Kukla on Sexual Negotiation (I): Consent
Rebecca Kukla (“That’s what she said”) suggests that consent is only one of several important kinds of performative speech acts central to sexual ethics, and that too much focus on consent has distorted theorizing.
This is the first part of a series of three blog posts outlining the key features of different ways Kukla describes that sex can be initiated. This post focuses on the notion of consent.
Consent is one of the things you can do when someone requests something. Refusal is another. Kukla thinks that these two options “flatten the communicative terrain” between two people. For her, the consent model of “request-and-consent-or-refuse” represents only one limited aspect of sexual negotiation. According to the consent model, in paradigmatic cases of sexual encounters, one individual is seeking consent (making a request) and the other agrees or refuses. Besides limiting the potential for communication and negotiation between partners, by this definition the consent model also reduces the agency of the person whose consent is being sought. Kukla argues that “agency-enhancing, ethical, good sex” comes not from requests, but rather invitations or gift offers (80). Because consent is a response to a request, by her definition, it cannot be what is sufficient for good sex (72). This post will more clearly define what consent involves and why Kukla finds it problematic, and the two subsequent posts in this series will examine sex as an invitation and sex as a gift offer, in turn.
For Kukla, consent is a performative speech act, in the sense of J. L. Austin’s theory of performative utterances. Performative speech is that which does something when it is uttered, as opposed to merely describing or transmitting information. For example, when an officiant pronounces two people married, they are actually doing something—creating a legally binding merger between two people, one which did not exist before the speech act. Other common examples include naming a ship, or betting someone that it will rain tomorrow. During sexual interactions, the explicit conversation and ongoing consent required for good negotiation requires that we do a lot with language.
One of the key points that distinguishes Kukla’s approach to consent from that of the liberal mainstream is that on her view, consent it is a relatively narrow category. The question of consent only comes up when someone has asked permission for something. One can ask permission to come to a party and have that permission granted — that would be consent. But if one is explicitly invited to the party, that’s not a matter of consent; that’s a different kind of speech act. (More on invitations in our second post in this series.)
By this narrow view, consent is required to begin sex only when the sexual negotiation begins with a request. Furthermore, Kukla writes: “...consent does not just enable sex to start; it is woven through any sexual encounter, and everyone involved must be able to clearly communicate when they want to withdraw consent in order for it to be valid in the first place” (74–75). So understood, consent cannot suffice for valuable or ethical sex. Kukla points out that “we can consent to all sorts of lousy sex, including demeaning, boring, alienated, and unpleasantly painful or otherwise harmful sex.”
According to the consent model, sex is a request made by one person then taken up or denied by another. This definitely happens sometimes, but Kukla emphasizes that this is not generally the typical or best way people enter into good sexual encounters. It is much more typical for explicit requests to be made after the sex act has been initiated (80). In the remaining two posts in this series, we’ll explore two other ways, besides consenting to requests, that Kukla suggests that sexual activities often can and should be negotiated.
Author note: this post was written collectively by the seminar participants.
This is the first part of a series of three blog posts outlining the key features of different ways Kukla describes that sex can be initiated. This post focuses on the notion of consent.
Consent is one of the things you can do when someone requests something. Refusal is another. Kukla thinks that these two options “flatten the communicative terrain” between two people. For her, the consent model of “request-and-consent-or-refuse” represents only one limited aspect of sexual negotiation. According to the consent model, in paradigmatic cases of sexual encounters, one individual is seeking consent (making a request) and the other agrees or refuses. Besides limiting the potential for communication and negotiation between partners, by this definition the consent model also reduces the agency of the person whose consent is being sought. Kukla argues that “agency-enhancing, ethical, good sex” comes not from requests, but rather invitations or gift offers (80). Because consent is a response to a request, by her definition, it cannot be what is sufficient for good sex (72). This post will more clearly define what consent involves and why Kukla finds it problematic, and the two subsequent posts in this series will examine sex as an invitation and sex as a gift offer, in turn.
For Kukla, consent is a performative speech act, in the sense of J. L. Austin’s theory of performative utterances. Performative speech is that which does something when it is uttered, as opposed to merely describing or transmitting information. For example, when an officiant pronounces two people married, they are actually doing something—creating a legally binding merger between two people, one which did not exist before the speech act. Other common examples include naming a ship, or betting someone that it will rain tomorrow. During sexual interactions, the explicit conversation and ongoing consent required for good negotiation requires that we do a lot with language.
One of the key points that distinguishes Kukla’s approach to consent from that of the liberal mainstream is that on her view, consent it is a relatively narrow category. The question of consent only comes up when someone has asked permission for something. One can ask permission to come to a party and have that permission granted — that would be consent. But if one is explicitly invited to the party, that’s not a matter of consent; that’s a different kind of speech act. (More on invitations in our second post in this series.)
By this narrow view, consent is required to begin sex only when the sexual negotiation begins with a request. Furthermore, Kukla writes: “...consent does not just enable sex to start; it is woven through any sexual encounter, and everyone involved must be able to clearly communicate when they want to withdraw consent in order for it to be valid in the first place” (74–75). So understood, consent cannot suffice for valuable or ethical sex. Kukla points out that “we can consent to all sorts of lousy sex, including demeaning, boring, alienated, and unpleasantly painful or otherwise harmful sex.”
According to the consent model, sex is a request made by one person then taken up or denied by another. This definitely happens sometimes, but Kukla emphasizes that this is not generally the typical or best way people enter into good sexual encounters. It is much more typical for explicit requests to be made after the sex act has been initiated (80). In the remaining two posts in this series, we’ll explore two other ways, besides consenting to requests, that Kukla suggests that sexual activities often can and should be negotiated.
Author note: this post was written collectively by the seminar participants.
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