that other people sometimes know us better than we know ourselves.

Such a view very obviously runs counter to discourses on consent. And one might worry that it leaves the playing field open for paternalistic claims such as, ‘Even though she said no, I know she really wanted it.’ However, as I’ve moved into the uncomfortable space of bringing my work on selfhood into dialogue with the philosophy of sex and love, I’ve realized that this worry is unfounded. On the contrary, an account of the heterogeneous self opens up a range of possibilities for sexual ethics not captured by mainstream discourse on consent. Within the context of sex, the idea that self-relation is not different in kind from relations to other beings does not give free license to paternalism, but rather suggests that we apply the same complex interpretive frameworks for negotiating our behavior with others to self-relations. Rather than taking my desires to be immediately transparent to myself, I might look at the ways they are revealed in various registers, including my behavior toward others and patterns of thought. And feminist scholars have been undertaking rigorous investigations into these possibilities for decades, often enriching the phenomenological tradition that spawned my own insights into the otherness of the self.

In Rape and Resistance, Alcoff draws on Foucault to suggest that individual agents engage in practices of sexual self-making to gain freedom. This is what she calls ‘sexual subjectivity.’ Susan Bredlau has also recently argued following Beauvoir that affirmative sexuality will require that women unlearn submissive self-objectification in the bedroom, and that men unlearn an antagonistic form of sexual expressivity that takes women’s desires to be threatening because they compete with their own. I think it also requires unlearning the tired stereotypes about sex that one finds codified in the media everywhere from mainstream romantic comedies to porn. In this vein, Julia Kristeva contends that the saturation of images in the contemporary world has atrophied our individual fantasy formation. Rather than cultivating unique fantasies, we now must choose between a select number given in advance by the media. Ironically, the proliferation of images impoverishes fantasy. Sexual subjectivity invites us to release ourselves from the hold of pre-fabricated sexual imagery in order to allow us to invent our own. Alternatively, sexual subjectivity might involve loosening the grip of fantasy on our sexual lives altogether. Iris Murdoch suggests that fantasies are inherently self-centered. Perhaps cultivating sexual subjectivity requires opening ourselves up to others in ways not overdetermined by our fantasies.

It follows from my view of self-relation that our practices of sexual self-making are bound up from the start with relations to others. Sexual subjectivity is inseparable from sexual intersubjectivity. This view, shared by Cahill and Alcoff, means that our sexual practices require the ethical work of cultivation. A key piece of this ethical work is the cultivation of attunement to one’s sexual partner(s). Sexual experience involves a unique collaborative intentionality. It tends to build over time, as people get to know each other’s desires and rhythms, although this is not to say that it cannot also be accomplished between strangers (and, conversely, that it can fail to be accomplished by long-term partners). Attunement is an embodied, reciprocal interaction that requires nonverbal, and often verbal, negotiations as individuals interpret and invent their desires.

One of the upshots of the sexual revolution was the disentanglement of sex from love and marriage. Yet this does not imply that sex is disentangled from feelings altogether. Feminist phenomenology suggests that sex is never “just sex,” because any experience whatsoever involves feelings. Sex has a felt dimension, even though no particular feeling need be associated with it. It’s worth noting here that such an attunement may be the original meaning of consent. Etymologically, consent derives from the Latin consentire, which literally translates as ‘to feel with.’ As such, I wonder whether we might reconceptualize consent as empathy. Doing so would allow us to consider that consent occurs on a felt register, a key component often missed in discussions about consent. It would not require assuming that one feels the exact same thing as the other, or even that we have transparent access to our own feelings. Following phenomenologist Edith Stein’s 1917 work On the Problem of Empathy, empathy may broadly be thought of as experiencing a foreign consciousness. Rethinking consent as empathy will mean that agents have to develop empathic capacities through unlearning certain habits and attuning themselves to others.

Take the controversy over Aziz Ansari, for example. Last year, babe magazine published an interview with a woman who had gone out on a date with Ansari and retrospectively categorized her experience as sexual assault. Ansari, the woman contended, ignored her nonverbal and verbal cues as he undressed her, continually pushed her hand down to his penis, and stuck his fingers down her throat. There was much backlash to this account. Bari Weiss, for instance, wrote that Ansari was guilty only of not being a mindreader: the woman had only said ‘no’ once, and her many nonverbal cues clearly had not been sufficient to convey her discomfort to Ansari. Weiss contended that the woman was culpable for not exiting the encounter, while Ansari was merely pursuing his own desires and harmlessly thinking that she wanted sex, too.

It is clear from the woman’s account that her experience with Ansari involved a severe lack of attunement, yet Weiss would absolve Ansari of any culpability for this lack. Such a viewpoint unevenly distributes expectations for heterosexual communication among women and men. It enforces the tradition of assuming that women need to respond to men’s nonverbal cues (which are presumed to be clear to women), while men have no responsibility to respond to women’s nonverbal cues (which are presumed to be mysterious to men). Empathy is taken to be a trait women have and men lack. Contra Weiss, one might read Ansari as culpable for failing to cultivate sexual attunement.

After the controversy, the book Ansari wrote about contemporary dating was relegated to a dingy corner of the defunct fireplace where I stack books that don’t fit on my shelves. I recently pulled it out, however, to find Ansari writing this: “One firm takeaway from all our interviews with women is that most dudes out there are straight-up bozos.” In being a straight-up bozo in his encounter with the woman interviewed for babe, Ansari failed to respond to the cues of his partner. Picking up on such cues is frequently complicated, especially in first-time sexual experiences with new partners. This is one of the reasons that feminist scholars tend not to throw out the norm of consent completely, because it is often indispensable for clearing up potential confusion in such circumstances (not to mention crucial from a legal standpoint). Yet we also need to take a leaf from Alcoff’s book and supplement the idea that what we need is more consent, more frequent consent, more affirmative consent, with the idea that we have a moral responsibility for cultivating sexual subjectivity. In this case, Ansari might have needed to unseat his own desires in the face of another person who was clearly not enthusiastic about the encounter.

In suggesting that we focus on the felt dimensions of our sexual subjectivity, I do not mean to suggest a turn to ‘raw’ emotion at the expense of other dimensions of lived experience. The problem with the traditional view of consent is not that it overthinks sexual encounters, but rather that it underthinks the way that our feelings exist in relation to social scripts, relations of power, and the like. It presumes that people are rational agents with transparent desires that they may freely communicate to others.  By conceptualizing sexual ethics on the basis of the heterogeneous self, we may better account for its complex intersubjective character. We may envision modes of self-fashioning that deepen our relations to others by recognizing that we are others to ourselves. This project takes us into still-uncharted territory, but I think it holds more promise than continuing to try building sexual ethics around a notion of selfhood inherited from social contract theory that feminist theory has proven wrong.

Ellie Anderson is Visiting Assistant Professor of Philosophy at Pitzer College in Claremont, CA. She specializes in 20^th-century continental philosophy, especially phenomenology and deconstruction. She is currently working on a book on selfhood, and also has research interests in response ethics, the philosophy of love, and feminist philosophy. You may find her scholarly work here: https://pitzer.academia.edu/EllieAnderson