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:
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