The Communicative Criterion: Establishing a New Standard for Non-Violent Sexual Encounters by Reframing Consent

Abstract

Consent is a primary framework by which communities in the United States understand whether a particular sexual encounter is acceptable. Despite its centrality, consent is a troubling criterion for judging violent sexual interactions. Through an examination of historical articulations of consent, empirical studies on sexuality, and philosophical objections to the term, I argue that consent is a problematic construct, especially when addressing acquaintance rape. In order to rethink consent, I start from Pineauââ¬â¢s communicative criterion and offer a model for understanding sexual encounters in which intersubjective processes of meaning making are central. Where the consent criterion prompts the question, ââ¬ÅDid A agree to have sex with B?ââ¬Â the communicative criterion seeks to understand whether the partners attended to each other, sought information from each other about likes and dislikes, and negotiated boundaries. Actors exemplifying the communicative criterion for acceptable sexual encounters notice both verbal and nonverbal cues and check their perceptions. Additionally, they assume that individuals behave, communicate, and interpret experiences in a variety of ways, always informed by cultural scripts. The communicative criterion focuses not on one individualââ¬â¢s knowledge of the other, but on the process existing in the space between sexual actors. The communicative criterion disrupts heteronormative conceptions of sexuality and has important implications for the law, academic scholarship, and public education.