In non-sexual public life, the idea of consent should be easy to identify. When we encounter a screen prompt on the Internet, for instance, we "consent" to lengthy terms typed in six-point font. We don't know what we're agreeing to, but we know we must check the box to gain access. But even this isn't a hard-and-fast rule. Facebook users engaged in this box-checking exercise until they found out their identities were being featured to endorse goods sent to their friends. The questionable consent practices of the social networking site prompted a class-action lawsuit and a federal investigation.
In medicine, the principle of "informed consent" emerged to promote patient autonomy over health care decisions. Yet patients mindlessly agree with doctors, believing they cannot question their course of treatment. The transparency of informed consent only faces scrutiny when, for example, there is evidence that California prisons sterilized 150 female inmates without their consent, and there is reason to believe infants participated in clinical trials without fully informing and obtaining consent from parents of neurological as a potential side effect to the child.
Even these seemingly clear-cut circumstances of consent are murkier than they first appear. So if controversy make us pause to consider consent, why not study the nature of consent outside the norm of accepted behavior?
As a lawyer and a sociologist, I spent hundreds of hours observing and interviewing people who consciously consent. One group I studied were practitioners of the largely illegal practices of bondage/discipline, dominance/submission, sadism/masochism -- an umbrella of behavior more typically referred to as BDSM. Practitioners of BDSM tend to reside at the fringes of mainstream society -- the popularity of Fifty Shades of Grey notwithstanding -- and legal institutions attempt to control their seemingly "deviant" behavior by defining what acts people can consent to perform.
But my research reveals an interesting paradox: Consent is more meaningful, explicit and purposeful by individuals labeled as sexual transgressors and under criminal battery law.
In BDSM, practitioners engage in detailed negotiations before each erotic encounter or "scene." These agreements are typically verbal in nature but sometimes practitioners put them in writing. This method provides greater control over the terms of their encounter. More important, the explicitness of consent signals to a broader public that their actions are calculated and possess considerable autonomy over their bodies.
Rather than vilify or sanction the people who may not comport with mainstream social norms, perhaps turning to individuals who are marginalized is where we can learn how to make consent more, well, consensual.
However, calling for more meaningful consent is easier said than done. We assume people know consent when they see it. Yet the United Nations recently released a study that revealed 24 percent of Asian men admitted to raping someone, some of them admitted to raping their partners.
I appreciate that sometimes explicit consent can be onerous -- it's not always so sexy to say, "Can we agree that this is consent? How about for this?" And there are economic arguments for "take-it-or-leave-it" arrangements, for example, consenting to the fine print to purchase goods reduces costs because there is a cost to negotiate every single term. There are also intellectual arguments to place trust in the recommendations of people with expertise, for example doctors.
However, if we stop affirmatively consenting, we risk the possibility that those with power will do the consenting for us. Allowing those to dictate the terms of consent bestows tremendous power often at the expense of those who are the most marginalized.
Clearly sexual violence and criminal behavior do not involve consent; such examples are on the extreme end of the spectrum. Consent -- and its refusal -- at times appears explicit. And at other times implicit. But at all times, we need to be more aware of its power -- in its presence as well as its absence.
Weinberg is an attorney, instructor and doctoral degree candidate in sociology at Northwestern University, research associate at the American Bar Foundation and alum of The OpEd Project. Her research comes from her book project, "Constructing Consent."