On the So Called “Grey Areas” of Sexual Consent

Posted on May 20, 2017 by

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Sexual consent has been the foundation of sexual ethics for many modern thinkers of sexuality. The notion itself stretches back to at least Immanuel Kant, who presented some arguments for why we should generally respect an individual’s autonomy. Respect for autonomy is the idea that we should respect a person’s capacity to make self-governing decisions about oneself and what happens to their body. In contemporary biomedical ethics, this respect for autonomy has been the cornerstone. That is, when it comes to medical matters, we should respect patient’s capacity to make self-governing, knowledgeable, decisions about their own bodies. In 1971, Judith Jarvis Thomson presented a rather well known argument for the permissibly of abortion on these grounds. She argued that even if a fetus is a person, a pregnant mother has the right to make decisions about her body and its life-sustaining functions. More generally, it is widely accepted that when one can demonstrate that one’s autonomy has been disrespected, then one has been deeply and seriously wronged. Sexual consent, to briefly define it, refers to the capacity for one to agree to or withdraw from sex, and is based on the respect we have for people’s capacity to make self-governing decisions about their own body and sexuality. When one hasn’t given consent, then they have been morally wronged in some way. This, in part, is why sexual assault and being coerced into sex is often perceived as wrong: because it violates one’s autonomy, and it violates ethical norms about sexual consent.

Oddly enough, when one discusses sexual consent with others, the conversation often steers toward the so called “grey areas” of consent. For those who deeply value consent in their sexual practices, one is often presented with grey areas, and these grey areas are often presented to call into question a previous commitment that consent is necessary for ethical sex. For example, a very common grey-area case, is the case when one potential sexual partner has consumed alcohol. That is, one might wonder if sex is morally permissible, when someone has consumed excessive amounts of alcohol or is completely drunk. Alcohol, as we all know, is a substance that can affect your capacity to deliberate or make decisions; and presumably when one has consumed alcohol, their capacity to give or withdraw consent is compromised to some degree. Yet, so the reasoning goes, a large chunk of the population has engaged in sex when they or their partner has consumed excessive amounts of alcohol. It’s not clear what the moral status of such actions are, but grey areas like these are often presented to challenge whether sex inside these grey areas is really impermissible. The argument continues that if sex isn’t impermissible in these grey areas, then one has not violated any moral norms inside them. Therefore, sex with an intoxicated person, or sex within similar grey domains, doesn’t clearly violate any moral norms regarding sexuality and consent. I want to challenge this troubling line of reasoning in this blog post.

Before I do, however, it’s important to remember that there is a distinction between morally permissible actions and legally permissible actions. An action might be morally wrong, but still legal. Similarly, an action might be legally wrong, but morally right (in cases of unjust laws, for example). The domain that I am primarily concerned with is the moral domain. So, while some behavior might be socially acceptable or won’t be legally prosecuted, that same behavior can still be morally wrong. This is important to remember, because sometimes the legality of actions are often erroneously referred to, in order to ground a conviction about the moral permissibly of an action. Thus, we cannot claim that because some sex-act is legally permissible, that it is also morally permissible. Moreover, I don’t want to make any claims about what should happen to people who violate their moral obligations. In some cases, jail and dismissing someone from their job seems apt, in other cases, it seems rather harsh. I am not weighing in on this issue. I merely want to look harder at the moral status of actions inside grey ethical domains, and see whether they are permissible or not, or whether there is(or could be) some ethical norm that has been violated.

With that aside, there seems to be cases of consent, where one has certain obligations to bring the status of one’s actions outside the grey domain. In medical contexts, for example, a medical practitioner might have an obligation to wait until a patient is capable to make a reasonable decision about a serious treatment option (ie. that is risky for the patient), when his or her’s capacity to do so is temporarily compromised. I suspect this is the case, because consent is so highly regarded in medical contexts, and to avoid any professional misconduct. In this case, the doctor has additional obligations that exist within the grey domain. When the patient enters the grey domain, and the doctor can take their actions and treatment outside the grey domain (perhaps by waiting to obtain a signature), he or she has a moral obligation to do so. Moreover, a doctor has violated an obligation they have to their patient, if he or she treats the patient while in the grey domain and they could have taken it outside the grey domain. Again, they violated an obligation they had, specifically in the grey domain.

Similar claims can be made about grey sexual domains. It is my suspicion that many of the grey areas evoked in discussions about sexuality often don’t take into account the additional obligations we might have within those grey areas. For example, if a person is intoxicated, and you can wait until the person is completely sober to obtain clear consent, then you should wait. If you know full well that you can wait, and the person’s capacities to give or withdraw consent are compromised, but decide to continue and have sex, you are probably doing something wrong. It could be the case that you might be doing something that is perfectly legal, and it might be the case that you will not be prosecuted by any court on the matter, but you are still doing something wrong, by not taking the action out of the grey domain. In many cases of sexual consent, there are indeed grey areas, but it is my inclination that there are also obligations that we have, when we enter that grey domain. In particular, just like in medical contexts, we may have obligations to take the action out of the grey domain, so that it is clear that the agent is, in fact, consenting. At the very least, if you agree that there are particular moral obligations in grey domains, then this is a powerful reason to reject the idea that sex inside morally grey areas are unquestionably permissible or don’t violate any ethical norms.

In sum, we philosophers and thinkers of sexuality need to think long and hard about what grey areas imply, when we are confronted with them, or even when we present them to others. We cannot just postulate a grey area and leave it at that. Sometimes grey areas and grey domains do indeed constitute different moral contexts, but that doesn’t mean that everything in these new contexts is permissible. Importantly, it could be the case that upon entering the grey domain, we have even more obligations put on us as moral agents. This seems to be consistent with some aspects of the “enthusiastic consent” movement. According to this movement, it is necessary to get a clear and enthusiastic “yes”, when having sex with someone, for every sexual act. Detractors often claim that this is too demanding for sexual partners. In many cases, so the objection goes, sexual partners don’t obtain enthusiastic consent, but nonetheless obtain some form of consent, and this is enough. For example, this happens when partners are familiar with each other’s implicit communication styles, and don’t often feel the need to “check-in” with their partner for every sex-act, because their partner has clearly communicated some form of consent, in some other way. So, perhaps enthusiastic consent isn’t necessarily universalizable to every ethical context (although, I’d argue that it’s highly advisable). But, it seems to me that enthusiastic consent is an apt moral reply, when one is presented with grey ethical areas of sex. That is, when you are unsure about the moral status of the sexual act, or you are unsure if someone has given consent, you are obligated to ask them if the action is okay with them or wait until consent is given. A sexual partner has arguably done something wrong, when they haven’t done so. More importantly, it is a deeply troubling philosophical mistake to think that grey areas imply ethical permissibility and consent. I’ll leave it at that, for now. In short, when presented with grey areas, we should ask ourselves what the moral implications of ethical grey areas are. Moreover, are there additional obligations in grey areas, and what are they? What do you think? What’s your take?