To the extent that we take freedom as the ideal form of political and economic justice, it’s hard to define justice as anything more than people’s right to choose what to do with their labor and their commodities and their selves without external compulsion. When people dispose of their property freely, classical liberalism tells us, justice has been achieved. Marx thought this was bullshit: under capitalism, he argued, laborers are not only forced by a variety of silent mechanisms to sell their labor at exploitative wages, but the very system of property was a means of rendering those without property un-free in a very particular sense. It wasn’t that wage laborers were slaves, exactly; certain kinds of choice certainly did exist. But their freedom to choose was so basically and systematically limited to a particular set of crappy choices that talking about the “free market” was a cruel joke and a means of making people un-think the kinds of coercive systemic processes that were actually in place.
It occurs to me that this distinction is useful if we want to think about whether the au pair in this weekend’s Mad Men was raped or whether the sex was “merely” transactional, and what, exactly, that distinction might mean. In a variety of important ways, after all, the difference is totally irrelevant, and we need to start with that: she had no interest in having sex with Pete except insofar as he made himself unavoidable, and in that sense the sex was clearly coerced. His strategic and unscrupulous use of the power over her that the situation gave him certainly allowed him to commit what was, clearly, a violent act. Again, as clearly as possible: Pete committed an act of violence on her and she was the victim of an act of violence, one which committed by him.
Rape, however, is a legal term, not an ethical one. And in a legal sense, some forms of unethical violence are allowed while only some are not. Which is why I’m struck by how the language of “transaction” (and the fact that the au pair consents in an important sense) can only function to legitimize the violence that Pete deploys: arguing about whether or not she consented — whether she freely chose to enter the transaction with him — simply makes the many silent forms of coercion he uses on her disappear from view. After all, when Pete forces his way into the apartment and kissed her, the fact that she puts her arm on his and kisses him back is irrelevant; he hasn’t threatened violence precisely because he doesn’t have to, because she already has no choice. Pete is able to produce a situation where she cannot not-consent: she can’t make any noise in the apartment or she’ll get in trouble with her employers, and given that she is an immigrant of uncertain status, being raped might very well be a less awful outcome than being fired. At the point where the law would require her to protest forcefully, it is true that she “consents” and they have sex, but the point of that scene was that this means precisely nothing. It was rape and she did consent; Pete coerces what kinds of choices she’s able to make such that the choice to not have sex is unavailable to her.
In this sense, the fact that putting the burden on her to vocally “not-consent” can only vindicate him (while making it next to impossible for her to do the same) has to be a judgment on the legal system and the theoretical justification for it, not on her. And dramatizing a situation where a character consents to be raped shows us what that the legal language of “consent” (and the implication that sex is a commodity we freely choose to transact in) functions to render unthinkable, the manner in which a system of silent coercion works to legitimize what was — by any standard — a violent, vicious, inhuman act. For Pete, violence is a protected privilege: he would never be accused of rape, then or now, because not only the act of allowing him into the apartment but the fact of not having yelled “NO!” (or something) could be (and would be, depressingly) taken as inarguable proofs that she didn’t not-consent. And putting the burden of proof on the accuser to show that the transaction was unfree only causes the fact that practically no transaction could be free in these circumstances to become unthinkable, while the silent force behind Pete’s explicit statement that she owes him something disappears from the discourse.
In that context, talking about consent as if it matters is really just a way of vindicating the rapist, and making the impossibility of the victim’s dilemma appear to be her own fault. Which is why, just as Marx argued that free labor is, in a capitalist system, a contradiction in terms, the same reasoning would force us to think about the ways “consenting sex” is, in a system of radical inequality and both implicit and explicit coercion, just as impossible. Yet it’s important that the ideal disappears in neither case: Marx wasn’t against “free labor,” he argued that the system as it then obtained was nothing of the sort as a first step towards figuring out what actual free labor would look like. And to observe all the ways that sex in the world of Mad Men is always at least a little bit like rape is precisely to observe the difference as crucial, to maintain the ideal of non-coercive sex as a way of navigating toward it. Acknowledging the silent coercion implied by her consent, after all, is precisely how we reach a point where we can call it rape, thereby to think about what would be necessary for consenting sex to not be rape.