[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.