When Brett Kavanaugh is Your Doctor: Understanding Structural Consent Violations

*trigger warning: reference to medical violence, coercion, and sexual assault

A few years ago, a reporter at the Washington Post used the word rape to describe the city’s burgeoning tolls against commuters, and a mostly white advocacy community had an uproarious response. How dare you make light of sexual violence, they asserted, an outcry that reveals itself as ahistorical. She was among a litany of activists not seeking to make light of rape, but rather to broaden where we see its violence at work. Historian and author of “Rape is Rape”, opens famously by writing, ‘rape is a word in flux’. She chronicles how the varying uses of that word have fractured our responses and prevention efforts to combat violent arrangements of power. It is a central theme that the definition we assert is not only relevant but the heart of this dynamic in action. We’ve trained our brains to recognize violence one example at a time, and currently that example concerns Supreme Court Justice Brett Kavanaugh.

Through the power of testimony and community demonstration we’ve seen on a large scale how personal this topic is to many of us, and how unsatisfied survivors are with the minimization of violence and its impacts. What we’ve also seen and maybe haven’t grappled with enough though is consent on a structural level, not only an interpersonal one. To understand this moment as simply a past trauma and not an unfolding one is to resist the broad definition of rape that our experiences include. At the heart of consent is a question of decision-making power. But the prerequisite question involves identifying the power arrangement amongst the involved parties. Is it equally possible to say yes or no? Is decision making shared equally? As we’ve seen in this confirmation the power arrangement in this hearing is not a flat one, meaning the decision-making power isn’t extended to all parties. That is the defining element of consent structurally, because it is what determines what consent gets to mean interpersonally.

When consent is not available to you, your recourse is safety planning instead of choice. How do I contain the harm? How do I use the control I do have? What is my response to this decision? When harm isn’t acknowledged, or a lack of choice is negated, the first harm is the distortion of truth and the believability of that strategic lie. For me the trauma of this hearing reverberated within the sanitized walls of a doctor’s office, and a worldview of a surgeon eerily similar to Brett Kavanaugh’s displayed temperament in its dismissal of harm done.

If authority is a spoil, then so go the spoils to the victor. White male privilege enshrined in white male doctor privilege, where consent is put under a microscope as a concept with little authority. Consent is a one-sided term where the expertise accredited to the doctor, and the need you currently have for their expertise, defend the judgment of your doctor about what is best for your body. There isn’t a requirement of consensus and decisions aren’t easily taken back. Power is consolidated, one decision made restricting your choices in the next decision. No is hard to say after yes, and there’s so much pressure to say yes and keep saying yes. There’s an insistence that yes can be assumed and an unfolding reality that makes that true on your behalf. The chorus of “Nos” said to Kavanaugh’s appointment as Supreme Court Justice could not compete with the fact that the people who had the power to say no, said yes.

It is not only the clarity of no, or the strength of it that counts — it is also who the decision is made by. It is tragically also not the truth of harm or the wrongs enabled by authority figures that lead to consent in future encounters. It is only decision-making power: who has it, who didn’t, and who can reconcile the barriers to consent present in our institutions. So, let’s paint that picture further, what exactly is a consent violation within the structure of health care. What power arrangement was I in with my surgeon.

It bears restating that another trigger warning is offered here deliberately.

You sustain an injury and need surgery. Three surgeries, the third by a surgeon with a different specialty. You get a referral and learn that something important was missed. You move quickly.

You see specialists. An emergency surgery is scheduled. You work with insurance and your doctor to agree on a plan, especially regarding finances. You think you’re on the same page, that you know what you’ve agreed to.

A hiccup occurs and surgery is moved. It appears to be resolved and you move forward.

You arrive for surgery on a rescheduled date in a rescheduled facility.

You fight to be able to keep underwear on.

You draw boundaries with your nurse around touch.

You receive medication through an IV, and only then do you meet the second surgical team being brought in.

You sign a form and are wheeled into an OR, only after your doctor has made an unauthorized disclosure about your mental health. You think its benign, unintentional.

You fall asleep to 15 people contorting your mostly naked soon to be unconscious body.

You think to yourself before the anesthesia takes effect that that same description also characterizes a drug facilitated sexual assault. You know those are different, but you confront having no control, and soon no memory.

You wake up, and you argue about whether you can go home. You do somehow win that argument.

You begin recovery and post op visits. Two months later you get a bill. It defies an earlier agreement.

You investigate. You advocate for yourself. You tell your story. You ask for others to advocate for you and they do.

You stop seeing your surgeon, against their advisement. They tell you it’s the wrong call.

Your doctor says you’re lying about the nature of your agreement, and they use force to buffer their perspective.

You can’t prove anything. Your story of having said no is erased.

Not proven by your account of what happened. Not proven through character witnesses. Not consistent with having said no clearly. Leaving you to pay consequences alone.

An episode of violence becomes an established pattern, one that gets to continue.

The proof of that is singed into my body in the form of an eight-inch scar.

Just like the proof is singed into our collective body by Kavanaugh’s lifelong court appointment.

It touts, “the power in my position is to have permission to violate further”.

You can’t un-see what you now know clearly. You asked, whose decision is it? And were answered, not you.