Is consent the thing that makes sex ethical?
Among many
liberals, consent is frequently cited as the thing that makes ethical sex
ethical; if consent is present, the thought goes, then sex is supposedly always
ethical. If consent isn’t present in sex, then it’s not ethical sex. My aim
here is to challenge the idea that consent is the thing that makes ethical sex
ethical by outlining a case where it seems likely that consent is present, but
where the sex that could take place in such a case would almost certainly be unethical.
The case: Consider
a child who has not been groomed, coerced, deceived, or manipulated in any way and
who wants to have sex with an adult. This child propositions the adult. The
adult considers whether to accept the child’s proposition.
Besides what
else might be said about this case, I think that most people will have the
intuition that for the adult to take the child up on their proposition in this
case would be wrong. Furthermore, I think that it is likely that if the adult
were to consent to having sex with the child in this case, the sex that would follow
would be consensual. If this second thought is true, given the moral intuition
that any sex between an adult and a child is unethical, this case indicates that
the presence of consent from all parties involved in sex is not enough to
guarantee that sex between these parties will be ethical. For those who want who
believe that consent is what demarcates ethical sex from unethical sex, an
explanation as to why the above case is a case of unconsensual sex must be
given in order to maintain this position. In order to explain what goes wrong
in cases like the above, those who hold such positions typically claim that
children are unable to sexually consent to adults, despite the fact that they
might want to have sex with these
adults. However, I’m not sure that this explanation of why the sex in the above
case is wrong is especially convincing.
I think
that we have relatively good reason to believe that a child in the above case
can be thought of as consenting. Firstly, it is very common among those who
think that consent demarcates the ethical from the unethical sex to assume that
those who actively seek out sex are engaging in consensual consent, even if
they are not the one explicitly saying “yes”, (this would typically be done by
the other party, in a sexual situation where consent is usually thought to be
present). Further, if consent can be attributed to those who initiate sex, as
is typical, then I don’t think it’s immediately obvious why we can’t attribute
consent to the child in this case. Now it does make sense to assume that very
young children are unable to grant consent, even to things that they desire;
for instance, if a child is too young to understand what would be entailed by
the thing that they desire, it probably doesn’t make sense to say that they are
able to consent to that thing.
Let’s assume,
however, that this isn’t the case with the child in the situation described
above. Let’s assume that this child is older, let’s say 14. It is not too hard
to imagine a case where a fourteen-year-old who generally understands what it
means to have sex with someone desires sex with an adult. Maybe this child has
even had sex before with one of his peers. In this case, then, lack of
experience or understanding isn’t a factor undermining this child’s lack of
consent, however it still seems to be the case that if an adult agreed to have
sex with this child then the sex that would follow would be unethical. Furthermore,
given the stipulations of the case, coercion, manipulation and deception – features
of cases that are frequently thought of as consent undermining – cannot be thought to undermine the child’s consent
in this case, since they are not present.
Finally, it
seems like other situations exist wherein we would want to say that a 14-year-old
could give consent. This might be the
case when it comes to medical procedures, for instance. If the same child is
able to consent medically, then it’s not obvious why that same child is
incapable of consenting sexually. Unless it can be explained why the 14-year-old
can’t give consent via initiating sex in the case that I’ve outlined, I argue
that this case outlines an instance of unethical consensual sex, and thereby demonstrates
that consensual sex does not always equal ethical sex.
The first alternative that comes to mind for me is to hold that for sex to be ethical, you need to make sure that the other person has consented. If you're not sure if the other person has consented (for example, if they made a sound you think might've been the safeword), then it's unethical to continue having sex, even if it later turns out they actually were fully consenting. To continue having sex with them would be to risk doing them a serious harm, and to put someone at risk is bad even if everything turns out all right.
ReplyDeleteUsing this standard, we might hold that it's possible for a child to consent to sex with an adult, but impossible for an adult to know that the child has consented. That's because in a relationship with an extreme power imbalance, it can be impossible to discern whether or not the person with less power is being manipulated or coerced in some way.
Do you think this sufficiently addresses the problem you're posing? Or do you think we need a more radical addition to the consent-based ethical view?
Thank you for your comment!
DeleteI definitely think that you’re right that it’s unethical to have sex with someone when you’re not sure if they’ve consented – even if they have, in fact, consented. I’m not so convinced that large power imbalances always make it impossible for the more powerful party to ascertain whether the less powerful party has consented.
Although I think that such a principle would yield intuitive and desirable results in cases that pertain to children, I think that such a principle would also have some undesirable consequences. For instance, this would mean that the only permissible sex is sex between similarly powerful individuals, since only individuals who are similarly powerful can ascertain whether or not others are consenting to sex with them. I worry that such a view disadvantages the very un-powerful and the very powerful (I am most worried about disadvantaging the un-powerful). Let’s think of someone who is likely to have a limited amount of power given the social and economic landscape in North America—Laura, a black trans woman from a poor background, for instance. If large power imbalances prevent the more powerful party from knowing that the less powerful party has consented, and if unconsensual sex is unethical sex, then unless this woman has sex only with those who have an amount of power similar to hers, the sex that she has will be ethically problematic.
If unethical sex is something that should be avoided, as we typically think, then such a view implies that this woman should refrain from having sex with anyone who has more power than her. I’m not sure I’m comfortable with this conclusion. One worry I have about this conclusion is that it would legitimize or encourage prejudice. For instance, we would have to say that a more powerful rich cis white lesbian, Cathy, who meets Laura in a running group, would be unable to have ethical sex with Laura as she would be unable to know if Laura was actually consenting to sex as Cathy is more powerful than Laura in virtue of her money and non-stigmatized social identity. Such a view would entail that the white woman should avoid having sex with the trans woman. At a time when many trans lesbians face discrimination from cis lesbians, I worry that a view like this one gives legitimacy to ideas like the one that cis lesbians should not sleep with trans lesbians.
Furthermore, I’m not convinced that children are always less powerful than adults. For instance, I think it’s reasonable to think that some very privileged children might have more social and economic power, in certain contexts, than very unprivileged adults. That said, I still have the intuition that it would be unethical in most cases for these adults to have sex with these children.
I actually am not sure if the consent-view of ethical sex is right. I think that there are a lot of factors involved in whether or not sex is ethical. The presence of consent might play a role (certainly non-consent seems like a big problem) but I think that lots of other things are involved as well. I think we’d do well to determine what else affects the ethics of sex.
I would love to hear what you think Unknown!
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