Seduction and consent

It's been a while since I've posted - I spent most of December finishing up projects for my library science classes, and then catching up on the holiday shopping I hadn't done, and finally just taking some time off.

There's been a discussion starting with radical feminist Maggie Hays and making its way to several other sex-positive blogs (see below for links) about expanding definitions of rape to include things like "seduction." While the debate seemed to start out as yet another "radical vs. sex-positive" argument, it's grown more nuanced (or more nitpicky), as the definition(s) of "seduction" get examined.

I think the central issue here is whether "seduction" is seen as a method to encourage enthusiastic consent, to obtain nominal consent, or to simply have sex. And I think that we live in a culture that typically doesn't distinguish among these, which is why there's so much confusion and argument going on in these discussions. Seduction is seen as anything from "flirting with intent" to the dubious lyrics of "Baby, It's Cold Outside" and "Have Some Madeira, M'Dear" to the now-obsolete seduction tort.

I also think that people are looking at this from different perspectives and that clouds the issue somewhat. From the "seducer's" perspective, doing things that might erode the "seducee's" ability to freely consent to sex is problematic, and not caring whether your partners freely and enthusiastically consent is the attitude of a rapist. From the "seducee's" perspective, though, treating things that only *potentially* compromise consent as *automatically* compromising consent can rob him/her of agency.

Because, when it comes down to it, the authority on whether consent existed has to be the person whose consent it was. (Yes, in a criminal case this is often something that's seen as needing more proof, but we're talking morals here, not trials.) Which means that telling the "seducee" that he/she was raped is wrong, but it also means that it's not legitimate to excuse behavior intended to compromise consent to sex on the grounds that they did or could have still consented. (Just as, for example, reckless disregard for someone's physical safety isn't excused by the fact that, in a particular instance, nobody was injured.)

Other posts on the topic:

• Maggie Hays - Rape can take different forms
  
• Maggie Hays - Seduction: connecting the dots?
• Natalia Antonova - Women as Children: Why the “Seduction as Rape” Philosophy is a tad Problematic
• Kittywampus - Dispatches from the Universe Where All Men Are Rapists
• Kittywampus - On Seduction, Agency, and Entitlement
• Real Adult Sex - Deep Thought #2: Language of "Seduction" and "Rape"
• Real Adult Sex - Language of Seduction #2b: Woah, How 'Bout That Formal Definition!?!?
• Renegade Evolution - How many dots are we talkin' here?

Intentional sex torts - the reactions

Well, that post on Feminist Law Profs about intentional sex torts was received about as well as expected.

I'm not going to directly link or quote the more misogynist follow-up blog posts. If you're really interested, there are follow-up posts at Above the Law and Women's Space. But the arguments can pretty much be summed up as follows:

• Of course it's not rape! As long as you're not physically violent, it doesn't matter if your partner would want to have sex absent the fraud--anything goes.
• Employing fraud for the purposes of getting laid is a natural, unavoidable practice.
• Fraud is part of the "thrill of the chase." If everyone were honest, dating would be a lot less fun.
• But women do it too--they hath one face, and make themselves another! Because wearing makeup and a push-up bra is totally the same thing as saying you're not HIV-positive!
• If we outlaw fraud for the purposes of getting sex, we must outlaw similar torts for the purposes of refusing sex, like giving someone a fake phone number.
• This is just the government sticking its nose into your bedroom again.
• This is really anti-feminist, because it assumes women don't have the capacity or responsibility to take care of themselves.

And, of course:

• They're just ugly/man-hating/jealous that nobody wants to sleep with them.
• If we didn't accept this, nobody would ever get laid!

What's so complicated about the idea that you shouldn't have sex with someone who doesn't want to have sex with you? (If you want to criticize the idea on legal grounds, that's one thing, but how can anyone defend the practice on a moral level?)

Intentional sex torts: fraud as rape

Deanna Pollard Sacks has a short article up on Feminist Law Profs about the state of "intentional sex torts"*, specifically the increase of currency in the idea that fraudulent inducement of sex is rape.

While I wholeheartedly support that principle of not having sex with anyone who's not totally interested in having sex with you, I wasn't aware fraud-as-rape had been codified anywhere in the U.S.; apparently it's the law in four states (Alabama, California, Michigan and Tennessee, a motley group to be sure) and may soon be the law in Massachusetts. I haven't checked out the actual statutes, so I don't know what the standard for fraudulent inducement is; I suspect it's still a pretty high bar.

I have a minor quibble with this bit, though:

Thankfully, this mentality appears to be dying out. In a world filled with dangerous sexual diseases, it is particularly important to protect women’s rights to protect their own bodies, not just against physical violence, but against fraudulent inducement of sexual decisions and all of the dangerous consequences that can result from a lack of truly informed consent to sexual relations.

I think the focus on STDs and "dangerous consequences", while it might win short-term support, is counterproductive. It's not wrong because your partner can get sick or pregnant, it's wrong because it's a violation of basic autonomy.

* (I don't know why she uses that phrase, when what we're dealing with is apparently criminal law, not civil.)

What's not to love?

One of the interesting facets of subscribing to "blog searches" on subjects like feminism is that they don't discern viewpoint; anti-feminists show up as well. One such search led me to Glenn Sacks' post about the California National Organization for Women launching an I Love Consensual Sex campaign. This strikes me a great idea, as it takes ammunition away from anti-feminists who want to claim that anti-rape activism is anti-sex.

It's also a great idea because it's a hell of a lot more accessible than your typical anti-rape message. I mean, who doesn't love consensual sex? And if you don't, then you don't have to have it - that's what that "consensual" word means!

Nevertheless, Sacks and his commenters are loath to give any unqualified support. Sacks is quick to get in a jab at how "some feminists have had a hard time acknowledging [that] women enjoy having sex with men." (Except for lesbians, presumably, but we'll come back to that.)

The larger issue that Sacks has is, of course, with the definition of consent. There's no specific definition given, as far as I can tell, but Sacks is sure that whatever it is he'll take issue with it. And I suspect he will, as any definition of consent beyond "she didn't scream no or fight back" - i.e., the "whatever I can get away with" definition - tends to be resisted as placing an unreasonable burden on men, as well as granting power to those women whom the MRAs just know are lined up at police stations around the country waiting to file false accusations.

Sacks also brings up the idea, common among contemporary social conservatives, that feminism was a noble goal at some point in the past, but has gone too far. However, instead of the usual "first wavers were in the right, but the second wavers have gone too far," Sacks cites the feminism of the 1970s as "more positive, male-friendly." (Does this mean that the MRAs will update their quote lists? One can only hope.)

There's also the problem Sacks so often faces when trying to sound like a voice of reason - his commenters. It's like the old analogy of crabs in a cookpot - rather than let him rise above the fray, his commenters act to drag the discourse back to the usual misogynist level. The reactions to this piece include:

• More accusations that women claim rape in response to consensual sex they regret.
• The accusation that "sex positive" is doublespeak, and that of course feminists hate "the male libido" (wait, I thought women had the hivemind?).
• Continuing to associate feminists with conservative Christians as one big fun-spoiling mob. Heck, even the most vehement anti-porn feminists no longer ally themselves with the theocrats.
• Complaining about a requirement of "enthusiastic verbal agreement" that's never actually stated as a requirement - and only by nitpicking that not all enthusiastic agreement is verbal.
• An attempt to turn it into that primary issue of all MRAs, child support.
• Fear that "I love consensual sex" will include sex among gays and lesbians. (Wait, we're the ones allied with Christian conservatives here?)
• Blaming standards of consent for the difficulty in obtaining rape convictions - by saying that the standard for consent is too limited. (I'm not sure how this works. I guess the idea is that if only cases of violent stranger rape went to trial, conviction rates would be up, though convinctions would be down.)
• Citing Dworkin's observations on the nature of consent in a patriarchy as evidence that feminists would not accept even enthusiastic consent as consent. This one would actually be a point worth discussing, if you could get rid of the people who insist that feminists believe "all sex is rape." The distinction is between ideals and reality. Ideally, sex would be something that could be more freely chosen than it often is today; however, in the world we live in enthusiastic consent is a "good enough" standard.
• Complaining that it's too strict to suggest that both partners should be enthusiastic about sex.
• Arguing that men don't get to consent, as if feminists have somehow claimed this was okay, or that men are okay with not consenting, so women should be too. (Pick one and stick with it, guys.)

The impression I get is that the Sacks/MRA conception of feminism is now stuck sometime in the mid-80s (which, to be fair, mine was until well into the 90s, when my only knowledge of feminism came from First Amendment discussions wherein feminism and the Religious Right were lumped together as the forces of oppression), and basically sees modern feminism as a cynical grab for bargaining chips in an adversarial division of sexes rather than a movement for social justice.

What it comes down to, I think, is that MRAs have demonized feminism to such an extent that any idea a feminist proposes must be rejected on principle. Besides, under a "bargaining chip" paradigm, any concession, even one you're predisposed to, is a loss of power.

The big question

Leaping into the ongoing MRA flamewar did manage to get my position on consent distilled into a single pithy question:

Do you believe your partner wants to be having sex with you?

If the answer to that's not "yes," something's wrong.

Unfortunately, it seems for a lot of people the answer isn't "yes," but "I don't care."

On rape and power

Jill at Feministe writes On Rape and Power, focusing on a serial rapist whom two separate juries exonerated (but two others convicted), and how our broken views about sex and sexual assault help this happen. (It also occurs to me that some rape apologist somewhere is going to count those two acquittals as "false accusations.")