The Metaphysics of Consent

Far too many people see the world merely as it is, and do not think to look deeper. This is a shame, because when one bothers to dig out the underlying principles that guide the things that are, the world suddenly looks very different.

Consider feminism. Feminism and all its derived theories are driven by the attempt to seize as much power and as many resources away from men as possible and to isolate women as much as possible from any and all negative consequences of their decisions. Understand this and you understand all feminism.

From there, of course, we can put all aspects of feminism in perspective. It does get boring to do so all the time, however. It makes it so easy to write the whole thing off. Sometimes it’s a nice bit of fun to treat feminist viewpoints seriously and subject them to rigid analysis.

Consider one small branch of feminist theory, feminist sexual ethics. The guiding principles of this part of feminism can be summed up in one word: “consent”. “Consent” is, as the centerpiece of feminist sexual ethics, imbued with an almost religious reverence. It is the alpha and omega of feminist sexual theory, and so it can fittingly enough only be described in absolutes. “No” means No, and “Yes” means Yes (though the latter is not always so set in stone).

It is a quaint view, but reality is not so easily described. There are a few key assumptions that are being relied upon here, assumptions that I do not think are defensible starting points from which to base an ethical theory.

The first contention I have begins in well-trodden territory: What defines consent? Under the feminist model, the gold standard is direct, unambiguous, verbal consent. Anything less than that is insufficient.

While straightforward and sensible, this model is deficient in regards to actual human behavior. Non-verbal affirmative answers like a head nod or a certain type of eye contact are constants in ordinary (not just sexual) human behavior. It is thought that verbal communication comprises only about 7% of total human communication. Is it prudent to ignore 93% of what people are saying to us?

Additionally, as many professional womanizers will tell you, even “No” doesn’t always mean no, with the frequent meaning being “not now” or “try again later”. While it is obviously right out to assume that “No” never means no, any model of consent perhaps ought to consider the possible temporal nature of such nuanced dictions, perhaps by allowing future indicators of consent, both verbal and non-verbal, to override prior refutations.

But it is not my aim to build such a model at the present time, merely to lay out some of the hurdles that a proper model will need to overcome. Another one of these hurdles is the role that emotion plays in influencing the giving of consent. Emotions are complicated things, and do not often provide a useful guide to whether consent should be granted. We must also bear in mind that emotions are not the only factor at play here. Ones’ logical thought processes also contribute to the decision-making process.

This dynamic between the rational and the emotional decision-making pathways is what influences the process of giving consent. When they line up, things are simple. Consent is enthusiastic or rejection is straightforward. Yet, when thoughts and emotions do not line up, the situation becomes tricky. Consent may still be given, even if half-heartedly. How are we to judge these situations?

My assumption is that the feminist model would assume that anything less than full, verbal, straightforward, enthusiastic consent is off-limits. Yet, this fails to cover the multitude of times in which individuals engage in sexual activity less than whole-heartedly (perhaps getting more into later, or perhaps not…this is irrelevant). Should this kind of sex be off-limits?

And if proper sexual conduct is based on a certain level of enthusiasm between (or among) the participants, what level of enthusiasm is proper? Should they be at least 60% into it? 75%? What if one person is indifferent, but one person wants it greatly? This could be defended on utilitarian grounds by pointing out that one person will neither be harmed nor helped by this action, but the other person would see a great benefit in happiness.

But let’s end this digression before I wander too far off into minutiae. My point is that in situations in which thoughts and feelings are in conflict, one of those processes is going to have to win out. In these circumstances, has proper consent manifested itself?

This is not an easy question to answer, but it seems intuitively obvious that someone can give consent even if they are not 100% committed to the decision, in the same way that we could make any decision (what to eat for dinner, which car to purchase, what book to read) without being 100% certain of which option we would prefer. So perhaps 100% is too high a level to ask for when it comes to giving consent. But what level is the cut-off, then? If not 100%, then 99%? If not 99%, then 98%? Any model of consent that demands 100% support in making the decision would end up instituting an incredibly strict sexual norm.

Trying to suss out the details here is likely to cast this analysis into the howling maw of Charybdis, a fate that I would like to avoid. Merely skirting the edge of those dangerous waters is sufficient, I think, for my purposes here.

Another issue that must be touched upon here is that with the basing of consent in thoughts, feelings, and the interplay between the two, the giving of consent will be influenced by the capriciousness of ones emotions and/or thoughts. Emotions are fleeting and anything based upon them will be equally transient. Similarly, one can be convinced logically to believe that giving consent is a good or a bad idea based upon circumstances. Any model of consent is going to have to realize that this inherent instability in the nature of consent is going to have to be taken into account.

In other words, consent can be both given and taken away during the process of the act. Consider perhaps, how ones willingness to engage in coitus might diminish if a pet walked in and dropped dead, or if ones’ house caught fire. Situations and circumstances change. Correct models ought to be able to change with them. This means that a consensual situation can become non-consensual, and it also leaves open the hypothetical possibility that a non-consensual situation could become consensual, though how one should react to that possibility is perhaps going to depend on the specific model they happen to be working from. It is a possibility that opens up a certain can of worms, and while knee-jerk reactions to that possibility are defensible from the standpoint of human dignity and visceral disgust, any serious attempt to work out a model of consent is going to have to address that kind of situation, preferably in a logical and objective fashion, distasteful though it may be.

Finally, it seems a discussion of consent cannot be concluded without bringing up the involvement of drugs or alcohol. Obviously, past a certain point of intoxication, one lacks the requisite capacity for agency in such circumstances, but consider a circumstance in which one pre-emptively consents, with the intention of engaging in sexual activity while in a highly intoxicated state. Does your model of consent allow for this type of occurrence?

But that’s a bit straightforward. Consider the following example. A woman invites a man to her hotel room. He brings alcohol with him. They have a few drinks and get progressively more intimate as the evening goes on, which ends with the two of them having sex. Is this consent? Bear in mind that both people helped establish the logistics and both engaged in the process and pushed it along. Does your model also need to take into account how intoxicated they were? What methods of signaling consent were used?

It is a fact that individuals often consume alcohol or other intoxicants in situations in which they, consciously or unconsciously, are either expecting or at least hoping to have sex. Perhaps they may deny this to themselves in order to better match up their perception of reality with certain fantasies they may have. Self-delusion is one of the most human of all impulses. Still, when both parties are contributing to the build-up to sexual activity, it gets hard to make the claim that non-consensual sex occurred, especially if levels of intoxication do not go beyond what may be considered “moderate”.

It is in situations like these that the feminist model of consent, based on sober, straightforward, unambiguous verbal communication seems to over-extend itself. I will not go so far as to say that it is without any merit whatsoever, but I think there is sufficient room for improvement in this matter so as to merit the development of a more nuanced and practical model for the role of consent in sexual ethics (to say nothing of whether consent should even be the only relevant factor in this area).

Finally, I understand that under certain models, the entering into of institutions like marriage implies consent. This is a paradigm I will not address at this time. My aim at present is to lay out some potential issues with the feminist model of consent and to begin laying the groundwork here for a model that is better able to describe the tricky and seemingly illogical behavior of human beings while also retaining enough ethical weight so as to be of some use in guiding behavior during contested circumstances. I hope I even if I have not been wholly successful in that regard, I have achieved enough here so that there is room to refine and develop certain concepts in the future.

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