Consent is Not Enough: Harvey Weinstein, Sex, and Human Flourishing

In a breathtakingly rapid turn of events, Harvey Weinstein has gone from being a lionized kingmaker to persona non grata, as woman after woman has come forward with remarkably similar stories of his sexual predations. The common themes are a bathrobe, an erection, and a private room.

The coverage has focused on the sensational details, but we who are following the newsfeed are in danger, to paraphrase T.S. Eliot, of having the experience but missing the meaning. The legal concern has been, as it must be, whether the women consented, and Weinstein’s own public statements have zeroed in on this point. While not denying the many liaisons, his spokeswoman Sallie Hofmeister said, “Mr. Weinstein believes that all of these relationships were consensual.” His team then deftly shifts the goalposts on this front, moving from an assertion of consent to the inevitable he-said-she-said battle that they hope this assertion will provoke: “Mr. Weinstein has a different recollection of the events.”

The sheer weight of evidence might steamroll this tactic, but the move itself highlights the problematic nature of the contemporary refuge in consent as the seal of approval for sexual relationships. Consent may be the basic minimum needed for legality, but should we really reduce the good of a relationship to its barebones legal status? Surely we can have a richer understanding of love and relationships than that.

The Default of the Yes

The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. We are left with an arbitrary act of the will; it is an empty form with no content. The fixation on consent obfuscates larger problems: don’t we have to start to ask what people are consenting to, for the term to have any meaning? And are there cultural conditions necessary for a woman to be able to give consent?

We swim in a culture marked by what Helen Alvaré has called “sexualityism”—the conviction, springing from the sexual revolution, that any sex with anybody is probably a good thing. In this construct, non-procreative sexual expression is a simple necessity intrinsically tied to human fulfillment and personal identity (according to none other than the Supreme Court). This idea was also analyzed and criticized, in a somewhat different way, by Michel Foucault. A culture of sexualityism is not neutral; in it, the good of sexual expression as an end in itself cannot be intellectually challenged. All that is left is the will: do you choose it, or not? Consent carries the day.

If something is a basic human good, it is unreasonable to refuse it. One might consent not to sleep for obscure reasons of one’s own, but the burden of proof would be on the non-sleeper to defend her decision. I call this “the default of the yes”: it is reasonable to choose a good thing, and so it is expected that one will choose it. Thus has the seemingly freedom-friendly principle of the innate goodness of sexual expression become a weapon to attack the persons and institutions who do not agree. The apparent enshrinement of consent actually attacks the very foundations of consent itself: sexualityism puts a thumb on the seemingly impartial scales of choice. As women have observed about the “choice” for abortion, so too here: what begins as a right often turns into a duty.

This is what we see when we peer into Harvey Weinstein’s hotel room. More than one woman stated that Weinstein did not understand the word “no.” It’s probably more accurate to say he did not find the word relevant.

Lucia Stoller Evans, a college student and aspiring actress, told the New Yorkerthat Weinstein arranged a meeting and then forced her to perform oral sex on him. “I said, over and over, ‘I don’t want to do this, stop, don’t. I tried to get away, but maybe I didn’t try hard enough. I didn’t want to kick him or fight him.” She added, “I just sort of gave up. That’s the most horrible part of it, and that’s why he’s been able to do this for so long to so many women: people give up, and then they feel like it’s their fault.”

What clearly emerges from the scenes in Harvey Weinstein’s room is that he did not feel defensive. It is the women who feel the onus put on them. Here we see how the burden of the “default of the yes” complicates the matter of consent. Is it consent to dress provocatively? Or to say no, but to give in? Or to keep saying no, but stop short of physical violence? How much refusal outweighs the default of the yes?

This is the web in which Weinstein’s victims find themselves entangled, at the very moment when they need all their wits about them. “The thing with being a victim is I felt responsible,” Asia Argento said. “Because, if I were a strong woman, I would have kicked him in the balls and run away. But I didn’t. And so I felt responsible.” The horror of the assault is compounded by the postmortem self-accusation, which reveals that the default of the yes shifts the moral responsibility from the perpetrator to the victim.

Putting the Burden on Women and Children

One case of a woman who entered Weinstein’s room and at least figuratively “kicked him in the balls” is instructive. French actress Emma de Caunes followed Weinstein up to his hotel room to get a book he said would be the basis of a movie in which she might appear. After disappearing into the bathroom, he emerged naked and erect and told her to lie down, as so many other women had. “I was very petrified,” she told the New Yorker. “But I didn’t want to show him that I was petrified, because I could feel that the more I was freaking out, the more he was excited.” She added, “It was like a hunter with a wild animal. The fear turns him on.” De Caunes said she was leaving. “We haven’t done anything!” she remembered him saying. “It’s like being in a Walt Disney movie!” “I looked at him,” she related, “and I said—it took all my courage, but I said, ‘I’ve always hated Walt Disney movies.’ And then I left. I slammed the door.”

Why did she successfully escape? Certainly, Weinstein misjudged his power by choosing a woman who was not beholden to him for a job; de Caunes, in her thirties, was established as an actress in France and did not need his patronage. Perhaps because of her independence, she exhibited considerable self-possession and a quick wit that enabled her to put her finger on the psychological dynamics operating in Weinstein’s room. By keeping her head and walking out, she did not let herself get to the vulnerable place where she had to defend her no.

We can rejoice that she was so clear-headed in a situation in which women were reduced to pure “fight-or-flight.” But surely it should not be only the strong-minded and smart who are not victimized. As actress/screenwriter Brit Marling put it, “consent is a function of power. You have to have a modicum of power to give it”—or to refuse it. What about the weak and foolish? My daughters will be warned about the danger of networking with male colleagues in hotel bedrooms, and any female on a college campus should learn to avoid the toxic combination of alcohol and naïveté. That said, should their safety be only dependent on their ability to keep their wits about them in exceptionally stressful situations? The burden that the default of the yes places on them is unjust.

This reality raises the obvious, but often ignored, truth that sexualityism’s assumptions place the most burden on women and children. While men are certainly sexually harassed and assaulted, the relative disadvantage—both physical and often cultural—of women in rebuffing men is real and has been exacerbated by the default of the yes. Historically, while institutions such as slavery have normalized extramarital sexual activity, the weight of the culture provided support for most women to say no. As Mark Regnerus has put it, sex was “expensive”—set at the price of marriage, generally. Now sex is cheap, and women are the losers. More: as many of the tragic stories coming out testify, children are the losers too. If the ones who escape unscathed are the savvy and empowered, children by definition are not safe.

The Truth about Sex

What can we learn from this? First, a moral discourse dependent only on consent is insufficient. The web of confusion and guilt that the victims describe—did I refuse enough?—is inevitable if moral action is reduced to X-raying the action of the will. But consent is not an isolated action, distinct from the judgments of the mind concerning what is being chosen. If a grammar of moral good and evil is allowed, then the moral action is not held up by the flimsy support of the will but also buttressed by the intellect: what is truth about sex? This allows for moral responsibility to be shifted from the consent of the victim to the actual choice that the perpetrator made. That is, it enables us to judge that what Harvey Weinstein is accused of is wrong not only because the victimsdid not consent but also and more importantly because of what he chose. In this way, a richer moral vocabulary protects the vulnerable.

Once this richer vocabulary is allowed, the hegemony of the default of yes can be challenged. Not only perpetrators but also sexualityism should be put on trial. Is sexual expression really such an overriding good? If so, what do we make of the women’s unanimous experience of humiliation and anguish in Weinstein’s room? Sexualityism can make no sense of  the reality that sexual crimes reliably cause a trauma that, say, larceny does not.

Sexuality is not simply a matter of something that I have, as though my body is another possession just like my wallet or my car. If, as Gabriel Marcel said, I ammy body, then sexuality has to do with my very person, which has a deep value. To use the language of Pope John Paul II, when a person is reduced to being merely an object for another’s desire, then the experience violates the core of one’s sense of self.

Sexualityism attempts to demystify sexual relationships by making them a simple matter of scratching a perennial itch. It’s the hook-up myth: partners should be able to have sex and not care in the morning, as though what they did the night before was no more intimate than eating from the same buffet line—we are just meeting a need, you know? By ignoring the personal values at stake, sexualityism presents a false picture of sex that empties it of vulnerability. But that was emphatically not the experience of the women in Weinstein’s room, who unanimously related the vulnerability they felt, as if their very persons were endangered.

If sex makes one vulnerable to another person, then it must be more than the single-minded pursuit of pleasure, that idol of sexualityism, for surely pleasure can be jointly pursued without any vulnerability. The gulf between Weinstein and the women in his room is marked on this point: none of the latter use the word “pleasure” to talk about the dynamics in that room, whereas one suspects he would use it freely.

Pleasure is something you get out of a situation; it is something you take. The experience of the women indicates that sex should rather be something you freely give, precisely because it deeply implicates the person. John Paul II would have known how to make sense of their experience, because he recognized that, ultimately, sex cannot consist merely of the pursuit of pleasure but is the intimate self-gift of one to another. Sex reliably expresses this personal self-gift, which is why it is such a violation when something that should only be a free gift is stolen by force.

Perhaps, because of the accumulated testimony to such horror, Hollywood’s long-overdue moral reckoning has indeed come. Let us hope so. At the very least, let us not lose the opportunity to expose not only the brutal acts but also the ideology behind them.

Angela Franks teaches theology at Saint Jospeh’s College Online.

This essay originally appeared at Public Discourse: Ethics, Law and the Common Good and is reprinted with permission.

Rights, duties, and freedom

Carol Reed’s classic film The Third Man, based on a story by Graham Greene, takes place in post-war Vienna where Harry Lime is operating a criminal scheme involving tainted medicine. Lime kills sick people for money.

Money. We all need it, some of us have enough of it, and many don’t. Franklin Roosevelt wanted America to recognize that, beyond the basics enumerated in the Bill of Rights, human beings also have the right to a decent home, security in old age and sickness, and the right to health care and an education. In other words, one’s civil rights need to be augmented by economic rights. Roosevelt’s New Deal was influenced by Father John Ryan, whose tireless efforts for working men and women stands today as an important milestone in the American Catholic social justice tradition. Pope Pius XI recognized his contribution by making him a domestic prelate (a sort of honorary bishop).

But where there are rights, there must also be duties. Your right is my obligation to respect and, according to my situation, provide for that right, and vice versa. My taxes, for example, help pay for Medicaid. Politicians devoted to the individualist philosophy of Ayn Rand disagree and want to reduce the scope of rights, in the famous phrase of Thomas Hobbes, simply to freedom from force and fraud. As for economic security, you’re on your own.

The Christian social justice tradition, however, holds that without a minimum of financial resources, one is inevitably the victim of force. Those who view social justice merely as the freedom of the individual from constraints, with no duty to support the common good, are not that different from Harry Lime, who cheated sick patients out of wholesome medicine to enrich himself. Harry Lime took the direct and illegal route to riches by diluting medicine; today, it is more common to find corporate plunder occurring through legal channels (see, for example, the BBC report, “Pharmaceutical industry gets high on fat profits”.

We are still trying to figure out how society can fairly distribute its wealth so that everyone’s freedom will be enhanced. Movie producers put up an investment so that the artists and laborers can be paid for the work they do. Alexander Korda was the producer for The Third Man and the great showman Orson Welles played the villain Harry Lime. The tension between the artists and laborers who make the film, and the producers who supply the funds is, of course, legendary. Producers want their investment to make money for them while the artists want the financial freedom to create. On the set of Reed’s film, this tension evoked a bon mot from Welles, who told Korda, “I wish the Pope had made you a Cardinal.” “Why is that?” Korda asked. “Because then we would only have to kiss your ring,” Welles answered.

There is a sense in which every human being is a creative artist, intended by God to make something of himself or herself, according to the gifts and circumstances of life. Everyone, therefore, needs the financial basics to achieve the creation that is one’s authentic self, free not only from force and fraud, but from poverty, homelessness and preventable illness. Our kiss should be that of genuinely free men and women.

David Hammond teaches theology for Saint Joseph’s College Online Theology Program.