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The problem of consent


Any hyper-regulated society colonized by neoliberal discourse requires fear of 'others' and needs to turn the social relationship itself into a danger from which to protect ourselves

Consent is a whole problem.

A great political and philosophical problem.

Mentioned non-stop in talk shows and television news, the object of didactic explanations on social networks, invoked in political speeches that name it trying to settle discussions, consent is treated today as a solution, as a response.

The problem is that, far from being something clear and distinct, something obvious, something that is immediately understood and that we all understand in the same way, it hides a deep darkness.

It contains within it an enormous ambiguity and, when looking at it closely, more than answers, it begins to raise questions.

Consent, now turned into a kind of great solution, is, however, a problem.

“Consent seems like a simple word, a transparent notion, a beautiful abstraction of the human will.

However, it is dark and thick as the shadow and flesh of every singular individual.

This is how the French feminist Geneviève Fraisse expresses it, who wrote in 2007

Du consentement

, a work dedicated to exposing the polysemy of a concept inseparable from many of the political and legal battles that women have waged to win rights.

Consent, linked from Roman law to the figure of the contract, has been central to thinking of marriage as a mutual pact, to defending the right to divorce or to grant women bargaining power in any activity related to sex work.

It belongs especially to the political language of liberal contractualism and is a cornerstone of the modern political project, built under the premise on which the law is based: that the subjects of legal age freely agree before others and before the State.

However, if we keep thinking about it, consent has another meaning.

As if it had two faces, as if we could look at it from the right side or the other way around, consent is itself contradictory.

In the tradition of left-wing political thought, which has paid attention to the existence of unequal relations and structures that dominate subjects, which has criticized the fictitious nature of the equality that the law presupposes, consent may be more good to give in to the factual power of the other.

“Is it then a question of pure freedom or of an inevitable relationship of force?”

(Fraisse, 2007).

The question is masterfully posed because, in effect, the problem of consent is to think of it in either of these two extremes: either as

pure freedom

, in a world without power or strength, or as a yield before an

inevitable force,

in a world where there is no room for agency and freedom.

One path leads to neoliberalism, the other leads to the old theory of false consciousness and paternalistic protectionism of subjects without agency.

In which of these two blind alleys are we locked up today?

The problem with consent in our current age is that we are thinking about it in these two extremely conflicting and profoundly mistaken ways at the same time.

Both a hyper-contractualism that subsumes all social relationships under the logic of the contract and a suffocating theory of domination that supports security frameworks belong to our time.

Or, put another way, the problem of consent—its internal contradiction—encloses the political problem of our times;

The current debate on the law of

only yes is yes

This very complex question is brought to the background, although a media outcry and a strong confrontation between parties does not allow anything to be understood.

The constant message from the Ministry of Equality that for the first time its law "puts consent at the center" blurs and distorts the issue even more.

As any jurist knows, consent was already, obviously, the central axis to delimit attacks against sexual freedom.

If intimidation or force are determining circumstances, it is precisely because both force and intimidation invalidate the conditions in which a subject can express their will.

What is it, then, what has come back to our Penal Code?

A particular way of thinking about consent—the legal doctrine of

affirmative consent

— that has been advancing for decades in the Anglo-Saxon context and that has been especially influential in the United States, a true pioneer country in the laws of

only yes is yes

(yes, they are called that there too).

We have a complex debate in the background and citizens will not be able to participate in it if we reduce it to a problem that consists of the fact that there are judges willing to apply consent and other judges who are not.

Obviously, there is machismo in our judiciary, but we are hiding the real dilemma if we deny that the underlying problem is pre-legal, that the laws that judges apply presuppose one or another perspective on social reality, on the subject and on sexuality and that This is the question that the left must face.

In all legislation that wants to regulate sexual consent, the old and profound problem raised by Geneviève Fraisse will appear:

Can there be a pact between equals in sex or is sex inevitably a scenario of domination relationships?

Should the law call into question the consent of women in front of powerful men or in a patriarchal world all heterosexual relationships vitiate the conditions in which women can express their will?

Are there intimidating contexts —like that portal in the case of

The Pack

where a woman cannot express a no, or is sex itself intimidating in every context and in every place?

This is the debate that we face and every legal reformulation of consent adopts a certain way of approaching it, committing ourselves to taking a position.

By importing legal doctrines from the North American context, heirs to the great social impact that the Women against pornography movement had in a traditionally puritanical society, we are importing the problem of consent in its maximum expression.

Because we are incorporating a huge contradiction.

On the one hand, an expansively contractualist logic typical of a neoliberal society that tirelessly tries to impose commercial law frameworks on sex.

And can sex be a transparent pact?

Can a sexual consent be rescinded like someone who breaks an economic contract?

Do we know what we are agreeing to when we embark on a sexual relationship?

But the problem is even more convoluted, because together with the liberal logic of the pact, it blinds to the opacity of desire,

we are also importing the philosophical foundations of American dominance feminism;

the one whose philosophical heart is that the world is too unequal and dangerous to take for granted women's ability to consent.

This contradiction fully explodes within some legislative proposals that are coming, among others, to the Spanish scene.

Laws that believe so much in the contract to affirm that even in our beds with our partners there must be a prior negotiation and that, at the same time, believe so little in the contract as to defend that, even if a sex worker says yes , the State must deny its capacity to consent.

We have a hell of a problem to think about and that is the question that the question of consent raises for us.

In later texts I will go into the possible proposals.

This text only wanted to draw the problem, but it is worth this drawing to point out that no solution will come from neoliberal discourse or from the discourses of danger.

On the other hand, although apparently contradictory, they find an effective alliance in our current way of thinking about sex.

Let us think about the problem of consent with this warning on the horizon: every hyper-regulated society colonized by neoliberal discourse requires the fear of


and needs to turn the social relationship itself into a danger from which to protect ourselves.

Clara Serra

is a philosopher and researcher at the University of Barcelona

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Source: elparis

All news articles on 2023-02-06

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