[Trigger warning: non-graphic discussion of rape, sexual assault and abuse]
This is the first part of a two-part series on sexual consent. The first part is here.
My intention is to write an academic paper on this in the near future, but I thought I'd throw out some preliminary ideas to get some feedback.
The importance of the topic is obvious, since the distinction between a morally acceptable sexual act versus rape or sexual assault is whether both (or all) parties consent to the act. The UK Sexual Offences Act of 2003, for instance, defines sexual assault as follows:
This is the first part of a two-part series on sexual consent. The first part is here.
My intention is to write an academic paper on this in the near future, but I thought I'd throw out some preliminary ideas to get some feedback.
The importance of the topic is obvious, since the distinction between a morally acceptable sexual act versus rape or sexual assault is whether both (or all) parties consent to the act. The UK Sexual Offences Act of 2003, for instance, defines sexual assault as follows:
(1) A person (A) commits an offence if—
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
Of course, my aim here is to provide a moral, rather than a legal, analysis, but this definition does provide some illumination. The basic problem is that "consent", which we might paraphrase as "willingness", is a very slippery notion.
1. Performative vs subjective definitions of consent
The distinction is framed this way by Alan Wertheimer. Basically, the idea is whether the morally relevant notion of consent is a public expression of willingness - such as saying "Yes" or physically moving towards a prospective partner - or a private mental state of willingness. Before properly comparing these, however, we need to think carefully about the context dependence of a public expression. A person might, for instance, say "Yes" under an explicit or implicit threat of force. Under such a circumstance, a reasonable person would not interpret such a statement as a genuine performance of consent. There is scope for a great deal of nuance in thinking about such contextual factors - including broader social power dynamics around, say, gender and race - and in fact my overall project is to provide a moral examination of the so-called "gray areas" in consent that arise from such factors. I won't, however, examine this in detail here, sticking with the "paradigm" cases of force.
Once we have defined performative and subjective notions of consent, it is clear that they can vary independently, on a 2x2 grid. The easy cases are those where performative and subjective consent are aligned - let's call these Yes Please and No Thanks. It is clear that A is respectively morally allowed and not allowed to proceed with sex in these cases. The case where there is a public performance of consent but it is not subjectively present might be called Brave Face. This might occur if, for instance, B is being threatened with force by a third party, C, and A is unaware of this. In many cases like this, A might still be partly moral culpable, if there are contextual factors that would lead him to doubt the performance of consent if he was sufficiently attentive. But, by and large, we tend to think that C is morally culpable in this situation, and A relatively blameless. The final case, where these is a public performance of non-consent but a subjective willingness to have sex, might be called Unsafe Play. Louis CK gives an example of this - a woman he met who was aroused at the prospect of being "forced" to have sex over her own vocal objections. Louis CK argues, and I hope we are inclined to agree with him, that it would have been morally reprehensible of him to proceed with sex under these circumstances, even though that would in fact have been a satisfactory outcome for the woman concerned.
What these cases underline is that the appropriate standard for sexual consent is a performative one. To elaborate slightly, we can say that the relationship between subjective and performative consent speaks to the relationship between consequences and intentions. A person having sex that they do not want to have is a bad consequence. We say that a person has good intentions, and so behaves morally, to the extent that they seek to avoid this bad consequence. A public performance of consent is possibly the single best piece of evidence linking actions to the likely to consequence of those actions. However, it is not the only evidence. So, when we say that the appropriate standard is a performative one, we are saying that a person is morally responsible to respect what he or she reasonably believes a prospective sexual partner is and isn't willing to do, and should be sensitive to various public sources of evidence about that person's subjective state of mind.
2. Enthusiastic consent, mere consent and "real consent"
Certain feminists have recently sought to promote of model of "enthusiastic consent". The flagship work promoting this model is Yes Means Yes, edited by Jaclyn Friedman and Jessica Valenti. Here is a representative quote, from the introduction:
However, by focusing on enthusiasm generally and enthusiasm for sexual pleasure specifically, it ignores the people's broader agency and possible reasons for engaging in sex acts. This problem is addressed under the heading of "real consent" or "good consent". This post on The Pervocracy gives an excellent summary of the idea and my intention in the remainder of the piece is mainly to elaborate, with some philosophical bells and whistles and additional examples, on what has been said there.
My philosophical starting point is Kant's principle of humanity, which states that:
1. Sex work. A person may have sex in order to obtain income and so satisfy various material needs and desires. In the case of commercial sex with a client, the interests of the parties are discordant: one desires sexual pleasure and the other desires income. The interaction is nevertheless consensual so long as each party recognises the interests of the other in the interaction and takes these interests seriously.
2. Reproduction. A heterosexual couple, after some months of attempting to conceive, may both be positively unenthusiastic of the prospect of sex, but proceed anyway, as they both strongly desire to have a child. Similarly for a male who is helping friends to conceive via sperm donation. The sterile setting of a clinic is hardly sexy, yet he may proceed to masturbate successfully in any case, out of a genuine desire to help his friends. I think we agree that, in both cases, the sex is consensual. In fact, some might think that it is absurd to think that a solo sex act might not be consensual. However, it is certainly conceivable that it could not be - if, for instance, the recipients had threatened violence if a sperm sample was not forthcoming. This further illustrates why it is important to consider the actual interests involved, rather than the most obvious outward signs of enjoyment.
3. Curiosity. A person may engage in a sex act they have never undertaken before that they are genuinely uncertain they will find pleasurable. They may even strongly suspect they will not find it pleasurable. Nevertheless, exploration of a novelty is a perfectly sound reason for engaging in sex, and the resulting sex is consensual.
4. Sex as an act of submission. Pervocracy writes that this may occur:
6. Relief of boredom. Even if a person isn't especially aroused and doesn't expect a large amount of sexual pleasure, they may still consensually engage in sex simply as they would any other mildly enjoyable activity.
1. Performative vs subjective definitions of consent
The distinction is framed this way by Alan Wertheimer. Basically, the idea is whether the morally relevant notion of consent is a public expression of willingness - such as saying "Yes" or physically moving towards a prospective partner - or a private mental state of willingness. Before properly comparing these, however, we need to think carefully about the context dependence of a public expression. A person might, for instance, say "Yes" under an explicit or implicit threat of force. Under such a circumstance, a reasonable person would not interpret such a statement as a genuine performance of consent. There is scope for a great deal of nuance in thinking about such contextual factors - including broader social power dynamics around, say, gender and race - and in fact my overall project is to provide a moral examination of the so-called "gray areas" in consent that arise from such factors. I won't, however, examine this in detail here, sticking with the "paradigm" cases of force.
Once we have defined performative and subjective notions of consent, it is clear that they can vary independently, on a 2x2 grid. The easy cases are those where performative and subjective consent are aligned - let's call these Yes Please and No Thanks. It is clear that A is respectively morally allowed and not allowed to proceed with sex in these cases. The case where there is a public performance of consent but it is not subjectively present might be called Brave Face. This might occur if, for instance, B is being threatened with force by a third party, C, and A is unaware of this. In many cases like this, A might still be partly moral culpable, if there are contextual factors that would lead him to doubt the performance of consent if he was sufficiently attentive. But, by and large, we tend to think that C is morally culpable in this situation, and A relatively blameless. The final case, where these is a public performance of non-consent but a subjective willingness to have sex, might be called Unsafe Play. Louis CK gives an example of this - a woman he met who was aroused at the prospect of being "forced" to have sex over her own vocal objections. Louis CK argues, and I hope we are inclined to agree with him, that it would have been morally reprehensible of him to proceed with sex under these circumstances, even though that would in fact have been a satisfactory outcome for the woman concerned.
What these cases underline is that the appropriate standard for sexual consent is a performative one. To elaborate slightly, we can say that the relationship between subjective and performative consent speaks to the relationship between consequences and intentions. A person having sex that they do not want to have is a bad consequence. We say that a person has good intentions, and so behaves morally, to the extent that they seek to avoid this bad consequence. A public performance of consent is possibly the single best piece of evidence linking actions to the likely to consequence of those actions. However, it is not the only evidence. So, when we say that the appropriate standard is a performative one, we are saying that a person is morally responsible to respect what he or she reasonably believes a prospective sexual partner is and isn't willing to do, and should be sensitive to various public sources of evidence about that person's subjective state of mind.
2. Enthusiastic consent, mere consent and "real consent"
Certain feminists have recently sought to promote of model of "enthusiastic consent". The flagship work promoting this model is Yes Means Yes, edited by Jaclyn Friedman and Jessica Valenti. Here is a representative quote, from the introduction:
The world we envision is one in which genuine pleasure is celebrated—not feared,This idea of consent is best understood as a reaction to a highly gendered notion of "mere consent", where men are always sexually initiators and women are passive "gatekeepers" who decide whether sex is to be allowed to proceed. One problem with the mere consent model is that it ignores women's sexual pleasure, framing women's motivation for sex as one of providing pleasure for others. A second problem with this model it that it tends to ignore the contextual factors surrounding explicit performances of consent discussed above. Under this model, so long as a woman says "yes" (or even merely fails to say "no"), a man need not consider any pressures she is facing in making such a performance. These are genuine problems and the notion of enthusiastic consent is helpful insofar as it addresses them.
controlled, or commodified. Where the only consent that matters is the kind that’s given freely and enthusiastically.
However, by focusing on enthusiasm generally and enthusiasm for sexual pleasure specifically, it ignores the people's broader agency and possible reasons for engaging in sex acts. This problem is addressed under the heading of "real consent" or "good consent". This post on The Pervocracy gives an excellent summary of the idea and my intention in the remainder of the piece is mainly to elaborate, with some philosophical bells and whistles and additional examples, on what has been said there.
My philosophical starting point is Kant's principle of humanity, which states that:
Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means.In more transparent terms, this means that we are morally obliged to take seriously the interests or desires of others (and ourselves). There is a great deal of theory behind this, but I hope it is at least plausible on its own terms. For our purposes, the important thing is that we can think of the seeking out of consent in sexual contexts as an attempt to apply this principle, i.e. by ascertaining that the other party (or parties) have a genuine interest in the proposed sexual act. Importantly, however, another person's interest need not be the same as one's own, nor is it required to be sexual pleasure specifically. To truly respect a person's autonomy (their "humanity") is to take seriously all the reasons they might have for performing (or not performing) a particular act. Below follows a non-exhaustive list of reasons why a person might engage in consensual sex (examples 1- 5 are drawn directly from the Pervocracy post):
1. Sex work. A person may have sex in order to obtain income and so satisfy various material needs and desires. In the case of commercial sex with a client, the interests of the parties are discordant: one desires sexual pleasure and the other desires income. The interaction is nevertheless consensual so long as each party recognises the interests of the other in the interaction and takes these interests seriously.
2. Reproduction. A heterosexual couple, after some months of attempting to conceive, may both be positively unenthusiastic of the prospect of sex, but proceed anyway, as they both strongly desire to have a child. Similarly for a male who is helping friends to conceive via sperm donation. The sterile setting of a clinic is hardly sexy, yet he may proceed to masturbate successfully in any case, out of a genuine desire to help his friends. I think we agree that, in both cases, the sex is consensual. In fact, some might think that it is absurd to think that a solo sex act might not be consensual. However, it is certainly conceivable that it could not be - if, for instance, the recipients had threatened violence if a sperm sample was not forthcoming. This further illustrates why it is important to consider the actual interests involved, rather than the most obvious outward signs of enjoyment.
3. Curiosity. A person may engage in a sex act they have never undertaken before that they are genuinely uncertain they will find pleasurable. They may even strongly suspect they will not find it pleasurable. Nevertheless, exploration of a novelty is a perfectly sound reason for engaging in sex, and the resulting sex is consensual.
4. Sex as an act of submission. Pervocracy writes that this may occur:
...in a D/s relationship where the submissive agrees to sex they don't want as sex, but do want as an act of submission.5. A partner's sexual pleasure. Pervocracy writes that:
the line between "I wanted to make them happy" and "I was afraid to make them unhappy" can get messy. But consent to "I don't think I'll get pleasure from this, but I still want to give pleasure" definitely can be real.The basic point, that another's sexual pleasure is a legitimate basis for consent, should be clear. The tacit reference to abusive relationships is significant, and there is much more to be said on that, but I shall leave that for a later post.
6. Relief of boredom. Even if a person isn't especially aroused and doesn't expect a large amount of sexual pleasure, they may still consensually engage in sex simply as they would any other mildly enjoyable activity.
7. Social bonding. Sex tends to make us emotionally open and communicative, so engaging in sex with someone can serve to deepen a friendship. Only one party, or neither, may derive specifically sexual pleasure from the act itself, but are aiming for the emotional closeness that will follow from it.
8. Sexual experience. Many people have sex simply to have experiences that they consider to be milestones, such as losing their "virginity". Or they may participate in sex acts in order to "practice" and so be better equipped to perform them later on, when pleasure is more likely to be forthcoming.
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