As a movement, “consent culture” aims to reorganize our approach to sexuality to focus on consent, as a reaction to a “rape culture” which normalizes sexualized violence. Through proximity to socially engaged art practices and activisms, I have noticed an upsurgence in the useage of these terms. I see the value in challenging normative attitudes that correlate with sexualized violence and I believe this to be a noble pursuit, albeit one that is lacking a comprehensive framework. An internet search of the term “consent culture” yields flimsy results; the first number of results are sprinkled with catch-phrases but seriously lack depth and most practical content is behind paywalls. One can book workshops and consultations on how to promote a culture of consent, yet it remains a pragmatic movement that is without much in terms of theoretical backing.
Proponents of consent culture rail against parts of a culture that are deemed to support sexual violence. In Nova Scotia, we recently experienced public outrage to an expression of rape culture, when in March 2017, Judge Gregory Lenehan found taxi driver Bassam Al-Rawi not guilty of sexual assault following a two-day trial in Halifax provincial court. The incident took place in May 2015, when a police officer found a 26-year-old woman in the back of Al-Rawi's taxi. She was unconscious, naked from the chest down and had a concentration of 244 milligrams of alcohol in 100 millilitres of blood (Harper). All the evidence presented in the trail illustrates a damning scene. However, In his ruling, Judge Lenehan said, "In testimony, [the woman] could not provide any information, any details on whether she agreed to be naked in the taxi or initiated any sexual activity. The Crown failed to produce any evidence of lack of consent at any time." (The Canadian Press) This case sparked activists to protest and demand that Judge Lenehan be formally investigated and ultimately removed from the bench for rulings that were deemed to be immoral articulations of rape culture.
This case illustrates a deep fissure within the politics of consent, which is partially due to consent operating as a black and white function for the sake of legal definitions. I see this line of reasoning being extended to consent culture. Simplifying the complex set of values that lead to rape culture through a binary subversion via consent culture is an incomplete analysis. We need to consider consent as the complex issue it is, while doing away with the understanding of sexual consent through the logic of “yes means yes” and “no means no”. I argue here that consent must become a more nuanced, morally grounded system. I want to propose that a Kantian approach to the topic of sexual consent can offer an effective framework for not only dealing with the pragmatic aspects of consent but also a proactive undertaking toward a healthier relationship to consent.
We must be able to effectively reason about these issues before we can ever hope to have institutional systems that competently deals with sexual violence. Barbara Herman contemplates this issue when she asks, “how can introducing an institution to protect to moral interests of sexual partners do other than preserve the essential social nature of those interests and the embedded relations of power and exploitation?” (Herman 70) Without theoretical insight, our legal system and the critics of it are prone to reproducing our social paradigms. This calls for deeper evaluation into the nature of these relations.
Kant’s and Kantian Ethics
In the opening remarks to her essay “Could it be Worth Thinking About Kant on Sex and Marriage?” Barbara Herman says, “Kant’s views on sex, women, and marriage would best be forgotten by anyone who wanted to take Kant seriously. Or so I thought.” (Herman 53) For the sake of this text, it’s important here that I align with Herman when I distinguish Kant’s beliefs about sex from my own Kantian approach. The focus here will not be on Kant’s views of sexuality, some of which “are so extreme as to be ridiculous or abhorrent to all enlightened people.” (Wood 224) I will allude to, but not linger on, some highlights of his sexual morality expressed in the Metaphysics of Morals as well as his Lectures on Ethics. Kant concludes that “unnatural” sex acts such as non-reproductive sex, masturbation, non-monogamy, and homosexuality should be condemned and punishable as crimes. However, these intolerant views do not mean his insights on morality are to be done away with. In his book Kantian Ethics, Allan Wood remarks about Kant’s misgivings:
As a figure of the enlightenment, working towards humanity's emancipation from the chains of tradition, we can interpret Kant as both a luminary and a casualty to the very modes of thought he criticized. Like many other thinkers, we can only see this in Kant through retrospective analysis, and it is unproductive to reject his work wholesale based on his remarks that today we’d scoff at as repressive. A critical, yet generous view of Kant’s moral theory, such as the one advocated by Wood, allows us to extract the parts of his thought that are principle-based.
The Categorical Imperative distills the content of Kant’s moral theory into a matrix which houses the three major and two variant formulas. For the purpose of this text, I will focus on the intuitive variant to The Formula of Autonomy (FA), which is the Formula of Kingdom of Ends (FKE). In the second section of The Groundwork of the Metaphysics of Morals, Kant describes this formula as: “all rational beings stand under the law that each of them is to treat himself [sic] and all others never merely as means but always at the same time as ends in themselves. But from this arises a systematic union of rational beings through common objective laws.” (Kant, Practical 83) Simply put, the Kingdom of Ends is an ideal community of rational beings who have an absolute worth as ends in themselves (never merely as means), and as a result, every member is capable of self-legislating universally valid laws. This is often regarded as the formula with the most social dimension, as it brings into union the Formula of Universal Law (FUL) and the Formula of Humanity (FH).
The FKE illustrates how working towards equality while engaging in responsible end-setting will move us in the direction of a more just society. This formula commands us to avoid end-setting in ways that are fundamentally competitive, as those relations to other people make impossible their ability to meet their own subjective ends. To this point, Wood explains that Kant’s moral law commands us to “seek the welfare of ourselves and others on the condition that it can be united with the common welfare of all.” (Wood 79) This implies inequality is incompatible in the pursuit of individual and common ends. Following the moral law requires us to negotiate our subjective ends and the means to those ends through deliberation and practices of consent.
O’Neill’s Limits to Liberal Consent
As a leading Kantian scholar, Onora O’Neill has written extensively about how Kant’s Categorical Imperative can be activated when discussing consent. Although this is usually in the domain of bioethics, much of this thought is analogous to the context of sexual consent. In an article titled “Some Limits of Informed Consent” she challenges the accepted notion of informed consent as an absolute qualifier of the morality of consent.
In another text titled “Between Consenting Adults” O'Neill refutes the liberal notion that anything that happens between consenting adults is morally acceptable. She utilizes Kant’s moral theory to explore the limits of consent, bringing us closer to a rigorous understanding of consent, which takes into consideration many of Kant’s imperfect duties to ourselves and others. She explains how the common understanding of Kantian ethics is problematized when we do not have the moral literacy to understand what it means to treat someone else as a person. She refutes the position that treating someone with a “personal touch” is the same thing in Kantian terms as respecting them as dignified, rational beings (the basis of our personhood). Of this she says, “the notion [of the “personal touch”] entirely fails to capture the requirements for avoiding using others and provides a scanty account of treating others as persons.” (O’Neill, Between 254)
O’Neill believes that a mandatory requirement of treating others as person is through considering consent morally significant. She argues that a liberal understanding of morally passible consent as an informed agreement between two adults is insufficient. While explaining these shortcomings O’Neill says “Informed consent is one tip of the ethical iceberg: those who think otherwise overlook the rest of the iceberg.” (O’Neill, Limits 5) This is where I fear consent culture begins and ends its analysis; at a stagnant understanding of anything explicitly agreed upon by adults as being morally suffice, and the polarizing view of all activities outside this standard to be worthy of vilification of the highest degree. This viewpoint does nothing to allow us to deeply consider the grey matter -and yes, there is grey matter- between “yes” and “no”.
Difficulty arises when attempting to define consent. In legal and institutional contexts, the criteria is supposedly the clearest, as consent is formalized in procedures of legal documents, oaths, signatures and contracts. From an institutional perspective, the rituals of informed consent protect against accusation, litigation and compensation claims. However, even in these supposedly clear formulations of consent, they can be voided when the agreement was made under duress, ignorance, misrepresentation, etc., as these cases do not represent true consent. In cases of sexual consent, the rituals of consent are much less formal than, say, signing a legally-binding document; there can be no contractual consent to sexual activity as we know it. I want to suggest here that, the ability for a court to decide what is consensual and nonconsensual sexual activity is severely truncated by the inability for us to represent consent as we know it with the same “clear” formulations that institutions operate on.
O’Niells expresses the “difficulties that arise when the consent given does not match the activities it supposedly legitimates.” (O’Neill, Between 255) She uses a Marxist analysis to point out that outwardly contractual consent of employment actually obfuscates an underlying economic coercion, as the employee’s often do not have sufficient alternatives to wage labour, and thus cannot rescind their consent to workplace pressures. She gives another example that was especially pertinent to when the text was published in 1985. Most societies give restrictive life possibilities to females without their consent, thus “a choice between marriage partners does not show that the married life has been chosen. [...] The outward form of market economies and of unarranged marriages mask how trivial the range of dissent and consent is.” (255) These forms of consent reflect a “false consciousness”, which obscures the extent to which our society creates to conditions that force us to instrumentalize one another.
A range of difficulties emerge when we consider the circumstances in which the ability for subjects to consent or dissent to proposed actions are impaired. When we acknowledge several important exceptions to informed consent between adults, John Stuart Mill’s definition of an adult as someone who is “in the maturity of their faculties” (O’Neill Limits 4) comes into conflict with the common usage of adult as someone who is the age of majority. O’Neill examines a great number of factors that can challenge the conflation of adult and being in the maturity of one's faculties, such as when “we are very young or very ill, mentally impaired, demented or unconscious, or merely frail or confused. Often people cannot give informed consent to emergency treatment.” (4) She also talks about the limit of informed consent between “adults” in relation to public health concerns, situations of duress or constraint, and limits to communicating complex/specialized knowledges.
O'Neill suggests that morally significant consent might be defined as “consent to the deeper or more fundamental aspects of another’s proposals.” (O’Neill, Between 258) This means that consent given under a deceitful maxim is invalid. The consenter must be informed of the underlying motivations of the proposer. In order to treat others as persons we must allow them the possibility to either consent or dissent from propositions that do not veil ulterior motives. It is up to an initiator to do all that is in their power to allow for a consentee to have the ability to opt out, which might include negotiating other options or simply accepting rejection. O’Neill makes it clear that “an initiator who presses on in the face of actively expressed dissent undercuts any genuine possibility of refusing the proposal and rather chooses to enforce it on others.” (259)
In acting according to moral law, we are commanded that respecting others as persons means to take into consideration some particularities of that person. This is not the same as a “personal touch.” This means while negotiating consent we are to take seriously the other’s particular cognitive limitations and imperfectly rational nature, which will affect their ability to consent/dissent in various circumstances. Further, O’Neill considers how we need to have policies of respect for other people in terms of their own autonomous maxim-setting and projects. This sometimes means that we need to allow others to have space in which they can pursue these for themselves. We are directed to avoid attempting to make other’s subjective ends our own (through mechanisms of coercion) and show love for others through beneficence. Moral consent might require us to take up a form of communicative action in which we can inform ourselves, as proposers and consenters, as to what aspects of the circumstances are significant.
Habermas’ Communicative Action
Jürgen Habermas’s two volume treatise The Theory of Communicative Action develops a concept of communicative rationality that is not tied to subjective and individualistic premises. Habermas’ notion that deliberative communication can be approached without subsuming one perspective into another, a problem of orthodox dialectics. Habermas, influenced by his colleagues at the Frankfurt School, attempted to reconcile the contradictions of modernity through continuing a refined enlightenment project. He believed that consensus through communication has potential for a radical form of intersubjective negotiation.
Mirroring Kant’s Kingdom of Ends, Habermas describes an ideal communication community, through which we can establish a logical, universal discourse which transcends the specific order within the members of the community, in any specific conflict. This type of community can only be realized through rational procedure. (Habermas 96) If Kant’s maxims for reasoning are “1. Think for oneself, 2. Think into the place of the other [person] (in communication with human beings), 3. Always think consistently with oneself,” (Kant, Anthropology 333) then Habermas would emphasize the parenthesized part of the second maxim, which demands that one must also communicate rationally with others in order to understand their perspective.
Habermas’ understanding of autonomy is resolutely Kantian. If the ability to “self-legislate” is born out of self-individuation, we must recognize that this phenomenon is inherently social. Individuals, according to Habermas, “learn to orient themselves within a universalistic framework, that is, to act autonomously.” (Habermas 97) Identity can only occur when the individual is able to differentiate the particular from the universal. This is explained as such: “The demand is freedom from conventions, from given laws. Of course, such a situation is only possible where the individual appeals, so to speak, from a narrow and restricted community to a larger one, that is, larger in the logical sense of having rights which are not so restricted.” (97)
Habermas speaks of a communicative ethics with both a systematic and evolutionary intent. It is systematic in its ability to be universal, however, it is developed from an evolution of particulars. Formally, a mutual understanding through communication is built into the development of language, and “it is no mere demand of practical reason but is built into the reproduction of social life.” (96) Because of the differentiating function from the universal, Habermas says of the rational individual must be able to have a comprehension of the “voices of the past and of the future … we must assume that this general voice of the community is identical with the larger community of the past and present.” (98)
For Habermas, rational communication is integral for moral deliberation. I see this as being especially pertinent when it comes to the ways in which sexual and intimate relationships are especially prone to failures of consent. These cases are more insidious than the blatant violations of consent in rape and physical abuse. As O’Neill explains, these cases differ “from other forms of coercion in that, because of the implicit nature of much sexual communication and social tradition which encourage forms of sexual duplicity, it is unusually had to be sure where there has been coercion.” (268) This brings us to a case study in which a community has deemed intimate relationships as being an insurmountable domain of irreconcilable difference.
Men Going Their Own Way: A Case Study
I will use a group called Men Going Their Own Way (MGTOW) to illustrate how refusing to engage in responsible dialogue about consent in sex and intimate relationships exacerbates the non-resolution of issues they identify, such as fraught gender relations. They consider themselves, to some degree “a reaction to recent cultural shifts”. (MGTOW) It seems that the consensus is that they have decided to forego intimate relationships with women as a statement of abandoning restrictive gender roles. MGTOW is an online movement of men who describe themselves as embodying:
I have attempted to find common ground with this group to illustrate the commonalities between their concerns and that of consent culture. That being said, it is exhausting to read hundreds of asinin, emotionally stunted, resentful and sexually frustrated posts that construct an American male-centric grand narrative of a conspiracy-level battle of the sexes. Especially on their reddit forum (reddit.com/r/MGTOW), they have developed a subculture that does not allow for an access point, unless you are predisposed to their ideology. It is nearly impenetrable for anyone outside of this group to engage with critically or propose reconciling actions, lest they make themselves the target of over twenty thousand forum subscribers. I do not condone this form of chauvinism. Regardless, while attempting to dissect these posts for legitimate content, I found there to be some notable points. One of the most common concerns of MGTOW is the inability to equitably negotiate the terms of their intimate relationships with women.
We can categorize these concerns as also pertaining to the ethics of consent. One of the most common grievances is the way men are treated in the economics of marriage, divorce, child-custody battles. Many express distress in the ways they felt like they were coerced by female partners into the institution of marriage/child-rearing, and when they found themselves in the fall-out of these relationships, their partners were given the upperhand as the presumed victims of these institutions. They demonstrate indignation in their experiences of being used as a mere means to the ends of another.
While centering the welfare of women, activists should aim to address the rising status of women equitably. There appears to be a certain form of asynchronous development as women gain new social power, and simultaneously traditional gender expectations remain in cultural at large, and especially in the domain of heterosexual relationships. This leaves some men with a fear of loss of control, a crisis of male subjectivity, and a legitimate desire to restructure masculinity without the toxicity of expected gender roles in intimate relationships.
I do believe that the consent of these men have been violated, even if the MGTOW avoidance of women is negligent, reactionary and does not treat the underlying issues at work. Like the woman they are rejecting, they did not consent to living in a culture of repressive expectations for one’s role in society. Nor, could they find reasonable lines of communication in order to come to compromises that didn’t turn them into a financial utility of their female partners. Here lies the kernel of revolutionary knowledge: the recognition that the structure of social relations interferes with our individual abilities to negotiate the dynamics of our intimate lives and consent.
MGTOW generally consider sex-work to be an appropriate substitute for meeting sexual needs outside of traditional relationships. Their advocation of using sex-work illustrates two important things. Firstly, they are capable of interacting with women they are sleeping with in regards to consent, even if it is a more transactional circumstance than in intimate relationships. Secondly, even in their more succinct analysis, MGTOW fails to critique neoliberal capitalism as a base structure that provides the conditions for the cultural ideology of gender relations. Why can these men successfully negotiate consent with sex-workers but fail to act in accordance to these principles in intimate relationships? As self-proclaimed libertarians, MGTOW do not successfully question their material conditions and the economic structures that uphold the cultural values that they wish to admonish.
Here, libertarians appropriate and debase the term “autonomy” as one of their ideals. MGTOW misunderstand the meaning of this term to mean “free from the constraints of law” when in reality, it translates into English as “self-legislating”, or otherwise described by Kant as being able to set one’s own laws (through universalizing principles) and follow through with these (with respect towards all other rational beings as ends in themselves.) Built into the very meaning of autonomy is the demand to not make exceptions for oneself, which would render the maxims of action as invalid. Hypothetically, autonomy might mean that a person must reject normative social values out of self-respect, but this is only in the case that their maxims can follow the moral law.
I fear that many MGTOW make themselves exceptional in their maxim setting. On both their website and Reddit, MGTOW participates in the disrespect of others through expressing contempt, disdain, mockery, and detraction of women. It is simply incoherent to claim that you are acting autonomously in the rejection of intimate relationships with women while not acknowledging those same persons as self-legislating rational beings. Being a victim of a culture of non-consensual social regulation does not exempt one from following the moral law.
I wish to not only use Habermas’ theory is as a framework to apply Kantian principles of consent but also to activate his method within my own work, through attempting to find a universal truth to two seemingly irreconcilable movements. There are aspects of the MGTOW that overlap with the concerns of consent culture, and these common issues are more prevalent than either of these parties acknowledges. O’Neill’s work towards a critique of liberalism help to illuminate the limits of our existing definition of consent, and help lead us towards a more extensive critique of our social conditions. Coming to a common understanding of the morality of consent will shape our ability to turn communicative action into justice, rather than allowing conflicting self-interest define our ability to relate and address the suffering of others who’ve had their consent violated.
In her text “Deformed Desires and Informed Desire Tests”, Anita Superson makes an important point in her conception of how we should approach morality when dealing with those who have had their dignity eroded by oppression. Oppressed people are led to believe by their social conditions that they are less than intrinsically dignified, which makes them challenging subjects in Kantian ethics. Superson’s remedy includes deliberation under which, in her example, a woman becomes imaginative about her desires in order to see that her deformed desires (that replicate normative cultural systems) are irrational. In addition to this, deliberation should lead her to become a visionary about herself, seeing herself as having equal worth to others, this vision “subsequently will be reflective from the ground up. [...] she will see her opportunity and choices in a new light, and see herself as part of the moral community as an individual deserving of respect.” (Superson 120)
I want the underscore Superson’s point as I believe it crystallizes a concern of both MGTOW and proponents of consent culture. We must center others’ dignity as rational moral agents at all times. This is one of the fundamental components (alongside materialist concerns) of justice. This relates to a common project of consent as it forces us to consider the compromised state of our potential intimate partners (in terms of their perception of self-dignity), and at the same time demands us to treat them as moral equals.
In What is Enlightenment? Kant says that it is exceedingly rare that individuals come to enlightenment on their own accord, and “that a public should enlighten itself is much more possible; indeed this is almost inevitable, if only it is left its freedom.” (Kant 17) It is completely reasonable to be critical of the conditions that allow our legal system to be ineffectual in the face of blatant sexual assault. By the same token, we should consider how similar conditions leave us unable to deal with the specific concerns of Men Going Their Own Way. The move towards an enlightened, just society requires a communal effort. As Habermas delineates, this means considering ourselves as a member of an ideal communication community, much like Kant’s Kingdom of Ends. When I imagine this realm for myself, both consent culture and properly autonomous single men are a well-integrated faction.
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