Sexual politics- Consent vs Joint Enterprise

Prof. Fischel asks in Aeon-  'what do we consent to when we consent to sex?'
The answer is we don't consent to sex any more than we consent to, as opposed to propose or eagerly embrace, any spontaneous type of joint enterprise of a potentially mutually very beneficial sort.

Consider the following-

Consent, in ethics and political philosophy, an act of permitting something to be done or of recognizing some authority. Granting consent implies relinquishing some authority in a sphere of concern in which one's sovereignty ought otherwise to be respected

Does this capture anything at all about the sort of sex people want to, perhaps need to, have?
No. The thing is too clinical. Consent is what we give to a dangerous surgical procedure which, however, may represent our only chance of remaining alive.

Sex is either a joint enterprise of a particular type or else is a transaction whose governing norm is an equilibrium in a repeated game. It is governed by economic, not legal, considerations save at its repugnant or ridiculous margins.

It may be that some grey area of the law or some worthless type of Grievance Studies finds it convenient to pretend sex is some unpleasant sort of medical procedure. As for 'sovereignty'- why pretend anything of the sort obtains in connection with sex? After all, a lot of sex happens within relationships where ultimately Emperor, the Baby, bouncingly appears and servitude never seemed sweeter.

What happens if a pedant ignores this basic truth about sex and pretends that it is actually a gruesome type of medical operation? The answer, it seems, is that he writes shite like this-

Turned around, the question becomes: what kinds of deception or nondisclosure ought to be legally impermissible for procuring sex?

This is a question only relevant to actual lawyers. They can make money arguing that a rich guy did not rape a young girl. He accidentally tripped and fell upon her and his dick got stuck in her vagina.  In that particular case, consent was irrelevant- the Millionaire was found not guilty.

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.

Why should we be 'seriously concerned' about any such thing? If Feminists start gassing on about rape, get your own back by gassing on about how people don't wash their hands properly after going to the bathroom. This is what is causing terrible epidemics like the coronavirus. I've lost a dear friend to that plague! For God's sake, wash your shitty hands you shitty shitty people! Do it right now! And not just your hands. Why is your nose so brown? Scrub it with soap you dirty little pervert.

If others cause a nuisance by getting worked up about some crazy thing, revenge yourself by creating a countervailing nuisance. Suggest that they have poor hygiene.

On the other hand, in milieus where a transactional type of sex prevails, it may be that our custodial or pastoral duties requires us to adjudicate questions of the following sort-

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?

Rape is a legal term. This may be rape by deception in certain jurisdictions. Of course, if David's family has money, it may turn out that he accidentally fell upon Debbie.

If we are not lawyers, should we care about how rape is defined? Is there a public interest in our puzzling over this matter?

No. We are better off thinking about how to make sex better and knowing that anything that smacks of coercion or fraud or a bribe isn't the way to go.

Is some stupid professor says 'it is important that we be clear as to what we consent to when we consent to sex,' we should reply 'we shouldn't consent to sex. The thing isn't a medical procedure. Unless we are actually lawyers or members of a Jury, we shouldn't bother thinking about scenarios like the following- '

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. 

This example is silly. Everybody knows that the amputee could earn good money using his stump to fist connoisseurs of that practice. Thus, this scenario decomposes into a variety of bargaining games involving B list celebrities and shady Hollywood agents. At least, that is what is happening in the Netflix series I think I'm mindlessly binge-watching right now.

In real life, Criminal law already exists in a stare decisis manner. It may weigh in on one side or the other of this dispute. It may send both parties to jail where the large carrying capacity of their rectums may gain them superior status. But that is purely a jurisdictional matter and only of concern to concerned officers of the court at a particular time and place. Whether some stupid Professor sees a 'reason' or not is completely irrelevant.

The Law may criminalize certain sexual acts. Some obscure branch of Grievance Studies may pretend that Sexual Injustice of some glaring sort disfigures the world and that their own worthless maunderings help combat this imaginary evil.

Thus a pedant with a worthless book to sell may write-

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.

So, this guy is upset that some jurisdictions will imprison a person who has sex with a heterosexual woman by pretending to be a man with a penis. He thinks some terrible type of discrimination is involved. It keeps him up at nights.

Sadly, his sleepless cogitations have not helped him formulate a good argument. He is equating a good-faith joint enterprise which fails to produce the desired outcome for both parties, to a situation where there is no joint enterprise. There is bad-faith and a deception of a possibly cruel and repugnant type.

If a woman expecting heterosexual sex is disappointed because her partner's organ rise to the occasion, then a joint enterprise has failed. There may be recriminations. But there is no criminal offence. By contrast, if her partner is not a man and thus can't provide heterosexual sex, there is no joint enterprise. There is merely deception of a type which may be criminal in certain jurisdictions.

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.

But it isn't our problem. It is a problem for sleazy lawyers and Grievance Studies professors with bizarre beliefs.

Look what happens when one such tries to offer a solution-

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.

Since we live in a world where technology is evolving very quickly, any existing set of 'explicit conditionals' will fail to protect vulnerable people. Suppose the following explicit conditional obtains- you must make no misrepresentation of yourself to procure sex. One way around it may be by using some new 'app' such that misrepresentations about you are made by innocent third parties. So, you get off on a technicality.

There was a case of a scumbag who would convince women they had a terrible disease which it would be very costly to treat. However, they could get the cure through sex provided they paid a thousand dollars. Currently, it may not be possible to convict this guy of rape in some jurisdictions but he can be put away for fraud. Our idiotic Professor would let this perp walk. True, he could be sued for damages but chances are he is bankrupt. Anyway, his victims can't afford court fees and bailiffs and so forth.

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).

For reasons of Public Health, 'stealthing' may be criminalized. Juries would convict if the risks of STDs were dwelt upon by the prosecutor. By contrast, it is doubtful that any jury would send David to prison.

Tort law is highly elastic. But it is expensive.

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.

Tailoring the law is useless if Juries won't convict because they think the punishment does not fit the crime. Ordinary people may happily vote in a Jury to incarcerate a big brute who beat his victim. They may not do so if they think they are dealing with a respectable man being accused by a harlot of dubious reputation.

Second, it is important to understand that some questions are or should be unanswerable as legal truth claims.

Nonsense! Suppose there is one question of this sort. Then, unless there is some way of proving that no other question's answer hinges on the answer to this question, all questions are- at least potentially- unanswerable.

As a matter of fact, where there is a right against self-incriminating, then it is the case that one is not obliged to give the answer to at least one question. But this means there is a Right to Silence. It would be foolish not to avail of oneself in toto.  However, in England & Wales, there has been some pushback against the scope of this Right.

What this means is that if one question is unanswered then no question is answered. Other witnesses or items of evidence carry the probative burden.

This does not mean that, at the end of the judicial process, any question which can give rise to a legal truth claim remains 'unanswerable'. But it does mean that the Court may decide the facts of the case with recourse to legal fictions. In other words, the Law may hold as True something known to be False. But that is how the 'artificial reason' of the Courts proceeds.

When it comes to sex, there should be no legally actionable way to answer the question: ‘Are you a man?’

This is the opinion of a very small minority of people with a bizarre view of the world.
One might as well say 'when it comes to my trial, there should be no legally actionable way to stop me fucking the judge in the eye-socket'. There may be a few people who hold this view, but they are unlikely to prevail.

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.

This is true only to the extent that the law can't bring any clear answer to the question- 'Why according to the Habeas Corpus of my Certiorari cock should it not be allowed to sodomize the eye-socket of the Judge? It's like my basic human right according to the United Nations of America!

One should not be convicted of sexual assault for failing to live up to a phallocentric standard of manhood.

Nor should one be convicted of raping a Judge's eye-socket, thus causing her death, simply because one is failing to live up to a Judaeo-Christian standard of acceptable behavior.

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.

People who want to rape the eye-socket of Judges agree that 'consent' is a crappy metric for sexual ethics. It is also a crappy metric for determining if people you robbed and killed handed over their money to you of their own free will.

It bears reminding that legal responsibility is not the same thing as moral responsibility.

Which isn't the same thing as genuine responsibility. Most people who think they have a moral responsibility to talk worthless shite do not in fact have any genuine responsibility to do so. Why? Because they are evil cretins.

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.

Which is why sex should be considered a joint enterprise of a certain sort, rather than something to which one consents.

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.

So, think of the thing as a 'joint enterprise'. If you want to grab their genitals make sure you are displaying yourself in a manner such that they may make the first move.

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 Adam’s consent (affirmative consent!) absolves Peter 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.

Very good of you to say so, I'm sure. What's next? Will you tell us you don't think Trump should blow up the world if someone asks him nicely to do so? What about eating shit? Will you admit that you don't think the practice should be made compulsory?

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.

Thinking in terms of 'joint-enterprise' clarifies all this. There can be 'joint enterprise' in sex within a species. Dogs and Men have had a long running joint enterprise to do with shooting birds out of the air and dogs 'fetching' them from where they lie stricken. Men protect cows from being eaten, but then eat them. This means there are more cows. By contrast, screwing your pooch or buggering a bovine isn't the type of behavior which helped our species rise up to its present lofty eminence.

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.

The author knows whereof he speaks. However, thinking of transactions not as zero sum games but as positive sum 'joint enterprise' type relationships, enables people to stop doing stupid shit.

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.

This particular branch of Grievance Studies has been going since I was a kid. Stuff it thought 'critical' then is still 'critical' now. But everybody else has already moved on and found ways to make sex and work enjoyable and mutually rewarding. Meanwhile these cretins are still droning on about '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.

Try sidling up to someone in a bar and saying this.

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.

I don't know about you, but I didn't find anyone to 'collaborate' with me when I put this up on AshleyMadison.