On Cyborgology we’ve talked a lot about digital social media’s use for and implication in various forms of sexual assault; there’s David’s post the Steubenville rape case, Whitney’s post on sexts and online bullying, and PJ’s post on rape culture and photography at Burning Man. In a press release about a bill before New York state legislature, law professor Mary Anne Franks uses the term “virtual sexual assault” to describe the posting of a sexually explicit image of someone without the subject’s consent. Now, I know this may shock some of you, but I’m not going to problematize the “virtual” part of that phrase–I’m taking that problematization as a given (just go read the above-linked posts). Instead, I want to problematize the concept of consent. I think it might need an upgrade.
Following feminist political theorists’ and philosophers’ critiques of the language of “consent,” I want to raise the question: Is “consent” really the most accurate, most productive lens through which to understand and address “virtual sexual assault”? Using some feminist political theory, I want to suggest that “consent” is ultimately a counterproductive tool in combatting sexual assault perpetrated on/via digital media (I know that’s a clunkier phrase, but it’s more accurate than “virtual”). Because the concept of consent is tied to a specific notion of property–private property–it isn’t easily translatable to digital ‘property’ (I talked about this a little last week). So, consent might not be able to address the so-called “virtual” or digitally-mediated aspects of this type of sexual assault. But, it’s also not particularly helpful in addressing regular-old meatspace sexual assault. As Carole Pateman famously argues, “consent” was never designed for women to exercise. It may well be one of those “master’s tools” that will always, no matter who uses it and with what intention, prop up the master’s house.
If this is a kind of sexual assault–and I really like that way of framing the issue–then the underlying issue here is power. “Rape isn’t about sex, it’s about power” is Women’s Studies 101 material. And “power” here means white supremacist patriarchy. Rape isn’t just an act one person does to another–it’s about transpersonal institutions, like sexism and racism. Rape is a way of enforcing the privilege of some classes of people over and against other classes of people. Rape is not a bug in an otherwise well-functioning system; it’s a key feature of white supremacist patriarchy. Women get raped because patriarchy makes their consent (or lack of consent) irrelevant in the first place. Rape is about demonstrating this fact.
Political theorist Carole Pateman famously argued that “women” are constituted, as a political class, precisely by their ambiguous relationship to consent. (And I should be clear here that I’m using “men” and “women” as political/social classes, that sometimes but not always correspond to sexed/gendered bodies and identities. A feminine cis-woman can occupy the position of “man” vis-a-vis less-privileged men and women.) As Pateman argues, women technically consent to marriage–it is a contract, after all. However, “woman” is a legal status (or category) that is distinct from others. “The meaning of the marriage contract, a contract between a man and a woman, is very different from the meaning of contracts between men in the public sphere” (118). Master and servant or employer and employee enter into a contract initially, at least, as equals (117). However, as 18th and 19th century legal theorists argued, husband and wife were not related as master and servant—because the two were not initially equal. Men and women don’t enter into a marriage contract together; the marriage contract is what grants men ownership of the “property” in women’s “person” (usually her reproductive capacity, her sexual services, and her domestic labor-power). The social contract is, Pateman argues, subtended by a sexual contract (which is also a racial or settler contract). This contract constitutes (white) “men” as the group of signatories over and against women, nonwhites, and other sub/non-human stakeholders. Men are the members of society who explicitly or implicitly consented to the social contract; women, non-whites, and sub/non-humans live in society, but who cannot affirm or deny their consent to the social contract.
Women can’t affirm or deny consent because they have no property in their persons–the ‘controlling interest’ in their person is their male guardian (father, husband). A woman is like terra nullius–unoccupied land, virgin soil: without a “man” to claim ownership of the property in her person, a “woman” is equivalent to terra nullius, land with no owner to claim it, and which can thus be taken and occupied without asking anyone’s consent. European colonizers and colonial law considered Australia and the Americas terra nullius. Even though there were, of course, plenty of people occupying the land, they weren’t treated as capable of owning it…just as women weren’t treated as capable of owning the property in their persons. Because women don’t own the property in their persons, they can’t consent (or not) to anyone’s request to use it.
So let’s translate this back to the ownership one has over one’s image, or the “property” you have in your human/social capital. What if “women” describes the intersecting classes of people who structurally lack property in their data self? Or who, in more Foucaultian terms, aren’t “entrepreneurs of themselves” because they can’t profit from the attempts made to capitalize on their skills, talent, profile, image, etc.–sort of like unpaid interns?
Keeping with the example of unpaid interns, let’s return to consent. Sure, interns consent to the terms of their employment. But the only reason you consent to unpaid work is because you’re coerced to do so–nobody’s putting a gun to your head, but institutional norms make it a de facto requirement for employment in many industries. They’re how you accrue enough human/social capital to bargain for a real (paid) job. So you don’t really consent to an unpaid internship; you accept these terms because you lack the requisite human capital to bargain for a real, paid job.
What if we think of “women” as the class of people who lack sufficient human capital to be entrepreneurs of themselves, and who thus need to enter into exploitative relationships with other people who can and will capitalize on them? Sexual assault committed on/with social media wouldn’t be about nudity, and it wouldn’t be about consent–it would be about the systematic exploitation of one class of people by another class of people.
I want to return to my earlier question about whether feminist demands for consent reinforce the exploitative relations they’re intended to challenge. The act of giving or denying consent is a performance of citizenship and subjectivity–your explicit or implicit affirmation of the social contract is what makes you a member of society, a moral and political person. Citizenship and subjectivity are normatively masculine/male, white, cis-gendered, able-bodied, heterosexual, and so on. If giving (or denying) consent makes one a citizen and a subject, it also makes you structurally white, masculine/male, and so on. In other words, the act of consenting makes you a member of the class of people who are citizens and subjects, and that class of people are, as a class (that is, with respect to power and privilege), “men,” “white,” etc. A female (physiologically and/or gender identity-wise) who can consent is not “a woman” because she’s exercising rights and privileges reserved for the class of male/masculine members of society. If some females/feminine people occupy the position of citizen and subject, this means that somebody else, some other type of person, occupies the feminized position normally called “woman.” There’s lots of evidence that privileged women’s advancement comes at the expense of less privileged women (and men too, but mostly women). For example, upper-middle-class women who work generally rely on low-wage service workers, both in and outside the home, to pick up the second-shift slack. Or, as Rey Chow argues in her brilliant reading of Jane Eyre, white women’s inclusion in public life (citizenship, subjectivity) generally doesn’t overturn patriarchy and patriarchal institutions; instead, men and women of color occupy the ghettoized spaces that white women vacated on their quest through the glass ceiling. Jane’s rise requires Bertha’s fall.
So I wonder: would the amelioration of rape culture on one level exacerbate it at another level? Would the widespread recognition of some women’s right to consent further obscure the capacity of other women to do so?
One of the main problems with the concept of consent is that it’s framed in what are ultimately binary, dualist terms. Agency is either present or absent; one is either autonomous or dependent. I can appear to be autonomous only if I overlook the fact that my actions are underwritten by the actions of others. Everything I do (or choose not to do) is supported by stuff other people do (or choose not to do). I can choose to be a philosophy professor or a hair stylist because philosophy and hairstyling are things other people have developed over history, and things that people still care enough about to participate in. Insofar as they assume an overly simplistic concept of autonomy, our philosophical and legal notions of consent can’t account for human (inter)dependence. We need some way of talking about sexual assault–how and wherever it’s committed–that can account for the complicated, messy, intersubjective character of freedom.
The concept of consent might even actively encourage dualist thinking. It was originally theorized as a relationship to a series of related binaries: autonomy/dependence, subject/object, public/private. (For example, Pateman argues that the public/private binary was key to the undercutting of women’s consent (117).) So, if we’re looking for a non-digitally dualist way of critiquing and opposing sexual assault in/on digital media, the language of consent might be more of a hindrance than a help.*
In patriarchy, sexual assault is not a bug in a good system, but the quintessential feature of a bad one. It’s not that individual rapists don’t care about women’s consent; rape is just one expression of a culture that functions on the assumption that there’s a class of people, in this case women, who are and ought not be asked to consent. In what ways do digital/social media platforms, practices, and conventions constitute “women” as a class of people who are and ought not be asked to consent? How do the technological, aesthetic, and economic dimensions of contemporary digital/social media actively construct a class of “women” who are exploited as such?
*As an alternative to consent, I’d suggest Simone de Beauvoir’s concept of “freedom,” which she discusses here.
If you want to follow along as my Philosophy & Pop Culture class discusses these issues next week, you can find us at drrobinjames.tumblr.com. I’m also on twitter (@doctaj).