“Do I Need a Contract to Kiss You?”: Consent, Incapacitation, and The Ethics of Sex

Kissing . . . is the sign of taming, of controlling the potential—at least in fantasy—to bite up and ingest the other person. Lips, as it were, are the next thing to teeth, and teeth are great educators.

—Adam Phillips, On Kissing, Tickling, and Being Bored: Psychoanalytic Essays on the Unexamined Life

The question, “Do I need a contract to kiss you? ”¹ foregrounds contemporary anxieties over the ethics of sex and the law’s relationship to sexuality. At stake is not only the question of consent—What constitutes it? Who can give it? And under what conditions?—but also the role of legal and social systems in the making of psychosexual relations and subjects. Humans are not the only animals to engage in oral eroticism (as chimps and orangutans readily demonstrate), but we are perhaps unique in our capacity to make oral eroticism meaningful—that is, to make it signify. Part of growing up in Western culture involves learning how to kiss, and learning how to make kissing signify. It is well known that children sometimes practice kissing on their hands (autoeroticism), and occasionally with schoolmates of the same or a different gender (alloeroticism). From this point of view, an education in kissing is an education in what bodies can be and can do; what the dominant culture deems acceptable and unacceptable; the shifting and permeable boundaries between self and other; and the discourses and practices of consent. It is, in other words, an education in subjectivity and sociality, their forms and limits, but it is also, as Adam Phillips suggests in the above epigraph, an education in sociality’s predilections toward violence.

I mean “violence” in at least two overlapping senses: first, physical violence, exercised by one person or group upon another; and second, the violence, both literal and figural, the social order enacts on those populations it designates as abject, precarious, and, ultimately, less valuable than others. A contested strain of contemporary queer theory has attempted to register the ways in which sociality constitutes itself through compulsive attempts to excise, in the name of an imagined future and an imaginary child, those figures it posits as outside, and thus antithetical to, the logic of “reproductive futurism”: namely, the queer, the nonnormative, the destitute, the nonproductive, and the nonreproductive.² It is worth noting in passing, and without collapsing important theoretical distinctions, that other strands of critical inquiry in the interdisciplinary humanities and social sciences have thought about these forms of violence using different terms: in the language of Derridian deconstruction and Spivakian postcolonial critique, eating the other, autoimmunity, or the foreclosure of the native informant; in women of color feminisms and queer of color critique, the marginalization of nonnormatively raced, sexualized, and gendered subjects; in disability studies, the pathologization and stigmatization of people with disabilities.³ Drawing on these traditions of cultural theory, and focusing specifically on the privileged context of student life in the contemporary American university (the audience this essay was originally written for), I will argue in what follows that sexual consent is mediated in complex ways by sociality and its violences. The question I want to pose is: How does sociality incapacitate certain subjects, limiting their capacity to practice freedom?

Though readable as a playful jab at the culture of “political correctness” on some college campuses, the question, “Do I need a contract to kiss you?” can also be read as a query about how to minimize unwanted violence through the articulation of an ethical approach to sex. In United States law, the presence or absence of consent defines the difference between consensual sex between adults and rape or sexual assault. Legal practitioners generally distinguish among four forms of consent: verbal consent (saying “yes”), nonverbal consent (as in, giving a nod), informed consent (where a person has all the relevant facts and information to make a reasonable decision), and implied consent.⁴ The latter is highly controversial, as it is form of consent that is not explicitly granted by a person, but is rather deduced from a person’s action...