Consent as a Moral Category - Is It Enough?

[This post was inspired by a short Facebook conversation in which an individual appealed to "consent" as the kind of trump card in a conversation about sexual ethics. Further reading and research has led me to the discovery that he was not a cultural outlier. Many now observe, and I concur with this conclusion, that the only agreed upon category for sexual ethics is consent. Violate that, and you are in trouble. Violate any other traditional sexual boundary, and you are either ignored or celebrated.]

The term “consent” is commonly used now to describe what is and is not ethical behavior for sexual activity. It has been noted by several cultural observers that invoking consent is currently the one universal standard on sexual ethics. Because gender, marriage, family, and number have been effectively eliminated as ethical considerations, the current backstop against unbridled sexual behavior is the invocation of consent. With all serious considerations of human essentialism gone from the conversation about sexual ethics, is this enough? Despite the surface appeal it has as a moral category, it lacks all the force a real moral category needs in order to do its job. Consent fails to carry the ethical load it is currently given.

We find ourselves in a cultural position where the appeal to consent is replacing human essentialism (or some form of it) as our dominant sexual ethic. Human essentialism in this context is roughly the belief that there are things hard-wired into human nature that inform sexual behavior, uses, and ethics. So, things like gender, number, and community are significant concerns that persist over time and across cultures. In addition, issues like family and child welfare are considered as crucial to determining the value and ethics of sexual behavior. Without some robust form of human essentialism, all these concerns must be accounted for, and currently the place-holder for the chasm left by human essentialism is whether someone consents to sexual interaction.

Consent alone does not do all the moral work we think it does.

Can a 12 year old consent to sex? I will guess that most of those who use consent as the pivotal moral category will balk at saying yes, but it is quite clear that they can. A child may be so sexually informed (or exposed) that when presented with an opportunity, every indicator they give will look like consent. But if consent is our singular moral category, we find ourselves in contradiction with laws regarding statutory rape. These are old but significant laws that were informed by a much more robust sexual ethic which argued that people should be protected from most sexuality until a certain age of maturity no matter what they consented to. And if the "consent theorist" wants to keep their position and be in favor of statutory rape laws, they need to appeal to something else beyond consent to judge between the contradiction created in this scenario. They have then admitted that consent is not enough.

But what if the external indicators of consent are not genuine? Well, that is a thorn in the side of the consent theorist. If we want to rely on what is "really" going on with the 12 year old who consents, then we are not relying on consent, but some other set of moral or psychological categories that temper consent. And so what happens to consent? It is rendered a subsidiary moral concern.

In this case we find a situation in which an individual can consent and we still think the sexual activity is wrong and/or harmful. But if we are consent theorists, on what do we base that claim? If we have gone so far as to remove a form of human essentialism from the moral equation, where do we stand intellectually and morally in order to make this judgment in opposition to the consent given?

Can consent change over time? If it does, how do we judge the morality of the act when consent was given?

Of course consent can change over time and after the fact. This is so ubiquitous a reality, for example, that universities are doing summersaults to cover themselves legally from what is termed the “rape culture” and the fact that plenty of people regret decisions and make a big deal out of removing consent after they gave it. But if consent is our only tool here, we are in a pickle. Actually, it is another contradiction created by the removal of all other, far more robust, ethical categories. If we believe we can make judgments about the wrongfulness of sexual behavior after consent is withdrawn, our allegedly primary moral category is again rendered a subsidiary concern; it is most useful in the service of other, more robust, moral categories.

In both cases a sexual ethic that appeals to some form of human essentialism or ahistorical moral standards (like those found in some religions) is the more accurate, useful, and preferred ethic. Gender, age, community, family and other essentialist categories really do matter. We erode our sense of human essentialism to our great peril. Consent is clearly a moral category and very useful when reflecting on the ethics of sexual behavior, but we have found that other more robust concerns are also necessary to place consent within its most useful context.