So first of all thank you for linking that! It's a thought-provoking read. I ended up having a Lot Of Thoughts about it because I do take issue with a lot of that article, so I'm gonna put those under the cut for those curious:
The authors of this and I definitely are coming from very similar places, and have similar values and overall goals, which I appreciate.
I definitely do not agree with "if you feel violated after a sexual experience that you engaged in willingly, then it was rape and that person is a rapist," although I also disagree with "if you feel violated violated after a sexual experience that you engaged in willingly, you aren't allowed to say that experience was traumatic and the other person/people involved have no obligations to you." I think the authors of this article both make genuine, good criticisms and also do not grapple enough with the nuance of what is being discussed, or alternative models, in their pursuit of validating subjective experiences of harm and, ironically, calling for more nuance.
I definitely think that article is getting at the same problem I am. But in my opinion it still engages in what I'm criticizing here: taking the legal concept of sexual consent and trying to stretch it so that it covers the full extent of harm in all possible sexual situations. They say "consent is an experience" but like. Is it? Or are we just taking the legal term and then giving it a new definition? Why does "(sexual) consent," a legal concept, need to carry the weight of one's entire experience of a sexual encounter?
Did you ever consent to something, but still came away feeling violated? Ever said “yes” to someone and then wished you could take it back? Well, you can.
Here’s the thing: it is possible to consent to having some experience and then, sometime in the future, not consent to having had that experience.
Put another way, you have “the right to retroactively withdraw consent” from any encounters you had, at any point in the past, that no longer feel good or safe to you.
Currently, the way we talk about consent leaves no space for people to re-evaluate their own experiences. Nevertheless, people frequently do re-evaluate their experiences—including and perhaps even especially their sexual experiences—based on a variety of factors. Newly learned information, changing circumstances, or the way they themselves have changed are all things that can and do alter people’s feelings about the past. Discourses about consent that don’t make space for such after-the-fact evaluations are flawed.
There’s a better way to think and talk about consent, one that honors peoples’ entire experience of a situation—past, present, and future—not just the tiny time-slices of that experience during which they were asked, “Is this cool with you?” Instead of understanding consent as “giving someone permission to do a thing,” we can and should talk about it as “being okay with a thing happening.”
I think this is all a pretty noble pursuit and everything said here is pretty true. But then we get to:
In such a model, if Bob and Andy have sex, and Andy says, “Yes,” “Sure,” “Okay, fine, whatever,” or even, “Ooh baby, do it to me!” but still wakes up the next morning feeling like he was raped, that means Andy was raped. Conversely, if Andy and François have a steamy make-out session in which no words are exchanged but they both go home feeling great about it, and they keep feeling great about it, that experience was consensual.
If our concern is with not violating a person, rather than not violating a rule, then “a violation” is defined by what happens when a person processes and continually re-processes their feelings about an experience. Likewise, if our concern is about behaving ethically and with integrity, rather than making sure we are not held accountable for coercive actions, then we should respect consent as an experience people have, not a commitment people make.
But why? Why does Andy's feeling of violation need to mean Bob violated him? Do the actual events not matter? Clearly they do, since they are what Andy is reacting to. Obviously this is a highly abstract example, but this practically, the morality of this situation shouldn't be abstract. Andy would be a real person with specific and complex feelings and experiences, and Bob and he did specific acts together. Does he feel that way because of internalized homophobia and shame, making even pleasurable sex he desires feel violating and filthy? Did Bob treat him in a way that made him feel dehumanized or disrespected? Did he reflect on his choice to say "yes" in that moment and realize that the circumstances made that "yes" less an expression of his actual will / desire than he thought?
Typically, we define “consent” as the act of communicating to someone that it is okay for them to interact with us in a particular way. In other words, people generally believe consent is synonymous with permission. Andy “consented” to sex if Bob asked, “Will you have sex with me?” and Andy said, “Yes.” They behave as if “consenting” means agreeing to do something.
If Andy says “yes” to sex with Bob but still winds up feeling like his boundaries were violated, Bob bears no responsibility for Andy’s discomfort as long as Bob stuck to their agreement. Bob can be a nice guy and help Andy process his feelings, if he wants, or he can be a dick and just tell Andy it’s not his problem. Later, Andy can choose not to play with Bob again because he had a bad time, but he is not “allowed” to call Bob a rapist—Andy would be making a “false accusation”—because Bob didn’t break any rules. We call this the “consent-as-permission model,” or “contractual-consent.”
Again, what did Bob do, though? Why does feeling like your boundaries are violated make what actually happened irrelevant to calling someone a rapist? I'm not saying this because its never right to retroactively realize you were raped. But generally when people do that, its not just because they felt their boundaries were violated. They felt their boundaries were violated because they were, or they realized that the context they were in had a much stronger impact on their ability to meaningfully say "yes" than they realized at the time.
This realization can come as a result of feelings and allowing oneself to explore those feelings and treating those feelings like they matter. But the reality of the violation is not the product of those feelings alone.
If you accept the premise that someone’s experience of sexual violation “counts” as rape, regardless of whether they granted verbal permission beforehand, then in order to avoid being accused of rape you’ll have to shift your mindset from, “I’d better make sure I was told it was okay to do this first,” to “I’d better make damn sure this person isn’t going to wake up tomorrow and feel like I raped them.” The latter is a standard requiring much more communication, understanding, and compassion from the people involved than the former, especially in situations with near-strangers like one-night stands, hook-ups, or play partners you might meet at a club.
But "is this person going to feel like I raped them" is kind of the point of seeking consent. Like, I do think there is a lot more to having a positive sexual experience with someone and not hurting them, so again, I don't think permission is the only thing to be thinking about. But this model sets people up to be in a position where you can never truly know if you raped someone. Now, I know the authors talk about trying to move away from people seeing "rapist" as this uniquely evil category of person, which I agree with. But I also find it unfair to act as though people are only off put by this idea because they are "men or sadomasochistic "Dominants"" who don't want to be held accountable.
The authors chose to use the most extreme word possibly, as if they don't trust that it is possible to take negative sexual experiences seriously without attaching the Serious Word to it. And yeah, when you start saying people can retroactively become rapists no matter what they actually did in the moment, even if the other person gave enthusiastic consent, people are going to have a strong reaction. The authors seems to be concerned primarily with how people use "they consented" as an excuse for otherwise harmful behavior, but like. we can absolutely talk about those situations and how to hold people accountable.... without creating a model where, in their own words, even if someone gives explicit, enthusiastic, verbal consent the only thing that matters when it comes to it being consensual or not is how that person feels about the experience over time ("In such a model, if Bob and Andy have sex, and Andy says, “Yes,” “Sure,” “Okay, fine, whatever,” or even, “Ooh baby, do it to me!” but still wakes up the next morning feeling like he was raped, that means Andy was raped.")
This isn't necessary to handle these topics and the harms people experience, and it is extremely obviously going to cause a lot of immediate resistance to some otherwise important ideas, so why are we doing it?
I think this person puts it well:
On some level, my objection is linguistic. As shown by both OP's analysis and mine, most people already have a strong definition of what they think consent is. In my opinion, such a strong shift in how we view the quality of sexual and intimate relations is better expressed by using new terminology than by attempting to significantly change the definition of the old. What OP describes as (generally retroactive) violations of consent are failures of the quality of a sexual experience. I take OP's desire to call these violations of consent as an attempt to emphasize the importance of this issue by co-opting the language that we already use to describe the worst of sexual interactions.
That's also a big issue. The authors are using terms that have very strong and specific meanings, and stretching them to a point that, while philosophically consistent, makes this model off-putting for most people. And it is unnecessary, which is frustrating, because I think what they are describing here would be so much stronger if they were not so insistent on using the terms "consent" and "rape."
Not to mention how the legal framework already gets weaponized against trans people. If you have sex with someone and later find out they are trans (or maybe they even transition afterwards) and that makes you feel violated, that means you can call that trans person a rapist? A gold star lesbian has sex with someone who the next month comes out as a trans man, and now they do not remotely feel "okay" about that sexual encounter, they feel violated and dirty. So that trans man is a rapist now? What exactly should he have done during that sexual encounter to pre-plan for his hookup feeling grossed out about fucking a man?
Like, I love talking about how we devalue subjectivity, I genuinely think it is extremely important and that is a part of my original post. But I don't think "whether or not something was rape can be retroactively decided upon based on how (one?) person who was involved feels at a later date." Or consider a white girl who has willing sex with a Black boy, and then her racist parents find out, and she comes out and says it was rape because she actually feels really bad about it retroactively. In that circumstance, no amount of proof the Black boy gave that she consented will ever be enough because her consent has nothing to do with what actually happened, only what she feels in the present moment, and if she says it was rape, he has literally no recourse. Like, can we not pretend that false accusations of rape are something that is never used to seriously harm vulnerable people?
I think consent is just permission, tbh. But "permission" is not the only relevant thing in a sexual encounter. It also necessarily involves setting the terms for what circumstances, under any, you are giving permission (i.e "I will have sex with you if we use a condom, you don't touch my neck, and you treat me with respect.") I think this goes along with how we need more language to talk about sexual harm that isn't just sexual assault; you don't need to have been raped to feel violated and have that experience of violation be real and serious. I think the goal of getting people to understand "rapist" not as some fundamentally different category of person, but anyone can do to another person, is really important! But I don't think this is really the best way to go about achieving that?
I think that the binaristic view of consent is built into the concept of "consent" in some degree, so even when you try to inject nuance, you are still fundamentally working within a framework where the sex had was either consensual or nonconsensual, and it can't be both or neither. So even though Andy's experience may be complicated, it gets reduced down to either "consensual sex" or "non-consensual sex (rape)" without much wiggle room. What if Andy doesn't want to describe what happened to him as rape, but it also didn't feel harmless on Bob's part? People can say "You did something hurtful to me" without calling the person who hurt them an abuser if the situation simply would not be usefully described as abuse. And the same goes for sexual assault.
Or, to put it another way: I think its accurate to say that if you give someone permission to enter your home, and they had a gun to your head while asking, or you were very intoxicated or dissociated when you let them in, or they harangued you for hours until you finally broke down and let them in, or you gave them permission under specific conditions that they broke but then refused to leave, that permission wasn't really freely given (or unrevokable) and its not right to say that you consented to them entering (or remaining in) your home.
But just because you gave someone permission to enter your home, never asked them to leave, and then later realized that you didn't actually like having them in your home, and maybe they even treated your poorly during their stay, doesn't make that a home invasion. Your feelings can be fully real and valid. The other person can even be in the wrong! You can be pissed at that person, you can talk to others about how terrible their time in your house was, and it doesn't mean its right for that person to act like they have no responsibilities to you as a person around how they acted just because they technically had permission. And yet that STILL doesn't mean you retroactively didn't consent to them entering your home and they are now guilty of breaking into your house against your will. And that doesn't become more of a reasonable framework even if you accept that "home invaders" are not some uniquely horrible type of person. Anyone can break into someone else's home, but that doesn't that anyone should be considered guilty of home invasion because someone somewhere retroactively stops being okay with having given them permission in the first place.
You can apply the same basic metaphor to violating business contracts vs. behaving poorly or unethically in a business relationship. Notably, both of these metaphors are also fundamentally based around legal concepts. Because again, that is where we get the idea of sexual consent. Its not that consent is used in a legalistic framework, it is a legal concept. If we don't want to be strictly legalistic in our understanding of sexual harm, why are we so dead-set on never giving up the basic premise that sexual consent = ethical sex? We can just. not. you know.
Ultimately I think me and these authors have a lot of similar goals, but I fundamentally am disagreeing with the idea that we need a "new model of consent" that wraps every experience of sexual harm up in a bow and labels it either "consensual sex" or "rape," whereas they seem to still be very attached to that basic framework despite their attempts to critique it. And again, none of this is necessary! We can built a better framework for centering victims and their needs without a model which defines "rape" and "consent" so broadly that the terms are fundamentally different than how the vast majority of people understand them on a basic level. In my opinion, all ethical sex is consensual, but not all consensual sex is ethical.
