Consent is No Cure

By Craig Michael White
May 11, 2018

Blasphemy—against our real gods—gets your attention. I am thinking of the comment by the father of Brock Turner, the Stanford swimmer convicted of sexually assaulting an unconscious woman in 2015: “a steep price to pay for 20 minutes of action…” Even in context, this stings. “Twenty minutes of action”!

In the face of more recent scandals of harassment and assault, can feminists and conservatives unite here? In a heart-wrenching “impact statement,” Turner’s victim addresses him: “if you are confused about whether a girl can consent, see if she can speak an entire sentence. … Just one coherent string of words. If she can’t do that, then … Not maybe, just no. … This is common sense, human decency.” So, let’s really teach our young men: “consent!” But, while I detest Brock’s act, this strategy is hopeless.

In The End of Liberalism Patrick Deneen explains why. Liberalism, our reigning political philosophy (whether progressive or conservative), starts with a vision of unconnected individuals in a “state of nature” whose great value is freedom, defined as lack of restraints on achieving their interests. That requires ongoing attacks on traditional institutions that, while encouraging self-mastery and connection to others, limit our absolute freedom. Only the state is left to deal with the resulting wreckage: “the ‘cure’ by which individuals could be liberated from authoritative cultures generates social anomie that requires expansion of legal redress, police proscriptions, and expanded surveillance.” The state is the “agent of individualism…the increasingly disembodied individual ends up strengthening the state that is its own author.”

Brock embodies the liberal lesson that “human beings are…by nature, non-relational creatures, separate and autonomous.” Of course he is free to have sex with no lasting personal connection, a modern birthright. But what about consent? That is at the heart of the world liberalism has produced. In our liberated state, there is only one restraint on—and constituting bond of—all human relationships: “the logic of consent, even if it is tacit.

Tacit consent has been problematic since Hume savaged the notion that citizens “consent” to be under a state’s laws by using the roads and so on. Yet, with no viable alternative, consent remains the bond that holds our atoms of selves together. And if there is one area of life where consent is certain to be mostly tacit, it is sexuality.

Explicit consent makes sex look like a contract. There is generally no shame in contracts, but millions of songs and movies show our ideal of a first sexual encounter: we want to be swept away by a desire that is too fine, too ethereal, too human, to be contained by legal forms. In these songs and movies, words are often few or missing. We will not make sexuality a contract, with ourselves as the lawyers parsing it. Our very freedom revolts against it.

So why not tacit consent, with the victim’s “one-sentence” test? Look at the structural forces that beam needs to withstand. Where young people party, the storm of sexual desire is a background condition. And we like help from alcohol or other drugs. As the hip author of Love Rules explains, “Getting naked and having sex with strangers is hard.” Now add (a) our immense subtlety, (b) our differing interpretations of words, facial expressions, and actions, (c) our different ideas of what is good and bad (with the tables turned, would Brock believe he had been harmed?), (d) our different incentives in interpreting behavior, (e) our differing memories of events, and (f) our desire, even when drunk, for privacy in intimacy. In the heat of alcohol-fueled passion clarity, memory, the ability to monitor another’s sobriety, and the incentive to do so have all been wretchedly compromised. There is no umpire. Tacit consent collapses under this weight. The one-sentence test won’t save it. How many words? How clearly spoken? Explicit consent violates our deepest desires; tacit consent provides all the principled clarity of a ruling from Justice Kennedy.

We are caught in the liberal vise. As Deneen writes of sex on campus, “there is no longer a set of norms by which to cultivate self-rule, since these would constitute an unjust limitation on our freedom. Now there can be only punitive threats.” We can expect this to continue: the cure will go on exacerbating the disease, year after year. Young men are raised with no strong reason not to act as Brock did, when someone passes out on the way to a hookup, except fear. Alcohol and lust will often wash that away.

I see some hope in our widespread dissatisfaction with our liberal world. Brock’s victim’s longing is poignant: “Note; if a girl falls help her get back up. If she is too drunk to even walk and falls, do not [begin a sexual encounter].” But these acts cannot be required of free, liberal individuals, guided by a self-interest that is only limited by the harm principle. They are acts of chivalry, of a belief in a common humanity that matters, of real love. If we teach young men to practice such acts, they will not be modern liberal individuals. When more of our young women see this and say it, the real cure can begin.