Why is ‘consent’ problematic in incidents of structural violence?

A reflection on the changing nature of relationship dynamics in the workplace.

Saumya Pandey
29 May 2018

NY Daily News and NY Post on Tuesday, May 8, 2018 report on allegations against New York State Attorney General Eric Schneiderman. Richard B Levine/Press Association. All rights reserved. There are many examples from the recent past which show that consent as a mere verbal ‘yes’ or ‘no’ has very little value in incidents of structural violence. Structural violence is embedded in the practices of our everyday conduct and relationships. A dependence on consent for justice only ensures that violence continues without any possibility of recognising it.

Take the example of Eric Schneiderman, the New York attorney general, who resigned earlier this month after four women accused him of physical abuse. In a statement, he said that he had been engaging in role-plays and that all his intimate relations were consensual. The concerned women, however, disclosed that they were beaten, slapped, physically abused, choked and one of them alleged that Schneiderman called her a “brown slave” and “his property”.

There is a possibility that relations, such as the one stated above, are consensual, but it is important then to question the nature of this consent. I say this because in India we have only looked at consent from a legal perspective that medicalises it. The use of medical techniques to determine consent, especially in the case of rape trials, traditionally relied on arbitrary – and intrusive – medico-legal  processes such as two-finger tests and the virtue of women ‘habituated’ to sexual intercourse. Thus, the burden of proof in a rape case was on the complainant. Interestingly, in the amended rape law of 1983, non-consent was presumed in its absence during incidents of gangrape or rape of a pregnant woman, unless the defendant could prove otherwise, therefore, shifting the burden of proof on the accused. As Pratiksha Bakshi notes, however, even with this shift, a simple character analysis of the raped person was enough to dismiss the case and was unquestioned until as late as 2010 when the court upheld that such medical practices violated the privacy of women.

Medico-legal systems have made consent far too simplistic in presuming that people act ‘responsibly’ in consenting. Countries such as Sweden, Canada and Britain do not rely on the archaic medical practices for legal purpose and have outlawed  non-consensual sex, ‘where the lack of consent, even without violence, is enough to constitute a crime’. However, the reliance is still on expressed verbal consent as a condition for defining and thereby limiting relationships.

Recently, a Sydney man, Luke Lazarus was found not guilty of raping a 18 year old woman because there was no evidence that she had “not consented” to the act. I can give similar examples of (lack of) verbal consensus but I want to highlight the working of consent in ‘normal’ everyday relations. What would consent look like in a situation where we do not assume that individuals are fully informed or freely choose their social conduct? During my fieldwork with Hijra sex workers from the Cotton Green area in Mumbai, I learnt that in their occupation, they were coerced to perform sex with clients without money. At other times, they were threatened with a knife for unprotected sex. When I suggested they file police complaints, I was informed that the police did not take their cases seriously. The police, instead, threatened them with imprisonment for engaging in ‘immoral’ acts. One of my Hijra associates said that the authorities trivialised their complaints, as though they agreed to being abused by indulging in the profession of sex work.

Even when dealing with harassment cases at workplaces, there is no definitive way of knowing the relationship dynamics of people involved because often the ‘professional’ becomes the ‘personal’.

Many corporate houses and even social organisations these days encourage ‘personal’ growth and inter-personal relations with employees. During training programmes, the employees are expected to share a moving experience (‘turning point’) from their lives. These experiences, more often than not, have nothing to do with the work of the organisation yet most workplace employers insist that their employees participate in such discussions as a part of their “personal growth” initiative.

Personal growth is a term used to refer to the ‘altruistic’ practices of organisations that seek to help employees realise their individual potential along with meeting  professional goals. In simple HR objectives, it relates to better utilisation and retention of employees. It follows the logic that the more knowledge an employer has about its employees, the easier it becomes to incentivise them to work.

This is just one example of the many ways in which professionals engage intimately at the workplace. An article about corporate socialising last year quoted Dan Rogers, founder of Peakon, as saying, “If you look at how modern office spaces are designed – for instance Google’s or Facebook’s – you will see that they are designed to maximise employee interactions away from the desk”. Very often we hear that harassment cases are filed by/and against people who were involved in a ‘more than professional relationship’, blurring the boundaries on the nature of conduct. I speak from my previous experience of being a student representative of the Committee Against Sexual Harassment, when I say that dealing with such harassment cases becomes more of a blame-game; ambiguity about determining the ‘type’ of proximity shared by the parties; and the rhetoric of what the accused ‘intended’ vs. how they ‘acted’. 

A very common practice used to silence sexual harassment cases is the notion that the complainant’s relative proximity with the harasser diminishes the violence that (s)he encountered, and by raising a complaint after sharing proximate relations in the past, the complainant is fulfilling a personal vendetta.

The lack of discussion about relations of power and hierarchy in the analysis of these harassment cases empowers consent to an extent where it appears as a useful tool to determine and/or prevent violence. I have only referred to a few ways in which the idea of consent and the lack of it create tension in the discourse of perpetual violence. The nature of consent is case specific and what one consents to is problematic. The growing outrage in Indian social media since the beginning of 2018 over incidents of child molestation and abuse show that there is no place for consent when dealing with situations of overt violence. Moreover, though I have not explored the trends in dating apps here, I think digital engagement also affects consensual relations in ‘real life’ and will soon raise more questions on the legibility of consent. We have to shift our attention from consent to what otherwise constitutes as normative in sexual harassment cases. This is not to say that consent does not matter, but to question the extent to which it can matter or be decisive in these scenarios.

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