This is a re-post of my article published on Cultural Analysis Net.
Explicitly articulated ’microconsent’ (my term, signifies continuous monitoring and incremental or progressive affirmation of consent in an evolving situation) is widely promoted as a necessary condition of permissible conduct in sexual relations (Consent is Everything, The University of Sydney). Here I argue that the relevant criterion of consent is too restrictive for normal interaction between private persons and may be better suited for commercial, medical and political relations.
With mandatory sexual consent classes at Oxford University and an information campaign about consent by a leading condom brand, one would like to think that the mainstream discussion about the normative significance of consent would gain rational grounding and analytical depth, not just publicity, but this is sadly not the case. On the contrary, some supposedly progressive claims about consent gave rise to confusion about the general sense of ’intention’ and about the limits culpability. If ’A slurred Yeesh doesn't mean Yes’ then perhaps my drunk-driving does not mean I am really driving... Another way, if a drunk woman is not responsible for her actions then a drunk man is also not responsible for his actions, assuming gender equality.
Despite all the talk about consent in sexual relations, little is being said about ethics of consent in other areas, like medical care, national security, representative democracy and consumer-provider relationships. A double standard seems to exist about how we ought to be limited by the requirement of consent in private, especially sexual relations, and how the requirement of consent can protect a person from unwanted or unreasonable treatment by the government or other corporate entities. It is curious that despite many citizens regarding the way they are treated by the government and corporations as a brutal form of sex, metaphorically speaking, the rhetoric of affirmative microconsent has not gained tranction in that domain.
There are various ways of signalling consent in social relations. Representative democracy, for example, operates according to the principle of generalised consent. In other words, we consent (more or less freely, because a degree of coercion, manipulation and deception in politics certainly exists) to the rules of the game, but not to what specific moves in the political game are to be made on our behalf. Voting is also not the only means of expressing political consent, which can be signalled by acting in a way that suggests consent or capitalises on the benefits normally associated with having consented. Subject to the limitation of reasonable conduct and public interest, generalised consent is incompatible with cherry-picking about consent: it presupposes consistency of value-commitments from the consenting agent over time.
While body-autonomy is typically singled out as the core value that gives sexual consent the normative priority, the same value is normatively depreciated in other areas. An especially curious legal artefact is the implied consent. When you enter a hospital as a patient you supposedly consent to whatever treatment doctors believe are immediately necessary, even if they would have to restrain you to complete the treatment. The same implication applies to security screenings at airports: once you begin the screening it is implied that you have consented to be Fully screened. From that point on you cannot back out, cannot change your mind. If you are hit by a car and remain unconscious you may be subjected to medical intervention without even implying consent. A non-consensual medical intervention that would normally be subject to the consent requirement goes by the name of hypothetical consent. David Enoch (Ethics 128 (2017): 6–36), has recently argued that hypothetical consent is not consent at all, but that certain non-consensual actions may constitute a reasonable intervention nonetheless. This complicates the oft cited premise that consent is everything. It appears that there are cases of implied consent or nonconsensual (hypothetical) intervention that are regarded as reasonable and socially valuable.
Explicit, verbally articulated consent in every situation and at every step of the situation is practically impossible. It is a mystery how a continuously changing situation should be divided into finite steps without creating another ground for controversy about consent. Should one ask for affirmation of consent on every stroke or at ’every stage’ of every stroke? Furthermore, verbal consent is never perfectly explicit as it is subject to more or less subjective, contextual interpretation that cannot be separated from non-verbal performative and attitudinal signalling (Kazan, P., 1998, “Sexual Assault and the Problem of Consent”, in Violence Against Women: Philosophical Perspectives, S. French, W. Teays and L. Purdy (eds.), Ithaca NY: Cornell University Press, pp. 27–42.). For example, voluntarily proactive or reciprocal participation in a situation that demands bilateral consent has the capacity not only to signal consent but to override a verbal expression of nonconsent, because how we act in the world has greater evidential value than what we have to say about ’how we act the world’ or, as the saying goes, actions speak louder than words. A further doubt about the incremental-affirmative standard of consent is that repetition could lead to habitual consenting that goes against how one actually feels, that is, in false-positive affirmations of consent.
Curiously, nobody who moralises about consent in the academia seems to be asking women in the street about the standard of consent they prefer in their sexual relations. It is doubtful whether anyone in a mutually satisfying relationship would welcome let alone consent to any new legal obligations or procedural liability in their intimate lives, let alone anything that could potentially criminalise their current practices, interfere with intimacy or create sexual anxiety. On this count the continuous-affirmative standard of consent is absurdly demanding and legally risky for stable intimate partnerships. Given enough time, chance and natural spontaneity would have it that even the most diligent proponent of the new doctrine, male or female, could be found guilty of sexual assault against his or her partner. Who in their right mind would consent to that?
It makes more practical sense (be consent-worthy) to define the standard of consent in private relations not as an obligation to obtain a series of explicit verbal affirmations of consent but to reasonably ensure that, at any stage of interaction that normally requires consent, every involved party has the capacity and an opportunity to explicitly communicate nonconsent, even if acting reciprocally up to that moment: to freely say NO and stop reciprocal participation without harm or a reasonable cause for fear. This would better reflect the reality of sexual desire - that sex is valued by women as much as men and is not just a facility that men desire but do not own while women own but do not desire. The natural fact of female sexual desire is often depreciated or ignored in theorising (especially in feminist theory) about consent but may be an important causative factor in sexual behaviour.
No matter what practical requirements of proper conduct are in force, misunderstandings about consent can happen. While this alone does not entail wrongdoing, the very existence of such a risk ought to motivate any would-be partners to sustain a facility for minimising the negative consequences of misunderstandings about consent. Having the capacity to stop and say NO without harm or fear seems a more reliable formulation of nonconsent than a mere failure to repeateadly say YES or to stop habitually saying YES when one suddenly feels like saying NO. Problems could still of course arise if NO were ever intended to mean YES, but consequences of such a misunderstanding would be benign and easily corrected: amounting to unwanted and presumably temporary abstinence instead of unwanted sex.
Finally, and perhaps most importantly, a continuous focus on consent and the need for its frequent, incremental or progressive verification in private relations may be incapacitating to normal human interaction, but certainly to sensuality. Anxiety about sexual consent may therefore be an expression of generational despair about losing the natural capacity to experience and communicate sensuality non-verbally. In a culture of alienating social networks, manufactured diversity and self-branding where the capacity for face to face non-verbal communication is progressively eroded, microconsent may be an attempt by some academics and rights-activists to compensate for the weakening of their own intersubjective affinity.