The Job of Consent

The Joy of Consent: a Philosophy of Good Sex (October 2023) tests the limits of consent as a heuristic for "good sex," exposing the wide berth between pleasure and what is legible to the law.

art by imp kerr

In sex as elsewhere, consent is asked to do a lot. It is a kind of moral magic, legal theorist Heidi Hurd has suggested, that makes all kinds of unthinkable incursions permissible, from fondling and penetration to degradation and physical violence.  On the other hand, consent is notoriously fickle. Are words necessary for consent, or are glances enough? Which acts one is consenting to, what happens if consent is withdrawn in media res— such questions might suggest that consent is being asked to do too much. It may be clarifying, too, to separate out two types of consent—on the one hand is the legal fiction that Heidi Hurd suggests, which transforms fondling into flirtation, and whose absence makes sex assault or rape. On the other hand, there is a broader cluster of meanings that consent signifies, something more like welcomeness in physical and emotional interactions from the touch of a hand to a night spent together.

Men’s prerogatives—the view that women’s bodies were available for the sexual and emotional gratifications of men—haunt the world. For a moment in America during the 1970s and 1980s, women won some ground in their resistance to men’s prerogatives as  feminist activists rallied for the codification of a suite of transformations in the law of sex and sexual violence—at their heeding, legislatures and jurists began to reshape the law, recognizing that social relations such as marriage or dating should not produce a presumption of welcome sexual contact, that victims of sexual violence should not have their sexual or romantic pasts dragged into the courtroom for cross-examination. This continued on college campuses like that of Antioch College, whose 1990 policy requiring affirmative sexual consent between sexual partners (the Sexual Offense Prevention Policy) inspired both scorn and (some decades later) imitation, or in the state of New Jersey, where legislators eliminated the historical requirement that there be evidence of force to find one guilty of rape. In theory, at least, it would be easier for the state to prove sexual assault and rape and to punish such assailants. Yet even that meager promise proved flimsy, allowing men like Brock Turner to go free while young men of color are incarcerated or murdered for violence they did not commit. These moves have the halo of carceral feminism, and by focusing on enhancing convictions, justice for survivors of sexual violence remained elusive. By 2024, as I am writing, consent can feel brittle—neither flexible nor robust enough to meaningfully improve the law and culture of sex.

Onto this cynical terrain steps Manon Garcia, whose new book, The Joy of Consent: a Philosophy of Good Sex (October 2023) asks if consent could be retooled to serve the ideal of “good sex,” sex which is not only pleasurable, but also “a moral good.” Garcia is a philosopher trained in France who taught briefly in the United States before taking a post at the Freie Universität in Berlin. From this vantage, Garcia begins by emphasizing how her “French American context” shapes her work and her desire to combine the traditions of continental philosophy (with its broad claims about moral and aesthetic good) with those of analytic Anglophone philosophy (whose ambitions center on achieving logical rigor, in Garcia’s view). She begins through an examination of French and American legal codes—suggesting that consent as defined in the law has a “polysemy” to it, which allows active consent to an agreement (“I will sell you my car,”) or “passive” consent to an agreement (“I accept your car”). But this describes consent only in the civil law, where it creates an obligation, whereas the law of sexual violence typically pertains to consent in a criminal context, where it creates an authorization.  Consent to be cut open on the operating table, for example, partially converts violent assault into medical care.  In sex, Garcia suggests, consent requires greater care than the law necessarily affords. Garcia justifies this with an intuitive and appealing argument: whether or not we imbue sex with importance on moral or legal grounds, sex situationally lays us bare, makes us profoundly vulnerable, and this itself should justify exceptional conscientiousness in our sexual relations.  

From this description, however, Garcia falls into a muddle. She suggests that there is a distinction between sex that should be prohibited or not (“wrong” or “right” sex) and sex that is or is not morally problematic (“bad” or “good” sex). In her view, the too-common conflation of “right” with “good” impoverishes our understanding of consent and muddies our horizons. “If we want to be able to seek good sex,” she writes, “we must be aware that bad sex may happen on the way. We should aim to eliminate wrong sex, but it is probably impossible to prevent bad sex entirely.” But Garcia performs a conflation of her own. For the author, moral sex is mutually desirable sex, what Catherine MacKinnon calls “welcome” sex. Yet desire moves in complex ways; desired sex can be sex that gives its participants pleasure, or it can be the act of having sex with one person for the pleasure of a third (compersion). It can be sex undertaken for the purpose of distracting oneself from grief or because it can be interesting to have sex with someone new. Mutually desired sex is not always sex desired in the same ways, to the same degree, or for the same reasons, but this incommensurability evades Garcia’s analysis at every juncture. 

Garcia goes on to describe consent through John Stuart Mills’ liberal view (freely-given mutual consent produces permissions for sex) and Immanuel Kant’s deontological view (consent requires a deeper understanding of partners’ desires, and consent requires respect of each partner’s human dignity, and does not treat individuals as means to an end). This bears on the succeeding discussion of BDSM practices, where she meditates on the 4Cs framework for BDSM—Care, Consent, Communication, and Control—and its corollary forms of consent: the “surface consent” that allows standard formal objections (“no means no”), the “scene consent” that limns the limits of the scene and the safe word, and the “deep consent,” where withdrawing consent within the scene itself may not be possible and participants instead commit to practices of care before and after the scene, taking seriously the lingering sense of undesired sex that one may have consented to formally. Weaving through a discussion of EU jurisprudence on consent and BDSM in the cases of Pretty v. United Kingdom and K.A. and A.D. v. Belgium, Garcia finds that the EU has allowed a Millsian view of consent to dominate, but oversimplifies the argument, as the court suggests that consent cannot allow individuals to give away their rights to human dignity (essentially a Kantian and Lockean view, though Garcia only sees Mills’). But drawing on one detail of the case—that the woman in K.A. and A.D. was financially dependent on her husband who raped her under the guise of BDSM—leads Garcia to one of the central questions of consent: whether “consent” is possible at all in conditions of social hierarchy. Of predominant concern for Garcia is the condition of patriarchy, but one might easily extend the same question to the logics of colonialism and racism, of ableism, or of economic class (Garcia never arrives at such questions, but one might look to Amia Srinivasan’s 2021 The Right to Sex, which I reviewed favorably at the time of its publication).

To answer the question of sex under conditions of oppression—which is to say, in a world that continues to cater to men’s prerogatives—Garcia moves quickly through a description of Freud and Foucault, sketching out the historical arc that made it possible to conceptualize desire and sexuality not as innate, but instead as emerging from a field of power relations. But Garcia caps this discussion with the surprising claim that Foucault “barely mentions the core manifestation of those relations, which is the social domination of women by men.” This is striking in part because it presumes that Foucault could have been talking about power or sexuality without talking (if implicitly) about gendered domination and in part because, read carefully, Foucault’s work should allow Garcia to adduce that this domination is not universal, in part because the very categories of “woman” and “man” are neither transhistorical nor transcultural as Garcia needs them to be for her argument to pass muster. Garcia follows MacKinnon for the proposition that consent is only concerned with reconfiguring the accommodation of inequality as personal freedom; this critique follows the broader critique of choice feminism, that freedom of choice remains inapposite without structural transformation. Or as MacKinnon put it rather provocatively in a 2022 lecture at Brown University, “[W]hen a sexual interaction is equal…consent isn't needed and doesn't occur, because there is no boundary transgression to be redeemed by it.”

Garcia suggests that consent, women’s desires and refusals, reveals epistemic injustices (a term coined by philosopher Miranda Fricker to capture how knowledge can be refused through unwillingness to recognize or through willful misrecognition). The epistemic problem compounds, Garcia suggests, because of preference adaptation. Pornography, among other artifacts of patriarchal sex culture, circulates and produces a world where it becomes irrational to expect anything other than patriarchal sex, and one begins to suffer a poverty of imagination. “[I]f women know that they cannot expect anything besides patriarchal sex,” writes Garcia, “they may well stop desiring anything but patriarchal sex.” This critique rings both somewhat true and hollow, in part because it assumes that all sex happens under conditions of  patriarchy (perhaps true!) and because one senses that if Garcia had paused to spend more time with practices of nonheterosexual or otherwise queer sex, that claim might require more explanation. Garcia’s first elision makes the second one possible. Moving to normative prescriptions about sex—solutions to the problem of patriarchal sex—, Garcia seems somewhat mired, perhaps because her prescriptions rely on the thin premise that there is a unitary act called sex, a denial of the possibility that any sex between any two (or three or four or more) involves new negotiations of preferences and practices. 

Consent, Garcia proclaims, must be communicated, in the sense that it is both expressed and received, that sexual partners—regardless of gender or role—have a responsibility to inquire about consent. Sex may be morally good when it accords with one’s “sexual project,” a framework proposed by scholars Shamus Khan and Jennifer Hirsch in their 2020 study of college sex, Sexual Citizens, that conceives of sex as a means for achieving certain goals. More expansively, though Garcia only implies this, sex might be good when it allows partners to fulfill their sexual projects collaboratively. This brings Garcia to her underwhelming conclusion: sex is good when it acts as a conversation,  and “consent is no longer to be understood as a formal agreement reached all at once but as the manifestation of the sexual autonomy of the partners, which must occur continuously during the sexual encounter.”

Garcia makes few suggestions to operationalize this. She argues that we ought to become more comfortable talking about sex, and develop a more robust vocabulary for discussing desires. But at such a high level of abstraction, who will disagree with this claim? The mess lies in the details. People in a position of power have an obligation to provide care so that marginalized individuals can “express themselves without fear” and make possible “a conversation between near-equals.” The law could, in Garcia’s view, follow the lead of Sweden in recognizing a cause of action for “negligent rape” where a sexual partner has failed to satisfy the duty of necessary care in obtaining consent, and courts should spend more time listening to persons who have experienced sexual violence to make more accurate determinations of intent. Under the law, a state of mind in which someone intended to commit a crime, known as mens rea, is a required element of most criminal convictions. From my vantage, Garcia’s faith in the law is misplaced, in part because “victim’s justice” is only a cover for what state prosecutions actually achieve—vindication of the state’s power and monopoly on violence over all its subjects.

What Garcia might prescribe to me—a queer man of color—remains elusive, since Garcia focuses almost exclusively on heterosexual relationships, and with the singular exception of her treatment of BDSM (as a scene whose sexual norms vary from so-called vanilla sex), treats sex as a unitary thing. While gender is a system that conscripts virtually everyone, and one can generally claim that patriarchy shapes everyone’s sex lives, those generalizations elide a heterogenous universe of sex partners and sex acts that might prompt a more expansive critique and rethinking of consent. By the same coin, how race, culture, etc. might complicate the problem of unitary gender categories evades Garcia’s analysis; what is left, then, is a book that claims to be speaking in universalisms but only deploys evidence from heterosexual, gender binary particularities.

I remember the first time a boy asked if he could kiss me. It was a little bit thrilling, a rare show of care puncturing what had so far been an adulthood of tongues jammed down my throat on the presumption that the kiss was only the foreword to what was yet to come. But soon, consent became my expectation—preference adaptation, as Garcia suggests—and it no longer brought me joy. But in my view, that is precisely the point. Consent should not inspire joy, nor can it bring us closer to vaunted ideals of good, pleasurable, or welcome sex. Implicitly, Garcia acknowledges this. "Law can be used to prosecute rape and other forms of assault but it cannot inspire or incentivize us to achieve emancipation through good sex.” Consent is a heuristic for assessing the legality of a sexual situation, but it cannot be a heuristic for understanding what is desired or desirable sex. This is the difficulty with desire—there are no intellectual shortcuts or heuristics to be taken. Rather, in understanding our own desires and the desires of others, we are forced to take a step into the darkness, complete with the risks of guessing wrongly and falling through.

Confusingly, Garcia recognizes that consent is beside the point in the actual etiology of rape and sexual violence (going so far as to title one chapter about sex that is morally lawful, but not desirable, “Rape is Not Sex Minus Consent”), but this does not keep her from recentering consent in her project to “make the experience of sex overwhelmingly good.” Garcia is not entirely to blame, perhaps. Legal proceedings tend to collapse the full inquiry of what made a situation rape (an analysis of power, partners’ relative freedom, welcomeness) into an inquiry about consent. Some feminist activists have responded in kind, pushing for stronger affirmative consent laws in the hopes that it might encourage partners to be more careful and agential in their sexual practices, perhaps even in the hopes that it will spur the kind of conversation Garcia seeks (“consent is sexy,” my college orientation workshop leaders told us). Indeed,  a new campaign in the United Kingdom urges that nation to adopt a “yes means yes” affirmative consent standard. Under the most charitable interpretation, such a standard puts sexual partners in the position of a mind-reader seeking to determine whether a partner’s parted lips are a smile or a grimace; less charitably, such a standard might lead investigators and juries to see consent where there is only resignation. If Garcia seeks to depart from the legal analysis consent invites to replace it with consent as a kind of collaboration and articulation of partners’ aims, Garcia reveals her own fatal hope that sexual partners may be able to articulate everything, or at least everything that matters, and make relatively uncoerced decisions about sex.

But I am struck by the other side of the feminist sex wars—where MacKinnon and Andrea Dworkin sat on one side (Garcia perhaps seeking to be their inheritor), Gayle Rubin and her progeny (among them, Judith Butler) sat on the other. And it is Butler who offers more clarity here (in an essay titled “Sexual Consent: Some Thoughts About Psychoanalysis and Law”) about consent and its fallibility:

[F]antasy enters into consent in nonlegal settings: Someone can agree to something precisely because they want to be the kind of person who can agree to that arrangement…. Sometimes the “yes” is a bid for love, an effort to override oneself for the other, even a means through which one breaks oneself for the other, or makes oneself available to be broken—as an act of love. At such moments, we need to think of the "yes" less as an act of consent on a legal model than as a bid, a probe, an essay, a way of lending oneself out for an experience about which one cannot say in advance if it will be good or bad.

This passage strikes me as offering a diagnosis of consent’s problematic that accords with Garcia’s own diagnosis, but the solution could not be more radically different. Butler, for their part, asks the question plainly: such a model of consent—the legal model—“functions as a defense against the unknown, and tell me: who would have sex if it were really known in advance exactly what it would be like?”

To put it more bluntly, one type of conversation I’ve had with rather a lot of frequency is the Grindr exchange:

Me: heyy

Him: yo…what r u looking for?

Me: pretty open…u?

Him: fun, friends…

From here, we describe in reasonable detail what types of sex and what acts we “are into.” We exchange photos of our faces, our bodies, and whatever else. There could hardly be more forthcoming communication. Formally, this appears to satisfy Garcia’s aims—we appear as forthcoming as possible in describing our sexual projects, to ensure that our longer-term ends match, and describe precisely what kinds of sex we expect. At the end of this exchange, he sends me coordinates on a map and I go. It is awkward and fumbling and not great. More likely than not, I come away feeling both somewhat thrilled and mildly disappointed. Even the most robust version of consent could not help us cross the threshold into good or fully welcome sex. I can’t help but feel that the conditions of good and fully welcome sex had nothing to do with that legalism we call consent after all.