For a long time, groups singled out for violence and oppression in our society have relied on the concept of “consent” to help make their case to the world. The law and private people should treat gay men and lesbians with respect, the argument went, because these groups engage in consensual sexual interaction no less fundamental than that of heterosexuals. What “two consenting adults” do in the privacy of their own home is nobody’s business. Anti-miscegenation laws, in addition to implementing race discrimination, denied consenting adults the right to sexual autonomy. One might argue, however, that “consent” has studiously undertaken more work than it is equipped to handle. Though consent is a necessary condition of many activities in which adults engage, should it necessarily follow from this that consent is a sufficient condition as well?
During most of our history, some groups of humans inflicted grave hardships on other groups of humans without consent. To cite a recent example, it was not until 1993 that every state in this country had eliminated the marital rape exemption. Before 1975, every state’s law allowed a man to force his lawfully wedded wife to have intercourse against her will. Turning the clock back a bit further, the institution of slavery long stood as an official part of many legal systems, including ours, and it allowed people to compel other people to perform labor without even seeking anyone’s consent. Slaveholders would use the threat and the infliction of violence as a means of motivating those who tried to resist their persecution. Slavery is, of course, inherently antithetical to a rule requiring consent.
Another example of non-consent is somewhat more controversial because the law does not officially recognize or protect it and yet it goes in with little intervention. When people convicted of crimes go to prison in the United States, a large number can expect to become rape victims. Some comedians even continue to joke about prison rape, with the understanding that people who prey on others are fair game, having somehow forfeited their right to consent, practically if not legally.
Few would dispute that consent is generally essential to sexual interactions and to many other activities that people carry out in private and in the workplace.
But is consent always enough? Consider an example of consensual sexual activity. A boss (Hank) tells an employee (Marge) that if she sleeps with Hank, she will receive a promotion for which a different employee (Lulu) is more deserving. Marge agrees to the deal and sleeps with Hank in exchange for the promotion. Her agreement means that the sex is consensual. Hank is bribing Marge, and she could have said no to the bribe and avoided the ostensibly unwanted sex. Yet Hank’s proposal nonetheless amounts to sexual harassment, specifically quid pro quo harassment. Consensual sex can therefore still violate Title VII. The law of workplace discrimination accordingly rests on the centrality of something more than consent.
Relatedly, many colleges (including Cornell) prohibit professors from sleeping with undergraduate students at the professors’ respective institutions. During the debate in the Cornell faculty senate that preceded the vote for our rule, some professors argued that we were proposing to violate the autonomy of undergraduate students by preventing them from having consensual relations with their teachers. At eighteen years or older, they were legally competent to consent to sleeping with a professor. Some from the majority on the other side of the issue noted that while nonconsensual sex is certainly wrong, it does not exhaust the universe of oppressive relations. The power imbalance between, say, a freshman college student and a tenured member of the faculty is arguably too great to allow for the kind of mutual decision-making that ought to happen in a relationship.
Are there other examples of consensual activity that we ought nonetheless to prohibit or discourage? A relatively minor experience I had as a junior faculty member might serve as an illustration. I took New Jersey Transit to work each day at that point in my career, and I had a choice between two train lines that brought me to spots that were each around the same distance from the law school where I worked. I preferred one of the routes, and thus one of the trains, because it left me in a more populated and thus safer part of town. The first day or two, I noticed a senior colleague of mine boarding my train after I had settled next to a window. The colleague said good morning and then slid into the seat next to mine. With no gap between us, he took up about three quarters of the two-seater, squishing me against the window and wall. For the 20-minute trip, my new colleague told me that his wife was about my age and then described the tropical vacation from which he and she had just returned. I never said “go away,” “shut up,” or “I don’t think there’s room here for both of us here.” I just smiled and nodded, wondering if I had the energy to endure another job search. Then the inspiration came. After two days, I began taking the other train to work. I gave up a measure of safety, an odds game, for the certainty of not having to sit with the colleague whose wife was about my age (because she had been his student).
In addition to the train experience, I had yet another trivial encounter in my first days at a new job. An additional one of my colleagues, a woman this time, asked if I could do various housekeeping tasks for her. She wanted me to bring her a cup of tea from the kitchen and sweep up her office. Each time, I said okay and other colleagues looked at me quizzically as I walked by with a dust pan or a scalding cup of tea that I had filled to the rim. I became quite frustrated and looked for ways not to run into this person. Yet I consented each time, saying okay and doing what I was told with a smile on my face. Gavin De Becker, in The Gift of Fear talks about some of the things that people, especially women, do that are against their own wishes and interests and sometimes contrary to their safety. Though it is technically a request, the person who hears “can you please…?” will often feel like she must obey, acting “as if” she is happy to comply.
In the law enforcement context, we can see with perhaps greatest clarity how consent can fail us. If a police officer stops you for speeding on the highway, she cannot search your car non-consensually in the absence of probable cause (or reasonable suspicion that you are armed and presently dangerous). She can, however, ask you for consent to search, and you, in turn, can say no. Yet men and women alike understand how difficult it might be to tell the officer “no, you cannot search my car.” You might wonder whether you even have that option and you could worry about how a negative response might look. Could it give the officer the probable cause he needs to search without permission? (No). Beyond these possibilities, it is also true that when an authority figure wants our permission to do something, it is quite difficult to say no. Just ask Stanley Milgram.
What about private consensual sexual activity? Is there any room there for demanding more than consent? Perhaps not under the law, if we are talking about private venues. It has been too short a time since criminal statutes prohibited some relationships (like those between same-sex couples) based on status rather than non-consent. It would be difficult for members of previously-stigmatized couples to trust the criminal law to protect rather than harm them in this way. But as a matter of aspiration, it does seem legitimate to stop people from having unwanted sex with a consenting party. If one person wants to have sex and the other simply wishes to avoid an argument, this is an unfortunate predicate for sleeping together. Robin West spoke of unwanted but consensual sex a number of years ago and urged a line within consensual relations between those that are wanted and those that are unwanted. It may be fine sometimes for people to compromise and sleep with someone when they would rather be doing something else. But the mantra of “two consenting adults” (or three or four) should not foreclose a broader interrogation of potentially coercive practices.
A final sexual practice that might be worthy of interrogation is known as BDSM (bondage, discipline, and sadomasochism). If two people both find pleasure in inflicting and enduring pain, respectively, then it is probably a mistake for anyone to punish them for living out their fantasies. I also have no interest in pathologizing what people consider erotic even if I or even a majority find what they do disturbing. It is indeed the “I don’t like it so let’s prohibit it” thinking that long plagued the gay community.
In some number of cases, however, only one of the parties truly wants to be engaging in the violent activity (whether sexual or not), and the other is going along with it to make his or her partner happy. In that case, BDSM would be unwanted sex with the addition or substitution of violence. If sex were not involved and someone told you that his partner likes using a whip on him until it raises welts on his back, you would be concerned and immediately think “domestic violence.” Your concern would likely mount if he said that he really doesn’t like being whipped but wants his friend to remain his friend so he tolerates it. Perhaps consent should not be a defense to aggravated assault except in extraordinary circumstances (like surgery).
In short, that “two consenting adults” are involved should be the beginning and not the end of the conversation. Recall that the Supreme Court once believed that commercial agreements were constitutionally sacrosanct. Bakers had the right to agree to work over 60 hours a week. But the Court overruled Lochner and held that laws may protect the individual from his own capacity to consent to bad things that he truly does not want. We can call it paternalism, but whatever it is may be worth considering in many zones of life, zones where an individual’s consent has acquired a holiness that our Lochner history with “freedom of contract” should perhaps have taught us to avoid.