We’ve lost the confidence to say that some kinds of sex ought not to be had at all, even by people who are free to choose.
We’ve lost the confidence to say that some kinds of sex ought not to be had at all, even by people who are free to choose.
I n the context of the discourse over Cornell (which I otherwise intend to continue avoiding), Oliver Traldi, a philosopher at the University of Toledo and an occasional National Review contributor, argues against the familiar complaint that modern sexual ethics has been reduced to “consent.” He says this overlooks all manner of judgments people routinely make about putatively consensual sex. His examples include “misrepresentation, infidelity, mismatched expectations about the future, age and power disparities” and even bad sex, which, he observes, “is frequently moralized.” Josh Barro agrees that these examples demonstrate the persistence of moral standards beyond consent.
I don’t think they establish that at all.
Start with misrepresentation. Nobody can meaningfully consent to being defrauded. That’s a basic principle of contract law, in which material misrepresentations can make agreements voidable. Sexual consent, likewise, is usually understood to require some degree of transparency and disclosure about the conditions under which it’s given.
Mismatched expectations about the future can be understood similarly, although here we get into the realm of implied promises, which complicate plenty of contract disputes, too. If one party induces another into a sexual encounter conditional on promises (explicit or reasonably inferred) she knows to be false, the objection is that she fraudulently obtained consent. Consider the straightforward case of two people who sincerely want different things, are honest with each other about that, and have sex anyway because they’re looking not for the Right One but for the Right Now. Does contemporary sexual ethics render a judgment here? I don’t see a lot of that.
Age and power disparities are more attenuated still, but they likewise have analogues in contracts. We don’t automatically regard every agreement between unequals as invalid, but we recognize that disparities in maturity (and certainly in majority), authority, resources, or other forms of power can raise questions about whether consent was coerced. Progressive morality simpliciter, and therefore progressive sexual morality, often assumes that the existence of power disparities can make the exercise of individual agency illusory. Even if you think you’re doing something you want to do, that desire may itself be the result of structural forces that undermine your agency. You might have given “consent,” but it was under conditions resembling the Marxian notion of false consciousness. Again we find the moral objection isn’t about doing the thing but about the counterfeit nature of the consent obtained to do the thing.
Lastly, it’s true complaints about “bad sex” sometimes get moralized in the discourse, but there’s no controlling progressive norm there that I’m aware of, and such claims are often viewed skeptically even by people who are otherwise all in on the program. Still, they can be understood in something like the language of “fraudulent services,” as it were.
So, it seems to me Traldi’s putative counterexamples aren’t that at all. If anything, they demonstrate how much work we ask consent to do. Now, I think it’s probably more precise to refer to modern sexual ethics as “contractarian,” because they rely on a bunch of auxiliary concepts from the world of voluntary agreements. But consent is still a necessary condition of contract.
And the broader point is that a contractarian sexual ethics has no room for virtues that ought to be promoted, vices that ought to be prevented, rights that ought to be respected, or obligations that ought to be fulfilled—none that are independent of whatever settlement you might have negotiated at the bar.
We remain perfectly comfortable (more comfortable than ever!) condemning someone for taking sexual advantage of another. We are much less comfortable saying that two people have made a morally blameworthy sexual choice for themselves and for each other. What we’ve largely abandoned is the confidence to say that some kinds of sex ought not to be had at all, even by people who are perfectly free to choose.