Consent and Coercion
Nuanced opinion on consent and coercion: How would different feminist perspectives view them on the basis of social construct and other factors
Abstract :
It has always been challenging to establish a fine line between consent and coercion given that factors like culture, society and law complicate our understanding of them. For safeguarding sexual autonomy and challenging stereotypical gender norms, it’s imperative to go beyond theoretical discussions and dive into the real life implications and challenges surrounding consent and coercion. My research paper delves into a thorough examination of the complex dynamics revolving around consent, coercion and sexuality from diverse feminist perspectives,aiming to develop a more comprehensive and inclusive approach to understand the same.
The study looks at how conservative viewpoints frequently deny women their sexual agency, which distorts people’s perceptions of consent. The miscommunication theory is examined, emphasizing how dating apps and society attitudes lead to a hazy understanding of consent, which frequently results in sexual assault. Libertarian feminism proposes the idea of “token resistance” and questions conventional wisdom regarding violence and sex in the context of pornography. In order to increase voluntary consent and lower the number of rape cases, the paper makes the case for the promotion of sex positivity and culturally relevant sex education.
Keywords: Sexual autonomy, miscommunication theory, dating apps, token resistance, sex positivity, sex education.
Understanding consent and coercion from the conservative discourse:
Although the majority of American teens are sexually active, there is a lack of sex education, including about HIV. Therefore, adolescent sexuality remains controversial, leading young people to perceive sex in negative terms and them being hesitant about communicating consent with their partner.
In spite of education, various abstinence-only programs and abstinence-only until marriage education (AOE), perpetuate negative perceptions of sexuality. The AOE curriculum is patriarchal in nature. It portrays women/girls as asexual and boys as sexually aggressive and manipulative. Rani Gaidinliu, who is considered symbolic of Bharat Mata, is one such example wherein a woman is presented as asexual ( according to a male Rashtriya Swayamsevak Sangh (RSS) commentator) even in the context of Hindu nationalism. AOE depicts sexual behaviour particularly in young men as uncontrollable after a certain point. It places the onus on women to not create situations in which men won’t be able to ‘control themselves’ and fend off any such sexual advances. This education would just teach refusal skills to women. It neither focuses on consent nor teaching how to hear and understand the word ‘no’ to men.
From a conservative viewpoint, since consent can be interpreted via attire and demeanor of a women, the entire liability falls on the women for her own rape or sexual assault. And given that women are seen as sexually uninterested, there is no point in taking a woman’s consent into account. Hence, no point in defining ‘consent’ as well. So, in this male-dominated world, men would be justified in engaging in sexual behaviour with their partner irrespective of their consent as they have an uncontrollable sexual drive or for the purposes of reproduction. It is considered acceptable to engage in consensual sex with a woman after expressing love as a tactic to obtain sexual consent, as the traditional stereotype is that men are manipulative in nature. It would be unreasonable if they were to be asked to control their natural instinct.
From the perspective of a radical feminist, this is compelling someone into sexual relations and thereby it is coercion. And this is how AOE is enhancing the number of sexual assaults especially in colleges and men are easily able to get away with it by victim blaming.
A conservative standpoint would be in favour of the fact that marital rape has not been criminalized in India. As per the marriage preservation theory, ever since olden times, spouses are expected to fulfil their commitments under the terms of the nuptial agreement. In muslim personal law, marriage is a contract, therefore both the spouses are required to complete their end of the bargain.The wife’s consent to sexual intercourse through the shared matrimonial consent or when she gives acceptance to the contract of marriage is always implied. Thus, ideas such as marital rape will cause the institution of marriage to become unstable.
This view is problematic because it justifying rape as sex. Sufia Farnaz in her article, “ MARITAL RAPE: MARRIAGE IS NOT CONSENT”, talks about how the legal doctrine of marital rape exemption is robbing wives of their ability to not give consent and use their freedom of speech and expression to say “no”. Rape is non-consenual sex but on the contrary, unwanted sex may still be consented to. Examples of such non-genuine consent are : when a
wife consents for the sake of procreation under societal expectation or when consents due to rituals and other familial reasons. Consent obtained through threatening to divorce is coercion. It would still be reasonable to assume a wife’s implied consent to sexual intercourse when it comes to love marriage but it should not be assumed in case of an arranged marriage. Just because a man is ready does not mean that he would assume that the wife is ready as well. Since human beings are said to be rational and reasonable in terms of making choices, consent may be defined as an explicit agreement entered into by parties who are freely willed and are said to be exercising their sexual autonomy.
Understanding consent and coercion from the perspective of radical feminism :
Even though it’s the 21st century, our perception of consent, coercion and sexuality gets distorted by social constructs and stereotypes. The socially constructed and sexually scripted male gender role as aggressive, uncontrollable, irrational, uncaring and manipulative has led to popularisation of various genres of pornography such as sadomasochism, bondage, BDSM, etc. Since, pornography is mainly based on this aspect of male domination and female subordination, it has come under criticism by anti-pornography radical feminists. Solely on the fact that the world is patriarchal and vulnerable groups are targeted, they adopt a Victorian discourse that sexuality is dangerous and is meant to be controlled and subdued.
Pornography seems to relate force, coercion and violence with eroticism and fantasy in a way that one learns that they are the crux of sex and pleasure, and are unable to conceptualise alternatives to these. The facade of choice or consent seems to be disguising the true nature of force. Even in the bollywood movie, “Kabir Singh”, intimidation and violence seems to be pertinent in the name of love. While, scenes such as a woman who is trying to make the man work “hard for it” initially says ‘no’ and enjoys the intercourse later on, women enjoying being degraded and treated as a possession or a sexual object, are shown, and even porn stars are shown to have consented to a particular act, I highly doubt the genuineness of this consent and even the industry. Since, pornography shows what men want and what they enjoy, a man would automatically assume that a woman will want and enjoy the same things. However, this enjoyment from non-consensual sex and violence cannot be generalised on all women and the real life implications of this are horrific. By making violence seem pleasurable and equating pleasurable with sex, pornography is blurring the line between rape and sex even more. Thus, blurring the line between coercion and consent, making coercion seem ‘sexy’ and consent ‘unsexy’.
The miscommunication theory as talked about by Kristen N. Jozkowski also seeks to explain why people have a vague understanding of consent and coercion. Date rape is still not addressed under IPC and dating apps continue to plague the society by contributing to the rape culture. And the reason why dating apps are perpetuating the rape culture may be attributed to this miscommunication theory and the Aziz Ansari phenomenon, spoken about by Prachi Gangwani in her book, “Dear Men”. According to this phenomenon, boys ignore nonverbal clues and body language that conveys disinterest. Aziz Ansari must have taken date as an implicit consent for sexual relations and the acceptance of wine by Grace as an
interest in sex, leading him to misunderstand events and being shocked to hear that Grace felt ‘forced’. The miscommunication theory is primarily supported by evidence indicating that men perceive the world as generally more sexual than women do. As a result, they are unable to comprehend the concept of consent. They take a woman’s nice demeanour as a sign that she wants to have sex. They interpret sexual rejections as sexual interest because of “token resistance,” which prevents them from seeing “no” as a no and “yes” as a yes. And this, along with a man’s belief in his persuasion skills leads to coercion.
Therefore, if a woman is on a dating app and she is talking to a man, based on her online conduct (flirty text messages), he might assume that she is interested in sex. And if they go for a date, based on her prior conduct as well as current and her outfit, he may assume that there is an implicit consent. Thus, if there is a certain level of romantic relationship, the man assumes consent, leading to sexual assault and in such cases women fail to get protection from law. Prachi Gangwani gives a similar example by talking about a tinder date in which the couple had a few drinks, decided to go home together and started fooling around. Just on the basis of the women being on tinder and them both swiping right, he might have assumed her interest in having an intercourse with him. The drinks and the fooling around, must have made that interest more clear to him and this what led them to have an intercourse when she did not want to consummate the liaison.
This sort of non-consensual sex is a bit different from rape in the sense that it involves a misunderstanding, there is no mens rea whereas rape involves a mental intention to commit a crime. Through her conduct, a woman may consent to a certain level of sexual affection, knowing there is a potential of sexual intercourse, a risk of rape. However, this cannot be implied as “consent to rape/sexual intercourse”. For acquittal from charges of rape, law requires a man to have a reasonable belief that the woman gave consent and the conduct was ‘welcome’. However, in the absence of any witnesses, this backfires on women as evidence like her sexual history and etiquette during the encounter become the determinant factors in determining her consent. The Apparel Export Promotion Council case highlights how the claim of a woman that the sex was non-consensual is only supported when her sexual behaviour remains inhibited, conditional and subject to morality. As such, radical feminist would claim that more obstacles are being created in the path of survivors seeking justice and the law is letting perpetrators get away with the crime.
Understanding consent and coercion from the perspective of libertarian feminism:
Sexual coercion/force is understood as “token resistance” and therefore, constituted as sex. While, violence is understood as sex owing to the pornography industry. However, if we distinguish forced sex and violence as not sex and constitute rape as forced sex and violence, sex would be seen for its positives. Liberal feminists are of the view that by spreading sex positivity and teaching culturally appropriate, unbiased and medically accurate sex education, women would be able to give voluntary consent. This would result in reduction of rape and the need to rape along with sexual equality.
Conclusion:
My stance resonates with postmodernism feminism, an ideology supported by Brenda Cossman and Shannon Bell as well. While, the butler decision is considered a win for anti-pornography radical feminists, it has led to censorship of obscene sexual material and LGBTQIA+ community has disproportionately been the target of the same. All of this is due to the conservative morality approach adopted by the courts in terms of feminine sexuality. And even though the Indian courts have held that silence or mere submission cannot be said to be consent as it requires a voluntary participation (Rao Harnarain Singh v. The State (1958) ), consent still remains impacted by the past relationship’s existence and continues to rely on proof of force and resistance. Secondly, rape should be categorised on the basis of severity and a distinction must be provided between stranger/real rape and date rape. In stranger rape, any form of force and resistance would be easy to establish. However, it won’t be easy in the latter considering that prior relationships are still taken into account and the fact that force/violence/coercion is seen as sex. Thus, it is also imperative to differentiate between force incidental to consensual sex and force indicative of non-consent. If the woman had consented to sex in the past, the man perceives it as an ongoing right and implied consent later on. The woman might be close to consent but not have consented to sex and therefore the same punishment for stranger rape, where the woman is nowhere near consent and date rape would amount to injustice. To tackle this rape culture, miscommunication and the issue in ascertaining presence or absence of consent, an affirmative consent policy is crucial. It would advocate and foster explicit, preferably verbal, communication of consent throughout the sexual activity which can be abrogated anytime, leaving less room for ambiguity. Some would argue that this is a nonsensical idea because it making consent to sexual relations seem like a written agreement just like the section 375 of Indian Penal Code does, when it should be a naturally occurring phenomenon. However, given the amount of sexual assault cases, especially in relation to colleges and sex workers, there is no better solution to address such crimes.
References:
● Gangwani, Prachi. Dear Men: Masculinity and Modern Love in #MeToo India. Bloomsbury Publishing, 2021.
● “Barriers to Affirmative Consent Policies and the Need for Affirmative Sexuality.” Symposium: Sex Crimes & Offenses in an Era of Reform, vol. 47, no. 4, 2017.
● MacKinnon, Catherine A. “Sexuality, Pornography, and Method: “Pleasure Under Patriarchy.” Ethics, vol. 99, no. 2, University of Chicago Press, Jan. 1989, pp. 314–46. https://doi.org/10.1086/293068.
● Cossman, Brenda, et al. Bad Attitude/S on Trial: Pornography, Feminism, and the Butler Decision. 1997, ci.nii.ac.jp/ncid/BA30680156.
● KAPUR, RATNA. “Sexcapades and the Law.” eprints.soas.ac.uk.
● Tong, Karen. “Date Rape: Real Rape.” UCL Jurisprudence Review, 2002, 2002, pp. 130-143. HeinOnline.
● Farnaz, Sufia. “Martial Rape: Marriage Is Not Consent.” Supremo Amicus, 7, 2018, pp. 305-313. HeinOnline.
