The Weakness of ‘Consent’ as a Moral Framework

It’s not as bullet-proof as some would like to think.

Devin Foley | April 14, 2016 | 6,999

It’s not as bullet-proof as some would like to think.
The Weakness of ‘Consent’ as a Moral Framework

After rejecting the Christian moral framework that largely guided us for 1,500+ years, the post-modern West settled upon moral relativism in the mid- to late-20th century as the replacement. Now fifty years or more into the experiment, we’re seeing that it doesn’t work as well as we’d hoped.

The logic of a relativistic society dictates that we must allow all acts, even contradictory ones, to take place. In doing so, we are essentially saying that there really is no moral framework for our society. It is an extreme version of ‘to each their own’. This idea ultimately leads to chaos at certain extremes. For example, when one person believes that rape is okay but the person being raped does not (obviously), we have a problem.  But if all morality is relative to the individual, who is to say that the rapist is wrong?  

Recognizing the problem of moral relativism, we are now desperately attempting to create a new moral framework that allows for as much personal license as possible while still preserving order in society. For many, this new moral order rests on the idea of “consent”.

But is the idea of “consent” a sufficiently robust moral framework to keep order in society while allowing for personal freedoms? Unfortunately, it probably is not.

Recently, Intellectual Takeout shared a piece about a criminal psychologist arguing that pedophilia is a natural sexual orientation, like heterosexuality, homosexuality, etc. There was a sharp reaction against such an argument by many who defend gay rights because the argument used by the psychologist was similar to arguments used to advance gay rights. For many, the big difference was that a child cannot consent to pedophilia whereas two gay adults are consenting.

But are we sure a child can’t consent? After all, The Guardian reported that a recent study uncovered sexting by children as young as seven.

More than half of teachers are aware of incidents of children sexting at their school, including primary-school pupils as young as seven, according to a study by one teaching union.

A quarter of teachers who responded said they were aware of 11-year-olds sexting, which involves using social media to share messages, pictures or videos of a sexual nature.

However, the majority of incidents involved pupils aged 13 to 16, the report by the NASUWT said. In one typical incident, a girl pretended to fancy a boy and persuaded him to take a picture of his genitals, which she then shared with others.

In another, a year 9 pupil, aged 13 or 14, took explicit selfies of herself for a boy at another school, but classmates got hold of the photo and shared it, thereby distributing child sexual images.

A spokesman for the National Society for the Prevention of Cruelty to Children (NSPCC) said it was worrying that so many children were sharing explicit images. ‘Many young people see this activity as part of everyday life, despite the severe risks involved.’

Again, are we sure a child cannot consent to sexually promiscuous activity? It’s doubtful that most of the children who are sending sexual images of themselves or others would say that they are not consenting. How long then until a pedophile uses the same argument? If the 7-year old sexts a 50-year-old man and then further initiates sexual activities, does that violate the consent doctrine? If not, what is to say it is wrong if the foundation of our moral framework is consent?

Applying the consent doctrine to other taboo sexual activities reveals even more of its weaknesses.

For instance, if 7-year-olds can consent to sexting and other sexually promiscuous activities with non-family members, then who is to say that young children within a family can’t also consent to such activities? When consent is the only moral framework we have, it is feasible that a brother and sister or two brothers can engage in sexual activities. As long as there is consent, incest can be acceptable according to the logic of our current thinking. So can polygamy and many other sexual relationships.

All of the issues mentioned so far assume a uniform understanding of consent. The problem with that assumption can be seen with a variety of questions. Do you consent if you’re inebriated? Did you consent if you have regrets? Did you consent if you were psychologically manipulated? How do you prove or disprove consent? Furthermore, how do you deal with situations when people consent but still do harm either to themselves or others around them?

Administrators and others on high school and college campuses seem to be the first to systemically answer such questions. The lengths that they’re having to do so are probably proving the unworkability of the moral framework – it does not lend itself well to a variety of situations.

At Intellectual Takeout, we pointed out some of these problems a while back in a piece called “Sex is Dangerous”. Here’s a portion of the article:

“The New York Times has brought to our attention that when enjoying sexual activities, a San Francisco school recommends confirming consent every ten minutes for its 10th graders. Here’s some of the pertinent stuff:

‘Consent from the person you are kissing — or more — is not merely silence or a lack of protest, Shafia Zaloom, a health educator at the Urban School of San Francisco, told the students. They listened raptly, but several did not disguise how puzzled they felt.

“What does that mean — you have to say ‘yes’ every 10 minutes?” asked Aidan Ryan, 16, who sat near the front of the room.

“Pretty much,” Ms. Zaloom answered. “It’s not a timing thing, but whoever initiates things to another level has to ask.”

The “no means no” mantra of a generation ago is being eclipsed by “yes means yes” as more young people all over the country are told that they must have explicit permission from the object of their desire before they engage in any touching, kissing or other sexual activity. With Gov. Jerry Brown’s signature on a bill this month, California became the first state to require that all high school health education classes give lessons on affirmative consent, which includes explaining that someone who is drunk or asleep cannot grant consent.’

Over at Imgur, one of the ‘most viral images’ was this picture of a poster at a university: 

 

Back in July, the Minneapolis Star Tribune reported on a new sexual consent form that was being pushed at the University of Minnesota.

‘The University of Minnesota is joining a national movement requiring students to obtain “affirmative consent” from their sex partners or risk being disciplined for sexual assault.

The policy change, sometimes known as the ‘yes means yes’ rule, has been sweeping college campuses across the country since California passed the first such law last year.

The U’s new rule, which is poised to take effect this month after a 30-day comment period, says that sex is OK only if both parties express consent through “clear and unambiguous words or actions.” Absent that, it would fit the U’s definition of sexual assault.

So far, the plan has prompted little dissent at the U. But nationally, critics have derided such policies as absurd and dangerous, particularly when it comes to protecting the rights of the accused.

“Once that accusation has been made, it’s somehow up to the accused person to prove they did have consent,” said Robert Shibley, executive director of the Foundation for Individual Rights in Education (FIRE), a civil liberties group in Philadelphia. “What that means is that they’re guilty until proven innocent.”’

Here’s the consent form: 

The points above are good ones. And, yes, there are far too many women who are taken advantage of. If you have sex, especially if you’re a man, you better be able to prove you had consent in this environment. The poster above is right, your life can be ruined in a flash.”

Truly, the idea of defining and establishing consent is exceedingly problematic. Children can consent. Girls can claim they didn’t consent if they regret their actions. Adults can be manipulated into consenting. People can consent to sex while either doing harm to others or posing a risk to society, such as having sex outside of their marriages or purposefully having sex with someone who has a transmittable disease.  

The reality is that when it comes to sexuality, there are numerous situations in which the consent doctrine upends current taboos and leads to surprising and even disturbing results. Simply use your imagination … or just keep watching the news. The perception of moral chaos is only going to increase in coming months and years as people will increasingly push the envelope of “acceptable” behavior through the consent doctrine. We’re in for a wild ride.