Affirmative Consent and Neoliberal Bodies
The individual yes vs. the social no
I am writing this with great relief as the “crisis” of sexual assaults on college campuses in New York State has finally been addressed through affirmative consent, or “yes means yes” legislation from Governor Cuomo. Having worked for years as the director of a college-based women’s center, having helped write a university policy to address sexual assault on campus, and having counseled many students who were victims and at times perpetrators of sexual misconduct, I am stunned and thrilled that years of complicated work can now be quickly and easily remedied with a single syllable — yes.
Needless to say, that was sarcastic. Affirmative consent continues the neoliberal approach to sexual assault on college campuses initially outlined in the Dear Colleague Letter from the Department of Education’s Office for Civil Rights in 2011. That letter detailed a criminal justice approach to campus investigations and protocols. It came on the heels of students from Yale University leveraging Title IX in an attempt to draw attention to sexual assault and ongoing sexual harassment on campus. The tactic worked because it was linked directly to money. Overtly connecting federal funding to a college’s response to sexual assault and harassment claims changed things. No longer could campus police strong-arm reporters of a sexual assault into not contacting police. No longer could they drag their heels on investigating claims until the perpetrator graduated years later. They also could be punished if, as in the case of Yale, they demonstrated a “boys will be boys” attitude toward assault and harassment. Further, colleges could not wait until a local police investigation occurred before holding their own disciplinary hearings. But most importantly, using Title IX shifted the focus from the neoliberal individual to the college atmosphere, the social body.
Affirmative consent shifts it back, reaffirming the unitary neoliberal subject. The victim is the transgressed, the perpetrator is the transgressor or vise versa. Rape, now, is really just a matter of miscommunication; a failure to express one’s desires. It is no longer an act of power, control, or violence. It is neat and tidy. Just say “yes” and all badness, trouble, ambivalence, uncontrollable desire, aggression, and conflict (and more) can be contained by the clearly bounded bodies of the perpetrator or victim, either of whom can be excised from the social body through disciplinary action (or avoidance of disciplinary action that often results in victims leaving colleges). It reproduces victim-blaming and erases any ambivalence or unconscious motivations. Yes means yes. It does not mean “I’m afraid you won’t like me if I say no” nor does it mean “I’m scared to say no,” or “I know I said yes two minutes ago, but now I’m not so sure.” Affirmative consent seems to be a clear knee-jerk response to potential legal action and defunding of Title IX. Now the very definition of sexual misconduct and its location are situated squarely within the sacred neoliberal individual. Just say “yes” and the pesky nightmare of rape on campuses will disappear.
So affirmative consent relies upon assumptions about unitary, temporally singular beings: people who know what they want, when they want it, and do not have ambivalence or change their minds. “Yes” is linear. It means “yes” now and later. It does not shift through time. Affirmative consent also relies on the idea that people always say what they mean and power and privilege and the unconscious and culture have no influence on these expressions and experiences of desire. It circumvents the best of the Title IX cases — the college atmosphere. Under Title IX colleges have a responsibility to make sure students have equal access to education. Now that access rests squarely on that student’s capacity to say “yes” and another student’s capacity to hear it and respond appropriately to it. This individual moment is the entirety of sexual misconduct on campuses. Lost here is any notion of community response.
In two forthcoming works, I have compared college responses to campus sexual assault and psychoanalytic institute responses to sexual boundary violations (Gentile in press; Gentile in review). Spoiler alert: both institutional bodies think they alone should investigate and patrol their constituents and both locate, contain, and split off all badness into individual bodies. But in these papers I have proposed looking at community-based interventions and harm reduction strategies that would engage both social bodies in prevention and intervention. Both bystander intervention and restorative justice disrupt the binary, paranoid/schizoid, “do’er done to” (Benjamin 2004) rigid dialectic and both locate the responsibilities of intervention within the social body. Bystander intervention is unique because it engages everyone as a potential bystander. This is in contrast to typical prevention/harm reduction strategies that approach all students/psychoanalysts as potential victims or perpetrators, which can function to increase, not decrease, alienation. Certainly we are all potential violators, but we are also, perhaps more likely, potential bystanders. Bystander intervention instead engages students/psychoanalysts as agents of change. It approaches people within the institution as agentic citizens of that social body. As such, it teaches them how to identify risk factors, how to reach out to and engage others who they think might be in danger of perpetrating sexual misconduct/boundary violations, or who may be being victimized/transgressed. Engaging people as bystanders creates a third space for engagement and intervention within an atmosphere that seems potentially violent and oppressive.
Similarly, restorative justice addresses a perpetrator and a victim through community (see Koss et. al. 2014). The perpetrator is not only urged to understand their impact on the victim, but also their impact on the community. The crime then is not only perpetrated against an individual but against the social body. As such, the perpetrator must creatively make amends to the victim as well as to the social institutional body. It is acknowledged that the social body may have a responsibility for the violence/transgression and it, too, may need to take responsibility and address needs for change. The social body and the victim also can have a say (the victim most of all) in the sentence for the perpetrator. Here too, strategies are community based and designed to engage students through agentic action, not passive, oppressive fear tactics. Both strategies rely on effective community-building.
Barad (2010:266) states, “An ethics of entanglement entails possibilities and obligations for reworking the material effects of the past and the future,” understanding there can never be complete redemption and justice is always a “justice-to-come.” Restorative justice embodies this idea: that justice is a process. This process also relies on the reflective temporal practices of witnessing and testimony. This reflective accountability of the perpetrator is theorized as being integral to the creation of a third space of resolution, healing — or what psychoanalysts would also identify as moving out of enactment and the intractable do’er/done-to dynamics described above. But witnessing, testimony, and restorative justice only work if there is a conscious and generative recognition and holding of shame. Shame is usually described as an affect to be avoided because it can shut down reflective space. Shame, here, is not to be avoided like a hot potato; these approaches, instead, take shame on directly. We are ruled by our own narcissism when we insist that shame can only shut processes down. In doing so, we grant it tremendous power. Shaming, as Mary Douglas (1966) observed years ago, is one of the most important and effective tools of social organizations and, yes, social control. As I have written elsewhere (Gentile 2013; in press; and in review), to avoid shame is to shield perpetrators and the communities within which they can thrive from seeing and acknowledging the effects and impact of their actions. This is not only a central contributor to traumatic repetition for the perpetrator and victim; it also deprives both parties and the community body of their dignity. There is no space to make amends without shame. Accountability then is not just about “shaming” the perpetrator; it is a necessary component of recognition for both victims and the community as a whole. Philosopher Kelly Oliver (2001; 2004), referencing postcolonial and critical race theorists, describes how the “other” functions to hold and embody the shameful affects for the colonizers. Thus, creating the capacities to shift shame back to the transgressor, who shares it with the potentially enabling community body, is key to transformation. Perpetrators must be supported to hold their own shame, to examine it, to move through it.
Community-based responses to campus sexual assault and psychoanalytic boundary violations can be effective and responsible approaches to transgressions. Unfortunately, affirmative consent may just function to contain shameful affects within the perpetrator-victim dyad, cleansing the social body of the messiness of deep and transformative engagement.
Barad, K. (2010). Quantum entanglements and hauntological relations of inheritance: Dis/continuities, spacetime enfoldings, and justice-to-come. Derrida Today, 3 (2): 240-268.
Benjamin, J. (2004). Beyond doer and done to: An intersubjective view of thirdness. Psychoanalytic Quarterly, LXXIII (1): 5-46.
Douglas, M. (1966). Purity and danger. New York: Routledge.
Gentile, K. (2013). Bearing the cultural in order to engage in a process of witnessing. Psychoanalytic Psychology, 30 (3): 456-470.
——. (in press) When the cat guards the canary – A new look at sexual boundary violations in psychoanalysis. Charles Levin, ed. Boundary Trouble: The Ethics of Psychoanalytic Intimacy in Relational Perspective. New York: Routledge. In press.
——. (in review) Chasing Justice: Community-based interventions for college campuses and psychoanalytic institutes. In E. Toronto and K. Davisson (eds.) A Womb of Her Own: Women’s Struggle for Creative and Reproductive Autonomy. Karnac.
Koss, M.P., Wilgus, J.K., & Williamsen, K.M. (2014). Campus sexual misconduct: Restorative justice approaches to enhance compliance with Title IX guidance. Trauma, Violence, & Abuse, 15 (3): 42-257.
Oliver, K. (2001). Witnessing: Beyond Recognition. Minneapolis, MN: University of Minnesota Press.
——. (2004). The Colonization of Psychic Space: A Psychoanalytic Social Theory of Oppression. Minneapolis, MN: University of Minnesota Press.