Some Thoughts on Private Law Theory, the #MeToo Moment, and the Limits of Consent

Aziz Ansari is a writer, stand-up comedian and actor well-known for playing Tom Haverford in NBC’s Parks and Recreation.

It seems to me that the “#MeToo moment” provides some interesting fodder for thinking about the limits of consent as a normative touchstone.  The contracts geek wheels are moving in my head.

We begin with rape and sexual assault.  These are obviously cases where we have an absence of consent.  Following Robert Nozick, I think that it’s helpful to think about coercion in  terms of action obtained through wrongful threats.  Threats to bodily integrity in order to obtain sex are clearly coercive.  The threat — do this or I will physically harm you — is always wrongful.  This covers much of Harvey Weinstein’s behavior.

Then we have sexual harassment.  This covers much of the rest of Weinstein.  Employment harassment is a little trickier than assault and rape because in the abstract the kind of threat involved in these cases isn’t always wrongful.  Saying “do this or I will fire you” or “do this or I won’t hire you” isn’t always an illegitimate threat.  These kinds of threats are implicit in all sorts of bargaining and commercial relationships that we rightly find unobjectionable.  Complete the ordinary business task given you by your employer or she will fire you.  Accept the compensation offered by her or she won’t hire you.  And so on.  On the other hand, threatening “Have sex with me or you won’t get this job” or “Have sex with me or I will fire you” is wrongful, both because such threats are a way in which women are denied equal access to employment and because while there are some things that is is fine to obtain via the threat of firing someone — i.e. do your job or I will fire you — sex isn’t one of them.

We can still think of sexual harassment as an attack on consent, but it gets murkier.  One way of understanding what is wrong with sexual harassment is to look at consent in subjective terms.  Notice that the Nozickian idea of coercion as wrongful threat looks — or at least looks in part — to an objective standard of wrongfulness.  We might argue that this is a mistaken way of thinking about attacks on consent.  What matters is the subjective experience of consent.  Was the experience of consenting infected with a sense of pressure, regret, revulsion, trauma, an overwhelming of the will or the like?  In other words, we think about consent as a particular kind of psychological state.  There is a lot of intuitive appeal to this idea, and I suspect that in popular understanding, this is what is wrong with sexual harassment.  After all, sexual harassment victims frequently suffer emotional and psychological trauma, trauma which we rightly regard as harmful and wrongful.

However, there are some very good reasons why thinking about consent in psychological terms is problematic.  First, imagine the person who is just very phlegmatic.  They are told by a superior, “Have sex with me or I will fire you,” say no, and are fired.  But the victim hated her job, was likely going to leave anyway, and just has a personality that isn’t easily ruffled.  If sexual harassment law is about avoiding particular forms of psychological trauma, then it doesn’t make sense to provide a remedy in such a case.  You could object that this isn’t a psychologically plausible hypothetical.  “Of course, the employee in this case would feel some psychological trauma!”  Fair enough, but don’t fight the hypothetical.  Instead notice that if we think that sexual harassment law is about equal access rather than psychology, then the psychological reaction of the victim isn’t a component of the wrong we are addressing.*   What matters is that allowing such threats will tend to make it more difficult for women to succeed in the workplace without assenting to otherwise unwanted sexual advances.

The other problem with thinking about consent as a psychological state is that consent in many, many aspects of life is often accompanied by feelings of pressure, regret, or unhappiness.  Life is filled with difficult and unpleasant choices, and we risk denying to people the possibility of agency if we assume that consent given under any form of psychological distress isn’t really consent. This, of course, is the attraction of the Nozickian formulation: By focusing on the wrongfulness of threats rather than psychology we get agency in the face of psychological distress without reducing consent to mere volitional action.  (And of course, under the Nozickian approach there is no reason that we couldn’t say that causing extreme or serious psychological distress might be a reason for treating a threat as wrongful.)

Now we get to the case of Aziz Ansari.  This isn’t a case of sexual harassment in employment.  As I understand it, no one was seeking a job or trying to retain one.  It doesn’t really look like rape or assault.  Of course, this question gets murky.  Was there an implicit threat? Was there implicit consent to touching?  One might argue in favor of explicit, affirmative consent for everything.  This, however, is a prophylactic rule, and one that will not perfectly track actual consent.  Implicit consent can be real consent, just as an implicit threat can be a real threat.   There are thus two issues when it comes to consent in this case.  First, did the woman in the case assent?  This is a matter of interpreting the meanings of her actions.  Did she implicitly allow Ansari to do what he did?  Second, was that assent free or was she coerced in some way?  Reading the original account, it looks a bit murky on whether there was assent.  It seems far more difficult to argue that there was any threat on Ansari’s part, even implicitly.  In other words, in Nozickian terms I think that there is a strong (but not slam dunk) case that this was a consensual encounter.

The woman, however, said “I believe that I was taken advantage of by Aziz. I was not listened to and ignored. It was by far the worst experience with a man I’ve ever had.”  That reaction, it seems to me, is completely justified.  Furthermore, I think that it is completely justified even if she assented and Ansari did not threaten her.  In other words, I think that her reaction is completely justified even if she consented.  The problem, it seems to me, is that in this case we want consent to do more work than consent can in fact do.  We want to imagine a world of consensual sex that is a wonderland of pleasure, freedom, and fulfillment.  Then there is a world of non-consenual sex, which is rape.  In the end, however, consent doesn’t really divide the world in this way.  It does identify rape, but in fact it does not identify the universe of good sex.  There is a lot of sex that is consented to by both parties but may be rightly condemned by one of them.

It seems to me that here our moral intuitions are much better than the moral language we often try to use to cash them out.  In the Ansari case, I think that a lot of people are trying to use the language of consent to do all of the normative work.  In order to explain what was wrong with Ansari’s behavior we are tempted to claim that the encounter wasn’t consensual.  This means that we have to generate a concept of consent that covers this case, and that concept centers on the presence of psychological pressure rather than threats.  This move, however, will inevitably create pushback from those noting that there are huge problems when we conceptualize voluntariness in terms of psychological pressure rather wrongful threats.  I think that this push back is right on the issue of consent, but wrong on the issue of sexual behavior.

What all of this suggests is that we need a language for thinking about sexual morality that is deeper and richer than the language of consent.  To be sure, consent in a Nozickian sense is an absolute necessary condition for legitimate sexual activity.  But it cannot be a sufficient condition.  What is wrong with Louis C.K. asking a woman if he can masturbate in front of her isn’t that he was trying to do something without her consent.  The problem is that he even asked for her consent in the first place.  This isn’t because consent is unimportant — it is vital — but because there are things to which a decent person does not ask another to consent.  Whatever moral principle it is, however, that tells us when a request for consent is beyond the pale, it cannot itself be the principle of consent.

There is a reason that we hedge about sexual consent with other rituals and moral practices, things like dating, romance, love, enduring commitment, and marriage.   This is an acknowledgement that sex is powerful, important, and dangerous.  We should be careful of other people’s bodies, hearts, and souls.  Ansari wanted sex without dating, romance, love, enduring commitment, and marriage.  He continually asked and pressured for sex with none of these things.  The fact that he may have wheedled hesitating consent to the initial stages of his projected sexual adventure merely establishes that he isn’t a rapist.  Fortunately, there is more to being a decent human being than not being a rapist.

[*Of course, one could still argue that psychological trauma should be relevant when we get to the question of remedies.]



1 Comment

  1. I think this is right, in addition to finding it intuitively appealing. For a speech I gave in 1998 I convinced myself that the end of the trail, in considering problems and limitations of consent, is a public long-term commitment. A lot like marriage.

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