We’re in an ongoing cultural moment for discussing the sexual abuse of power. Whether the Church, Hollywood, or Congress; Roy Moore, Harvey Weinstein, Kevin Spacey; or #metoo, Catherine Deneuve, and Call Me by Your Name: all invoke the themes taken up by Susan Erlich, Diana Eades, and Janet Ainsworth’s thirteen essay edited volume, Discursive Constructions of Consent in the Legal Process (2016), and Joseph J. Fischel’s monograph, Sex and Harm in the Age of Consent (2016).
Law constructs consent, the consenting subject, and the offender. In so doing, law risks obscuring other social realities that impinge on the moral claims we want consent to fulfill. Such is the argument of the two books reviewed here. People tend to sacralize law: a law already on the books is a “sacred cow” that people are invested in it because they can use it — either as an anchor point, a loophole, or more commonly in a world of punitive morality and moralizing, as a stick to beat others with, while asserting their own righteousness — or masking their lack thereof.
But law and morality are two different things, and we do well not to confuse them. Although one can, and indeed often must, serve the other, the question is how and to what ends. What moral vision of society will our laws serve to create? Where does legislation go wrong? Erlich, Eades, and Ainsworth probe the “how” by examining the verbal deployment of consent, the legal language framing such linguistic acts, and the social position that contextualizes actors in situations of consent and non-consent. Fischel, in contrast, treats the latter two issues, pointing out that consent cannot serve all the moral ends we’d like it to serve: a focus on mere consent obscures some sexual harms while creating new ones.
As professors of linguistics and law, Erlich, Eades, and Ainsworth frame their approach to consent within a linguistic analysis of how law both constructs and contests this foundational principle of Western liberalism. The cumulative focus on what is common to legal consent across disparate legal settings in Australia, the U.K., U.S., and surprisingly, the Netherlands, succeeds in its inclusive approach by moving beyond sexual consent to include social contract political theory, Miranda warnings, and rights to personal genetic information.
Their volume is organized into four thematic sections of three chapters, each section corresponding to an aspect of consent relevant to either the definition itself or to its underlying moral motivations as a concept the law intends to support. This thematic development weaves the four sections into a cogent whole through consistent attention to how language and its absence structures consent as legally known. Consent, in this context, exists as much in both the interstices of social fact and the long shadow of history as in court transcripts, police encounters, and individually signed forms.
The first two sections respectively problematize the legally defining aspects of consent: Free and Voluntary, and Informed. The first section probes the scope of “free” and “voluntary,” juxtaposing the court ideal of text with sociolinguistic realities to open up the question, “What contexts imbue consent with meaning?” For example, Aboriginal Australians’ history of interaction with the police effectively limits truly free consent to their demands, a topic treated in chapter 4. That chapter (along the lines cited in Commonwealth v Jimmy Warren (475 Mass 530; reversing 87 Mass App Ct 476 and citing Agnes and Rubin, dissenting)) could easily provide cross-cultural material for police reform advocates whose focus is on the experiences of Black and Native communities in North America, especially at the hands of U.S. police.
The previous chapter, Chapter 3, is also the most pertinent for the issue of sexual consent. “Post-penetration Rape: Coercion or Freely Given Consent?” by Ehrlich, is a good example of how the legal process shapes particular understandings of consent and its scope. Erlich examines how the appellate case Maouloud Baby v the State of Maryland (Court of Special Appeals of Maryland 2005) transformed an initially straightforward rape case into a scenario that begins as consensual and only after penetration becomes coercive. The case involved a woman who was raped in a car by two acquaintances; when the second of the two went to “take his turn,” the woman said he could penetrate her if he promised to stop when she told him.
The metamorphosis into a post-penetration rape case was achieved, Erlich argues, through two legal moves. First was the basis of textual hierarchies on which the appellate system is based. Generally, the appeals review relies on transcripts from the trial; in Baby, this textual evidence was isolated from the social context of the facts of the case in such a way as to imply voluntary consent. This construed fact was then paired with a second process, the text of a question the jury submitted to the trial judge, asking whether it is considered rape if the woman initially consents and then at any time the woman says “stop.” The judge directed the jurors to answer that question themselves, and did not direct them to Battle v Maryland 1980, which declared post-penetration rape (where a woman gives consent and then withdraws it mid-coitus) a legal impossibility; the defense launched its appeal on the judge’s refusal to cite this precedent. (That precedent was ultimately deemed not the holding in the appeals decision of 2007.)
Positioning herself in line with other theorists including Shulhofer (1998), Caringella (2009), and Tiersma (2007), Erlich demonstrates through this case that rape law reform is susceptible not only to cultural mythologies, but also to linguistic ideologies. In Maouloud Baby, language becomes detached from its social and interactional contexts to fit the linguistic ideology of the appellate process, erasing the unspoken social contexts in which people submit to sex (or other acts) to avoid more severe instances of violence. “Ignoring the contexts of use in which these speech acts of ‘agreement’ are embedded,” Erlich rightly points out, “is to ignore what is at the essence of voluntary consent” (Erlich, Eades, and Ainsworth 2016:66). Not all verbal assent, in other words, is voluntary: context matters.
The second section complexifies the idea of “informed” consent by analyzing the uninformative but legally mandated process of ritualized consent using forms and phone scripts. These “tickbox consent” scripts are often deployed to a clearly disengaged audience unable to alter the details of the consent process or knowledgeable about its legal reach. Like the hierarchies of text in the appeals process, the resulting language of these tickbox consent forms obscures socially informative details about a person’s willingness or reluctance to assent, and undercuts the moral claims of consent in the legal process. In a limited sense, this is the objection some women — Catherine Deneuve among them — raise about the #MeToo movement, which is itself a linguistic construct. While aimed at highlighting the pervasive reality of sexual exploitation and violation among us, at the same time it obscures the range of violation it encompasses. Turning #MeToo into a hashtag “tickbox,” in other words, threatens to undermine the moral claims of the movement.
The third section of Erlich, Eades, and Ainsworth will be most of interest to anthropologists and others engaged in cultural studies, exploring as it does the construction of the “consenting subject”: how individuals consent to certain identities but not others and how people are directed towards particular subject positions with their proper habitus vis-a-vis others.
Chapter 10, “Nonconsent and Discursive Resistance” by Philip Gaines, an English professor at Montana State University, analyses how one subject, Republican Senator Larry Craig from Idaho resisted the legal construction of himself as a sex offender for soliciting sex in a public restroom. Using this specific instance to examine the degree to which an arrested subject will consent to a police officer’s account of events, Gaines shows how the Senator refused consent to any fact, even the “questioning authority of the officer” (Erlich, Eades, and Ainsworth 2016:235). Instead, in a step-by-step process the Senator reformulated each element to create a new, oppositional narrative that could go on record in his favor. Such reformulations entailed creating alternative, yet plausible identities and motivations for otherwise suspicious behavior in a way that would not jeopardize his standing as a public figure: his social context necessarily resisted consenting to any legal construction to the contrary. A more recent example to which this process applies is Kevin Spacey’s decision to come out in the wake of sexual harassment allegations against him: Spacey appropriated the narrative by consenting to that portion of it which identified him as gay in an attempt to focus the narrative on that element, and resisting the more socially and professionally problematic narrative of sexual misconduct.
Both sections three and four of Erlich, Eades, and Ainsworth’s collection take a more situated perspective to develop the discursive contexts in which consent is given by probing how those contexts constrain actual freedom to consent or not consent depending on the consenting person’s social position. The fourth section, however, focuses more closely on how coercion is subtly deployed to convince subjects to give up their rights. Legal theorists, those interested in the judicial process, and those seeking better community-police interactions may be interested in this section’s exploration of the coercive force of cautions, which treats the ways people negotiate their rights to silence without jeopardizing a non-criminal, presumed-innocent position.
Overall, Discursive Constructions does a good job reminding readers of how legally-shaped consent practices are broadly and regularly deployed in daily life. The volume could have benefitted from a conclusion that tied together implications raised separately in individual chapters. For example, the implications of “tickbox” consent for sexual consent on campus is not explored in the introduction; it might have made a very interesting concluding discussion.
If the chapters collected in Erlich, Eades, and Ainsworth’s Discursive Constructions seek to highlight the erasure of the social through the legal hierarchy of texts and language, in Sex and Harm in the Age of Consent Fischel probes the social to ask further whether consent is really the best way to discuss sexual harm at all, specifically when it comes to adolescent sexuality — the titular “age of consent.” Noting that consent is “flimsy,” and a necessary but not sufficient guarantor of sexual non-harm, Fischel sheds light on the problems eclipsed by legislating what is at the root a moral concept. “Consent,” Fischel argues, “cannot do what we want it to do.”
Fischel critiques the legal binary of consent and non-consent, arguing that we as a society must overcome our moral panics and ensure that sex retain its multifaceted social character, if we are truly to grapple with the issue of sexual harm and the cultivation of responsible sexual health.
For Fischel, a professor of women’s, gender, and sexuality studies at Yale, the driving issue differentiating harmful and non-harmful early sexual experiences is the context and activities, often bounded by law, which give (or absent) a sense of “sexual subjectivity” to young people (Fischel 2016: 174). Fischel’s legal aim is thus not “how can law solve the problem?” but: “how can law reconfigure it?” (Fischel 2016: 26). “How else,” Fischel asks, “might we regulate sex and harm?”
Bookended by a thorough and engaging Introduction (‘Sex and the Ends of Consent’) and a Conclusion (‘Other Sex Scandals’) that incorporate material that furthers reflection on the previous four chapters, Fischel opens with a series of “informally provocative” vignettes to give an overview of the social deployment of SORN (Sex Offender Registration and Notification) laws. This provocation invites the reader to consider how the specter of moral panics, in combination with the matrix “innocence-child-offender,” drives legislation which veils other ways of thinking about sexual harm, particularly “vulnerability-adolescence-agency.” Making “the case that consent, innocence, and predation are the nationally organizing terms shaping, and limiting, our ideas of sexual harm and freedom,” Fischel argues that “these terms are — when unreconstructed — damaging for young people, for sex offenders, and for sex” (Fischel 2016: 132).
The recent accusations against Harvey Weinstein and Matt Lauer bring broader issues to light: some harms extend beyond consent. Tacit or acquiescing consent laws do not clearly encompass sexual harms when it comes to coercion and career, for example. While a sexualized workplace as a hostile workplace is its own legal issue, legal consent can only touch its edges, illustrating just one limit that consent has in addressing the gamut of sexual harm. The lack of legal sanction is redressed more often right now by career and social mechanisms, as when employers have removed the likes of Weinstein, Lauer, and Spacey from their productions. In the moral simplicity of the U.S., the personal acquaintances of men like Lauer were thrown into confusion: how do you reconcile knowledge that a person is imperfect and morally flawed, with deep personal affection for the person and admiration for their work? Moral complexity, Fischel seems to argue, is needed if we are to secure the sexual health, and especially if we are to reduce the sexual harm, of young people as they learn to negotiate the world of sexual relationships.
Fischel therefore first confronts the issue of moral immaturity and gut level reactivity to sexuality. Framing the issue in terms of a moral panic (as described by Cohen 2002) surrounding not only inter-generational sex, but teenage sex more generally, Fischel wades beyond the shoreline into this roiling socio-cultural sea by confronting the issue of innocence and predation head on in chapter one, “Especially Heinous: Politics, Predation, and Sex Panics.” Using the so-called “witch hunt” TV show To Catch a Predator as reflective of the cultural mood of the early 2000s, Fischel points out the ways the predator-innocence dichotomy obscures not simply other kinds of sexual harm, but even alternative terms for discussing such harms. Gut level morality, of course, merely valorizes unreflexive moralizing, a vice medieval theologians and ancient philosophers generally sought to avoid.
In contrast, and from a more reflexive position, Fischel problematizes the naive idea that once teenagers turn 18, they magically acquire the experience and capacity to make good, sexually autonomous decisions after having been legally denied such responsibilities for some years. Hinting at a theme picked up in chapter four, Fischel observes, “It may be that sex across age with girls and sex across age with boys raise different questions, and raise different questions because of gender and sexuality difference” (Fischel 2016: 50).
Drawing out the “ghost of gayness” that haunts contemporary pedophile witch hunts, and continuing the theme of binaries, Fischel advances the thesis in Chapter Two, “Transcendent Homosexuals, Dangerous Sex Offenders,” that gayness and pedophilia are discursively and in tandem produced by laws which enshrine cultural moments. Just when homosexuals have become emancipated (e.g. through marriage rights), the law has doubled down on pedophiles — including teenagers convicted of statutory rape (e.g. high school students having sex with one another). Fischel suggests that thinking in dichotomies like “consenting-homosexual” versus “predator” (who ceteris paribus must represent nonconsent) implicitly prevents enacting culturally transformative policies because critical thinking about sex harm cannot move beyond the predator/offender concept to a sex/relation concept more generally (Fischel 2016: 56, 201).
Reading a set of laws from the 1990s and three different court cases from the early 2000s, Fischel argues that the homosexual is now exempt from a triangulation of legal narratives (recidivism, acts as identities, trivialization of liberty claims) that legally construct the sex offender (Fischel 2016: 81). In Fischel’s view, “what mechanizes these laws and their judicial defenses is an absence of measured theorizing on harm, sex, and power, an absence that has become a crisis as the homosexual is no longer fair game for subordination and projection, an absence that is then filled in by moralized and fictive certainties and reliably predictable tropes” (Fischel 2016: 74).
Having shown the inadequacy of such binaries, Fischel opens a new frame for discussing sex harm in Chapter Three, “Age and Sexual Consent.” Fischel aims to recalibrate anxieties over young people having sex by considering the interplay of vulnerability and emerging autonomy. Fischel is concerned foremost with two factors. First, asking what sort of laws allow an adequate range of options to young persons; and second, focusing on how to regulate relations which promote a capacity for creative interaction among adolescents and between adolescents and adults (Fischel 2016: 138). Here Fischel reflects on how age, gender, and sexual orientation inflect how people are differently socialized to sex. Gendered inequality makes a difference to sexual subjectivity, a subjectivity that current laws are ill-equipped to recognize. At the end of the chapter, Fischel suggests four reforms to existing laws that might reconstruct autonomy and account for the vulnerability he articulates through the chapter’s dialogue with theorists including Oberman (2000), Archard (1997), Wertheimer (2003), and Shulhofer (1998).
This is by far the most theoretically dense portion the book, as Fischel chisels out the key concepts of vulnerability and (socially-embedded) autonomy, and he revisits the idea of autonomy in the final chapter, moving it towards a more agentic position. Rejecting the valuation Shulhofer advances for sex and body in Unwanted Sex (1998) as entities apart from history, culture, and position, Fischer attenuates passive vulnerability towards a desirous, but still-in-formation volition, advancing not only right to say “no,” but also a right to make sexual decisions. Such decision-making is supported by developing a young person’s autonomy, a capacity Fischel argues is generated by, and the normative aspiration of, social relations. As such, it can operate in information-insufficient settings. Opposing the “reduction of sexual autonomy to individual (present tense) choice rather than relational (present and futural) possibilities,” he agrees with Turkheimer, who suggests that despite the vulnerability inherent in power differences in some sexual relations, “in most cases, we better respect sexual agency when we endorse rather than vitiate consent in information-insufficient, power-differential scenes of sexual exchange, since information insufficiency and power difference are ineradicable” (Fischel 2016: 205).
Chapter Four, “Journeys of Gendered Adolescence,” builds on the recognition that gender makes a difference when thinking about sexual agency and the self-creation of subjectivity. Fischel advances the principle of peremption, drawn from Pettit’s use of the idea of “domination” in On the People’s Terms: A Republican Theory and Model of Democracy (2013), to underpin legal thinking about adolescent sexual choices and recognize that sexual harms go beyond the popular idea of predation committed by the legally constructed “sex offender.” Just as “domination [in Pettit’s analysis] disqualifies the adult as a political agent,” so also does peremption disqualify the adolescent as a sexual agent. Whereas preemption “frustrates” potential pursuits, peremption is the uncontrolled disqualification of possibility, not a mere frustration.
To uncover “other kinds of sexual harm when we substitute the gendered adolescent for the child, the homosexual, and the sex offender, and when we substitute the figuring out of interests for interests that are predetermined,” Fischel uses three films to illustrate the idea of peremption of young sexual agency: Doubt, Thirteen, and Superbad (Fischel 2016: 192).
Doubt (2008) perempts Donald, a young queer boy, by his being “overscripted” and given no significant voice in either the theatrical play or film, quite in contrast to the preempted Father Flynn. Donald is given no space “to figure out his interests, to forge alternative possibilities.”
In Thirteen (2003), the other edge of peremption is noted: “Some experiments in living,” Fischel observes, “like relentless drug intake or deeper and deeper cutting, evidently and intensively disqualify future possibilities — relational, social, and sexual” (Fischel 2016: 171, 173). Here, agency is figured by absence of models. Tracy, the protagonist, spirals downwards into addiction and self-harm until her mother ends that spiral, stopping the trajectory of self-peremption that Tracy herself has set upon.
Finally, in Superbad (2007), three boys try to figure out their friendship in the absence of social scripts that permit coexisting heterosexual coupling and homosocial bonds in adulthood. Peremption figures in the fact that these boys’ social scripts are predetermined, rather than left open for them to figure out — another denial of subjective self-creation.
This mix of language, law, and sacralization of legal norms over agency and context is precisely the issue that Call Me By Your Name (2017) raises: although the legal age of consent in one region, state, or time may not match that in another, the legal standards of one state are held up as the measure against those of another, sometimes at the expense of a developing personal agency.
The concluding section, “Other Sex Scandals,” fills out reflections on the foregoing chapters. The most salient discussions raise the topic of Chapter 1’s moral panic through Title IX and new campus activism. For Fischel, Title IX activism does not equate to a moral panic because it entails campus cultural transformation; in his words, “this is not just about consent, but about prevention, intervention, communication, due process, accountability, and affecting campus sexual climate” (Fischel 2016: p198).
I certainly agree with Fischel: Adolescent sexuality must be treated as its own thing, legally and from a public health and education standpoint. Such a change is all the more urgent when, as now, sexually transmitted infection (STI) rates in the U.S. are climbing fastest among 15 to 24 year-olds.
Transposing Fischel’s argument to more recent discussions about Roy Moore and Call Me by Your Name means that we must raise questions not only about adolescent sexuality and age of consent laws — but do so along very gendered lines. For Fischel, the two are not equivalent situations, even though both highlight the complexity of power and age differences between sexually engaged persons. I do not say “consenting persons” here, lest a reader believe that allegations of Kevin Spacey’s sexual misconduct with an underage Anthony Rapp does not vary from the agency expressed by the teenage protagonist of Call Me by Your Name; the two situations are quite different, although both are gendered as male-male interactions. Nor do I say “adult”; as Fischel strives to point out, turning a certain age is no more an indicator of maturity and experience in our society than a driver’s license is indicative of mature driving experience. Auto insurers know this; why doesn’t that realization transfer to the realm of sexuality?
Recognizing adolescence as its own legal category when it comes to sexuality doesn’t create new hierarchies at a time when we strive for greater equality. It does, though, attack a too often held notion in this country that equality means a homogenization of people before the law which is quite apart from the realities of individual experience and individuation. Legal recognition of adolescence, rather than creating hierarchies, would aim to address an equally real difference in vulnerability — or if that word is censored, “susceptibility” to exploitation experienced by people because their position in life and society differs from those of more established actors. Difference is a social fact; justice demands that such differences be recognized if laws are to protect people from harm, and redress those harms when they do occur.
As a feminist project that seeks to minimize occurrences of sexual violence, Fischel’s book has much to offer to both undergraduates and graduate students in anthropology, women’s and queer studies, and political science and policy. I particularly appreciated his inclusion of young gay people in his examination, recognizing that queer culture and enculturation operates differently than that provided by simply transposed heteronormative cultural scripts, though I missed any reference to transgender kids. The frank discussion of how anathema the North American Man/Boy Love Association (NAMBLA) is to queer activists, and how that blocks adult gay men from addressing young sexuality, was refreshing.
The terms, “predetermined” and “peremption,” however, are not verbally well integrated with the preceding chapters, despite early allusions to a moral metric based on ensuring future possibilities for action. As a term, peremption threatens to decenter the conceptual thrust of Fischel’s overall argument from fostering the possibility of future relations, especially in chapter three, to one of not quashing agency. In this respect, Fischel does a good job reining in misinterpretation of his meaning through the use of film and screenplay to make the point that the focus of legal censure, when invoked, should be to constrain itself to cases which foreclose future relational possibilities. “Peremption” works well in capturing an idea of harm.
Overall, through his proposal of autonomy, peremption, and an adolescence not isolated from social and historical contexts of inequality yet distinguishable from childhood, Fischel effectively moves the debate on what constitutes sexual harm well beyond the dichotomy of consent and predation. Fischel thus succeeds in laying the groundwork to give us “a more robust and attuned judicial and social vocabulary…to address the array of sexually unjust and harmful practices” obscured by the legal focus on unreconstructed consent today (Fischel 2016: 84).
Both Discursive Constructions and Sex and Harm illustrate the ways law adjudicates the idea of consent. Motivated by a moral impulse captured by the idea of consent, but hamstrung by its own linguistic ideologies and immediate need to address cultural moments at the expense of larger social histories, both books show how the legal process fails to do justice to the ethical impulse consent is meant to serve. For Erlich, Eades, and Ainsworth, this failure is highlighted by law’s erasure of the social in its construction of a standard for adjudication, while for Fischel, the need is to move beyond linguistic terms which obscure the harms that a focus on consent is supposed to address.
The morality of the body, drawn apart from biological necessity and a visceral sense of social obligation, was once the crucible for sanctification in a world too secular to recognize sanctity from sacred cows (or mysticism from mystification). But sanctification is not the aim of a secular polity. If law does not meet the moral needs of socially-embedded bodies, the authors suggest, we must examine the terms used to construct the issues, invent new terms for discussing the issues, and revisit both social and legal discourse surrounding sexuality, harm, and consent.
To achieve those goals, several idols must be smashed: idols of naiveté, of easy solutions, of flattened and untextured relationships, platonic or otherwise; and finally the idolatry of self-righteousness and punitive morality. As a society we may never reach a just center point; but nothing prevents us from circling ever closer towards that point of focus. To aim for it, before we stone isolated individuals, we must confront the broader abuse of power and persuasion that convinces others they own bodies not their own. Only then will we approach a just relation of person to person under wiser legislation governing self and society.
Jason Johnson Peretz, California Department of Public Health, STD Control Division; and University of California, San Francisco.
Reviewed in this Essay
Erlich, Susan, Diana Eades, and Janet Ainsworth. Discursive Constructions of Consent in the Legal Process. New York: Oxford University Press, 2016. Hardcover, 344 pages, $78.00.
Fischel, Joseph J. Sex and Harm in the Age of Consent. Minneapolis, MN: University of Minnesota Press, 2016. Paperback, 344 pages, $27.00.
Archard, David. 1997. Sexual Consent. New York: Oxford University Press.
Caringella, Susan. 2009. Addressing Rape Reform in Law and Practice. New York: Columbia University Press.
Cohen, Stanley. 2002. Folk Devils and Moral Panics: The Creation of the Mods and Rockers. New York: Routledge.
Oberman, Michelle. 2000. “Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape.” Buffalo Law Review 48:703-84.
Pettit, Philip. 2012. On the People’s Terms: A Republican Theory and Model of Democracy. New York: Cambridge University Press.
Shulhofer, Stephen. 1998. Unwanted Sex: The Culture of Intimidation and the Failure of Law. Cambridge, MA: Harvard University Press.
Tiersma, Peter M. 2007. The language of consent in rape law. In Janet Cotterill (ed.) The Language of Sexual Crime. New York: Palgrave Macmillan, 83-103.
Tuerkheimer, Deborah. 2013. “Sex Without Consent.” Yale Law Journal Online 123:335-52.
Wertheimer, Alan. 2003. Consent to Sexual Relations. New York: Cambridge University Press.
Call Me By Your Name. Directed by Luca Guadagnino. Starring Timothee Chalamet and Armie Hammer. Sony Pictures Classics, 22 January 2017.
Doubt. Directed by John Patrick Shanley. Starring Meryl Streep. Miramax Films, 21 December 2008.
Superbad. Directed by Greg Mottola. Starring Jonah Hill and Michael Cera. Columbia Pictures, 17 August 2007.
Thirteen. Directed by Catherine Hardwicke. Starring Holly Hunter, Evan Rachel Wood. Fox Searchlight, 20 August 2003.