Two men regularly meet at a sex club, so that one (‘the top’) can fist the other (‘the bottom’). One night, the fisting duo stay until the club closes. The lights click on in their sobering glory, exposing the prosthetic hand that the top has been inserting into the anus of the bottom.
‘I’m an amputee,’ the top explains. ‘It feels just like the real thing, right?’
Did the fisting top rape the fisted bottom by failing to disclose that his hand was prosthetic? Surely the conventional expectation of the bottom was that the top’s hand was the same hand that the top was born with, albeit adult-sized. But I see no reason why law, criminal law especially, should weigh in on the side of the bottom’s arguably ableist presumption.
I draw on this admittedly absurd hypothetical example in my book Screw Consent: A Better Politics of Sexual Justice (2019) to recast various cases of so-called ‘gender deception’ that have arisen in the United Kingdom, the United States and Israel over the past 25 years. These cases, carefully considered previously by legal scholars Alex Sharpe at Keele University in the UK and Aeyal Gross at Tel Aviv University, typically involve transgender men or gender-nonconforming (masculine-presenting) women who are convicted of some form of sexual assault for failing to disclose to their girlfriends that they were sex-assigned female at birth and do not have a penis.
If the presumption of the hypothetical fistee is ableist, the presumption of the complainants, juries and judges that masculine-presenting intimate partners have a penis is heteronormative (and the convictions are transphobic). One might reasonably expect her masculine-presenting partner to be penis-bearing. But if that expectation is unmet, the state should not thereby prosecute that partner for rape. Consider a partner with an unforgivingly large, disappointingly small or stubbornly flaccid penis. Here too expectations have been unmet, but no crime is committed.
Nevertheless, these cases of alleged deception raise a surprisingly hard-to-answer question: what do we consent to when we consent to sex? Turned around, the question becomes: what kinds of deception or nondisclosure ought to be legally impermissible for procuring sex? If consent separates rape from sex, as the US legal commentator Jed Rubenfeld put it in 2013, then we should be seriously concerned about all kinds of deception, nondisclosure, false advertising and so forth. If Debbie consents to sex with David because David lies that he is an atheist, rich, a Bernie bro, a Harvard alumnus, her husband, whatever – is not Debbie’s consent vitiated? Is the sex rape?
Scholars such as Corey Rayburn Yung counter that these problems appear only in mythical doctrinal theoryland and not in the real world of sexual coercion. Yet the conviction of trans and gender-nonconforming defendants belies that claim, and shows that the problem is a real one. There is a solution, in two parts.
First, we should render as a legal wrong, although not a crime, the deliberate contravention of an explicit conditional for the procurement of sex. The civil rights attorney Alexandra Brodsky makes a parallel argument about ‘stealthing’, the nasty practice of removing a condom unbeknown to one’s partner. So if Debbie says to David: ‘I will sleep with you if, and only if, you are Republican,’ and David lies about his political-party affiliation, the subsequent sex becomes legally wrongful. Yet rather than sentence David to prison (a typical penalty for a crime), we might obligate David to pay Debbie money or compensate her in some other way (a typical penalty for a tort violation).
Of course, sex rarely happens under such if-and-only-if conditions; yet tailoring the law like this means that we can keep consent as our metric of sexual assault rather than reverting to an archaic standard of force.
Second, it is important to understand that some questions are or should be unanswerable as legal truth claims. When it comes to sex, there should be no legally actionable way to answer the question: ‘Are you a man?’ Is gender a matter of genitals, hormones, chromosomes, secondary sex characteristics, social inequality or self-identification? The law cannot bring any clear answer to this question. One should not be convicted of sexual assault for failing to live up to a phallocentric standard of manhood.
Yet rendering as a legal wrong, but not a crime, the deliberate contravention of an explicit conditional in order to procure sex intimates how crappy consent is as a metric for sexual ethics. It bears reminding that legal responsibility is not the same thing as moral responsibility. One could lie to a prospective partner that he is an unmarried and wealthy libertarian, when in fact he is a married and poor socialist. It does not mean that one should do so, even if the subsequent sex is legally consensual (lest the partner explicitly premised her consent on any or all of these marital, financial or political party statuses). Despite recent declarations of consent’s sexiness and goodness, consent offers us little direction when it comes to sexual communication, misrepresentation or nondisclosure of facts about ourselves to our partners. Moreover, consent offers minimal guidance as to how we ought to behave at the bar, dance club or frat party. So don’t grab Ben’s or Jen’s genitals without an indication of willingness from Ben or Jen. But what kinds of embellishments, flirtations, pressures or even lies can you peddle to Ben or Jen to pursue your ambition to sleep with them?
Consent has limits not just in terms of scope but also in terms of sufficiency and applicability.
As for sufficiency: if Peter requests that Adam remove his legs or cut off his face as part of their sexual encounter, are we prepared to say Peter’s consent (affirmative consent!) absolves Adam of any legal or moral responsibility? If we are not, can our reservations simply be sourced to erotophobia (fear of sex)? I don’t think so.
As for applicability: many people suppose that sex with nonhuman animals is wrong because animals cannot consent. But are animals really the kinds of creatures capable of consenting? Can Fido ‘consent’ or not to fetch? If you do believe animals such as cows can proffer consent, I would wager they are less likely to consent to becoming a cheeseburger than to sex.
Finally, maybe consent is more often the problem than the solution to bad sex. Why do people, too often girls and women, consent to sex that is immiserating, painful, unwanted and unpleasant? What social, cultural and economic forces make consenting to awful sex less costly than saying no? Far from being solved by consent, that problem is constituted by it. Consent does not solve all our social problems or intimate injustices. Just like we consent to deadening jobs, we often consent to injurious sex. Right-wing talkshow hosts decry that some in the #MeToo movement have confused rape with bad sex, but it’s critical that we make bad sex, and not just rape, a primary target of our sexual politics. I don’t mean bad sex as in mediocre sex, say, when nobody comes. I mean sex that is persistently unwanted, or painful or begrudgingly acquiesced to, or requires illicit substances to endure.
Let’s collaborate to create opportunities for intimacy and sexual satisfaction, particularly for people historically tasked with satisfying others rather than being satisfied themselves. Let’s imagine a progressive sexual politics in which the sex that too many of us consent to is the problem, rather than the antidote.
About The Author
Joseph J Fischel is associate professor of women’s, gender and sexuality studies at Yale University. He is the author of Sex and Harm in the Age of Consent (2016). His latest book is Screw Consent: A Better Politics of Sexual Justice (2019).
This article was originally published at Aeon and has been republished under Creative Commons.
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