Wednesday, February 13, 2008

The Problem of Consent

I randomly picked up this book by author Alan Wertheimer about legal issues with consent in sexual relations in a book sale sometime back. I have read only a couple of chapters so far and it is really a fascinating subject. I realize it must be old hat for people who are into legal studies because consent is really one of the key concepts in any contractual law but I had myself never given it much thought, specially not in the context of sexual relations. I think this has really become a very important issue because of growing cases of "date rapes" and the mainstreaming of "hookup culture" and reading this book only made me realize why legal brains are having such a tough time formulating appropriate laws.

In the introductory chapter of the book Wertheimer explains the main issue. It is not whether no means no but whether yes means yes i.e. what is the basis of a valid consent so that it is legally and morally permissible for the other party to have sex. He says that the basic philosophical problem is whether one defines consent as a state of being, that is state of an inner consciousness or something that one does. He believes it is the latter because the former wouldn't make any legal sense and this is where the problem of whether yes really means yes comes in. He takes up many different situations and shows how hard this problem really is. For example we all agree that physical coercion will deem any consent invalid but what if coercion is implicit. Like when the man threatens to terminate the relationship if the woman refuses? Or worse, what if this threat is implicitly conveyed, as is actually quite common? Another quite common situation is intoxication. How drunken must one be so that one can give a valid consent? What about mentally retarded people? If they can't give consent do they not have the right to intimacy and sexual pleasure either? Then there also is a possibility of fraud. What if one persuades the other party by reciting poetry or promising marriage without really meaning it? Just thinking about these things makes one realize why lawyers and lawmakers are having such a tough time framing laws for these crimes and at the same time preventing their misuse. In most cases it ultimately comes down to "rape without the rapist" that is, you can morally hold a person culpable and yet can make no legal case against him (or her?). Catherine Breillat Fat Girl brilliantly explores some of these issues too. I would make it mandatory for every teenage boy and girl only if it were not so nasty and explicit.

The central model for the argument that Wertheimer follows was first formulated by Immanuel Kant. To put it in simple terms Kant wasn't too keen about sexual desire. He saw it as inherently objectifying, one person using other as a means to an end - his or her sexual gratification - which violated one of his most famous categorical imperatives, which is that every person should be treated as an end rather than means to some end. He thought that only through the institution of marriage that people can be given rights to mutually use each other's bodies for their own selfish purposes. When one marries he is willingly entering into a contract in which he is giving the other person the right to use of his body in return of a reciprocal right.

Only when one sees a sexual relationship as a contract, one realizes the importance of consent. I know this sounds terribly unromantic on surface but at the implicit level this is what it ultimately boils down to. Thinking in these terms also made me clarify some of the ideas behind the moral and legal status of prostitution. Two people who enter into a sexual contract need not have exact same symmetrical aims. A woman may just want to please her lover without feeling the least bit horny herself or a wife may be looking for some expensive gift from her husband for the anniversary next week. Similarly a prostitute may enter the contract with the sole intention of earning money. In moral or legal terms it is no different. Now I am the last person who would cheer any such objectification but the fact is that it is in the nature of capitalism itself - the process of commodification (or reification as I had mentioned in the last post.) The fact that a prostitute has willingly allowed herself to be objectified doesn't diminish her status as an autonomous human being and in no way justifies moral censure let alone physical violence. (Of course I am talking about only those prostitutes who are able to give a valid consent, which now that I have written it sounds like a circular argument because it was exactly this problem of determining when a consent is valid that initially led us into this territory.)

There are lots of other fascinating things to say on the topic. More when I finish reading the book. For now here is a long review which discusses these ideas in more detail. This is another nice article about a Kantian defence of Prostitution.


Madhuri said...

Interesting! I remember someone once gave me a few points on how 'rape' is defined in the Indian legal system and I was positively amused. He also told me what are the grounds for determining if a spouse is cheating on his/her wife/husband. It had pretty weird clauses like 'seeing alone in the company of a male/female', 'seen entering a room together' etc. I was mortified with the outlandish rules - do you suddenly stop seeing your male friends without a chaperon if you are married, or never plan to watch a movie/have a drink alone with them?
But I suppose law needs the parameters to objectively define any behavior. Including consent

Alok said...

Yes it is primarily a legal issue. If love and trust already exist in a relationship, these things don't really matter but the problem is that these are no longer the necessary preconditions for a sexual relationship. In that case one has to be careful because you are treading murkier moral territories.

Jim H. said...

Here's an interesting legal analogy for you: An infant (defined in the law as a person under the age of 21, or 18 given the state) is not allowed to enter into a binding contract. They are allowed to rescind their agreement at will. That's why parents have to co-sign for cars and credit cards and such. The purpose of the law is to protect youngsters from fraud, etc. There are exceptions. There is also in law the age of consent for sexual relations, and it's defined differently in each state by the legislature.

If you try to base sexual consent on a contractual relation, then any consent or assent or saying 'yes' to a sexual proposition is invalid in a person under the age of 21! Because they can just as easily turn around and rescind. Perhaps that's why the various states have defined the legal age of consent down. (This actually tends to protect the sexually predatory older male.) So, what happens is you get into conflicting legal standards—which prevails, contract law or legislative standard? Who are you trying to protect?

Ubermensch said...

The perspective is skewed a bit, overlooking the fact that law becomes relevant only in situations where consent is contested. Law cannot be expected to validate every sexual act. Consent by law is never absolute. It is specific for the dealing in question, therefore cannot be generalised for either situations or conditions. A 14 year old cant legally have a consensual sex with an adult but can have contraceptives from her Physician in confidence.
Further, a certain law may be based on morality of the land , but morality per se doesn’t have a bearing in a legal contest. Hence implicit threat to consent isn’t in itself equivalent to no consent. Hence the huge debate to legalise prostitution.