'Screw consent': Joseph Fischel reexamines how sex and pleasure are governed

Juana María Rodríguez

Professor of Ethnic Studies
Event

Monday, October 30, 2017

In his October 19, 2017 presentation titled “Screw Consent: Horses & Corpses, Kink & Cannibals,” Joseph Fischel, an associate professor of Women’s, Gender, & Sexuality Studies at Yale University, discussed the current investment in the juridical discourse on consent and the logical limits of that discourse in adjudicating various forms of pleasure and harm.

He began by presenting legal cases involving atypical cases of sex involving bestiality, necrophilia, and cannibalism to probe the limits of consent as a sufficient standard for considering sexual justice.

He went on to argue how other legal considerations such as seriousness, social welfare, or human dignity may be problematic standards for considering a wide range of sexual behaviors. Presenting information on socially applauded forms of violence such as football, Fischel argued that consent may be insufficient to address the composite harms associated with the sport.

With respect to football, composite harm could include the ways CTE diminishes players ability to “be and do” in the world; how football promotes unforgiving and dangerous gender norms of masculinity and femininity, and how it is predicated on predatory, capitalist exploitative practices that disproportionately target African American men and boys.

However, discussions of consent are generally absent from the sport. Fischel went on to explore other forms of socially sanctioned and state authorized forms of sadistic violence such as solitary confinement.

While conceding that as a term of law consent may be necessary and insufficient, and agreeing that affirmative consent may be the best legal language available on college campus, he argued that a consideration of autonomy and access might be better able to capture the parameters of a sexual justice based framework.

He defined autonomy as the capacity to be and do in the world, and access, a term borrowed from disability studies, to think about more expansive ways to allow for more capacious, inclusive, and pleasurable sexual justice politics.

This talk was the first in the Haas Institute's Research to Impact Faculty Colloquium Series.

Download the PowerPoint presentation from this talk here. Read a transcript of the talk below.

TRANSCRIPT

Juana María Rodríguez: It is my pleasure to introduce our speaker today, Joseph Fischel, who is an Associate Professor of Women and Gender and Sexuality Studies at Yale university. Joe received his PhD from the Political Science department at the University of Chicago, and served as a postdoctoral fellow at the Pembroke Center at Brown University. In 2012, he received the Julian Mezi dissertation award from the Association for the study of Law, Culture and the Humanities. 
 
His research interests are normative political theory, feminist and queer studies, public law, and the legal regulation of sex, gender, and sexuality. His first book is really quite fabulous, Sex and Harm in the Age of Consent, and that interrogates the figure of the child and sex offender, and figurations of consent. 
 
His talk today is from his new book project, which examines the life and afterlife of sodomy law from multiple perspectives. He also tells us that he is a committed fan of running. He was trying to get ready for that marathon before the smoke told him to go indoors. Yoga, beaches and mediocre legal television series. With that, let me introduce Joe. 
 
Joseph Fischel: Great. Thank you very much. I have to offer a minor correction. Actually, this is the second book on ... So, it's like a sequel to the first consent book, so it's not on the afterlife of sodomy, it's more on consent, so I apologize.
 
I'm going to give you a little preview of the talk before going into the main feature. We'll triangulate on horses, cannibals, and tea. We'll start with horses. Overall points ... Also, this is my first time giving a talk from slides and not printed out, because I think that's sort of a bad, boring habit, so you're going to have to bear with me a little bit.
 
I'm trying to think about how atypical, or weird, or outlier sex helps us think about sex when we think about the "ordinary couple" form. It thinks about the limitations of consent, for thinking sex in the couple form. As for the preview, first, horses. In 2005, as many of you might know, a man known as Mr. Hands died from peratinitus after his colon was perforated by a stallion's erection. This was all featured in the documentary, Zoo. See, I did the slide too fast. Whatever.
 
Basically, what his death revealed was, all of these guys were getting together in Washington state, and getting drunk together, and then going to barns and getting penetrated by horses. And then he died, which lead to this whole scandal. Mr. Hands died, which lead to this whole scandal, and a bestiality law was passed in the state of Washington. Great.
 
There's this voiceover in the documentary, Zoo, by Robinson Devor, which I'm not showing you [inaudible 00:03:24] exquisitely beautiful and slow to the point of boring because he wants you to stall long enough to have a thought about this crazy scandal. There's this voiceover of Senator Pam Roach who says, "I could never believe that an animal would do this on their own." That is, have sex with a human. "We don't allow adults to abuse children sexually. Children cannot consent. Children are innocent and so are animal. They cannot consent and they are innocent."
 
To which, also in the film, Rush Limbaugh responds saying, "How do they know the horse didn't consent? I mean, if the horse didn't consent then none of this would have happened." Get it? Horse erection equals consent, Senator Roach is wrong. So what I'm gonna tell you later on in the talk tonight, I think both Rush Limbaugh and Senator Roach are wrong. To [inaudible 00:04:14] my sympathies lie with Ilana Wexler of Broad City. "The horse was fucking the guy. It's honestly not that bad. It's not as if a human was fucking the animal." 
 
Ilana seems to be putting towards something other than consent and nonconsent to think through the ethics of bestial sex. All right. Sorry. Our cannibal. This is Armin Miewes, this was a 2001 case in Germany, known as the German Cannibal case. He met someone online and they consensually agreed that he was going to ... The other man, Bernd Brandes, he was gonna come over and they removed his penis together. He tried to eat it, it was too chewy. They tried to fry it and they burned it so they gave it to the dog and then they had sex and the other guy ... did a lot of drugs and he killed him. Froze his parts and ate it periodically over many months and then this was all on video, it was all exposed and he was arrested. And he was convicted of manslaughter on the basis that it was all consensual and then a higher German court convicted him of homicide. Basically, arguing that consent was not a defense to the homicide. 
 
This presents a problem though, the problem that I analyzed in the book and I'm analyzing with you today, I think for BDSM scholars and sympathetic activists. I will not reread everything that's up there, but if you know anything about BDSM activism or scholarship, consent is the keynote. It's all consensual, it's all consensual. Consent is the thing that ratifies BDSM sex and I think this is gonna be a problem. The German cannibal case presents a problem if we're all cool with consent, but we're not cool with consensually eating your lover and killing him. We'll talk more about it. Some of you might be familiar with the safe, sane, and consensual, so safe might be the corrective, but we can talk more about the limits of safety as a side constraint since the whole point of BDSM is to libidinize non-safety in the first place. Or what is eroticized is the contravention of the norm of safety.
 
Okay. There's cannibals and horses and now we're on tea. Have you all seen this video? Yes, okay. This is the Thames Valley Police in England put this PDA out that was supposed to be a training video, but then went viral all over the US, all over the world, circulated widely, including by Harry Potter author, JK Rowling. Analogizing consent to tea drinking. Rather, consent to tea drinking to consent to sex. The video is this clever send-up of men's presumptively willed ignorance. Like unconscious people don't want tea, don't serve them tea. If they say they don't want tea, they don't want tea. They say, "No, thank you," then don't make them tea at all. Just don't make them tea.
 
The video ends with a public service announcement that is simple, straightforward, and as I will argue gesturally at the end of the talk, politically stupid, or politically foolish or short-sighted. Whether it's tea or sex, consent is everything. So I'm gonna argue sexual justice politics can do better. 
 
I'm gonna back up for a moment. This is the second book. I just handed in the manuscript yesterday, which is really exciting. We're not gonna go through the whole book 'cause them you wouldn't buy it and 'cause it'd be boring or we'd be here for a long time, but the very quick version. The introduction looks at that tea and consent video and a whole bunch of other cultural artifacts and constellate what we call the consent moment, and opens up to think about three criticisms that the book levels at consent, which are under the rubrics insufficiency, inappositeness, and scope contradictions. We'll do that in the other order. Insufficiency, scope contradictions, and inappositeness. 
 
Insufficiency, as regards to conduct, that's chapter one. That's kink and cannibals, I'll talk more about that, about how far can you run the consent train. If I say, "Dear husband, remove two of my legs," are we cool with that or is consent insufficient? There's my husband. Insufficiency as regards to status, that's the trouble with mothers' boyfriends or against uncles. There we looked at data across sexual assault appellate cases in Connecticut, Wyoming, Wisconsin and it turns out the second most common perpetrator of sexual violence, to the surprise of no one, are the intimate partners of mothers, basically. Mothers' boyfriends, right? Almost all states, but three, their statutes cannot be reasonably read as covering mothers' boyfriends and so the argument of that chapter is maybe it's time to extinguish restrictions on sex in horizontal relations like adult siblings or cousins or whatever and think more about vertical status relationships.
 
Scope contradictions. This is heavily indebted to [inaudible 00:09:17] Gross and Alex Sharpe for thinking of this third chapter, the trouble with transgender rapists. These cases in Israel and the UK and the US where you have trans men or butch women being convicted of some form of sexual assault because they deceived their partner. Their partner thought that they were sexed male at birth and them it turned out that they were not sexed male at birth. These cases are kind of resolutely transphobic, but I think there's something important about the problem, which is what do you consent to when you consent to sex. This is picked up by legal scholars who are not at all thinking about trans-identification, but I think it's an important question. If I say I'll only have sex with you if and only if you're Jewish and you lie to bed me, is that a problem? Where do we create ... What are the scope limitations?
 
Then inappositeness. When does consent just not apply? Horses and corpses. And, finally, I look at a case of sexual assault involving a person with significant disabilities and to think about how all of those criticisms [inaudible 00:10:15] one another. Insufficiency and inappositeness and scope and gesture toward two other concepts that might be more forgiving or more generative. Access and autonomy and we'll talk about that, too.
All right, so today though ... Really high-tech PowerPoint functioning with that disgusting green ... Oh, no. And it didn't work. Okay, well, we're gonna ... Wow, they all got green. Okay, well, we're gonna talk about kink and cannibals and horses and corpses. Awesome. 
 
Horses and corpses. We have Senator Roach. Animals and children can't consent. We have Rush Limbaugh, erection equals consent. And then with have this gesture towards something else. In the Broad City episode, she works for this Groupon site and she sends out this video of Mr. Hands getting fucked by the horse. She then gets fired and her boss [inaudible 00:11:05] says, "You sent a video of a guy fucking a horse." And she says, "If you did your homework, you know the horse fucking the guy. It's chill." The chillness seems to be ratified by something other than consent. 
 
And there is a plethora of literature about our moral requirements to non-human animals. We could think about their suffering and non-suffering. Peter Singer, Animal Liberation. We could think about animals as rights-bearing subjects. That's Tom Reagan. This guy, Balcombe, is sort of neat and thinks about their animal pleasure and whether or not we have a moral obligation to animal pleasure. Gabe Rosenburg, my friend, Gabe Rosenburg at Duke, is now doing work on this and he thinks about animal sexual welfare. Or Martha Nussbaum's capabilities approach. Should animals be able to realize a certain capability within, which he calls their species norm and would say sex with animals impede their ability to reach their species norm, their full dogness or catness or something.
 
Notice that consent isn't anywhere in any of these moral paradigms or moral philosophies. My argument is that it's because it's absurd. It's absurd to think of consent in relationship to non-human animals and we only do so because we're thinking in proximity to sex. Thinking about if your dog consents when the dog sits or if the skunk consents when you shoo it away from your trash or something. I think consent does not make sense to think when thinking about non-human animals. I think this is the fully anthropocentric part of the talk. I think consent is a human construct enacted to govern human relationships under conditions of human cognition.
 
All these theories may come to different places about interspecies sex and kinds of interspecies sex, but they are gonna come to agreement about a whole lot. They're all going to object to factory farming and to dominant forms of farming practices. They're not all necessarily gonna be opposed to painless killing, like cheeseburgers. The Rush Limbaugh appeal of the consent argument is like, well, the animal might consent to sex, but it wouldn't consent to becoming a cheeseburger. And my argument is consent has nothing to do with any of this. If we care about welfare or suffering or pleasure, let's just say so.
 
Zoo flirts with this kind of relativism, too, in the documentary. At the end they ... This did happen in real life. They gelded the horse that penetrated Mr. Hands, which seen from a different register is sexually assaulting the horse. Then, of course, they have these clips of him eating ham and turkey on Thanksgiving and they're like, "Really?" If you ask the turkey, which would it prefer?
 
Also, this law that was enacted in the state of Washington has this farming practices exemption, which virtually all bestiality laws have this farming exemption and Gabe Rosenberg talks about this, too. Which basically and transparently puts on the table that what's being policed is not fucking animals, but weird male desire. We should just be honest about that. That's what's freaking us out is weird men.
 
So that's horses. Now I'll go to another strange case of corpses. I should have also said I didn't include any trigger warnings. The whole talk is kind of trigger warning, but there are no really graphic or prurient images in the talk. 
 
In 2002, a few years prior to the horse sex incident, in Washington there was a corpse sex incident in Wisconsin. These twin brothers, Nicholas and Alexander Grunke. G ... doesn't matter. Grunke and their best friend Dustin Radke, they're all 20, or they were 20, kind of overgrown Harry Potters. They decided to dig up a corpse of an attractive woman so that one of the brothers could have sex with it.
 
The quick version: he convinces his brother and the friend. They try. The vault is ... They can't break into it. They have their shovel and it doesn't work and they pack it up and they go home. They're in this truck with condoms and a shovel and the police pulls them over and they say, "We were trying to have sex with a corpse." They convicted of a whole bunch of things. Trespassing, property damage, and they also get convicted of attempted third degree sexual assault. Why?
 
In part, because in Wisconsin consent means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact. Some of you might ... This language might be very familiar to many of you. Some version appears in almost every new college sexual misconduct code. This is an affirmative consent standard. Wisconsin is one of, I think, three states that have a full on affirmative consent standard. By full on I mean across criminal law, or sexual contacts. Not like California has it just for the public schools have to have, public universities have to have it.
 
All right, take a breath, Joe. Okay. Affirmative consent standard. Great. It also recalls these earlier provocations from Catherine McKinnon and Andrea Dwarkin back in the 80s. Basically, consent was such a crappy standard even a dead woman could reach it. Feminist victory. In Wisconsin, you cannot have sex with a dead woman because there's an affirmative consent standard. 
 
On the other hand, this whole thing is absurd. Perhaps the relationship of consent to corpses is even more simple and straightforwardly absurd than with horses. This is the dissenting judge, who I think had the right argument. "The majority reaches a desired result through an undesirable analysis." The desired result is criminalizing necrophilic sex. The undesirable analysis is getting there by way of consent. 
 
What's on the next slide? Okay, great. The argument is this makes no sense. Talk about the consent of a corpse. We could talk about its dignity. We could talk about public health. We could talk about the health concerns of Nicholas Grunke, but talking about consent in relationship to the corpse sort of is like saying Jim sexually assaulted the apple pie. As Aristotle on [inaudible 00:17:27] reminds us, corpses aren't people.
 
This brings us to this really uncomfortable place about children. Here's why. This guy, David Finkelhor, he's now like a famous sociologist around child victimization and child sexual abuse and he wrote this article back in 1979. What's Wrong With Sex Between Adults and Children? I think it sort of strikes us all as real wild that that article had to be written, but he's writing in this liberal moment and he's trying to create a liberal, both politically liberal and Kantian liberal, account. Like a deontological account for what's wrong with this.
 
On the one hand, he wants to say it can't be that it's weird or unnatural because see: gay people. On the other hand, it can't be empirical harm because what do we do if this kid is not harmed? We still wanna say it's wrong. If the uncle abuses his niece and the niece turns out just fine or child pornography for that ... I don't think he talks about child pornography, but if the kid never sees it and doesn't know about it we still wanna say it's wrong. He ends up at consent. This is the problem. That's the way to do a run around the empirical harm question and the unnaturalness question. 
 
The problem now, of course, maybe is sort of obvious to you and I sound like a broken record, but we superintend kids all the time. The fiction we tell about children is that they can't consent to anything, like play dates or no play dates, or time out or not time out, or eat your vegetables or don't eat your vegetables, compulsory education. Whatever. There are all sorts of things we make kids do. Sometimes we say it's in their best interest, but sometimes also it's totally damaging to kids to make them do these things that parents or guardians want them to do.
 
I think he sort of runs away from the rock of harm and [inaudible 00:19:03] ends up in this hard place of consent. And yet we probably all agree that sex with children is wrong, so how would you get there if you can't get there through these avenues? One way would be exploitation, which sounds like 1970s feminist interventions in incest, that the problem of sex with children is not the bad guy on the playground, but fathers and uncles and intimate partners. We don't need to do this in a technical, Marxian way, but we can just think of it as illegitimate satisfaction of a perpetrator's interests. 
 
I think is more promising, but gets us into the Toddler and Tiaras problem where you take a bunch of all sorts of ways in which children are exploited to satisfy other people's interests. I'm thinking about Toddler and Tiaras or the way that kids are forced to play little league so their parents can relive their youth [inaudible 00:20:06] I hated playing baseball. It was awful. I don't mean that to be glib and to trivialize real harm to children, but I do think that kids are forced to do all kinds of things that actually really are injurious that are not just sexual.
 
That would be another way. Another way to think about this is maybe it's just a composite harm. Maybe there's just so much bad crap around child sexual abuse, the possibilities of exploitation, the possibilities of harm, the fact that the kid doesn't consent, the fact that it reiterates patterns of gender dominance. Just suggest that sex with children is a really bad idea, it should probably be criminalized. Which is maybe unsatisfying, more unsatisfying than having a silver bullet, but it's maybe also just true.
 
Coda on this point about ... and this is sort of speculation. I don't really have the argument for it, but I find it fascinating that both of these stories are about young white men collaborating together to have some kind of non-dominitive, maybe non-dominitive sex. If we ... What does it say about late-modern, post-millennial, white or whitish, or straight or straightish masculinity. We could say, sure, maybe it's not about consent, but it is all about men [inaudible 00:21:23] their manhood. Where the subordinated is just fungible. Instead of a woman, it's a corpse, or it's a horse. This is all about domination and M over F as [inaudible 00:21:33] would say.
 
I think that misses something. I didn't talk to you that much about either case, but you have these folks being very intimate with each other and taking great for each other and helping each other get fucked by horses. Also, the corpse case is weirdly incestuous. These twin brothers are going together to dig up this corpse. I don't know why I find all of this sweet, but I find it a little bit sweet and non-dominitive and not particularly heterosexual. I wonder if what the horse men of Washington and the corpse men of Wisconsin want is some sort of un-gay pleasuring simplicity sheltered from homosocial competition and live women.
 
Sorry, these are some of the quotes from Zoo, but by the actual folks involved, wanting for a classless society. You don't have to impress anybody, you don't have to talk to the horses about Tolstoy or Madonna, they say. What might these [inaudible 00:22:33] men and their unlikely objects desire tell us about strictures of millennial, neoliberal, post-industrial masculinity. Strictures, I think, undetectable from the paradigms of consent or dominance. What social and sexual roles do these men wish to access? I don't know, but speaking of gender identifications, stylizations, and expressions, we can move to Kingpin football.
 
On the one hand, one could say isn't this analogy too unfair to the German ... analogizing BDSM to the German cannibal case unfair? In part, because maybe this guy, Bernd Brandes, was off his rocker. Also, because as so much BDSMers will tell you, it's not ... BDSM is so often not about actual, physical pain or the threshold of how much injury or pain a person can take, but about fantasies and dramatizations and playing with power and like that.
 
But I think, given the fact that nonetheless so much of the political sloganeering is about consent, I think the analogy is a fair one. If you're gonna put all your eggs in the consent basket, then you have to deal with this problem. I also just wanna say that just for teaching moment, the way these appellate cases around ... when BDSM is put up as a defense, these cases cut two ways. Usually, people are charged with assault, not sexual assault, 'cause consent is not a defense to assault, so they get charged with assault. Usually, this cuts two ways. One is the judges or juries kind of amp up or ... Judges amplify the harms that were not terribly grievous or permanent to begin with, but say they are and the commentary on these cases are rather homophobic or erotophobic and you're jacking up the story of harm to convict gay men or kinksters.
 
The other version, the other way these cases cut is it looks like rapists who are putting up a rough sex defense, saying this was BDSM. It wasn't rape. This is all to say I make the comparison, I'm thinking about the insufficiency of consent, not unaware that this is really fraught and that the cases surrounding kink are complicated or difficult. Nonetheless, I still think there's this green light problem. What kind of activity does consent green light? Before considering other side constraints that we might wanna look into, like if we don't think that eating and killing your partner just because you're doing it sexually makes it okay, what other kinds of concepts do we wanna put in our basket? I wanna think about the big analogy in this BDSM scholarship and by activists and that's the contact sports analogy.
 
The Model Penal Code is this legal text that started in 1962 and it's by a whole bunch of legal scholars, meant to liberalize and formalize states' penal codes. That's all you need to know about that. The Model Penal Code permits consent ... It doesn't permit consent as a defense to assault, like you can't say, "Well, I consented to having my arms removed." It's still assault, unless it's by a doctor. 
The MPC permits consent as a defense ... only permits consent as a defense to serious bodily injury if such injury is incurred "in lawful athletic contests or competitive sport or other concerted activity not forbidden by law." Basically, this is a sports exemption. You cannot consent to serious physical injury unless you're playing football or hockey and then it's okay. I'm supplying.
 
States have adopted bearing to this cause while refusing to permit consent as a defense to assault charges arising from alleged BDSM sex. So the argument is if you're gonna allow consent for football, why wouldn't you allow consent for kinky sex. If you're gonna allow it for physical contact sports, why not allow it for kinky sex? A whole bunch of law students and legal scholars will say and sex is even more important to person selfhood. Now you have [inaudible 00:26:35] and there's a stronger right for sexual autonomy than for football autonomy.
 
But I kind of think that the analogy works better the other way. I think especially in relationship to football and it's not for nothing that when people are making these arguments they turn to boxing or hockey and they don't turn to the massive secular religion of the United States that is football. I think here the analogy works the other way. It seems to me the argument is not we should permit kink because we allow football. It's that we should not allow football.
 
We can consider for a moment part of what motivates this is my sense that, and many other peoples' sense, that there is a moral panic structure to football, by which I mean we isolate these characters. Depending on your political persuasion, they're the bad guys. They're the problem with football. He assaulted his then fiancee. He called a woman journalist a woman and Colin's taking a knee. These are the outliers. This is the way we can all get outraged. I'm sorry, it's cheesy, but this all feels like deck chairs on the Titanic. We're all just ignoring the fact that ... We're not all ignoring it, but American football as it is practiced and preached and corporatized is totally terrible and I don't know if there's any moral philosophy in which this game could be morally defensible. 
 
I will admit, surprise to all of you, that I was not a football fan growing up, that I didn't play football very much. I watch one game a year. It's the game at some stupid gay bar with a stupid colored martini and I wait for the glittery half-time show. I'm probably not the best person to convince you of the moral questionability of football, probably its moral wrongness. My point is less maybe to convince you than to suggest first that the football kink analogy, I think, works better the other way. And, second, that the reasons for which football are impermissible, and I'll get into this in a moment, are not only about physical bodily injury. Not just about CT, not just about brain damage, but I think more to do with impediments to autonomy and access and I'll come back to that in a moment. About impeding peoples' abilities to do and be in the world and I think that calculation ought to migrate into our thinking and thinking and adjudicating sex.
 
I'm not gonna elaborate all of these little why football is wrong bullet points, but I can talk about them more when we have a discussion if you want. I'm also actually just give a shout out and I do at the end of the slides to Steve Almond who's this sports journalist who wrote this book called Against Football: A Reluctant Manifesto. From him [inaudible 00:29:18] several others, but the ... Well, we can talk ... [inaudible 00:29:25] briefly. 
 
It is a nostrum for poor black and brown communities. One in 500 high school players end up maybe going to the NFL. It also makes cities poorer. None of the money that goes from NCAA football teams actually goes into financial aid or the universities. It just goes into the actual football program. It subscribes men and women to narrowest, most violent and diminishing gender norms. Here's the Panther guy, Cam Newton gets called out for being sexist to this journalist and here is a 2017 calendar of the Panther cheerleaders that you could purchase right now where each page is a naked cheerleader. Why are we talking about that?
 
Also, football's really beautiful and there's something technically incredible about it and I will concede all of that, too, but I think the costs outweigh the benefits and I think we'll all be embarrassed man years later. I kind of think, as I was writing this talk, that maybe there's no single harm about football, but it's composite harm kind of like child sexual abuse. 
 
If you thought that was provocative, just wait. Of course, the actual reason that the consensual violence of football is permitted, whereas the consensual violence of some sex is prescribed is that only one of these activities generates astronomical profit for white men. We can keep telling ourselves that the difference between a knocked out football player and Janay Palmer, Ray Rice's fiancee is the difference between consent and non-consent. Refereed group activity and un-refereed intimate relationships.
 
But should we unequivocally permit, should we permit, let alone promote the counterfactual in which, say, Janay said to Ray, "Knock me out," as part of the scene, as part of a kink scene. And what if Janay were Jamal? What if, as part of the kink scene, Ray and Jamal wore jockstraps and tights and knocked each other out on artificial turn instead of in a sling? The argument here is under critical race lights rather than queer theory lights. The sports exception in the United States looks less like it's about sex negativity than racialized disposability. 
 
What are these other options? If we think consent's not gonna green light all this sex, where else can we go? One place scholars go is seriousness because there's this serious exemption in the Model Penal Code and they just sort of say just apply it more equally, just don't be homophobic in your rulings and actually if it's serious, permanent injury, then it should not be cool. 
 
My concern at this ... [inaudible 00:32:12] the corporanormativity of seriousness. It always gets written like serious bodily injury or physical injury and it's all about the body and about the permanence of injury to the body. I think we run into a problem, like tattoos and piercings, scarification. Also, no one talks about gender affirming surgery. The Brandes case of having his penis removed, versus someone seeking gender affirming surgery without doing any kind of balance of harms or interest to the welfare of a person or thinking about things other than physical injury, it's hard to make a distinction. And I think there's a distinction worth making.
 
Under inclusive, by only looking at the body, only physical injury, I think we don't look at other kinds of harms, like in this case in Nebraska where this guy basically in a windowless basement, like a windowless, four by six cage for a week. It's sort of unclear whether he consented or not 'cause he consented over email and he was like, "Even if I revoke my consent, I'm still consenting." Anyway, it's a really fascinating, tragic case, but my larger point is I don't think we get to issues of imprisonment or containment if we're only focusing on the body. One could argue that, in fact, imprisonment like Lisa Gunther, it does, in fact, have effects on the body. But insofar as how seriousness, serious injury is used in the Model Penal Code and in case law, I think we wanna be careful about locating the problem of kink sex or whatever else to seriousness of bodily injury. 
 
Also, once we are on that train about why maybe it's not okay to imprison people to be and do in the world, it's up to much larger questions that I'm not gonna address in the talk. Great. The other argument would be dignity. Is there something ... Could we think about injury plus a kind of dignity about human dignity violation. Are there certain kinds of practices that are just so affronting to humanity that we shouldn't permit them? 
 
This seems to me very slippery. It can cut two ways. One way it gets argued is that, well, humans have this dignity of these long-term welfare interests of being and doing and we don't wanna have actions that impede that. So one legal scholar, Vera [inaudible 00:34:39], talks about there's no way in which eating and killing someone can be dignified. That's the problem with the German cannibal case. But on that track, it just seems to me like dignity's actually the wrong word. If what you're tracking is ability to be and do in the world, I think it's more like autonomy or self-determination or something less like dignity. And if you go the other way, that dignity means something other than being and doing in the world, like a distinct humanity of humans, then you get into really sketchy deep sex-negative place like criminalizing sex play or race play or Nazi play, or whatever else. That can't be right. 
 
In fact, this one legal scholar, Dennis Baker, does go there and wants to and ends up saying we should both the [inaudible 00:35:26] case, like the gays in the 90s who were nailing someone's scrotum and all this, but also just basically says anyone who's HIV positive shouldn't have sex with anyone who's HIV negative because it would affront the dignity of the HIV negative person and that seems like a disaster. He makes an exception for if they might have a child because the child might offset the dignity violation of the ... It's like ... It's horrible and phobic. 
 
I end up in this place where I think, well, how else may we think about BDSM sex? How else might we think about it? I have to say, I'll just be honest, I'm less interested in getting the state in your bedroom than thinking [inaudible 00:36:07] and ethically about sex and kink sex and all kinds of sex. I end up thinking about autonomy and access. 
 
Autonomy, I think of it in a feminist reconstructive way as the capability to be and do in the world with debt to Jennifer [inaudible 00:36:28] and Martha Nussbaum. And access is taken from disability studies. What is the kind of world building necessary to make the world more accessible to sexuality, to intimacy, to pleasure and sexual experience? This is the conclusion of the book. I'm not gonna talk about now, but it's not for nothing that autonomy has lots of skeptics in the disability studies world and access has, rightfully, a lot of skeptics in the feminist [inaudible 00:36:53] world and I think if you can reconstruct both from the school and the other, you can get to a happier, sex-positive place.
 
And as for kink, I think autonomy and access help resolve two contradictions internal to kink literature and activism itself. That first contradiction ... Williams, this guy Williams and his colleagues write about deep consent and so what they mean by deep consent is you're in this intense dom/sub scene and the sub says that he or she wants to do something totally wild and you decide that deep consent is not honoring the sub's wishes, like cut my face off or cut my legs off or something.
 
What they call this is deep consent. Pretend yourself as the future ... This is my [inaudible 00:37:43] language, not their language. Pretend yourself as the future self of the sub you are flogging and stop playing if you think that future self doesn't wanna do that. What's wild to me how magnetized they are by consent. This is paternalism. There's nothing about ... There's not any deeper consent. It's just not being an asshole, like don't cut a person's legs off. 
 
I think autonomy, insofar as it's the capability to be and do in the world, may get at that problem more than consent. It's respecting this person's autonomy and their ability to do in the world. There may be a way counterfactually or unexpectedly that you are respecting this person's autonomy more by not indulging this serious impediment to their being and doing in the world.
 
The second contradiction as you'll read in all these ethnographies ... There's always a section in every kink ethnography about how non-consent is really hot and it's not just the, "We're not gonna have a safe word." It's like, "We are gonna have a safe word and kind of I want you to flout it, too." What's interesting to me about this is in those discussions it's always like this person is known for playing dangerously or is known to live on the edge. Playing on the edge is one of the ethnographies, Stacey Newmahr. 
 
Of course, what that means is this is the kink community. People know each other. People trust each other. There's a story there. People go to that person because they know that person is gonna play on the edge, but is not actually a sociopath or a psychopath. I think, again, when you think about you want access to something that maybe you can only intimate or near or approach by thinking that your sovereignty is suspended, thinking you're deflating your sovereignty, your consent capacity, whatever. That's great, but we also know that that kind of access only comes with a certain antecedent trust or knowing who the people are that you're playing with.
I don't think these arguments are bulletproof, but I just think that autonomy and access gives you more running room and is more honest than consent is. Oh, no. That was a little joke. Wait, okay. See, there it is. Okay, you just saw it.
 
That's kind of the point I wanna leave with. I don't think consent is everything. I don't even think you think it's everything. I think we end up stuffing all our ... We stuff too much of our politics and our aspirations into making consent really, truly mean something when there's a much larger conversation to be had. 
 
As for the tea, you don't know what kind of tea you want or how hot you want the tea. Or you don't even know if there are other teas for you to have. Or if you've only had really bad Lipton bag only education, then all you think out there is Lipton. You can make the connections yourself. I'm thinking about [inaudible 00:40:29], the sex ed guy, who talks about ... The Ted talk about we should think about sex as pizza, not baseball 'cause pizza comes with so many opportunities for different toppings and ways to share and baseball is just prerouted. There's just first, second, third base. 
 
I think all of that doesn't get captured by consent talk. Also, to think about on campus. Thinking about Vanessa Grigoriadis' book Blurred Lines. Most college students don't have that much sex at all. Something like ... Don't quote me on statistics, but something like 80% have sex like five times or less than once a semester when they're in school. And 20% are part of what everyone calls hook-up culture. Those 20% ... Students aren't good at sex, by and large, and they're not enjoying it and particularly women aren't enjoying it. Over and over, in every report, women report lower levels of sexual satisfaction and sexual pleasure. 
 
The question, following these professors at Wash U, Susan Appleton and Susan [inaudible 00:41:25] are like the ones who aren't having it, maybe they should be having more. Why aren't they having sex and the ones who are, why are they signing up for bad sex? Is it bad for sex that social life on campuses are so controlled by boys and frats? Probably yes. These professors at Wash U talk about these sexologists in the 70s, Phillip and [inaudible 00:41:47], who came and led these workshops on sexual communication and sexual health and provided lots of gynecological and medical resources. Of course, I know that that exists at Berkeley and that exists all over [inaudible 00:42:05]. These sexual literacy programs and ... I think this didn't get into the newest version. It doesn't matter. 
 
But I think they're often seen as downgraded or of lesser importance than stopping rape and I think we're separating them at our own peril and that they both contribute to immiserating sexual culture and miserable sexual culture. 
Consent as a term of law is unnecessary and insufficient and I think we should let the law have it. Oh, right. This is a good time to say I am a big believer in affirmative consent standards. I think law and sexual misconduct policies should have it. [inaudible 00:42:43] to debate affirmative consent standards. I just think there's so much more than sexual justice politics can and should be doing. What is the sexual culture to which we aspire and how do we get there? I'll leave that there. Well, thank you. 
 
This is a very, very truncated set of sources if you're interested and also I didn't have room to write in the title after the colon, so it's also a bad list of citations, but there you have it. 
 
Juana María Rodríguez: You gotta give us all a minute to ...
 
Joseph Fischel: Yeah, yeah. Take your time. [inaudible 00:43:20] go for it.
 
Speaker 3: Thank you very, very much for your talk. I was wondering if you could speculate about two things actually. One, I'd like to talk about drugs. They come in a little bit in your story and I'm wondering how the capability to do and be in the world would intersect with the use of drugs, the strange vacations we take from volition, addiction, addictive behaviors. Trying to understand what it might mean that this group that frolicked with horses was on drugs and so how can we wrap that into the permissibility of alcohol versus other kinds of things.
Then a broader question is if you could speculate on the obsessive rationalization or legitimation of taboo. We're talking about taboos and we're talking about struggling to try to justify what seems like something that you can really justify or the obsessive rationality of something that's highly irrational. Just don't be an asshole. How do you argue for that? Yeah, thank you. 
 
Joseph Fischel: Okay, cool. To go backwards for a second. I do think that kind of just don't be an asshole, I really do think there is an ethical case to make that maybe is more successfully banked in autonomy than in consent about not listening to the sub's wishes when it just goes too far. The fact that there's always lines to draw, it just doesn't mean you don't draw them. We just figure out what's maybe the defensible way to draw them. I can come back to that. I realize that's not totally satisfying answer.
 
But the question of drugs, I just ... I'll come at this in a roundabout way. I just read Shaka McGlotten's Virtual Intimacies, which is a beautiful book, but ... No. He links this gesture of getting how it's all gonna be post-identitarian and we're gonna think of intimacy in these crazy, queer, beautiful ways and it's kind of just a book about gay men, which is fine. I get it. He's an anthropologist and there's also a lot of auto-ethnography, but what he doesn't canvas is why is there no lesbian Grindr. Why is lesbian Grindr a joke when people talk about it? And what do we do that public sexual culture is so often male and gay male dominated and I think that's not an unrelated question to drugs and alcohol.
 
What I mean is ... I ended the talk being like, "No one really talks about the fact that mostly women aren't enjoying the sex that they're having on college campuses and I think that is inseparable from the problem of sexual violence. The problem here is ... The problem with frats and bad sex is that we're consenting to it, not that we're not consenting to it. So why are we consenting to it? So, wait, drugs.
 
Right. But how do you square that and square sex-positive commitment that doesn't just look like, "Yay, more public sex. Yay, more hook ups," because that's also used to be kind of part of the gender-asymmetric problem, so to actually get to drugs: there's this interview with Foucault where he says, "Do more drugs." And that we should all be doing more drugs. The issue is we should be doing good drugs and he also connects it to taboo and to fisting and to BDSM. There's a whole world of sensory pleasures we should be exploring that get drummed out of us or beaten down when it's just like P and vagee. Okay, that's from Superbad. That's not from Foucault.
 
But I was reading it and thinking, given the world of sex inequality, do a lot of drugs can't be equally heard or something or universally mandated, which doesn't mean that men aren't also victims of sexual violence. I think in a utopic world we should be playing with drugs and alcohol in ways that American culture tends not to allow you to, except sometimes now it does for some people. I think that would be less of a question if we weren't so focused on binge drinking and getting totally, totally schnackered, I'll say, as my friend, Maggie, used to say. 
 
Experimenting with drugs seems to me less of a problem than cultures that incentivize getting as wasted as possible. 
 
Speaker 4: Question I was kind of thinking about the whole talk that you broached a little at the very end. If we accept all these problems with consent, which I'm fully on board with. I think you're right. I'm glad that you say that you still think consent is important. Where does that leave us? How do we determine ... I think your cases are all the cases where it's clear that consent doesn't work. What about the gray cases? How do we determine, okay, what metrics do we use? How do we operationalize this?
 
Joseph Fischel: Okay, hold on a second. Wyoming ... Okay. Got it. I say in the intro to the book, insofar as what affirmative consent standards are is like one degree of silence and acquiescence, I think it's fine. I think it's not ... And I don't think it's gonna change very much either the small subset ... In terms of we'll just talk about ... Indefensibly, I'll just talk about university life right now. In terms of university life, I don't think the affirmative consent standards will change much. The sexual violence perpetrated by men who are on a mission. I'm not sure affirmative consent will do anything about targeting people and getting them drunk to have sex with them.
 
I also don't think it'll change much about regrettable, unwanted, crappy sex that you're like, "Why did I do that?" I think it will change, it could change, the very, very few cases that are like, "Actually, I thought this was consensual and it wasn't." Most of the data is like that is not the case of sexual misconduct. There is some though and this is anecdotal, but I think this is interesting. Vanessa Grigoriadis brings this up in her book where she says here's one of these gray cases that nine activists don't like to talk about because nine activists want it to all be like, "No, it's all about these serial rapists on campus." Which that might not be true. 
 
Her example is they're both virgins and okay ... [inaudible 00:50:12] They're both virgins and they're gonna have sex and she says, "Can you put a condom on?" And he says, "Sure." And then he loses his erection so they stop with the condom. She goes down on him, then he gets hard, and he turns over and has sex with her and she doesn't say anything. She doesn't say yes, but she then files a complaint because there was no condom and so she consents to sex with a condom. Grigoriadis [inaudible 00:50:36] an example of he really thought there was consent. She really didn't. I don't know where I land or if you guys care where I land, but I'm kind of like i don't care that you're a virgin. She obviously wanted the condom. Put the condom on. And if affirmative consent is gonna be the difference in that case, I don't know. I'm kind of okay with it. Do I think that he should be expelled? Probably not. I don't think he was expelled. 
 
I think insofar as that's gonna be the cost of their affirmative consent standard, I'm willing to take the cost, given the extant costs now. I just think in terms of activism and transforming sexual culture why keep talking about it even though performative contradiction, I keep talking about it. 
 
One reason is phenomenological, which sounds like I'm being jargon-y, but what I really mean is I do fear the thing of people transforming bad or unpleasant sex into feelings of sexual assault and I think there is ... In these brochures, these student life brochures across University of Wyoming, University of Southern Georgia. There's a whole bunch where these manuals say, "Consent is mutual imaginative, creative, sober." All these things. If you don't have consent, it's sexual assault, capital S, capital A. As Laura [inaudible 00:51:53] says in this book, everyone is then a rapist. That's actually true. 
 
So Jeannie Suk and Jacob Gersen do this article called the Sex Bureaucracy where they use these quotations and they say, "Isn't it crazy? Everything's totalitarian now. Everyone's a rapist." Okay, so I call all those universities and I was like, "Do you actually use this in your sexual misconduct [inaudible 00:52:12] or do you use the policy in your sexual misconduct policy?" And they're like, "No, we use the latter one. This is best practice for consent." But that still begs the question why are you still calling this consent? Just call it mutual, sober, fun, imaginative, creative sex. Don't call it consensual or not because I do then fear ... That is my fear that if we keep holding onto this term and wanting it to do more than it does ... If you send out literature after literature that says anything less than rockstar sex is sexual assault, then I do worry people will actually feel violated. Not like they're lying, but they're actually feeling it. [inaudible 00:52:50]
 
I don't wanna diminish the problem of unwanted, bad, or mediocre sex. It's just to say in order to address that problem I think we need to think of the problems of consensual sex. I should give a shout out to Robin West, who also [inaudible 00:53:03]. Okay.
 
Speaker 5: I think there's something curious about this desire to punish. Rather than promoting pleasure, or having a pleasure-based sexual education, what we have is a punishment-based sexual education of what we're not supposed to do and I'm thinking that there is something BDSM-y about this, like this kind of desire to punish.
 
Joseph Fischel: Yeah, it's also racialized. I don't think that [crosstalk 00:53:43] our intensity about football.
 
Speaker 5: Yeah, but okay ... And I did hear you say that you wanted to ... I know it's wrong, but I like to watch boxing. But if you're going backwards and saying that football should be illegal, are you also saying that kink should be illegal?
 
Joseph Fischel: No.
 
Speaker 5: Okay, just checking.
 
Joseph Fischel: [crosstalk 00:54:14]
 
Speaker 5: Without boxing. I understand it's wrong.
 
Joseph Fischel: Because I'm more interested in social transformation than making a law, I don't actually ... That's not my ... My real issue is how willfully ignorant are we going to be to this practice in our midst and I think 99.9% of kink is not injurious, does not impede your ability to do or be in the world. I think those cases are phobic and kind of terrible, but I think the BDSM scholars bring up those cases and rarely do they ever bring up the cases of ... Well, there's a whole bunch of cases. [inaudible 00:54:58] is one of them where it's like, well, she liked it rough and I think we don't need to take that seriously. 
 
About the punishment point. Yeah, I think you're right and then the question's a harder one, which is both material and an affective level how do you transform the will to punish into more creative and hedonic? One of the places I go to in the book is we should not abandon the notion of comprehensive sex education, especially now. Trump has already scaled back something like 88 million dollars of funds on comprehensive sex education programs. That should be part of ending sexual violence politics, thinking about that. 
 
Thinking about queering sex ed rather than bullying laws. [inaudible 00:55:57]. And it's not for nothing, Elizabeth Bernstein, carceral feminism, the other will to punish, I think, if there's a historically materialist answer to that that's like when the welfare state drops down there's nothing left and there's no hope in a kind of ... The notion of the collective imaginary is done. What are you gonna do? You return to punishing individualized bad guys or whatever. That's depressing. You have a question? Oh. [inaudible 00:56:25] Same time. 
 
Speaker 6: Hi, Joe.
 
Joseph Fischel: Hi.
 
Speaker 6: I have two questions about your football metaphor actually. One is about the ways in which your critique of football seems to operate solely on the scale of harm. A crude question is what about pleasure? If we're gonna talk about football as a metaphor for sex, what about pleasure? The other question is a more pointed one, which is that I take your critique of the ways in which the commercialization of football is a matter of particular kind of fetishization of the black male body and access to that as a kind of [inaudible 00:57:07] pleasure that also enacts a particular kind of violence. My question is where is race in the rest of your critique? It seems to me it appears on the body of a black football player, but doesn't seem, at least in this telling, to be a pertinent concern when we're thinking about things like the weird ways in which particular kinds of sex acts are criminalized or the fact the first set of cases you showed us are very much about legal cases that were probably in some ways mitigated by the fact that the defendants were white.
 
Joseph Fischel: Right, right. Okay. As for football generates pleasure, too, the thing that I wanna say is so offensive. I mean, so do a lot of peculiar institutions. Doesn't mean they're okay. Hey. I'm gonna ask why is football so popular in the south? I don't know if the fact that it generates some x degree of pleasure means it's legit. I also say in the process of writing this book I actually ... and I don't even mean this to be morally righteous or ... most of America likes football. That's kind of the problem, so I'm not trying to make you feel bad. As I was writing this, I couldn't even be in the room anymore with my family watching it. I'm just like, why are we all signing onto this? These people are destroying each other and just making bank for the people who own the teams. I'll stop ranting about this. 
 
Yes, I think we need to be very careful. What a lot of Janet [inaudible 00:58:58] folks have done to raise the alarm around nine activism is to say this is all gonna be racialized. If we have an affirmative consent standard, it's gonna be black students who are suspended and expelled disproportionately, so there's not yet data on this, in part because all of these trials are too secretive, which is a part of the problem. I think there needs to be data on this and there needs to be data in California about how this actually pans out. But as Steven [inaudible 00:59:26] has written and I kind of agree that we are all under a racist system of criminal justice doesn't mean you don't have laws. You just have to have better laws. The fact that laws are racially enforced doesn't ... You can still think about which laws are better than others and I kind of think in affirmative ...
 
The options that we would have for sexual assault law are force, consent, and some wanna go to desire. So force is terrible. Desire, I think, is terrible, too, because who of us unequivocally desires the sex we're having. I mean, I know I do. And then the consent standard that's seen between activists [inaudible 01:00:07] fear or some degree, some indication of preference for the sex you're having, even if you don't desire it. I kind of wanna [inaudible 01:00:16] that we have the least crappy answer. I think consent's a crappy standard. The least crappy standard, I think, is an affirmative consent one. That doesn't mean that it won't be racially enforced, but I just think that's a ... I hate saying that's a different problem, but it's a different problem.
 
There was something else I wanted to say about this, too. Oh, it comes up also with mothers' boyfriends. Black families look least nuclear. The problem with saying, "Oh, we should be paying attention to mothers' boyfriends," is there might be a racial ratcheting up. That's a problem and I don't quite ... and I say in the talk I don't really know what to do with this problem. We should focus on vertical relationships, not horizontal relationships. I don't think the criminal law should be there and we should think about coaches and students, teachers and students, and intimate partners and their children more, but I think we have to do so really, really carefully and gingerly. I think that's not a satisfying answer. It's still sort of like if the law's gonna be there, which law are we gonna have? A horizontal regulation or a vertical? You. Yeah, thank you. Yeah?
 
Speaker 7: I guess [crosstalk 01:01:43]. I did play football and I do come from the south and I will say that when I was growing up as a queer child football was almost like the ultimate form of kink and it was a form of BDSM because in many ways when I was growing up it was unregulated, it was as it is now. I guess I'm curious about the question of pleasure because one could actually say that consent itself is a very contemporary term and I'm curious about consent itself and how you're reading it historically and thinking about it 'cause I wouldn't say that I had consent in playing, but perhaps that was the only vehicle and option for a black kid at the time. I guess I'm just curious about how you're thinking about sports culture at large in terms of pleasure and particularly for the black body in particular, but also maybe there should be a different word to think about it when you're thinking about it in a racialized way. I guess I'm just curious about how you're engaging with that word.
 
Joseph Fischel: That's great. I will say that, hyperbolically, I think that consent in sex law, I think is historically as much about race as it is about sex. Estelle Friedman's is a great book and it's called Redefining Rape. That consent was really more about status. Who was the kind of person eligible for consent [inaudible 01:03:22] and who wasn't and that was so thoroughly racialized and also about were you married or were you chaste. 
 
My sister's friend the other day asked me like, "Gender studies professor, what do you think about male circumcision?" And I was like, "I don't care. I think more about football." Like I said, if what you're caring about is non-consented to injury, then let's talk about high school boy football. The fact that it has even fewer regulations than the NFL, 'cause now there are all these sort of amped up regulations as a result of people being public about that fact. 
 
I don't wanna be anhedonic. I don't wanna be anti-pleasure. There's lots of beauty in team sports and competition and I think ... This is I'm trying to be a little Polemic here. The book's a little more careful and says reorganizing football rather than trashing it. I think there are lots of ways that you could think about reorganizing the sport that just doesn't seem so injurious for so many people.
 
Speaker 8: I was thinking about Jill Wienberg's work, lot of resonance with yours. You probably know this, but basically see if I can summarize her argument that comparing BDSM and MMA, that MMA, the law says you can consent to this. Sort of what you summarized for us that and because of that you don't even think about consent. Nobody thinks about consent in mixed martial arts. Nobody thinks about consent in football. It's not a question that comes up at all. In BDSM, there's this whole sort of ritual around consent. Very elaborate. I guess I have two questions thinking about her work in relation to yours then. 
 
One question is we could draw from [inaudible 01:05:22] this idea that once the law says consent is okay, we don't even think about it and it becomes okay [crosstalk 01:05:30]. Is that part of the problem that you're pointing at and then how do adding in your concepts, how do adding in autonomy and access serve as a corrective to say even if there's consent, we still need to be thinking about sex and if it's okay because consent isn't capturing everything going on. And we also have the same potential problem even if we add these in of ignorance once we've said it's okay. 
 
That's one question, the problem of once the law says it's okay, we forget about consent. Then the second question is autonomy, that's often thought of as this individual concept, very individual. I think part of what Jill shows us is that the group dynamics, the group norm of BDSM are part of what makes consent work in that context, that is so ritualized, it's so understood. I think you point is okay, there's some maybe problems where consent doesn't solve everything for BDSM, but in many ways I think she's showing us, okay, the problem is not consent because it is so ritualized there. I wonder if autonomy doesn't capture all of that because it's something of an individualized concept. 
 
Joseph Fischel: Okay. Right. I am trying to think of ... There's this sort of big, boring part of the book where I'm thinking about how to make a feminist reconstruction of autonomy that's relational, not individual. I'm tracking through Kant to [inaudible 01:07:16] to Jennifer [inaudible 01:07:17] and Martha and thinking about sexual autonomy as a capability to co-determine sexual relationships, which I think is a different, but contiguous definition so it's not like I'm just making it up.
 
Speaker 8: Can you say that again?
 
Joseph Fischel: The capability to co-determine sexual relationships, I think I say somewhere in there. Which also Kantian scholars divide between personal autonomy and rational autonomy and that rational autonomy was the thing that I'm talking about as a capacity issue rather than just choosing itself. BDSM, Weinburg, kink. One of the things ... Maybe I'll go backwards. It's a little bit scattered because I'm jetlagged and a little sleepy, but ... 
 
One of the things that kind of concerns me about consent is sexy is that read most literally it almost feels like it's encouraging people to consent. It'll be sexy if you consent. That sounds like I'm being silly, but it's part of a larger problem of ... Part of a larger project is asking people why do we consent to this and do you want to? The way that sex positivity can too quickly convert into, "I should be fucking 'cause that's cool." Maybe it's not cool. Maybe you wanna have a much longer, more careful conversation about what's gonna get you off and the things that you're doing and whether it'll be enjoyable or not and I don't know if all of that's captured under consent. 
 
I will say with Weinburg's interviews and everyone else's interviews ... I should have said this earlier that I just want to acknowledge that fetishization of consent within BDSM culture is really about political branding to non-kink people. That whole story of safe, sane, and consensual was a messaging thing to not get arrested. When you actually ask people, like kink people, when you read what they write about what's great about kink sex, it's not the contract. It's about transcendence and sensorial experience. Whatever. It's about all the ways that sex is great plus kinky stuff. 
 
I just think that's sort of important to recognize. David Stein came up with the safe, sane, consensual he thinks, which is funny. He's like it's always supposed to be a starting off point and then it became this bumper sticker thing and he's like, "It kinda just seems basic. That's not what kink is about, but we have to tell people that's what it's about so they wouldn't get arrested." I see the point of ... It was strategy also. I don't think I really answered your question, the first question.
 
Speaker 8: I guess ...
 
Joseph Fischel: Does the law mystify power relationships once it's said the relationships are consensual? Yes.
 
Speaker 8: No, I guess the question is ... The problem is we say there's consent and therefore it's legal and we stop thinking about consent. Is that a place where you're making an intervention? That autonomy and access, as you were saying. We can't just stop at consent.
 
Joseph Fischel: Yeah, this came up at dinner [inaudible 01:10:27]. I keep coming back to the extent that any academic intervention makes any kind of intervention, it's more about I think I have this naïve belief that changing structures of thought changes the world we inhabit so I'm actually less concerned about ... Our friend Nico was like, "But is it really that big a deal? How many kink sex practices actually involve serious impediments to being and doing in the world? Do you really want the state to go and criminalize that?" I'm like, no, but ... 
 
I'm less interested in autonomy standard in rape law, which all these legal scholars talk about as if rape law is governed by an autonomy standard. I interviewed a state attorney once and she was like, "What is autonomy?" She had no idea, which is a sort of metaphor for the gap between legal scholars and practitioners. That's not the aspiration. The aspiration is to say let's think more carefully about the kind of sexual culture we're aspiring to and the ways that consent doesn't get us there, it might even truncate it. 
 
Speaker 9: I had a question. In the end you said that we should be aiming for a different sexual culture. I guess to put it in a simple grandmother hypothesis to someone who hasn't been to this presentation, how would you conclusively say that we should aim for a sexual culture that is inclusive of different values and inclusive of different types of individuals moving forward?
 
Joseph Fischel: Right. I think what is partially appealing about consent talk is that it looks like it's politically liberal. Everyone has their own conception of the good. You do you, as long as it's consensual. That's cool. I don't think we really subscribe to that. I think we have values. We should compete with those values and I should make a convincing argument to ... Throw my pen at you. Argument to sex positive culture. Do you come from, say, more conservative religious backgrounds that a sex positive culture doesn't mean everyone needs to be just running around fucking all the time. That it might just mean having more access to sexual health and sexual information and Stanford now has Plan B in vending machines or whatever. Having resources available.
 
And to suggest that this makes for a healthier, happier community and I think that's more honest than just saying consent, consent, consent, consent, consent. The Susan Appleton [inaudible 01:13:10] make this good case, which is on the one hand looks so fantastical and crazy to think that we're gonna have state-sponsored, university-sponsored workshops about how to use, I don't know, various sex toys or finding your clitoris or that kind of thing. But they're like, look, the federal government's been involved in sex education since day one. They've done it terribly. Most of the kids in college now had no or factually incorrect sex education that subscribed to the most horrible gender norms. 
Let's just think of these workshops, these find your clitoris workshops, as corrective to all the crap that you had to get one through 18. Then it kind of makes more sense. Does that sort begin to answer your question?
 
Speaker 9: Yeah, I was just thinking like public policy measure that would be different we implemented from the now what you're trying to get to because there is sex education and schools, although it's not entirely conclusive of what they're sex is and what it isn't. I'm just trying to see how could people be more informed to get to cultural change that you're trying to argue that should be more.
 
Joseph Fischel: One of the things that this guy, [inaudible 01:14:21], says the right new quickly to get on local school boards and to control sex education curricula and we should be there and helping dictate more seriously comprehensive feminist, sex-positive sex education programs. I think here it is a question of resources and what's available and also I think in terms of both medical and biological resources and discussions about sexual health and sexual communication. And, again, I know those things are happening here so it's not reinventing the wheel. I think the Grigoriadis book, she has a lot of right things to say about it cannot be good for sex or sexual violence or humanity that so much of life on campus is controlled by frats and that's where the alcohol is and that's where social life is. Desegregating sex spaces is another thing that I would suggest. I kind of feel like slamming frats and football at Berkeley is maybe not the best idea, but [crosstalk 01:15:28]
 
Speaker 9: I think it starts before you go to college because when you get into college, it's difficult to implement mandatory workshops that require others to listen to information. I think the type of information you're saying to get into college is people wanting to go into the workshops of their own will. I think if it's something you're trying to implement for students to know beforehand it probably might be a better measure to do it before [crosstalk 01:15:56]
Joseph Fischel: Yeah, probably. 
 
Speaker 10: Biomedicine and the law seems unwilling to engage in conversations about pleasure. 
 
Joseph Fischel: Right. And for the most part animal rights discussions. And also disability discussions. Michael Gill's book Already Doing It talks about how there is sex education for disabled folks, but it's all about reducing the potential of either their violating someone or someone violating them and boundary and circles program and they know what you can and can't touch. Of course, some of that's necessary and also what gets lost and you don't even acknowledge the possibility that maybe this person wants to get off and how could they do so safely. 
 
This book, Loneliness and Its Opposite, is just an amazing, it's an extraordinary ethnography of sexual assistants helping people in Denmark. Helping people with significant disabilities have a sex life and have a sexual community. Yeah, the Ornstein book is great. What's so good about the Ornstein book is just the reminder that these things are not transhistorical and always true. It just does not need to be a fact that college campus ... That we live in such a sort of a sexually violent and unequal culture and that norms of masculinity and femininity are so enerbating. 
 
I'm gonna cite this badly, but another great Grigoriadis book was date rape starts skyrocketing in the 50s after the GI Bill and then there's a different version of masculinity that showed up on campus and different purpose of the frats. As in, it wasn't always this way and I think that's an important thing to remember. I also think maybe football doesn't need to always be this way. 
 
Juana María Rodríguez: I think we need to maybe let you breathe. Thank you so much for a really fabulous talk.
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