Desire and law

While the French Criminal Code is preparing to integrate the concept of non-consent in the definitions of sexual assault and rape, thus following the path of fifteen European countries, including Spain, this addition is subject to debate. For many, like the lawyer Catherine Le Magueresse, the Criminal Law Professor Audrey Darsonville or the magistrate François Lavallière, he would enlarge the current definition of these crimes and take into account a possible state of amazement of the victims. This bill specifies that consent must be “ free ” And “ cannot be deducted from the only lack of resistance from the victim ». But other voices express their concern and nuance the effectiveness of such a addition: even it is up to the victim to prove that he had not consented, or the accused ? How ? The deputies at the origin of the project also affirm this: a law alone cannot overcome the culture of rape. As the philosopher Manon Garcia points out in her essay Live with menconsent is perhaps less a legal problem than a social problem.

In the test The doctrine of consentrecently translated from Spanish by Etienne Dobenesque, the philosopher and former deputy for the Podemos Clara Serra party criticizes critically about the integration of the concept of consent into the law by relying on European and North American feminist currents. The author refers to two cases having particularly marked public opinion and participated in the awareness of a collective ignorance of consent: that of Manada (“ The pack ), Tried in 2019 in Spain, and that of Mazan’s rapes, tried in 2024 in France. Even though at the time of the trials, consent was not present in the French texts or in the Spanish texts, it was at the heart of these cases: in each of the cases, the defense of the aggressors reveals a presumption of the consent of the victim in the absence of resistance. However, the two women victims of rape were in a concrete physical inability to consent or resist: the first was in a state of amazement ; The second was drugged without his knowledge.

Since 2022, the reform of the Spanish penal code has explained that there is sexual assault as soon as the act is not granted, without the violent nature of the aggression being no longer necessary. The law, nicknamed “ ley del solo sí es sí “(“ law of only one yes is a yes ), Is part of a logic of consent by the affirmative route. Serra then wonders: “ Why, when we are not free to say no, would we have the freedom to say yes ? (P. 33).

Consent in question

The four chapters of The doctrine of consent seek to undo the dichotomy between consent by the negative route and that by the affirmative way: the first requires a “ No “, Or even a form of resistance, while the second requires a mutual agreement, a” Yes Explicit, free, enlightened and revocable. The affirmative way thus associates consent to liberal contractualism, which criticizes the author: in view of the penal code, consent cannot link people as would a contract and can be revoked unilaterally. Associating consent and contractualism significantly influences policies aimed at protecting people from sexual assault.

The criticism of liberal contractualism travels throughout this essay. Serra enters dialogue with several feminist currents, including that embodied by lawyer and lawyer Catharine Mackinnon. For the latter, which defends a radical and abolitionist feminism, any consent within a patriarchal society is impossible, as the power relations are deeply rooted. According to Serra, intrinsically associating power with violence is not desirable, as this invalidates the consent of certain women, in particular that of sex workers or followers of masochistic practices. In addition, this tends to reassign women to a role given to them by patriarchy: that of a fragile and defenseless femininity, unable to consent in full awareness. For the author, the paradigm shift made by the reform of the Spanish penal code is an extension of this thought, which gives the State a power that is both protective (defending assaulted women) and regulator (punish women of bad mores). In this context, how to ensure the validity or authenticity of consent ? And who can judge ?

Serra goes beyond this dichotomy and affirms the need to think about sexuality according to its context: a yes can only be authentic and valid if the possibility of no exists. The relations of power, domination and subordination-whether economic, social or racial-are all factors influencing (non-) consent of a person. It is not a question of conferring an outer power: in order to assess its authenticity, it is necessary to contextualize the (non) will of a person through dynamics that are both interpersonal and systemic. However, in a court, the fault is individualized, always placed “ Outside the social body “(P. 130), what Serra considers ineffective” To combat structural power inequalities (P. 130).

Between will and desire

To consider consent by the prism of yes is also to consider it by the prism of desire. The philosopher notes that in certain feminist speeches, the two terms are used indifferently. Thus, desire becomes “ The true criterion of a distinction between sex and violence (P. 89). Now, is this really the case ? Do we always consent to our desires ? Serra describes a paradox: while desire “ seems to benefit from mystical authenticity “(P. 89), the will of a sex worker or that practicing masochism is,” always affected by falsehood (P. 89). There are therefore desires that the company accepts to hear and respect, and others to which it is opposed and that it cancels.

Serra specifies: “ It is not a question of questioning here the fact that the coincidence of consent and desire constitutes a desirable horizon. But nothing and no one will be able to save us from the possibility of not choosing what we want or not to desire what we choose (P. 101). By relying on psychoanalysis, she recalls that desire contains a part of unknown: we sometimes desire out of our will. The author, who is part of the same line as the American philosopher Judith Butler, invites to exploration and the conquest of desire, himself linked to the non-knowing. It highlights the fact that women, historically, are held far from their desires, and that men place their own in the foreground of their experience of sexuality. And by the evocation of the right to exploration, Serra reaffirms one of the essential criteria of consent: its revocability. And that’s why consent cannot be thought of as a contract would be. Thus, it alerts against a certain paternalism of the state, which would be the judge of our desires.

In order to show the need to differentiate desire and will, the philosopher takes for example the protagonist of the film She From Paul Verhoeven in which Michèle, after having rape, realizes that she wishes to be sexually dominated. According to Serra, this film puts the patriarchal company in the face of “ One of her worst fantasies: a desiring woman and who, in addition, wishes wrong. The incivorized desires of women have always appeared as a threat. (P. 97) She continues:

Faced with the naive claim of desire in certain discourses on consent, we must remember that we do not always want well, that we never want as we want, that our desires will never meet moral standards or political programs. (p. 98)

To dissociate the desire for consent is to ensure that the will of the person comes before his desire. This allows both to protect the “ Yes “That some people would like to invalidate and” No That the patriarchal company refuses to listen and respect. The author claims that it is neither in the State nor to society to decide or to judge the desire of women ; We cannot demand from them that they experience a good and pure desire. The author also takes the example of Manada: by wanting to defend the girl raped by a group of men in a building hall, some feminists have argued that no one would like such sexual relations – proof, therefore, of rape. But Serra warns us about the danger of such a presumption: rape has nothing to do with desire. So she says: “ The sexual freedom of women requires a law that recognizes our will without claiming to know our desire (P. 99). Thus, associating consent to the will may make it possible to think differently the question, by granting women the right to explore their desire, not to always know, and by recalling that the responsibility for a rape always falls to the aggressor, never to the victim.

The punitive question

At the end of her text, Serra makes a displacement of the gaze and invites us to think about the reach of these legal and political changes. She notes that feminist discourse is sometimes instrumentalized: some states use sexual violence to fuel the fear of insecurity and support the need for hardening of punitive systems, combining the most reactionary part of public opinion.

This type of crimes, crimes of sexual violence, are precisely those who are most readily unleashed in our democracies the social demand for severe punishment. And very often sexual violence against women is the best asset of the right and the extreme right to strengthen criminal policies, criminalize migrant populations and defend the prison in perpetuity or the death penalty. (p. 121)

Without naming it, Serra evokes felmoning and highlights the way in which sexual violence are penalized. Indeed, it is necessary to take into account a global political context which trivializes racist speeches and develops ever more violent anti-migrant policies, in North America as in Europe. Even though the majority of sexual violence are perpetrated by relatives or within the home, these are those perpetrated by foreigners who arouse the greatest media and political reactions – let us think for example of the rapes of Cologne, in Germany, in 2016. Serra therefore invites you to think about the scope of these criminal reforms which could “ pave the way both to an expansion of the criminal response as in a moralization of sex (P. 126-127). For example, she evokes the work of the American lawyer and professor Aya Gruber who, in The feminist war on crimeshows how certain white feminist speeches participated in the development of the American prison system and in massive incarcerations targeting the most marginalized populations. Thus, Gruber proposes that criminalization is only a solution of last resort.

Clara Serra’s test offers a powerful and nuanced reflection on consent and its limits. By defeating the dichotomization of questions relating to consent, shared between the affirmative path and the negative way, it shows, based on research in law, sociology or even psychoanalysis, that this notion cannot be seen as a magic solution to a systemic problem. In addition, it recalls that, even if an education in consent is necessary, it is also important to consider violence of a sexual nature since the point of view of the aggressor and not only that of the victim, while wondering about the role that the State can and must play to stem these violence.