Posts Tagged ‘ consent ’

BDSM, Gender, Entitlement, and Jian Ghomeshi

Whether anybody wanted the conversation right now or not, it’s become time to have a conversation about BDSM, gender and entitlement.

Over a week ago, Jian Ghomeshi, the then-popular then- CBC commentator, appeared to be coming out of the closet about engaging in what he referred to as “rough sex (forms of BDSM),” and claiming to be fired because of workplace discrimination.  The post read as sincere and from the heart (and badly timed because of his father’s passing), so we wanted to believe him.  For anyone who cares about sex and gender minorities, there was a temptation to circle the wagons and voice support.  There was a lot of discussion about the human right to one’s own sexuality, but then…

“Wait, what was that about allegations…?”

It took a moment before people realized the problem with not first hearing out and supporting the women who had spoken out about him.  Canadians had been taken in by a public relations act that was either advised or coordinated by a top-rated PR firm.  Nevertheless, the realization slowly filtered out that there was more to the story that deserved to be listened to and respected (and which, we learned, had already been voiced in the past, but no one had heeded).

Since then, more women have come forward about violence, sexual harassment or abuse, and more may be forthcoming:

“He did not ask if I was into it. It was never a question. It was shocking to me. The men I have spent time with are loving people,” said [actress Lucy] DeCoutere, who, when she is not acting on the television show, is a captain in the Royal Canadian Air Force in New Brunswick…

“… One of the new women to come forward is a woman in her mid-20s who was a CBC producer in Montreal who dreamed of being on Q. He met her at one of his book signings. Ghomeshi allegedly took her to his hotel room, threw her against the wall and was very “forceful” with her. She said she performed oral sex “to get out of there.” The woman, who still works in the media but not at CBC, said she decided not to complain about his behaviour because she feared he was too powerful…”

“… A CBC employee in her late 20s alleges that in 2007 Ghomeshi was sitting with her and other producers at a story meeting for his radio show Q . After their colleagues stood up and left, she alleges Ghomeshi leaned in close to her and quietly said “I want to hate f— you…

Lest anyone complain that women should have spoken up sooner or more publicly, there are painful consequences to speaking out about sexual or gender-based violence, and so unfortunately, few women do.  YMCA of Canada reports that of every 1000 sexual assaults, only 3 actually lead to a conviction.  It’s even worse when the person in question is an acclaimed public figure.  Mary Elizabeth Williams at Salon urges people to do the math:

“On this side, there’s a successful, well-liked male public figure. And on this one, there’s a likely trail of sexually charged messages. There’s woman who in many situations agreed to go on a date, agreed to go to a private place with a man, maybe even agreed to see him more than once. And awaiting her is a culture of vindictiveness and retaliation that is so terrifying that women who appear in videos about catcalling get rape threats, and women who speak out about feminist issues get doxxed and harassed and murder threats. It’s a culture in which public sentiment can be cruel and law enforcement is often reluctant to assist…”

#IBelieveLucy and #IBelieveWomen. And given that Jian Ghomeshi has seen fit to disclose his perspective and make this a public spectacle, I no longer see any obligation to avoid speculation.
Believing women is the first part of the discussion.  If you believe women, then you must also be prepared to take a harder look at gender, social power exchange, and entitlement.
No Excuse to Abuse, Nor to Assume

Ghomeshi also dragged kink into the mix, by using it as an excuse for his sense of male entitlement. If I know anything about kinky people, it’s that using BDSM as a way to mask abuse is not going to sit well. Fortunately, kinky folks weren’t about to let him claim anti-BDSM discrimination lightly.  Even when they wanted to give him the benefit of the doubt, they usually did so conditionally, pending more information.  Some people spoke up about what BDSM is, to provide a standard against which Ghomeshi’s behaviour would be measured when it was learned.

Very quickly, there were problems apparent with Ghomeshi’s account — or at least of his hiding behind ethical BDSM while making his argument.  When a person is significantly younger (which can — but doesn’t always — translate into a difference in maturity level) or perhaps starstruck — situations where they might make decisions they wouldn’t otherwise normally make — consent can become a grey area, well before kink has become a part of the equation.  In BDSM negotiation, there is a responsibility to ensure that there is no undue imbalance.  Certainly, an adult is still capable of consenting if they’re not as old as their potential partner, or if they’re starstruck… but the potential for imbalance creates a greater responsibility to assure clear consent, and that one is receiving it from someone who is fully aware of what they’re getting into.  It was pretty clear that Jian Ghomeshi had not only failed this doubly-due diligence, he was oblivious to it.

I encourage readers not familiar with BDSM to read Andrea Zanin’s discussion of how healthy, consensual BDSM practices are actually supposed to work.  If you’re uncomfortable reading about it, or can only deal with the TL/DR, the keys are that BDSM is supposed to be something that happens between two people who are mutually interested in it, requires clear and thorough negotiation, acknowledges that consent is an ongoing process during which it can be withdrawn at any time, and also calls for aftercare.

“We adjust based on verbal and non-verbal feedback. In some scenes, this feedback loop can become so instantaneous that it’s as if you’re both experiencing the same sensations. For some of us, this kind of deep connection and intense intimacy is the whole point of BDSM play. If someone uses a safeword or withdraws consent in any other way, that’s not a failure or a loss – it’s a sign to stop, check in, and perhaps end the scene. Why? Because the point here is mutual enjoyment, not playing out an agreed-upon scenario to its bitter end...”

It’s worth adding some discussion about power exchange and about gender.  And it’s a hard discussion to have, because there are polarized camps within feminism about BDSM: either it is seen as a reinforcement of gender inequality and inherently harming to women, or else it is seen as a question of a person’s own right to their sexuality, and to pursue what each individual needs within an ethical construct.  I have trouble with seeing it as being “inherently” harming, having known people of all genders and roles who find it to be cathartic (not always, but when / if they’re so inclined), and find that the reinforcement of gender inequality stems from the already-existing social norms, which have shaped how BDSM is received and portrayed — more a symptom than a cause (more on that later).

There are a lot of different practices lumped into BDSM (an acronym meaning bondage & discipline / dominance & submission / sadomasochism), but most of them involve an element of power exchange.  This is the most fascinating aspect, because when one follows the threads and implications, it actually teaches some profound things about social justice.  But for now, the basic understanding is that in most BDSM encounters, it is a question of one person surrendering power within a negotiated framework, while another accepts power and the responsibilities that go with it.  There are two crucial points to this: 1) a person must first have power in order to be able to surrender it (so there must be a start from an equal footing), and 2) an exchange of power can never be assumed, guessed at or taken for granted.  That second point is especially key here.
Syndicated columnist Dan Savage theorized that if Ghomeshi was honestly engaged in BDSM to any degree, there would likely also be women who have had a kinky relationship with him that they consider to have been positive.  He found two so far who were willing to speak anonymously (after verifying their history via texts / emails and verification through friends).  But what they relate — even if the women themselves were fine with what took place — is a picture of someone who would “initiate” with roughness, and interpret how they respond as whether or not they consented.  Which is not how consent or negotiation work:

“… I think I can square the two Ghomeshis.

“The woman with whom I spoke doesn’t live in Toronto. She and Ghomeshi flirted via text and Skype for weeks before finally meeting up to have sex. And in that time—over those long weeks of flirting—a mutual interest in BDSM was established (file under “lucky coincidence”) and she consented to the things Ghomeshi was floating in their texts and chats. The woman who was interviewed on As It Happens, on the other hand, lives in Toronto. Ghomeshi flirted with this woman in person. And instead of telling her what he was into—instead of talking with her about BDSM—Ghomeshi chose to show her what he was into: he grabbed her hair in the car and asked, “Do you like this?” When she hung out with him again, when she came back to his apartment with him, Ghomeshi concluded—erroneously and self-servingly—that the answer to the question he asked her in the car was yes. Yes, she liked it. Yes, she liked it rough.

“I’m not suggesting that this was all a big misunderstanding. I’m not suggesting that Ghomeshi innocently misread the signals of the woman who was interviewed on As It Happens or the women who spoke to the Toronto Star. But the only explanation that reconciles the stories of the now four women who claim they were assaulted by Jian Ghomeshi with the story of the one woman I spoke to today is this: Ghomeshi isn’t a safe, sane, and consensual kinkster. He’s a reckless, abusive, and dangerous one who has traumatized some women and lucked out with others…”

Consent cannot be presumed beforehand.  One does not subject someone to roughness before negotiating the terms of that exchange.  Indeed, it’s almost as though Ghomeshi thought that only sex (that is, the act) needed to be consented to… that the violence was just for free.  And that would indicate a stunning sense of entitlement.

Not Responsibility, But Entitlement

When collected, the accounts of Jian Ghomeshi’s behaviour paint a picture not of ethical, responsible and consensual behaviour, but of a sense of profound entitlement in which he saw no issue with striking a woman first, and then making a judgment for himself whether she was interested in continuing.

Did he not trust women enough to discuss things clearly and honestly with them first?  Did he think himself a better judge of what women want than than the women themselves?  If a woman’s clear, cognizant, continually-negotiated consent (let alone mutual interest!) isn’t important enough to obtain verbally before striking her, that is a stunning and dangerous sense of entitlement.

Maybe it’s no surprise, then, that Ghomeshi thought it was worth debating whether rape culture exists.

When Jian Ghomeshi posted his original message to Facebook, he compared his interests to Fifty Shades of Grey.  This raises the obvious problem with associating an entire sexual minority and subculture with a character who undertakes things like emotional abuse, coercion and stalking.  It also illustrates the need to have more open, honest communication about it.  As long as BDSM is kept under a cloak of secrecy and taboo, it remains possible for it to be poorly characterized by bad fiction — and by extension, allow people with predatory tendencies to use it to rationalize their behaviour.

Entitlement is a very gendered discussion.  While it’s conceivably possible for it to flow the other way, entitlement in practice is by far a male-favouring phenomenon.

Probably fittingly, Fifty Shades of Grey provides an excellent example of this.  One has to wonder how the novels would have been received if they pivoted around a powerful woman with obsessive control issues, manipulating and intimidating a young man.  Even if it had depicted a respectable, ethical dominant woman engaging in a fully consensual and loving relationship, would the novels have been such a commercial success?  When a person starts looking into it, in fact, virtually every BDSM-themed work of fiction that has achieved contemporary mainstream success has centered around a power exchange which has been gendered with a male dominant and female submissive… despite the variety that exists in reality.  The Story of O, Secretary, L’Image, 9 1/2 Weeks, The Night Porter, the Sleeping Beauty books… the only ones that achieved commercial success while deviating from the script were Exit to Eden, and the over-a-century-old Venus in Furs.

In kink circles, power exchange is independent of gender, and there’s no gender which is “naturally-born” to dominate or “meant” to submit.  But the general public isn’t interested in that diversity.  Aside from the fetishistic image of the dominatrix (possibly exactly because the latter is challenging), BDSM is portrayed with male dominance and female submission as the primary palatable gendered permutation.

And that is because it’s familiar.  The manipulation and animalistic sex found in Fifty Shades of Grey is not altogether very different from the rough sex scenes found in mainstream novels and cinema.  But the problem extends beyond mere sex.  It is a power exchange — though not conscious, not consensual, and not negotiated — which runs as an undercurrent throughout our daily lives and throughout our world.

And that is how someone can walk into a meeting and be reportedly confident that his employers will see everything as consensual:

At that meeting, a lawyer for Mr. Ghomeshi presented two people from CBC management with texts, e-mails and photos of the radio host’s sexual encounters. The evidence was intended to demonstrate consent, a point Mr. Ghomeshi would later stress in a statement: “Everything I have done has been consensual.”

But the CBC managers were taken aback, and their views on Mr. Ghomeshi’s conduct changed instantly. What they saw, in their opinions, was far more aggressive and physical than anything they had been led to believe during months of discussions.

So what next?

The positive thing that can come from events like this is that they spur discussion.

One important discussion that has begun centers around why women are afraid to report rape, the need to support women who report, and the institutional barriers to reporting, investigation and conviction of rapists.

Another discussion needs to be about male entitlement, and the privilege that makes it invisible.  Gender-based violence does not happen because of low reporting, disbelief, or institutional barriers.  Those are the end-products of something deeper.  It happens because there is a persistent and unconscious sense of ownership and entitlement that still makes gender-based violence seen as excusable, or “normal enough.”

And although people might not be eager about this thought, Jian Ghomeshi can even be a part of that discussion, too.  Maybe someday, he could become a powerful voice on the topic.  But that will first mean needing to realize, admit and take the time to become absolutely clear about where he failed.  There is no more room for assumptions or skipping details.
(Crossposted to Rabble.ca)
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“Sex by deception” and the shades of yes

A series of recent rulings (and the media circuses that have accompanied them) in the UK has raised questions about what is being termed “sex by deception” — that is, instances where people who are possibly trans are said to lie about their gender, in order to seduce another person.  In these cases, it’s often unclear whether the person in question is trans or if the gender representation is for other reasons, due to media ignoring questions of self-identification, using mixed pronouns and sensationally portraying people with phrases like “sex fraud woman who posed as a boy to seduce a girl.”  Even after a legal ruling is given, it’s still unclear in many of these instances who the defendant is, and how they identify — which at post-trial stage is an indictment of both media reporting and judicial clarity.

There have already been some previous thoughts expressed on the most recent ruling by Zoe O’Connell (who sifted through the legal text), Jane Fae, and others, and because of the near impossibility to determine what actually happened from a distance, I won’t even try to touch on any of the specifics of any of the specific cases.  I’ll be sticking to generalities only.

There are two key questions at the heart of the discussion.  The first is whether or not one’s gender identity is deception.  Obviously, I don’t believe that’s the case, and at this point in time, most people who have investigated trans phenomena have come to realize that it is deep and integral in at least some way, and far more substantive than what was previously commonly believed by the public at large.  And because this discussion has a question of validation at its root, it can be a very hot-button issue for trans people.

Gender vs. Sex

However, there is also a difference between one’s gender, which is an outward expression and socially constructed to a significant degree, and one’s physical sex.  In illustration, transsexed people typically transition between sexes to be true to themselves, while various other and often overlapping trans people live between genders or defy them in some way (that is to say, there are a couple sometimes differing but not mutually exclusive narratives that make up “trans*”).

When discussing whether deception takes place, there is sometimes a language breakdown that happens because one person is thinking about what a person’s gender identity is, while another is thinking about their genitalia.  For example, as someone who transitioned, I view the years before transition, when I was trying to pass as a man to meet others’ expectations, and trying to conform to my pre-transition body as the period of my life closest to being a “deception,” given that I had been consciously been putting on an act (24/7) during that period of my life.

But the other key question at the heart of things is the nature of consent.  And that is why my own thoughts on this are a bit more complex and nuanced.

Consent

Before I came out and started transition, there were very few safe spaces for trans people, where I could interact with people without fear and hiding.  One was the BDSM community, which has a strict and very discerning stance on what constitutes consent.

Note: it’s always nebulous to call something “the _____ perspective,” and individual opinions and nuances may vary, but this is a general consensus as I learned it: consent by kink standards should come from people who are of the age of majority (legal reasons), without coercion, influence, imbalance or obligation (mixed legal and ethical reasons), and with clear prior communication by both parties about what is being consented to (ethical reasons).  [It may seem odd to some readers, but it actually is possible to resolve social justice perspectives with the power exchange that happens in BDSM — it is a major detour from this subject, however, so I’ll simply be focusing on consent here, and hope that this discussion simply helps to illustrate this point]

It’s a level of consent that many heteronormative couples don’t strive for or even think about. That standard can call into question consent that is given because one feels that it’s their marital duty. It certainly calls into question sex while intoxicated, or where there is an obviously disparate question of power / authority to manipulate, or many other situations in which someone makes an exception to engage in a sex act that they otherwise wouldn’t normally consent to.  The starstruck “he’s not my type, but oh gosh, he’s the President” rationale could raise questions about ethical consent, in some kink circles.

So having sex and failing to disclose one’s sex certainly enters a grey area when this standard of consent is applied. Note that I didn’t say that consent is automatically invalidated.

Legal vs. Ethical

When I started talking about kink perspectives on consent, I brought up a blend of legal and ethical considerations.  It’s important to recognize that whether something is ethical can be an entirely different question from whether it is legal.

It is usually legal, for example, to deceive a partner about one’s marital status, age, past history (including legal convictions), sexual orientation, medical and mental health (including lying about having had a vasectomy, a deception that can result in pregnancy), religious affiliation, wealth / connections, and – heh – prowess.  Some of them are much more serious than others.  Many of them are not typically interpreted in general society to automatically invalidate consent on a legal level, although there may be contexts where legalities are questionable.  And although some cause harm, privacy is often seen as more important in a legal context, depending on how much harm is involved. None of those are very ethical on the surface, but they rarely become legal questions, unless there are extenuating circumstances — such as if the person consenting is under the age of majority, if the person becomes pregnant, and / or if the person initiates lies about being in their peer group.  That’s because law prefers to deal with absolutes, and many of these questions are context-dependent.

Failure to disclose HIV status is a bit more difficult, although it is still not an apt comparison to non-disclosure of trans status: there is no possibility of developing lifelong consequences just because a partner is trans. Either way, people with HIV can be (and most often are) responsible, and take ethical steps to avoid passing the virus on.  The U.K. — where the specific legal cases that started this debate have taken place — recognizes this in law, and doesn’t automatically determine HIV status to invalidate consent.

Gender panic, on the other hand, is seen as the sole exception.

[Edit: okay, possibly next-to-sole exception.  I nearly forgot that Britain has another unusual precedent in R. v Brown, in which the House of Lords ruled that people cannot legally consent to violence, except through legal activities (i.e. surgery).  There have since been rulings that lesser forms of pain — such as branding — can be consented to, but it’s unclear if these rulings overturn R. v Brown.  Either way, the possible existence of a second exception where consent is automatically invalidated changes this context only slightly.]

Shades of Yes

In issues of both legal and ethical consent, there are varying degrees that have to be recognized.  Legal discussions most often parse consent by verbalization:

  • express,
  • deemed, or
  • implied consent.

And if one of those are met, then the question becomes whether that consent was revoked, or if there was a context-sensitive circumstance which would reasonably invalidate that consent.

Ethical discussions parse consent by the motivation of the person who consents:

  1. fully mutual (where both partners are fully empowered and participating for mutual pleasure – the obvious ideal),
  2. generous (in which one sees neither pleasure nor betterment in the experience, but is not in a position of disempowerment, and participates solely out of a desire to fulfill another),
  3. transactive (a situation in which someone might consent to sex in order to advance their finances or position, but is not significantly from a perspective of disempowerment — can include some sex work, depending if it’s engaged in more from a perspective of opportunity than of necessity),
  4. survival-motivated (a situation that is transactive, but comes from deeper marginalization, and will likely only maintain that disempowered status quo — sex work can also be included here, such as the most commonly thought-of survival sex work),
  5. impaired (drugs, alcohol, and it’s also arguably possible to include things like crappy self-image, when it’s inferred by the consenter rather than exploited by their partner),
  6. inadequately communicated (as in deception by omission or unintended deception),
  7. obligated (a person is a bit more under another’s power; fulfilling one’s “wifely duty” might fall in this category if there are profound negative elements being endured in the process),
  8. coerced / by willful deception, or
  9. forced.

Each of us will draw the dividing line between ethical and unethical consent differently, and sometimes with weird jumps (i.e. heteronormative couples might see obligation as a perfectly fine motivation, but transactive sex not).  I’ve ranked them based on how much autonomy the person consenting retains, and the degree of equal power between partners during the negotiation (which can be different from the power exchange afterward — this is drawing from the BDSM principle, after all).

As much as consent can be divided up and rated, of course, “no” is still “no.”  What this is designed to do is give some clearer ideas about when “yes” actually should be considered “no,” or at least be reassessed.

Legal Exceptionalism

Legally speaking, there is an instance in which I could see consent being legally invalidated, or at least where the question would become very murky: if the trans individual bared their genitals and expected their partner to interact with them, without it having been previously discussed.  In the incidents in the U.K. that sparked this discussion — including the most recent precedent-setting one — that did not happen.  The discovery of the person’s trans status did not happen until some time after the sex.

Given this, we’re allowed to be all over the map on where we think this question falls ethically, but we have to recognize that on a legal level, this is pure trans exceptionalism.  With the number of things that aren’t automatically considered deception and don’t instantly invalidate consent, it is pure gender exceptionalism — fuelled by a combination of homophobia, transphobia and possibly also misogyny — behind the decisions to convict.  British courts have been setting precedents that are very different than the conclusions I’d come to, certainly.

The U.K. precedent also sets up a legal question as to whether a trans person is always automatically defined by their genitalia (or even by their genital history), rather than their gender identity.  In a way, the precedent implies that in the eyes of the court, trans people are committing fraud, just by existing.

There’s also a greater concern.  There has often been an apparent vindictiveness evident in the media coverage surrounding some of the “sex by deception” cases — often driven by family members, but also incentivized by the profitability of sensationalism.  Given that transphobic animus can often stop at nothing (including lying) to hurt and demonize, does this precedent then put the burden of proof on the trans person to demonstrate that they had disclosed their trans status?  And if so, does this create an opportunity for transphobes to exploit the criminal justice system to punish people they find morally objectionable?

How does one prove that they disclosed to a partner that they’re trans, in a one-said / other-said scenario? Given that judgments in these cases often go to whoever is deemed more believable and about whom fewer aspersions have been cast, this opens up a whole lot of legal vulnerability.

At this point, it’s worth saying something about post-act regret.  The trans panic defense and the deception claim may even be related at times, and parcel to something I have seen happen: the after-the-fact change of mind, regret, guilt and homophobia that can set in after a consensual sexual encounter, which sometimes then get turned against their playmate in the form of violence and retribution.  The person suddenly blames a trans individual for “trying to make them gay,” and is overwhelmed with guilt for having enjoyed a sexual encounter.  I’ve experienced being on the receiving side of that, though luckily not as seriously as others have.  If the legal system provides a new form of retribution for post-act regret, then trans people have become subject to a new kind of violence.

In any case, the legal question has become seriously complicated in the U.K.

Ethical Questions

Regarding whether there is an ethical imperative to disclose, with the distinctions above to ground us, we have to ask a few questions.

What are the hardships of disclosure?  At what moment is a trans person supposed to disclose?

The reality is that disclosure is often far more negatively consequential to a trans person than a cis partner: trans people are often subject to hate and even brutality for being open about being trans or having a trans history.  There is never a good moment to disclose.  There may not even be a consistently ideal time to, since context changes everything.  Individual value judgments also factor into the question.

What if it is the cis person who initiates discussion, with hopes of leading toward sex? What if the discussion happens in a public area, with a reasonable expectation of harm if one discloses? What if the cis person is pushy or even coercive?

How much right to privacy should one have from an intimate partner, and are there circumstances when privacy might take precedence?

Who has to disclose?  If the sexually-active person in question is post-operative, is there still an obligation to disclose a trans history?

What if the person is pre-transition and they’re still struggling with it and in self-denial?  (One of the jarring questions couples face when one partner comes out as trans is why it wasn’t disclosed sooner:  often, this dredges up an extended timeline of when the person knew they were different, when they decided to try to live according to the dictates of their body and birth assignment, when they came to self-acceptance, when they realized they would someday need to transition, and when they finally came out.)

What if the sex in question doesn’t involve a partner’s penis or vagina? If the person in question is providing oral sex and their pants stay on, does it really matter what’s in their trousers?  Is there a value judgment to be made between a one-night stand and a reasonable expectation of a longer-term sexual relationship?

Does having genitalia contrary to what is believed (or assumed) substantively change the act of sex? Does it necessarily change a person’s sexual orientation? How does one define or quantify the harm?

Open-Ended As It Should Be?

There are dozens of questions that affect the question of ethical consent.  I’m not going to have any one single answer for that would apply in absolutely every situation… nor do I think that it’s possible to have any absolute one-size-fits-all rule.

But I do want people to understand the complexities, and how that question differs from the one of legal consent.