The Problems with Consent

[Artaxerxes II]

The Problem with Consent

"Consent itself is a concept fraught with metaphysical assumptions. "On a theoretical level, the notion of consent is notoriously difficult to pin down. For example, feminists (and law makers) to this day have been struggling to define consent so that they can decide once and for all what constitutes rape. Rape, for nearly all people, is the ultimate example of sexual violation, so in many ways it has served as an archetype of sexual immorality in Western sexual ethics and liberal thought. And, of course, what makes rape a violation is the absence of consent. And while, in the case of a stranger sexually assaulting an unwilling person, the meaning of consent and its relevance to the moral status of the act is crystal clear, for other sexual behaviors and scenarios the meaning and relevance of consent is far less obvious.

"Some extreme feminists, for example, argue that for a sexual encounter between a man and woman to be fully consensual, the man must continuously ask for permission throughout the act of intercourse since, at any moment during the act, his partner might change her mind and not want to proceed, in which case, what was permissible intercourse becomes rape. "In this vein, it is argued that for sex to be truly consensual and hence morally sound, every act between the sheets must be preceded with an, “Is this okay?” and a verbal affirmative from one's partner. Before any change of position, any touch, kiss, or movement, a partner must stop and get formal authorization in the course of what would be a normal sexual encounter. (Yet, we are to believe that it is Islamic law that is autocratic in its regulation of sex compared to the supposed “Caligulan permissiveness” of the modern West!)

"Other feminists and liberal theorists wonder whether the institution of marriage can ever be anything other than slavery and institutionalized rape. After all, given the existence of patriarchy even in modern society and how men are comparatively more powerful than women on average in terms of wealth and influence, how can any woman be independent enough to provide meaningful consent?"

"Beyond internal debates within feminism, there are other sexual behaviors where the significance of consent and its connection to morality are opaque. Again, let's consider voyeurism. A man spies on women in a dressing room without them ever knowing about it. Since the women do not consent to being watched, consent-based sexual ethics deems the man's action as morally wrong. But from a purely secular materialistic perspective, what impact does the man's spying have on these women? Clearly, there is no physical or psychological harm to the women since they are none the wiser. One might say, well, maybe the man records what he sees and passes that along to friends and the overall reputation of the women is harmed.

"-But, for the sake of argument, let's assume that this does not happen, that the man does not record anything and just enjoys what he sees in the moment. In this case, presumably we still believe this is morally wrong, but why? From the perspective of secular materialism, what is so special about consent that it can operate beyond the realm of physical or mental harm? Does consent have some kind of metaphysical or supernatural significance that is not captured by any physical factor? Wouldn't this mean that even secular sexual norms, insofar as they invoke consent, have a metaphysical component, not unlike religious sexual morality?"

--From Daniel Haqiqatjou's essay, "Debating Homosexuality."

[Artaxerxes II]

Another article regarding the issue of consent: https://www.thepublicdiscourse.com/2015/09/15171/

The Limits of Consent

Earlier this year, an article in New York Magazine featured a story involving an eighteen-year-old woman who plans to marry and have children with her father. When the interviewer asked her to respond to those who might question her relationship, she offered the following reply:

I just don’t understand why I’m judged for being happy. We are two adults who brought each other out of dark places … When you are 18 you know what you want. You’re an adult under the law and you’re able to consent.

Her reasoning is typical of contemporary liberal approaches to sexual morality, which are usually justified by appealing to mutual consent. So long as an activity is performed in private between consenting adults, it is argued, there can be nothing inherently objectionable about what they do. Why? Because they have given their consent, and consent is what matters most when it comes to one’s decision to engage in sexual activity.

The implications of this position are far-reaching. Many have invoked the consent principle to argue for the permissibility of polyamory and consensual incest. Once we view the morality of sex as being determined only by mutual agreement, then it becomes very hard to make any principled distinctions about the shape of sexual relationships.

When Consent Goes Wrong

There are a number of problems with this way of understanding sex. The most obvious problem with basing sexual morality on consent is that we can consent to things that are bad for us. Here we need only to think of those who deliberately cut themselves, desire the amputation of a healthy limb, or intentionally neglect their own health. These persons may have consented to engage in these activities, but their exercise of autonomy is nevertheless bad and self-destructive. So the mere fact that we may agree to do something does not show that what we are doing is morally permissible.

The defender of liberal sexual morality might respond by making a distinction between consent and informed consent. The self-harmer may choose to engage in these activities, but he does so without the full knowledge and understanding of the self-destructive effects that accompany them. If he really knew what he were about to do, then things might have turned out differently.

But this response is problematic for a number of reasons. If informed consent is just a matter of knowing the risks of one’s actions, then it is quite conceivable that someone may still freely choose to pursue self-destructive actions, having understood and accepted the risks. Yet there still seems to be something deeply wrong with a person who chooses to engage in self-destructive activities, even if he understands the risks of what he is doing.

Perhaps the claim is that someone who is aware of the risks would not act in such a way, thus saving the consent criterion from counterintuitive implications. But how do we know that? Why think that a sufficiently informed person would not choose to engage in self-destructive activities? If the answer is that a sufficiently informed person would know what is really good for him and thus act accordingly, then what is doing the justificatory work is no longer his consent, but his knowledge of some further fact that works to govern his decision-making.

Indeed, the appeal to some fact beyond mere consent ends up betraying the liberal position. Consent only has value insofar as it is used to make decisions based on knowledge of what is good for us. The issue then becomes one of determining what is in fact good for us as human beings. It is this issue that lies at the heart of contemporary debates over sexual morality and public policy. It is not about equal rights, but about what rights there are and the conception of human nature from which they flow. The value of consent lies not in the ability to make our own decisions, but in making the right decisions.

Why Consent Alone Is Inadequate

On a deeper level, the most important problem with liberal appeals to consent is that they misunderstand the very function of consent. To give consent is to give permission for someone to do something that he would otherwise have been forbidden to do. Consent works by delegating permissions from those who have them to those who do not. When one gives consent, he is handing over a “moral key,” so to speak.

This, of course, assumes that I have the pre-existing right to authorize some course of action. I cannot give permission for someone to do something if I am not authorized to grant it. I cannot, for instance, legitimately consent that my friend take my neighbor’s property, for I myself have no right to it. I may say that I am giving permission, but my consent is worthless, since it is not mine to give. My consent cannot confer a moral license to do something if I do not have that license myself. Thus, appealing to consent to justify some controversial sexual activity only works if the kind of sexual activity in question is already morally licit. If it is not, then consent cannot justify it.

The Harm Principle

Appeals to harm fall short in much the same way. It is sometimes said that since certain private sexual activities between consenting adults do not harm anyone, they are therefore morally permissible and should be legally allowed. This argument appeals to a version of John Stuart Mill’s famous harm principle. In a famous passage in On Liberty, Mill writes that the “only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

The problem with this argument centers on the meaning of “harm.” Persons can be harmed physically, morally, spiritually, psychologically, culturally, educationally, financially, and in many other ways. A harm is simply a setback to any kind of flourishing, and persons flourish in a variety of ways. In a moral sense, every immoral action necessarily harms both the person and the community, for in acting immorally he acts against the moral order. If certain sexual acts are immoral, then they are necessarily harmful as well.

We cannot speak meaningfully of harm prevention without adopting a prior theory of what it means to flourish. As result, the state cannot be neutral when it comes to issues of consent, autonomy, liberty, and harm reduction. Since invoking these concepts presupposes some prior understanding of the good life, the state must inevitably adopt some comprehensive moral framework when it comes to regulating social life. The question then becomes: “Which framework should we adopt?”

This is a question that has been conveniently ignored by contemporary liberals, especially when it comes to the same-sex marriage debate. While natural law critics of same-sex marriage have argued for a comprehensive understanding of the nature of marriage, advocates of same-sex marriage sidestep the metaphysical question and instead appeal to the question-begging language of equal rights. But as we have seen, the debate is not about equal rights, but about the nature of marriage.

The Purpose of Freedom

Sexual liberalism’s misguided view of consent is a symptom of a deeper problem: we have forgotten what it means to be free. Our power of free choice, like the rest of our nature, has a purpose. The point of freedom is not to choose whatever we want, but to choose only those ends that are in accordance with our rational human nature. It is this exercise of freedom that gives rise to self-mastery. This classical understanding of freedom was best expressed by Samuel West, in a sermon delivered to the Massachusetts legislature in 1776:

The most perfect freedom consists in obeying the dictates of right reason, and submitting to natural law. When a man goes beyond or contrary to the law of nature and reason, he becomes the slave of base passions and vile lusts; he introduces confusion and disorder into society, and brings misery and destruction upon himself. This, therefore, cannot be called a state of freedom, but a state of the vilest slavery and the most dreadful bondage. The servants of sin and corruption are subjected to the worst kind of tyranny in the universe. Hence we conclude that where licentiousness begins, liberty ends.

We must not merely consider what a person wants but also what he should want. By valuing freedom as a good in itself, we have lost sight of what freedom is for. Not all choices are created equal. As West observes, we are most free when we use our freedom to perfect ourselves, and we perfect ourselves by making choices that respect the goods that are constitutive of our human nature. The “most perfect freedom,” in other words, consists of the pursuit of truth and the rejection of error. When choices are guided by emotion and passion instead of reason, the person is no longer in control. While one may feel liberated, he becomes a slave of the non-rational.

The purpose of freedom is to choose. But what should we choose? Just anything? What moral principles should constrain our choices? Once we grant that our choices should be constrained, we have given up a view of freedom in which the exercise of freedom is a good in itself.

We must first look to human nature and understand the goods that fulfill it. Only then can we really understand what it means to be free. Appeals to consent, autonomy, liberty, and harm all rest on moral assumptions that need to be justified. While conservatives have offered powerful defenses of their moral assumptions, this task has been ignored by defenders of liberal sexual morality.

[Harlan]

Everything written above is an unnecessary overcomplication IMO. In simple terms it is just communication between people, as a result they exchange approvals from the beginning and throughout the Activity. Each person gives feedback if they is not wanting , not pleased, hurt or scared. But on top of this model, there are many hypocritical moral prejudices.

Some people are allowed to bypass moral restrictions, for example pediatricians and surgeons are allowed to touch children's genitals, perform circumcisions and their actions do not lead to lifelong psychological trauma. If trauma really did occur from "bad touching," then it would occur from any touch. In other words, society itself loads certain actions with trauma.and removes this burden whenever they wishes.

[Bookshelf]

I think that one of the biggest problems with our concept of 'consent' is how it's uniquely applied to sexual behavior, in contrast with other behaviors that similarly need consent. There's a nigh-religious perception towards consent in a sexual context that simply doesn't exist towards consent in other contexts; that sexual behaviors are so complex, so extraordinary that they need an in-depth, detailed understanding in order to have the ability to consent them... which is unique from different activities, even more complicated ones.

For example, it will be said that there is an applied special meaning behind something as simple as oral sex, so much so that you need a certain level of development to truly understand it and its associated risks. However, an activity that is associated with far greater, life threatening risks - being driven in a motor vehicle - does not require the same kind of development to understand and thus consent to. Car accidents are the #1 cause in death of children in the entire developed world, with the exception of the USA where it's #2 below guns. Despite the clear risk, the ability to consent to being driven around on a car, whether to school or some Sunday drive, is not even a question. Often their permission isn't even required for participation, never-mind consented to. The decision to get into a car is one in which you must acknowledge the risks involved, and it's significantly more complicated than any regular sexual activity - and yet it is the sexual activity that needs a special layer of consent.

Another example to emphasize my point would be diet, particularly fast food. Nutrition is complicated. Most fully developed adults don't really understand it either. Despite the severe risks associated with a poor diet, permitting a willing child a weekly trip to McDonald's isn't looked at the same way. Excuses are often made. Overweight children are more likely to be looked at as a simple parenting style, rather than something abusive. Much like driving at the convenience of the parent, the "ability" for a child to consent is either irrelevant because the adult has made the decision for them, or it's accepted that they can consent in these scenarios; either way, it leaves sexual behavior in an unusually unique spot, which few other activities - no matter how great the risk is - can compare to.

[Kara32]

Consent is one of those strange issues. Like other posts, consent is such a wide thing, it doesnt just include consent to sex. One of the things in the UK, that probably not many know about is the 'gillick comptence'.

Now this term which is enshrined in law came about when a mother went to court, to demand that health services tell parents when a child wants to access care and consent to any type of care/ treatment and when they are under 16 years old. Her actual case was regarding contraception. In UK, people can attend family planning clinics to get treatment and contraception. This is primarily done on the NHS.

The reason Ms Gilick went to court was that up till that point there was no fixed age. Anyway she took this to court and the 1st court ruled that parents could not demand this. The court basically stated that as long as the child was deemed 'competent' and was at such age to show competence then the parents did not have to be informed, if the child didnt want this. The legal argument of age of consent was irrelevant to the court. Only the competence of the child to consent. The competence assessment was set by health regulatory bodies. The court did order that if the issue was related to sex and the child was under 13, then bodies such as police, social services and probably they would inform the parents. Plus if was an abusive relationship, then the same applies.

Ms Gillick was not happy about this and took it to the 2nd highest court and won. The UK doesnt have a written constitution and matters can change depending on the court, with non political judges ruling on previous cases and other laws. Anyway Ms Gillick was apparently very happy. The court however referred the case to the highest court of the land. At that time, the law lords in the House of Lords, this being before the formation of the UK Supreme Court. This being the top court whoever won, that would be the law, unless the House of Commons (the elected chamber), changed the law.

The law lords, looked at the case, looked at other laws and ruled against Ms Gillick. Thus the "Gillick Comptetence" was legal.If a child 13 or over met the competence, parents or anyone else have no legal right to know. Now you thought be massive furore from the population. Making the House of Commons, change the law. It never happened. Of course the competence is strict and health professionals do encourage 13 - 16 year olds to tell their folks. If the child passes and says no, then it between the health care professional and the child.

Now the law on sexual consent is 16, that is the law as well and strictly upheld. Taken photos that of sexual nature even if a 16 to 17 year gives consent is illegal. Which strange as basically a 16 year old can have sex and give consent to someone of any age but if they then send that person a photo say in sexy undies, that against the law. That 16 year old can though get breast implants etc or have an abortion as at 16, you deemed to be able to make medical consent issues from the age of 16.

However the courts ruled that a child above 13 can consent if they pass the "gillick competence" assessment. They can get condoms, the pill, any sexual health family planning even at 13 and know one apart from the clinic will know.

So welcome to the weird consent laws of the UK. The courts basically saying that a child of 13 years old can consent. Sometimes to life changing decisions. However only related to some laws.