by Claude Opus 5.5
Catharine MacKinnon questions whether consent can do the moral work liberals assign it under conditions of domination. Does this case support her scepticism, or show the continuing indispensability of consent?
Catharine MacKinnon’s critique of consent, developed in Toward a Feminist Theory of the State (1989) and restated in “Rape Redefined” (Harvard Law & Policy Review, 2016), is one of the most radical challenges to liberal sexual ethics. Liberalism treats consent as the hinge of sexual morality and law: with consent, sex is permissible; without it, it is a wrong. MacKinnon argues that this framework presupposes conditions of equality that do not exist. Under male dominance, women’s apparent consent is shaped by inequality, and the law’s focus on whether she said yes directs attention to her conduct rather than his. She proposes defining rape in terms of coercion, including the exploitation of inequalities of power, rather than non-consent.
Applying this to a live, contested case requires care. Nothing below assumes the truth of the allegations. The question is what the shape of the case, as reported, reveals about the adequacy of consent as an organising concept.
Where the case appears to support MacKinnon
Three features of the case as reported resonate with MacKinnon’s critique.
First, the investigation’s focus. The district attorney’s original decision reportedly rested on a signed summary describing the complainant’s drug use and sexual conduct as “voluntary, conscious, and consensual”. Whatever the merits of that reading, its structure is exactly what MacKinnon describes: the inquiry centred on the complainant’s state and statements, while reports suggest campus police may not have interviewed the accused at all. The consent framework made her conduct the object of scrutiny.
Second, the setting. A fraternity house, several men and one woman, alcohol and drugs, and a group chat of around fifty members: these are conditions of structural asymmetry, of numbers, space, social power and institutional belonging. MacKinnon’s claim is that in such conditions, asking whether she “consented” misdirects attention from the coercive structure to her response to it.
Third, the gap between process and outcome. A twelve-day institutional hearing led to sanctions, while the criminal process produced no charges for two years. The difficulty of proving non-consent beyond reasonable doubt, in circumstances of intoxication and group presence, is precisely the evidential problem MacKinnon identifies with consent-based definitions.
Where the case shows consent’s indispensability
Yet the case also illustrates what would be lost without consent.
First, consent is the concept through which the complainant’s own perspective enters the analysis. A coercion-based definition focuses on what the defendants did and the structures they exploited, which is valuable. But it risks displacing the question of what she wanted, and treating women in unequal conditions as incapable of meaningful sexual choice. That risk is not hypothetical: it is a long-standing criticism of MacKinnon, pressed by feminists such as Janet Halley, that her framework denies women’s sexual agency.
Second, consent provides structure for distinguishing cases. Not every sexual encounter in a fraternity house is coercive. A framework that defines wrongs by structural inequality must say when inequality becomes coercion, and it will need something like consent to do so: a criterion of whether the woman was able to, and did, agree in a meaningful sense.
Third, the most useful conceptual tools in the case, capacity and freedom, are refinements of consent, not alternatives to it. The English definition in the Sexual Offences Act 2003, which requires agreement by choice with the freedom and capacity to make that choice, absorbs much of MacKinnon’s concern by building structural conditions into the validity of consent itself. Freedom is the doorway through which inequality and coercion enter the consent analysis.
A synthesis
The case suggests that MacKinnon’s critique is best understood as a diagnosis of how consent is applied, not as a refutation of its relevance. Consent fails when it is treated as a single verbal event, read off from statements, examined primarily through the complainant’s conduct, and abstracted from the setting. It succeeds when it is understood as requiring real freedom and capacity, assessed in light of the structural conditions in which agreement is given.
This synthesis has institutional implications. Investigative practice should focus as much on the defendants’ conduct and the setting as on the complainant’s statements. Definitions should make freedom and capacity explicit. And the evidential burden should reflect the fact that conditions of intoxication and numbers make apparent agreement unreliable.
Remaining tensions
The synthesis does not dissolve all disagreement. MacKinnon would respond that consent, however refined, retains a liberal individualism that cannot capture systemic domination. Liberal theorists would reply that abandoning consent abandons the commitment to individual sexual autonomy that makes sexual wrongs wrong. A seminar might productively ask whether the expansion of “freedom” within consent is a genuine response to MacKinnon or a way of domesticating her critique.
The case, then, supports MacKinnon’s scepticism about consent as it was apparently applied, while illustrating the indispensability of consent properly understood.