A Philosophical Analysis to Better Understand Consent

What is consent? 

Though the word ‘consent’ gets thrown around constantly, not many people actually understand what it means. In the philosophical realm, there are two definitions of consent.

Definition 1: ‘Consent’ merely implies agreement or acquiescence. So, in this context a person can be coerced into agreeing to sex, but the coercion renders their consent invalid. 

Definition 2: ‘Consent’ necessarily meets certain (fairly stringent) conditions. With this definition in mind, a person cannot consent to sex if they are not competent to consent or if their agreeing to the sex is involuntary.

It doesn’t really matter which definition you use so long as you specify which you are using and apply it consistently. So, for clarity, I will be using the second definition of consent hereafter. 

Consensual Sex

So, when is consent voluntarily given? In general, we tend to think that a person voluntarily consents to sex when their consent springs from the right sorts of reasons. That right reason being that they consent to sex because they expect to receive pleasure from the exchange, they desire the sex intrinsically, there is an expectation to gain some material advantage from the sexual exchange (like money, a promotion, social status and/or security) or there is an expectation of non-material gains from the exchange (this includes things like affection, emotional support and/or a relationship). On the other hand, fearing for one’s life if one refuses to participate in sex means that intercourse is coerced, and hence this is involuntary consent.

Non-Consensual Sex

There are several other instances where intercourse can be classified as non-consensual, yet neither party can be to blame for it. Picture this: two people, both of whom are exceedingly drunk, have sex with one another. Because neither party was competent to consent, the sex is non-consensual. However, we might think that neither party can be blamed for this encounter, and therefore neither party is guilty of rape.

Of course, it is possible to argue that both parties are guilty of rape or that only the initiator is guilty of rape, or even that the sex was, in fact, consensual. To elucidate, rape is any sexual activity to which at least one participant has not given valid consent, and for which at least one participant can be blamed (where blame is appropriate response to wrongdoing).

However, more extreme cases can suggest that it may be unbeknown to someone that they are unwillingly consenting. For instance, John and Mary meet at a bar. After conversing with Mary at length, John concludes that Mary is competent to consent, based on the following: she does not appear to be underage and she is not significantly mentally impaired, or intoxicated. When John asks Mary if she is willing to have sex with him, she explicitly says ‘yes’. They have sex. However, unbeknownst to John, Mary has been hypnotised and was therefore not competent to consent. Yet, in this case, John is not to blame, as he did not know that Mary was hypnotised. He has not done anything wrong. Therefore, we might not want to call this rape or label John a rapist. As such, non-consensual sex may not always be considered rape. 

Rape is any sexual activity to which at least one participant has not given valid consent … but non-consensual sex may not always be considered rape.

It is tremendously significant that when engaging in sexual activities, it is incumbent on every participant to take reasonable measures to ensure that every other participant has given morally valid consent. Failure to do so is an instance of wrongdoing. 

Uprightly stating what you want out of a sexual encounter to the person you want to participate in it with and not taking advantage of them is most vital. Some people have so called ‘deal breakers’  when it comes to sex, such as not sleeping with anyone that is married, or to only have sex if it leads to a relationship, or to only have sex if there are no strings attached. It is impossible to know everyone’s such deal breakers, and that’s why honesty is the best policy.

Of course, neither party should be underage, extremely intoxicated or unconscious. These are important ways to avoid problems which may arise from non-consensual sex. 

The Philosophical Problem of Consent 

There are numerous problems with the term consent and how to actually know whether consent was fully given or whether someone has been raped. For instance, the Valdez v. Texas case of 1992 provides a clear understanding of the confusion around sexual consent.

Joel Valdez broke into a women’s home, picked up a knife in her kitchen and ordered her to take off his clothes. The woman pleaded with him to use a condom. He told her ‘don’t worry; I don’t have AIDS’. She replied, ‘how do you know that I don’t?’. Because he didn’t have a condom, she provided him with one, and intercourse ensued. Since she provided him with a condom, the jury counted this as consent. 

Although Valdez readily admitted to all of these facts, he was found not guilty. The fact that the woman had provided him with a condom was taken as evidence that she had consented to have sex with him. But was this really consent? No! Valdez merely used the woman for his own sexual satisfaction. She simply chose the best option available to her – protected sex – rather than being attacked with a knife, or else having unprotected sex. However, she did not voluntarily give consent, as she was seriously restricted and given a lack of reasonable alternatives. This is an example of when intercourse was coerced out of a fear for one’s life. Hence, a person has been raped. 

In this court case, the jury committed the fallacy of equivocation by using the term ‘consent’ inconsistently. The fallacy suggests that though each of the premises are true, and the conclusion seems sound, overall, it is a terrible argument as a word – in our case ‘consent’ – has been used to express different meanings in different usages. Even though an argument appears to be coherent, it is not if one is guilty of equivocation. The jury claimed that a woman held at knifepoint consented to have sex with her attacker, which uses the first definition of consent. If a person consents to sex, then this sex is not rape, using the second definition of consent. Therefore, by the second definition, the woman was not raped. It is therefore extremely important to use explicit and consistent definitions in both philosophy and law! 

Verbal Coercion 

Verbal coercion does not validate consent to sex in any circumstances and is morally wrong. as it invalidates freedom of the choice of sex. Consent is not overturned. Sex becomes unwanted sex as it is not desired, and involuntary as it is coerced. For instance, the Commonwealth v. Mlinarich case (1985) where a foster parent threatened to send his foster child back to the detention centre if she would not have sex with him. Because she consented, the father was not found guilty of rape.

Sarah Conly maintains that the girl’s consent was based solely on verbal coercion, a threat, which made her fear the consequences if she declined. This is disgusting and extremely morally wrong. There can never be consent to involuntary sex. This is because, just as physical force is a form of coercion which invalidates consent, thus making any ensuing sex rape, it is verbal coercion if a person agrees to have sex because of the use of words which cause or threaten to cause emotional pressure.

For instance, the philosopher Immanuel Kant argues that people should not be treated as a means to an end, rather ends in themselves. Here, Kant does not mean that others should be the goals or purposes. The idea of treating others as persons sees their consent to actions which affect them as morally significant agents. Instead, what should be aimed for is respect and beneficence.  Since verbal coercion is using someone as a means for their own end, the means of sex, it is involuntary and wrong. This is as it is treating the other person as a tool which cannot consent to how it is used. 

Ultimately, coercion does not revoke consent; rather, it goes against consent. A person’s autonomy is compromised, as they are deprived of their free will. Ends in themselves may provide us with grounds of action not by being the aim or effect of action, but by establishing limits to our actions. Therefore, others may limit my action since they are themselves autonomous beings.

The key things to remember are…

  • Sexy underwear is not a yes                  
  • A pretty dress is not a yes                      
  • Absence of ‘no’ is not a yes                                
  • A threat is not a yes                            
  • No resistance is not a yes                    
  • ‘I am not sure’ is not a yes                        
  • Silence is not a yes                                                

The bottom line is that only yes means yes, so we should always explicitly seek consent.


Other Consulted Works  

Sarah, Conly. “Seduction, Rape and Coercion.” Ethics Vol. 115, No. 1 (2004)

Onora, O’Neil. “Between Consenting Adults.” Vol. 14, No. 3 (1985)

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