Migrant Workers and Cucumbers, Blackwater VA – via Bread for the World
This is the germ of an idea, and it’s going to be a bit choppy since it’s not fully formed. Imma pull a Maimonides and ask you to assume that anywhere I seem to be clearly talking out of my ass it’s just because I totally have splendid ideas but I’m not putting them across well. Point them out and I will steal your views and claim that’s what I meant all along.
I know, I know, I’m aiming for that very prestigious publication in Radical Philosophy. I’m sure I’m also rehashing things people besides me have already said; I’m just starting to mull this stuff over, and I haven’t done a proper lit review yet. Take me to task for that when it’s a peer-reviewed paper.
Also, I should probably put a trigger warning here – nothing graphic, but stuff that may be unpleasant for folks to read may come up. And if you’re my parents or something (hi Dad) you may not want to read more because there’s going to be an ill-considered detour into sex work and stuff.
Here are the basics, what “everyone knows.” Bear with me, I’m being pedantic because I’m trying to find my footholds.
There are plenty of things that, normally, I can’t do to you. Kill you, have sex with you, take your stuff, cut into your body with scalpels, inject you with chemicals.
But I can do all of those things if you consent. At least arguably. We might quibble about euthanasia, for instance, but your consent at least morally sanitizes – on the standard theory – lots of things that would otherwise be wrong for me to do to you.
I’ve been thinking about the adequacy of this picture a bunch lately, and this morning my thoughts on it were pricked by reading Hedges’ and Sacco’s account of the conditions for migrant farm workers in Imokalee FL in their Days of Destruction, Days of Revolt. Workers in Imokalee are subject to all sorts of indignities and abuses – low pay, crummy living conditions, sexual harassment, etc.
Some of the stories they tell are of people who are simply not consenting to their treatment. They tell of a few egregious cases in which people were literally chained up, locked in, kidnapped and coerced to work. But even leaving those aside, there are plenty of folks in conditions that are at least pretty grim and undesirable.
One sort of story about those folks would be: but they consented. They work jobs for very low pay, some of them below minimum wage, OK – but no one put a gun to their heads and made them take those jobs, and no one owes them a job. They consented to take a job that someone consented to give to them. They are charged very high rates for sub-standard housing, but that’s what the market will bear. If it’s not worth $50/week for them to live in a shabby trailer with a bunch of other migrant workers, they should find another job.
The standard reply would seem to be something like: but they didn’t really consent. Sure, migrant workers aren’t subject to gun-to-the-head coercion, but the are subject to all sorts of, let’s say, pressures on their decisions that undermine our notion that they’ve consented. Florida is pretty hostile to collective bargaining. Many of the workers are undocumented, and so (reasonably) worry that if they bargained hard they’d just be turned in to INS and deported. Even aside from that, there’re more workers than there is work, which will drive things down to a pretty raw level, in accord with the iron law of wages. Maybe even worse, as Hedges and Sacco point out, because dead workers can be replaced. If you’re desperate enough to be grasping a job that only maybe will give you enough to live on, other things are probably going badly in your life that people can exploit.
I’m becoming less sure that this standard reply is the right one, though. For one thing, it’s subject to a slippery-slope-style response from the other side. OK, the libertarianish person may say, but where do we draw the line? Given their druthers, everyone would spend their days perfecting the pastimes that they have harbored based solely on the fact that they make them smile and sound dope. And then we’d take whatever they wanted from everyone else. Everyone does plenty of things all day only because of some outside pressure to do so, and where do you draw the line between the migrant worker in Imokalee and the office drone working a 9-5 and the professor writing a paper that he doesn’t really care about because he needs to pad his tenure file? COMMUNIST.
For the other thing, well, let’s consider one of the worse things about Imokalee. According to Hedges and Sacco’s informants, sexual harassment is pretty common for migrant worker women. They heard stories that women were routinely asked to give sexual favors to managers in return for continuing to be chosen for work.
Blech, but what about consent? I’m a farm manager, I don’t owe anyone a job, right? I can not pick up a migrant to work just because I don’t like the way s/he looks. Why is it more wrong for me not to pick her up just because she won’t sleep with me? And if she does sleep with me, isn’t it consensual? How is it less consensual than the woman who works long hours in the backbreaking sun so that she’ll get called in again tomorrow?
Blech. I don’t even like working through this position in devil’s advocate mode, but bear with me another minute. Let me bear with myself another minute.
The problem is not that I’m trying to say, “OK, it’s cool beans that women are pushed into doing this.” The problem is that I’m saying it’s not clear that consent lets us make the cut. Consent is usually understood in terms of the presence or absence of pressure, and ex hypothesi the external pressures on the sexual-favor-granting and the backbreaking-labor-doing are the same. If one’s consensual, it looks like the other is (and vice versa, COMMUNIST).
Let me be as clear as I can be once again. I absolutely think that things like asking someone to exchange sexual favors for the privilege of continuing to work is awful and wrong. My concern with consent is that it does not adequately capture the wrongness, and the concept threatens to hide other wrong things. If you read this as “oh, consent doesn’t matter, let me go abuse people” you are getting the message very very wrong.
One way to go would be to infer additional pressure from the nature of the act supposedly consented to. This is, e.g., one way that you might argue against prostitution (or suicide). Even if we cannot point to some external factor that differs between, e.g., the situation of a woman (or man) who goes into prostitution and a seemingly-similarly-situated woman who chooses to do something else, we might think that the mere fact that one has chosen (or “chosen”) to go into prostitution demonstrates that she is suffering from some additional external pressure that invalidates her consent.
Fuck yeah, mostly.
This is a bit of a caricature of the actual argument in the feminist literature, which tends to be able to point to particular structures that provide at least a plausible explanation for why prostitution might be “special,” instead of resting all the weight on the presumed badness of the profession itself. But my sense is that the context of discovery is not too far off from this story – even when we’re looking at issues specific to women, women are subject to all sorts of patriarchial pressures that distort their context of choices that have nothing to do with sex or prostitution. While feminist thinkers rightly decry many of those other things, sex and pornography tend to get special attention.* And it’s hard to avoid it seeming like the deep intuition that prostitution is wrong comes first and theory is built to try to explain and justify that intuition.
If the intuition is correct, this is not in any way an unreasonable thing to do – it’s just part of the standard reflective equilibrium approach to doing ethics.
But it’s also clear that there are theoretical and practical dangers lurking. Practically, it’s easy to not do the hard work of reflective equilibrium and just turn it into rationalization. In this particular case, I worry a bit that if we get too differentially horrified by the sexual favors, we’ll blunt our horror at the other stuff.
On a theoretical level, it’s not clear that consent is doing any interesting work here any more (this is a result that would probably be welcomed by a number of feminist theorists, mind you). We can just skip straight to the badness of giving sexual favors you don’t enjoy.
But now this opens up new and terrible vistas to our gaze.
Importantly, “sexual favors you don’t enjoy” underplays what’s going on here. As Brison puts it, theft isn’t gift-giving minus consent and rape isn’t just sex minus consent. Or, if you prefer something a bit less academic, someone who talks about how cool it would be to have a pill that would make a woman forget that you raped her is probably (culpably) forgetting to include the part of the fantasy where his target is “crying in terror, not to mention resisting.” If we imagine that the women Hedges and Sacco were told about were giving blow-jobs that are exactly like the ones you might get from a woman who’s into you except inside her brain she’s kvetching about it, we’re leaving something out. Even if there’s no overt force, we’re leaving out the look on her face, the act of intimidation to get her to do it, the trauma she may suffer afterwards, lots of really shitty stuff.
But, if we include all of that stuff, two things. First, would consent make it OK? I mean, if we try to imagine the opposite case – sexual harassment plus consent, I’m not sure I can even imagine something coherent. I can imagine things that are sort of like it, like “let’s role-play that I’m a migrant worker…” but that’s different. I’m not being facetious about it being coherent – there’s not clearly any magical moment of “consent” that is distinct from all the stuff that’s different between the overt act of rape or sexual coercion vs. sex. That’s what strikes many people as a bit too rigid about the infamous Antioch College sexual offense policy.** If you talk to a woman (or man), get to know her a bit, invite her to come back to your place, put on some music, talk feminist theory, eventually start making out, she’s enthusiastic about it, etc. etc. the normal “read” of that situation is that consent has been given, even if there is no act of saying “I consent to this.” You can’t have that surrounding pleasant activity and the surrounding awful activity of rape.
Second, why are we even talking about consent? What does “she didn’t consent” add to the badness of what happened?
This brings me back to all the non-sexual stuff about Imokalee workers. I don’t think consent sheds much light on the badness of many of the things that we’re inclined to say are bad because they’re non-consensual. It doesn’t have to be sex. Murdering someone and euthanizing them are typically pretty different things, even if we don’t focus on the moment of saying, “please kill me.”
And I worry that consent is a way of setting up an Agamben-style “state of exception.” We invoke consent precisely when we are talking about evils and abuses of the person. I don’t say that I have “consensual sex” with my wife. I mean, I do, but I just say that I have sex with her. I insist on its consensual nature only if there is some reason I am concerned to prove to you that it isn’t rape. And if that’s the concern, you should probably make your judgments based on something other than my protestations of consent.
Invocations of consent are a sort of ticket into a zone of suspension of the normal rules for dealing with human beings – consent is a “get out of jail free” card for doing things that would normally be wrong. In the case of workers (sex- or otherwise) it is a way of saying, “these horrors are beyond your judgment.” No one invokes consent when talking about my job as a professor. We invoke consent when we’re talking about people with jobs we can’t imagine anyone would want to do, when they are in situations that make us recoil and wonder how we can extricate them. Invocations of consent are aimed at anesthetizing this response.***
BUT BUT BUT BUT FREE WILL!
So far, I’m assuming that there is no important inner act of will. I’ve tried to at least sketch why I don’t think it’s necessary for the important arguments and why it can’t really find a place in them.
I’m influenced here by Brandom’s famous paper, Freedom and Constraint by Norms (sorry for the JStor link, I didn’t find a freely available copy). In a nutshell, Brandom argues that calling something “free willed” is a purely practical judgment. There’s no metaphysical will that you have or you don’t, and we don’t really discover that, e.g., humans have free will but rocks don’t. Rather, we don’t treat rocks as having free will because the most successful practices we have don’t involve free-willed rocks. Ask some stones to build a house versus mortar them together yourself and see which works better.
This applies to people, too. Treat drug addicts as evil-doers who need to be punished and oops, you’ll end up with an endless drug war and prisons groaning under the weight.
As Brandom anti-pithily puts it,
The force of the claim that the difference between the social [the realm of the free willed] and the objective [the realm of the causal explanation] is a difference in how they are treated by some community (by us) rather than an objective matter about which we could be right or wrong is that differences in convenience of one kind or another are the only differences to be accommodated here. (193)
This provides an answer to the “slippery slope” worry about recognizing constraints on consent that I discussed above. There’s no place on the slope between the pressures on professors and the pressures on slaves that we have to stop. It’s just that our social practices become more and more strained as we try to either treat professors as coerced or slaves as free.
But wait. Wait.
Who’s “us?” Convenient for whom?
I think we think we’ve climbed the slippery slope here when we’ve slid to the bottom (maybe it’s an Escher slope?).
The doctrine of consent is a social practice that creates sacrifice zones full of people we want to exploit. If they were full and equal participants in our social practices, we wouldn’t feel strain and we wouldn’t invoke consent. We invoke consent because otherwise our moral practices threaten to inconvenience us – people like me, relatively affluent, male, white, educated, powerful, comfortable – with nausea and horror. Granting that someone can give consent is often taken to be a way of treating them as human, but I don’t think it is. Treating someone as human is how to treat them as human – invoking their consent too often looks like an excuse for not doing that.
This is why I talk about this being some thoughts/notes toward a “political economy” of consent. I suspect that the ways in which we talk about consent and non-consent are generated by and reinforce a particular distribution of power, economic and otherwise. Framing work as inherently consensual lets me eat cheap tomatoes and enlists some of the very people who make do with crappy conditions so I can have inexpensive consumer goods in the defense of my privilege. If we mark out a zone of sex that is not “work” it has as at least a side effect the impact of making clear that the rules of work that brutalize all non-genital areas of the body are beyond reproach.
NOTES BECAUSE OH FUCK THIS IS A 3000 WORD BLOG POST WITH FUCKING NOTES AND IT’S NOT LIKE IT MAKES ANY SENSE ANYWAY.
* It bears noting that the conviction that sex work is (overwhelmingly/necessarily) bad for the sex workers is only one strand of feminist critique on the issue. For MacKinnon, e.g., the problem is just as much that pornography and sex work communicates and normalizes a misogynistic image of women, and thereby harms other women than the sex workers. For many feminist critics of sex work, it would be an evil even if all sex workers themselves were treated well, enjoyed the work, were not subject to any kind of coercion, etc. I’m only ignoring this line of argument because I’m focusing on a different aspect.
** I don’t agree with people who think the Antioch policy is ridiculous. Lots of things that fly in the context of, say, my relationship with my wife are dangerous to rely on with someone you know less well. Antioch’s policy may err on the side of the cautious, and I suspect it was often violated in letter by committed couples, but seem like a reasonable set of rules for a context in which stakes are high, people are prone to pressure, and communication can be difficult. I’d certainly rather be able to appeal to “the rules” to force communication than have people, as we know people do, go along with something they don’t really approve of because they feel awkward standing up for themselves. And that’s even leaving aside things like extreme drunkenness, etc. that the policy would help blunt the impact of.
*** I don’t want to imply that the response is always appropriate, particularly in the case of sex work. If my points here apply to sex work, as opposed to just being partly inspired by reflection on the ways in which it has come under critique and been defended, it would be in a more limited way. I think the question of whether sex work is consensual (as I am arguing it is for all work) is tangential to the question of whether it’s right or wrong. The argument should be over what life is like for the sex workers (and possibly whatever knock-on impacts it has on other men and women). Most people, myself included, don’t have a very clear picture about what life is like for actual sex workers. All I’m saying is a) if we’re going to pass judgment one way or the other, we should do it by starting with looking in detail at what life is like, and it’s probably going to be very different for different sex workers; we can’t short-cut that investigation by making any sort of transcendental argument about the nature of sex. Once we’ve done that, b) let’s not cheat by invoking consent on behalf of people who look like their sex work is miserable for them or invoking secret non-consent on people who look like it’s a good profession for them. I don’t have settled views on how many people are likely to be in either of those categories, and I think it’d be irresponsible for me to have them.