The concept of consent has long been an important justification for western democracy (i.e., governments derive their just powers “from the consent of the governed”), and most people in the west accept this justification when evaluating the authority of their own governments. They believe they must obey the government because society has somehow consented to its authority.
In order to consent to authority, though, we must first figure out what consent is. Many people gloss over this task, but one social movement that works diligently to define and promote consent is feminism. Feminists, through their advocacy of a sex-positive culture (removing unhealthy stigmas on sex), have thoroughly developed a standard of affirmative consent.
Affirmative consent policies (also known as “yes-means-yes” policies) generally redefine consent for sexual intercourse to include only enthusiastic verbal consent. Some policies even require that consent must be reaffirmed periodically throughout any sexual encounter—anything less could constitute rape. Colleges and universities are the most common adopters of such policies, but state and local governments have also passed yes-means-yes laws.
Although yes-means-yes policies sometimes use overly narrow or impractical definitions of consent, the policies have a noble purpose of preventing violence. Violence is bad not only in sexual relationships, though. If affirmative consent is an appropriate standard for sexual relationships, why not apply it to all relationships? What happens when we apply affirmative consent to the relationship between the individual and the state?
It soon becomes obvious that the relationship between the individual and the state is not consensual. Not one citizen ever explicitly and deliberately signed a “social contract.” And even if one did, no one explicitly reaffirms this contract on a periodic basis. In fact, such an action would be impossible, since most western governments were created before the citizens they govern were born.
Many people acknowledge those facts, but respond that social contracts instead rely on tacit consent. By performing (or not performing) certain actions, citizens demonstrate what can effectively be considered consent to the current governmental system. Examples of such behavior include receiving government benefits, or remaining within the country.
Libertarians have long argued against tacit consent, but how would feminism approach the issue? Let’s consider a hypothetical: A man asks a woman out on a date, and she agrees to go. He then picks her up in a flashy car, brings her flowers, buys her dinner at a fancy restaurant, and takes her to a movie. Dropping her off at home, however, he becomes irate when she does not invite him up to her apartment.
“Didn’t you enjoy the evening?” he asks. “I bought you flowers and dinner, and took you to a movie! Surely that has to count for something!”
It is true that the woman voluntarily went on a date with the man, and though she had the ability to refuse any and all gifts, still accepted the bouquet of flowers, the decadent meal, and all his witty compliments. But would you tell her that, given these circumstances, she now “owed him” for the nice evening?
Feminism teaches us that the man’s anger is unjustified, and most people would accept that she does not owe him any sort of sexual favors, despite accepting all his romantic gestures. Yet somehow the story changes when we replace the man with the state, and replace the woman with any individual citizen. Substituting schools, roads, and national defense for flowers, dinner, and movie tickets somehow renders affirmative consent an invalid principle. We “owe” the state because we received these benefits. Why?
The analogy is actually too charitable to the state. In some cases, you are forced to receive government benefits, such as retirement savings and health insurance. Would we say the man on the date is more deserving of sexual favors if his female companion couldn’t refuse to be with him? Quite the opposite—here any kind of consent would be questionable at best.
Even if we acknowledge that receiving government services does not indicate consent, one fallback position remains for social contract advocates: “You have every opportunity to leave the country,” they sneer. “Therefore, choosing to remain must be interpreted as your consent.”
Let us once again view this argument through the feminist lens: At the end of the evening, with the man and the woman still sitting in the car in front of her apartment, the woman refuses the man’s sexual advances. The man then locks the doors and responds, “OK, you can go. But first you have to pay me $2,350. Also, I’m friends with the owners of the restaurant, the flower shop, and the movie theater. If you refuse me, you will never be able to visit those places again. I’ll also spread nasty rumors about you! And finally, you have to have sex with me as if you had chosen to invite me up!” These are not random demands—they draw direct inspiration from the government’s conditions for renouncing U.S. citizenship.
The woman has two options: 1) She can have sex with the man, keep her $2,350 and her reputation, and visit those establishments in the future; or 2) she can have sex with the man, never visit those places again, become a social pariah, and her wallet will be over $2k lighter.
In which option does she truly, affirmatively consent to have sex with the man?
But let’s give the government the benefit of the doubt, and stipulate that they don’t charge you a fee, tax you, publicly shame you, and deny you certain benefits in order to leave. Let’s say it was free.
Where will you go?
Let’s say the man let the woman out of his car unconditionally, but not in front of her house—rather, in a dangerous neighborhood after dark. Dropping her off far from home is not necessarily a coercive act, but it does pose a risk to her. If she begged him to take her home, but he would not unless she agreed to have sex, would we consider her consent valid?
“But the world outside the United States is not a dangerous neighborhood,” social contract advocates might respond. In one sense they are right. Some countries (neighborhoods) are better than others. Likewise, the man could drop the woman off in a dangerous neighborhood during the day instead of at night. But would we now say she is able to give robust consent to having sex with him?
I believe honestly answering these questions shows just how silly and twisted the idea of tacit consent really is, especially in the context of government. Those who believe in affirmative consent should reconsider the institutions (such as the state) they often take for granted, and not just celebrate sex-positivity, but also politics-positivity. If we wish to be consistent, it is clear we need a yes-means-yes policy for government.