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Tuesday, January 16, 2018

The Ansari Incident and Preposterous Role of “Consent” in Liberal Political Theory

The controversy over the Ansari Incident (see Caitlin Flanagan in the Atlantic and Bari Weiss in the Times) seems to me a good example of the preposterous role played by the concept of “consent” in many versions of liberal political theory. I mean “preposterous” in the original and literal sense of the word: Putting that first which ought to come second. Consent-obsessed liberal theory makes the practical and moral significance of an action hinge on consent. In reality, however, the meaning and proof of “consent” depend on the practical and moral significance of the action for which consent is required. The wildly divergent responses to the Ansari Incident show that we have zero consensus on the significance of sex and, therefore, zero consensus about the presence or absence of real consent.

“Yes means yes” is an empty slogan until we first define what sorts of evidence signifies “yes.” Must it be written words, or merely spoken? Witnessed and notarized by third parties, or shared only by the parties to the transaction? Can actions, subtle or obvious, substitute for words? What evidentiary burdens should govern proof that the expression of consent actually occurred? As every lawyer knows, the formalities required to manifest consent depend on the significance and risk of an action for which consent is required. Wills Act formalities demand not merely written consent but writing witnessed in an exceptionally formal way, because wills are very important and because the risk of fraud or undue influence is very high. Shrink-wrap contracts to buy software demand mere mouse clicks on computer screens. Section 2-206 of the Uniform Commercial Code states that consent to make an offer can be implied “in any manner and by any medium reasonable in the circumstances.” What is “reasonable in the circumstances”? It depends on the stakes — that is, the importance and risk of the transaction.

Consent-based theories of sexual morality, therefore, need an account of the significance of sex. Should sex be as easy as drinking a glass of vodka, as Bolshevik Alexandra Kollantai’s character Zhenya in the short story “Three Generations” asserted to the shock of Lenin and other early 20th century leftists? Or should it be as difficult as buying a house, with its own statute of frauds and TILA statements? If one believes that human mating is as morally empty as conjugation by paramecia, then it is hard to see why one would require any special indicia of consent for sexual intercourse. A wink at an auction appropriately can buy you an expensive and ugly painting. Why cannot a wink properly get you an orgasm from a friendly stranger? If you think that sex is a big deal because it is linked to our need for love and self-esteem and (therefore?) often leads to imputations of implied violent threats and resigned submission, then you might presume that some minimum ritual of courtship should precede those expressions allegedly conveying consent, in order to insure that those expressions really mean “yes.”

For instance, I tend to think that a normal person approaches the possibility of sex with the expectation that it will be preceded with some indication of esteem — flowers, a few dates, strolling and hand-holding — so I tend to be skeptical about the existence of “consent” from a person’s merely verbal “yes” when she is alone in an apartment with a would-be lover whom she met in person once or twice before and who might be half a head taller and a good deal stronger than his would-be partner. But I courted my wife back in ‘86 when dinosaurs roamed the earth and humans wrote love letters (sent by snail mail!), and long, earnest conversations preceded that first kiss by months. Katie Roiphe would likely say that I am just a male conservative foisting “archaic” (“cardboard”) gender stereotypes. (Oddly, my conservative views on this question coincide more with the views of people often deemed to be younger and more “radical” feminists not only back in the ‘90s but also today, a quarter-century later. I think it sometimes drives them nuts that they get enthusiastic nods of agreement from this fifty-something Republican reactionary). Those “sex-positive” feminists with a higher regard for casual couplings might be satisfied with more casual evidence of “consent”: For them, a single, isolated, and merely verbal “yes” — or perhaps even non-verbal signal, such as swiping right on a cell phone’s shrink-wrap form? — suffices. With expectations of courtship so low, evidence of “coercion” must be correspondingly high: Glengarry Glen Ross-style “Always Be Closing” sales tactics need not vitiate that “yes,” and no waiting period is needed to consummate the transaction. You dislike those hard-sell tactics? Don’t be such a wimp: That’s just a “denial of female sexual agency that threatens to propel us backward,” as Roiphe said 25 years ago.

One’s normative ideas about what one should expect from sexual interactions, in short, defines consent, not vice versa. Disagreement about those ideas makes agreement about “consent” even more difficult when the issue is not whether or not to enforce criminal sanctions but rather social stigma. If one believes that people ought to expect more than a “joyless, exploitative encounter[]” (Rebecca Traister’s words), then one will tend to treat as a pariah someone who presses for such an encounter even if their entreaties do not meet the requirements for a rape conviction. If one believes that all of that is just too much freight for sex to carry, then one will be more inclined to dismiss complaints about joyless sex with “caveat emptor.” These difficulties are compounded, of course, when prevailing norms are challenged as unjust. The U.C.C. fills gaps in under-specified agreements by appeals to customs of the relevant industry, If, however, one believes that those default rules or customs are rigged against one class or party to a type of transaction, then how does one fill in those vague terms? How does one draw any inferences from data showing the “customs of the industry” — that is, people’s normal expectations in a sexual situation — when those expectations might diverge wildly based on gender, religion, social background, celebrity status, self-esteem?

Rebecca Traister’s article reduces the problem of bad sex to “a misogynistic culture” in which men get the sense of entitlement to orgasms and women, the high and conflicting expectations about their availability and their looks. I tend to to think that this focus on gender hierarchies futilely attempts to put the cart of consent and coercion before the horse of sexual meaning. Even after the Revolution when total equality is achieved in some hypothetical future paradise of gender equality, people will vary in their looks, charisma, charm, brains, and everything else that makes for an attractive mate. People will still treat sex as a mirror in which they anxiously stare for validation of their own looks, brains, or personality from those they admire. The famous, the good-looking, the charismatic will still be able to exploit those anxieties.

Should we demand that the meaning or meaninglessness of a sexual encounter be disclosed explicitly up front, because we regard as normal one party’s expectations of being cherished when they have sex? Should we stigmatize the other party’s merely itch-scratching sexual transactions as presumptively exploitative? Or should we brusquely regard expectations of love in all sexual encounters as needlessly needy and put the onus on the complainant who uttered some magic syllable to show that they were coerced by some fraudulent misrepresentations or wheedling pressure?

I am inclined to agree with David French when he argues in a National Review essay that the concept of consent will not help us answer this question. I would go just one step further to argue that this question of sex’s significance is instead the question we need to answer to define the concept of “consent.”

That might be hard for liberals to accept, because liberalism of a certain brand attempts to sidestep controversial value judgments about what constitutes a good life (including good sex) with the idea of consent. Justice in sexual matters is easy: “yes” (with the precise form and proof of “yes” conveniently left unspecified) means yes. I appreciate the desire for a simple, crisp theory of justice that avoids controversial value judgments. Consent, however, is not a path around these value judgments: Here in sexual matters (as elsewhere), consent is a circular road that just doubles back on the cross-roads of value that liberals seek to evade.

Posted by Rick Hills on January 16, 2018 at 11:53 AM | Permalink


Zagarna_84 writes:

“[T]he idea that ‘one’s normative ideas about what one should expect from sexual interactions, in short, defines consent, not vice versa’ is ironically postmodern in its silliness. It's an idea that could only be applied to sex because in any other context it would be obviously ridiculous. THE LAW defines what consent is in a particular context.”

Zagarna, I think that we are saying precisely the same thing. It is a tribute either to my lack of clarity or your not reading my post with care that you would take me to disagree with anything in your statement.

Yes, of course, “the law” defines what constitutes “consent.” My simple point is that the law does so by filling in gaps in under-specified agreements by looking to prevailing norms about appropriate, reasonable behavior to fill those gaps. There is nothing “postmodern” about this point: It is blackletter contract law. See, for instance, UCC section 2-202.

Here is my (I hope) modest extension of this simple point to sexual interactions: If we do not have any social consensus about norms defining reasonable behavior in a sexual situation, then we will not be able to resolve misunderstandings —that is, fill gaps in their iambiguous “contract” — by reference to those non-existent norms.

Contrary to your confidence about the clarity of the “legal rule,” which you claim is “trivial” to state, we apparently do not agree on what a “reasonable partner” would expect in sexual situations. Apparently reasonable men like Ansari seem to disagree with apparently reasonable women like Grace. Apparently reasonable journalists, judging the situation after tha fact, also disagree. I am not sure what you mean by a “flat” concept, but, if “flat” means “clear, plain, uncontested,” then “consent” in sexual contexts is about as “flat” as the Rocky Mountains. Like the idea of negligence, the idea of consent is contingent on consensus among “reasonable” people that simply does not exist.

This is why, at least in the absence of very detailed written contracts that never exist in these sexual contexts, norms about appropriate sexual interactions define “consent” and not vice versa. There is nothing remotely post-modern or even very complex about any of these claims. Which do you dispute?

Posted by: Rick Hills | Jan 17, 2018 12:07:50 PM

Sam: I am not sure that the distinction you make between being wronged and being harmed is all that useful. One of the reasons that we define certain things as "wrongs" is that we deem them inherently harmful (though that might not be enough in itself to render an act wrongful, of course). I once had police search the trunk of my car without, as far as I could tell, anything close to probable cause. Was I "harmed" in the sense that you mean it? No. But I was wronged, and the law recognizes that I am entitled to nominal damages for the search itself, without proving any additional damages. Similarly, if I am not mistaken, the law allows for an award of at least nominal damages for a trespass, even if no actual damages have been proven. The same is true of Asher Steinberg's landlady example.

Posted by: gdanning | Jan 17, 2018 11:57:00 AM

Consent is a legal construct. Saying that something was consensual will often determine whether it was legal or not, but since hardly anybody as far as I can tell is saying that Ansari's behavior was actually illegal, and not just sleazy and unethical, the legalistic debate is completely beside the point in this instance. Of course it doesn't answer the question of "what bad sex means." Who exactly is arguing that it does?

And even following your wanderings far afield from the actual Ansari situation, the idea that "one’s normative ideas about what one should expect from sexual interactions, in short, defines consent, not vice versa" is ironically postmodern in its silliness. It's an idea that could only be applied to sex because in any other context it would be obviously ridiculous. THE LAW defines what consent is in a particular context. E.g.: We don't have different versions of Form AO75, requiring more onerous levels of formality, for consent to adjudication before a magistrate judge, even though I suppose one could argue that parties in a million dollar case ought to think harder about such consents than parties in a small claims case.

I have no doubt that the law in particular areas, e.g. your wills example, encodes SOMEBODY's normative ideas (albeit in that case it is probably the normative ideas of some long-dead state legislator). But as far as I can tell, consent in the sex context is about as flat a concept as you can get. The legal rule is trivial to state: I have consented to sex if a reasonable partner would not believe that I have denied consent. That this turns out to be difficult to apply in practice does not make consent any more of a problematic concept than something like negligence.

The only reason why discussions of sexual consent inspire so much bad-faith handwringing in certain quarters is that actually talking about the issue threatens to expose certain ways in which the law of sexual consent is hostile to the interests of women.

Posted by: Zagarna_84 | Jan 16, 2018 9:33:17 PM

Asher Steinberg's analogy may be apt in some ways, but it's seriously problematic in at least one: the disorientation effect he describes may be profound, or deep, or long-lasting (extend along almost any dimension you like), but it's not harmful. If you think it is, you've rendered the concept "harm" so capacious it's lost all identifying significance. One can act without your consent, and thus "wrong" you, but that's not to say they've "harmed" you.

Posted by: Sam | Jan 16, 2018 9:23:59 PM

I agree with Ed that you're making a bad analytic mistake. Once I had a landlady who occasionally would have a cleaning person into my apartment, unannounced, and move everything around into some kind of order; it would take a few minutes to figure out where everything had gone. Now, none of my possessions in the apartment had any particular meaning to me, and, only slightly exaggerating matters, I gave no conscious thought at all to where anything was put. Any arrangement was just as good as any other, so long as I knew the arrangement. Nevertheless, when I would come home and find everything cleaned and rearranged (which as you can imagine given my indifference to ordering my things, made quite a difference from how things were), I would feel that I had really been denuded of a part of my autonomy in some surprisingly profound sense for hours; the lack of control over my domestic surroundings was so disorienting that I would feel quite enraged and couldn't be in the rearranged apartment until I'd gotten over my shock at what happened. Many people would tell me that they also would have found it disturbing, that they'd even be creeped out if their landlady came into their apartment while they were away to adjust their thermostat. I don't mean to suggest, of course, that this sort of experience is analogous to sexual assault; the point is that something can be meaningless when voluntary, like where I chose to strew my possessions on the various surfaces of my apartment, that can feel quite meaningfully harmful when done to you non-consensually, like my landlady neatly rearranging my possessions.

Posted by: Asher Steinberg | Jan 16, 2018 6:57:28 PM


I'll leave this right here. Whether one agrees with the conclusion of the article it is worth while to note the discussion about what consent means and its role in social life is not cabined to those who see themselves as professors and/or lawyers...

Posted by: James | Jan 16, 2018 6:22:09 PM

It does seem odd that we can agree on abortion, affirmative action, the death penalty, civilian guns, climate change, and campaign finance---but we can't agree on consent. Perhaps we're just not trying.

Posted by: Two sides | Jan 16, 2018 5:59:21 PM

If I recall, Miss Manners suggests that you wait for the woman to make the move and then move at her pace. Wait for her to ask you out. Wait for her to kiss you, and then kiss until she stops or she initiates the next step, etc.

The weaker party makes the decisions and asserts itself.

Posted by: Consent 101 | Jan 16, 2018 5:50:33 PM

"a would-be lover whom she met in person once or twice before and who might be half a head taller and a good deal stronger than his would-be partner"

All women only date men who are taller and stronger than them. Height and muscle is most of what makes men sexually-attractive--unless they have a masculine face, like Brad Pitt or George Clooney.

It's precisely because women only date men who are (much) stronger than them, that they need to have the means/tools to physically fight them off if it comes to that.

To say that an unarmed woman who weighs half that of an unarmed man has an equal opportunity to defend herself is like allowing Bill Gates to box Mike Tyson.

Posted by: Tonya H. | Jan 16, 2018 5:41:32 PM

Thanks again, James. I am just a lawyer, not a philosopher, and I am pretty sure that my knowledge of Rorty’s stuff is barely “passing.”

Of course, contrary to some comments here and elsewhere, no one is calling for Ansari to be charged with rape. There is, however, another question of whether he should be charged with callousness. David French’s essay (http://www.nationalreview.com/article/455445/aziz-ansari-allegations-defects-modern-sexual-morality) thoughtfully asks this question. I am suggesting only that the focus on “consent talk” (e.g., whether the woman involved said “yes” with sufficient clarity) distracts us from this question of whether Ansari or other people in a similar position behaved with kindness. We are not talking about commercial dickering over, say, the purchase of a new car where tough bargaining and taking advantage of the letter of someone’s agreement are appropriate: We are talking about sex, which, I would hope, involves an ethic of kindness rather than an ethic of (bare) consent. Why import language from commercial settings that arguably encourages the latter rather than the former?

I have no idea, really, whether Rorty’s language or ideas can capture this simple intuition. But, if it can...great! More reason to take another look at his stuff.

Posted by: Rick Hills | Jan 16, 2018 5:35:00 PM

@Rick. It's great to read the words of someone who at least a passing familiarity with Rorty, however, there is a lot to unpack in your response so by necessity I have to pick and chose in order to be concise. First, the tradition of the law and the tradition of philosophy are separate traditions and as Rorty noted there isn't a close fit between political theory and political action. He was suspicious of the Marxist roots of "praxis" so I don't think he would be bothered by the claim that consent does less work than meets the eye. A person who says that kind of thing likely expects too much from the relationship between philosophy and social life. Second, Rorty didn't believe in any "final vocabularies" so there is no reason to think he would subscribe to the view that we /need/ the language of consent. Rorty would puzzle over whether the vocabulary of consent provided hope for expanding human freedom in the present historical circumstances. My intuition is that he would take one look at Trump and conclude pragmatically that these are not the right historical circumstances for advancing alternatives to consent, at least as a matter of political action, regardless of how little or much conceptual work they do. Third, in regards to the balance between self-regard vs kindness my intuition is that Rorty and you probably don't share similar definitions of the self because when I read that phrase my reaction was that on his terms interpersonal kindness is identical to self-regard. See, for example,


Posted by: James | Jan 16, 2018 5:15:34 PM

Maybe we should tell high-schoolers that if they're convicted of first-degree rape they WILL spend the next 18 years in prison before they're eligible for parole. And if they're found not-guilty they will still lose their job and will never be hired again--because everyone will think they're guilty anyway.

Posted by: Brock Turn the Page | Jan 16, 2018 5:12:47 PM

Certainly the ex-post-facto prohibition (no retroactive criminality) applies to sexuality.

The man has to get consent before the act for it to be legal, but also, the woman has to say 'no' before the act for it to be rape. If the woman believes she's being raped, she has to communicate this before or during the act, not after, right?

She also needs to have the means to meaningfully fight off rape, i.e., the second amendment, right?

Posted by: The Washington ex-Post | Jan 16, 2018 4:54:56 PM

You did use "practical and moral significance," but focused solely on those lacking belief in the "moral significance of mating" in the passage I quoted. I think that sentence was a straw man and did not, in any case, convince me that someone maintaining the supposed view was in any kind of box. But you've been very accommodating in addressing my concerns, for which thanks.

Posted by: Ed | Jan 16, 2018 4:51:20 PM

Well, I hope that I used the phrase “practical and moral significance” in the initial post. Note that the standards for waiving tort liability in cage boxing are not high: One generally just signs a disclaimer form. By contrast, consent to sex work is often prohibited by laws against prostitution, regardless of the formalities insuring consent. Moreover, the criminal penalties for non-sexual assault — say, a punch in the nose during a barroom brawl — tend to be much, much lower than the penalties for rape. Perhaps both the difference in the ease with which we infer consent and the differences in the nature of the penalties reflect our understanding that sex carries a lot more significance than a punch in the nose.

Posted by: Rick Hills | Jan 16, 2018 3:29:46 PM

Rick, thanks for the reply. I see your point, but I think you're conflating whether the activity has moral significance with whether an associated act has sufficient significance, moral or otherwise, to warrant consent. You and I engaging in Greco-Roman wrestling is something that I think is devoid of moral significance (sorry). If you were to initiate a throw or a headlock without my consent, different matter. It seems to me an analytic mistake to reason from whether a fully consensual lacks moral significance -- remember, I don't actually think people take that view of intercourse, or at least, I expect many concerned with this episode do not and need not -- to an inference about whether an unconsented act does. And I think it's a matter of potential concern, transcending whether consent itself has substantial weight, when physical or psychological harm is entailed.

Posted by: Ed | Jan 16, 2018 3:17:42 PM

Ed, I think that you are incorrect: If we regarded sexual activities as devoid of deep meaning, then I doubt that their involuntary character would be ground for attributing to them a lot of physical and psychological pain. After all, I suffer from lots of actions every day to which I do not consent. The F line shuts down or runs late. A jackhammer makes a racket outside my apartment. People shove and jostle me on a crowded bus or subway. If I were to say that such burdens impose a lot of pain, my complaint wwould likely be dismissed with perfunctory arguments that I assumed the risk when I entered the subway, decided to live in NYC, and so forth: The required “consent” is pretty thin, because we do not regard the burdens as extraordinary assaults on dignity and personhood. But the reason why we properly regard involuntary sexual contact as such an assault is precisely because sex is not such an unimportant manner. The involuntariness is not what causes the insult: The importance of the emotions and actions is (also) essential to make sense of the claim that the injury great,

Posted by: Rick Hills | Jan 16, 2018 3:06:35 PM

I'm not up to posting a comment assessing this episode, let alone addressing what light it sheds on liberal political political theory. But re. "If one believes that human mating is as morally empty as conjugation by paramecia, then it is hard to see why one would require any special indicia of consent for sexual intercourse." I'm not aware of anyone who actually harbors that belief. But even if one did, I'm guessing they could simultaneously acknowledge that intercourse that is unconsented can inflict physical and psychological pain that is worth avoiding, and that they have space to suggest preventive practices taking a form other than "some minimal ritual of courtship."

Posted by: Ed | Jan 16, 2018 2:50:48 PM

Thanks, James, for your comment. I wonder if I would accept your and Rorty’s definition of a “liberal.” (Rorty said that a liberal was just someone who thought that being cruel was the worst thing one could be. (“Contingency, Irony, and Solidarity,” at xv, http://pages.uoregon.edu/koopman/courses_readings/rorty/rorty_CIS_full.pdf ). He says that he borrowed this definition from Judith Shklar, but, I suspect that Shklar was writing aphoristically rather than providing a good sense of common usage).

But putting that quibble aside, I wonder what work “consent” does in your account. I would emphasize that all attributions of “consent” involve three parties, not just two: There are the parties to the transaction that “consent” is supposed to legitimate. Then there is the party brought in to judge the legitimacy of the transaction. Each has some notion of “consent,” and, where there is a “tie” between the parties to the transaction, then the judge’s notions act as the tie-breaker. I meant to suggest in the initial post that the judge’s decision about whether the parties acted justly depends on that judge’s notions of whether the parties acted with sufficient kindness and consideration for each other — and that judgment really is not clarified very much by the language of “consent.”

Suppose that two people have sex — and let’s make them both women, just to sidestep some easy answers that I think are superficially attractive but not really helpful (e.g., “the woman always wins”). Two weeks after the event, one of the women thinks to herself, “I feel dirty and used. I did not really want to have sex that night, yet I was worried that she would break up with me if I said ‘no’.” The other woman thinks to herself, “what a great night of raunchy fun that was two weeks ago!” At the time, there were various words spoken and actions taken, all of which could be construed to indicate consent or not, depending on how attentive one demands each person to be of the other’s present and future desires. The first woman brings some sort of complaint against the second — and let’s say it is not a criminal complaint but just a call for the second to be stigmatized in some way by the rest of society.

So a judge is called in — all of us readers of the blogs and twitter feeds and newspapers. We are asked to break the tie by deciding whether woman #2 ought to be treated as a pariah or, at least scolded and shamed a bit. We will have culturally normative ways of deciding this question. Those ways are culturally contingent on our social position — our moral vocabulary, to use Rorty’s term.

What role does the language of “consent” play in this judgment? I want to suggest that “consent” does less work than meets the eye. We the judges will have various notions about what is “good sex” that have nothing much to do with consent, at least as that word is deployed in other social contexts like contracts and wills. Those notions will involve some judgment about how much people ought to be attuned to the likely desires and needs of others — even desires and needs that those others might not be aware of at the time of some transaction — and how much they are permitted to consult their own desires. (I think Rorty would describe this as a balance between “solidarity” and self-interest).

Put plainly, we expect people to be kind and considerate but not to be saints of self-abnegation. Do we really need the language of “consent” to strike this balance? Or are we acting in bad faith by pretending that one of the parties “consented” or “should have known” what would happen or how she would later feel? I think that all that language is just our effort to pretend that one of the parties actually ratified our notions of good sex when, in fact, all such notions of ratification are just place-holders for the judges’ own beliefs and values about the right balance between kindness and self-regard. We should focus on striking the “right balance,” not on figuring out what the parties really were thinking or what they should have reasonably predicted about what they would think later. Much of this “consent talk” is a distraction from that critical judgment about balance — a distraction that “Liberals” (in the conventional sense) create because the job of striking the balance independently of what the parties were thinking (either at the time of the sexual encounter or later) is a painful responsibility from which we’d like to be absolved as judges.

Posted by: Rick Hills | Jan 16, 2018 1:49:57 PM

Some great stuff here, Rick. However, I don't think you fully understand the more radical liberal critics of consent. You presume that what counts as evidence of consent is data that occurs prior to the act itself. People consent, then they act. Yet many liberals think that the quality of the act itself post hoc influences whether consent was given a priori. In sexual terms: whether she consented turns in part on whether she liked it, with liking to be understood in a subjectively idiosyncratic way. Richard Rorty frequently advocated this view.

So I don't see this brand of liberalism as evading values so much as it is saying that there is no neutral cultural foundation upon which consent rests absent the expectations of the two parties involved. What you characterize as "sidestepping" they see as intimatizing (to coin a word). If one prefers, it is evading values so long as one presumes there are culturally normative ways of understanding "yes" but they would reject this presumption.

Posted by: James | Jan 16, 2018 12:31:30 PM

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