This is a condensed talk that I gave a few weeks ago at UW-Parkside. I’ll be dividing that talk into three separate posts.
Sexual consent has been getting a lot of attention lately. We often hear news about sexual campus assaults, rape culture, and affirmative consent. But what, exactly, is sexual consent? I want to contribute to the discussion by noting some various differences among three different theories of sexual consent and remarking what these different types entail. Sexual consent is based on the sexual choices, preferences, desires, and wants of the people involved. And yet, the ability to make choices, to exercise one’s preferences, desires, and wants of the individual is based on autonomy. Therefore, to discuss sexual consent, we must also talk about sexual autonomy. I will also show that these three different pictures of sexual consent correspond to three different types of sexual autonomy. I want to investigate these three different types, various advantages and disadvantages, and see what sort of individual best expresses sexual autonomy.
Procedural Autonomy and Consensual Minimalism
When discussing personal autonomy, there is a distinction between procedural and substantial autonomy.
Procedural autonomy means that an agent is autonomous when that person can freely choose an action. This view seems to be the most common, but this conception suggests that it does not matter what the action is or what kind of being the agent is. The content of people’s desires, values, preferences, and beliefs are irrelevant. All that matters is that the agent makes a choice through, at the very least, some critical reflection. Procedural autonomy is based on how the decision was made. Through this account, we ought to respect persons because they are autonomous. In short though, a person is autonomous as long as there are no constraints.
The first type of consent is what is known as consensual minimalism. Under this view, the necessary and sufficient conditions for what counts as consent is a voluntary informed agreement. The best representatives of this view are Mappes, Wertheimer, and Steutal and de Ruyter. In short, this position entails no coercion, deception, or incapacitation may take place otherwise, the action is unethical. At minimum, provided the people involved give permission to the sexual act, then the sexual act is morally permissible. Mappes applies Kant’s second Categorical Imperative and derives moral and immoral sexual activity. According to Mappes, sex is morally impermissible if at least one person involved in the sexual activity treats the other as a mere means, whereas morally permissible sexual relations comes about when the participants have voluntary informed consent. To undermine the other’s voluntary informed consent means that one coerces, deceives, or takes advantage of the other’s desperate situation.
Another way to look at consensual minimalism is to say that it is contractual. Raymond Belliotti argues that the
nature of these [sexual] interactions is contractual and involves the important notion of reciprocity. When two people voluntarily consent to interact sexually they create obligations to each other based on their needs and expectations. Every sexual encounter has as its base the needs, desires, and drives of the individuals involved. That we choose to interact sexually is an acknowledgement that none of us is totally self-sufficient. We interact with others in order to fulfill certain desires which we cannot fulfill by ourselves. This suggests that the basis of the sexual encounter is contractual; i.e., it is a voluntary agreement on the part of both parties to satisfy the expectation of the other.
While a voluntary agreement with another person is necessary for consent, to say the agreement is contractual makes it seem like the sexual relation is more of a business deal rather than a reciprocal agreement of fulfilling wants and desires. However, Belliotti does mention that this contract is based on the expectations of fulfillment of reciprocal needs. Moreover, there is a guide of reasonable expectation, and this is what the sexual contract entails: we are to help fulfill our sexual needs and desires and, in return, there is an implicit expectation to help fulfill the other person’s wants and needs, but not necessarily an obligation to do so.
We can see how procedural autonomy entails consensual minimalism.
Problems with this account:
There are many problems with consensual minimalism, but I’ll offer one.
Robin West and Lois Pineau have argued that consent in this framework is problematic. West has argued that traditional consent has mainly been for the benefit of the male. It is possible for a woman to have consensual, non-coercive, non-forceful, non-criminal, yet harmful sex. These harms, however, may be hard to discover. Many women consent to sex even when they do not desire it, and it is usually not pleasurable. So then why do they engage and consent to sex if they do not desire it or if it is not pleasurable? Through several vignettes, she reveals how engaging in sex multiple times under this context can be harmful: her self-assertion and self-possession is weakened, her integrity is lessened, and, most importantly for our discussion, her autonomy is draining. Having consensual but unwanted sex over time can take a toll on her. Since it is wrong to act in ways that cause (unjustified) harm to oneself or others, not all sexual activity engaged in under conditions of voluntary informed consent is morally acceptable.
Pineau discusses on a young woman who goes on a date with someone. She feels an attraction to him and believes that he feels the same way about her. She goes out hoping there will be mutual enjoyment with mutual interest. However, the mutual and reciprocal interest is not realized. The man uses aggressive, coercive tactics to have sex with her. She feels immense pressure to have sex with him, though she does not want to have the kind of sex he does. She is having trouble disengaging his body from hers, and wishes he would just go away. But she feels stuck because she feels afraid to say “no” lest his aggression become more violent. Instead, she goes along with him just to get it over. He does not even notice she finds the encounter disagreeable, and probably still would not have changed course if he had. He congratulates himself for his aggressive tactics in that they paid off. She, however, does not feel quite right with the experience. This woman described by Pineau could also be someone whom Robin West describes in her vignettes: she engages in sexual activities with a man for economic sustenance, or to lessen some violent outburst. For simplicity, let us call this woman Monica. (Keep this in mind as I’ll refer to her in future posts.)
There are also problems with procedural autonomy. The main critique against procedural autonomy is that it cannot explain away oppressive measures. How could the theory explain such deleterious activities such as selling oneself into slavery, the deferential wife who wishes to be subservient to her husband, or anyone that has effectively internalized oppressive norms and treats those norms as their own ends? Can we really say that those ends are really their own? Specifically, with internalized oppressive norms, what if society is structured in such a way that we are not really autonomous, but we think we are? These preferences influenced by oppressive norms cannot be autonomous but are really “adaptive preferences,” meaning that our desires and preferences change based on our surroundings. Thus, various choices we make may not be beneficial. Indeed, it can be detrimental to the self, even if we think it is a beneficial choice. For example, we may consent to prostitution or pornography not because this agreement was a full expression of our self, but perhaps because of economic hardships. For a less extreme example, a woman may “consent” to being a dutiful housewife but only because the society she is in expects her to not only have a future of being a dutiful housewife but also to enjoy doing so. Thus, if we cannot make a difference between desires that are one’s own and desires brought about through oppressive norms, then we cannot, among other things, know between desires that are one’s own, and desires that come about through oppressive norms. In that case, it is difficult to ascertain whether a decision is done through one’s autonomy or because of one’s socialization. In short, the critique of procedural autonomy is based on what the agent prefers without any obstacles but it does not consider that the agent’s preferences could be oppressive or adaptive.
In the next post, I’ll look at the second picture of sexual consent and sexual autonomy.