Look around anywhere on campus, and you are bound to see a highlighter-colored shirt proclaiming the value of consent. We know a lot about consent. When is it required? Always. How should it be given? Enthusiastically.
One question is often overlooked in these discussions. When does a "yes" count as consent? Note that this question is distinct from "how is one to know when their partner has consented?" or "what should the legal definition of ‘consent' be?" Ultimately, these are the issues with the most practical import and must be addressed. But we cannot hope to make progress on them without first knowing what consent is.
Borrowing from medical ethics, consent must be 1) capacitated, 2) informed and 3) voluntary. I will discuss each condition in turn and point out where an account of consent might have trouble.
In order for an individual to give consent, that person must have the capacity to make decisions and, specifically, decisions regarding their sexual activities. Requiring the proper decision-making capacities writes off young children and sufficiently developmentally-disabled adults as ineligible candidates for consent.
Capacity also handles cases where one party is too drunk or intoxicated to consent. Drunk people display worse judgment than normal. We can suppose that, at some point, the capacity to judge at all is gone. The task here is to specify an amount of drunkenness. This is not a special problem — after drinking enough, a person cannot drive safely, even though it is difficult to specify just how drunk they must be.
Information is a crucial component of consent. A doctor who has sex with patients by telling them it is the only cure for their disease is a rapist. Giving someone false or misleading information robs them of the ability to consent.
This forces us to delineate acceptable seduction techniques. Is it okay to lie about how much you like traditional Japanese theater? There is an active community of pickup artists who make a hobby of seduction. Do their tactics of demonstrating high value and offering backhanded compliments leave room for informed consent?
Onora O'Neill takes it farther, arguing that most casual sex violates informational standards. Kisses and other endearments constitute "false messages about feelings, desires and even commitments" — they provide a feeling of intimacy where there is none.
One might appeal to context and say that casual sex is sufficiently different from other situations such that kisses do not communicate affection. O'Neill responds, "if such expressions are fully decontextualized, what part are they playing in an entirely casual … encounter?" She believes that endearments are misleading, so consent is forgone. Without a satisfactory counterargument, we must conclude that casual sex is rape.
Lastly, consent should be voluntary. A "yes" that is coerced is not consent. The most popular theory has it that a proposal is coercive just in case the less-preferred option falls below some baseline. For example, in "your money or your life" cases, the less-preferred option — losing one's life — falls below the baseline because the consequence of keeping one's valuables should not be being killed.
There are two candidates for the baseline, what is good and what is just. We can generate cases to decide between the last two, but that is not important now. Either of these accounts runs headlong into an argument attributed to Andrea Dworkin. My gloss on it is thus.
In our society, it is a fact that women occupy a lower class than men do — this is male privilege. Depending on your conception, this is either unjust or immoral. The social benefits traditionally afforded by being an "owned" woman, that is, having a boyfriend or husband, can only be earned through sex.
When a woman consents to sex, her less-preferred option is not to have sex. Without substantial social change, not having sex will leave her in the lower class, which is below the baseline. Hence, the proposal is coercive, so consent has not been given. This argument can be adapted to show that nobody with a lower socioeconomic status can consent to sex with someone with a higher status.
How can we avoid this consequence? There are three options. First, hold that socioeconomic inequality is not immoral — truly a bankrupt approach. Second, reject the baseline account of coercion and supply another. Third, say that coercion requires injustice, and socioeconomic inequality is not unjust.
If we take this last horn, then, using the conclusion of my earlier column ("The aim of activism," Jan. 26), we cannot interfere with people's lives in order to prevent them from perpetuating inequality. This means that equal opportunity programs, such as affirmative action or welfare, are themselves unjust.
Why shouldn't we accept the conclusion of the Dworkin argument? Plausibly, no two people have ever been socioeconomic equals. Therefore, all sex is rape.
David Hefer '12 has a non-coercive proposal that you email him at
david_hefer@brown.edu.
