THE BOOKS I tend to remember are those that take a seemingly simple, self-evident idea and then show that it is in fact fraught with ambiguity and ethical implications. Chipping away at our epistemological certainties, ameliorative conceptual analysis of that kind invites us to investigate whether our core ideas are sound enough to help us accomplish vital cognitive and practical social tasks, including legislation and the building of moral consensus. The French philosopher Manon Garcia’s thought-provoking book The Joy of Consent: A Philosophy of Good Sex (2023) subjects the notion of consent to such analytical probing and demonstrates the ways in which it is laden with problematic prejudices, old and new.
Consent is at the heart of current debates about good and bad sex and is used in many legal frameworks to distinguish between permissible and illegal sex, and to establish what constitutes sexual violence and rape. Consent—or rather, its absence—has featured centrally in the #MeToo movement. Despite its ubiquity, however, we would be mistaken to believe that sexual consent is a clear-cut concept that can be easily defined and translated into law.
At the most basic level, sexual consent happens “when two (or more) people agree to have sex with each other.” But, as Garcia observes, “saying yes to sex is not like saying yes to a cup of tea.” There are, for example, situations in which a person might agree to have sex for reasons other than their desire for their sexual partner. We may fear the repercussions of saying no. We may simply need sleep or peace and wish to put an end to insistent pestering. We may need money or a job, or we may do it out of concern for the other person. Garcia uses the intriguing notion of “sexual projects” to capture the array of motivations for engaging (or not) in sex.
You may recall Kristen Roupenian’s controversial short story “Cat Person,” which went viral in 2017. This story captures the constantly shifting motivations of a young woman who engages in a memorably bad sexual encounter with an older man with a very fragile ego. At some point during their date, she decides to have sex with him and goes to the guy’s house. But when she sees him naked, and when his character becomes more apparent, she regrets her decision:
But the thought of what it would take to stop what she had set in motion was overwhelming; it would require an amount of tact and gentleness that she felt was impossible to summon. It wasn’t that she was scared he would try to force her to do something against her will but that insisting they stop now, after everything she’d done to push this forward, would make her seem spoiled and capricious, as if she’d ordered something at a restaurant and then, once the food arrived, had changed her mind and sent it back.
This passage neatly captures not just the potential danger of physical violence that may lead women to agree to have sex when they don’t really want to, but also the complex web of social expectations, gender norms, and psychological considerations shaping such decisions.
The vocabulary of consent has migrated from the legal sphere to that of intimate relationships. However, far from being equipped with a general “moral magic” that makes sex not only permissible but also good, consent signifies different things, in different contexts, to different people. There are, for example, obvious tensions between legal and moral approaches to consent. What if sex is morally nonconsensual, yet legal—as spousal rape was until 1990 in France, 1993 in all of the United States, and 1997 in Germany? Conversely, sex might be illegal but morally consensual when sexual partners agree to exchange sex for money in a context where selling sexual services is prohibited. What if there are significant risks to not consenting to sex—physical, mental, or financial—and the choice between having or not having sex is like that between the plague and cholera? And what happens if we give our consent but the nature of the sexual encounter changes substantially during the act, taking a turn to which we did not agree at the outset?
What, then, constitutes solid consent in the sexual sphere, and how can it be expressed? Silence, nonresistance, and yielding do not count, for many rape victims go into freeze—rather than fight-or-flight—mode when they are attacked. Can consent be tacit and implied, or do we need consent to be active, affirmatively expressed? And at what point do the complex politics of sexual consent threaten to ruin pleasure and destroy any possibility of good sex? Some US university campuses have adopted elaborate notions of “affirmative consent,” such as Georgia Southern University, which defines good consent as “a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement.”
Garcia doubts that such definitions succeed in protecting the vulnerable, and she fears they may instead lead to repression. As a French philosopher who has studied and taught in the United States and Germany, Garcia benefits from a cross-cultural perspective, contrasting what we might think of as the more laissez-faire French art of love with American puritanism and wokeism—although she complicates and adds much-needed nuance to both clichés. She argues, for instance, that we have much to learn from BDSM and other kink subcultures, because consent features even more centrally in the sexual practices of these communities. They have developed more elaborate notions of consent than mainstream sexual cultures because they had to—consent defines the crucial difference between sexual battery and the enactment of a fantasy. What we can learn from BDSM includes scripts for contracts, how to have honest conversations about our sexual fantasies, and procedures for establishing agreement, trust, and safety.
In search of better conceptions of consent, Garcia also looks to Sweden. In 2018, the Swedes introduced a new legal category—“negligent rape”—which penalizes individuals who are “grossly negligent in seeking their sex partners’ consent.” As Garcia observes, consent is not just a woman’s problem. In fact, because women are structurally at a much higher risk of having sex imposed upon them, men have “primary responsibility for building consent.” What is more, Garcia makes the important but often overlooked point that sexual communication is not just about expression—it also involves reception. And men have the responsibility to receive the message.
Garcia’s core argument is that we are beholden to a liberal tradition of consent, inherited from John Stuart Mill, which presupposes two equal and rational subjects and concentrates on establishing formal agreement between them. Owing to crassly unequal gender power dynamics, however, we have much to gain from moving to a Kantian conception of consent, grounded in the ideas of dignity, autonomy, and respect. Asserting the other’s subjectivity, we should never treat them solely as a means but also as an end in themselves.
A major reason the liberal version of consent is insufficient is that it disguises the structural inequalities of patriarchy. As Garcia points out,
the consent framework personalizes what is in fact a social and political problem: it renders sexual violence a problem of communication between individuals, whereas the true foundation of sexual violence is a patriarchal ideology that justifies men’s use of women for their pleasure. Liberalism invites us to blame individuals—perpetrators, but also victims—instead of reforming the structure.
Adopting a Foucauldian perspective, she argues that there is no real outside to power, that we are all products of the structures in which we are embedded, and that we cannot even know whether our desires and fantasies are really ours or just a function of the machinery of power, including its pornographic outputs. This obviously creates a challenge for a consent-based model of good sex, for “there can be no substantive personal autonomy in a world riddled with gender injustices.” Full sexual autonomy is therefore an impossible ideal.
This part of Garcia’s argument feels both a little dated and nihilistic. The broader ethical conflict with which Garcia wrestles here is best captured by the notion of “agency dilemma,” that is, “the difficulty of recognizing and analyzing the vulnerability of oppressed people while at the same time recognizing and respecting their capacity to act.” Thankfully, Garcia does not remain in this determinist space, in which good choices seem impossible.
Because men and women are not the equals presumed by the liberal model of consent and remain profoundly entangled in wider cultural webs spun of older beliefs, power dynamics, and assumptions about gender roles, Garcia argues that we need an emancipatory sexual politics based on a deeper understanding of how social norms generate sexual injustices. Ultimately, she advocates a contextually sensitive approach to consent, a notion that responds to the specifics of sexual situations and is relational in nature. The etymology of consent, she reminds us, comes from the Latin “cum sentire” (to feel with). She also recommends “erotic conversations” as part of a strategy to reclaim consent as a tool for sexual pleasure rather than something that kills it. In other words, her proposal is to re-eroticize consent and to cocreate an ethics, as well as an erotics, of consent with our sexual partners.
Whoever would have guessed that Kant could prove to be an ally in a project designed to enhance joy?
The post The Ethics and Erotics of Permission: On Manon Garcia’s “The Joy of Consent” appeared first on Los Angeles Review of Books.
