Percipience of Venereal Pleasure in this Age of ‘Consent’
Is sexual consent an evolving legal construct?
The way societies deal with sex tells us a lot about themselves. Every place and generation has its own battleground when it comes to sexuality. They address issues such as who can have sex with whom, when, and under what conditions, from anti-miscegenation laws to criminal prohibitions of same-sex intimacy. There is currently considerable discussion of what kind of sexual activity is appropriate, focusing on the issue of individual choice and autonomy. Consent seems to be the defining characteristic of our times.
Contrary to popular opinion, consent to sexual activity should not be used as a determining factor for what is legally permissible and socially desirable. Sex can mean very different things at different moments, partly because sex has different connotations. The transactional, negotiated terms of paid sex may indeed result in the parties agreeing to specific acts for a set price. Then again, not all sex should be reduced to a simple atomistic exchange of thoughts between two individuals. It is sometimes difficult to fully predict what we want ahead of time. When we are in the moment of sexual intimacy, we discover and produce details of desire and satisfaction. The expression of sexual autonomy is not only defined by the will of an individual but also by the mutual interaction between two (or more) partners as well. Psychologist Robert Thurman suggests that sexuality can be an exceptionally utopian experience because it can lead to novel ways of understanding each other.
Sexual pleasure is generally perceived as being more complicated and unpredictable for women than for men. These assumptions have contributed historically to the over-regulatory nature of female sexuality and reproduction. Sexual ambiguity is the standard, not the exception. It is ambiguous about what is desired and how that desire should be expressed. Rather than avoiding this fact, women’s emancipation projects should strive to incorporate it. For those interested in actualizing their sexual selves, it is possible on their part to experience various levels of fear, repulsion, uncertainty, as well as the thrill of excitement and intrigue. Allowing ourselves to be vulnerable in these moments makes space for the production of liminal trust. The foundations of this trust are not derived from consent, but from a shared willingness to accept that sexual pleasure and danger can coexist. However, sexual liminality can empower us because it acknowledges the ability for sexual encounters to create a new version of us, but also includes the risk that conduct will cross over into bad sex.
Sexual consent — like informed consent for medical procedures — is an evolving legal construct. In the legal landscape, it is a concept that distinguishes the criminal and non-criminal act of sex. But is it possible to determine whether consent is present or not? A number of jurisdictions that adopt an affirmative consent-based sexual assault standard, in which consent is defined as a subjective expression of the complainant’s thinking at the time of an alleged assault, are dependent on judicially derived conceptions of consent. The verbal and non-verbal behaviour of both parties during the encounter should be considered when the complainant’s testimony is combined with other types of evidence besides emphatic ‘yes’ or ‘no’ statements. In evaluating the evidence, the judge must determine whether the accused is credible in his claim of nonconsent, as well as whether he understood that consent was absent or withdrawn. To build a construct of consent, the law takes into account both direct and indirect signs and evidence.
The key thing to bear in mind is that consent is not something separate or unknown that must be found, whether by a sexual partner or a court of law. In a given society, consent is simply an indication of the way sexual behaviour is regarded. The point at which we deem consent absent is the point at which the degree of coercion, compromise, and risk that sexual conduct crosses the cultural threshold. Many feminists will assert that the problem is not ‘consent’ itself, but the limited protection it provides in law. Hence, the law needs to be adapted to accommodate the cultural shifts brought about by #MeToo. Those who advocate affirmative consent argue that sexual partners should actively seek to confirm consent throughout the course of sexual encounters. An assault allegation from a woman is taken seriously. Under these circumstances, the defendant has the burden of proving that he made reasonable efforts to obtain the consent of the victim. According to these beliefs, changing our sexual behaviour should make the culture both safer and sexier. Could a feminist with a rational mind disagree with that?
The logic, however, is flawed on two fronts. Conservative feminists and pro-sex feminists both speak in binary terms when addressing consent discourse, but that view does not represent a cultural or legal understanding of sexual reality. It is complex and unpredictable how consent is incorporated into sexual encounters. In the grand scheme of things, a single sexual encounter can be titillating and humiliating, disgusting and intriguing, frightening and yet compelling. Additionally, consent is not the same as wanted sex; conversely, non-consent isn’t the same as unwanted sex. In defining consent in terms of unambiguous desire, society has significantly regressed in terms of the types of sex that they consider acceptable. Feminists like Robin West, for example, formulate an extensive theory on ‘enthusiastic’ consent that goes even further in explaining these difficulties. They argue that ‘normal’ heterosexual relations are based on the oppression of women and that any kind of sex that is compelled, regardless of consent, should be criminalised. Only sincerely desired sexual relations should be endorsed by the law and society. It is doubtful, however, if good sex really correlates with truly desired sexual encounters. Sex, whether it is wanted or not, can still be sexy and transformative. Due to the fact that it engages vulnerable states of being, it can shift previously anticipated sexual boundaries. As one might imagine, the attraction of ‘choking’, for example, lies at least partly in the legitimacy of the fear prompted by it.
To be clear, I am not advocating that there are no limits in sex, but rather that we devise limits in alignment with the erotic potential of the sexual encounter. Sexual experiences can only be valued when partners are able to engage directly in the interplay between permissibility and impermissibility within an environment of liminal trust. This kind of sexuality is stigmatized by both affirmative and enthusiastic consent, which is clearly a mistake.
#MeToo goes to great lengths to establish patriarchal culture as a context and target. A woman becomes a sexualised object of male dominance in this view. It is widely believed that men are interested in extending or at least preserving, misogynistic forms of social control over women. The assumption here is that they are going as far as they can before a woman expresses her nonconsent to sex. As it stands, this picture offers an idiosyncratic and regressive rendition of human sexuality. This policy, in its worst possible form, drives us to enforce conservative standards of sexuality. Thus, the contemporary sex debate offers a fresh space for a new theory that explores the boundaries of an adventurous and fulfilling sexual life.