The way societies deal with sex says a lot about them. Different places and different generations have their own sexual battlegrounds. From laws prohibiting mixed marriages to criminal bans on same-sex intercourse and the provision of intimate services, these debates revolve around who we can have sex with, when and under what conditions. The current debate about what sex should be focuses on the issue of individual choice and sexual autonomy. It seems that we are living in an era of mutual consent.
The idea that consent to engage in sexual intercourse should be the starting point for determining what exactly is lawfully acceptable and socially desirable sex is far from obvious. Partly because sex means very different things at different times. Sex for money can indeed lead to business, contractual terms in which parties bargain and agree to specific actions at a set price. But not all sexual relations can - or should - be reduced to an atomistic meeting of the minds of two individuals. Sometimes what we want is not known to us in advance. More specific desires and ways to satisfy them often appear and arise at the very moment of sexual relations. Sexual autonomy is not exclusively a matter of personal will; rather, it finds its expression through the interaction of two (or more) partners. Sex can be a unique utopian experience in the sense that the very act of sexual relations creates new ways of communicating together.
Sexual pleasure in women is often viewed as more complex and less predictable than that of men. Historically, this assumption has contributed to the over-regulation of female sexual and reproductive abilities. The ambiguity of what sexual desire is and how it should be expressed is a sexual norm rather than an exception. This is why authors of women's emancipation projects should focus on how to address this fact, rather than bypassing it.
The actualization of the sexual self can also occur when there is a certain degree of fear, repulsion and uncertainty on both sides, as well as arousal and curiosity. In moments like this, by taking on an extreme degree of personal insecurity, we can create space for the ultimate degree of trust to arise. This trust is not based on consent, but on a shared commitment to accept the fact that sexual pleasure and danger often coexist. While sexual liminality does not exclude the danger of falling into the zone of bad sex, it can also be inspirational because it recognizes the potential of sexual contact, its ability to change and renew us in the most unexpected ways.
Like informed consent to medical procedures, consensual sex has a contested legal interpretation that has evolved over time. This is the term the law uses to distinguish between criminal and nonviolent sex. But how to determine the presence or absence of mutual consent? Even those jurisdictional systems that deal with sexual violence and are based on recognition of consent - where consent is understood as a subjective product of the complainant's consciousness at the time of alleged sexual violence - rely on jurisprudential interpretation of consent.Aside from explicit consent or refusal, the applicant's testimony is combined with other types of evidence, including the verbal and non-verbal behavior of both parties throughout intercourse. The judge must then decide how plausible the overall statement of disagreement is and whether the accused knew or should have known that the consent was not or was withdrawn at some point. From beginning to end, the law constructs the interpretation of consent, relying on various types of evidence and signs, direct and indirect.
This means that consent is not a thing in itself that either a sexual partner or a jury can find. Consent is no less than an indicator of how a given society understands a particular sexual behavior. We declare a lack of consent the moment we decide that sexual behavior goes beyond the limits of acceptable coercion, compromise, and risk that are accepted in our culture.
Many feminists will argue that the problem is not the nature of consent, but that legal measures are not sufficient. In other words, the law must be tailored to track the cultural shifts that the #MeToo movement demands. Proponents of affirmative consent believe that sexual partners should actively seek clear signals of consent throughout the sexual act. “Consent is sexy,” we are told. When a woman claims violence against her, we must believe her. Then the burden of guilt falls on the defendant, who has to prove that in those circumstances he took concrete steps to find out if his partner agreed. We are told that if we change our sexual behavior in accordance with these expectations, our culture will become safer and more sexual. What sane feminist would disagree?
But this logic has two major drawbacks. First, both conservative and pro-sex feminists have long recognized that the on / off binary approach to consent does not reflect sexual reality in a cultural or legal sense. During sexual intercourse, "consent" appears and disappears in a rather chaotic manner. The same sexual intercourse, taken as a whole, can be in different ways humiliating and at the same time piquant, disgusting and at the same time intriguing, frightening and yet exciting. Moreover, consensual sex is not the same as voluntary sex; conversely, non-consensual sex is not the same as rejected sex. Equating consent with unequivocal desire is to substantially change the kind of sex that society considers acceptable in an alarming - that is, regressive - direction.
The "enthusiastic" consent system put forward by other feminists, including Robin West, explains these difficulties even further. Emphasizing the conditions of female coercion in which “normal” heterosexual relationships, including in marriage, take place, these feminists argue that the criminalization of any sexual act, whether consensual or not, is the result of coercion. The law and society should only support sex that is based on sincere desire.
However, there is no reason to believe that even sexual acts based on genuine desire are somehow related to good sex. Even unwanted sex, or partly desired sex, can nonetheless be exciting and transformative. Experiments with pain or fear can shift anticipated sexual boundaries precisely because they are about vulnerable states of the person. One can imagine that, for example, the appeal of strangulation is at least partly due to the genuine fear it generates.
Thus, we do not want to say that there are no restrictions in sex, rather we invite everyone to develop restrictions that are consistent with the erotic potential of sexual intercourse. The threshold of trust is a space in which partners can explore the value of sexual experiences precisely because here they directly touch the line between acceptable and unacceptable. Concepts of affirmative and enthusiastic consent represent this kind of sexual practice as abnormal and criminal. This is mistake.
#MeToo clearly takes patriarchy as its cultural context and targets it in its argument. Representatives of this movement view women as objects of male sexual domination. We are assured that men are interested in expanding or at least maintaining existing sexist forms of social control over women. It is assumed that they want to go “as far as possible” before being faced with a woman’s pronounced disagreement. On the basis of such a vision, at best, a highly specific and regressive picture of human sexuality emerges. At worst, it encourages us to control sexuality in a conservative manner. The true perspective of today's sex controversy is that it opens up a new space for theoretical assessments of the boundaries of truly daring and satisfying sex.