Ep5. Beyond Consent - The Age of Consent

Speaker 1 In this series so far, we've been starting with definitions of consent and we've seen that it is not so easy to come up with these, but in this episode, we're looking Beyond consent. So what do you think should be at the center of our laws around sex? Speaker 2 I think it's working out how to trade the line between, recognizing that that substantive vision of why sex is, good is both highly personal but it's massively political and we never through law. I'm making Making statements that don't make political statements. And so I think what has to be at the heart of, this is an awareness of that and an acceptance of that, a willingness to confront that and a lot of work to kind of highlight what's at Speaker 1 stake and how might we Define ethical sex? We need a very broad understanding of Ethics, so we need to think about a collective ethics of sex that Includes a commitment to challenging gender power dynamics that includes a wider culture of respect for autonomy and relationality and that does the sacks as part of a wider set of social practices you know both generally and between people. So I think then individually ethical sex is about in the end the kind of basics of ethical interactions which is seeing the other person or People as complete beings who are different and ultimately unknowable. Speaker 2 In this five-part series, we will explore our ideas about consent where they've come from and how we tend to use them particularly in our laws and how these ideas have evolved both legally and socially. Speaker 1 My name is I'm Rita Allah waliyan McManus and this is the age of consent. Over the course of this series. We've looked at many dimensions of consent. We've discussed the history of consent as a legal concept and how it is defined legally. Now, we've compared this to social perceptions of consent and looked at how the gaps between these perceptions and the law can have very real impacts. Finally. We've also explored ways, these perceptions have been challenged by people working to change them. Across the series. We've also followed the story of the maiden tribute we've tracked, the legal reform that followed it which among other things. Raise the age of consent to 16 for sex outside marriage. And we've seen that the young underage girls that subsequently appeared in courts and rape trials were often not offered any protection by this change. We've also followed the consequences for stead and his accomplices who were tried for their roles in the maiden tribute stead himself, served a short and comfortable sentence while those that helped him were treated much more harshly. But what about thirteen year, old Eliza Armstrong, the trials and the public discussion surrounding them were strikingly uninterested in Eliza instead. The focus was always on her mother Elizabeth and on her family and of course on stead himself as we've seen for said, there is no question about the inevitable ruin that Eliza Armstrong faced as a poor impressionable young girl or about the corrupting influence of her working class family. He thus instead mind he was saving Eliza with the help of the Salvation Army started arranged for Eliezer to be taken to France without telling her family. When Eliza's Fatherland of this, he went to look for her this journey for a poor Working Man from the East End of London, to Paris would have been extraordinary. When he arrived in Paris, they had already moved Eliza and moved her several times. Again before, eventually bringing her back to London. All without informing her family. When her mother was eventually allowed to see Eliza and Eliza was returned to her care. She was asked to sign a statement that she certainly wouldn't have written herself it read. I have received my daughter Eliza safe and sound together with double the wages agreed upon for all the time. She has been away, my daughter tells me, that she has been very happy and comfortable that the people with whom she has been have been very kind to her. I am quite satisfied. Satisfied, that she has been subjected to no outrage or bad usage signed Elizabeth Armstrong at the trials, following the maiden tribute, no one implied. That Eliza herself knew why she was taken away, or we're at no point during the trial was her consent or ability to consent given any thought of course. Technically, it wasn't necessary to consider Eliza's consent in the trials as the offense was Instructed through the absence of parental consent, but the failure to even acknowledge her experience and how distressing it must have been for her. A thirteen-year-old is remarkable. In some respects, we've come a long way from the time of the maiden tribute. But in others, there are uncomfortable parallels, that we are still grappling with today about the concept of consent and where it's come from, how it's reflected in our current Norms, what we would like to change about those norms and whether our current version of consent can get us there. In this final episode, we will look more closely at the limitations of current definitions of consent both legally, and socially, and the extent to which these can help us understand what good, and ethical sex should be. We spoke to Chloe Kennedy at the University of Edinburgh. Chloe is doing research on the question of deception between sexual partners. And is looking at, when if ever deception should be criminalized, Speaker 2 there have been cases brought, which give us some indications about different ways in which people might be deceptive. But there's also research that highlights. The kind of things that people will be deceptive about when it comes to sex, and intimate relationships. So the sorts of things range, What's the actual sexual activity? What things are you physically doing? Kind of to one another, the identity of the person you're having sex with, that's a big one. But of course, identity is a term that can mean, lots of different things that can mean the person as a whole. So like what I would call wholesale, identity deception, you pretend to be as completely different person or it could mean certain attributes of that person. Gender is one thing that's come up in case law, in certain jurisdictions. See, ethnicity Etc. And then there's other kinds of what some people might call kind of preconditions. So what's the nature of the relationship you have? Are you married, aren't you? Married? What are your intentions with respect to your relationship? So there's a bunch of different kinds of things about which people might be deceptive and people have got different ways of trying to separate them out from one another. So that there is some way of potentially drawing lines around. You know, what's going to potentially lead to criminal liability and what won't you know? There's all kinds of things that might be seen as less, or more important. And I guess the difficult thing to do is to find a way that doesn't feel like you're telling people, what they should care about. But also doesn't mean that literally, anything might be the basis of potentially quite serious criminal conviction. Speaker 1 Chloe is conducting This research because as they stand are laws on consent and not very clear on when deception in sexual relationships is actually a legal and past legal judgments on this issue. Have not been very consistent Speaker 2 Scotland and also in England and Wales. What we have is essentially legislation that says two kinds of deceptions definitely matter. So that's deceptions about the nature or purpose of the act and identity. But only if it's an Nation of someone who's known personally to the complainant and then what we have on. Top of that is a definition of consent, which opens up the possibility that other kinds of receptions, might matter. So, the legislation is not identical in these two jurisdictions, but the basic idea is that the agreement, the decision to have sex has to be free. So then that opens up the question of well. What does freedom mean when does Deception impinge on freedom enough that we would say that consent is invalid for the laws Is so the reason we I think are having these kind of difficulties in these jurisdictions, is that the decision about what sorts of deceptions will impinge on freedom in the relevant way have been made on a case-by-case basis. So it's not always been clear in advance and not even sometimes in retrospect what the boundaries of the law. So, what I'm suggesting is that we have much more into statute that says, x y, and z are the kinds of things that will lead to sexual consent being Speaker 1 invalid. Chloe, Is looking for ways to provide Clarity around deception without having decisions. Focus around the question of what the complainant believed and why they believed it when they consented to sex. Speaker 2 So I'm trying to set up a framework that allows us to be able to draw lines in a way that respects and reflect the interest that we're trying to protect via sexual offences law, but doesn't make everything turn on the complainant and kind of what they thought at the time. And so, how I try to do that is through Thinking about why sexual autonomy matters to us. I try and connect up kind of sexual activity and an account of kind of identity formation. So selfhood and sex. How are these things related? And basically I try and argue that one way forward is to think about how sex and its consequences are relevant to Identity formation so that certain we can identify certain sorts of deceptions that directly bear on that process of identity formation. That all sounds quite abstract. But in the paper, what I've tried to do is say look there could be two routes through which we can protect decision-making. So, one would be the cause sex is quite personal and individual, if someone has said upfront and explicitly, this particular thing really matters to my decision to have sex. That would be a clear indication that, you know, this is a value. They hold really deeply and that should be, that should be respected. Okay, so that's so if somebody then engages in deception, which touches on that issue, that might be a plausible. Bowl candidate for criminalization. But then the second route, which wouldn't require that kind of upfront exchange of kind of conditions upon which sex will happen which to be quite honest. I don't think happens all that often. So the second root is more about saying, look, are there certain things that tend to matter to people when it comes to Identity construction? And can we through looking at existing research home in on those things? Such that we can kind of compiled a list of the sorts of deceptions? That would tend to matter to people because they tend to matter in the way we think about ourselves and our values. So in the paper, I do that through engaging, with existing research on what are effectively, the kind of building blocks of identity formation and when and how does sex, and its consequences, touch on those, it's an attempt to try and both preserve why we might think sexual autonomy matters, but also make the law, not to over expansive and not too nebulous in its parameters. Like, how do we, how do we do? Decide in advance what matters? There's a big question about what I mean by Intimacy in the project. And I've tried to explain in written drafts of work so far. Why I'm home at homing in on sex and so-called romantic relationships. When, of course, intimacy is something that cuts across so many other kinds of relationships and so many other kinds of relationships, really matter, in terms of self construction, and identity construction. But But, you know, certainly historically the two have gone together and today, I do think it's also the case that they have sexual and romantic relationships have a sort of different valence but what's increasingly clear? As you know, romantic relationships, don't always involve sex. Sex doesn't always involve romantic relationships, right? So what I'm trying to do is tease out the different ways, these are still can join, but the ways they can come apart. And the ways that it might sometimes be that what we're concerned with when we are discussing deception, and sex is actually deception and relationships. And so While we do have some kind of legal measures in place for dealing with marriage, there's a question as to whether those are always appropriate for contemporary kind of sensibilities or indeed whether they kind of go too far. But also then thinking about if there's ways of also responding when people don't get married because we also know that marriage is not the be-all and end-all for lots of people and people enter long-term relationships without getting married. So it's trying to think creatively about, you know, what is it? That's actually at stake here, what? Are the harms, what are the wrongs? Are there ways that the law can respond in ways that they currently doesn't? And, you know, Alternatives of the other ways that we need to rein in the laws attempts to try and, you know, intervene and secure a degree of respect or kind of security. I guess, within within these kinds of intimate Speaker 1 relationships, working on clarifying, the legal boundaries of consent means that Chloe has to Grapple with questions about why deception matters to us, why sex matters to us and how sir An intimacy interact. It also means she has to question the boundaries of legal Intervention, when it comes to our intimate relationships. Speaker 2 There's a trade-off really between recognizing the way that sex is very personal and a very individual practice in some ways. It's a very personal thing to engage in. And so, there is a concern to have each person be able to set their own boundaries and have those respected and can of upheld if you like by law. And in the other hand, predictability to the laws. Decision making and knowing in advance, whether somebody's going to be potentially punished or not. There is a genuine tension there. I think there's also a guess a question about what, criminal law as a form of public law. So it's state-sanctioned coercion requires by way of certainty and predictability but also kind of fairness and the appropriateness of the boundaries of legal intervention, there might be scope for having civil liability, which is effectively, non criminal, wrongdoing, that ability Bring a case of court but through a non-criminal Avenue. So there's ways of thinking about responding to this kind of practice in a different legal way. But then again there's also questions around. Look what is the right place for law? Here. You know, is there perhaps something about sex and intimate relationships, which means although we had this desire to have them protected and to be protected within them that actually law, law can only do so much. So I think with criminal law in particular, there are specific concerns because it's such a Extreme response. But beyond that, there's also questions about, you know, how much law can and should do for us. And whether there's other ways of kind of promoting good, sexual ethics Beyond laws, kind of Fairly blunt tools Speaker 1 here. Chloe, reminds us that ultimately the ideal behind consent in our current times. At least, is to enable people to have happier healthier, sex lives, and to limit the harm that they might encounter during sexual interactions. Consent isn't Intended to be a way to more ethical Speaker 2 sex. Speaker 1 We also spoke to Tanya cerisier. Tanya is a criminologist at Burbank University and author of the book speaking out, feminism, rape and narrative politics. Her research focuses on the cultural politics of consent, sexuality, and sexual violence. Tanya tells us why she thinks the concept of consent cannot do the work. We ask of it and why consent cannot guide us towards a world with less rape and more ethical sex. Part of the problem is we start from law and I think that's the reason that we start from consent and then try to build a sexual ethics out from that. And that's not really what the law is for. So, you know, the law is when it works which as we know it doesn't kind of captures a really low Baseline of sex and sexual behavior that underneath which we think is criminally culpable. And so there's a question, your is consent the best bass line for that and it's Definitely a better Baseline than force. And I think there aren't two my mind, kind of any real better Alternatives. You know, there are critiques of how it works in law as well. But if you say as a baseline, both parties need to consent for all parties involved, need to consent and that can be a legal standard then I think that's defensible in terms of thinking about it more generally, I don't think it's a useful concept for thinking about About sexual ethics sexual politics outside of law. And the reason for that is I don't think it can do the work that we want it to do. And that we try to make it. Do part of the reason that it works in law is because it's very limited. You know, it comes originally from contract law and the idea of consent is that it transforms, something that might be harmful or negative into something that's legal and acceptable through What's called the moral magic of consent, you know? So for something like that, To you consent to having your body disfigured, or you can send to potentially painful dental work. That's what it does in law. And so, in terms of thinking about sex, one of the first problems is it's really built on a very catchy nominative framework, where you have one party who kind of is out to get sex and you have another party who consents to sex, and this is always gender to know. It's imagined as the woman consenting to the man in a kind of heterosexual framework because Because the idea behind it is that women aren't active and Desiring participants in sex. You know, their consent to sex that they don't really want essentially and that's the legal kind of framework of consent. It also is a framework that is about contractual relations. So sets up to autonomous individuals who don't have any kind of power dynamics between them, and who know what they want and are happy to say it, you know, so it's also a fantasy of social relations where you know you asked me a question. I see. Say yes or no, and that's the way it works to illustrate. Why she qualifies this contractual view of consent as a fantasy tan. Yu uses a popular video called T and consent created for terms Valley police. The video uses a cup of tea as a metaphor for sex and shows a stick. Figure person offering a cup of tea to another person in different situations, it uses examples. Like, sometimes people say yes to a cup of tea one day but don't want one, the next or that sometimes people say yes to a cup of tea and by the time you've boiled the kettle and poured the milk, they may have changed their mind and ultimately, you need to respect that choice. If you think properly about the T example, I think it shows you some of the things that are wrong with consent which is that, you know, a cup of tea is usually a social ritual. So if someone says to you, do you want a cup of tea and you just say no, they're probably going to think you're rude and actually people who do conversational analysis to like this isn't how we engage in these, you might say, oh, you know, even if you don't really feel like a cup of tea, you might say yes. Because you want to have a chat or you might say yes because you want to be the person's friend. Or if you say no you might say oh well maybe I'll just have some water or you know something but you don't just say kind of yes and no. And if you think about different contacts also it's very different to say yes or no to a cup of tea that a friend, you've known for ages. I'll see you about any of your in a job interview. And someone says do you want a cup of tea? You're not going to say yes or no. So this is, you know, the first thing that we don't approach, social interactions solely through the lens. Firstly of, you know, do I just want this? We think about them within a Speaker 2 Add a Speaker 1 pattern of social relations that we attempt to negotiate and those are structured by all kinds of Realms of power. So we're not actually people who always just think about what we want and say yes or no in a really straightforward way and we especially don't do that around sex. And so one of the things that a lot of research in this area shown when they talk to young women, particularly is that a lot of women engage in sex that they think of as consensual But that they don't really want to have. And it's even not that straightforward that, they really didn't want to, but they felt pressured or coerced. But, you know, they might be in a relationship and they feel like they want to be the kind of person who's up for it. He's fun. He likes to have sex and likes to do things, and that's the way they see themselves. And so all they feel like it's unfair or they think, you know, well actually, you know, I'm not really feeling like it, but we haven't had sex in a while. I'll and so I might as well and those kinds of pressures operate differently on women than they do on men. But there's something that we need to think about. And that consent doesn't really capture. And it especially doesn't really capture how we actually deal with the fact that, as a society We don't enable people to communicate around sex. We tend to keep it as something, that's very outside, the realm of normal communication. You know most research that's done with young people show that they're very nonverbal around their sexual interactions. That communication tends to be very much about implicit things. You know, one article, I read talks about the semi magical appearance of the condom is how you know that you're on the road to having sex. And consent doesn't ask those kinds of questions, it does. Doesn't actually think about things like communication. It doesn't think about the fact that generally, we don't live in a society, where were given a lot of help in terms of building our capacity, even to think about and know about our sexual desires and to engage in sexual experimentation, even though it's such an important part of our society in our lives. And it doesn't grapple with the fact that all of our social interactions occur within dynamics of power. And when it comes to sex and heterosexuality particularly those kinds of gender, Dynamics of Paris. So important that the idea that like the teen consent video has you have these two stick figures kind of one person saying you want to have sex and the other person thinking do I want to have sex and saying yes or no is not the way it works and I don't think that framing things through concerned, really helps us to get there and when we try to change that through talking about enthusiastic or affirmative consent, it really just kind of sidesteps. The problem like it tries to make the concept do things. It can't do one of The problems is there's not one single kind of concept that is going to do the work that we want to do around Stacks because it's a complex social issue. The other problem is it comes from a very kind of basic legal standard that I don't think works but thinking about a better form of sexuality and, you know, it doesn't see sex in the proper kind of social context in which I think it needs to be thought Speaker 2 about. Speaker 1 One of the problems with consent is it starts with that inner two people, add having an interaction rather than thinking about what do you need as a society to equip, those people with that will enable them to come together in ways. You know, that ideally can enhance their pleasure and well-being rather than causing them harm. Unfortunately, I think it's not as simple as kind of saying, you know, we replace consent with something else, but rather think about what we need in order to have the preconditions where it might be meaningful to talk about consent and about, then whether it's the best thing. And I think that is about thinking about sexual interactions more broadly, as part of social interactions. So, moving away a bit, from what some people talk about, as a kind of sexual exceptionalism where we see sex of this sphere, Pletely separate from all our and other interactions, you know, because it's not. So that's one thing to think about sex more socially. And so to think about sex as involved in communication as involved in the way we treat people. The second thing is actually to enhance our capacities to communicate well with each other and you know to engage with each other more relationally and that that's a difficult thing. And finally, I think to actually really address The Wider. Dynamics and particularly, the gender power, dynamics of heterosexuality, and kind of how we do that is the million-dollar question. Because obviously that's something that, you know, feminists have been attempting to do for a long time and it's really at those kind of most basic intimate levels that things are hardest to shift. And it comes back to that question. I think of the personal being political and one of the things that I think about as well as over the last 50 years, you know, we haven't really managed to Form, people's Intimate Relationships, but also other kind of other equally personal things like one of the other things that really hasn't shifted. For instance, is in Petra sexual relationships, the amount of domestic labor and the gender division of that kind of sounds weird, but I think it's a compiled comfortable example because it's in the home, you know, it's about the kind of, you know, very everyday and intimate ways that we interact with each other. And the way that we talk about it has shifted, you know, we have a recognition that often working women do a double shift. We have this kind of valorisation of men doing things in the home, but it's still seen as helping out and so what's changed is actually the in heterosexual relations men. Now, tend to think they do more than they do. And women also, often think men do more than they do, but the amounts they do haven't actually shifted. And so, going back to some of those kinds of early principles of second-wave feminism, which was that we need to really kind of look at how our interpersonal relationships Are shaped by bigger, political structures is really important, and is going to be difficult and hard. I think the problem with had the legislation frames, the problem is that the criminal law, so your sexual violence as a problem of a small number of criminal men, you know who don't abide by the kind of normal standards of our society. Whereas I think a feminist framing of the problem for me is to say that the problem is that the normal standards of our Don't actually enhance the sexual autonomy of women, particularly so the criminal law frames, sexual violence is a problem of exceptionality and essentially kind of bad man who can be located identified and kind of cast out, whereas feminist framings have said we have set up a society which produces and encourages sexual violence, and they're very different framings that lead to very different solutions as Tonya focuses on public narratives about sexual consent. We are Asked her about the me too movement and whether it has helped shift our public perceptions around consent. You know, if you think about consent and what counts of sexual violence, I'm not sure that in many ways. It changed that that much. What I think it did do is actually make clear, the amount of behavior and situations that women experience through the lens of being sexualized and through sexual harassment and harm. So I think you know actually the focus in me to which often was implicit rather than explicit. But the focus in me to on the workplace and talking about The fact that for the first of all in Hollywood and acting that, you know, there's a sexualized economy that women don't have the option not to participate in sexual harassment is really normalized and it opened up discussions in other Industries. Like, you know, I work in universities and since then there's been really kind of ongoing conversations about the fact that sexual harassment is really a normal part particularly of women's early careers, you know, being Postgraduate students being early career academics and I think really exposing that kind of everyday level of sexual ization. You know, and bringing back attention to what we often talked about as a kind of, Continuum of violence and harm is really important. And I think that it's actually opened up the level to which that affects people's lives on a day-to-day basis, in terms of thinking, again, about concerned in the question about Aziz Ansari. I think, As we're talking more about those things inevitably opens up conversations. But I feel like we've me too, as with many kind of feminist movements that move into I suppose popular culture a broader discussions. There's an oscillation that you see a back and forth between actually kind of saying, okay, this is an endemic and everyday problem, to then wanting to go back to, you know, if we can just find all the Harvey, Weinstein and lock them up. Everything will be okay, and I think that it's very difficult. For us in our society and culture to stay with the former to actually kind of stay with this idea that the problem of sexual violence its normality. Its lack of exceptionality because we always want to find, you know, the kind of monster bad man and never find a way to kind of, lock them up, basically, and that means that I think we often miss opportunities. So, no, talking about the Aziz Ansari case. I mean, I thought that that story was very interesting. And there's a lot of questions about journalistic ethics and things there. But You know, for me, the question about, you know, whether Aziz Ansari should be or was cancelled and it wasn't actually the question, you know, the question was about the fact that someone clearly saw themselves and thought of themselves, almost thought I was kind of like a nice guy. A pro-feminist. Man was engaging in these kinds of sexual behaviors, and clearly not really getting what was wrong. And I think that points to a wider social problem, that we need to be thinking about the fact that when it comes, To a lot of heterosexual experiences. There's a real mismatch between what the two people involved. Usually two people think has happened or think is going on or how they feel about it. And that's a real problem. Consent is the Cornerstone of our laws on sexual violence and it serves to inform how we determine what is acceptable and what is unacceptable, sexual behavior. Legally, the current version of consent seems to be a better framework than anything. We've previously had, but it also doesn't seem to be doing what we hoped it would, as Tonya puts it, going back to your clinic early feminist ideas. You know, that idea was to imagine a world without rape, not a world in which every rapist is punished, you know? Because the first one is a much more exciting vision. So what did happen to Eliza Armstrong? Well we don't know very much the following is recounted and blogs by historians Margaret, make peace and Helena Goodwin who have tried to piece together. Some of Eliza's story. Following the trials. Eliza was placed in The Princess Louise home for the protection of young girls in Essex. It was reported in the press that she did well at the home. And in June 1886, one year after the maidan tribute, she was awarded a prize for General. Good Conduct by June 1889. She had been taken by the matron to a situation with a good family in the country. The rest of his story has been pieced, together from census birth and death records in 1891. And Eliza Armstrong, aged 19 was a nursemaid in the household of an architect, in Northumberland. In 1893 allows the married a Henry, George West. And the 1901 census shows, they had three children Eliza was widowed in 1906 and remarried and 1911 to Samuel O'Donnell, and they had more children. We're not sure how many because records are somewhat confusing around. This Eliza was widowed for a second time in 1917, the death of Eliza. Now we're done all at the age of 66 is recorded and County Durham in 1938. It also seems that Eliza kept in touch with Williams dead. She wrote a letter, dated 6th March 1906. After the death of her first husband, his death had left, Eliza struggling to support her family in this letter to stead. She thanks him for his kind and welcome letter and apologizes for not replying. Sooner she signs off thanking you so much for all your kindness. I never will forget nor cease to remember all your kindness to us. Us. It's poignant how little we know about Eliza and that some of the only words we have from her, are these that she's written to Stead. In many ways, it's tempting to dismiss the maiden tribute as a tale about eccentric. Victorians, whose warped and moralistic views on sex creep, into their laws and social norms around rape and sexual violence. But it provides us with an opportunity to reflect on how our views. Now, continue to shape our laws and how we apply them in practice and what aspects of this, we might want to change. This has been the fifth and final episode of the age of consent, a podcast by narrative matters written. And produced by me and Rita, Allah Arabic metis, and Gabrielle Blackburn. We would like to thank Chloe Kennedy and Tanya cerisier for Speaker 2 taking part in these interviews. Speaker 1 The series was commissioned by dr. Laura llamas. Yummy is part of a project funded by the leverhulme trust. The music in this episode is the Victorian. Music box lullaby song by Iron L PL. To access support. You can call the national Rape Crisis, helpline. At 08088 0 to 9999.