On Kavanaugh, Consent, and Moral Convictions
Brett Kavanaugh, Donald Trump’s Supreme Court Nominee, is now mired in scandal following an accusation by Christine Baisley Ford of sexual assault. Though the full details have yet to be revealed, Ford alleges Kavanaugh as having worked in tandem with a friend to confine Ford to a bedroom at a party the three were attending. Having trapped her in, Kavanaugh is said to have accosted Ford and moved to rape her but had his intentions foiled by the clumsy intervention of said third party who intended to participate in the rape but managed instead to dislodge Kavanaugh from Ford after which she hastily escaped.
Mitigating details will no doubt emerge when hearings are held. Alcohol is always a factor in these settings, and Kavanaugh has been described by former colleagues as a bad drunk. Ford’s reputation has yet to be interrogated beyond ideological motivation, and there may be factors that complicate a straightforward conclusion of sexual assault. I suppose we will have to wait to find out.
Kavanaugh may well be an entitled, egotistical, and pathological liar bent on self-preservation. It is possible that Kavanaugh’s recollection of events from 35 years ago is impaired by his inebriated condition at the time of the alleged offense. It is also possible that Ford is the guilty party and is little more than a manipulative, opportunistic ideologue who is using an unexceptional encounter to cast Kavanaugh into disrepute. This is all speculation, of course, though I suspect it will be difficult to arrive at anything approaching definitiveness for an act that was allegedly witnessed by only one other person and took place so long ago.
In the intervening days, two other women have come out accusing Kavanaugh of sexual indiscretions of some variety. It is early, but the details of both are sordid and unsettling for a Supreme Court nominee.
A hashtag campaign has begun trending with the handle #WhyIDidntReport. Women from around the world are chronicling their experience with sexual assault and mentioning the reasons why they chose to remain silent. These reasons have included shame, confusion, depression, and adolescent ignorance, to name a few.
Of course, it is impossible to ascertain the veracity of twitter campaigns. And there are no doubt individuals that get propagandized into a retroactive reinterpretation of their past through newfangled paradigms, and others who elect to manufacture a past in hopes of affirmative social recognition. However large or small this faux contingent is, I have little doubt that plenty of women genuinely find themselves on the receiving end of cruel sexual aggression and that many, due to entirely reasonable (and human) concerns, regrettably surrender to silence.
In trying to make sense of this, Zach Carter argues that Kavanaugh is a microcosm of “American Aristocracy.” A “system of elite domination, imposed at any cost,” Carter pins the blame on Conservative politics that have done little other than exacerbate “all existing social inequalities ― race, class and gender alike.” Ryan Cooper expands on this argument by incriminating elite universities, telling us that bad fraternities suffer the same elitist tendencies by creating “a culture of aristocratic impunity.” Proposing solutions to counter this culture of exploitation are “consent educators.” They tell us that comprehensive sex education anchored in a “consent-based” framework can bring an end to sexual disempowerment. Some states have now added consent to their sex education standards while several others are making efforts at consent incorporation.
In order to facilitate the mechanics of consent, a host of apps have surfaced offering a place for “digital consent.” Cody Swann, CEO of Gunner Technologies which owns the uConsent app, tells the Wall Street Journal that uConsent is “like a digital handshake agreement. You talk about what you are agreeing to, and then you shake on it.” Soon, uConsent will have a “panic” button that can be pressed to withdraw previously provided consent. Another app called LegalFling purports to provide a “legally binding agreement about sexual consent, which is verifiable through the blockchain.”
Though the apps may be good, Christine Davis at Texas A&M tells us that consent “needs to happen before, during and after sex.” Davis goes on to say “that conversations should begin with an internal reflection (what am I comfortable with and am I ready for this?), understanding our own and our partner’s readiness for sexual activity, continued discussions on preferred methods of contraception and infection prevention, comfort with the type of sexual activity, what both partners like best, and how partners feel physically, mentally and emotionally after the experience.” Consent advocates like Davis seem to envision sexual intercourse as resembling Socratic debate. Let us consider all feelings, examine our internal motivations, discuss intersecting comforts, and set intermittent breaks for dialogical exercise.
In an opinion piece entitled “Mishandling Rape,” Yale professor Jed Rubenfeld has attempted to problematize the framework of affirmative consent. Rubenfeld decries what he sees as an emerging campus consensus precluding the possibility of consent under the influence. He writes:
Consider the illogical message many schools are sending their students about drinking and having sex: that intercourse with someone “under the influence” of alcohol is always rape. Typical is this warning on a joint Hampshire, Mount Holyoke and Smith website: “Agreement given while under the influence of alcohol or other drugs is not considered consent”; “if you have not consented to sexual intercourse, it is rape.”
Now consider that one large survey showed that around 40 percent of undergraduates, both men and women, had sex while under the influence of alcohol. Are all these students rape victims? And what if both parties were under the influence? Asked this question, a Duke University dean answered, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent.” This answer shows more ideology than logic.
Rubenfeld goes on to state that we “need to stop being so foolish about alcohol on campus,” particularly given that the majority of claims concerning sexual assault and rape involve alcohol. 75 students of Rubenfeld have since authored a public letter repudiating his opinion, describing it as both “reductive” and “paternalistic.”
What do we make of all this? Well, for one thing it is clear, as Joseph Fischel and others have argued, that consent cannot do our moral work for us. The line of demarcation between the consensual and nonconsensual is a rather blurry one, with far too much gray area to offer anything approaching a reasonable rubric. Moreover, proposed consent formulae border on the convoluted and remain highly implausible as a normative method for sexual behavior. Consent apps, turning sex into a discussion forum, affirmative consent measures, viewing every relationship through the lens of “power” that sees in every relationship nothing but class, race, gender, and privilege will not work.
It is also evident that space for honest and straightforward debate is narrowing by the day. One suggests adjustments to sexual mores at their own peril. Raising the specter of alcohol, sexually promiscuous behavior, immodest and licentious sartorial selections, and more are responded to with the reflexive charge of “victim blaming.” The notion that sexual liberation in the public square, advanced by sundry institutions keen on gaining market share by exploiting wanton desire, contributes to this pitiable schema is rejected out of hand. There is no pairing back of nakedness, nor willingness to countenance anything regarded as a priori atavistic.
And so we are left with the Sudani axiom: “They look at the elephant but they only curse its shadow” (yanẓurūna ilā al-fīl wa yaṭ‘anūna fī ẓillih). The proverbial elephants of hedonism, sexual liberation, postmodern nihilism, and self-indulgence trample over our ability to construct a dignified sexual schema, and yet we “simply settle for cursing its shadow, as a safer gesture of protest and would-be saving face.”
In the midst of this, many Muslims have lost their discourse. Terms like khalwa, ‘iffa, haya’, and more, are incomprehensible. Scholars rarely invoke them, and society has normalized behavior that makes living by what they denote appear impractical. To offer but a few of these injunctions:
The Prophet (pbuh) stated in a sermon, “A man should not seclude himself with a woman except that there be with her someone who is of unmarriageable kin (mahram).” [Bukhari, Muslim]
Allah ‘azza wa jal says: “Tell believing men to lower their glances and guard their private parts: that is purer for them. God is well aware of everything they do. And tell believing women that they should lower their glances, guard their private parts, and not display their charms beyond what [it is acceptable] to reveal; they should let their headscarves fall to cover their necklines and not reveal their charms except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their womenfolk, their slaves, such men as attend them who have no sexual desire, or children who are not yet aware of women’s nakedness; they should not stamp their feet so as to draw attention to any hidden charms. Believers, all of you, turn to God so that you may prosper.” [Nur: 30–31]
Elsewhere: “And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.” [Isra: 32]
These commands alongside a number of others offer straightforward guidance to live by. Lower your gaze, avoid seclusion with members of the opposite sex, and establish an atmosphere of mutual respect and dignity. Understand your capacity for temptation and enforce strictures to mitigate them. Fear and remember Allah so that you may prosper.
It is only through such wholesale changes that we can effectively address what ails our society. Progressive psychobabble will continue churning out new categories and terms, and sexual liberation will not desist until we make a compelling case to the contrary — and insha’Allah we shall.
But such a case cannot be made by those obsessed with capturing a “cultural balance.” Too often, truth is compromised in the name of some “pragmatic” endeavor or another. ‘It is not the right time,’ ‘the political context doesn’t allow for it,’ ‘our culture is not seventh-century Arabia,’ ‘Trump is the Executive,’ ‘Islamophobia takes priority,’ and more are but a few of the dismal excuses proffered by such self-described ‘moderates’ who avoid having to provide men and women the dignity they seek and that God has granted them in His book and detailed in the Sunnah. At best, the “traditional option” is tolerated as a counterweight to a refashioned orthodoxy tailored to the sensibilities of cosmopolitan society.
The time is now for a truly confident and wise articulation of Islam. Let us not miss our chance.
A few other musings:
Sister Asma Hanif of Baltimore runs Muslimat al-Nisaa, an organization that provides housing to homeless Muslim women and children and Muslim women victims of Domestic Violence in a residential setting, within an established Muslim community. Recently, Sister Asma sent an email with the following plea:
“Three weeks ago a 69 year old Pakistani mother was just dropped on my doorstep speaking no English and only a suitcase in hand. Two weeks ago we were contacted by a local masjid to house a 71 year old senile grand-mother. Last week an 80 year old was abandoned by her son.”
Setting aside the sad comment such a reality makes on our condition, Sister Asma’s work is in need of donations to provide for these people in need. If you can donate, please do so. You can donate at this link.
Shaykh Yousuf Idris is a teacher of mine and recently launched a public FB page:
https://www.facebook.com/YousufJaafarIdris/
Like and follow his work with the New Muslim Academy.
Allah Knows Best.
