I write this post to share a paper/concept/direction of thinking that I find both intellectually compelling and that resonates with my lived experience. The paper is “Sex, Law, and Consent” by Robin West, and you can find a copy of it here.
West starts the paper by outlining what she describes as the “liberal legalist paradigm” as it relates to sexual relations and the law–the heart of which is the “distinction between consensual and non-consensual sex.”
That distinction [between consensual and non-consensual sex] serves two central purposes. First, the absence or presence of consent demarcates, broadly and imperfectly, sex that should be regarded as criminal from that which should not.
The second purpose, implicit rather than explicit, served by the distinction between consensual and non-consensual sex, within liberal legalism, is rhetorical rather than legal, and might best be called that of “legitimation.” Liberal legal scholars typically, if not invariably, urge that consensual sex not only should not be criminal, but that legal regulation of any sort, including the imposition of civil sanctions, and perhaps non-legal community disapprobation or political critique likewise, is uncalled for.
West critiques this paradigm by arguing that consent, though perhaps an adequate legal framework for demarcating rape from sex, leaves under-theorized sex that is consensual but may not be desired.
What is sex that is consensual but not desired? This is sex we have because to refuse would render a situation too socially awkward (which is the situation I am most personally familiar with). This is sex that we do not desire that we have for “friendship, for love, as a favor, to cement trust, or to express gratitude.” This is sex we have to win the approval of our peers or to gain a promotion.
West is concerned about the particular harms of having consensual, but undesired, sex. Especially over an extended period of time, West is concerned that this type of sex can implant in one’s body “the truth that [one’s] subjective pleasures and interests don’t matter” and can alienate women from their desires.
On one hand I am skeptical of West’s suggestion that desire is a coherent and inherent, and somehow easily distinguishable from the other reasons we may engage in consensual sex. I find the radical feminist critique that sexual desire is socially constructed to be far more compelling.
On the other hand, my own sexual experiences have put me in situations where I have felt the alienation that West describes. And up until my reading of this article, I did not have the language to describe how I felt and had no way of evaluating the potential harms of my experiences. For shining the spotlight on this under-theorized realm, I am grateful, and I hope that this piece will speak to the experiences of others as well.
One way to think about the new rape law in California is that it seeks to redefine consent such that it is more aligned with and expressive of individuals’ desires.