Thursday, February 16, 2017

The consent norm for sexual activity is insufficient

Consider the thesis that consent is the only norm of sexual activity. Of course, this does not imply the crazy claim that every consensual sexual act is permissible. Some consensual sexual acts violate promises, or constitute the neglect of some non-sexual responsibility (e.g., sex while driving), or just have sufficiently bad consequences for one or more people. Rather, the thesis can be taken to say that consent is the only norm of sexual activity as sexual, that it is the only distinctively sexual norm.

The thesis is still false. To see this, we will need a distinction between things that are very wrong and things that are wrong but not very wrong. Then:

  1. Every case of coitus without consent is a case of rape.
  2. Every case of rape is gravely wrong as a sexual act.
  3. There is a case of coitus which is wrong as sexual but not gravely wrong.
  4. So, there is a case of coitus which is not rape but is wrong as sexual. (2 and 3)
  5. So, there is a case of coitus which is wrong as sexual even though there is consent. (1 and 4)

(When I say that a case of coitus is wrong, I mean that at least one party responsible for the coitus is in the wrong. That party could be one of the participants in coitus, but need not be: a rapist does not actually have to participate in the act of coitus, but could instead force two other people to engage in coitus with themselves.)

I think premise 3 is very plausible. It would be quite surprising if sexual wrongness of coitus only came in grave and not-at-all varieties, with nothing in between. But I can also offer an argument for premise 3 (I’ve used this argument in a previous post which gave a similar but perhaps less clear argument) assuming that consent is the only norm of sexual activity—the target of my argument obviously can’t dispute that.

We imagine a continuum of cases of coitus, where at one extreme there clearly is no consent and at the other extreme there clearly is consent.

(For instance, it could be a set of cases where a party threatens an adverse consequence if coitus is not engaged in: at one end, the consequence is torture and at the other end it’s a minor expression of minor displeasure. Accepting coitus as an alternative to torture is not consent. Accepting coitus as an alternative to witnessing a minor expression of minor displeasure can be consent (assuming that minor displeasure is all there is; obviously, minor displeasure from a tyrant could have further adverse consequences—including torture and death).)

Assuming consent is the only norm of sexual activity, there is no sexual wrong at the consent end of the continuum and there is grave sexual wrong by (1) and (2) at the no-consent end of the continuum. Given continuous variation in cases, we would expect continuous variation in wrongdoing. So if at one end we have grave sexual wrong and at the other end no sexual sexual wrong, somewhere in the middle there should be a case of non-grave sexual wrong, which is what premise (3) says.

Note how the enthusiastic consent alternative to the consent norm nicely escapes the argument. For the proponent of the enthusiastic consent norm case can agree to (2) but say that there are some non-grave sexual wrongs. These non-grave sexual wrongs could, for instance, include some of the cases where there is consent but the consent is insufficiently enthusiastic.

Pragmatically speaking, this is a risky argument to use in teaching. The problem is that a student might try to get out of the argument by denying premise (2) which, given the rape problem on many campuses, would be very bad. On the other hand, if students have a sufficiently strong commitment to (2), this argument could have positive consequences for campus sexual culture by getting them to realize that minimally-valid consent is not enough for permissibility (even if by definition it is enough to make the act not be a case of rape).

Philosophically, there is a technical weakness in that the notion of a sexually wrong act is a bit foggy. I think one can reformulate the argument by dropping the “sexual” qualifier in the argument but specializing to cases where there is no promise breaking, there are no bad non-sexual consequences, etc. But it’s hard to explicate the “etc.”

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