The inadequacy of consent

Consent is our rough-and-ready standard for moral sexual activity, but it’s pretty easy to see that the standard will break down in a number of non-typical cases, and that we’ll ultimately have to abandon it as a formal criterion for moral goodness in all cases. Ultimately, we’ll have to abandon it not just as a moral criterion but even a (sufficient) legal one.

The consenting adults criterion is just Thrasymachus with a democratic spin. All relationships between persons fall under justice, and so one simply replaces the claim that justice is the will of the stronger with justice is the mutual will of equals. So taken, it will have a very hard time getting past critique that Plato gave of it. One has to take any act of will either as it is made by actual persons or according to some idealized standard. If we take it in the first sense, then the one willing can be deceived, mistaken, or perverse, and such willing need not be something good or just for the one willing; if we take it in the second sense then our actual exercise of will derives its justice from an idealized, extrinsic account of the moral life which is yet to be determined. In spite of being proposed as a standard for what will count as moral sex, any way of understanding the consenting-adults standard leaves us with no standard for what will count as moral.

The simpler critique is to point out that thinking things become good because we want them is like thinking things become triangular because we see them. Goods are experienced as given, even when they admit of the variety of tastes.

But maybe the consenting adults criterion isn’t an attempt to target the just or the moral but the legal. Maybe the point is not to figure out what will count as wicked or virtuous but simply what will put one in jeopardy of prison and fines. The idea seems to be that the law will only be cognizant of rape and let everything else pass. Even then consent is a problematic criterion. Absence of consent is an identifier of rape, but consent is not an identifier of the absence of rape (cf. this also). If rape is just sex in the absence of consent, then the law will have to deal with consent as it occurs in actual people, and this is a messy affair.  Consent that is totally (or sufficiently) uninformed cannot count as consent, no matter how enthusiastically it might be given. There is an additional problem that the consent criterion tends to prejudice the law in favor of the accused, and it’s far from clear that this is the best way to ensure justice in rape cases.

The deeper problem, however, is that rape is a violation of justice whereas perverse sex is a violation of temperance. If the only cognizance the law can take of sex is so far as it is tied up with rape, we’re effectively saying that the law has nothing to say about sexual activity at all, in spite of the enormous effects that sex has on our lives. This is an insupportable and ridiculous position which will resolve itself eventually into some legal declaration of what will count as acceptable sexual activity and what won’t – and mutual consent is not gonna cut it. In fact, the law will probably be forced into defining what will count as chaste precisely in response to the inadequacies of the consenting-adults criterion.*


*We’ll probably go through a phase where we attempt to judge sexual relations by contract-law standards, but this will only highlight the intrinsic absurdities of the consenting adults criterion. “Consent” will mean the filling out of the proper forms. At this point, we will have shifted from merely not solving the problem to failure even to understand the question. However perversely we’ve understood the physical act of love, we’ve never sunk so deep as to understand it as bureaucratic.



  1. September 17, 2015 at 8:46 am

    While there is something to what you say here, saying “all unchaste sex is illegal sex,” would be almost as absurd as saying, “all intemperate eating and drinking is illegal eating and drinking.” Of course some intemperate eating or drinking may need to be made illegal, and thus you could talk about (for example) making eating contests or drinking to extreme drunkenness illegal. And likewise you could reasonably think that some examples of unchaste sex should be made illegal.

    But saying that the law should attempt to define unchaste sex overall, is not going to make much more sense than having the law define temperate eating and drinking overall.

    • September 17, 2015 at 9:49 am

      You’re right that it would be silly to have the law touch on all the elements of temperance, but it is just as silly for it to have it touch on none of them, which is what the consenting adults standard leads to. It only triggers the law when sex has gone way down the road of injustice – all the way to rape. And even then consent is arguably not the best standard.

      • September 17, 2015 at 11:31 am

        Yes, I agree that a reasonable lawmaker would do more for chastity than just prohibit rape.

  2. September 18, 2015 at 3:30 am

    But then, this goes both ways, the law should not define only the ‘positive’ excesses, but also the privations, as also contrary to temperance; you are temperate by avoiding ‘positive’ excess as well as privation. Temperance should not mean only prohibiting excesses; it should also mean prohibiting abstention. So, defining ‘temperance’ doesn’t mean ‘all the elements’, but the essentials of it. It could prohibit free chosen sexual abstinence, not needing to wait till it gets all the way down to abusing minors. Also, it would have to define ‘temperance’ in its broadest scope, not only in relation to food and sex. Along the very same lines, if it pertains to civil law to define ‘chastity’ and to punish the trespassers, it could also define religious truths, etc.. I do not think the modern constitutions are thought along this line.
    What leads to what? Who defines what is a lack of ‘temperance’? Can someone be allowed to deny himself food and other things, only because he has freely chosen to, though we ‘obviously’ know where this leads to, and there’s no need to wait for it to occur?
    If you can’t define ‘all the elements’, then define the essentials of temperance.
    To some it may be ‘obvious’ that excesses harm someone; but to others (or even the same), it may be obvious that privations also harm someone. Perhaps both should go into the law.
    Not all libertinism leads to rape; the preventive mentality also has its ‘obvious’ (to some) downsides.

  3. September 18, 2015 at 5:55 am

    I do not know that chastity is a notion in the jurisprudence of the civil law. Nor are wisdom or love. They aren’t.
    You believe that unchastity (which is very unspecific and does mean very many things) ‘obviously’ leads to rape. I think that violence, mental disturbances are more likely. If you have in mind particular forms of being unchaste, you should specify them. You cannot punish, law cannot punish something as harmful because it might lead, in some cases, to bad things. Unchastity isn’t instigation to rape. Racism is offensive as such, not only because it might lead to racist activity and bad behavior; instead, it is harmful in itself, presently offensive, because it offends, even if it will not lead to bad behavior and physical aggression. And yes, consented actions may harm the one who consented; it is not up to the civil law to punish this.
    I do not know whether you take an interest in criminology and criminal psychology. Do you believe that most rapists have long personal histories of libertinism, and are usually jarred philanderers?

    We want what is good (except when those who really know decide for us, of course, in a very Platonic dictatorship), we don’t see only triangles.
    There are certain freedoms. It is moral to respect them. It is moral to let one do as he pleases, as long as he doesn’t hurt others; it is moral not to judge some people based on the fact that very broadly similar actions of other people were followed by crimes, in circumstances we know nothing about. It’s immoral that ‘we, the sages’, punish someone for doing what he enjoys; Jesus had some stern words for these vigilantes. What is this, the presumption of guilt? There are many things which ‘lead’ to bad consequences. Why? Because human acts result from such complex patterns. I do not believe that the tendency of modern civil law in democratic countries is to suppress as much ‘potential temptations’ as possible. Society isn’t a kindergarten overseen by ‘the sages’. I have seen such a society. It was ugly.

    • September 18, 2015 at 11:47 am

      Again, to have the law concern itself with all (or even many) of the aspects of chastity would be silly and oppressive. But the consenting adults criterion leaves it concerned with none of them, which is just as insupportable. We still want to condemn some acts of intemperance as such, like child porn, and we do so not out of justice-based consent criterion but out of criteria that are proper to violations of temperance: disgust and repulsion. The law has to have some cognizance of these: it would be a great perversion of law for it to dispense with the condemnation of the disgusting and base. We aren’t more enlightened for thinking we have gotten past the “yuck” factor.

  4. Anonymous said,

    September 19, 2015 at 10:57 am

    The ‘yuck factor’ perhaps is what HIPAA “consenting” adults had once normally held behind closed doors to deal with such disorder cum “insanity,” now being placed oe scales of justice.

    That the floodgates of HIPAA would allow such disorder to take assault in retrospect; to not protect citizens from “consentedness” to a moral majority.

    The teleology of HIPAA for the protection of individual rights fails to protect the community at large from the scales of justice now open or “yuck..” ( IMHO)

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