Safewords, BDSM, and Performative Consent

Hubert Schnüriger's chapter "What is consent?" outlines two main views of consent: the mental view, where 'consent' refers to a particular mental state or mental action, and the performative view, where 'consent' refers to a public act. Jonathan's post captures the differences quite well.

I want to use this space to work through whether safewords and consent in BDSM settings can exist on a performative view, as in general I tend to favour this view. 

Safewords are useful tools for sexual encounters where the words "no", "stop", and their variants don't maintain their ordinary language meaning. Safewords can also be nonverbal (despite including "words" in the term) such as dropping an item, performing a combination of taps, squeezing your partner's hand a set number or times, etc. Nonverbal safewords seem, at least to me, to be squarely within the performative view because the act of making some movement or specified touch signal is necessarily a public act. For this reason, I'm just going to focus on verbal safewords going forward in this post. 

According to Schnüriger, the performance of an act associated with consent does not automatically entail consent. Instead, he claims that many who hold this view also hold that "consent must be performed intentionally, and, in this sense, with a consenting mental state" (p.25). So, if Becca asks Penny to consent to trying light rope-play, Penny only counts as consenting if she signals her consent (saying yes, nodding, etc.) and holds a corresponding consensual mental state. 

But what about more difficult cases in BDSM? Specifically, what about those cases where no doesn't mean "no". Consider the following: 

Sam and Cal are in a Brat/Brat Tamer relationship. (Brats are submissives who find disobedience and resistance fun, while Brat Tamers are dominants who find disobedience playful rather than offensive). Cal might give Sam a command, yet Sam's reaction could be "no" in conjunction with some physical resistance to Cal's approach (say, pushing him away). In response to this, Cal might hit Sam with something to "discipline" this resistance and continue on with the encounter. 

Here Sam has said no, yet there was no attempt to stop made by Cal. At first this seems to fly in the face of the performative view: Sam explicitly said no and made a physical gesture to distance himself from Cal. So, if their encounter is indeed consensual, it must instead preference the mental view of consent. This is because it appears like Sam's act of consenting lies within his mental state and not any action he performs publicly. 

However, I think this instead just highlights the importance of including safewords in a conception of consent. In situations like Sam and Cal's, responding with physical resistance without including their safeword likely indicates a desire to continue -- a "tacit" performative consent. I think a performative view of consent can capture these cases if it includes an allowance for various non-standard forms of consenting speech acts. So, a BDSM-friendly performative view (when considering verbal consent) could be as simple as:

The Performative View*: Consent is a public speech act, with a corresponding mental state, where the speech act does not necessarily (but often does) carry ordinary language meaning. 

Admittedly this is a first pass at a modification and there are likely implications of this phrasing that I don't want to include in such a modified view. For that reason, I welcome any suggestions or help in the comments.