Academic journal article Columbia Journal of Gender and Law

Sexual Consent: Some Thoughts on Psychoanalysis and Law

Academic journal article Columbia Journal of Gender and Law

Sexual Consent: Some Thoughts on Psychoanalysis and Law

Article excerpt

Sexual consent is a complex issue and there are various fields that have seized upon it to decide when it happens, what form it takes, and who is in a position to know. I will be focusing here on how one knows one has consented, but also on some of the ways that psychoanalysis and law may have to work together, despite some persistent tensions between them. Part I of this article reflects on "consent" through the lens of relational psychoanalysis. Since I am not trained as an analyst, my approach would hardly be called "clinical" in any accepted way. However, I do try from the position of a cultural critic to shed light on some of the ways that consent functions both inside and outside of psychoanalysis. This is a difficult task, since if one were to consider consent clinically, one would have to start with the clinic, that is, the fact that someone comes to an analytic session consensually, and that the same someone may well have abiding ambivalence or anxiety about the very fact that they are there. They have consented, but do not like that they have. In other words, since someone may "have issues" with consent that become material within an analytic session, that person has also set up the problem of transference by consenting to walk through the door into the analyst's office. When they do enter the door, they consent to psychoanalysis itself, which is not to say that they know precisely to what they have consented in advance. When the analyst opens the door, there is not only some operation of consent involved as the client moves forward through the doorway for that first meeting, but an issue of consent may well remain at play for years to come, even if one drags oneself there even one no longer precisely knows why one goes. The scene is one in which law and psychoanalysis invariably meet, since once the client enters through the doorway, certain legal norms come into play, constraining and guiding the actions of the analyst. Still, how precisely do law and psychoanalysis meet? How do we describe this meeting of the two, and is it not the case that for each of them to work, they sometimes need to part and leave each other alone?

Part II focuses on consent less as a singular act of a subject than as a more or less organized way of entering into relationship. There always seems to be someone else, or some other set of persons to whom one gives consent, or before him consent is offered. Of course, our ordinary language suggests that we consent to entering relationships, and sometimes that is, in fact, the case. But following from a consideration of consent within a broadly "relational" framework, we might ask whether consent needs to be redescribed in such a way that it both presupposes and orchestrates some relation to another. Is there always someone else there for consent to be possible, someone to whom or before whom I consent, and in what sense can we see this "act" as a relational and social form?

Although consent is often conceived as a discrete act that an individual performs and so draws upon the presumption of a stable individual, what happens to this framework if we maintain the view that the "I" who consents does not necessarily stay the same in the course of its consent? In other words, does the "I" give itself over to a certain transformation, not fully knowable in advance, through its act of consent? And if consent is given to another, or before another, it is then a way of organizing a social relation rather than a merely individual act? Moreover, if the "I enters into a social relationship by virtue of its consent, is it also sometimes transformed precisely by what happens by virtue of its consent? How do we explain the fact that sometimes the "I" who consents undergoes a change in the course of its consenting?

I. The Silencing Effects of Regulatory Law

One clear way that the law addresses sexual consent is through age of consent laws. Such laws are concerned with determining the age at which a person is considered to be legally capable of sexual consent? …

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