Sexual consent: some thoughts on psychoanalysis and law.

• Author: Butler, Judith

Sexual consent is a complex issue and there are various fields that have seized upon it to decide when it happens, what form it takes, and who is in a position to know. I will be focusing here on how one knows one has consented, but also on some of the ways that psychoanalysis and law may have to work together, despite some persistent tensions between them. Part I of this article reflects on "consent" through the lens of relational psychoanalysis. Since I am not trained as an analyst, my approach would hardly be called "clinical" in any accepted way. However, I do try from the position of a cultural critic to shed light on some of the ways that consent functions both inside and outside of psychoanalysis. This is a difficult task, since if one were to consider consent clinically, one would have to start with the clinic, that is, the fact that someone comes to an analytic session consensually, and that the same someone may well have abiding ambivalence or anxiety about the very fact that they are there. They have consented, but do not like that they have. In other words, since someone may "have issues" with consent that become material within an analytic session, that person has also set up the problem of transference by consenting to walk through the door into the analyst's office. When they do enter the door, they consent to psychoanalysis itself, which is not to say that they know precisely to what they have consented in advance. When the analyst opens the door, there is not only some operation of consent involved as the client moves forward through the doorway for that first meeting, but an issue of consent may well remain at play for years to come, even if one drags oneself there even one no longer precisely knows why one goes. The scene is one in which law and psychoanalysis invariably meet, since once the client enters through the doorway, certain legal norms come into play, constraining and guiding the actions of the analyst. Still, how precisely do law and psychoanalysis meet? How do we describe this meeting of the two, and is it not the case that for each of them to work, they sometimes need to part and leave each other alone?

Part II focuses on consent less as a singular act of a subject than as a more or less organized way of entering into relationship. There always seems to be someone else, or some other set of persons to whom one gives consent, or before him consent is offered. Of course, our ordinary language suggests that we consent to entering relationships, and sometimes that is, in fact, the case. But following from a consideration of consent within a broadly "relational" framework, we might ask whether consent needs to be redescribed in such a way that it both presupposes and orchestrates some relation to another. Is there always someone else there for consent to be possible, someone to whom or before whom I consent, and in what sense can we see this "act" as a relational and social form?

Although consent is often conceived as a discrete act that an individual performs and so draws upon the presumption of a stable individual, what happens to this framework if we maintain the view that the "I" who consents does not necessarily stay the same in the course of its consent? In other words, does the "I" give itself over to a certain transformation, not fully knowable in advance, through its act of consent? And if consent is given to another, or before another, it is then a way of organizing a social relation rather than a merely individual act? Moreover, if the "I enters into a social relationship by virtue of its consent, is it also sometimes transformed precisely by what happens by virtue of its consent? How do we explain the fact that sometimes the "I" who consents undergoes a change in the course of its consenting?

1. The Silencing Effects of Regulatory Law

   One clear way that the law addresses sexual consent is through age of consent laws. Such laws are concerned with determining the age at which a person is considered to be legally capable of sexual consent? Even though such laws are centrally concerned with when the capability to consent is achieved, they rarely reflect on the development of consensual capacities themselves. Indeed, rarely do debates over age of consent laws think philosophically about the problem of consent, nor do they try to think about what any of us actually do when we claim to consent or what is happening when our actions are regarded as consensual engaged. I propose that we approach this legal framework critically, by which I mean interrogating the presuppositions and effects of this discourse in ways that inform and exceed its legal semantics. To think about the problem of consent outside of the legal frameworks that tend to dominate public discussions is difficult. At least within public debate, the problem of consent in conjunction with sexuality is usually understood to be a legal problem--for instance, in relation to rape laws, including statutory rape, and debates about differential age of consent laws for men and women, for homosexuality and heterosexuality.

   Unsurprisingly, age of consent laws are often occasions in which fears over emerging childhood sexuality are negotiated, and various experts are brought in to establish what kinds of protections are required. In some of these cases, though not all, some contribution on the part of developmental psychologists is required, but that contribution is finally subordinated to legal decision and adjudication. At what age is consent to sexual relations permissible? Indeed, the views on this matter are quite diverse, and they differ according to country and gender, according to whether the law seeks to end sexual trafficking, whether the law is acknowledging customs regarding child brides, and whether the kind of sex is permissible or not: So age of consent laws vary according to whether sexual practice is deemed heterosexual or homosexual, or within marriage or before marriage. In most cases, sexuality is presumed by such legal codes to be heterosexual, so the lack of a differential regulation between straight and not straight sex is less a sign of equal treatment, than of the unthinkability of non-heterosexual law within the legal codes regulating sexuality--after all, even prohibiting homosexual sex is a way of acknowledging that it exists.

   The British sociologist, Mathew Waites, has written in great detail about the implicit and explicit political aims of sexual consent laws in his book, The Age of Consent. (1) There Waites focuses on the debates in the United Kingdom in the 1990s, showing how the petition to establish 16 as an equal age of consent for heterosexual and homosexual sex rallied a number of other discourses that had very little to do with what children want, and when they are ready to have what they want. Indeed, Waites notes that legal conventions governing equality ended up shaping the discourse of social movements, strengthening the power of several extra-juridical discourses (medicine, child welfare expertise, social policy, and biomedicine, to name a few).

   Indeed, because the equality argument rested on notions of the fixed nature of homosexuality and heterosexuality, psychologists were largely absent from the debate. Maybe that is a good thing, given how dominant perspectives in developmental psychology too often serve the purposes of pathologizing homosexuality and normalizing heterosexuality. The recent effort to cast intersex as a failure of sexual development is a case in point, since the argument assumes that without discrete and exclusive male or female anatomy, sexual life cannot assume its normal and healthy course. (2) There are all kinds of reasons to resist that new form of pathologization recently installed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). But to return to age of consent laws, and the grounds of arguing for equality, it is interesting to see that homosexuality had to become a fixed attribute rather than a developmental achievement, and that only as an immutable characteristic could the equality argument be made. I believe it was Tony Blair who made the following foray into ontological analysis: "It is not against the nature of gay people to be gay; it is in fact their nature. It is what they are." (3) So any sense that sexual acts may not immediately confirm a sexual identity was put out of play; so too were all those complex histories of children, adolescents, and adults whose sexual proclivities fail to achieve fixed and final form as straight or gay. The equality movement was this anti-queer in its assumption and its effects, even though, yes, one wants to be for equality. The question is only whether the means through which a legal norm is justified also and paradoxically introduce unjustifiable social and cultural norms and even augment their power. At least in the United Kingdom, arguments concerning the psychological maturity of youth played a very small role in the general public debate. The progressive use of the fixed nature argument actually required the sidelining of psychology in favor of biomedical perspectives to explain sexual orientation. The enhancement of biomedical power for the purposes of defining the basic terms thus seemed to work in tandem with formal conceptions of equality, and what this meant is that the actual conditions of sexual youth or the modes of their sexual emergence were rarely actually thought about, and activists and social workers were not canvassed for anything they may have to say about the patterns and dilemmas of youth cultures.

   The main public debates divided into protectionists, who mainly used moral arguments against homosexuality, and libertarians, who while basing their claims on fixed nature arguments, made a case for the supervening value of sexual freedom for individuals. In any case, someone we might tentatively call "the child" was everywhere figured in such debates, but either...