Distinguishing sex from sexual violation: consent, negotiation and freedom to negotiate

This chapter argues that consent is not an appropriate or effective way to distinguish legitimate sexual activity from sexual violation. Consent is enmeshed with a particular notion of the Kantian liberal subject and as such is inapt to respond to the bodily, affective and relational aspects of subjectivity in general and sexual subjectivity specifically. To champion consent as the standard for legitimate sexual activity implies that sexual relations are inherently asymmetric, obscures the context within which agreements to engage in sexual activity are made, and overlooks the fluid and variable nature of sexual activity itself that renders it ill-suited to a consent framework. The Chapter considers alternative models of sex and sexual violation based on notions of communication and negotiation. Drawing on these models alongside theoretical argument and original empirical data, a new framework of ‘freedom to negotiate’ is proposed. The standard of ‘freedom to negotiate’ does not prescribe the form or content that any negotiation must take. It emphasizes instead the context in which sexual activity takes place, requiring that, at a minimum, all parties to sexual activity should have the space to negotiate both the fact and nature of their participation throughout the duration of that activity.