Not Sexual Consent

In recent years, in liberal society, sexual ethics has become synonymous with consent. An act is considered ethical if and only if it is consensual, or if you prefer, consent is ethically both necessary and sufficient. But this did not come about by the reduction of sexual ethics to consent. Instead, the definition of consent has expanded to encompass all sexual ethics. This is unfortunate, as it complicates the concept and obscures the ethics.

So what happened? The core of the meaning of consent is agreement to a proposal. We can add, it is assumed that this agreement is knowing and unforced, that is, the consenter understands whatever it is that’s being suggested, wants to do it, and expresses that. Or if you want to go further, consent should be informed (knowing what the consequences are) and enthusiastic. Even with these qualifications, it’s is a fairly straightforward and intuitive concept. It’s pretty much “this is what I really want”.

Consent has always been a fairly central concept in sexual ethics, but it was the BDSM scene that narrowed the focus. After all, it’s widely understood that, generally speaking, hitting other people is unethical, and considered abuse in the context of a intimate relationship, which is a particularly bad thing. But it turns out some people enjoy being slapped, spanked, flogged, tied up, having their hair pulled and so forth. Shouldn’t they get what they want?

The first BDSM formulation of sexual ethics was “Safe, Sane and Consensual”, which seems intended to come across as sensible and reassuring to a sceptical society. Nevertheless, some people inside the scene began to object, both to “Safe”, since some unsafe things are still worth doing, and also to “Sane”, since it seems difficult to objectively evaluate, and perhaps even an arbitrary restriction on states of mind for an activity that is almost intended to change consciousness. These days “Risk-Aware Consensual Kink” is a more popular formulation, a phrase that notably resembles “informed consent”. As acceptance of BDSM has grown, “consent” alone has become the liberal standard for sexual ethics. Sexual behaviour is ethical, we are to understand, if and only if it is consensual.

The problem is that consent cannot bear the weight of all our sexual ethics. For example, a young teenager might be enthusiastic about sex with a much older adult. For example, someone very drunk might be enthusiastic about sex. This is consent under the straightforward meaning, but at the same time, we recognise, though without much examination, that sex in such situations is unethical. So, not willing to abandon our “ethics = consent” model, we tacitly redefine consent: we declare that such people “cannot consent”.

The term cannot consent is borrowed from law, where it actually means “consent is not a defence”. Likewise, in ethics, we have defined cannot consent as “it’s unethical even if they say yes”. And sexual ethics, in turn, is defined by consent…

Worse, consent is considered to be binary: one either does or does not consent to sex: there can be no blurred lines. But there are obviously degrees of intoxication (and age), does that not mean there are also degrees of consent, and therefore degrees of rape? (The phrase “blackout drunk” gets bandied about as some sort of test, but blackout refers to post-hoc memory loss: it’s something that isn’t yet evident at the time someone is drunk, and in any case is only loosely related to the degree of intoxication, so it won’t work as any kind of ethical guide.)

I propose we stop trying to load consent with all of our ethics. Instead, I have a simpler rule:

Don’t have sex if either of you will regret it.

That is, you have a responsibility to prevent bad outcomes for both yourself and your partner. And you are responsible for regret if you ought to have known it would happen, even if you both agreed to sex at the time.

To do this, you have to be able to answer some questions. How can I know? And, how sure do I need to be? What risks are worthwhile? Instead of a false definition between “consensual” and “nonconsensual”, the ambiguity in these questions is now front-and-centre where it can be examined and discussed: there are clearly degrees of regret, degrees of certainty about what will cause it, degrees of reasonability of foresight. Some choices cause more harm than others. Some choices are more likely to cause harm than others. Some consequences can be more easily predicted than others. Some risk of regret is worthwhile, even. It’s tempting to try to banish the ambiguity by saying “if there’s any doubt, then no”, but a little thought should show that this is logically incoherent. There are blurred lines in every ethical issue: it’s unavoidable. What matters in ethics is whether the blur is over here or over there.

This builds sexual ethics firmly on Haidt’s Care/Harm moral foundation, where it belongs. If you have sex with someone, you have to care about them. You have to care about them at least enough to avoid a bad outcome for them. And to do that, you have to learn enough to be confident in your choice. Consent, that is, merely saying “yes”, is simply the main thing to learn about: generally necessary but not always sufficient.

This rule also implies self-responsibility. For example, I argue that if you have a habit of getting very drunk, and then enthusing about sex which you later regret, that is a bad pattern of behaviour that you need to own. You are responsible for avoiding actions that cause bad outcomes for yourself as well as for your partner.

— Ashley Yakeley

7 thoughts on “Not Sexual Consent

  1. Mr A Writinghawk

    I understand your point about ‘function creep’ in the notion of consent, but I’m afraid your alternative, of deciding whether an act is ethical based on the judgement of the person committing it, will not wash at all. Many if not most people who are prepared to commit rape are clearly capable of very poor judgement about what the other person wants or will regret, even if they happen to be saying ‘No, get off’.

    Reply
    1. Ashley Yakeley Post author

      Yes, I think I need to add an obligation to gain sufficient judgement before having sex. That is, you need to learn about the likely consequences of your actions, which would certainly include the importance of consent.

      Reply
    2. Ashley Yakeley Post author

      I’ve been meaning to rewrite this for awhile in light of your criticism, which I entirely agree with. In the end, I changed the rule from

      Don’t have sex if you believe either of you will regret it.

      to

      Don’t have sex if either of you will regret it.

      and rewrote some of the following text, to more properly place responsibility on people to do what is necessary to prevent bad outcomes, including the necessary learning.

      Reply
  2. RonW

    But, don’t you think this whole consent thing is perhaps a call to clairvoyance? Humans are simply not rational enough (maybe you are, but…) to analyse a situation and determine the best course of action. Won’t happen, can’t happen. The words ‘dilemma’ and ‘quandary’ come to mind.

    Perhaps humans should simply stop having sex altogether in case their partner decides, at some unspecified time in the future, when morals have been changed and ethics encompasses more or less than it does now, that that bonking session in 2014 wasn’t such a good idea and (gasp!!) regrets it. 🙂

    Reply
    1. Ashley Yakeley Post author

      So let’s see, someone tells you to stop, and you don’t, because you can’t be sure they’ll actually regret it, because you’re not clairvoyant?

      Yeah, I’m going to go ahead and call that unethical behaviour.

      Reply
      1. Eric

        Ron’s pretty clearly referring to the case where the partner regrets the decision _later_, not _before_.

        Reply
        1. Ashley Yakeley Post author

          Right, but that’s still a bad outcome which you have an obligation to prevent if you can. If you ought to have known your partner would regret it, you shouldn’t have had sex.

          Reply

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