Consent is overrated: why “yes means yes, no means no” is inadequate

“Consent workshops” are increasingly popular on college campuses and activist communities across the country (or is it just the pinko Northwest?) as a sexual assault prevention and healthy relationship program. They are valuable in a society where people’s clothes, sexual history, and pre-exiting relationships (i.e. being partners or spouses) are often regarded as an implicit consent, some sort of binding contract that can be enforced against one’s will.

But the whole concept of “consent” just feels too legalistic to me. To be fair, there is a difference between the notion of “consent” that is codified in law (and college policies) and those promoted by activists presenting consent workshops. Seattle University student group Break the Silence explain:

Legal definitions treat consent as a static agreement that is enforceable once it is freely given. The radical version, as explained by Break the Silence, goes:

I particularly appreciate the last paragraph from Break the Silence, but I think it is the main weakness of “consent”: it individualizes choices in the name of respecting self-determination, often neglecting contexts of choices we make and making us solely and individually responsible for their consequences. The language of consent is inadequate when people’s survival and well-being depends on entering into agreements, especially but not necessarily when market transaction is involved, which is why the notion of “consent” is particularly difficult for me as a sex worker activist.

Under the neo-classical economic theory, any third-party intervention preventing freely entered transactions are harmful to the parties that are involved. The logic goes: if the transaction is not net-positive for both parties, the transaction won’t happen. Therefore, stopping them from entering into the transaction harms both parties, even if they appear unfair to a third party. For example, they argue that minimum wage law harms the people it is intended to help, because it deprives employment from people whose market evaluation is below the legal minimum wage: if there weren’t minimum wage laws, people with low expected productivity can still get a job at a lower wage, rather than facing unemployment. They extend this argument to other “repugnant” transactions, such as transplantable organ trade, sweatshops, commercial surrogacy, and yes prostitution–some of which are legal under certain jurisdictions, some not, but they are all controversial.

I do not think that the transaction should be banned simply because it is problematic: after all, I consider much of the capitalist economy problematic. But even if I don’t think prohibition is appropriate–like in the case of prostitution–I think there are harmful repercussions if we treat them as unproblematic. I will say this again: prostitution in this society is a deeply problematic institution, as are marriage and capitalism.

Earlier this month I went to see Carmeryn Moore’s one-person play “Phone Whore,” which is based on her experiences working as a telephone sex operator. She intermixed her personal life and relationship with composite of actual scenarios she performed with the men who called her service, and it was quite entertaining. Some of the calls were, as you can imagine, deeply problematic, such as the obligatory incestuous scene, and white men calling to enact fantasy of being sodomized by big Black men, which she says is a major theme in her work.

Her main argument throughout the show and the discussion afterwards was that fantasies are always “okay and good.” Acting on pedophilic desires or projecting racist, homophobic (which is why the scene has to involve forced penetration, and also why they call her instead of actually calling a phone sex line for gay men), homoerotic desire to an unconsenting Black man would be illegal and/or unethical, but calling a phone sex line to explore such fantasies with a consenting operator is totally healthy and fine.

But I don’t think that they are unproblematic. I agree that judging people for their desires would be useless, and I prefer that they find outlets to explore such fantasies in safe and consensual ways (which phone sex lines are), but I still don’t feel that sexism, racism, and homophobia are “okay and good” as long as it is expressed on a phone sex line.

While I was in college I briefly worked as a phone sex operator from a dorm room. The company wanted to post pictures that supposedly represent me, so I insisted that they use an image of Asian girl: I feel fine playing the role of a skinny model with huge breasts wearing revealing clothes, but I didn’t feel okay playing any other race. Callers obviously know that the girl they are speaking to probably isn’t that model, but they went along.

Dealing with the (predominantly white, I assume) men’s fantasies about Asian women turned out to be more stressful than I had imagined, even more so than doing other forms of sex work because phone sex is so verbal. But I kept working until Student Housing for some reason decided to disconnect my phone, so in some way I was consenting to the onslaught of submissive-yet-slutty Asian girl stereotype. But it made me more conscious of comments and gaze I experience while riding bus, shopping at grocery stores, and just going about everyday things. The racist and sexist messages I experience outside of the phone sex work are less explicitly sexual in nature, but I sense that they come from the same source. To me, they are inseparable from what I was hearing while working for $0.35 per minute of logged time, and I wasn’t even being paid at all!

I can consent to engage in racially and sexually problematic conversations over the phone, but I don’t have a choice as to whether to live in a racist and sexist society. I don’t have a choice to live in a society in which food, housing, and college education is a luxury rather than a fundamental right. The appeal of sex work for some people is that it turns the master’s tools into a survival method, but it is still the master’s house that we are living in. While laws to prevent me from working on the phone sex line would be draconian, it feels very invalidating to hear someone say that all fantasies are “okay and good” when they are rooted in racism, sexism, and other social injustices.

Another way the notion of “consent” can become harmful is when consent for a specific act (often market transaction) is regarded as consenting to the social context surrounding the act as well as its consequences. The logic of classical liberalism couples choices we make with implicit and explicit personal responsibility for their consequences. In addition to blaming the victim of violence and poverty for their experiences (“you caused this”), it leads many advocates to deny agency and resilience of survivors who make “choices” that trouble us, such as abuse victims who kill their batterers, or childhood sexual abuse survivors who engage in sex trade.

These survivors are said to be suffering from “battered women’s syndrome” or re-enacting their early abuse, and therefore they should not be viewed as freely choosing to be violent or engage in illegal activities. Many self-professed advocates for youth who trade sex, for example, emphasize that the youth should be treated as victims of crime (especially sex trafficking) because they are incapable of making a choice to engage in sex trade, both because of age of consent laws and because they are “trafficked.” While this approach is preferable to treating them as delinquents and criminals, it feels profoundly disempowering and patronizing.

I argue that most people who trade sex are making conscious choice to engage in that activity, but the presence of consent should not be confused with the fairness or equity of the contexts in which such consent occurs. Nor should it be assumed that because one makes a choice to do something, that individual is solely and individually responsible for all consequences of that action.

The choice I am speaking about is the kind of choice a rape victim makes when she closes her eyes and dissociate from the sensation of her attacker’s tongue slithering on her skin so that she can stay alive. It is the choice parents make when they cross heavily militarized borders on the desert, risking their lives to give their children a better life. It is a choice that queer and trans youth make when they can’t take any more of abuse at home and bullying at school and run away to a big city instead of committing suicide.

We have many choices in life, but we often cannot choose the number and quality of choices that are presented to us or contexts in which we must make choices. That is the reality, and consent is rarely as simple as “yes means yes, no means no.” Even the radical, activist formulation of “consent” is too individualistic and legalistic, and does not differ enough from the neo-classical economic ideology of individual choice and responsibility.

Break the Silence is correct to point out that consent in a deeply unjust, capitalist society is “tenuous,” but throughout the rest of its “consent workshops,” they appear to forget this insight. For example, they list many examples of participatory exercises for such workshops, but none of them address the concern: it is as if everything would be “okay and good” as long as we learn to express and honor each others’ desires. It is not.

I’m not complaining that they are not doing a good job presenting a consent workshop; rather, I feel that this is an inherent flaw in workshops that center the notion of “consent.” There certainly is a tension between honoring each individual’s right to self-determination and recognizing that choices we make are constrained by social and economic factors that are beyond our control. There is also a practical issue, which is that consent workshops are not designed to stop people from having sex, but to do so in consensual and respectful manner. But I feel that there is a deep lack, and it becomes more of a problem when we are discussing the intersection of sexuality and market, that is the sex industry.