Crimes Against Sex: Why Consent is Limiting Sexual Progression

In recent years a groundswell of grassroots activism has put sexual assault in the spotlight. By calling out examples of rape culture, feminists have sought to demonstrate that misogyny is deeply rooted in our society. In turn, it is argued that sexism, at worst, encourages rape or, at best, excuses its ubiquity and prevalence.

Unfortunately though, much of the conversation regarding rape revolves around consent. Let me be clear: sex without consent, whatever the excuse, is rape. Rape is the most horrific of crimes because it concerns the imposition and deprivation of sexual power, and leaves psychological wounds that may never heal. But my belief is that by focusing on consent the complexity of sexual experience, both good and bad, is lost. Sex is much more than consent.

The obsession with consent has arisen because we view rape through the technical language of the law. Before the courts, consent is the be all and end all when deciding whether someone acted criminally, or merely unethically. It is a legal test deliberately designed to filter out the ambiguity and complexity of sexual interaction. So when the public discusses well-known sexual assault cases involving footballers, for example, they do so through the sanitised, reductive language of consent. This is a huge problem.

Beyond consent, sex, sexuality, and gender are much more fluid. The degree to which someone finds the interaction between pleasure and pain, purity and deviancy, dominance and submission enjoyable is completely dependent on the individual. Complicating matters further, like all human interactions sex is not immune from manipulation and coercion, or emotional and physical abuse. But for some people an imbalance of power is precisely what turns them on. The point is that obsessing about consent distracts people from thinking about what they do, or more importantly don’t, want to gain from any particular sexual experience.

So how should the law regulate sexual behaviour, and to what extent? Who should it protect and what should it promote? By definition, consent must be one of the ways through which a court decides whether or not rape has occurred. What I am interested in though is how people frame their own experiences through legal concepts like consent: the law’s value to society is much more than mere adjudication. As a powerful institution it shapes the way people talk about sex and rape. Indeed, it has the power to generate healthy attitudes towards sex.

A sexual duty of care is one way the law could produce meaningful change. In every sexual interaction a person becomes involved in, they would have a duty of care for their partner’s wellbeing. The practical legal details are of no particular concern to me. What is important is rather the influence the law has on how we talk about sexual assault. Emphasis would shift from the prevention of harm to the promotion of care.

Problematically, a duty of care is essentially grounded by the assumption that some people are more sexually vulnerable than others, and that all sexual interactions are accompanied by the risk of exploitation. This is because tortious duties have traditionally been imposed where courts deem there to be an imbalance of power. A sexual duty of care thus entrenches the belief that some people are more likely to be passive sexual agents.

So although a sexual duty of care might set out to generate healthy approaches to sex, it runs the risk of reinforcing paternalistic attitudes about what sex is and should be like. For example, at least in our culture, women have come to be viewed as passive sexual agents. This has arisen from the idea that women are naturally vulnerable, and men aggressive. A sexual duty of care is a reaction to this social construct. Crucially, it does not challenge any of the underlying assumptions upon which sexual inequality is based.

Whether or not you believe a sexual of duty of care is a good idea will ultimately come down to your own political beliefs. The extent to which you believe the state can, and should, attempt to shape behaviours and attitudes will guide your answer. Whatever your conclusion, for me one thing is inescapable: the way we talk about rape and sex is strongly influenced by legal language. The question for me then is whether feminists ought to leverage the law’s discursive power, or continue to build a counter-culture that embraces richer conceptions of sexuality. Either way, as feminists we need to move beyond our obsession with consent, and get on with the difficult business of promoting sexual liberty.