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Magazine • Thinking it Through

The Moral Limits of Consent

There may still be hope for our sex-crazed culture after all. The recent events involving accusations of sexual assault, harassment, and rape against Hollywood’s elite—what has become known as the Weinstein Effect—give reason to believe this. Because our culture stills sees consent as a necessary condition for appropriate sexual behavior.

Harvey Weinstein, and others like him who plead innocent, claim that their actions were justified because the sexual acts were consensual. This provides an opportunity to pause and reflect: is consent the only moral criterion for evaluating sexual behavior? And why do we think that the violation of consent in sexual activity is wrong in the first place?

When you think it through, it becomes clear that there must be something more than consent. It also becomes clear that the moral standard by which we judge sexual coercion to be immoral is the same standard that condemns sexual behaviors that our contemporary culture thinks is morally acceptable: fornication, contraception, masturbation, and sexual activity between members of the same sex. 

I’m not buying

One reason why the appeal to consent alone in sexual morality is problematic is that we don’t buy this ethical principle when it comes to other behaviors. Take self-injury, for example.

A young girl might voluntarily cut herself because she experiences pleasure in doing so, and perceives it as a fulfilling part of her life. Some “transabled” persons desire to have a doctor render them paraplegic or to have a healthy limb amputated. But just because these persons consent to such acts, even with full knowledge of the effects, it doesn’t mean they are morally justified.

We also don’t apply this principle when it comes to behaviors that involve others. Consider the absurd example of Armin Meiwes, who butchered and ate a willing victim who responded to his internet ad. That someone says “yes” doesn’t make cannibalism morally permissible.

Sometimes people consent to things that are bad for them. But in such examples, consent is not what is driving the moral evaluation. What’s in the driver seat is a more fundamental underlying moral theory that says these actions are bad and thus need to be avoided. If there is a more fundamental framework that does the evaluative work, then it follows that consent by itself isn’t sufficient to justify some activity.

Bite the bullet

A critic might say that someone who consents to be killed and eaten must be mentally ill. But why must we draw that conclusion? We can only judge that someone has a mental illness if we first believe that his choices are disordered. But disordered/bad choices can be evaluated based only on a presupposed moral standard that determines what ordered and good choices are. This undermines the idea that choice by itself is the sole moral criterion.   

In one last attempt to avoid the problems of the consent-based ethic, the liberal sexual moralist might bite the bullet and acknowledge that the self-destructive behaviors are morally permissible. In his mind, each person has a moral right to determine how he lives his life, even if the lifestyle is counterintuitive to modern moral sensibilities.

This reply successfully dodges the above critique, since that critique appeals to moral intuitions. But, for many, giving up moral intuitions is too high a price to pay. They realize that our moral intuition can be a source of wisdom for us. It keeps most people (and their limbs) intact. Moral intuition should not be discarded so lightly, even though it’s not the best foundation upon which to build a moral system.

But a critique of the consent-based ethic doesn’t have to rely on intuition alone. There is another fundamental moral problem: this ethic fails to understand the nature of consent and how it works.[1]

By whose authority?

When I consent to your performing an activity, I basically confer a stamp of approval for you to perform the act. In other words, I authorize you to act accordingly.

But my consent has no legitimizing power unless the activity that I authorize is subject to my authorization. Suppose, for example, that I tell you that you have my permission to steal your neighbor’s car. My consent would not thereby give justification to the act because I don’t have the right to authorize it in the first place. Valid consent, therefore, is not valid by the mere fact of consent. It requires a preexisting right to authorize a course of action.

So, for consent to have any moral legitimizing power, it requires a pre-existing moral standard that determines which behaviors we are morally allowed to consent to. You might think of our consent’s moral power as being on loan. Its currency is derived from a deeper moral standard.

To say that consent by itself makes a behavior morally permissible is like saying a police officer’s commands have normative force just because they’re commands. But we know that a police officer’s commands are meaningful only inasmuch as he is allowed to make such commands given his position of authority. Similarly, our consent has moral significance only inasmuch as the behaviors that we authorize are already morally permissible given some moral framework.

Of course, what that moral framework is would need to be worked out (I claim it’s the natural moral law). But that there must be a moral framework that gives consent the power to make something morally permissible, we must admit. 

If consent has moral significance only on account of a more fundamental moral framework, then it’s futile to appeal to consent alone in establishing the moral permissibility of sexual acts. It’s seeking moral power where no moral power can be found.

This is not to say that consent has no role to play in moral evaluation. The victims of the sexual assault cases, along with the defendants, are right inasmuch as they are appealing to consent in order to evaluate the alleged behavior. Consent is necessary for a sexual act to be morally upright, as we will see in the second part of this essay. It’s just not sufficient.

[1] I owe this argument to Timothy Hsaio in his article “Consenting Adults, Sex, and the Natural Law,” Philosophia 44:2 [2016]: 509-529.

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