I’m having sex with a long-term partner. At some point, something shifts, and what we’re doing makes me feel intensely dysphoric. I think for a moment: “Do I want to vocalize what I’m feeling, stop, do something else?” I decide not to. I don’t feel like I have the energy to navigate the disruption, to soothe his inevitable and in some sense selfishly-oriented, if well-meaning, concern. Things have been complicated between us. I just want an easy win, a simple interaction that doesn’t go off the rails. We can figure out how to try to avoid this happening again another time. He notices my momentary distraction and checks in, asking if he should stop. I say I’d like things to continue. I affirmatively consent.
Consent’s Moral Magic
An influential legal studies paper describes sexual consent as having a kind of moral magic. It argues that consent can conjure obligations and dispel prohibitions. A few simple words can transform the forbidden into the permitted or delight into injury. From the point of view of the legal system the paper discusses, such a description might be apt, at least in certain cases. Consent’s magic, however, only reaches so far. Consent is a poor apotropaic. It is not enough to ward off harm, for sex to be non-injurious, let alone good. Despite being, as political and legal theorist Joseph Fischel argues, a dominant metric for separating permissible and impermissible sex, consent is no magic bullet. It cannot do away with the political and social contexts and complications that situate it as a practice and legal standard. As varied and sustained feminist, disability, and race critiques have elaborated, consent faces a number of limitations as a basis for sexual politics. Yet, all the same, consent appears again and again in utopian visions of a revolutionary sexual horizon. What, then, should we make of consent’s presence, its stickiness, its moral force?
Joseph Fischel might argue that consent is engaged in a kind of sleight of hand. It plays a shell game. It smuggles in and evacuates other political values, quickly becoming overburdened as it churns out normative figures to command attention and distract. Terms such as “enthusiastic consent” and “deep consent” share extra political baggage and a curious distance from consent itself as commonly understood. They are not defined by “yes” or “no” but some other criterion separate from the actual expression and performance of consent. They bear consent’s name because of its impressive and distorting normative force. If consent is a sleight of hand, then one way of dealing with its harmful distortions is through careful observation and disambiguation. In his writing, Fischel attempts to do just that, teasing apart and elaborating sexual norms based on commonly held values that he sees as having become entangled with consent. For him, these tangled values involve political concepts such as autonomy, access, and the preemption of harm.
I, however, see consent’s magic as something a little more sinister. Consent takes the messy analog tangle of embodied relation and reductively transfigures it to a clean and simple binary. Affirmative consent is a protocol. In functioning as a protocol, it does two things. First, it distributes and obscures the location of political control. Consent between two parties is not, at its core, determined only through the participation of those involved. Consent, despite ostensibly describing a relation between independent, sovereign parties, always necessarily involves a greater political milieu that constitutes both the subjects and the possibility of consent. Any consensual encounter is held up by the vast professional and legal apparatuses that determine who is and is not able to consent and what consent is meaningful. Even as consent empowers some to state and set the terms of their own sexual engagement, it shores up institutions that disempower by deeming others to be less than full political subjects. More importantly, consent works as a protocol insofar as it takes its force from functioning as a standard that renders things in its own frame and language. Consent overcodes as it occludes. It provides a flexible but imperious metric that in its wide possibility of application pushes to fashion all political and ethical concerns in its own image. Consent’s danger and utility are entwined and arise from how consent flattens myriad contexts and concerns as it casts them into its own simple and relatively accessible terms.
In such a view, something beyond a broad disentangling of political values is necessary. A different set of questions arise. What does affirmative consent do? How might protocols of affirmative consent be modified to different ends? What other protocols and forms of care should be in place? And when do revolutionary politics foreclose on affirmative consent as a viable means of relation? What is the role of consent in a revolution?
They pour me a cup of tea. We’re sitting at a table negotiating a rope scene where I’ll be in ropes. We haven’t ever tied before. We run through a fairly standard list of questions. A lot of my answers have come down to “I don’t know.” A lot has changed since the last time I tied with someone. After spending so much time in relative isolation during the pandemic in the midst of a bunch of personal shifts, I’m not exactly sure what I want anymore, or how I’m going to respond. Despite the fact I offer relatively few concrete yeses and nos, the conversation goes on for well over an hour. We talk about past tying and teaching experience, art, culture, politics. By the end there’s a mutual understanding, even if not an exacting map of what’s permitted and not. We agree we both feel comfortable, and get ready to begin to figure out how we tie together.
Diagraming Desire
The spreadsheet is sex tech. A common way of negotiating sex and play in the BDSM scene involves filling out a “yes-no-maybe” list. Many spreadsheets used to that end contain dozens upon dozens of rows specifying different activities. Yes-no-maybe lists are often paired with what BDSM practitioners call an “opt-in” model of affirmative consent. In such an approach, the list of activities in the spreadsheet is a closed set that provides a kind of menu for any given encounter. According to this model of negotiation, nothing will happen during a scene that hasn’t been explicitly charted out or discussed beforehand.
A few practical concerns immediately arise with any yes-no-maybe list. Some have to do with the composition of the list itself. Is it sufficiently inclusive for the activity at hand? Others come down to issues with broader consent practices themselves. Is there shared language? Is everyone on the same page about what terms mean? It may be easy to say what constitutes a slap, but is the same true of objectification or sexual contact? There’s also the concern of what, exactly, needs to be consented to. There is a balance to be struck between specifying every possible action, quality, and duration and what constitutes a list and negotiation of feasible length. For BDSM practitioners, an intuitive sense evolves around this quickly. There are subcultural norms and much of it may be considered common sense, although that does not erase the issues and complications themselves. Nevertheless, for those who rely on the filled out yes-no-maybe list as a technology of risk reduction or a way of organizing desire, they are far from disqualifying.
All the same, I’ve never been partial to the yes-no-maybe list, or at the very least its dominant use. Filling out a spreadsheet has always felt like it involves a cold remove. It is rarely a moment of conversation or discussion. The yes-no-maybe list assumes someone shows up as a fully constituted, self-interested sexual subject, preferences in hand. Meanwhile, I’ve always experienced desire as contextual. What I might want or feel like I want to avoid is contingent. It often only really comes into view in conversation and is often only elaborated collectively, collaboratively, and in a particular moment.
BDSM negotiation is often primarily framed in terms of consent. Consent is, without a doubt, an important dimension. But it has never been the most compelling part of negotiation to me. Negotiation has always felt like the inauguration of an experience being co-created, a delicate generative exchange that involves bids for determining genre and elaborating both desire and constraint. The end goal is less the hammered out patterns of a contract than something diagrammatic in the Deleuzo-Guattarian sense—something that charts a relation while intervening in it. I look to negotiation not to identify a closed set of items to play with but to point to what exists: what there is to contend with and what may be emergent. A good negotiation for me won’t necessarily produce a yes-no-maybe list as a document. But, if someone shares similar cultural and disciplinary knowledge, it might result in some quickly sketched images, some choreographic notation, an invocation of an aesthetic field of reference. I want to generate material to play with. I want to create an environment where I feel safe being vulnerable. I want to create a possibility for bearable and beneficial astonishment and surprise. Negotiation may be an important step in any consent protocol, but rarely is negotiation just or primarily about consent for me. I would hazard that is the case for many others.
I would argue that much of the good of consent practices comes from how they involve protocols of organization and elaboration that serve as what Felix Guattari calls “articulatory systems” that help those who use them render things as speakable and hence directly and intentionally actionable. Guattari offers a concrete example of an “articulatory system” in la grille at La Borde clinic. La grille was a work schedule that, much like a present-day spreadsheet, operated on both vertical and horizontal axes. It identified tasks and activities that were distributed among nurses, doctors, and patients, for example laundry and kitchen shifts, as well as a number that indexed how much any given task or activity was undesired or desired respectively. It was filled out collectively and was not intended as a top-down imposition or an immutable and calcified set of tasks. Instead, it pointed to another dimension that Guattari identified as key in institutional mapping: “the possibilities for change inherent in collective trajectories—evolutionary attitudes, self-organisation, and the assumption of responsibilities.”
Conceptually key to la grille are its ties to a specific and local context. Its language and form emerged from the tasks at hand and the people performing them. As Guattari notes, la grille “is connected with the invention of a language, with its own particular mode of naming different tasks, and a rhetoric that is particular to it, and that is the only way to treat certain problems.” The yes-no-maybe list, like la grille, is a simple protocol of organization that, “renders articulable subjective dimensions…so as to allow certain things to come into the daylight, to allow certain surfaces of inscription to exist.” Similarly, in taking form, the yes-no-maybe list conditions both the negotiation itself and any encounter that emerges from it. There is, however, a vital difference between the yes-no-maybe list and la grille. From the point of view of an opt-in yes-no-maybe list as a protocol of affirmative consent, an aspect of the interaction is necessarily definitionally non-local. As a tool, it takes pre-existing structures and standards, both in the use of what are often general purpose lists and more importantly in the form of affirmative consent itself. This is in contrast to how the mapping of la grille represents an ongoing process that emerges from the specific territory and needs of the clinic at La Borde. In the yes-no-maybe list, what is permissible and not is shaped almost solely by how well it fits the ready-made structure: “Was this explicitly brought up and agreed to beforehand?”
In the negotiation that opens this section, I was able to lay out my ambivalences and concerns without having them flattened into a single yes or no. By using an opt-out rather than an opt-in negotiation, I left them on the table. It was communicated that a different kind of attention and care might be necessary around certain things. At the end of the day, whether or not their conduct felt right to me didn’t just come down to matters of affirmative consent. Instead, it involved trusting that they were acting in good faith, and were able to extend particular kinds of care in response to the specific concerns I outlined should it be necessary.
Consequently, to talk about the negotiation that opens this section primarily in terms of affirmative consent feels somewhat nonsensical. In some sense, it involved and deployed affirmative consent. I consented to engage in a particular activity and affirmed a number of things I was interested in. But, in another sense, that deployment was limited, as affirmative consent always necessarily is. It was one structure and tool among many, and there seems to be something immensely distorting in raising that individual protocol to the sole determinant of whether the encounter was okay or not, to turn affirmative consent from a locally useful tool and standard to a political structuring value. To do so would simultaneously obscure the conditions that made me comfortable with what occurred and introduce the possibility of a specific kind of harm endemic to such a flattening. A thin version of consent that does not account for extended care, good will, enthusiasm, and a number of other factors that had a hand in making such an encounter good and non-injurious hazards, in other circumstances, the dismissal of any experience of harm because said harm did not involve a violation of consent as such. Where bad or injurious sex is equated with consent violation, many kinds of injury become unspeakable as harm because they occur within the context of consent. Simultaneously, a thicker and broader concept of consent that works in the inclusion of factors outside of consent in a strict sense carries a certain risk in and of itself in recasting and elevating all kinds of bad and injurious sex into violations of consent. While some may argue that this is a cause of phenomenological harm in and of itself, another dimension is more pressing. While a broader compound notion of consent may help elaborate the conditions of good sex, such a wide and diffuse category carries the risk of being capacious to the point of its own detriment, of muddling different forms and etiologies of injury and in doing so making it even more difficult-to-articulate and prevent already difficult to articulate forms of harm. In understanding what delineates good and bad sex, what is permissible and not, something outside of consent is necessary. One pressing task of sexual politics is to chart what that entails.
It’s cruising hours. I’m at my local park, a former rail yard, a seventeen-acre span of green space fashioned from the remains of an old industrial corridor. Some days I stop by the field house for classes and events. Others I go to the river to pray. But today I’m there for something else, roused by an opaque but insistent desire. I’m not quite sure what I’m looking for, but I’m ready to bear surprise. I feel safe and supported enough. I’m in a communal space where people watch out for each other, and the days when anyone has to worry about food, shelter, and the provisioning of basic care are long gone. There’s room for risk.
The Revolution will not be Consensual
Consent, outside of the sphere of sex, is rarely taken to be a primary structuring political value on the left. Revolutionary politics is concerned with public existence and political structures outside of the moral and ethical terrain addressed by consent in ways that make it seem incompatible with consent as a universal value. If, as CLR James says, “the rich are only defeated when running for their lives,” then any positive movement in revolution’s direction, let alone revolution itself, should be unthinkable in terms of consent. What are the barricades other than a nonconsensual disruption? What is a revolution other than a restructuring of society that those in power would not consent to?
For a variety of thinkers on the left, consent is a fraught political formation for even deeper reasons. Within the approach offered by the early writings of Karl Marx, the notion of the subject of consent depends on a fundamental mystification and historical misapprehension.The framework provided by rights and the contract form naturalizes a notion of the heroic individual subject that, far from being universal or transhistorical, burst forth from the imagination of eighteenth century romantic authors and economists under the pressure of the twinned dissolution of feudal society and the development of capitalism. Although taken as bedrock of bourgeois political thought, formations such as contract theory, rights, and a number of key terms surrounding consent, concepts such as will and agreement, function as mystifications of property relations that legitimate class rule and a system of private property based on violence. It is impossible to read sexual consent outside of its relation to the operation of consent more broadly, including concepts like “the consent of the governed” or the labor contract, a form that hides the massive power imbalances between worker and owner behind the fig leaf of the juridically equal subject. Even within the sphere of sexual consent, problems arise. The state creates buy-in itself by positioning itself as a guarantor of rights and consequently of the possibility of and respect for consent. This is one reason for many carceral feminists’ pivot towards the right. Carceral feminism plays directly into the fundamentally extractive gambit allowed by the enumeration and sacralization of state-defined rights.
Another set of thinkers on the left, including Gilles Deleuze, Jacques Derrida, and many of those building from their work, would find yet another issue with the fundamentally conservative nature of the contract form and, consequently, consent. From this point of view, the contract exists precisely to predict and steer towards certain outcomes while limiting deviance, aberration, emergence, and rupture. While limiting the unexpected may have immediate value, particularly in an activity that can be as fraught as sex, the general foreclosure of possibility and the unknown presents problems for revolutionary politics. Revolutionary society is necessarily an emergent structure. Limiting the world to what is foreseeable forecloses on the possibility of revolution itself. Any revolutionary world to come cannot be fully consented to before its arrival because it is not fully knowable. It is necessarily opaque while under a different regime of production. Consequently, part of the work of revolution is establishing the new ethical, political, and moral norms that will necessarily emerge from a new economic and political order. From such a perspective, the things that mark a good sexual subject in a world whose primary sexual value is consent—a skill for prediction and a predictable nature, an orientation towards preemption, the self-governing virtue of properly managing risk and foreclosing on harm, a capacity for prodigiously expanding the present forward—are with and are inseparable from other political and economic means of foreclosure that use controlled risk as a means of extraction including the ongoing intensification of financialization.
For thinkers of subjectivation, from Louis Althusser to the vast and varied psychoanalytic left, the very generation of the “I” that says “I consent” is a fraught part of a political process of subjugation. From that point of view, revolutionary politics often requires moments when the “I” is, at the very least, put aside, and self-possession is put into question. This is because the very forces that constitute the I are constituted from external and compromised material. As Avgi Saketopoulou, analyst and author of Sexuality Beyond Consent argues, drawing on the work of French psychoanalyst Jean Laplanche, “Since self-understandings are, to begin with, crafted through the mythosymbolic—and the prejudices swirled in it (e.g., White-supremacist ideas, sexism, and so on…) the Ego’s unbinding has personal but also political ramifications.” For Saketopoulou, any non-ruinous unbinding of the ego is temporary and accompanied by a re-narratization. That does not mean, however, it does not necessarily have value. The unbinding of the ego clears the ground for new emergent forms in its rebinding, some of which may be more joyous and less fraught. As Sophie Lewis states, “I want no part in revolution where I emerge the same on the other side.” The abolition of the present state of affairs necessarily involves an abolition of the self and transformation into something not yet imagined or fully imaginable.
Saketopoulou’s Sexuality Beyond Consent is in large part an examination of a sexual politics that takes seriously the value, and perhaps necessity, of such an unbinding of self—something achievable through a state she calls overwhelm. She argues that such a state of arousal and affective intensity is poorly provided for by affirmative consent. Saketopoulou calls the sexual ethic that emerges around overwhelm limit consent. But, like enthusiastic consent and deep consent, limit consent is not particularly interested in consent as widely construed, an act whose value and very possibility Saketopoulou seriously questions on psychoanalytic grounds. Instead it describes something else: a profound ethic of care, an imperative not to impose, overcode, and ultimately preempt something unexpected but rather to sit in difficulty and act in good faith to help tend to and respond to its arrival. This is a vital, if only situationally relevant, intervention. All the same, rather than working to disaggregate and disambiguate the broad set of values consent has come to dominate, limit consent provides another overburdened, unwieldy concept that, at times, almost seems to collapse into shorthand for good modes of relation in general. Although it emphasizes an important dimension of the emergent and opaque that affirmative consent disregards or forecloses on, it is not enough to think through a world after consent, even as it may help point us in the right direction.
I pass by some dykes doing piss play by the boat house, faggots fisting right off the walking path. I’m restless and wander until someone with a familiar face makes eye contact. We’ve never talked, but I recognize them from a few public porn screening nights and from a recent workshop where we learned about plastiques and mask work, fucking and physical theatre. They strike a familiar pose. I walk over.
After Consent
Consent contains a temporal and conceptual snag: a space outside of consent is something that can be affirmatively consented to. Other forms can be grandfathered in by explicit agreement; “I affirmatively consent to this interaction being governed by something else.” Such is the complicated temporality of consent. Sex educators and others have attempted to find ways to try and address this complication, fashioning a model of sexual consent that is ongoing and does not share some of the complicated dynamics of consent as deployed in other spheres. They have tried, not without good reason, to eliminate a notion of “after consent” in the name of consent being understood as an ongoing practice. I, however, see a utility in the opening created by this peculiar aspect of consent’s temporality.
Affirmative consent is a useful tool. Perhaps, after the revolution, it will remain one. At the very least, like Fischel, I struggle to think of a less-terrible legal standard for the world as it is now. Consequently, I am less interested in moving beyond consent—in the world as we know it such a thing is not feasible or desirable—than in thinking through what happens after consent. I speak of after consent in two senses. The first is practical. In a situation that involves affirmative consent, what happens after circumstances arise that mean affirmative consent is no longer sufficient to deal with what might arise or must be done, or what happens in situations where the parties have affirmatively consented to rely on another relational logic. The second involves a utopian horizon. What does it mean to imagine a society where agency is distributed in such a way that affirmative consent, and consent in general, are no longer necessary as a dominant structuring protocol but becomes one among many tools, where relationality does not need to always be conditioned by language and the dangerous fantasy of self-transparency?
At one point in Family Abolition M.E. O’Brien defines family abolition as, “the expansion and generalization of relations of care and consensual dependency.” From a certain perspective, this usage of consensual feels nonsensical. From a point of view where consent is the action of a sovereign subject, the historical terrain of only a relative few, then “consensual dependency” sounds like a contradiction in terms. Further, family abolition necessarily involves those who, under the regime of consent as presently defined and understood, are incapable of consent. The word consent here is a stand-in for something different, other political values, a configuration that exists after consent as we know it, a world where concerns about access to care, community, and everything else needed to survive do not undergird forms of coercion that foreclose on the possibility of meaningful consent. Under the heading of consent sits a powerful vision of a better word, one not fully articulable in consent’s terms, a world in which, hopefully, better language and concepts exist.
Judith Butler finds such a glimmer of something necessary such a utopian sexual politics in affirmative consent itself. Butler identifies this politics not in consent as a protocol or regulatory framework, but in how affirmative consent is a practice that necessarily involves relations of yes-saying, of opening oneself to relation and the unknown. Displacing a legalistic conception of affirmative consent by looking at the relational and affective life of some of its components, Butler highlights how yes-saying is a practice that often involves a dimension of fantasy and a necessary challenge to the self. Sometimes, yes-saying is a hopeful opening to new ways of flourishing. Sometimes yes-saying is a way to find out one’s own needs and limitations through being challenged.
For Butler, a yes, is far from the solemn performative of the self-transparent, rational subject of consent; it is a gesture towards the horizon of a different self and a different world. To yes-say is to expose oneself to a future that cannot be controlled, involving both new and unforeseen joyous possibilities and forms of harm and danger that cannot necessarily be expected or predicted. Here, yes-saying has resonance with limit consent and, at its best, seems nothing less than a mode of relation necessary but not sufficient to any revolutionary politics.
Although Butler places less emphasis on no-saying, the negative task is important as well. Butler points to consent as a way of understanding how the conditions of life are radically unchosen and of the present-state of things as contingent, enabling a refusal necessary for any revolutionary horizon. Sexual politics after consent necessarily involves just such a refusal. It requires rejecting any mandate to solely operate within consent’s temporality and particular form of narrativization and reinscription. Instead, it is necessary to attend to the complex rhythms of the constant production of community and self.
Thinking after consent necessarily means acknowledging that consent in and of itself is utterly insufficient for addressing widespread and pervasive sexual violence and harm. Consent works to pre-empt liability rather than diminish harm, something that can be seen through its myriad forms of cynical deployment. In locating sexual abuse and misconduct as things to be understood as individual actions that should be handled carcerally and after the fact, our current use of consent as a metric is utterly incapable of addressing the structural factors that facilitate and lead to abuse. It is only by displacing consent that it is possible to deal with the material conditions prior to consent and that condition its possibility and utility.
Addressing the failures of affirmative consent involves moving away from the framing of individual sexual ethics to communal sexual politics, from the private regime of a contract to the creation of a robust public sexual culture. Imagining a world after consent does not only involve thinking through the individual activities and protocols of people that engage in sex, but rather the collective infrastructure through which we live our lives. It necessitates rethinking the basic provisioning of care in our society and the agency to move out of coercive situations. Moving towards a world after consent requires addressing the very architecture of the places we live and where we have sex by both providing access to communal spaces for public sex and acknowledging how the simultaneous consigning sex to private space, buttressing of the family, and rise of individual bedrooms within single family homes have all had a hand in the ubiquity of sexual harm. A world after consent necessitates structuring the way we live otherwise.
In more immediate terms, moving towards a world after consent involves addressing the hypertrophy of consent in sex education, the way that many sex educators, whose purview extends far beyond a single protocol, have all too often rebranded themselves as “consent educators,” sometimes in a bid for respectability. It involves opening discussion of the ways that we are not transparent to ourselves and addressing the problems and complications that introduces. It involves the creation of pedagogies to help collectively contend with the messy and contradictory nature of desire and involves a willingness to sit with the troubling and often uncomfortable realities that the notion of the consenting subject works so hard to shroud. Given the variety of and incommensurability of individual experience, such pedagogies necessarily consist of something the other than imposing a standard, universal model but instead involve working to facilitate ongoing collaborative comparison, combination, refashioning of understandings and models to live in ways that are more amenable to collective and individual flourishing, a process Guattari would identify as meta-modelization. Part of that process necessarily entails holding up the standardized model of consent to scrutiny and charting where it chafes against experience, discussing when consent may not be possible, when something should be avoided, or when a protocol or form of care outside of affirmative consent is necessary. That does not mean the wholesale dismissal of the value of consent practices as much as it involves the creation of a space for new political values and articulations to emerge, a careful elaboration of the limits of consent, and a refusal to allow affirmative consent to remain, as it sits now, a hegemonic and ever more reductive and distorting regime for sexual politics.
After consent lies the development of new sexual poetics. But thinking after consent has implications far beyond the sphere of what is generally regarded as sexual. Thinking after consent necessarily involves a movement towards a general development of new forms of gathering and the devising of collective life and experience. However, sex, as it’s currently situated, has its rhetorical and pedagogical uses, and may in fact provide a kind of magic that can be turned towards better ends: a glamor, a seduction, an inducement towards new ways of relating. In my work as a sex educator, I’ve come to realize that sex provides one of the few places where people are expected to and incentivized to intentionally and explicitly engage with how they relate to others. The intersection of desire, the cultural image of the good sexual subject as self-managed, risk-aware, and articulate, and the way that sex often involves vulnerability and overwhelm make sex an engaging, even compelling place to discuss relation in general and a motivating sphere to intentionally work on how one relates. The kinds of conversations opened in sex positive spaces have value, even if much of it is foreclosed on by consent itself.The failures of sex-positive consent culture, perhaps, have created an ideal opening to collectively experiment and learn to fashion a better world to come. But for that to happen, we must be committed to imagining something else, to thinking after consent.
We start slowly in a certain sense, even if we get to things right away. Few words pass between us, but we know the game: it’s sex as B-movie. We toggle between genres, falling back on a shared idiom, drawn from both material that’s broadly culturally available and what’s been cultivated in the local community. But something else emerges. We find an improvisational rapport. After a brief interlude with some direct conversation and establishing a few expectations, we move towards going off script. Bids are made and responded to. And, without planning, I find myself doing something new and unexpected.
Notes