Tuesday, January 2, 2018

Consent Is Not Enough

Our culture needs to spend more time on two important questions that are increasingly being asked in the wake of the sex scandals rocking Hollywood and Washington, D.C.

First, is consent sufficient to grant moral goodness to any sexual act? After all, we don't simply assume that consent equates with morality or goodness other situations. Two people can agree to kill or cannibalize each other. The fact that they consented hardly makes it a good thing. One can certainly make a morally neutral act bad by coercion, but one can’t make a morally bad act acceptable simply by agreeing to have it done or by giving permission to do it. In terms of sexual activity, the goodness of an act can never include anything less than consent, but it must include more. Consent is necessary, but not sufficient.

Second, when is the one granting consent not actually granting consent? Think of the issue of minors engaging in sex with adults. If a minor is below the age of consent, the idea is that they are not even capable of consenting in any meaningful sense of the word, because they are not mature or rational enough to truly understand what they agreeing to do. That principle can be broadened:
  • What if someone who was abused has had his or her perspective on sex so badly damaged that consent is not a reflection of an affirmative desire at all, but of broken resignation?
  • I have read several articles (such as this one) and sobering books that take an in-depth look at the hook-up culture, especially how it exists on college campuses. If a woman gets drunk so that she can get over her natural inhibition or even dislike of what will eventually happen with someone she meets at a bar, is her consent really consent? She doesn’t really want to, but it’s how she believes the game must be played, so she numbs herself in order to say “yes.”
  • If two adults consent to actions that are degrading, perhaps even dehumanizing, and which will be formative in them and those who watch (if it is porn), is mere consent sufficient to give it our stamp of approval? 
  • What if two adults are in a relationship and one says, "Well, if you won't have sex with me (or if you won't have more sex), this relationship is over." If the partner fulfills the other one's wishes, is that truly consensual sex?

We must gain moral clarity on this. These questions matter not just for the individuals involved, but for the cultural mood that is created based on how we respond. Rather than give a prolonged essay on my view, I am offering a collection of excerpts from articles addressing this issue.

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Weinstein is unusual in the amount of power and the number of people he was able to coopt in the service of his evil, but all sexual assailants and workplace harassers depend on structures of power and norms to help them harm others. We give them cover when we normalize behavior that is just shy of assault, allowing predators to pass as just a little too pushy or boisterous. 
Rapists are aided by the prevalence of rape-adjacent sex—that is, sex that isn’t legally rape, in that consent is not withheld; but consent is not secured, either. For instance, sex with someone you don’t know well enough to tell whether they’re just tipsy, or too drunk to consent. Sex with someone whose “Well . . . okay” you aren’t sufficiently familiar with to distinguish coyness from fearful acquiescence. Sex with someone whose beliefs about sex you don’t know, so you find their boundaries by trial and error, not by talking ahead of time, with your clothes on. (It’s no coincidence that all of these scenarios are much more likely when people have sex with strangers or near-strangers. It’s very hard to will the good for someone you know only as a generic type.)…  
In the office, vulgarity similarly functions as near-harassment, even when a raunchy joke is genuinely appreciated by its hearers. Every moment of crudity normalizes sex-as-assault, if only at the level of making someone else uncomfortable.
- How Vulgarity Normalizes Predators. 

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There's this idea that the kind of dynamic that we've spent the past few days hearing about in detail is natural, somehow. That it's embedded in our nature. That this dyad – the older rich and powerful guy and the beautiful young woman – is an evolutionary pairing; nature's red-carpet ready way of ensuring the survival of the species. This is bullshit of the highest order. We'll believe it the day we see Woody Allen kill a bison with his bare hands. 
Flexing power to coerce sex from the less powerful isn't natural, it's abuse. And abuse is not natural, it's cultural. Abuse flows from a socially-sanctioned sense of entitlement; from the belief that rich, white men are entitled to more control over speech, over resources, over law, over everything, than non-rich, non-white men and all women. That they are entitled to control who leads, who works, who speaks.
"Why The Harvey Weinstein Allegations Could Change Our Culture"

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In the situations described below, the law doesn't recognize the consent given. This is because certain factors, such as fear, cancel out the consent. 
Consent is given because of fear. Someone agrees to take part in a sexual activity because of fear of violence if she refuses.
Consent is given because of force, threats or fraud. Someone agrees to participate in a sexual activity because of a threat or because someone used violence to force this agreement. This is also the case when someone agrees to sexual activities if a condom is used to prevent pregnancy and the partner puts a hole in the condom so it will not work.
Consent is given under the influence of someone in a position of authority. For example, a person agrees to sexual activity with his employer because she threatens to fire him if he refuses.
Consent is given by someone who cannot give proper consent. Someone who is unconscious, too drunk or has been drugged, for example, by a date rape drug, cannot consciously agree to a sexual activity. This is also the case for people suffering from mental disabilities that make them unable to consent, and for people who aren't old enough to consent to sexual activities.
Consent was given, but the person loses consciousness.Consent isn't valid for any sexual acts that take place after someone becomes unconscious.
“When Consent to Sexual Activities Is Not Valid”

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The law is clear, and has been since 2003, that if one person does not consent to sexual activity, with the freedom and capacity to give that consent – and the other person doesn’t reasonably believe there is consent – then it is an offence. Of course it is the job of the Crown Prosecution Service to prove this in court. 
Capacity means that someone who is under severe influence of drink or drugs; someone who may be young or have certain learning disabilities; or who is asleep, may not be able to consent to sex. Freedom means that someone under pressure – for instance, within an abusive relationship or under pressure from someone in a position of trust (like a teacher, doctor, priest), or power (like an employer, gang leader, prison officer) may also not be considered to have freely consented.
"Sexual consent is simple. We should all be clear what constitutes rape."

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The problem is that, without a sense of a true good in relationships, we don’t know to what we should consent. We are left with an arbitrary act of the will; it is an empty form with no content. The fixation on consent obfuscates larger problems: don’t we have to start to ask what people are consenting to, for the term to have any meaning? And are there cultural conditions necessary for a woman to be able to give consent? 
We swim in a culture marked by what Helen Alvaré has called “sexualityism”—the conviction, springing from the sexual revolution, that any sex with anybody is probably a good thing. In this construct, non-procreative sexual expression is a simple necessity intrinsically tied to human fulfillment and personal identity (according to none other than the Supreme Court). This idea was also analyzed and criticized, in a somewhat different way, by Michel Foucault. A culture of sexualityism is not neutral; in it, the good of sexual expression as an end in itself cannot be intellectually challenged. All that is left is the will: do you choose it, or not? Consent carries the day. 
If something is a basic human good, it is unreasonable to refuse it. One might consent not to sleep for obscure reasons of one’s own, but the burden of proof would be on the non-sleeper to defend her decision. I call this “the default of the yes”: it is reasonable to choose a good thing, and so it is expected that one will choose it. Thus has the seemingly freedom-friendly principle of the innate goodness of sexual expression become a weapon to attack the persons and institutions who do not agree. The apparent enshrinement of consent actually attacks the very foundations of consent itself: sexualityism puts a thumb on the seemingly impartial scales of choice. As women have observed about the “choice” for abortion, so too here: what begins as a right often turns into a duty.

* * * * *
How often does it happen that the seemingly gentle and harmless men end up violating us? The pressure to give consent makes consent null and void, but unless that is communicated, does it matter? Does consent require verbal communication? If we can’t communicate our discomfort, can we really say Me Too? Is discomfort something that can be communicated through body language? Is every no a resounding no?
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The principal mistake of current rape-culture rhetoric is that it attempts to address the issue from within the framework of the hookup culture; that is, it first assumes that consent is the primary—if not only—moral criterion to be considered when it comes to sex (what I will call a “consent-only sexual ethic”) and then tries to craft a response to rape culture from there. The problem with this, however, is that by adopting a consent-only sexual ethic, critics of the rape culture have already ceded its most fundamental premise, since consent—far from being the solution to rape culture—is in fact at the heart of the ideology that perpetuates it. 
Because the defining characteristic of rape is that it is forced (i.e. against the will of the victim), consent seems to be the obvious direction in which to look when searching for a solution to rape culture. The danger with this approach, however, is that it often assumes the problematic framework of the hookup culture, at the heart of which is the idea that sex can be whatever we want it to be—casual, romantic, unattached, significant, pleasurable, painful, dominating, submissive, one-sided, mutual, etc.—so long as it is consensual.... It is only because the hookup culture assumes that sex has no intrinsic meaning or value, that all sexual limits and boundaries are ultimately subjective and personal, that it can proceed to say, “Anything goes, so long as it’s consensual...” 
This, however, can only be the case if it is already assumed that there is nothing special about the act in question that might affect its prior permissibility. For example, my consent to have my body cannibalized only makes a moral difference if cannibalism is already assumed to be morally permissible. If cannibalism is not morally permissible, then my consent is irrelevant, as the act of cannibalism would be immoral regardless.  
Likewise, if I sell myself into slavery, my consent is only morally relevant if it is already assumed that there is nothing unique about buying and selling human beings that might give this act prior moral significance. For if there were something intrinsically reprehensible about the commodification of human beings, my consent would be irrelevant, as the act of slavery would be morally impermissible regardless of whether I consented or not. Thus a sexual ethic that sees consent as the only morally relevant issue must already assume the prior permissibility of all sexual acts. But to assume that all sexual acts are already morally permissible is to assume that there is nothing special about sex that might give it moral significance in its own right...
"Rape Culture and the Paradox of Consent"

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I was surprised by the headline when I saw it last month: “Florida Teen Faces Charges for Same-Sex Relationship.” As I read more about the case of Kaitlyn Hunt, I discovered that the headline was misleading. The charges themselves are not about the gender of the parties in the relationship but their age. Hunt, 18, was dating a 14-year-old girl and Florida state law says that individuals under 16 years of age are not able to give legal consent to a sexual relationship. 
As I thought about this case, I connected it with an article in The Atlantic about sexual ethics in sadomasochistic pornography. Author Conor Friedersdorf argues that consent is the ultimate arbiter of sexual ethics. If someone willingly performs a sexual act, no matter how degrading or inhumane, this is to be celebrated as the ultimate end of sexual freedom. 
These two stories drove me to contemplate the ethics of consent and sexuality. Is consent really the proper arbiter of sexual freedom? What role, if any, does consent play in a Christian sexual ethic? Can we as Christians formulate a notion of sexual freedom that transcends and supersedes the so-called freedom of consent as the final arbiter?
As we wrestle with these questions they quickly become complicated. At what age is one able to give consent? How do other factors (socio-economic status, power dynamics, life history) affect one’s ability or inability to provide true consent? 
 "The place of consent in a Christian sexual ethic"

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