Some Comments on Hallie Liberto's Realm of Discretion
This post was co-authored by Kelsey Vicars and Jordan Joseph Wadden
In this modification, Jo’s realm of discretion would include “being the cause of pain” without a specific individual in mind. This causes a tension, in theory, because Liberto wants to say that Casey’s pain is uniquely within Casey’s realm of discretion.
There’s much to talk about in Hallie Liberto’s “Intention and sexual content”. One particular idea that we both want to explore is the idea of a realm of discretion. Liberto uses the realm of discretion to capture, in fewer words, the idea that the decision whether we have sex with another person is something that is within our exclusive realm of control.
Liberto introduces several cases that she takes to involve deceit but that do not undermine consent. For example, Paternalistic Deal Breaker involves a case of two partners having sex. One partner, Jo, notices a pained look on the other partner, Casey’s face. That Casey is in pain would be a deal-breaker for Jo: Jo would want to stop having sex and would no longer consent if they knew this information. Casey is aware of this, but they also want for Jo to be happy. So, Casey lies and says they are not in pain. This case is meant to show how the deceived does not “need to know the truth in order for their consent to be morally valid” (p. 136).
In Paternalistic Deal Breaker, Liberto claims that the reason Jo consents despite having been deceived by Casey, is because Jo does not have a specific right against Casey that Casey not have sex with Jo when Casey is in pain. The decision to have sex with another person falls within our exclusive domain of discretion. But, when we attempt to include information pertaining to another person’s realm, then we over-reach, and we fail to describe an actual right that we hold. Liberto takes the information being withheld by the deceiver (that Casey is in pain) to be outside of deceived’s realm of discretion.
We wonder why this information would be outside the deceived’s realm of discretion, and are not sure why some of these cases describe rights that we don’t actually hold. If what the deceived is being deceived about is something that would be a deal-breaker for them, and an act that they would not consent to if they knew this information, then it seems that that information might be very much a part of their realm of discretion.
To take a non-sexual example: Kelsey has Celiac’s disease, and in the past has been less than careful about it. Her sister is very concerned about the harm that eating gluten causes her, but she also doesn’t know that much about what products people with Celiacs can’t eat. She makes a birthday cake for Kelsey that she doesn’t realize contains gluten. She asks Kelsey, “Can you eat this?” Not wanting to disappoint her or for her work to go to waste, she says “yes” (which is a lie).
Had her sister known that she couldn’t eat the cake, she would absolutely not have given it to Kelsey. Our sense is that this would be her choice to make, especially if she risks harming another person (whether culpably or non-culpably). This information seems relevant in her consenting, and seems like it might not exclusively be within Kelsey’s realm of discretion for this reason. Shouldn’t this choice fall within her right to give informed consent, part of which might involve having the relevant information about what she is consenting to?
Another, related, reason Liberto’s analysis of Paternalistic Deal-Breaker strikes us as odd is because it seems to highlight a tension between her ideas about consenting de dicto/de re and the realm of discretion.
Briefly, consenting de dicto means consenting to something in spirit. For instance, Dakota might consent to Alex bringing a third party to the bedroom without any specific third party in mind (perhaps Dakota wants to be blindfolded before and during sex). Consenting de re, on the other hand, means consenting to something specific. Dakota might consent to Alex bringing in Jamie as a third party, but no one else.
In Paternalistic Deal-Breaker, Liberto claims that Casey’s pain is solely within Casey’s exclusive realm of discretion. So, to assume Jo has any right over this fact is to over-reach in our description of Jo’s rights. But we think this might not be true, or at least not in all cases. Jo could be an extreme pacifist and believe that being the cause of pain for any human, not just Casey, is morally wrong. This would make ‘in pain’ a de dicto modifier.
I like this post a lot and am extremely sympathetic to your argument—there does seem to be something that Kelsey’s sister and Jo have in common, and it seems right to me that they have some sort of claim to knowledge, considering their proximity and close involvement in each situation.
ReplyDeletebut I also want to allow for Kelsey and Casey to make the decisions they want, even if it’s not “good” for them. perhaps Kelsey wants to eat gluten today, knowing that it will make her uncomfortable for a period of time but is willing to endure this pain for the joys of eating this cake. we can wish that she would not do so, but ultimately I think that choice should be hers (given that she is a rational adult)—I am an existentialist :)
my real issue is when it comes to Jo and Casey. I worry that a feminist critique of the act of sex within a heterosexual framework where the male partner is concerned about the female being in pain may obscure the roles of domination and submission traditionally entangled with heterosexual gender roles and sexuality. after all, the word “paternalism” comes from acting “father-like” and telling others what is “for their own good.” some authors, such as Lux Alptraum, suggest that women lie during sex because they are doing it for good reasons, like protecting themselves. maybe Casey is in pain because of a medical condition that she is not ready to disclose to Jo. perhaps she is always in pain when she has penetrative sex, but wants to have it anyways—perhaps due to cultural pressure, or maybe she just doesn’t mind the pain. she may even like the pain, or consider it worth enduring to achieve orgasm.
I do think that the line between what is paternalistic/over-reaching and what choices we allow others to make is blurred and I don’t have an answer, but just wanted to add my ideas to this. thanks for a thought-provoking commentary!
Thanks for the reply! I agree that there can be some additional considerations we need to take into account when applying this to a heterosexual framework. However, I also think it's interesting to note that Liberto doesn't gender Jo or Casey in the case (and both are pretty gender neutral names). I think she's doing this in part to avoid some of these worries that you've raised to focus in on examining the realm of discretion itself.
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ReplyDeleteThanks for this post guys! This is a really interesting case. I have two thoughts:
ReplyDelete1. The non-sexual case involving Kelsey’s sister doesn’t seem to me to be a straightforward case of consent. Maybe modifications to the case could make this clearer, but as it stands, I worry that giving someone a cake/asking if they can eat it stretches the notion of consenting to an activity. This may be even more complicated if you share the Lazenby/Gabriel view that we don’t have positive rights to information, but rather that we have claim-rights that are derivative of our negative rights against bodily contact. I’m not sure what the corresponding negative right would be in your cake example.
2. I’m a little bit confused about the way that Liberto’s de dicto/ de re distinction fits into your analysis. On my reading, Liberto thinks that de dicto modifiers generally will not undermine the scope of consent because it is very rare that we intend to consent to a person de dicto. In the case Liberto offers as an example of consent to a person de dicto, there is a very religious person who /only means to consent/ to her spouse. As far as I understand Liberto, it would not be enough for Jo just to be an extreme pacifist with certain beliefs about the morality of causing harm. For the ‘in pain’ to be a relevant modifier to the scope of consent, Jo would need to intend to consent to something like “the not-in-pain person in front of them”.