Consent is Not a Sufficient Ethical Framework

13 February 2021 · 11 minute read

Before we talk about sex, let’s talk about art.

In 1939, Solomon Linda was employed as a packer and cleaner for the Gallo Record Company in Johannesburg. His band, The Evening Birds, reportedly was paid a flat fee for a recording session that included “Mbube.” The song would sell over 100,000 copies across Africa over the next decade. The record was exported to the United States, where Pete Seeger transcribed part of the chant as “Wimoweh.” It helped restart his career. Seeger sent Linda’s family $1,000 and told his publisher to send royalties to South Africa, but they didn’t. In the 1960s, an English version with Linda’s melody would become a hit sensation. In 1994, the song would appear again as a gag in Disney’s Lion King, which was worth an estimated $15 million dollars in royalties.

None of which Linda or his family saw, due to the complexities of copyrights that allowed for Gallo to claim ownership, and the complexities of international copyright that allowed for American producers of the 20th century to rip off “folk” compositions.

This conflict is fundamental to the August Wilson play Ma Rainey’s Black Bottom. Ma, a butch and black blues singer, is forced to collaborate with white producers. She shows up late and dictates the entire recording session because she recognizes that she only has power in that relationship until she signs the copyright release. Young Levee doesn’t have the same leverage, and is blatantly ripped off after making the mistake of giving the producer a copy of his song. Both are ultimately exploited to make other people money. Both reveal deep frustration and rage at needing to survive a system that exploits their creative labor.

We’re quite comfortable with the principle that music producers of the 20th century repeatedly used legal measures in the service of unethical exploitation and discrimination. It is reasonable to object to that exploitation even when everyone involved arguably had informed consent. Which makes the hangups in using consent as the primary framework for defining ethical sexual conduct to be troubling.

Here I’m going to make three arguments:

(Potentially triggery discussion of sexual assault.)

He said, “You’re really an ugly girl
But I like the way you play.”
And I died
But I thanked him
Can you believe that?
Sick, sick, holding on to his picture
Dressing up every day

I wanna smash the faces of those beautiful boys
Those Christian boys
So you can make me come
That doesn’t make you Jesus

– Tori Amos, “Precious Things”

It is, in my opinion, quite reasonable to have different standards in different contexts. Some of those different contexts include:

Central to my argument here is the extreme disparity between the numbers of people needing treatment for sexual trauma compared to the number of cases that can be prosecuted under the current system. Estimates of survivors of unwanted sexual contact in the US are about 27% for women 12% for men (NISVS 2010). Bisexual women and men experience much higher levels of relationship violence (CDC). With only a minority of those cases reported or prosecuted, we have a large number of survivors who need to be able to talk about our traumatic sexual experiences in terms of the traumatic effects rather than the legalistic questions about whether consent existed or how the lack of it was communicated. Appeasement and survival sex can be traumatic even if verbal consent was explicitly communicated.

So to be perfectly clear here, most of the rest of this discussion is not concerned with legal proof. My focus is on getting treatment, resources, and support to survivors experiencing sexual trauma. It’s about empowering people in or coming out of abusive relationships to talk about trauma from appeasement or survival sex. It’s about recognizing that having sex to meet the demands of compulsory (hetero)sexuality can be traumatic for some people. There’s an entire dynamic of abuse against bisexual people that involves manipulating expectations regarding group sex, polyamory, and kink. All of these are cases where the experience of sexual trauma is deserving of support.

I do admit that “yes means yes” is a great soundbite and ideal. If people only get one thing about how to negotiate sexual relationships, we could do a lot worse. The problem is that “yes means yes” does not account for the ways in which abusive persons can manipulate a partner’s psychology and value systems into justifying and internalizing boundary violations. Abusive relationships can be sustained by convincing partners that the abuse is normal and/or expected. And since a large quantity of sexual violence is also relationship violence, we need to account for the cognitive distortions needed to survive abusive relationships.

One of the problems with “consent” as a model is that many people, some of them in good faith, will immediately play a game of Green Eggs and Ham around it. (“Would you do it in a box? / Would you do it with a fox?”) On the negative side, there are those who will use interpreted consent to argue away real trauma. The Teacher explores a relationship between an adult teacher and a teenager explicitly portraying both grooming and trauma. Still, apparently some people don’t get the point and play semantics around consent and age. As an AMAB survivor, I’ve had to deal with a great bit of discussion about the sphygmomanometetrics of arousal under duress. (Thankfully much less after Sandusky and Spacey.)

On the positive side, we get a bewildering array of qualifiers including “affirmative” and “enthusiastic,” both with limits and edge cases that leave some people in the cold. (Is it reasonable to say, “let’s give it a try, but it might not work this time?”) We say that it’s impossible to consent under power differentials (hello capitalism, gender, and race!), in workplace relationships, while experiencing abuse, or under a duty of care. I agree with using those caveats to define sexual misconduct, but I don’t think “consent” is the best banner under which to define that misconduct.

Rather, I believe that many sexual relationships involve a duty of care. And we can say that duties of care have been violated without invasive examination of what the survivor was thinking or saying in the moment. Adults have a duty of care not to harm teens, and sexual relationships violate that duty of care. Supervisors have a duty of care to create a respectful environment. Medical providers have a duty of care for the well being of patients. Relationship partners have a duty of care for emotional safety and respect for boundaries. Even before the moment of consent is addressed, it’s reasonable to ask the person violating that duty of care, “What the fuck were you thinking?”

Those violations may be difficult or traumatic even if physical contact never comes into the picture.

You’re gone, the trees are so quiet
When your hand was in my pocket
How they swayed from side to side
Now the meddling sky and my snowy eye
Sees a different night
Sees a different night

The night I fell into the lion’s jaws
To my regret and your delight

Those teeth themselves could not divine
Nor their pressure estimate
The haze I wish to never break
And to never contemplate

Momentum for the sake of momentum

– Neko Case, “Lion’s Jaws”

This is the radical idea I’d like to consider here. Manipulating a person into a position of vulnerability can be psychologically damaging regardless of whether physical sexual contact happens. This can include:

Rather than pinning our sexual ethics on how these strategies invalidate the moment of consent, they need to be considered as ethical issues in their own right. And from a health/social services perspective, a survivor may need to focus on how they were manipulated. I think “I consented because, at the time, I felt I had no other choice” can be just as valid a survivor statement as “I could not consent because I was threatened.” We should honor the different ways of describing sexual trauma rather than imposing a single model.

There is, IMO, an important psychological reason to shift the focus away from just the moments when sex starts and onto the manipulation, pressure, grooming, boundary violations, or failures of care that came before. It’s pretty well established that memory under duress becomes unreliable, especially for those of us who had a prior history of trauma to start with. I’m not talking about something so grandiose as false memory syndrome. But getting details about exactly what happened when in the middle of a flight/fight/freeze/appease crisis can be difficult. I can not testify to exactly what was communicated just before sex after hours of physical and emotional abuse. I shouldn’t have to, because the failure of care started with the physical and emotional abuse (and I’m not interested in pursuing a legal case anyway). Similarly, other failures of care involved letting over an hour of sexual harassment happen on a supervised youth camping trip, and a partner who repeatedly expressed disappointment that my anxiety attack was ruining date night. The boundary violations or manipulation did not start at the moment of unwanted sexual contact.

These boundary violations may even be legally significant. Outside of sexual abuse in relationships, there are patterns of behavior on the part of persons committing sexual assault to select, isolate, and groom victims. Pivoting on consent allows for many people to rationalize sexual assault as a failure of communication, rather than the manipulation of a person and/or events for the purpose of control. If instead, we look at how the survivor was isolated, manipulated, and/or groomed over time to become vulnerable, those excuses become less defensible.

This isn’t to dismiss the importance of affirmative or enthusiastic consent among people who have very healthy communication styles. But in relationships that are emotionally or structurally abusive, we can’t assume that consent to sexual activity is necessarily healthy or in the best interest of the people involved. Those abusive patterns are inherently problematic, not just problematic for undermining consent. Sexual ethics regarding communication between partners need to focus on both the moment of consent and the process and values of the relationship. In terms of getting help for surviving sexual trauma, we need to acknowledge that those experiences may not be easily defined according to consent. Consenting to appease an abusive partner comes with its own internalized conflict.

Bringing this back around to Solomon Linda, we readily recognize that a signature on a contract does not necessarily mean that financial relationship was ethical. We should also recognize that agreeing to have sex doesn’t necessarily make that sexual relationship ethical as well. This is the point in the conversation where consent legalists ask, “if yes doesn’t always mean yes, what’s to prevent someone from accusing me of rape?” First, I’ll point out again that my primary concern is making sure that survivors experiencing sexual trauma can get support without being cross-examined on what they expressed. Second, you’re far more likely to be ghosted for crossing boundaries than criminally prosecuted in the United States. And third, the best prevention is to treat your potential partners with kindness and respect. Too often these discussions center on “What can I get away with? Really?” rather than “How can I make this relationship better?”

It’s a literal goddamned zoo out there, so this is the best I can do you for: don’t giggle when the other entity takes their clothes off, secure enthusiastic consent, don’t mix silicon and carbon without extensive decontamination protocols, tidy up your house if you expect to bring someone home, don’t expect anything you wouldn’t offer, remember that every person is an end in themselves and not a means to an end, don’t worry too much about what goes where and how many of them there are, don’t mistake fun for love, try your best, be kind, always make them breakfast, and use protection.

– Cat Valente, Space Opera, “The Fourteenth Unkillable Fact”

Ultimately, a central problem with consent is that it’s a negative ethical rule. Consent alone doesn’t do much for establishing a positive ethos for sexual (or asexual) relationships. This post has already gone on far to long, but I’d like to suggest the following areas of communication:

Ultimately, my ethos is that relationships should help participants grow to become better people, but exploring that will take another day.