Consent: A Universal Capability of Particular Oppression – Renny Ramone
February 8, 2018
Semantically, consent signifies an agreement reached together. Etymologically, consent has its origins in the Latin word consentire, the prefix con meaning together and the root verb sentire meaning to feel. To feel is a sign of humanity. To share those feelings with others whom have the same feelings is a right of humanity, if not a defining quality. Consent is a form of power. Although power can be misconceived as having negative connotation, due to its use in oppression, this is not necessarily the case. To have power means to have a capability. It is a freedom. The capability of power has no capacity; it has no particulars, it is not absent in anyone, it is an intrinsic quality of life. Denying power is a form of power; specifically it is oppression. It is my contention that to question consent is to question power. Furthermore, to deny the capability of consent to any living human is to deny their humanity. To give consent is to be autonomic. It means you have the freedom to govern your own body. However, in the eyes of the law, the human body is not seen as such, rather it is victimized by identity. A female is not a human being but a woman, a young person is not human but a child. All of these notions of identity are constructed in contrast to a male body, which does not have an identity unless it is non-white. For an authority to restrict the power of the body endowed by nature is to treat it as subhuman.
Society is structured on the premise that at some level nearly all of us share a feeling, one we can agree on. This is how we consent to live in the society. This is a rather polemic notion in light of modern scientific discoveries. It is incontestable that it is biologically impossible for humans to have ever existed without a social aspect. Primates have been proven to be social animals as well as the lineage to our DNA. To conceive of a world consisting of human life without society would be ignorant of science and history.
Despite the actual existence of a state of nature, consent has been seen as a defining quality of society. Typically this is illustrated through the lens of the social contract. In this regard, consent is the force which allowed for society and separated humanity from nature which created civilization. This force becomes a defining quality of humanity in the sphere of political philosophy. The ability to share feelings is a condition of being human — to not have that ability would lack humanity. A psychopath is seen as subhuman. There are necessary and sufficient conditions, extending far beyond the scope of this essay, due to being structured around thirty questions where different answers have different value, which if met qualify someone as a psychopath. In order for this test to administered there must be some notion of previous violence or reason for incarceration. Once qualified as such, the inalienable rights of humanity are subject to the greater good of society. That is to say that when a psychopath is qualified as such, they may remain imprisoned beyond the maximum time allotted for their initial sentence. The logic is that psychopaths have been proven as socially incurable. Psychoanalysis or therapy only enhances their ability to subvert themselves socially in hopes of the freedom to commit more evil. They lack all possibility of sympathy and empathy. They are unable to comprehend the feelings of a typical individual. They have no memory of pain and pleasure, and therefore are unacceptable to society. Legally, humanity is not intrinsic to homo-sapiens.
In The Use of Pleasure, Michel Foucault closely examines the Greek conception of aphrodesia, acts which are the work of aphrodite. In a nutshell, aphrodesia were acts resulting in pleasure. Because these acts resulted in pleasure they were recognized as potential sources for corruption in the incontinent individual. Although, the sexual connotation of an aphrodisiac was not intrinsic to the term at this point in history. Aphrodisia conceptually consists of three elements: desire, action, and pleasure. The desire and the pleasure are not points to be judged by the Greeks, but it is the action or lack of action which identifies the virtue of the individual. Sex between men, in ancient Greece, was not known as homosexuality, nor was sex with children known as pedophilia. The desire, and the source of pleasure, were not seen as a quality which humans were capable of controlling, but action was. To be able to act in spite of desire or the temptation of pleasure is a sign of continence, or self control.
The branding people as homosexuals or pedophiles did not occur until the nineteenth century. Foucault explores this notion in the History of Sexuality Vol. 1. In the nineteenth century, the general conception of men having sex was pathological, as though they were born with a disease that caused them to sexually inverted. They were seen as different in nature and were segregated to a different identity and thus given the title homosexual. The segregation between children and sexuality also occurred around this point in history. The form of speech used in matters of sexuality changed; it was something to be hidden and repressed. What the Greeks saw as a virtue in having the capability of continence, the nineteenth century saw as a defect that must be corrected for. Children did not have to power to understand sexuality the way adults did; they were not in control of their desire and not to be blamed for their action. They were potential victims in their very existence; they were prey that needed protection. In order to protect them society repressed them, not allowing them to encounter sexuality. This is also the point in history where the act of confession reaches the height of its popularity. Admitting to sin or thoughts of sin was seen as a cathartic endeavor capable of cleansing the lack of continence. This is also the point in time where surveillance of the individual begins to gain popularity with specificity to children. They are given strict rules that must be obeyed without exception and examined spontaneously throughout the night. Foucault sees this as a tactic to repress the act of male masturbation in children, an act of continence conditioning in a way.
When two people consent in the eyes of the law, it is to say that they agreed on having shared feelings in regards to the action in question, prior to the action taking place. Legally speaking, consent requires certain capacities and abilities, apart from being human. This is to correct for misconceptions of consent, where a party consents due to a temporary or permanent ignorance, or because they have been subjugated to a point where consent is irrelevant — in light of the choices at hand, it is a lack of freedom. For example the case of a sexual act performed upon someone by force, or at gun point, or who is witnessing their child at gun point, or has been drugged, or is unconscious, or if they are too young, then is an act of rape. These people are not capable of consent in the eyes of the law. This is not a flaw due to an intrinsic incapacity of the individual, but due to the incapacity in the context of the situation and the identity of the individual. Can an individual’s freedom be taken away by another individual in the eyes of an egalitarian legal system?
Consent, in the legal regard, is a form of power. When someone is raped, they are sexually overpowered and subjugated against their will. In such a situation, the power to come to an agreement of feelings together is impossible. This is not to be contested in the context of this essay whatsoever. What is in question is who defines power, will, and sexuality? Though morality may be relative, may it be assertively stipulated that violence of any nature used to subject someone sexually, in other words rape, is a crime of the worst possibility; and it is not the moral status which is brought into question, but its legal definition and its appeal to universals with particulars. The conception then is that someone is not less than human when they are incapable of consent, unlike in the state of nature, but rather they are being treated as less than human. But this is a misconception of consent, or at the very least an inefficient system for proving consent.
In The Reasonable Woman, Kim Lane Scheppele cites liberal moral theory, as assigning a moral force to the conception of consent where “consent must not be imposed by someone who does not attempt to understand the potential consentor’s point of view.” Within the legal system, which was founded on liberal theory, Scheppele notes how “consent transforms actions from criminal to legal.” Often, certain acts are legal if and only if feelings are shared prior to the action, and furthermore it is the prior obligation of the party in question to minimally attempt an understanding of the other party whom is in the process of potential consent. This conception of consent is not contestable in theory, but its application undiscoverable in practice, it an ideal. To frame the world with ideals is to ignore the state of reality. It is a social oppression.
If consent can change the legality of an act, then it has a similar importance in our society with the notion of self preservation; the action of homicide can be a murder or manslaughter, unless it was for the purpose of self defense in which case it is legally justifiable. What is at stake in a question of homicide is the life of an innocent individual. In the question of rape, what is at stake cannot be so easily understood. For the defendant, what is at stake is obviously quality of life and social perception, because they could be incarcerated and lose all ties to humanity in the process. For the potential victim, what is at stake is a notion of retribution and a sense of comfort in the absence of one less rapist in society. But is that really what is at stake? Can we really know what could possibly be at stake for a rape victim? Rape, internationally, is one of the least reported crimes given its weight in punishment and the severity of its effects on the psyche of the victim. The possibilities seem infinite in explaining this, but rationale would have one believe that this may be due to lack of utility punishment has on the victim. It is of greater use to society than it is to a victim, unless they had potential to be victimized again. A rapist going to jail, does not make rape an easier violation to manage, at least not universally. Obviously rapists should be imprisoned — that is neither here nor there — what is at stake is the legal structure of consent, and how the parties are perceived through the eyes of justice.
Legally, cases of rape frequently question consent, and therefore serve as an efficient vehicle for seeing theory in practice. There are four sufficient conditions, in the Model Penal Code which transform sex into rape: 1) Force, or the threat of imminent death, bodily injury, kidnapping, or extreme pain to anyone; 2) A substantial and intentional impairing of the victim’s power to appraise or control conduct, through drugs or intoxicating substances, or any other means; 3) Victim is unconscious; 4) Victim is less than 10 years old. Should any one of those conditions be met individually, a sexual act is considered to be an illegal act of rape. Defining rape legally is crucial, because undefined laws are neither enforceable nor just; and furthermore, rape cannot be tolerated by any civilized society. It is a vicious act of violence that does not alleviate the body with death. To define it conditionally is of necessity, yet to define it would be an attempt at understanding its nature and form completely, which would make it predictable and recognizable. That is to say that if a sexual act occurred and any one of the four conditions were met, then that is a case of rape universally; and if none of those conditions were met, then it is not a case of rape universally. Now if what is at question in a case of rape is consent, and there are possible conditions for rape, then one could presume that there are at least four capacities which enable consent to take place prior to an act in the eyes of the law.
In the eyes of the law, sexuality begins at the age of ten for humanity; before that, one does not have the capacity to consent to a sexual act in any form whatsoever. Although the penal code explicitly states rape as an act only possible by men upon women, allow us to adjust that for its political incorrectness and ignore the obvious fallacy. Let us pretend we are in a state where it is legally possible for a man to be raped by a woman. In such a state, a ten year old female whom engaged in a sexual encounter with a nine year old male would be guilty of rape. Adjusted for the patriarchal position, this would be the equivalent of an eight year old male being charged with the rape of a nine year old female intrinsically in the act of engaging sexually. The potential morality at stake is of no relevance; what is being called into question is the restricting of sexuality with a measure of time, making one incapable of consent universally, regardless of any particulars apart from the age. Being below the age of ten disqualifies all capabilities of sexual consent without relation to the second party involved in the sexual act.
In any criminal case, the burden of proof always falls upon the prosecution. That is to say in our system someone does not have to prove themselves innocent to avoid incarceration, but rather the state must fail to prove them guilty. In the case of rape, this is either very easy to prove, or impossible to prove. If the victim in question is under ten it is an open shut case regardless of any further particulars. If a woman is forced in a way that is creative and innovative before the law, as in the case of State V. Rusk, that is, if someone holds the knowledge of what someone else is specifically afraid of they can manipulate their way around the notion of consent. By spelling out a set of sufficient conditions for rape, the law draws a map of how to circumvent the universal system of particulars. In such a case, the legal philosophy is turned on its head. Rather than the burden of proof falling upon the State to prove guilt, it falls upon the victim to prove innocence.
All human beings have the capacity for consent. Consent is a form of power which is located in the body, not the individual. Anyone with a body is capable of consent, any particular within the body does not disqualify consent as a capacity — if it did it would also disqualify them as human. Despite its appearance, problems of consent before the law are not an act of protection but of oppression. To deny a woman or child the capacity of consent is to pretend like they do not exist. Rape is not a sexual crime but a crime against humanity; it involves sex but that is not its end. To rape someone is to deny their humanity and right to autonomy; it is a violation of someone’s existence. The law in this case does nothing more than silence the victims of this heinous crime by subjecting them to further oppression. In such a light, it seems plausible that the worst act committed upon one human by another human without resulting in death is also one of the least reported crimes around the world. As a society, what do we offer the victims of rape, other than further subjugation through a denial of humanity and a judgment of their identity and character?