The Problem with Affirmative Consent

Once upon a time a woman would refrain from sexual relations with a man until he made a public commitment to her. That is, she refused to yield to his importunities until he declared in public, not just his love, but his willingness to build a life with her. 

Such women are now relics of a long distant past. Today’s young women prefer to hang out and hook up. A winning smile on a Tinder profile seems sufficient to dispossess them of their garments and their shame. One day many years ago a woman on an Oprah show implored the show’s hostess to tell young women to start respecting themselves. Again, a relic of a long distant past.

Nowadays you would put your life in danger if you ever presented a set of rules that might cause a woman to have fewer orgasms. Young American women have gotten to the point where saying Yes to a coital interlude is not sufficient. Having discovered that they do not know either what they want or what they are saying Yes to, young women today insist that they must offer what is called affirmative consent, that is, full throated lusty affirmation of their wish to fornicate. "Fuck me, please, fuck me."

As it happens, as no one cares to notice, as I have noted elsewhere, the most alluring response from a woman is not No or even Yes. The most alluring response to a man’s proposal is-- maybe.

In the past affirmative consent involved exchanging marriage vows, thus affirmatively consenting to a lot more than a good fuck, and defining sexual congress as the consummation of one’s marriage vows-- or as Hamlet said, in a slightly different context, “a consummation devoutly to be wished.” Dare we notice that there is nothing devout about hooking up. It is largely vulgar.

Nowadays the notion of consummating your marriage vows no long counts. Our frame of reference has shifted, and not for the better. In an age where hanging out and hooking up have replaced consummating vows, the baseline is, how to assure that a woman who has said Yes to fornication does not feel that she is being raped. Do you think that this represents civilizational progress. Avoiding rape has become the standard, though it has not crossed anyone’s mind, surely not law professor Jeannie Suh Gerson, that the old ways of courtship and marital consummation might have advantaged women. 

Today, as Gerson tries to explain in a rather lame New Yorker article-- what has happened to The New Yorker?-- the trick involves not being used for sex when one has consented to be used for sex. Clearly, we needed a law professor to explain the ins and outs of this conundrum.

Obviously, Gerson says nothing about the old consummation model. After all, she is a law professor and law professors care mostly about what constitutes a crime. Her frame of reference seems to involve two semi-autonomous beings who barely know each other getting naked in order to do-- they are not quite sure what. Apparently, the two do not know what they are doing or what is happening to them. Fifty years of women's liberation and women are dazed and confused about their desires....

The solution to the problem posed by the hook up culture and by drunk college frat parties is-- sex with someone you know. 

The more salient point, also ignored by Gerson, who manages to ignore nearly all of the relevant issues, is to ask: who has been telling young women that there is something of value in having sex with someone they do not know. Who has been encouraging them to hook up with strangers. Or else, with relative strangers. Trust me, it isn’t the big bad patriarchy, for the simple reason that no self-respecting young woman would ever take advice from any patriarchal male. Yet, if a feminist thinker tells her that she will only feel liberated if she blows a boy she met a half hour ago, she will naturally want to try it out. If a noted pedophile like Michel Foucault-- whose predations on Tunisian boys have recently become big news-- tells her that it’s all about power relations, then she will quickly discard her clothing in order to do something that she does not quite want to do with someone she does not know, in order to feel empowered.

As I said, affirmative consent used to involve exchanging marriage vows. Now, marriage vows are a relic, so the legal profession has been contorting its limited intellectual faculties trying to define affirmative consent in a way that will allow women to give their favors away for free.

Gerson explains:

The aspiration of affirmative consent is no joke; it is now mainstream and considered common sense among college students and recent graduates. So, in a typical example, today, Yale’s standard is one of affirmative consent, which it defines as “positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter.” The policy goes on: “Consent cannot be inferred merely from the absence of a ‘no.’ A clear ‘yes,’ verbal or otherwise, is necessary. Consent to some sexual acts does not constitute consent to others, nor does past consent to a given act constitute present or future consent. Consent must be ongoing throughout a sexual encounter and can be revoked by any participant at any time.” Whether or not it is actually honored in the breach, affirmative consent is now used for purposes of investigations and penalties.

So, it’s all about criminalization, about preventing a crime from taking place. Sex is not about consummating an affirmative consent in exchanging marriage vows, but it is no longer even an act of love. When two strangers hook up in the closet of the frat house, love is not on their minds. I hope I do not need to explain this.

We should not be surprised, shocked or awed to discover that women who have offered their full throated affirmative consent still feel violated. That the solution might involve having sex with someone she knows and who might even have courted her-- speaking of retrograde concepts-- does not cross Gerson’s legalistic mind.

In many other cases, students have felt deeply violated even when their partner followed affirmative-consent rules—asking for and receiving a “yes”—because aspects of the situation made them feel that what occurred was not what they wanted. Sometimes the explicit request for permission might have induced them to do something they were conflicted about. Some schools have trained students, as part of orientation, to seek and settle for nothing less than “enthusiastic” agreement to sex. Even under an affirmative-consent regime’s valorization of clarity, “yes” doesn’t always mean “yes.”

Astonishingly enough, Gerson, who, keep in mind, is a chaired law professor at Harvard Law School trots out the long discredited Freudian notion that women do not know what they want. Of course, she manages to mistranslate Freud’s phrase, which is not, as she puts it, What does a woman want?,  but is, What does woman want? One does not best not to confuse the specific with the general.

As for knowing what any woman wants, a good rule of thumb is-- ask her? At some point in the past feminists inveighed against Freud’s concept. Now, we are told that we must drag it from its grave, in order to explain why so many women, when doing what feminists told them to do, feel like they are being assaulted. Could it be that having sex like a man when you are not a man is a bad idea? 

But what may well emerge is a recognition that the clearest practices of “yes” and “no” do little to untangle a deep difficulty that makes consent seem promising yet wide of the mark: the altogether human experience of not knowing in the first place what is wanted or unwanted, desired or undesired.

In a letter to Princess Marie Bonaparte, a French psychoanalyst who sought treatment for what she described as “frigidity,” Sigmund Freud wrote, in the nineteen-twenties, “The great question that has never been answered, and which I have not yet been able to answer, despite my thirty years of research into the feminine soul, is ‘What does a woman want?’ ”

So, human history designed the marital institution to ensure that women get something of what they want. The currently faddish hook up culture ensures that women allow themselves to be used for sex, while thinking that they are liberated. And then feminists contort their minds in order to rationalize their own failures, for having reduced women to pleasure seeking organisms:

Speaking truth to power simply doesn’t cut it, because the truth about our desires is . . . ambivalence, all the way down. The dominant socio-legal rubric that purports to divide permitted acts from prohibited ones—consent—is an on-off switch, not a dimmer. That doesn’t accommodate what, to Angel, is at the heart of desire and pleasure: the mixed feelings, the indeterminacy, the pulling in different directions, the balancing of conflicting considerations, the imbalanced negotiations, the paralysis by uncertainty. All of it is universal, she suggests, and also particular to “the double bind in which women exist: that saying no may be difficult, but so too is saying yes.”

By the way, Angel here has nothing to do with celestial beings. It refers to another dopey theorist, by name of Katherine Angel. To her it’s all about saying what she wants. The notion that a young woman might want to have a man make a commitment to her, might want to have a man see her as something other than an object with which to achieve blissful gratification, never crosses her limited mind:

Yet in what Angel calls “consent culture,” preventing sexual violence and insuring sexual pleasure rest on a woman expressing what she wants. “Woe betide she who does not know herself and speak that knowledge,” she writes in her new book. This vision dovetails with what Angel terms “confidence feminism,” in which self-respecting women are supposed to be outspoken and assertive, so as to claim their equality and empowerment.

A strong woman speaks her mind. Yes, indeed. At the current historical juncture, that is frankly risible. At a time when we have been reading story after story of women being sexually harassed, even assaulted, in situations where they have given no indication of anything resembling consent, the notion that women will solve these problems by being strong and empowered is absurd. Women’s pretense to being strong and empowered is what is causing the problem, along with the fact, so astutely noted by Heather Mac Donald, that, thanks to feminism and the sexual revolution, the default for young women today is not No, but Yes.

Dare we say that Gerson and Angel have nothing to say about these matters. The reason is, they are offering up young women to male sexual desire. And they are trying to repair the damage by pretending to care that the world they helped to create is hell for young women.

In sex, this mode translates into the consent solution: a (strong) woman speaks to get the sex that she wants. If she doesn’t speak up, she risks assault, but there is also such a thing as bad sex, which we tend to see as an inevitable life experience, not rape. This is where Angel wants to intervene, refusing to brush aside bad sex just because it may be consensual and not legally punishable. “ ‘Bad sex’ doesn’t have to be assault in order for it to be frightening, shame-inducing, upsetting, and a legal concept has trouble drawing out this difference,”

Apparently, a lot of women who do consent have bad sex. I trust that this is not news. After all, when women are allowing feminists and law professors to tell them what to do-- all the while pretending that these women really, really want to have sex with strangers-- they are going to be having lots of bad sex:

“Bad sex,” Angel writes, is “miserable, unpleasant, humiliating, one-sided, painful” sex. Much consensual—even affirmatively consented to—sex is still bad sex. And, when affirmative-consent standards are adhered to, bad sex may become even worse; a woman might judge herself for a gap between what she says and what she feels, or for not having more clear-cut desires. The pains of sexual life are unfairly distributed: sex for a woman can involve the risks of pregnancy; slut-shaming; judgment, of her assertiveness or her diffidence; blame, for wanting it or not wanting it. Studies show a significant pleasure gap between men and women. What should we do about women who are experiencing what Angel calls “so much misery-making sex”? Since consent can’t distinguish effectively between good and bad sex, Angel proposes, we need to shift focus. The solution is to acknowledge “the fact of women’s vulnerability to violence” but stop trying to “make them invulnerable in response.” The hardening project of my college self-defense class and today’s earnest affirmative-consent push would be twin failures in that regard. Instead, Angel writes, we should acknowledge that “we don’t always know what we want,” in order “to allow for obscurity, for opacity and for not-knowing.” All those hours in therapy, working on knowing ourselves, only to see that “self-knowledge is not a reliable feature of female sexuality, nor of sexuality in general; in fact, it is not a reliable feature of being a person.”

Like I suggested, this is drivel. Human history has defined affirmative consent in terms of public commitments. The ultimate affirmative consent is the exchange of vows, as in: I do.

It involves commitments by both parties to a relationship that involves more than just plain sex. Otherwise one risks seeing women solely as sexual creatures, and we surely do not want that. That these so-called theoretical minds ignore this completely tells us all we need to know-- not about sex, but about modern feminism and its disregard for women.