[Auto-generated transcript. Edits may have been applied for clarity.] Robin West, thank you very much for having this conversation with me. Thank you.
So I'm tentatively entitling this conversation what's wrong with consent?
Because a lot of what we're going to speak about are certain harms that you have identified in your work as stemming from, I guess, this,
this exclusive focus on consent, almost an obsession with consent, maybe, um,
that has now kind of taken hold or has for a long time in the ethics of sex.
Um, even though I think this is going to be made clear as we speak, your critique of consent is is starkly different,
very importantly, different from what's understood to be the radical feminist critique of consent.
But I wondered if we could perhaps begin by talking about how we got to this point with the role that consent now plays both legally and socially,
in regulating sex? Because clearly it wasn't always thus.
Um, in the past, consent was was really not the issue.
It's a relatively recent development that this is what everything turns on, that the licit of sex.
So and you know, you've written about this extensively the history of this.
So how was sex regulated before consent became dominant.
And then, you know, when and how did that sea change take place as you see it?
Yes. So it took place not at any particular point, but over time.
Um, so I've, I think it can be described this way.
Before consent rape was defined in all 50 states and much of the rest of the world as sex by force,
with utmost resistance, with a woman, not one's wife.
Um, and that eventually, as you said, gave way to a complete overhaul definition of rape as being sex without consent.
So how did you go from the first to the second? Let me start with the conventional definition.
Rape as sex by force, with utmost resistance, with a woman, not one's wife.
Three separate requirements. So starting at the end of that, the woman, not one's wife part.
This was the most important demarcation of sex from rape for centuries.
So what did it signify?
Well, the line between legal sex and illegal sex was drawn by marital status, not by anything having to do with force or consent.
Even violent and non-consensual or forced sex within marriage was legal.
Um. Within marriage. All sex legal.
Uh, even what we today would characterise as rape or sexual assault and outside marriage.
Likewise, it wasn't consent. Even fully consensual sex outside of marriage was illegal.
So it was clearly the marriage status that, um, did the most work in demarcating, um, uh, legal from illegal sex.
Okay, so that was, um, that's sort of the oldest chunk of this.
The utmost resistance requirement. I'm not sure the history I don't know when it started showing up in in US state definitions of.
Right. But it's but it was there for a long time. Um, and it was also the first of the three definitional criteria to fall.
It fell even before the marital rape exemption felt the, um, likely it felt, in other words, utmost resistance,
much that for sex to be recognised as forced and therefore as rape, the victim had to resist to the utmost.
She had to fight back. She had to. She had to have. She had to have scars or scratches that evidenced that there was a fight.
Um, she had to resist. Resist as much as she could.
Um, Otherwise it was presumably desired, presumably consensual, presumably not something she cared about that much.
So the the virtuous woman would resist to the utmost.
Was the underlying idea there? Um, okay.
Why did that one fall? This is pretty clear. Police forces as well as, um, liberal feminists.
But police forces centrally started advising women not to resist rape,
because resisting rape endangers your life in a way that, um, passive acquiescence does not.
So, um, so that became the sort of standard part of, um, the the attitudes of police forces toward non-consensual sex.
Was that the utmost resistance requirement is a real problem.
It's it's endangering women's lives that got the attention of legislators, and the utmost resistance requirements started falling by the wayside.
Okay. Then you're left with, um, and then the marital rape exemption.
That's a 3040 year history of trying to get rid of the marital rape exemption.
And it's largely a successful movement. Um, not entirely.
There's still differences between rape within marriage and rape outside marriage.
But for the most part, the marital rape exemption has also felt that fall.
And that leaves the force requirement. So to a group of, um, first liberal feminists, but then legislators and then eventually the culture.
Um, understanding rape as sex by force looked at first under inclusive that it did not reach sex that was not accompanied by weapons or fists.
Um but um should be criminalised, should be at least regulated.
Other forms of coercion include. Yes. Yes. Um, um, in part because it was in fact non-consensual, even though it was, um,
it was forced, or it appears to some to have been not to have been non-consensual.
To others it appears consensual. But at any rate, it looks like sex that should be criminalised.
So that included a lot of date rape, a lot of marital rape and even acquaintance rape.
The, um, the, the, the rallying cry among liberal feminists of the 80s was that all non-consensual sex should be criminalised,
not just non-consensual sex that's accompanied by fists and weapons, but any sex that is non-consensual should therefore be understood to be criminal.
Okay, so, um, the valuation of women's autonomy was always really at the heart of this movement.
If you read all that literature, the rape scholarship from the 80s, from the 90s into the 2000,
autonomy is clearly the value that is being promoted by the move from forced to consent.
The consent requirement respects women's choices to engage or not engage in sex.
The value that's being promoted is autonomy and free choice. Um, okay.
The worry that was initially expressed by Catharine MacKinnon and then by many others that you called the a minute ago,
the radical feminist critique of the consent standard. I think that's correct.
I mean, I do think that's a fair characterisation.
Um, was basically this that the consent standard alone runs the risk that it will be under inclusive,
that it doesn't pick up enough sex that should be criminalised. That isn't if all you focus on is consent.
Okay. Right. So there maybe is less could we say, you know,
the idea of consent having to be the dividing line and maybe more to do with what we call consent and what we what what we're willing to do,
or what the law is willing to call consensual and what it isn't willing to call. Yes.
It puts all the weight on that, right? It puts all the weight on, um,
deciphering and applying a standard that is overwhelmingly the content of it is overwhelmingly dictated by cultural attitudes.
The conclusion drawn was that there's a problem with with putting so much weight on consent.
So you need a different marker for the difference between legal and illegal sex and a society in which consent is so widely presumed.
If you don't trust those, basically, if you don't trust whoever it is who is the arbiter of consent, then then you're going in trouble.
You're in trouble. Can we? I wonder if we could backtrack to kind of where we're at now.
So as we were saying, surely, yes, consent and caring about autonomy and this being the dividing line is an improvement over,
you know, you can't be raped within marriage and resist to the utmost. Like for sure it's an improvement on that.
Um, but then what I find really interesting about a lot of your work is that you've
then got to kind of chart it some of the perils and some of the pitfalls,
um, in what you describe as the overreliance on consent, maybe in the social and ethical domain,
to demarcate ethically correct from ethically incorrect sex.
And you call some of these harms and costs legitimation harms or sorry legitimation costs.
Right. So this is not you saying, you know, consent doesn't matter. We shouldn't this shouldn't have happened.
But you seem to be kind of just wanting to maybe flag some dangers of thinking that, well,
as soon as we have consent or, you know, consent is the thing that that makes sex absolutely fine and perfect and.
Okay, um, and then just come into the floor. So I wonder if you could say a bit about what you mean by this term legitimation costs.
So I wanted to introduce, when I started articulating this, a different critique of consent and consensual sex in particular,
although the same critique of consent can apply to non-sexual transactions such as sales and labour.
Um um labour, I think more importantly.
But um, defining rape as nonconsensual sex raises the problem that everything that gets a pass is is legitimated.
So defining rape as non-consensual sex means that sex that is not rape, that is presumably consensual is thereby legitimated.
It comes from celebrated, valued, celebrated valued, but minimally not criticised.
You can't critique it. I mean, that's one thing that that's one way the MeToo movement got, I think, misunderstood,
but also sort of invited misunderstanding because they tried to critique it.
But you have to be clear. And so the consent requirement for rape versus sex leaves consensual sex ethically untouchable beyond reproach.
And as you said at the extreme, just always celebrated, always a good thing.
And I think particularly in sort of pro sex days, which were kind of in now, but not always, but not completely, not as much as we were in the arts.
Maybe in the teens and the 1990s. Um, consensual sex is doubly celebrated as both consensual and as sexual.
So if sex is always good and consent is always wonderful, then consensual sex is sort of doubly always good.
Right. Um, so the a fallacy. Right.
So it leaves it leaves a lot of consensual sex. Untouchable or beyond reproach?
Um, I call. Um, I have identified in my writing, as you indicated, two different kinds of costs.
One is legitimation costs, and the other is hedonic. Just, um, dysphoria.
But the basic point underlying both is that in a culture that prioritises and I would say fetishise is consent.
It leaves unwanted, unwelcome sex as well as unwanted and unwelcome transactions that are non-sexual really beyond critique.
And that has harms. So what is unwanted sex?
Before I move to the legitimation clause? What is it? What are some examples of it?
Well, sex that is not wanted, not welcome, not pleasurable.
That's the most restrictive definition. Um, but is nevertheless consensual.
Why would one consent to unwelcome unwanted sex?
Well, to ward off a partner's bad mood, to ensure that the money is left on the counter for the kids school lunches?
Because it's expected by one's faith, because it's expected by one's community to ward off threats of future violence,
which may not even count as coercion legally, but certainly don't count as force or violence.
Sex to satisfy the expectations of one's peers in a hook-up culture, etc..
Guilt or shame induced sex where one believes that it's unwanted or unwelcome because of some flaw of one's own sex,
because it's the expected return for a dinner on a date, sex because it's expected by the culture, etc..
So there are many, many, many reasons why you, in your writing, kind of underscore,
um, what you call hook-up culture, a sort of culturally mandated sex,
because I think when most people think about kind of sex in softly coercive circumstances, which maybe passes the bar of consent,
but but is in some way kind of tainted or grey area, I think they usually think about kind of power imbalances.
Um, you know, the wife who can't afford to divorce her husband, you know, that sort of thing.
But it's interesting that you pick on this as well, which is much more diffuse, kind of it's peer pressure.
Basically. It's the kind of the infinity in college kind of, uh, sort of pressure.
It's more diffuse. It's also, I mean, thinking about all of this as the result of power dynamics might be descriptively true in some ways,
but it also is, um, isn't all that helpful, and I don't think that it always identifies the harm correctly.
Power imbalances are pervasive. There's a disparity of power in any transaction between any two people, so it isn't clear that it's helpful.
Um, there may be a power imbalance between a faculty member and a graduate student who is not in that faculty members program, and so on.
If one thinks it's the power imbalance per se that, um, makes sex suspect, then those relationships are out of bounds.
And the same is true of all workforces. And so, um, focusing on the power, I think both, uh, further hides the subjectivity of these harms,
which I think needs to be articulated, but also as introduces an over inclusive problems of its own.
Okay, legitimation cost as a phrase just means that you're overvaluing whatever was consented to by virtue of the fact that it was consented to.
And again, that can happen in non-sexual as well as sexual realms.
It also on another legitimation course using consent is the demarcation of legal versus illegal also legitimate,
um, the conditions that made the consensual attraction,
that made the consensual attraction transaction appear to be good, and those conditions might indeed involve a lot of coercion,
but they might involve some of these more diffuse, diffuse cultural elements as well.
So if the labour contract is consensual, if it's presumed to be good for both parties, then it legitimate.
Whatever is wrong with that? With that labour site, which might be a lot, right.
It might be unhealthy, it might be dangerous, it might be low paid, it might be too many hours and so on.
If consent. If the if the fact that the Labour contract was consensual.
Um. Everything okay? Yeah. Everything's okay and beyond critique, then you're never going to get there.
Um, this was Marx's early point. It's pretty basic.
So there's an analogue there that that's. Yeah, there's an analogue to Labour.
Yeah. There's also an analogue to sales.
If you um, if you think that every term in a sales contract is, is legitimate because the contract was consented to then.
You're legitimating a lot of things like non-disclosure clauses and mandatory arbitration and, um, and so on.
So, um. Okay, it doesn't follow from the fact of consent that that which was consented to is good.
It only follows that it's not bad because it was non-consensual. So the fact that a labour contract is not slavery doesn't make the labour good.
The fact that a transaction is not theft doesn't make it good.
It just means that it's not bad because non-consensual it might be bad for other reasons.
Okay. Likewise, the fact that sex is consensual doesn't mean it's therefore good, right?
It might be bad, but for other reasons. And that's really and um, so that's really all that legitimation cost means kind of analysing something,
you know, masking maybe a whole panoply of problems. The problems just disappear.
And then liberal society in which, um, You know, we vote.
So we've consented to all of this crap. We've we consent every time we get in our car, every time we walk down the street, we're consenting to it.
You know, it can. It can be at such an extreme level that it looks absurd.
But nevertheless, in a democracy with where the sole rationale for democracy is that it rests on the consent of the governed,
you have that legitimation cost problem writ large.
Yeah. Okay. If if patriarchy is like democracy in that way, then you have the legitimation problem writ large in the sexual realm.
Um, in the same, in the same sort of way. So I guess, okay, thinking about the kind of the problems that are masked, you know.
Right. What could be wrong with all this consensual sex, I guess many things. Many, many things.
But you kind of zero in on on very particular things that haven't really received very much attention, especially with this idea of hedonic dysphoria.
Correct, correct. And so some of the, some of what's legitimated is the power imbalance, as you suggested a moment ago.
And that's what most people are criticising consent, but who, like me, nevertheless think consent should be the demarcation,
but who nevertheless are critical of consent, have focussed on the legitimation of the power imbalance as the problem.
I my thought is that it is that there's another legitimation cause, and that is that it legitimate.
The subjective being that follows, and part of that subjective being is what I started calling hedonic dysphoria.
So, um, okay, so what is that?
Well, um, I don't think it happens every time somebody has sex that they don't want.
That was an answer to one of your questions. But if one consents to sex and consents to a lot over it over a long time, such as an entire adulthood,
then I do think it leads to what I call hedonic dysphoria, by which I mean a girl or a woman.
It can also be a boy or a man or cis whatever who no longer regards her own pleasures and pains as determinative,
even partially determinative of herself, or of her choices, or of her desires, or of her preferences.
Pain and pleasure to sort of disappear from one's eternity.
Jeremy Bentham famously said in his defence of utilitarianism, pleasure and pain determine what we do and what we don't do.
But what if over an adult life, they don't determine what we do and what we don't do,
but the pleasure and the pain of someone else determines what we do and what we don't do.
Okay, in a way, that's the definition of servitude. But it also may be the definition of oppression.
But it also, I think,
and quite sort of vividly is what happens when when one's own very physical pains and pleasures are regarded as irrelevant to one's choices,
one's desires, one's preferences. And then what one does in the world, pleasure and pain not only become muted, they lose significance.
We're not doing what pleases us. We're not avoiding what pains us.
And and in some profound way, I think that destroys selfhood.
That. Yeah. So that even if Bentham overstated it and all of that, there's something to the idea, right?
That pleasure and pain determine your desires and your desires.
Determine your preferences and your preferences. Determine your choices. And your choices is what makes you an individual and impactful in the world.
Well, if that chain is broken at the very beginning, where your pains and pleasures are not determining any of that in some important way,
you're not as self as constructed in liberal culture. You're I mean, in early writing I call this your giving self.
But at any but at any rate, the traditional liberal understanding of selfhood,
right, is that it's your preferences and your desires that determine your choices.
What's determining those preferences and desires? Well, a whole bunch of stuff. But pleasures and pains in part, right?
I mean, you may have I mean, this is super interesting to me also because, you know, when I read this, you know, I'd never read anything like it.
I hadn't read, you know, a critique about precisely this.
And I was kind of wondering, you know, how, I guess, how would you recite this concern to say,
like an 18 year old girl, um, you know, having, like, loads of sex with different guys, and they're saying.
But the truth is, I, you know, none of it is really doing anything for me.
I just kind of do it, I don't know. Um, would you be talking to her about.
I don't know, I guess you're kind of alienating in some way. You're parts of a part of you from important parts of who you are, or you're, like,
denigrating yourself because you're behaving as if your own pleasure and pain doesn't matter.
Is kind of that the kernel of the. Yeah, I think both of those are true.
And both of those, um, might spark some self-understanding or recognition.
But I do think that's the relevant question.
I, um, I at one point I was talking to a bunch of people that do sex education for Planned Parenthood, including my, uh, Stepdaughter.
Yeah. And I asked her if, um, I'm going to ask her a number of people.
This. The answer was always the same. What is taught to teachers of sex ed?
And what do the teachers teach in sex education classes about the ethical conditions of good sex?
And the answer was always consent. You have to make sure that both parties are consenting.
So one way to put this point, and it seems trivial and obvious, but it's not apparently, is that consent is necessary but not sufficient.
And so what both parties should be asking is if the sex is wanted and welcomed and desired.
Um, and each party should be asking that of him or herself and of the partner.
And so, um, just to effectuate that shift in the way we talk to teenagers and it's not just 18 year olds, it's 14 year olds, 15 year olds,
16 year olds and 17 year olds about their budding sexuality and talk about it so
that they understand that pleasure is a precondition and pain is an absolute no.
Then, um, then that I think is in advance. It's a hedonic advance for everybody.
You get more pleasure in the world and less pain. But it's also, I think,
an advance in the way that you were saying you have less self alienation and you have less self denigration
because it's clearly denigrating to think about your own pleasure and pain not mattering in this realm.
It might not matter in other realms if you're engaging in, you know, altruistic community service or something, right?
I mean, I was thinking about this when I read about was reading you on hedonic dysphoria as well.
I was wondering if the point is very specific to sex, or maybe just the weightiness of it.
The importance of it is specific to sex, because, you know, I was imagining, I don't know,
someone who goes to the theatre a lot, you know, because that's what their friends do.
And they kind of tell themselves they enjoy it. But really, um, you know, it's like pulling teeth for them.
And they do all the time, you know, is there kind of a hedonic dysphoria problem.
I mean, I'm guessing you would say, well, no, it's not. It's it's not kind of the same level of seriousness.
And that's kind of key to the to the argument here,
to the harm that it's specifically to do with one's body and one's kind of immediate pleasure and pain.
It's, um, you know, it's not just anything it has to do with the fact that it's the body.
And and again, um, with the longevity of it, if this extends over time is always the case.
And, and and then, I mean, the person who goes to the theatre because their friends like it, um, is aware of it,
is aware of that disjunction, even the way you just put it, it's like it feels like pulling teeth, but I do it anyway.
Um, because I'm getting other sorts of pleasures or because I enjoy giving pleasure to my friends and, um, you know, that's that's harmless.
It could be admirable. The same is true, of course, with sex.
And you ask that at some point. Is this always harmful? No, of course not. And, um, unwanted, unwell.
I don't know that unwelcome, unwanted, unpleasant sex can be a part of a loving relationship.
That is that. And so it's worthwhile for that reason.
If if it contributes to the strength of the of a healthy relationship.
So it's not that you think it's always the case that if somebody engages in sexual activity that they don't particularly desire in the moment,
you know, there's this hedonic dysphoria is going on. It's right.
It's a right question of longevity and maybe the circumstances to some extent as well.
And that the motivations may be. Yeah, I mean, the, the my point is that this can be harmful, not that it necessarily is harmful,
but that it can be harmful, and it is particularly harmful if it's indulged in over time.
I do think it relates to other forms of female denigration.
Um, one example I used to use there was this, um, there was a movement in law schools.
Wait, I'm sorry I never asked you. Are you a lawyer? I am, I'm so sorry.
Okay, okay. So you may remember this.
It was a big movement in the 80s, I guess,
to track the number of times women volunteer in law school compared to the number of times men volunteer in law school.
Who raises their hand? Who gets volunteer? Yeah, yeah. Who raised their hands?
How they're responded to how their peers respond when a woman talks to or there is their eye rolling?
Is is she treated respectfully by the professor and so on.
Um, but the main one was just quantitative. How often do men raise their hands versus how often do women?
There's a pretty shocking disparity. I don't think it would be shocking to me having having any records.
Right? I mean, it certainly does continue. Yeah.
I don't know if it's as bad as it used to be, but at any rate, I think that that's that's a that's a manifestation of some of this.
I mean, I don't know if there's a 1 to 1 correlation, but if one constantly denigrates one's oneself in this physical realm.
Its that's not far from denigrating oneself intellectually.
I think these two things are not unrelated. If someone is kind of not unrelenting,
which they are just routinely kind of subjecting their body to something which people are telling them is enjoyable,
but which they don't find enjoyable. Right.
It's kind of does does something to the psyche or the, you know, the way the person thinks about themselves, which which runs in,
in a direct line to they're the kind of person who might not want to kind of put them to push themselves forward.
That's right. So it leads to this thinking of, um, I'm in pain, but it doesn't matter because I don't matter.
I'm in pain because it doesn't matter. Because the pain is actually trivial or I'm in pain.
But it doesn't matter because I'm misunderstanding.
The pain actually is pleasure, and I'm feeling it as pain is kind of gaslighting, because I think at one point you put this in terms of gaslighting.
It's kind of social gaslighting into thinking something is must be pleasurable, because it's this and it's consented to.
Um, right. And then if you're not consenting, there's either something wrong with you, um, or you just don't matter or you're confused.
And, um, that leads to a lot of confusion and a lot of self denigration.
I think we we mentioned me to very briefly, um, earlier in relation to this, and I was wondering, you know, if you have a view on what,
you know, a general view on what what the MeToo movement has done with regards to buy in to the ethic of sex, you know,
has it I guess, has it kind of bolstered consent as the be all and end all of the ethics of sex or and
might there be an argument to say in some ways the MeToo movement has kind of exposed,
um, the problems with regarding consent as the only thing that matters.
Okay, so yeah, it's a double edged thing. First of all, um, to back up just a second, sexual harassment law does not define the actionable sex.
Think about just quid pro quo as as non-consensual. It defines it as unwelcome.
So that sort of opens the door.
Sexual harassment law and sexual harassment itself is, um, unwanted and unwelcome sex in the workplace or in various places, schools and workplaces.
So that at least introduced the concept and the MeToo movement in the most literal sense, just exposed how widespread that is.
Unwelcome and unwanted sex in the workplace or in schools is is this, um, is is a large problem.
So the on the plus side, the MeToo movement exposed and set out to expose and did expose the amount of sexual harassment in the world.
If people understand that sexual harassment is defined in that way as unwelcome sex rather than as non-consensual sex,
then that goes a long way toward resetting the line between what's acceptable and unacceptable sex,
because it resets the line in a legal context, not a criminal law context, but in a nevertheless in a civil rights and tort based, um, understanding.
And it did lead then to some success, to a lot of successful lawsuits.
The MeToo movement led to a lot of successful lawsuits and at least some criminal convictions as well, of powerful men.
Okay. On the other hand. First of all, there was a backlash.
Um, but it and but part and part of the backlash was that some of what women are complaining about in the MeToo movement just looked like bad sex,
right? As opposed to anything that is a worry, right?
And so bad sex can't just be a worry. So that's what's wrong with these movies?
Yeah, not so much, because I feel like in some of the cases, these cases, these kind of famous MeToo cases, not all, but of course,
but some of them, you feel like there's almost a kind of a a desperate effort to, uh, to understand an interaction as non-consensual.
Right. You know, and to have an argument about it purely in terms of consent, because if it's not non-consensual,
I think people are at a loss to then explain, to say what's wrong with it. What was the problem?
If anything. That's correct. That's correct. And so, yeah, you did see that all over the place.
Um, you saw it in women's centres on universities that women would come in and they would
have some unease about what's going on with their sex lives and with their sex,
and they would try to express it in a way that emphasised non-consensual, um, features,
in part because I think we lack a language to talk about what's wrong with sex when it is consensual, but nevertheless bad.
And so, um, it so the so the backlash to me too was in part that it contributed to this sense that consensual sex,
no matter what else is true of it, is going to be harmless.
So I guess the kind of there's an implied premise here, which I think is a correct premise, which is that, you know,
consent is a kind of a like a minimum condition, um, on sex being legitimate, good, valuable, all of these things.
And then I suppose that kind of, you know, raises the question about the law because you're thinking about outside of the law and, you know,
how would you advise, you know, young people, you know,
on the precipice of becoming sexually active, to engage in sex, to think about the ethics of sex.
And that's sort of one question. And I think the legitimation costs of consent are clearly very, very salient there.
And then there's kind of the question of what should the legal threshold be?
And we're talking about problems with consent.
But but I guess a lot of people will always want to hear bring bring things back to that and know about that.
So I mean, do you think that there ought to be space for lawful sex that is nonetheless bad sex in, in various ways, possibly one of those ways being,
you know, power imbalance, you know, abuse of power imbalance, um,
which nonetheless meet the threshold of consent, you know, so long as consent is present.
Um, I mean, do you think it's important that we have, um, you know, that gap between what the law insists on and what is ethically ideal?
Yeah, I think it's very important that we insist on that.
First of all, obviously you cannot criminalise all consensual sex.
That's bad. And so that's not that can't be understood as a as as a, as a goal, as a sensible goal.
We wouldn't want to do that. Um, um, one way to put this problem is that, um, critiques of consensual sex run.
The danger of being, um. Of having to go through what I call a force funnel.
That you have to describe it as forced. It has to be coerced. It has to be, um, involuntary, you know, involuntary, violent, forced,
coercive in order for the criticism, even one's own reflexive criticism to gain traction.
And so that's the lack of a gap.
What a gap would do would be to give you a way to describe, um, sex that you have or have had or that you're contemplating having, um,
as not forced, fully consensual, not coerced, but nevertheless something to be avoided because of some harm that it might that it might occasion.
Um, okay. I think that this tendency to understand rape as forced sex and then to understand everything that's bad if, when and if sex is bad as.
As the, um. As a function of force and power.
Right. Is, um, is is just a mistake.
But it's a very understandable mistake in, particularly in a liberal culture, like leave sex out of it altogether.
The same thing happens with capitalism generally, right?
The fact that we're not in a slave society doesn't mean that everything that happens is consensual in our work life and in our,
um, transactional life is good. And, um, and, uh, you know, that assumption underlies the entire virtually the entire administrative state, right?
There are going to be harms in sales and in commerce and in labour that aren't captured by these images of theft or rot or slavery.
And we just haven't made that step in with sexuality, that there are harms of, um, fully consensual sex.
Sex? That's not rape. Sex is nowhere near sex. It's not even sexual harassment that nevertheless need to be articulated spelled out.
It doesn't mean we need an administrative apparatus to to cope with all that.
And so and so your question, you know, what should be the legal response to all this?
I'm not sure that there should be a legal response other than to, um,
take care to avoid this slippery slope other than to take care to avoid the legitimation costs.
So the legitimation cost is a cost of the legal system. I think it's a cost that's a function of law.
Right?
Because when the law articulates a certain standard as being these standards, there's a kind of temptation to just take it wholesale as a moral ideal.
Yeah. It obliterates, obliterates the moral realm.
Right. Which is a problem generally in legal systems with a even a very well functioning rule of law.
There's that problem that, um, if morality is associated with sort of 19th century Victorian norms,
then there's no there's no space in which to engage in serious critical moral thinking about transactions that you don't want touched by law.
Okay. The, um, but it doesn't have to be.
That law exits the field altogether. It's already entered the field in the sexual harassment context, as I said.
I do think that the MeToo movement, as well as the anti-sexual harassment movement,
would benefit by a rich vocabulary to describe what is meant by unwelcome sex,
since that has become the legal standard in the realm of school and work.
Now it's the legal standard there because of power imbalances, right?
So in work and school, it's it's that sex that's unwelcome and that can be actionable,
is embedded in a, um, in what's recognised quite formally as a imbalance of power.
And so the tricky, tricky thing is to figure out how to think about unwelcome sex that is not necessarily tied to any such, um,
any such formal power imbalance and then how to talk about it and then how to talk about the up costs and the benefits of, of of worrying over it.
I think. I mean, this is implied by one of your thoughts about how you talk to an 18 year old.
I think that a lot of the weight here has to be on education and just on the promulgation of cultural norms, right.
I just think it would be a big step forward to encourage people to have those conversations.
Yeah. About consent. But if you think you're going to have good sex, either morally or physically, just because somebody consented to it, you're.
That's ridiculous. That's silly. Right? I wonder if finally we could return to the radical feminist view and kind of and your critique of that.
Okay. We spoke about it a little bit earlier. Um, but, I mean, it's often understood who this view,
the radical feminist view of consent and rape to entail this idea that in conditions of patriarchy,
all consent is kind of so tainted because of inequality, because of lack of genuine free choice,
that all heterosexual sex is in some sense a rape, you know, or or in some sense a kind of a violation.
And I wondered if you could kind of clarify, you know, for me, do you think, I mean, do you think that is the view?
Do you think that's kind of a fair representation of the view? It's one that I, that I hear kind of bandied around.
And then do you think that's a helpful way of thinking about, you know,
a lot of this problematic kind of coercive type sex as, as, I mean, making this as politically, I call it rape.
She then says, I don't want to put everybody in prison for that. But politically, I call it rape.
You know, this is all much of a muchness. Almost seems like the idea.
I think it's possible to make sense of the radical critique of consent without reaching
the reductio ad absurdum conclusion that all heterosexual sexes should be criminalised,
and that is what she was doing when she was talking about the, um, over inclusiveness of consent.
The way that that just about any sexual transaction, in my words, is understood as, as resting on express consent.
Marital is the obvious example, but so is sex work implied consent because of the way people are dressing the [INAUDIBLE] [INAUDIBLE] thing.
Um, or hypothetical consent that you're just you're just assumed to have to have consented to sex because of your particular faith.
I mean, remember, in the Catholic Church, to withhold sex from your husband is a greater sin than it is for him to go get sex,
whether consensually or not, with some outsider? So withholding of sex was regarded as the greatest sin.
So, um, that's an example of what I would call hypothetical consent, that the sex is hypothesised as having been given at.
At, um, at the altar. That makes it express, but as implicit in the role.
Right. If it's implicit in the role of being married, it might also be implicit in the role of being and cohabitation relationship,
or in a relationship or on a date or as part of sex work.
And then that makes you sort of unreasonable. So much of what she said was about that phenomenon.
It was about the way in which consent is presumed so widely that it's just unworkable.
I mean, she never used that word, but it's I think that's what she meant,
that it's unworkable as the divide between consensual and non-consensual, between rape and legal sex.
And what she wanted to say instead was that in some very important sense, yes.
That's why she said yes.
In that context, all all heterosexual sex is rape because it's all coercive, because the culture mandates that women always want it,
that women always desire it, that women always say yes to it, that that's what women are for.
And so what she wound up concluding was that you shouldn't use it as a criteria.
You should use force as the criteria. And there's problems with using force.
But to get back to the more global claim,
one reason for the disconnect between what she was saying and I think what she meant and the way she was heard,
and it was often because of the way she was expressing it.
Right, was that is this there's a common phrase used right among critiques of capitalism that all property is theft.
Right, right. I mean, you hear that bandied about, and so no one understands that.
I don't think as meaning that everybody that owns even a sliver of property should be in jail for theft crimes, right?
They understand it to be a political statement, that it's a political slogan and it's a metaphor.
Um, okay. But in a time period in which other groups of feminists are trying to expand the definition of rape, the definition of what's illegal,
so as to include a lot of sort of amorphous things that not everybody can get their head around to say something that is heard as all sexes rape as,
as a in contrast to saying all property is theft doesn't have an anchored set of meanings.
Right? So that if you're saying all sex is rape,
while another group is trying to expand the definition of rape to include a lot of sex that previously wasn't rape,
it sounds like it's not so crazy to think that you actually mean that all of this sex should be illegal in some way.
Not necessarily criminal, but illegal in some way. And I think that's where the disconnect was.
But your view is that, you know, regardless of this question about criminalisation,
and what we should call rape is also that there are very different harms associated with same sex studies consented to,
but in these kind of broadly socially coercive circumstances.
Yeah. Sex that are great in that it involves the literal, the literal overpowering of of a person,
you know, whether locally or with kind of coercive threats that amount to correct.
So, so there's, so there's two problems with the radical feminist critique of all heterosexuality, basically.
One is that it it makes more difficult the liberal feminist movement, as well as theoretical move to try to expand the, um,
to expand the definition of rape, to include some forms of sex that people previously had not understood as,
as rape or as deserving of criminal sanction. It just confuses things hugely.
Um, but the second is that it, um, in some ways it's just over inclusive.
As I said before, there are there are, um, sexual relationships, sexual encounters, marriages, relationships and all the rest of it that are, um,
morally unproblematic that, um, that get swept in if one ties the critique solely to power imbalances because power imbalances, again, are pervasive.
I mean, you have to look pretty hard to find somebody who's at exactly your level.
And so and so to return to the school context, I remember when all this was being bandied about in the 80s in terms of defining,
in terms of writing codes of what sexually permissible and not on university and college campuses.
And some of the complaints were coming from people who were in liberal arts colleges and rural settings,
rural America, where it was your only I mean, that's the dating pool.
And so and so the thought was, look, as long as you avoid students who are either, you know,
under 18 or who are undergraduates, define it however you want, as long as you avoid the population,
that's that really is at risk of being exploited and avoid, um, relationships with your direct underlings,
whether they're students or your graduate assistants or your researchers, whatever. It shouldn't be regulated at all.
And so and that struck me a sense of sensible.
It still strikes me as sensible. And, um, I think that where we got to the point of, um, over regulating sex between people at a,
at different levels of hierarchies, but which, but who are not impacting each other.
It's the same in a large workforce. If you're just at a higher rung and you want to have a relationship with a co employee who's not in,
you're not in your jurisdiction at all over whom you don't really directly exercise power,
but you do have more institutional power, um, that that starts looking over inclusive.
Robin West, thank you very much for this conversation. Okay. Well thank you, Kate.
Thanks for. Thanks for inviting me. And I enjoyed it very much.