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Consent, Sex and ‘Sexceptionalism’: Comments on Robin West’s 2019 Chorley Lecture, 'Consent, Legitimation and Dysphoria'

A feminist discussion of consensual sex should consider when sex is wanted and when it is harmful. But is should also consider the justifications for exceptionalism concerning sex. A response to Robin West.

Maayan Niezna

This note begins with a provocative question — what is exceptional about sex? This discussion was inspired by Professor Robin West’s Modern Law Review Chorley Lecture ‘Consent, Legitimation and Dysphoria‘, (video here) given in June 2019. It was a fascinating and important feminist talk, and the summary below will not do it justice.

West offered an interesting and powerful feminist analysis of consent ethics in the contexts of reproduction and sex. In her Lecture she highlighted critical issues that are sometimes left outside feminist discussions. Her talk offered insights and ideas on several issues not part of this note, particularly regarding consent in the context of pregnancy and birth. Here, I focus on West’s argument regarding what she identified as harms resulting from consent as the sole source of legitimacy (and legality) of sexual interactions. West’s call for caution when considering consent as the ultimate test for morality and legitimacy is important and the picture she draws is rich and nuanced. Yet, I believe that her framing of the challenges for a feminist discussion of consent, and a feminist discussion of sex, raises further questions, particularly, regarding the qualitative distinction between sex and other social interactions or functions. In most interactions, we are satisfied with consent as a source of legitimacy, and do not demand further conditions are met. West’s argument suggests that for sexual interactions, consent might be insufficient. Furthermore, according to her argument even consent supplemented by benefit might result in morally problematic sex. Only a specific benefit, namely pleasure, results in morally acceptable sex. This note raises two main concerns following this argument: how the exceptionalism of sex can be justified, and what potential harms result from this exceptionalism of sex.

West’s argument builds on Henry Maine’s analysis of the transition from status to contract in the development of legal norms. This analysis outlined the transition from consideration of sex as legal and legitimate due to the (marital) status of the parties, to sex being legal and legitimate due to the consent of both (or all) parties. West suggested that in contemporary understanding, consent, rather than law, is the main source of legitimacy. If in the past legitimate sex was a matter of status, a marriage between a husband and wife, the consent ethic is open to married, unmarried or casual; straight or LGBT; ‘vanilla’ or sadomasochistic sexual interaction.

West then moved on to consider the negative impact of focusing on consent as the ultimate — indeed the only — test for whether sex is good and legitimate. She offered a typology of consensual but harmful or potentially harmful sex, in circumstances that fall short of coercion, or consensual sex that is not coerced but is not, and not expected to be, a pleasurable and positive experience.

West suggested that the authority of consent, rather than the authority of the law, as a source of legitimacy, reflects a change regarding sexual autonomy and the definition of sexual offences. This change is a clear manifestation of a broader transition from status to contract, captured by Maine and visible in various contemporary contexts, with specific problems becoming apparent in the contexts of sex and reproduction. Her argument, as I understand it, is built on the notion that sex and sexual interactions are inherently unique and distinct from other human interactions. This argument suggests, or assumes, that conditions for legitimacy that apply to other interactions — consent, and sometimes also a benefit — are not sufficient to legitimate sex. The following analysis questions the justifications offered for this exceptionalism of sex (that I refer to as ‘Sexceptionalism’), and the potential harms of such exceptionalism.

Sexual interactions do have some unique aspects. Sex is an intimate interaction that usually involves nudity, penetration to the body, and great vulnerability. It takes place within a social and historical context relevant to our reaction in sexual interactions and our perception of ourselves, before, during or after sex. These factors have political, social and psychological impacts, and unwanted sex can potentially harm our physical and psychological well-being. West discussed those factors and highlighted their meaning and importance.

While these are all true, they may be insufficient to explain why sex is exceptional in all situations considered below. The remainder of this paper is divided into the following sections. First, it briefly reviews the types of consensual-but-harmful sex West discussed. Second, it excludes some of her examples, that I deem less relevant for the discussion of consensual-but-harmful sex. The third section examines several possible arguments for the exceptionalism of sex and under what conditions they are convincing. The last section considers some potential harms in the emphasis on sex as an exceptional category in human interactions.

West enumerated six situations where the ethics of consent ‘confers an aura of legitimacy’ to sex that might be harmful, or lead to ignoring the harm in such situations:

  1. Coercive sex where the coercion is great enough to undercut full autonomy but not to vitiate consent. This includes sex with a partner for a promise he will not use violence in the future; exchanging sex for placid home life; or sex with an undesired but safe man in exchange for his protection from violent sex by others.
  2. Commodified sex. Refers to unwanted, unpleasurable sex, that is not coerced but is a part of a trade, for money or in-kind necessities.
  3. Sex driven by a sense of duty rather than an expectation of pleasure. Community, family or clan expectations or religious beliefs that result in women regularly submitting to sex with marital partners they may not have had a hand in choosing and do not desire. West argues that the ethics of consent protects such acts from critique, and as status conferred legitimacy to marital sex mandating submission of women to marital partners, ethics of consent achieves similar results.
  4. ‘Hierarchic’ sex in the workplace and school. West argues that hierarchic sex may be desired by both parties, not amount to assault or sexual harassment as it is welcome on all sides. Nonetheless, it might be harmful, in blunting workplace ambition or killing scholarly aspirations.
  5. ‘Culturally mandated’ sex, especially on school campuses. This refers to casual sex not desired, pleasurable or enjoyed by one or both parties, but ‘driven by felt imperative and culturally dictated ethics that requires participation in sexual activities as a condition to be included in high-status group’.
  6. ‘Maintenance’ sex. Unpleasurable sex offered for the maintenance of an emotionally sustaining relationship. As one wants to maintain the relationship, as a source for intimacy and emotional support sex is understood as not coerced, but required in order to meet expectations. This category I find particularly relevant for my point regarding the exceptionalism of sex.

In some of her examples West also mentioned men and boys, but her emphasis was on women. For the sake of clarity, I will maintain this focus on women.

The next section builds on these examples to search for tests or criteria that will justify or explain the exceptional conditions for the legitimacy of sex.

A primary step is to exclude the situations of coerced sex, that I disagree represent a genuine ethics of consent. Then, several explanations for ‘sexceptionalism’ will be discussed: exceptionalism of sex in professional spheres, when it is considered inappropriate; exceptionalism of sex due to personal and physical experiences; and exceptionalism of sex due to its special purpose.

 

I.      Coercive Sex or Sex for Protection

In some of West’s examples, background conditions lead to coerced sex that nonetheless enjoys an ‘aura of legitimacy’ due to ethics of consent. These include situations when a woman consents to have sex (or a sexual relationship) with an agreeable man she does not desire, for his protection from violence, or due to coercion of the community. Those situations are not ‘exceptional’ in their conditions for legitimacy — they consider coercion as immoral. However, the inclusion of such cases as representing the ethics of consent is false. The interpretation of ‘consent’ to include such cases is too broad — so broad it may apply to some situations currently defined by law and society as rape. Surely, there are examples for the use (or abuse) of the term ‘consent’ as a formality to be interpreted narrowly to shield perpetrators. Honest ethics of consent, however, reflects a commitment to a liberal idea of autonomy. Background conditions may be considered as part of this idea. Conflating the genuine search for autonomy and the cynical reliance on consent risks attacking a straw-man rather than dealing with the potential costs of a real ethics of consent. This confusion might result from the fusion of ‘consent’ and ‘contract’, that ignores differences between the terms. For one, contracts may bind one’s freedom to change her mind in the future (as the tension between ‘liberty of contract’ and ‘liberty of person’, recognised in the context of labour, demonstrates), but consent to sex should always be retractable.

In the ‘sex for protection’ scenario, arguing that consent confers an aura of legitimacy to the act misrepresents both the situation and the notion of consent. The coerced consent of a woman to have sex with a particular man for his protection from violence by others is closer to the coerced submission of a rape victim threatened with violence than to situations normally considered ‘consensual’. The fact that the threat and the demand for sex are made by different actors is relevant for the assessment of the perpetrator’s guilt, less for the victim’s autonomy. When such ‘protection’ is from the perpetrator’s own future violence, the coercion is even more direct.

Sex driven by a sense of duty and community or family pressure raises a similar issue. Here, again, the notion that proponents of the ethics of consent do not criticise this sex because it is consensual is odd. Women married to men they did not choose and do not desire, and pressured by their community or religious creed to remain in these relationships and have sex with these men, are hardly the poster girls for ‘ethics of consent’.

We should not ignore the problem of sex coerced by subtle means or poor circumstances, and neither should we ignore coerced non-sexual activities. But what I think is the more challenging point West addressed relates to the issue of consensual but unwanted sex.

The other examples West discusses highlight the difficulty encountered in relying on consent as a sufficient test, and therefore require a consideration of the justifications for exceptional demands for legitimate sex. Three justifications for exceptionalism are considered below: exceptionalism in professional spheres; exceptionalism due to personal and physical experiences; and exceptionalism in the legitimacy of commodification.

 

II.    Exceptionalism in Professional Spheres: Hierarchical Sex

By ‘hierarchical sex’ West referred to consensual sex between superior and subordinate in the workplace or school. West clearly distinguished between such situations and sexual harassment. Yet, for a critical consideration of such situations, I would like to begin from sexual harassment in the workplace. In some situations, sex is inherently unique due to the context of having or demanding it. Sexual harassment or sexual demands between a superior and subordinate at a workplace (or university) are easy to identify as ‘clearly wrong and always wrong’. Other demands the superior can pose might be unreasonable, but of the same nature of normal conditions in a workplace. Sex, however, is not expected to play any role in work relations. We could imagine situations where overtime, lower wages, completing someone else’s tasks and even dangerous conditions might be necessary to meet professional goals. Having sex with your superior cannot serve such legitimate goals. Treating sexual harassment as an exceptional violation of the right to decent conditions of work could be explained this way.[1]

What about real consent in hierarchic situations? One option is to consider the power differences between the parties to mean that consent is never fully and freely given. This seems too extreme. Legally, we may apply greater scrutiny when analysing such situations. Yet power gaps may often exist between partners outside formal hierarchies (e.g., due to differences in age, gender or character). West’s point about some hierarchic relationships being welcome and wanted further weakens this point. Here, the main problem results from letting elements that do not belong and may be problematic in the future (separation, professional disagreements) into a professional relationship. While some individual cases may not pose moral objections, one could argue that as a matter of policy such situations should not be condoned.

The idea that ‘this sex is bad because it does not belong here’ is a helpful test. Yet, it is less helpful when moving from the workplace or campus to intimate relationships and situations where sex does belong, the focus of the next section.

 

III.   Personal and Physical Experiences

Intimate relationships, romantic or not, require compromises between people with different needs. While having sex may impact a person’s psychological and physical well-being, it is not the only interaction that does so. Staying up until 3 a.m. to support a friend or partner going through a crisis might affect a person physically and emotionally. It might also interfere with work or other obligations, examples for the harms West had mentioned as resulting from consensual-but-unwanted sex. If it happens often, it may have significant impact. Yet, as a friend or partner, one would usually feel expected or obligated to be available and to participate in such interactions as part of a relationship.

This is not the only behaviour in a close relationship that is not a source of pleasure. Some compromises may include unwanted personal and emotional interactions, such as joining partners at office parties and family dinners. For people suffering from anxiety or who are uncomfortable in large gatherings, those can cause anguish. But even without them, stress, weariness or personal dislike of some of the participants may render social interactions unwanted. Even intimate interactions may require unwanted physical contact without a sexual element. Without specific circumstances (such as personal traumas or hyper-sensitivity) we would not consider hugging a distressed loved one, or massaging a partner’s back or feet after a long day, a potentially harmful act, even if one does not feel pleasure while massaging or touching others in general or in this particular instance.

Emotional support, undesirable gatherings and non-sexual physical contact have an emotional and physical impact. They may result from an idea of a proper relationship that includes doing things one is not excited about. They may also be explained as resulting from an expectation of mutual support in the future, or a feeling that refusing might be insensitive, unfriendly or will result in a fight. If we agree that women are socialised to be emotionally supportive and available, this too has a clear gender dimension.

I acknowledge that a prolonged relationship where unwanted, unenjoyable sex is a ‘recurring task’ is a potentially harmful situation, and do not wish to dismiss this potential harm. However, I would suggest that attempts to define this harm, to identify what is wrong and why, may help us understand both this harm and other potential harms in similar situations.

The inherent difference between consensual but unwanted non-sexual interactions and consensual but undesirable sex is not immediately obvious, though some explanations could be suggested. I address a few explanations here, though there are undoubtedly additional explanations possible.

One explanation could be frequency. Unwanted sex might be expected in a relationship more often than other unwanted activities — whether because people desire sex more often than they desire family dinners, or because the conditions for pleasurable sex are less common than the conditions for pleasurable family dinners.

A different but related explanation could be that due to personal history and social factors, unwanted sex is often much more complicated than unwanted conversations, massages or family dinners. What we really are concerned about results from our knowledge of how prevalent sexual abuse is. When considering ‘undesirable sex’ we imagine a scary scenario that we do not imagine when considering undesirable emotional support or other joint activities. But this consideration is practical and based on experience. Anxieties, hyper-sensitivity, complicated family history or emotionally-demanding former partners may require us to re-assess expectations of harm.

Another explanation could be the assumed equation of ‘sex’ with ‘penetration’ when considering harm. Explaining the qualitative distinction between penetration to the body and a conversation, a massage or a hug is easier. The potential for harm or pain in penetration is significant; the causal link between desire and physical experience stronger, and the blurred line between my body and the outside is erased. Arguments supporting a higher moral threshold for penetration are based on such reasoning.

Yet, such an explanation is only partial. First, it reflects a rather heteronormative and conservative approach to sex that ignores various sexual acts. It might also be used to justify considering only forced penetration as a ‘real’ sexual assault that justifies the full weight of criminal sanctions. This will be a difficult position for the protection of sexual autonomy and women’s well-being, harmful for the very same objectives West highlighted.

If the sex-as-penetration is not the heart of the exceptionalism of sex in consideration of consensual, legitimate and wanted interactions, but rather all forms of sexual interactions, we are again short of justification. Sex is exceptional because it combines emotional and physical vulnerability, intimacy, personal history, traumas and social expectations. Sex is exceptional, in other words, because it is sex.

A complementary explanation can result from consideration of sex as exceptional due to its purpose. The following discussion will focus on this argument.

 

IV.  Commodified Sex and the Purpose of Sex

West explicitly referred to one form of consensual but harmful sex as ‘commodified’: sex that is a part of a trade for money or in-kind necessities. This is a straightforward understanding of commodification of sex. A broader understanding is a common element in three other examples. The first is pressure from the community, family, or clan to have sex with one’s partner; the second is where casual sexual interactions signify belonging to a high-status group (e.g. in college); the third is ‘maintenance sex’ between partners in established and intimate relationships. In all three, sex is exchanged for something else — pacific domestic environment; social status and acceptance; emotional or financial maintenance and support.

This broadly ‘commodified’ sex (that includes any exchange of sex for a benefit other than pleasure, including social status or support) contrasts with what West defined as good sex, morally and hedonically: pleasurable sex, that is free of any coercion, and chosen for the sole purpose of pleasure for both parties. Commodified sex is the flip-side of pleasurable sex, suggesting sex should only be exchanged for sex, its objective being pleasure and no other benefits. To paraphrase Kant, sex should never be used as a means, but always at the same time as an end. Here, again, the question is why. Why is the other party to the ’maintenance sex’ (presumably, the male partner), the one exchanging unwanted intimacy for wanted sex, not considered as potentially harming himself?

The discussion of pleasure in addition to consent falls into what is known as ‘consent-plus’ models. I will not consider here the adoption of such models in detail, but they share the notion that one should not merely agree to have sex, but also benefit from it. What benefits will meet this requirement is contested. West’s argument equates benefit with pleasure, and interprets this pleasure in a narrow sense that seems to exclude anything but the physical pleasure from the act itself. However, a ‘consent-plus’ model does not have to limit individuals’ assessment of benefits. As Vanessa Munro’s defence of a ‘weak reciprocity’ model for consent, explains, such a model:

does not seek to stipulate in advance which preferences and values are pertinent. Thus, it has the benefit of greater flexibility and is able to avoid the problematic tendency, associated with strong reciprocity, to privilege one set of preferences, values or experiences over another.

This point summarises an important critique of the privileging of a particular preference, namely pleasure. Munro’s idea (there) of a ‘process of personal critical reflection’ could address some other potential harms West described. It would therefore reduce the need to rely on pleasure as the ultimate test, or dictate what legitimate aims should individuals pursue through sex.

Two related points that West suggested may challenge my argument above, and the distinction I made between justifying ‘sexceptionalism’ based on personal history or the purpose of the interaction. First is the hedonic dysphoria, the tension between the belief that one should enjoy this and the subjective physical or emotional experience of not enjoying. Second, given this dysphoria, is the continued and repetitive nature of such experiences. These points make sense especially for one example West gave, that of the college student in an environment that pressures people to be sexually active. Yet, it contradicts the commodification idea in most other examples. When one consents to sex, not for pleasure but in the expectation of something else in return or some bad consequence avoided, there is no inherent dysphoria between one’s feelings and expectations. Here, I believe the weight West attributes to the strong socialisation of ‘sex should always be enjoyable’ is unjustified. We may not like the social idea that women give sex in exchange for something else, including intimacy, but it exists as a cultural concept that shapes our expectations.

The discussion above suggested some non-sexual interactions may meet the criteria that lead to the conclusion of harmful sex. Such interactions may involve unwanted contact, have negative physical or emotional effects, and cause anguish or dysphoria, especially due to personal history and experiences. The last section briefly considers the potential harm of such ‘sexceptionalism’.

 

V.    Potential Harms

The assumption underlying this section is not that coerced or unwanted sex should be ignored or normalised. Far from it. I wish to explore some potential harms of considering only sex as problematic when coerced or unwanted, or to justify this attention in a way that risks normalising other coercion or harm. The examples below are not intended to be a comprehensive list. Rather, they suggest areas where exceptionalism of sexual interaction can lead to dismissing or minimising other harms.

The first potential harm in the exceptionalism of sex is in consideration of extreme abuse. The problems in such extreme situations can be identified, for example, in the discourse on trafficking in persons. Here, critical scholarship demonstrated how the emphasise on sexual abuse often means disproportional attention, enforcement and allocation of resources to trafficking for prostitution (or the sex sector in general), rather than trafficking for labour.

Second, the idea that hierarchic sex is bad because it does not belong in this social sphere addresses some problems, but also poses some potential harms. Attention to sexual conduct as a unique and particularly harmful violation in the workplace or academic institute might risk dismissal of other problematic conduct, such as unreasonable non-sexual demands, or non-sexual abuse and harassment.

A third potential harm, more relevant for social responses than legal enforcement, is in ignoring other gendered functions women are expected to perform, that might be unwanted and impact their well-being, but are not sexual. Related to West’s arguments on hierarchic sex and maintenance sex we could consider demands for emotional availability in the workplace or intimate relationships. The latter could be important especially when considering the social expectation that a single romantic relationship will answer all of one’s personal and emotional needs. Here, too, there is some potential for dysphoria between (internalised) social expectations to be emotionally available, patient and caring, and between personal experiences of disinterest, boredom or unwanted demands.

A fourth potential harm is in the consideration of sex as the main subject of trust and loyalty in a relationship. Thus, having sex with someone other than one’s partner may be considered worse than other breaches of trust, and expressing sexual interest in other people considered more important than, for example, belittling one’s partner’s abilities.

None of these situations or questions suggests ignoring potentially harmful sex, or equating legal with moral and socially acceptable sex. They do emphasise that considering sex as exceptional should take into account different contexts and provide justifications whenever possible. The critical search for such justifications may help us develop a richer and more nuanced understanding of both sex and other interactions.

References

[1] The way sex work challenges this idea of ‘sex where it does not belong’ deserve discussion, but is beyond the scope of this note.
Published 04.10.19
Response by Maayan Niezna
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