First as property, then as owners: Consent, legal form, and sexual subjectivity

While the affirmative consent standard in US criminal rape law has been critiqued from all angles by queer, feminist, and liberal legal theorists as an inadequate standard for measuring and preventing sexual harm, Marxian legal theorists have had little to say on the matter. This article brings sexual consent law and the social and technological fetishisation of the contract into conversation with Pashukanis’s legal-form theory, and draws on two case studies. Despite the ubiquity of consent as a marker of acceptable sex and the widespread adoption of consent trainings on university campuses, commercial “consent apps” have largely failed to generate a market. I argue that the commercialisation of consent evidences a fetishisation of legal form, one that exposes a tension within capitalist ideologies of contractual freedom and the contract-free zone of intimacy.