by Harriet Gray
Debates around sexual violence often place consent – and, in particular, the lack of it – at the heart of their definitions. In popular discourse as well as in legal judgements, consent is the hinge around which a particular act is understood as ‘sex’ or, alternatively, as ‘violence.’ However, despite the simplicity and rigidity often attributed to consent as a dividing line, feminist activism and scholarship across multiple disciplines has revealed the murkiness, the slippages, and the politics involved in invoking a liberal notion of ‘consent’ in defining sex and violence – and, indeed, in distinguishing violence and non-violence more broadly. Some have argued, for example, that the coercive nature of particular contexts – such as war, or varying scales of poverty – negate the possibility that ‘true’ consent can exist, such that all sex under these conditions should be considered violence. Others have pointed to the paternalistic erasure of agency and the undertones of moral judgement entailed in denying the ability of particular subjects to consent to doing particular things with their bodies. Moreover, given that the lines between contexts of ‘coercion’ and contexts of ‘freedom’ and the positioning of different subjects within them are never fixed but always blurred and shifting, the process of drawing firm lines between the spaces of consent and of coercion will always be fraught and contested. And yet, we find ourselves compelled to draw such lines, and to draw them with force and with urgency, because their drawing is inescapable in relation to important questions of protection from bodily harm, of promotion of bodily autonomy, and of criminal liability.
Seeking a space in which to think through what is at stake in the politics of naming consent, violence, and sex, we – Harriet Gray and Maria Stern – held an interdisciplinary workshop at the University of Gothenburg, Sweden, on the 8th and 9th of June 2017.[i] The theme of the workshop was ‘Unpacking Consent: Making sense of sex, violence, and subjectivity.’ We invited scholars from around the world and across disparate disciplines to share their work and engage in debate. Our discussions at the workshop were challenging and enlightening, and opened many doors for future debate as well as identifying sticking points and difficulties. Many of the participants expressed deep reservations about the concept of consent, for a range of reasons. It relies upon a limited and limiting idea of liberal subjecthood which, in assuming an autonomous and rational decision-making subject, obscures the multiple ways in which subjects are interdependent, socially constituted, and embedded in a complex and fluid social context. It falls far short as a standard for identifying ethical sexual practice. Dominant ideas about consent claim to provide a universal framework, but in practice are insufficient for making sense of the complex intermeshed relationships between power, desire, and subjectivity in many social contexts. At the same time, however, participants found themselves time and time again drawn back to consent as a flawed yet inescapable necessity – for all its faults, it seems, we do not (yet?) have an alternative which enables us to move away from centring consent in dealing with questions of sex and violence.
One of the limitations in the debate which our discussions revealed was the tendency of scholars interested in questions of sexual violence and consent to engage mainly with other work from within their own disciplinary boundaries. Those of us working within legal studies, for example, might not engage fully with the rich body of critical work around consent and subjectivity. Equally, those of us working in sociology might have a limited understanding of legal principles and frameworks. Similarly, scholars of international relations often have only a limited grasp on the dynamic debates taking place in philosophy and in gender studies more broadly. In an effort to begin to overcome these limitations, several of the workshop’s attendees have come together to collate a collective bibliography which we hope will encourage greater interdisciplinary thinking and engagement and will provide a useful resource for researchers interested in this important topic. To ease readers in finding their way through the post, we have grouped texts together under section headings. These headings are a limited tool – in many cases, for example, particular texts could no doubt fit under two or more of the categories – for our purposes here, they should be read as nothing more than a crude navigational aid. In addition, this bibliography is of course far from exhaustive – and indeed, it is not intended to be seen as ‘finished.’ We welcome readers to add further references in the comments on this post.
Akron Law Review Volume 41, Issue 4: special issue on ‘Rape, Affirmative Consent to Sex, and Sexual Autonomy.’
Anderson, Michelle. 2004-2005. ‘Negotiating Sex.’ Southern California Law Review 78(6): 1401.
Baker, Denis J. 2009. ‘The Moral Limits of Consent as a Defense in the Criminal Law’ New Criminal Law Review: An International and Interdisciplinary Journal 12(1): 93-121.
Baxi, Pratiksha. 2014. Public Secrets of Law: Rape trials in India. New Delhi: Oxford University Press.
Bibbings, Lois and Peter Alldridge. 1993. ‘Sexual Expression, Body Alteration and the Defence of Consent’ Journal of Law and Society 20(3); 356-370.
Brodsky, Alexandra. 2017. “‘Rape-Adjacent’: Imaging Legal Responses to Nonconsensual Condom Removal,” Columbia Journal of Gender & Law: 32(2): 183-210.
Buchanan, Kim Shayo. 2015. “When is HIV a Crime? Sexuality, Gender and Consent,” Minnesota Law Review 99, 4: 1231-1342.
Bumiller, Kristin. 2008. In an Abusive State: How neoliberalism appropriated the feminist movement against sexual violence. London, Durham: Duke University Press.
Case M. A. 2005. “Pets or Meat,” Chicago-Kent Law Review 80: 1129-50.
Cowan, Sharon. 2008. ‘The Trouble with Drink: Intoxication, incapacity and the evaporation of consent to sex’ Akron Law Review 41: 899.
Dempsey, Michelle. 2013. ‘Victimless Conduct and the Volenti Maxim: How Consent Works.’ Criminal Law and Philosophy 7(1): 11-27.
Egan, Kelly. 2007. “Morality-Based Legislation is Alive and Well: Why the Law Permits Consent to Body Modification But Not Sadomasochistic Sex,” Albany Law Review 70: 1615-42.
Estrich, Susan. 1988. Real Rape. Cambridge, MA: Harvard University Press.
Finch, Emily, and Vanessa E Munro. 2006. “Breaking Boundaries? Sexual consent in the jury room.” Legal Studies: The Journal of the Society of Legal Scholars 26(3):303-320.
Gardner, John, and Stephen Shute. 2000. ‘The Wrongness of Rape.’ In Jeremy Horder (ed.), Oxford Essays in Jurisprudence. Oxford: Oxford University Press.
Halley, Janet. 2016. “The Move to Affirmative Consent.” Signs: Journal of Women in Culture and Society 42(1): 257-279.
Hasday, Jill Elaine. 2000. “Contest and Consent: A Legal History of Marital Rape.” California Law Review 88(5): 1373-150
Herring, Jonathan. 2005. “Mistaken Sex,” Criminal Law Review: 511-24.
Hunter, Rosemary, and Sharon Cowan (eds.) 2007. Choice And Consent: Feminist Engagements With Law And Subjectivity London: GlassHouse Press.
Hurd, Heidi M. 1996. “The Moral Magic of Consent.” Legal Theory 2(2) 121-146.
Jones, Helen. 2002. “Rape, Consent and Communication: Re-setting the Boundaries?” Contemporary Issues in Law 6: 23–36.
Kaplan, Margo. 2014. “Sex-Positive Law.” New York University Law Review 87: 89-165.
MacKinnon, Catharine. 1983. “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence.” Signs: Journal of Women in Culture and Society 8(4): 635-58.
MacKinnon, Catharine. 1989. Toward a Feminist Theory of State. Cambridge, MA: Harvard University Press. (In particular, the chapter “Rape: On Coercion and Consent.”)
MacKinnon, Catharine. 2016. “Rape Redefined.” Harvard Law & Policy Review 10(2): 431-477.
Mody, Perveez. 2002 “Love and the Law: Love-marriage in Delhi.” Modern Asian Studies 36(1): 223-256.
Munro, Vanessa. 2017. ‘Shifting Sands? Consent, context and vulnerability in contemporary sexual offences policy in England and Wales.’ Social and Legal Studies.
Pineau, Lois. 1989. “Date rape: A feminist analysis.” Law and Philosophy 8(2): 217-243.
Palmer, Tanya. 2016, “State Control of Consensual Sexual Behaviour through the Sexual Offences Act 2003,” in Chris Ashford, Alan Reed, and Nicola Wake (eds.). Legal Perspectives on State Power: Consent and Control. Newcastle: Cambridge Scholars Publishing.
Palmer, Tanya. 2017. Distinguishing Sex from Sexual Violation: Consent, negotiation and freedom to negotiate. In Alan Reed, Michael Bohlander, Nicola Wake, and Emma Smith (eds.) Consent: domestic and comparative perspectives. Oxon: Routledge, Oxon.
Rubenfeld, Jed. 2013. “Rape-by-Deception and the Myth of Sexual Autonomy,” Yale Law Journal: 1372-1443.
Schulhofer, Stephen J. 1998. Unwanted Sex: The Culture of Intimidation and the Failure of Law. Cambridge: Harvard University Press.
Sharpe, Alex. 2016. “Sexual Intimacy, Gender Variance, and Criminal Law,” Nordic Journal of Human Rights 33, 4: 380-91.
Waites, Matthew. 2004. ‘The Age of Consent and Sexual Consent’ in Mark Cowling and Paul Reynolds (eds.). Making Sense of Sexual Consent. London, New York: Palgrave Macmillan.
Wallerstein, Shlomit. 2009 ‘A Drunken Consent is Still Consent’—Or is it? A Critical Analysis of the Law on a Drunken Consent to Sex following Bree.’ The Journal of Criminal Law 73(4): 318-344.
Witmer-Rich, Jonathan. 2010. “Autonomy is Good for You: Prospective Consent, Retrospective Consent, and the Foundations of Consent in the Criminal Law.” Cleveland-Marshall Legal Studies Paper. 10-186
Yung, Corey Rayburn. 2016. “Rape Law Fundamentals,” Yale Journal of Law & Feminism 27, 1: 1-46.
Politics, sociology, and philosophy
Alcoff, Linda Martín. 2009. “Discourses of Sexual Violence in a Global Framework.” Philosophical Topics 37(2): 123-139.
Archard, David. 1998. Sexual Consent. Westview Press.
Baxi, Pratiksha. 2014. “Sexual Violence and Its Discontents.” Annual Review of Anthropology 43:139–54
Beres, Melanie. 2007. ‘”Spontaneous” Sexual Consent: An Analysis of Sexual Consent Literature. Feminism & Psychology 17(1): 93-108.
Beres, Melanie. 2014. ‘Rethinking the Concept of Consent for Anti-Sexual Violence Activism and Education.’(Feminism & Psychology 24(3): 373-389.
Benedet, Janine and Isobel Grant. 2011-2012, ‘A Situational Approach to Incapacity and Mental Disability in Sexual Assault Law’. Ottawa Law Review 43: 1-28.
Cahill, Ann J. 2001. Rethinking Rape. Ithaca, NY: Cornell University Press.
Cahill, Ann J. 2016. “Unjust Sex Vs. Rape.” Hypatia 31(4): 746-761.
Coy, Maddie, Liz Kelly, Fiona Elvines, Maria Garner, and Ava Kanyeredz. 2013. Sex Without Consent, I Suppose that is Rape: How young people in England understand sexual consent. London: Office of the Children’s Commissioner
Doezema, Jo. 2002. ‘Who gets to choose? Coercion, consent, and the UN Trafficking Protocol.’ Gender & Development, 10:1, 20-27.
Doyle, Suzanna. 2013. ‘The Notion of Consent to Sexual Activity for Persons with Mental Disabilities.‘ Liverpool Law Review 31:111.
Dougherty, Tom. 2013. “Sex, Lies and Consent,” Ethics 123, 4: 717-44.
Echols, Alice. 2016. “Retrospective: Tangled Up in Pleasure and Danger.” Signs: Journal of Women in Culture and Society 42(1): 11-22.
Ellison, Louise, Vanessa Munro, Katrin Hoh, and Paul Wallang. 2015. ‘Challenging Criminal Justice? Psychosocial Disability and Rape Victimization’ Criminology and Criminal Justice 15(2): 225-244.
Ermarth, Elizabeth Deeds. 2000. “Beyond “the subject”: individuality in the discursive condition.” New Literary History 31:405-419.
Finkelhor, David. 1979. “What’s Wrong With Sex Between Adults and Children?” American Journal of Orthopsychiatry 49:4 692-697.
Fischel, Joseph J. 2017. “Horse F#$@ing and the Limits of Consent: What Broad City Teaches Us About Sexual Violence,” Studies in Gender and Sexuality 18, 1: 31-34.
Fischel, Joseph J. 2016. Sex and Harm in the Age of Consent. Minneapolis: University of Minnesota Press.
Fischel, Joseph J. 2013. “Against Nature, against Consent: A Sexual Politics of Debility,” Differences: A Journal of Feminist Cultural Studies 24, 1: 55-103.
Fischel, Joseph J., and Hilary R. O’Connell. 2016. “Disabling Consent, or Reconstructing Sexual Autonomy,” Columbia Journal of Gender & Law 30, 2: 428-528.
Freedman, Estelle B. 2013. Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation. Cambridge, MA: Harvard University Press.
Gavey, Nicola. 2005. Just Sex? The Cultural Scaffolding of Rape. New York, NY: Routledge.
Haag, Pamela. 1999. “Victim or Victimizer: The Dilemma of Seduction in Classical Liberal Culture.” In Consent: Sexual Rights and the Transformation of American Liberalism, 25-60. Ithaca, NY: Cornell University Press.
Heath, Melanie, Julie Gouweloos, and Jessica Braimoh. 2016. “Judging Women’s Sexual Agency: Contemporary Sex Wars in the Legal Terrain of Prostitution and Polygamy.” Signs: Journal of Women in Culture and Society 42(1): 199-225.
Heberle, Renée J., and Victoria Grace (eds). 2009. Theorizing Sexual Violence. New York, NY: Routledge.
Herring, Jonathan. 2010. ‘Case Comment: R v C: Sex and Mental Disorder’ Law quarterly Review 126: 36.
Herring, Jonathan. 2012. ‘Mental Disability and Capacity to Consent to Sex. Journal of Social Welfare and Family Law 34(4): 471-478.
Herring, Jonathan and Jesse Wall. ‘Autonomy, Capacity and Vulnerable Adults: Filling the Gaps in the Mental Capacity Act.’ Legal Studies 35(4): 698-719.
Honan, Eileen, Michele Knobel, Carolyn Baker, and Bronwyn Davies. 2000. “Producing possible Hannahs: theory and the subject of research.” Qualitative Inquiry 6(1):9-32.
Kaeser, Fred. 1992. “Can People with Severe Mental Retardation Consent to Mutual Sex?” Sexuality and Disability 10(1): 33-42.
McAvoy, Paula. 2013. ‘The Aims of Sex Education: Demoting Autonomy and Promoting Mutuality’ Educational Theory 63(5): 483-496.
Murphy, Glynis H . 2003. “Capacity to Consent to Sexual Relationships in Adults with Learning Disabilities.” Journal of Family Planning and Reproductive Health Care 29(3): 148–149.
Mills, Charles W. 2007. “Intersecting Contracts.” In Contract and Domination, edited by Carole Pateman and Charles Mills, 165-199. Malden, MA: Polity Press.
Charlene L. Muehlenhard, Terry P. Humphreys, Kristen N. Jozkowski & Zoë D. Peterson (2016) “The Complexities of Sexual Consent Among College Students: A Conceptual and Empirical Review.” The Journal of Sex Research. 53(4-5): 457-487
McCarthy, Michelle and David Thompson. 2004. ‘People with Learning Disabilities: Sex, The Law and Consent.’ In Mark Cowling and Paul Reynolds (eds.) Making Sense of Sexual Consent. London and New York: Routledge.
Nussbaum, Martha C. 2006. Frontiers of Justice: Disability, Nationality, Species Membership. Cambridge: Harvard University Press
O’Byrne, Rachael, Mark Rapley, and Susan Hansen. 2006. “You Couldn’t Say “No”, Could You?’ Young Men’s Understandings of Sexual Refusal” Feminism and Psychology
Pateman, Carole. 1980. “Women and Consent.” Political Theory 8(2): 149-168.
Pateman, Carole. 1988. The Sexual Contract. Stanford: Stanford University Press.
Powers-Albanesi, Heather. 2009. Gender and Sexual Agency: How young people make choices about sex. Lanham MD: Lexington Books.
Rickert, Thomas Joseph. 2007. Acts of Enjoyment: Rhetoric, Žižek, and the return of the subject. University of Pittsburgh Press.
Rudy, Kathy. 2012. “LGBTQ … Z?”, Hypatia 27:3 601-15.
Rudy, Kathy. 2011. Loving Animals: Toward a New Animal Advocacy. Minneapolis: University of Minnesota Press.
du Toit, Louise. 2009. A Philosophical Investigation of Rape: The Meaning and Unmaking of the Feminine Self. New York, NY: Routledge.
Ward, Jane. 2015. Not Gay: Sex between Straight White Men. New York: NYU Press.
Wertheimer, Alan. 2003. Consent to Sexual Relations. Cambridge: Cambridge University Press.
Yllö, Kersti, and M. Gabriela Torres (eds.) 2016. Marital Rape: Consent, marriage, and social change in a global context. New York: Oxford University Press.
Žižek, Slavoj. 1999. The Ticklish Subject: The absent centre of political ontology. London; New York: Verso.
Bourke, Joanna. 2007. Rape: A History from 1960 to the Present. London: Virago Press.
D’Cruze, Shani. “Sexual Violence in History: A contemporary heritage?” in Jennifer Brown and Sandra Walklate (eds) Handbook on Sexual Violence. London and New York: Routledge.
Herzog, Dagmar. 2011. Sexuality in Europe: A twentieth-century history. Cambridge, UK: Cambridge University Press.
Smith, Merril D., ed. 2001. Sex without Consent: Rape and sexual coercion in America. New York: NYU Press.
Sex and consent in the context of war and militarism
Bumet, Jennie E. 2013. “Situating Sexual Violence in Rwanda (1990–2001): Sexual Agency, Sexual Consent, and the Political Economy of War.” African Studies Review 55(2): 97-118.
Crane-Seeber, Jesse. 2016. ‘Sexy Warriors: The politics and pleasures of submission to the state.’ Critical Military Studies 2(1-2): 41-55.
Halley, Janet. 2008. “Rape in Berlin: Reconsidering the criminalisation of rape in the international law of armed conflict.” Melbourne Journal of International Law 78.
Hayes, Niamh. 2010. “Creating a Definition of Rape in International Law.” In Shane Darcy and Joseph Powderly (eds.) Judicial Creativity at the International Criminal Tribunals. Oxford: Oxford University Press.
Mulumeoderhwa, Maroyi and Geoff Harris. 2013/2014. “Relationships, sex and conflict among young people in South Kivu, Democratic Republic of Congo.” Peace and Conflict Review 8:1.
Schomburg, Wolfgang, and Ines Peterson. 2007. “Genuine Consent to Sexual Violence under International Criminal Law.” The American Journal of International Law 101:121.
Space for a radical rethink? Consenting to domination and pain in kink, BDSM, and sport
Almond, Steve. 2014. Against Football: One Man’s Reluctant Manifesto. Brooklyn: Melville House.
Baker, Dennis J. 2009. “The Moral Limits of Consent as a Defense in the Criminal Law,” New Criminal Law Review 12:1 93-121.
Barker, Meg. 2013. “Consent is a Grey Area? A Comparison of Understandings of Consent in Fifty Shades of Grey and on the BDSM Blogosphere.” Sexualities 16 (8):896-914.
Bauer, Robin. 2014. Queer BDSM Intimacies: Critical Consent and Pushing Boundaries. Basingstoke: Palgrave MacMillan.
Bergelson, Vera. 2007. “The Right to Be Hurt: Testing the Boundaries of Consent,” George Washington Law Review 75: 165.
Bussel, Rachel Kramer. 2008. “Beyond Yes or No: Consent as Sexual Process.” In Jaclyn Friedman and Jessica Valenti (eds.) Yes means yes: Visions of female sexual power and a world without rape. Berkeley, CA: Seal Press.
Call, Lewis. 2011. “Structures of Desire: Postanarchist Kink in the Speculative Fiction of Octavia Butler and Samuel Delany. In Anarchism & Sexuality: Ethics, Relationships and Power, edited by J. Heckert and R. Cleminson: Routledge.
Cruz, Ariane. 2016. The Color of Kink: Black Women, BDSM, and Pornography. New York: NYU Press
Downing, Lisa. 2012. Safewording! Kinkphobia and gender normativity in Fifty Shades of Grey. Psychology & Sexuality 4 (1):92-102.
Easton, Dossie, and Janet W Hardy. 2001. The new bottoming book: Greenery Press Gardena, CA.
Easton, Dossie, and Janet W Hardy. 2004. Radical ecstasy: SM journeys to transcendence: Greenery Press San Francisco, CA.
Easton, Dossie, Janet W Hardy, and Fish. 2003. The new topping book: Greenery Press Gardena, CA.
Easton, Dossie, and Janet W. Hardy. 2009. The ethical slut: A practical guide to polyamory, open relationships & other adventures. 2nd ed. Berkeley, Calif.: Celestial Arts.
Easton, Dossie, and Catherine A. Liszt. 2000. When someone you love is kinky. S.l. London: Greenery ; Turnaround.
Fowles, Stacey May. 2008. The Fantasy of Acceptable “Non-Consent”: Why the Female Sexual Submissive Scares Us (and Why She Shouldn’t). In Jaclyn Friedman and Jessica Valenti (eds.) Yes means yes: Visions of female sexual power and a world without rape. Berkeley, CA: Seal Press.
Fulkerson, Anita. 2010. Bound by consent: concepts of consent within the leather and bondage, domination, sadomasochism (BDSM) communities. Doctoral dissertation, Wichita State University.
Haley, Daniel. 2015. “Bound by Law: A Roadmap for the Practical Legalization of BDSM,” Cardozo Journal of Law & Gender 21:631.
Hanna, Cheryl. 2001. “Sex is Not a Sport: Consent and Violence in Criminal Law,” Boston College Law Review 42: 239-90.
Matik, Wendy-O. 2002. Redefining our relationships: Guidelines for responsible open relationships. Oakland, CA: Defiant Times Press.
Newmahr, Staci. 2011. Playing on the Edge: Sadomasochism, Risk, and Intimacy. Bloomington: Indiana University Press.
Pa, Monica. 2001. “Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex.” Texas Journal of Women and the Law 11:51-92
Rehor, Jennifer Eve. 2015. Sensual, Erotic, and Sexual Behaviors of Women from the “Kink” Community. Archives of Sexual Behavior 44 (4):825-836.
Rubin, Gayle. 2003. Thinking Sex: Notes for a Radical theory of the Politics of Sexuality. In Parker, Richard G., and Peter Aggleton (eds.) Culture, Society and Sexuality: A Reader. New York: Routledge
Queen, Carol. 1996. “Women, S/M, and Therapy.” Women & Therapy 19 (4):65-73.
Queen, Carol. 2009. Exhibitionism for the Shy. Gardena, CA: Down There Press.
Scott, Catherine. 2012. Thinking Kink: Secretary and the Female Submissive. Bitchmedia, July 13. http://bitchmagazine.org/post/thinking-kink-secretary-feminist-magazine-film-sex-bdsm-kink-movies.
Stein, David. n.d. “‘Safe Sane Consensual: The Making of a Shibboleth.” http://www.boybear.us/ssc.pdf.
Taormino, Tristan. 2012. The ultimate guide to kink: BDSM, role play and the erotic edge: Cleis Press.
Weiss, Margot. 2011. Techniques of Pleasure: BDSM and the Circuits of Sexuality. Durham: Duke University Press.
Wosick-Correa, Kassia. 2010. “Agreements, rules and agentic fidelity in polyamorous relationships.” Psychology & Sexuality 1 (1):44-61.
[i] The workshop was funded by the the Swedish Research Council (grant number 2014-3519) and the Gothenburg Centre of Globalisation and Development. We would like to thank these funders for their generous support.
Harriet Gray is a Postdoctoral Research Fellow at the University of Gothenburg, Sweden, working on a study of sexual violence in conflict. This post draws on a workshop entitled ‘Unpacking Consent: Making Sense of Sex, Violence, and Subjectivity’ which Harriet organised together with Maria Stern at the University of Gothenburg in June 2017. The workshop participants, all of whom were involved in the discussions summarised in this post and many of whom also contributed directly to the bibliography, were: Aaron Belkin (San Francisco State University), Alexandra Bousiou (University of Gothenburg), Ann Cahill (Elon University), Jesse Crane-Seeber (North Carolina State University), Joseph Fischel (Yale University), Johan Karlsson Schaffer (University of Gothenburg), Katharina Kehl (University of Gothenburg), Maroyi Mulumeoderhwa (University of the Free State), Tanya Palmer (University of Sussex), Swati Parashar (University of Gothenburg), Nora Stappert (University of Gothenburg), Maria Stern (University of Gothenburg), Anisha Thomas (SOAS), Louise du Toit (Stellenbosch University), and Marysia Zalewski (Cardiff University).