Transactionalism and consent

It’s about sex, but I’ve no choice but to put it into a broader ethical/political matrix.

Liberal law differs from earlier forms of law, but in one respect it’s no different than the the way law behaved as described by Paul of Tarsus almost two millennia ago. Law begins with its own claim to aim toward justice, and inevitably creates new injustices in its application. It’s also always an attempt to impose fixed rules on fluctuant phenomena, to define a solution prior to and apart from the context of actual instantiations of the problem. And finally, the law is always in the hands of the powerful in its creation and application. (Anatole France said, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”)

Consent, as both a sexual-ethical bottom line and a legal concept that’s applied to transactions apart from sex, is founded upon two metaphysical assumptions: the proprietary body and individual agency. We’ll say more on these.

Consent, as a legal precept, has a developmental aspect, by which I mean the prior recognition of the fact that human beings who are not incapacitated by various pathologies mature from a state of absolute dependency through stages of formation wherein they gain the experience and conceptual mastery to make safe and reasonable decisions on their own. We don’t believe that a ten-year-old girl, for example, is sufficiently formed, bodily or by her experience and training for reason and sound judgement, to “consent” to joining the Army or working in a factory or having sex with a man.

This is just the first thing we’ll discuss about the trickiness of consent. We all know that actual people, and not statistical scatterplots, develop different capacities at different rates and to different final degrees. We all know precocious old-soul teens who have very good judgement and display a real aptitude for common sense and responsible behavior; and we all know that guy—the fifty-year-old adolescent who leaves a damage path behind him wherever he goes.

Liberal law’s solution for this is restrained, because liberal law, by definition, is self-restraining. It’s reluctant to impose (even common sense) restraints on “adults.” And so we establish, by law, ages of consent that are, to one degree or another, arbitrary. We’re all pretty sure that a twelve-year-old lacks the capacity for consent without exception, and we all know that some eighteen-year-olds lack that capacity in reality, even when he or she is granted that capacity by law. (This is why I say, the law is always, in a very real way, an idiot; which doesn’t mean we shouldn’t have laws.)

In fact, in the US, where I live, each state has its own sexual age of consent laws, which fall into three categories: unrestricted, restricted by authority, and restricted by age difference. Unrestricted means they can legally consent to sex with anyone else of legal age. Restricted by authority means at certain ages they can consent to sex with someone a certain number of years their senior, so long as that older person is not in a position of authority over them (like a teacher, e.g.). Restricted by age difference means a younger person may consent only if the older person is within a certain number of years of her/his own age. In Arkansas, for example, where much of my family is from, a fourteen-year-old can consent to sex with someone up to sixteen-years-old, whereas a seventeen-year-old who has sex with a fourteen- or fifteen-year-old can be prosecuted for statutory rape. A sixteen-year-old can consent to sex with a thirty-year-old friend, but not a twenty-two-year-old teacher. An eighteen-year-old is unrestricted. In Washington State, 21 is the age of unrestricted consent. In Rhode Island, it’s 16.

There’s a more or less solid consensus about the center here (no one, except a handful of loony perverts, is saying a nine-year-old can reasonably consent), but there’s an arbitrariness about where the actual boundaries are marked.

Interestingly, in the case of “authority-restricted” sex between, say, a sixteen-year-old student and her teacher, the law recognizes a prior power gradient as impinging on the concept if consent; whereas once anyone reaches full legal adulthood, prior differences of power become almost invisible to the law. (We’ll be returning to this.)

Legally, consent is constituted by “voluntary” and “willful” agreement to some proposition. This can be sex, or an employment contract or a sale (the latter two being transactions). To grant consent, the person must “possess sufficient mental capacity.” A twenty-year-old with a severe mental disability doesn’t fall into the same legal category, with regard to consent, as most twenty-year-olds. Consent cannot be given if the person consenting is the victim of intentional deception—fraud, for example. It cannot be given under coercion. Consent can be nullified if it was given based on certain errors. Consent is likewise nullified (as a legal defense) if what was consented to was illegal.

Consent, by law, need not be expressed. It can also be implied. In sexual matters, as many of us have experienced, mutually-desired encounters do not proceed along legalistic lines. They are deeply interpersonal, and when they are genuinely loving, absolutely transcendent, experiences that unfold in an exchange of signs and actions that are irreducible to something like the law. Consent is implied in these exchanges, should they ever become visible to the law.

The law does (now, not always) say that, should this unfolding begin to feel wrong (perhaps when what felt intersubjective suddenly feels objectifying), and one partner (a female in most cases) wants to stop, the simple declaration of that desire to stop (No! or Stop!) is legally sufficient to cancel any perception of implied consent. (For the record, I wholehearted agree with this standard. It’s a minimum standard, though, and insufficient to make ethical judgements apart from and beyond the law.) Implicit in this consent-boundary, in this particular instance, is the requirement for self-restraint on the part of the person who’s told to stop. This, even and especially in the face of inflamed desire. Which is to say, the inflammation of desire is insufficient to override the consent standard, with its demand for (usually male) self-restraint. This is important to the rest of our argument, because liberal law and variations on liberal political philosophy trend against the notion of restraint. In some instances, restraint is considered anathema. (Think about the legal notion of prior-restraint, e.g.)

We know, of course, that desire is a promiscuous phenomenon, and that sexual desire can be triggered and inflamed by all manner of circumstances; and likewise we know (or should) that desire, including sexual desire, can’t be plotted on either side of the invented dichotomy of nature versus nurture. Human bodies are sexed at the outset, yes, but the developmental formation of desire is social (and I won’t drift away here into mimetic learning theory and all the rest). One is not born with a shoe fetish or a pedophilia gene any more than one is born with an attraction to blondes.

Whatever triggers or inflames sexual desire, the law (and ethical common sense) tells us that we cannot indiscriminately act on that desire. We have choices to make, and the wrong choices have consequences. No wiggle room. (Of course, lawyers, some of whom will twist anything, as well as ideologues of several stripes, will employ all manner of sophistry to get around these restrictions.)

And so we come to another intermediate concept in any discussion of consent: choice. In its most pristine form, according to our shared cultural (and quasi-philosophical) assumptions, a choice is made by one person—described abstractly as an individual, a unit of society that cannot be divided—with no outside influences, no history, and no pre-choice relations of power with others. This is the starting point of the law, because law is an idiot. A fixed law doesn’t have the capacity to comprehend in advance all the complexities of an actual person, who is, in addition to being indivisible^^^, is irreducible to something as abstract as an individual. Any actual person, while identifiable, is, in his or her whole personhood, a dynamically situated agglomeration of physical, mental, historical, socio-cultural, and even mystical properties, who is, in him- or herself, also a consciousness with all manner of psychological complexities, skills, desires, habits, etc. etc. etc. The law cannot grasp this living totality even in the presence of the actual person, much less anticipate it in thousands, even millions of persons.

And yet, the law has tremendous power over our lives as persons, and this power can and does impose a degree of conformity and order on us. In fact, just as we have to share public spaces, consumer spaces, work spaces, and so forth, we also share this metaphorical “space” of being under the law. Just as we learn the rules and etiquettes of those other actual spaces, we all adopt—those of us who are cognitively and normatively competent—an attitude toward the law, which is a political “space,” a metaphorical space where power is debated and negotiated. This attitude is what I’ll call a juridical attitude. Because we, like the law, are incapable of knowing all others and reliably anticipating the attitudes and actions of others, we become invested—both as members of a public and as persons trying to make sense of our world—in juridical debates, or debates about law . . . and given that the law centers “choices” so decisively, about the meaning of choice.

In order to keep up, which is never quite does, the law has to be refined. Most of us (non-jurists) who’ve read legal fiction or watched legal dramas on television or in film are familiar with the terms “mitigation” and “extenuation,” for example. Moreover, as the law gains experience in newly emergent social phenomena (think about digital technology, e.g.), it attempts to shoehorn its encounters into existing legal precedents, not always very successfully.

One big issue here—speaking of sexual ethics and law—is rape, both forcible and statutory. Prior to 1974, in the US, there was no such thing—legally speaking—as marital rape. Of course, men were (and still are) forcing unwilling wives to have sex with them, but the law didn’t recognize this as rape—which began (legally) as a kind of property violation. The transition to rape as the violation of a consent-boundary is a fairly recent development (say thank you to the radical feminists for this!). Marital rape is now illegal in all 50 states, though its consent-boundaries still vary. In South Carolina, marital rape is still not rape unless a “high level” of violence is used to achieve it.

South Carolina Code 16-3-615 (Spousal Battery)

Sexual battery, as defined in Section 16-3-651(h), when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together, constitutes the felony of spousal sexual battery and, upon conviction, a person must be imprisoned not more than ten years.

In South Carolina, it is illegal to rape one’s wife if she’s unconscious from a drug the husband has slipped into her drink, but if she’s passed out from something she herself “consented” to consume, he can rape away. “Prior consent.”

We noted earlier that in reference to ages of consent, differences in power were taken into account with regard to the legitimacy of consent. This is far less so in cases involving two or more legal adults. That the law refuses to recognize these differences doesn’t change the fact that differences exist.

Liberal law is very reluctant to acknowledge relative power in “transactions.” The difference between the power of Jeff Bezos and an Amazon employee is invisible to the law in the employment contract. An employee who takes the job driven by dire circumstances that Jeff Bezos has never imagined, the consent implicit in the contract is seen by the law as an agreement between “equals,” Of course, Bezos himself—by law—is not the signatory, a corporation is . . . another complication, in that the law can recognize a non-person as an individual. The point is, liberal law sees actually unequal agents as legal equals.

Another peculiarity of the law is its reluctance to acknowledge history. Not history as an academic subject, but personal histories. It will acknowledge both history writ large and even personal histories in some cases, but the reluctance remains, because these are slippery slopes away from the fixity of law. Liberal law starts by seeing us all as equals, and it has to be dragged kicking and screaming away from this false conviction. In the attempt to impose standards, persons must be conformed to the standard, and not the contrary.

We begin now to intuit the relation between law, consent, and the juridical mindset. Let’s now begin to fold in the business (pun intended) of transactions.

Transaction, in law, is slightly more complicated than what we think of as a day-to-day transactions. Day-to-day, we can think about going to a taco truck. You want some tacos. The price is written on a board. You pay the price, and take the tacos. Simple, straightforward transaction. In law, transaction has two meanings—a business meaning and a civil meaning.

In business law, a transaction is an event associated with business dealings conducted between two or more parties that involve the formation and performance of an obligation or contract. The word transaction is frequently used in real estate and mergers and acquisitions markets.

In civil law, the word transaction may be used to refer to an agreement (commonly written in the form of a contract) reached between two or more parties whereby they make reciprocal concessions to prevent or end a dispute that might end up in litigation. These types of agreements are also known as compromises or settlements. (citation)

All contracts are transactions, but not all transactions are contracts. A civil transaction does not always require something in writing.

In the metaphorical popular mind, conditioned as it is by the juridical/political mindset, and further conditioned by a thoroughly commercialized society, almost every aspect of one’s life can be seen in transactional terms. This is where we drift into the Venned realms of ideology, epistemology, and psychology. Shared cultural (or sub-cultural) belief systems, the ways we know, and how these beliefs and ways of knowing are incorporated into a personal worldview (and one’s sense of stability).

There is a strong liberal/libertarian/neoliberal/capitalist strain of thinking that’s tied to the notion of the pristine individual making pristine choices and the sanctity of of this “freedom of choice.” It sees the world as a vast matrix of self-organizing transactions between these freely choosing “individuals.” It further claims that the purer and more universal this “freedom” is, the more they self-organize society in beneficial ways. Individual selfishness tends ultimately toward some common good. Of course, here we run into the impasse of disagreement over what exactly constitutes the common good.

This transactional mindset corresponds with the notion of “freedom,” which is understood as individual freedom of choice. This idea of freedom excludes a priori a different kind of freedom from consideration—one that’s outside the juridical mindset—and that’s being free from those many petty despots that are invisible to the law: like unchecked desire, as just one example. The juridical mindset, and the transactional mindset, as well as the several reluctances of liberal law, foreclose our consideration of the very idea that we can become the slaves of desire, even when we know very well that we can, and that people are.

With all these considerations in mind, then, let’s return to the question of consent.

I am a devotee of a certain kind of virtue ethics. You can look it up, but this is just full disclosure. Other ethical tendencies, so to speak, include deontological and utilitarian. The difference between a virtue ethical orientation and the other three listed, is that the latter two attempt to establish universal standards, across cultures and traditions, which can anticipate, regulate, and adjudicate “ethical” (or moral, or right) actions. Virtue ethicists are pretty skeptical about this universalizing project. The shorthand is, deontological is duty-rules-based, utilitarian is outcome-based, and virtue ethics is tied to practices and their traditions. The deontologist says what’s okay for one is okay for all, and if it’s not okay for one then it’s not okay for all. A lot of liberal law is based on this deontological one-size-fits-all approach. The utilitarian says, “the greatest good (there’s that “good” question) for the greatest number,” which is achieved, when necessary, by the end justifying the means. A virtue ethicist differentiates “goods,” and emphasizes the virtuous development of a person engaging in practices with traditions. A good soccer player is embedded in the tradition of her practice, and the goods internal to that practice are aimed at certain excellences (teleology, we’ll stay out of that rabbit hole). These differences, as well as newly emergent social phenomena, make ethics difficult, and these contradictory approaches to ethics set up Ethics to become a tedious parade of real and hypothetical quandaries.

Bearing this in mind, along with all the other issues we’ve brought on board, let me pose a situation; this one’s hypothetical, but also too commonly real.

A young widow with three children and no life insurance settlement. Her daycare eats half her paycheck, and she’s falling further and further into credit card debt. A creepy co-worker who knows she’s in dire straits offers her $250 to have sex with him. If she consents, is this meaningful consent? Did she make a free choice? Are your answers juridical or ethical? Can you separate the two?

Another one.

A married woman, who has no decent employment prospects and depends upon her husband financially. She no longer, for whatever reason, has any desire for sexual relations with him. When he threatens to divorce her if she doesn’t, does her acquiescence to unwanted sex constitute consent?

One more.

A young woman who’s become addicted to methamphetamine. Her habit has cost her her livelihood, she’s living on the street, and she actively solicits sex with men in exchange for money to feed herself and her habit. Are these transactions consensual? Are they ethical? What’s the difference?

Let’s grab one more concept, one that’s integral to liberal/libertarian/neoliberal/capitalist thought and law. The proprietary body. This one’s kind of strenuous, because we have to consider the mystery of the person in two facets: consciousness and embodiment.

Consciousness is the tough one, because what precisely “it” is, is still paradoxical. What do we mean when we refer to a mind? Not a brain, a mind. Yours is performing all sorts of acrobatics right now, as you read this, and while a brain may be the mechanical facilitator, this self-aware experience is something very different than a physical organ. You not only can think, you can think about thinking. You’re not only aware, you’re aware of your awareness. We have strange terms in our cultural repertoire like “the mind’s eye” to grasp this paradox. More problematic still, as an intellectual exercise, while we know of experience through experience itself, and while this mind is not synonymous with the material of the material body, the mind and material body are in actuality inseverable, though this false severability is our cultural episteme. An actual person is neither divisible into mind-AND-body nor reducible to some scientistic account.

Material sciences are very good at measuring discrete material phenomena, but they haven’t the capacity to fully account for minds, and therefore haven’t the capacity to fully account for persons. The law, in its idiocy, is even less capable of doing so, which may explain why we still cling to an archaic notion like the proprietary body. The body as property. This is a foundational notion in liberal/libertarian/neoliberal/capitalist thought. You own “your” body. The scare quotes are to highlight what a strange proposition this is, that someone who exists as a body can also be the alienable “owner” of it.

Ever since Locke, the notions of “self-ownership” and “freedom” have been twinned, but the concept is built on a kind of tautological sand.

If I own my twelve-foot lake boat, implicit in that claim is that I can be alienated—separated—from it; and that I can effect this separation through a transaction by selling it. Or giving it away. It simply makes no logical sense to say that about myself as an embodied being. I can destroy the boat and still exist. This is the acid test of alienability. I cannot destroy “my body” and continue to exist.

Nonetheless, law has long described the body as having the same character as property, that is, I can do with it as I wish (to a degree—states also have a limited claim on your embodied person). This has gotten even thornier in ethical/legal terms as the organ harvesting industry has grown, and in the face of other horrifically exploitative new practices like surrogacy. It’s long been a justification for the still highly predatory and misogynistic sex industry.

The proprietary body also became manifest in the late twentieth century idea that one could be “born into the wrong body,” as if. This alienable body has made its reappearance, or super-appearance within pop-post-structuralist gender ideologies, though here the “wrong body” thesis has itslef fallen into some disrepute as contradictory and unacknowledged metaphysical premises have been applied to it. Is being “transgendered” (a subjective self-report) an inborn (read: genetic) trait (a quasi-bio-essentialist claim), or a matter of self-invention and “choice” (a libertarian, anti-essentialist claim)? In either case, we’ve still begun with an alienable body. The question remains, alienable from what or whom?

Once accepted, in the Lockean schema, the alienable body is placed on a transactional grid. Alienability in a transactional universe, then, is an ideological sine qua non for any further discussions of law or ethics. Or the law and ethics applied to sex.

Consent is defined from within these parameters, where it takes on the color of legal consent as applied to business and civil adjudication (the juridical mindset).

In the case of “gender-affirming care” for minors, which means everything from prescribing puberty blockers to irreversible surgeries, some states have allowed these interventions, not for laboratory-proven pathologies, but “gender dysphoria,” a self-reported “feeling” about being in the wrong sexed body (a belief often cloned from unsupervised online groups). Oregon now allows 15-year-olds to obtain puberty blockers, cross-sex hormones, and “sex change” surgeries (surgical simulations that don’t actually change sex, but which do permanently sterilize the patient) without parental consent! Personally, I think this is insane. We’re not talking about treating a hormonal disorder like precocious puberty, but using chemicals and surgery on physically healthy bodies, which invariably produce a host of dangerous and often irreversible effects. In Oregon, your 15-year-old daughter is counted as competent to “consent” to a double mastectomy with a hysterectomy. (For more on this, see my lengthy treatment of gender ideology.)

The law is an idiot.

We imputed some very general claims above about the intent, or the telos, of the law. It’s simultaneously aimed (or so it is claimed) at serving the common good through the provision of general prosperity, order, and justice. We know, in fact, that the actual law more often than not wears these intentions like a costume even as it serves the interests of powerful minorities. Even in those cases where there was righteous intent in the creation of law, its implementation and application comes to serve power in short order. This doesn’t mean the law, generally speaking, doesn’t ever serve the common good. Few of us would sanction murder, rape, assault, incest, vandalism, theft, etc. Most of us, in the right circumstances, would call for police to intervention. (I remember when certain activists were saying things like, “Abolish the police,” thinking this would be met with approval from majority black communities, only to be met with chagrin from those same communities, who thought they were batshit crazy. They didn’t want to stop policing; they wanted cops who behaved justly.)

With regard to sex and consent, the law at least recognizes its own limitations. Sexual encounters—good, bad, and indifferent—are far too varied, and far too personal for the law to anticipate. Consent becomes a kind of baseline, far below anything any reasonable person would consider morally/ethically sufficient. Our redounding to legal standards even in ethical discussions that ought to rise above the consent standard, is a feature of our juridical/political conceptual default. What’s beyond, above, and apart from the law is like politics and religion at a family reunion—off limits. Too many different opinions and no language of translatability to (ahem) ajudicate the differences.

The problem with sexual consent in the legal arena is that it’s easy to question using the imputation of implied consent (a real thing with which most jurists and jurors are familiar from their own lives, and therefore easily projectible). Obviously, other prejuridical beliefs, delusions, and prejudices are the targets of unsavory lawyers who work these projections. It turns out that real “freely choosing individuals,” like juries, customers, and con-marks, are remarkably open to manipulation. (Global annual advertizing revenues are close to a trillion dollars; it’s not an accident.)

The tendency for all of us to resort to juridical arguments, in the face of the limitations and perversions of law, corresponds to another general tendency in post-Lockean societies, and that’s the transactional mindset—a way of knowing that interprets all interactions as if they were transactions. (as opposed to interactions). Even those ostensibly on the political left—who should know better, based on the valid critiques the left has of the transactional interpretive framework in economics—have unaccountably absorbed the transactional mindset (based on Lockean principles) into their advocacy around issues of sexual relations, as well as the highly exploitative and extremely profitable sex and “gender” industries).

I won’t speculate (now) on why this is. I’ll only say, it’s a glaring contradiction.