Is there a such thing as consent in legal terms? Does it matter to the law?
This plays out differently depending upon which side of the binary you look at: “normal” or “abnormal”.
During our discussion of BDSM culture, its common use of contracts was mentioned. These contracts are the process in which the participating parties negotiate consent. However, they hold no legal merit. In Darren Langdridge’s article “The time of the sadomasochist”, we learn that in some places BDSM is illegal. He informs us of “Operation Spanner” in which over a dozen gay men were persecuted for their non-normative and consensual forms of sexual expression. These men were convicted of assault and received fines or imprisonment. If I had to guess, I would say that the submissive parties faced fines and the dominant ones faced imprisonment. Upon conviction, they attempted to appeal their case based on the negotiated consent between parties. However, the presiding judge decided that “it was the role of the law to draw the line ‘between what is acceptable in a civilized society and what is not'” (373). I find it odd that people go to jail for practicing consensual BDSM, and yet rapists get off due to the “iffy-ness” of consent. To clarify, if you give someone permission to whip you, they can go to jail without you pressing charges; however, if you do not give someone permission to have sexual contact with you, they may or may not go to jail, depending on the circumstances. If you happen to have been under the influence, somewhere you shouldn’t be, scantily clad, or flirting, the justice system says that it may not really be rape, because all of these imply some level of consent.
Ironically, in the BDSM culture, nothing acts as an automatic, irrevocable form of consent. Quite the contrary, a participant may dresses as scantily as they like and flirt all they like, and yet sex is still not considered a required outcome. In contrary, our heteronormative patriarchal culture says that if a woman does this she is a tease and actually wants something to occur, whether she admits it or not. Once a man is riled up, he is entitled to release his tension on any woman he deems suitable. In many ways, mainstream culture says that the act of a female being in the presence of a male is consent. BDSM culture challenges that. Each relationship creates its own unique version of what consent looks like.
In Barber’s article, “Sex and power”, she mentions Dworkin and MacKinnon’s idea that “sex is about male dominance and female subordination” (45). In this context, women victims are dismissed because they are complaining about how the world works; while, the (in this case) gay BDSM men are violating this norm by being subordinate or dominating another man, and are thus prosecuted. Furthermore, it is likely that the response would be the same if a heterosexual couple consisted of a female dominant and male submissive.
In essence, our culture finds a way to discriminate against all types of people in ever creative ways. I have come to the conclusion that consent is seen as arbitrary by society.
At what age can someone consent? Does the age of the aggressor matter? Is alcohol consumption consent? How about drugs? Can someone consent to sex after they have been emotionally/psychologically abused? Can consent be withdrawn or is the aggressor entitled to completion of an act after its initiation? Is dressing or acting a certain way consent?
Why does the opinion of the parties involved not matter?