Against Affirmative Consent

• In Event: Autonomy and Consent after ‘Roe’ and #MeToo

Abstract

Many public commentators and women’s advocates, to say nothing of university administrators, have made their peace with affirmative consent. It is an idea premised on the fundamental equality of (primarily but not exclusively) men and women in sexual relationships. According to its tenets, consent cannot be presumed by a partner’s silence; in many cases, a verbal and enthusiastic ‘yes!’ is required. This requirement supposedly halts, or at least diminishes the frequency of, nonconsensual sexual encounters, particularly on college campuses. Yet affirmative consent also has its critics (Halley 2016, Gallagher 2024), who variously point to its impractical and unenforceable nature and its idealistic requirement of self-possession on the part of those engaging in said sexual relationships. This paper proposes an alternative to affirmative consent, grounded in relational autonomy. The latter aids in the analysis of “the implications of the intersubjective and social dimensions of selfhood and identity for conceptions of individual autonomy and moral and political agency” (Mackenzie and Stoljar 2000, 4). Put differently, relational autonomy renders more complex the facile depiction of autonomy common to theories of affirmative consent, which tend to treat the self as transparent and knowable, at least to the individual. Relational autonomy allows us to account more fully for power differentials and the injustices often experienced during encounters where affirmative consent was supposedly granted. In short, it is not the case that one partner later decides a sexual encounter was “bad sex” and claims rape, a purportedly common occurrence marring sexual relationships across campuses. Rather, bringing relational autonomy to bear on the question of consent permits us to understand the moral hazard of consent when it is granted under less than ideal conditions, that is to say, in the “real world.”

Author

• Megan Gallagher, University of Alabama