Episode 85 - Sexual Consent

Ellie: 0:21

Hello and welcome to Overthink.

David: 0:24

The podcast where two philosophy professors think through important issues in our daily lives.

Ellie: 0:29

I'm Ellie Anderson.

David: 0:31

I'm David Peña Guzman, we wanna let you know that today's episode will involve discussions of sexual violation, bodily harm, and murder. So this might be one to skip or listen to carefully if you are sensitive to these issues.

Ellie: 0:46

Yeah, in particular, we are gonna talk about some quite rough stuff, so this will definitely be the most intense content-wise of our episodes. And so proceed with care and caution for yourself. Alright, David, let's get into it. SInce the Me Too movement, there has been an increasing attention paid to the complexities of sexual violation and the fact that consent, especially when conceived of as a clear yes or no, is not enough. And when I say I feel like there's been increasing attention, I can also back that up with the fact that there have been multiple books that have come out on this topic recently. Tons of op-eds and in particular, a lot of these publications have focused on cases of what we might call gray rape or otherwise unclear situations that don't necessarily map onto this legal, "oh, that's obviously a rape" versus, "no, that was consensual sex." We've also become aware that people aren't always totally sure what they want and when they want it.

David: 1:46

Yeah, no, you're right about this and this attention to nuance has understandably freaked a lot of people out because, how do we know if we're being ethical sexual partners to one another when we're dealing with these gray areas? What if you think someone wants something, but then it turns out afterward that they didn't ask for it and maybe didn't feel super comfortable proceeding in that direction. And what about cases also where someone is consenting to violence or submission, as in some intense BDSM scenarios, as Catherine Angels suggest in her recent book Tomorrow Sex Will Be Good Again. Often women fear not only violent men, but also having their desire questioned or their lack of desire doubted.

Ellie: 2:35

Yeah, and so this speaks to the fact that it's not just about whether others will respect our boundaries, but also to the fact that we don't always know what our boundaries are, let alone like what our desires and interests are. And in the face of this ambiguity, this fear of nuance that you mentioned, a lot of people have reasserted the importance of sexual consent. But as we'll discuss today, there's a lot of debate about what sexual consent consistent. In fact, I myself have written about this in a couple of places, and I wanna start, however, before we get into some of the details of the complexities of sexual consent with the most black and white case possible. So let's start with the strawman version of consent. And this is an early articulation of sexual consent that received a lot of attention in the 1990s, the Antioch College policy. Antioch College at the urging of students was the first American college to formulate an affirmative consent policy in 1991. And so an affirmative consent policy means like the presence of a clear Yes. And this policy suggested that consent must be verbally obtained before any sexual interaction. Any new sexual activity must be consented to during the encounter. So this policy itself is not like a strawman version of consent, but it itself became parodied a lot and became what people think about when they think about sexual consent in a black and white fashion. And there in particular was this SNL skit called, Is it Date Rape from 1993 that parodied this quite a bit. So I wanna show you a little bit of this skit, David. The audio quality is frankly horrible. So listeners, if we don't end up including the actual audio in the podcast episode, that is why we will make sure in our brief discussion of it to give you the basics. So here we have a fake game show where there are contestants deciding whether something is date rape or not, and to help them out. There are these date rape players. The male contestant is actually wearing an Antioch College sweatshirt and it indeed is the very famous comedian, Chris Farley. And then to help them navigate whether something is the right answer or not, you know, is it date rape, they have these date rape players so-called, who come in and act out a scene and the date rape players are saying things like the following, yes, I would like you to kiss me on the mouth. They kiss. May I elevate the level of sexual intimacy by feeling your buttocks? Yes, you have my permission, and so on and so on. David, what do you think about this parody of affirmative verbal consent?

David: 6:00

Well, I mean, first of all, the fact that it's presented as a game that's modeled after Jeopardy, right? As if it's all a question of giving the right answer to the right question already frames the sexual consent policy as as a joke of itself, right? It's almost as if they're saying that the Antioch policy is its own parody because nothing could be more unreasonable than to expect this level of communication and contractual agreement over every single behavior. What's really fascinating to me is that the characters that are playing the game players, is that how you would call them? Like, the people answering the questions like the contestants. contestants. They themselves are stereotypes of college students. On the one hand, you have this woman who is a major in victimization studies.

Ellie: 6:52

Oh yeah. Yeah. I forgot. Yeah, she's, yeah. She's listed as being a major in victimization studies.

David: 6:57

This kind of like nerdy looking white woman with glasses who is presented as somebody who is just an expert in finding situations in which they are a victim. So already, you know, a stereotype with, which we are familiar with nowadays with the social justice warrior or the woke crowd. But then the male contestant is presented as a jock who is extremely unintelligent and who has already been guilty of a couple of hazing deaths as a joke.

Ellie: 7:30

Oh, they mention that in the beginning, I forgot.

David: 7:32

Yeah. So even though it's like presenting these stereotypes, it already tells you something about the context, ie, college life in which this policy is developed, which is, you know, like a situation where you have frat culture, frat parties that maybe are conducive to.

Ellie: 7:49

Yeah. It's rape culture is what you're saying.

David: 7:51

it's rape culture, but here it's, it's presented as a comedic, for comedic relief.

Ellie: 7:57

Yeah, and I think you draw attention in a very like rigorous reading the SNL skit as a text kind of way. To some of the deeper dynamics at work. But I also just wanna note like the bare facts of the scene as well. So this is a scene in which it's a scene within a scene in this case where the date rate players are acting out, would you like me to touch your buttocks? May I touch your butts, et cetera, et cetera. And this. Seen, I think, does speak to anxieties around the nature of sexual consent because the SNL skit actually is more or less doing what the Antioch College policy says that it should do. And the point of the SNL skit, which stands, you know, a full 20 years later, is that this isn't actually the way that most sexual scenarios happen. The point of the Antioch College policy is that, well, maybe it should be the way that most sexual scenarios happen. Maybe we should have explicit verbal consent for each activity. Right? But I also think there's a case to be made for the fact that like, maybe that's not the goal either, right? If verbal, explicit consent at every moment of an encounter doesn't need to be the only way of thinking about moving sexual ethics forward and away from rape culture, as we'll talk about later. I mean, my own personal position on this is that we need to really attend to the affective and embodied levels of interactions as well, rather than focusing so much on the verbal. But what I'll say here is just that, yeah, this is a parody that is getting at a really big disconnect between college sexual consent policies both then and now, and the way that a lot of sex happens among people.

David: 9:32

And I think what you're calling anxiety here, can also be described as ambiguity in the sense that a lot of sexual experiences have built into them this ambiguity, which is that many of us, you know, want to be quote unquote, objectified in the sense of being the object of somebody else's desire. But we also want to be agents in the context of sexual encounters. And so this, ambiguity between wanting to be objectified and desired, but also wanting to desire and to be agents.

Ellie: 10:04

You're speaking my language. You know, I wrote an article about that moral significance of being an erotic object co-authored with Caleb Ward, 2022.

David: 10:11

Oh, I haven't read that.

Ellie: 10:12

Not actually the one that we're gonna be talking about today. But anyway, yes, I did. I did write about that.

David: 10:15

Okay. And yeah, and so this, I think this ambiguity is incompatible. I mean, respecting that ambiguity is incompatible with this contractualist, linguistic approach to sexual consent. Where, you know, even if we were to give the best possible rendition of the intentions of this policy, which was to move discussions of consent away from the absence of a no to the presence of a yes, there are questions about what you would have to do in order to actually satisfy the policy, because the policy does say that you would have to get verbal consent for every act. So it's not just for the encounter as a whole. But how do you cut up a sexual encounter into acts? You know, here they do say, I'm going to elevate the temperature. Touching a new part of the body is a new sexual act. But that's one way of cutting the pie. There are different ways of interpreting what a new act is.

Ellie: 11:09

If you're stroking a butt back and forth, do you have to get permission for each stroke?

David: 11:13

Is that one act, is that five acts? Yes. Or if you start stroking it faster, is that another act or different than the first one?

Ellie: 11:22

Yeah. Yeah.

David: 11:23

I mean, the, the whole thing about. Sexual activity is that, is this ebb and flow of two bodies that's very difficult to compartmentalize, and where sometimes it's not clear except in retrospect, at which point you have moved from one "level" of intensity or interaction to another one. And it's often after we cross that line that we say, Hmm, actually I'm not sure I'm okay with that. Let's dial it back a little bit.

Ellie: 11:52

And I wanna bring in one other aspect of the disconnect between college policies and the way that a lot of sex actually happens on college campuses, which is the presence of alcohol. A lot of college policies around sexual violation explicitly say that consent cannot be obtained under the influence of alcohol and this is just like completely at odds with the way that a lot of college campuses work, where alcohol is practically a precondition for casual sex. And so I think that's another place where we really wanna think about a sexual ethic that's gonna be more responsive to the realities of sexual interactions in the society we live in, rather than happening in this sort of idealized abstract world.

David: 12:37

No, you're right. And I remember when I was in college, there were all these discussions of what happens when both parties have had something to drink. Does that mean that they've committed mutual rape? Is that a coherent concept even? And again, where do you draw the line between alcohol intoxication versus, you know, having had a drink or maybe two with dinner, but still being in control of your faculties. Today we are talking about sexual consent.

Ellie: 13:10

Consent be the central guiding norm for sexual ethics, or not?

David: 13:15

And are there certain actions to which we cannot consent even if we wanted to.

Ellie: 13:21

What might be alternative ways of thinking about sexual consent beyond the notion of giving permission?

David: 13:31

Ellie, I wanna begin today by telling you a harrowing case that came out of Germany in the early 2000s, and that got a lot of attention when it became international news. This happened in 2001 when two German men in their forties met through an online chat portal. After one of them, a man by the name of Armin Mewies posted an ad. Asking for volunteers who wanted to be murdered and eaten. So this is going to be a story about merger, about cannibalism and about sexual violence. Now, Meiwis posted this ad hoping that somebody would respond. And because the internet is the internet, somebody did. A man by the name of Bernd Brandes responded to Meiwes and told him that it was his sexual fantasy to have sex with somebody and have that person then consume his body in an erotic murderous encounter, to which Brandes said he would consent. Now Brandes then traveled to Meiwes' house, actually to his farmhouse. You know, the scene gets even a little bit more ominous, with a house in the middle of a farm in rural Germany.

Ellie: 14:52

it's giving Black mirror.

David: 14:54

Yeah, something, I mean even darker than Black Mirror. I mean, we're talking here about like colorless mirror, I don't know. And he went to this farmhouse where they indeed had sex and then Meiwes proceeded to give copious amounts of alcohol to Brandes in anticipation of the more painful acts that were to follow to which Brandes had consented. So Brandis gets drunk, continues to affirm the same consent that he had given online and then proceeds to have, I'm sorry, this is going to be very graphic. He proceeds to have Meiwes cut his penis off with a knife of sorts, and then try to consume it raw. Now Meiwes didn't realize that eating penis flesh, I suppose, is very difficult when that flesh is uncooked, and so he then proceeded to cook the penis on a pan in order to soften the flesh so as to better ingest it. While this is happening, Brandes is now in the tub, bleeding to death, at which point Meiwes murders him cuts up his body, puts his body remains in the freezer, and then proceeds to consume them over the next few months, police get a tip off from God knows whom about this event happening in this farmhouse. They go to the house and, uh, lo and behold, they find in Meiwes' freezers the remains of Brandi's body to make things even more scary and more unsettling. The whole thing was filmed. By Meiwes, not just for the eroticism of filming this act, but also to capture in video Brandes' consent to the whole thing. As you can imagine, when this became news, uh, it drew a lot of attention from German and international media because you had a case of an homosexual erotic murderous act in a farmhouse that just blends a lot of really disturbing things together into one particular encounter. What are your thoughts about this?

Ellie: 17:19

Well, as you know, I know this story already because we just, we agreed to read a chapter of a book that discusses it together. But I have to say, hearing it, for not the first time, it's still, it still makes my stomach turn for sure. So it's like very horrifying. The book in question that we are going to be talking about now that describes this case is Joseph J Fischel's book Screw Consent, which came out a few years ago, and the basic idea there is that we can't say that consent is the be all, end all of sexual ethics because this is a case of consent. It's clear, affirmative, enthusiastic, and ongoing consent. Fischel points out that by the time that Meiwes was really drunk, it's unclear whether consent still obtains or not, but obviously he had received consent before. Nope, sorry. It was Brandes' penis, not Meiwes' I misspoke a moment ago. And so, I mean, one thing that you could say about this, which Fischel notes is

sometimes a defense is the following: 18:21

this actually wasn't a case of sexual consent. It was a case of consent to murder. Consent to murder is not something that one can consent to. And so the problem with this case is not that it was sexual, it's that it was something else but official says that this is a limited way of understanding this case. For one, it was sexual for the people involved.

David: 18:42

I mean, it was primarily sexual, we should say.

Ellie: 18:45

Yeah. Yeah. And although this is like a, the most extreme possible form of BDSM that you can imagine official notes that oftentimes BDSM cases that result in violence are tried in courts as cases of violent assault rather than sexual assault specifically. And he thinks that's a problem because BDSM practitioners are doing this, you know, out of a sexual desire. And so BDSM practitioners often emphasize the importance of consent. But Fisher's point is that consent is definitely not enough, and he's coming from a queer theory perspective. So it's not a conservative moral claim that BDSM is in principle wrong because it's like against nature or against God or something of that sort. But it is a case that there are contradictions in the narratives that we tell ourselves about consent, especially when it comes to cases where consent involves violence.

David: 19:37

Well, and the interesting thing in connection to this case is that when it went to court, the first court decision about my visa's fate was that he was guilty not of murder, but of manslaughter. And the court ruled that the difference was precisely Brandes' consent, so you can't murder the consenting. So this was the official ruling initially. Then that decision was appealed and a higher court reversed the original ruling. Arguing that consent to murder is a contradiction in terms and consenting to being eaten, cannot be a justifying defense for the act of murdering and eating somebody, but even internal to the law, this was a really tricky issue with different judges landing on on different places because it does bring us to this limit of consent because presumably many of us would say that there are some things that people should not be allowed to legally and morally consent to, even if they want to do so in full control of their mental and emotional capacities, right? So this is not a case of somebody not being "in their right mind."

Ellie: 20:50

And so someone might respond though that the problem here is not with the concept of consent. It's about the breadth of consent. And so maybe we need to more narrowly define consent or place certain caveats on it. Like you can consent to somebody doing anything to your body unless it involves death or unless it involves lasting physical damage of a major sort, et cetera, et cetera. I think this would maybe be a way of excusing many intense forms of BDSM, while also saying that the case that we're discussing is wrong.

David: 21:27

Yeah, you're right. And in fact, this is what the law currently does. There have been many cases that make their way to court. And the question that the court has to decide is not whether or not consent was given, although that also is the case in situations where there is some ambiguity about that. But whether the consent given authorizes the sexual act in question or whether it gets invalidated because it violates some further stipulations that then get baked into the definition of consent. And typically the two caveats that are used to reign in consent and put some limits on it are dignity and serious bodily injury. So let me just begin with dignity. One could say that I can consent to whatever I want as long as the thing that I'm consenting to does not in some way violate my fundamental, humanness my dignity as a human person that has some interest in preserving my own integrity. The problem with the dignity condition is that depending on your moral interpretation of what dignity means, it can end up ruling out as Unconsentable. Things that maybe we should be okay with, but that arguably could violate dignity. So for example, if you think about certain sexual acts like piss play, like basic humiliation, you could say that that's something that violates dignity and that therefore should be forbidden. But presumably we don't want to ban those forms of, of sexual play. In fact, Fischel points out that there has been at least one scholar who has argued that serodiscordant sex, which is sex between partners that don't have the same HIV status. Is fundamentally undignified because it violates the dignity of the human in some way. And so you can see how this notion of dignity can get a little slippery and start being used to police sex on moralistic grounds.

Ellie: 23:39

And this is a sense in which our legal system has origins in Kantian philosophy and the view of Immanuel Kant about the dignity and humanity of persons and Fischel's point seems to be that this concept of dignity gets really slippery when it's applied to particular cases, and it can really be the subject of disagreement. And one might also suggest that in the case of sex, the object of dignity is really vague because it's linked to humanity, but what we're doing when we're having sex is like having sex as individuals where it's a lot more complicated. And I'm not totally sure I agree with Fischel on that. But anyway, that seems to be like a major point of his is that just like this doesn't actually work that well in particular cases. So the idea of dignity is kind of a dead end for him.

David: 24:28

Yeah, no, and that's why he calls it an empty signifier, and he spends relatively little time discussing it. He actually spends a lot more time discussing the other caveat, which I agree is more interesting, that is sometimes placed on consent as a way of keeping out these very extreme cases, like the case of cannibalism, and that's the condition of serious bodily injury. You can consent to anything you want as long as it doesn't produce serious bodily injury. Fischel also has a problem with this clarification of the concept of consent, and his argument here is rooted on a concept that he introduces in his discussion of this topic, which is corporonormativity. According to him, when we think about serious bodily injury as the limit of consent, we're giving too much weight to things that are rooted in the body, like physical injury, literally to my limbs, to my skin, to my bones. That maybe in the grand scheme of things are not that big of a deal in the context of some of these sexual acts, especially in BDSM settings, and because we focus so much on the body and bodily injury, we start overlooking things that are a bigger deal that we should focus on. To give us another example, a very extreme situation of sexual enslavement that happened in Nebraska where again, one man agreed to be the sexual slave of another man, and he traveled to Nebraska to be imprisoned in this man's basement, in the basement of his floral shop. So this guy was like a florist by day.

Ellie: 26:10

A little shop of horrors, am I right?

David: 26:12

I know! Like flowers upstairs and gimps in leather below. And so this man traveled, became this man's slave. After giving very explicit consent, including consent to be re enslaved if he ever tried to escape.

Ellie: 26:29

Whoa. Oh, whoa.

David: 26:32

Yes. It really like psychologically hard to wrap your head around once he was. Imprisoned in a cage in the basement. He decided that he was no longer into it. Tried to escape and did escape with the help of another gimp who came to the conclusion that he should help this other person, and then sued the guy who enslaved him, who by this time had also inflicted very serious bodily injury on him, including branding him. And so according to FIschel, what we should be focusing on in this case is not really the branding because that's not the most troublesome element. What we should be focusing on is the psychological damage that indefinite captivity can have on a human being. And unfortunately, when we are corporonormative and we focus exclusively on serious bodily harm, we don't notice that. At all. And so his concern with that way of rendering consent is that it just gives too much weight to the body while ignoring the psychological, the effective, the social dimensions of sexuality.

Ellie: 27:42

This is where official goes on to say that the limitations of consent mean that we really need to move towards a broader way of understanding our flourishing in the world. I do think that a lot of the problems still remain with consent discourse, however, that just moving to flourishing isn't necessarily gonna solve. And so we'll get into that in a moment. But just, you know, as one example here. Fischel mentions the notion of deep consent in BDSM circles where there are sometimes contradictions between somebody's statement of consent or non-consent. Somebody says, no, I don't want it. But it's understood within the BDSM scene that they actually do want it. And so deep consent is contradicting the consent on the level of the scene, which as Fischel points out, is extremely dangerous because it's often the one in position of power, the dominant person who is deciding whether deep consent is present on the part of the submissive, which goes against pretty much everything the Antioch College policy stands for, but also that I think we tend to assume about sexual ethics, which is listen to people when they tell you to stop doing things. We've raised some issues with the concept of consent, and we're gonna come back to some further critiques of it later. But I also wanna consider why consent has been emphasized by so many to begin with. Why has it become so prominent in sexual ethics. Even if we think it's misguided, obviously it had very important motivating reasons, and the primary reason for this is the fight for gender equality. Historically speaking, sexual consent became important once women were considered to have sexual autonomy. Prior to the 1970s, for instance, marital rape was legal in every US state, and this was a hangover from women being seen as the property of their husbands.

David: 29:52

Well and rape outside of marriage. Um, say the rape of young bourgeois women was, for much of recent history, seen primarily as a problem only because it turned them into spoiled goods. ie, the goods of men. So it's a property damage issue. In fact, it's as if men's future property, 'it's future potential wives were being damaged. But this is still the case, I think today in some parts of the world.

Ellie: 30:17

Absolutely. And so legal protections are crucial in permitting women to enact sexual autonomy and consent, which was already an established norm in liberalism outside of sexual context got applied to sex. As you know, I have some issues with the way that this has worked out, but I do think it's worthwhile to explain how and why the understanding of sexual consent has been so important in philosophy and law.

David: 30:40

We usually do think of consent following this Antioch policy discussion as a form of giving permission as green light for certain behaviors. By extension, we think of sexual consent. Legally speaking as giving permission in an intimate sexual context that involves necessarily at least one other person. We typically don't think about consent for self-directed sexual acts, right? Um, it is always sexual permission to another being.

Ellie: 31:11

That's exactly right, but then the question becomes giving permission for what and how is that permission conveyed? A very influential view on this is that of the legal scholar Heidi Hurd. Hurd suggests that consent performs what she calls a moral magic by transforming an act that would be permissible into one that's permitted. So say someone just walks into my house after I've prepared a meal, in that case they have trespassed. Like, what are you doing here? Why are you here?

David: 31:41

Why do you want those salads? I know you eat a lot of salads.

Ellie: 31:44

I do eat a lot of salads. It's true. Um, but if I consent to their coming into my house, then we have a dinner party. It's like, welcome, you're here. I have made the salad for you and Hurd argues that the same is true of sex. It turns what would be a bodily trespass or a rape into intercourse, a welcomed dinner party. And Joan McGregor, who shares the view that consent is transformative, actually says this explicitly. McGregor says, consent transforms rape into intercourse.

David: 32:17

Yeah, and Fischel makes a similar claim. He says that it is through consent that we sublate or, you know, magically transform,

Ellie: 32:25

OK, Hegel.

David: 32:26

Yeah, it is a kind of transformation in that regard. Straight up violence into either BDSM or kink.

Ellie: 32:35

Yes, so we've got this view mainstream within philosophy and law that consent is a form of giving permission. The question then becomes, well, what exactly constitutes giving permission? For Hurd, consent is a subjective mental state or an act of will. Say you have to desire having sex with someone in order for it to be consensual, and you have to license that desire in a sense. You have to sign off on it by willing it.

David: 33:03

Yeah, but if consent is a subjective mental state tied to an act of willing, Then how do we decide whether it was present or not? In those cases where there is a disagreement, right? Where there is a conflict between the two parties, what if you thought that an encounter was going well, but then afterwards the person that you had sex with said that they didn't consent and maybe even appealed to their subjective mental state at the time? You know, how do you read somebody else's mind?

Ellie: 33:34

This is the tricky part. And in fact, there was an op-ed that Bari Weiss wrote after Aziz Ansari's case came out. Do you remember this? It wasn't a legal case, but a woman who went on a date with Aziz Ansari wrote an article about how the situation in which she found herself was really messed up because he kind of kept forcing himself on her. And it wasn't a case of straight up rape, but it was one of these like gray cases of sexual violation. And Weiss says that all I'm sorry was guilty of was not being a mind reader. And I found it, like such a bizarre and problematic claim for reasons we'll come back to later. But ideally, you know, the core of what you're saying is true, which is that someone does communicate their subjective mental state. But what you're pointing out, is that there are tough cases when that doesn't happen, and so it seems kind of strange to define consent as a subjective mental state the way that Heidi Hurd does.

David: 34:26

Yeah, and I remember the Aziz Ansari case was so polarizing because people were applying that straight up, yes or no rape standard to a case that was a case of gray rape where she felt like he was insisting too much, if I remember the details correctly, and eventually did something that she wasn't feeling particularly good about, whereas, the problem from the perspective of people like Bari Weiss was that she didn't openly say, no, I don't want this. And so as soon as the absence of language was noted, it's almost seen as if there is no grounds on which she can make a complaint about the way in which that experience felt for her.

Ellie: 35:08

Yeah, actually I wanna say that the woman maybe did say no once or twice. I need to revisit the case, but certainly there were more. Physical cues that she was giving than anything else. She was physically moving away from him repeatedly and she was like, why is this guy not picking up on the fact that I'm literally moving away from him? And you know, that seems like a case where that's, you don't have to be a mind reader to know that somebody moving away from you probably means that they don't want this to happen. Right. Unless there has been like an explicit engagement and discussion of this before.

David: 35:35

I, I'm not a mind reader. How should I know that? Evading me at every move means that they're not interested.

Ellie: 35:43

Right. But yeah, so I mean the, the core of this, the problem with the attitudinal approach to sexual consent, which is Hurd's view, that consent is a subjective mental state, is that it arguably opens it up to cases where a clear no was not present by saying like, well, the person didn't consent in their minds. Right? And so this seems to present some issues.

David: 36:03

Yeah, that can be tricky.

Ellie: 36:04

Yeah, and like I said, I mean Hurd as a legal scholar, thinks that the subjective mental state should be communicated. But yeah, it is not necessarily always communicated according to critics of this attitudinal approach. So this has led to an alternative view that's also been quite popular among philosophers in legal theorists, which is the performative view. If you've listened to our episode on Performativity, you will know that performative acts are speech acts that change states of affairs in the world. They're not like pretending to do something. Performative acts actually are doing something. Performativity has to do with communication, not just as an expression of an internal mental state, but actually as a transformation of the external circumstances.

David: 36:44

Yes, as opposed to Ellie's pet peeve of the popular use of performative today as a synonym for fake or artificial as in like performative allyship.

Ellie: 36:55

Bad term guys.

David: 36:56

Yeah. So Ellie, tell me, how does this idea of the Performative Act come into theories of sexual consent?

Ellie: 37:05

Okay, so the idea is as follows, for those who think consent is performative, sexual consent is a behavior or an act. That is communicated to one or more other persons, in this case, to one sexual partner or partners. And the philosopher Alan Wertheimer gives an example here that he thinks shows the importance of consent as a performative act. Imagine the following scenario. I leave my car on the street and I hope that it will be stolen so I can collect the insurance money. This example hits a little close to home'cause I have a very old and creaky car.

David: 37:39

Yes. You have a horrible car. I was just thinking that.

Ellie: 37:42

Probably not worth a lot in insurance money, but anyway, so I like leave my car on the street and I hope that it will be stolen. Now someone's walking down the street and sees my car and steals it. Heimer points out that the person who stole my car is still morally and legally culpable because they didn't know that I consented to its being stolen. And so if you take the attitudinal view that consent is just a subjective mental state, then you'd have to say that the person who stole my car is not morally culpable because I consented to it being stolen. And so too, in the sexual case, right, if somebody has sex with somebody else but doesn't obtain, you know, consent through a behavior act or like verbal statement, then they are guilty of sexual violation, even if like secretly the person willed it.

David: 38:31

Yeah. Okay. I, I get the idea here, but this is also just such a weird example using like a lady in her car as a metaphor for, for rape. I don't love it.

Ellie: 38:44

In general, no, I am like presenting this example because I wanna give a, you know, a fair hearing to these perspectives in analytic moral philosophy. I find this, and most of the examples that these philosophers use, like, absolutely horrible. They're so bizarre because what, what bugs me about this example in particular is that Wertheimer is making an analogy between somebody's body and their car as though our body is just like a possession of our mind. And this is actually one of my big gripes with this whole debate around consent from a legal perspective, is that it's rooted in property law and there's a very weird way to think about sex. However, I'm kind of getting ahead of myself because we're gonna come back to my own alternative theory as well as some critiques of this debate. For the moment, let's think a bit more about the performative view of consent and we'll just like go with fair timer's perspective, his example.

David: 39:34

Agreed, but so this side of the debate between these two theories seems to be somewhat in line with the popular discourse that we have going around today about Yes Means Yes, and what some people call enthusiastic consent. The idea popularized on college campuses across America is that one has to communicate their desire in order for consent to be present, you have to enthusiastically say yes to it.

Ellie: 40:02

Exactly. And you know, to be fair, this is compatible with the view that consent is a subjective mental state, but it's not always foregrounded in it. But certainly the performative view is really trying to push that idea, and this seems great, right? Of course, communicating desires and intentions is crucial for sex to be ethical.

David: 40:23

Sure, but this is where we get into very tricky territory as well, because this can easily become a matter of needing to expressly verbalize consent at every moment of a sexual encounter. You know, I'm having flashbacks here to the SNL skit about the Antioch policy.

Ellie: 40:40

Exactly, and the fact is that a lot of sexual encounters happen without a lot of explicit yeses. I mean, in long-term relationships, for instance, I think it's very common for people to like know and trust each other's bodily cues enough to like go with a certain momentum that's been established for a long period of time without saying like, would you like me to touch your buttocks at this point?

David: 41:07

Um, well, yeah, and I, I actually would expand that to not long-term relationships as well. I think there are a lot of hookups. There are a lot of one-time no strings attached sort of encounters where you go with a certain kind of flow and you see the momentum or the energy shifting towards, you know, increasingly sexualized interactions, and you get a sense that this person is into you and you are into them. Even if at no point do you stop to have that moment of contractually agreeing in language that yes, we are both hereby initiating a sexual activity in. In some cases, that kind of requirement when it's taken in its most literal configuration, would almost seem to break the flow of something that otherwise both parties are okay with.

Ellie: 42:01

Yeah, and I think this whole debate between the attitudinal and the performative views is organized around the idea that consent is either something one has or one does. This is a big difference, right? In the case of the subjective mental state, consent is something one has, whereas in the performative view, consent is something one does. But underlying both of these positions is a real problem for me, and thanks in part to my co-author for the Erotic Object article. Caleb Ward, for pointing this out. Caleb wrote a really amazing dissertation, critiquing views of consent and points out that what's underlying both of these is the idea that consent is giving permission, and this is a view that has quite a lot of problems. It's also something that like Linda Martin Alcoff and Ann Cahill, other contemporary philosophers have pointed out as well. You ready to get into why?

David: 42:52

Yes, I am.

Segment: 43:00

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David: 43:20

Ellie, so far, we have seen that the mainstream positions on consent see it as a form of permission giving and simply disagree about whether consent is inherently an internal mental state that one has, or a performative locution that one does. And for the past couple of decades, feminist and queer theorists have articulated what is wrong with this emphasis on permission. And Ellie, in fact, you wrote about this a couple of years ago in the APAs Women in Philosophy blog, you know about the limits of consent.

Ellie: 43:51

Yes.

David: 43:52

And so one concern is that permission is often conceptualized as a punctuated moment in time as if you sign a contract and then as a result of that decision, you get, "locked" into the consequences of your own consent. You know, you can't take it back. It's already there.

Ellie: 44:13

well, like in the case of the enslaved person in Nebraska,

David: 44:16

Yes. Yeah. Who got quite literally locked into the consequences of his decisions.

Ellie: 44:22

For real.

David: 44:24

I know, I know. It's kind of weird to make jokes about something that makes me uncomfortable

Ellie: 44:27

Yeah. Sorry, I didn't wanna laugh that hard.

David: 44:28

I know. I feel just like, but anyways, the point here is that this focus on the moment of consent overlooks the fact that sex is by nature a temporally unfolding event. And the fact that our desires actually can morph sometimes slowly in ways that we don't really become aware of until after the fact over the course of a sexual interaction. And so we don't want to reduce consent to just. Yay or nay at one particular moment.

Ellie: 44:59

Yeah, it's like, do the people who have presented consent as a clear yes or no, realize that we are temporal creatures? I sometimes, I'm not sure. Another critique.'cause I think I mentioned like seven critiques of consent in that blog post or something of that sort. But one of the other critiques that I think is really important, 'cause we're not gonna list them all here in the podcast, is that even though consent is presented as neutral, it's almost always assumed to be something that women give and men receive. And so it ends up reinforcing the idea that men ask for sex and women respond. You see this in the Antioch SNL skit as well, where it was like the guy who was asking the woman if he could touch her buttocks. Carol Pateman and Linda Martin Alcoff are two thinkers who really compellingly point this out. Within heterosexual context, sex is figured as something that men are gunning for, and then women have to decide like, oh, would I like this or not?

David: 45:51

Yeah, and because we think of consent as something that happens in a jiffy and that women give and men receive, I think it becomes actually part of the problem in sexual ethics because when we think about consent in that way, almost as an object that transfers hands from women to men, like, here is this thing that I give you, it prevents us from putting in the hard work of cultivating nuanced attention to the desires of our sexual partners when we are having sex with them. If as, let's say, a man, because we just talked about the gendering of this distinction, if as a man all you are gunning for is the yes of your partner. Then chances are that you're going to not pay attention to, for example, their bodily movements, their gestures, their overall way of interacting with you.

Ellie: 46:46

Whether they're enjoying themselves.

David: 46:48

Yeah. Right. Like there are other ways in which people communicate, and if all you're looking for are those three letters, you're gonna miss pretty much the totality of the erotic encounter.

Ellie: 47:01

Yeah, and you know, this also relates to the complexity of not only interpreting another's behavior, but understanding that another's behavior might not. Just be like a straightforward expression of their inner desires, either, right? We often are ignorant of our own desires, and so suggesting that we can know what we want the moment we are asked, or that another person can pick up on that immediately overlooks forms of behavior that have been ingrained to us from a young age, including gender norms, the effects of past experiences, and the relative power of different social locations.

David: 47:39

And I think that's why this contractual way of thinking about consent is so dangerous, uh, because once you feel like you're locked into the consequences. Of course, you're gonna be less likely to want to experiment with people because instead of creating a space where you feel safe exploring new things, new experiences, new behaviors, and feeling comfortable enough that you can walk it back, the moment that you feel that this is no longer right for you, you're put in a situation where you feel as if your consent is actually taken away from you by virtue of that original. Yes, that you gave to God knows what, you know, it's just like a blanket like carte blanche for whatever the other person might want.

Ellie: 48:22

yeah. Consent does license a lot of bad sex. And so then the question and and bad in damaging ways often, um, as many scholars have recently pointed out, not just in like, oh, that wasn't that fun. And so then the question becomes what to do about the fact that consent is so problematic. And before we get to the position that I've proposed in a recent publication, wanna mention two main views. One is the idea of rejecting the norm of consent as a guiding norm for sexual ethics altogether. There's a great paper by Jonathan Jenkins Ichikawa on this point where he suggests that the idea of permission giving is so deeply baked into the way that we talk about consent, that there's kind of no hope for it. Let's move past it. The other option is to maintain a role for consent, but to dethrone it and give it, you know, a role among other sexual norms. But to say it's not the be all, end all, and this is what Linda Martine Alcoff does in her really great 2017 book rape and Resistance is to say that consent is one of four, if not more. She kind of leaves it a little bit open norms for having sex, and then we get to my view, which is. Let's not reject consent. Let's not dethrone it. Let's actually redefine it. Let's move it away from the discourse of permission giving. So David, I assigned you my article, A Phenomenological Approach to Sexual Consent. We are approaching kind of the end of our episode, but we have some time to talk about it. So what's my view? What'd you think?

David: 49:57

I have to explain your view.

Ellie: 49:59

It's more interesting than me explaining it.

David: 50:01

Uh, so here we go. In a couple of minutes or less. Ellie argues that neither the attitudinal nor the performative view are good ways of thinking about consent because they actually misunderstand the nature of the sexual act and to understand the sexual act. This is like me going into professorial mode about something that I didn't even write by the way.

Ellie: 50:21

Love it! Here for it.

David: 50:23

And in order for us to really give a fair account of the sexual encounter, we should lean on the tradition of phenomenology because the sexual act as it is understood by phenomenologists, is something that happens between two individuals that recognize each other as individuals.

Ellie: 50:43

Or more, but usually two.

David: 50:44

Yeah, two or more. And as individuals who in their interaction can already have important information about each other's consciousness, quite literally from the behavior that's happening. So it's not as if the other person is just like this question mark, like, oh, what do they want? You know, like, I'm not a mind reader. I can't figure it out. In fact, there's a lot happening that we just need to attune ourselves to and respect if we want to be good sexual partners.

Ellie: 51:15

Yeah, and I mean this comes from the just basic like obvious insight that we are bodies and if we actually move away from mind-body dualism, we're no longer thinking about sex as giving permission for somebody to use your body in a certain way. But we're thinking about it more as like an interaction, right? It's actually happening in the embodied social sphere, rather than happening in minds that then, you know, come down to earth and share their ideas. But it's also different from the performative

David: 51:46

Their ideas! Oh yeah.

Ellie: 51:47

or share, share their desires,

David: 51:49

Share their bodies.

Ellie: 51:50

Anyway. But yeah, go. Go ahead David. Sorry I cut you off.

David: 51:52

Yeah. No, no, no. That's fine. I mean, it's, it's your article. You can take the reins here, but the article goes on to talk about, once you think about it in this way, you move away from consent again as this punctuated moment in time. And you come to think of consent as an affirmation of an interaction that is unfolding in time. I don't know to what extent you, I should just ask you directly to what extent you think that that interaction is just like a continuous affirmation, like a constant affirming through the act of continuing in the act, if that's your understanding of consent, and if then we ought to think about the removal of consent. As moments when one party in the interaction starts either hitting the brakes or showing signs of discomfort or resistance, even if those are never verbalized, and even if the reasons for the resistance are not a clear mental state in the mind of the person who is hitting the brakes, so maybe they're even hitting the brakes unconsciously, right? Like, ugh, I don't, this doesn't feel right.

Ellie: 53:02

Totally. I think I agree with you on that second point with respect to the question that you raised at first, like my basic idea is that rather than giving permission, consent is an agreement of feelings. And I'm drawing on the etymology Overthink listeners know I love an etymology, um, drawing on the etymology of consent from Latin where. Consentire. That's the origin of con of the word consent means feeling with. And so I think we've really moved into this weird space where we're thinking about consent as a contractual agreement rather than as an agreement of feelings. And so focusing on the affect of an embodied dimensions of it using phenomenology, help us reconceptualize consent. And part of that reconceptualization is precisely of consent as a desire for the other person. A desire that the other person desire you both in an erotic sense, and third, a desire for the continuation and unfolding of that experience. So yeah, definitely I do see the desire for continuation to be baked into that notion of consent.

David: 54:06

Yeah. And I like that in thinking about consent etymologically as concenter, like feeling with other people, having sentiments with another person. Your argument is not that we literally feel the same thing, like we're having the same feelings at the same time. So it's not a mirroring relationship at the level of feelings. It's rather that I'm feeling it.

Ellie: 54:26

Mm-hmm. Mm-hmm.

David: 54:27

we are feeling this, you know, like you can't see me, uh, overthink listeners, but I'm like rolling my head as I'm saying, like,

Ellie: 54:34

You're, yeah, you're doing a little circular motion.

David: 54:37

like a a, a head wob of sorts. Like, I'm feeling this and I do think that this is more faithful actually to, to lift experience of sexuality and eroticism, where often what we want and what we need is a partner who feels us, but who also has a feeling for whether or not we are feeling it.

Ellie: 55:00

Definitely, definitely. And I do wanna hold open space for the fact that that agreement of feelings, which as you said is not, doesn't mean you have the same feelings as the other person can happen in casual encounters. So there is a sort of moralizing interpretation of my view, which might be that I'm sanctioning only loving sex between partners who have been in long-term relationships with one another, and that's not my claim. I actually think like you could totally have a casual hookup where somebody is not that well known to you and whose expressions of interest and desire seem kind of foreign to you. But I do think that. If you have grown up with some attention and learned and actively cultivated attention to other people, there is gonna be like more or less a basic sense of Yeah, is that? Thing there or not, right? Like you said, are we feeling it? And so I think you can feel different specific things, but you can also sense like whether the person is kind of baseline into it or not. And one of the things I found useful in developing this argument is some empirical research that suggests that actually the cases where people don't know whether somebody wants it or not are way rarer than we think, and so the worries that people have about like, well, what if she seems to be consenting, but secretly she's not? There might be a problem in some cases, but it's not a rampant issue. A lot of times people are using that as a bad faith shield for sexual assault.

David: 56:30

That that's correct. That it is a bad faith argument. And the problem is that that image of the like woman who does not know what she wants but is giving signals to a boy that is otherwise well-intentioned and just wants to get laid, becomes the model of the sexual act around which we develop laws, university policies, and even sexual ethics. And so what I like about this notion of, of feeling with is that I agree with you. It doesn't have to be something that happens only in this kind of like romantic, uh, long-term relationship between two people who know each other.

Ellie: 57:04

Which can be nice too.

David: 57:06

Uh, sure. Yeah, I agree. As somebody in a long-term relationship, I hope that that's still, you know, like I believe that that's a thing.

Ellie: 57:13

You're straight up married. so...

David: 57:16

but as also somebody who had. It has casual sex. It is something that I do think is possible. It's just about filtering out like people who don't have a commitment to that shared feeling with another person. And sometimes you can get a sense of who those people are, but not always, right? So sometimes you do end up having bad sex because somebody is just not willing to go into that feeling space with you.

Ellie: 57:45

You know, I could continue talking about this like all day, David, but I am aware of the fact that we have already extended our recording time past what we ordinarily would, but I will say, I don't think I have it all figured out, but I do think that this phenomenological approach to sexual consent that's rooted in feelings and bodies is a really necessary alternative to the accounts of permission giving, and that it means that we can still hold onto a notion of consent as a guiding norm of sexual ethics without thinking that it's analogous to somebody stealing my car.

David: 58:18

For what it's worth, I gave your article an enthusiastic Yes, Ellie.

Segment: 58:25

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