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Consent and Sexual Relations

Published online by Cambridge University Press:  16 February 2009

Alan Wertheimer
Alan Wertheimer
Affiliation:
University of Vermont
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Extract

This article has two broad purposes. First, as a political philosopher who has been interested in the concepts of coercion and exploitation, I want to consider just what the analysis of the concept of consent can bring to the question, what sexually motivated behavior should be prohibited through the criminal law? Put simply, I shall argue that conceptual analysis will be of little help. Second, and with somewhat fewer professional credentials, I shall offer some thoughts about the substantive question itself. Among other things, I will argue that it is a mistake to think that sexual crimes are about violence rather than sex and that we need to understand just why the violation of sexual autonomy is a serious wrong. I shall also argue that the principle that “no means no” does not tell us when “yes means yes,” and that it is the latter question that poses the most interesting theoretical difficulties about coercion, misrepresentation, and competence. In addition, I shall make some brief remarks concerning two questions about consent and sexual relations that lie beyond the criminal law: What “consent compromising behaviors” should be regarded as indecent, although not criminal? When should someone consent to sexual relations within an enduring relationship?

Type
Articles
Information
Legal Theory , Volume 2 , Issue 2 , June 1996 , pp. 89 - 112
Copyright
Copyright © Cambridge University Press 1996

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References

1. See Wertheimer, A., Coercion (1987)Google Scholar and Expioitation (1996).Google Scholar

2. I borrow this phrase from Heidi Hurd's remarks at the conference at the University of San Diego Law School, which gave rise to this symposium.

3. For example, it may be wrong for a physician to accede to a beggar's request to have his leg amputated so that he can enhance his success as a beggar.

4. “You have never left the city, even to see a festival, nor for any other reason except military service; you have never gone to stay in any other city, as people do; you have had no desire to know another city or other law's; we and our city satisfied you. So decisively did you choose us and agree to be a citizen under us.” Plato, , GRITOGoogle Scholar (Grube, G.M A. trans. 1975).Google Scholar

5. “…every man that hath any possession or enjoyment of any part of the dominions of any government doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, whether this his possession be of land to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway …” Locke, , Second Treatise of Government Ch. 8 (1690).Google Scholar

6. “Can we seriously say, that a poor person or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.” Hume, , Of The Originai. Contract (1777).Google Scholar

7. Frankfurt, , Coerrion and Moral ResponsibilityGoogle Scholar in Essays on Freedom of Action (Honderich, T. ed., 1973) at 65.Google Scholar

8. As Jeremy Waldron has put it, “[T]he question is … not what ‘harm’ really means, but what reasons of principle there are for preferring one conception to another … the question is not simply which is the better conception of harm, but which conception answers more adequately to the purposes for which the concept is deployed.” Liberai. Rights 119–20 (1993).Google Scholar For a somewhat different view, see Schauer, , The Phrnomenology of Speech and Harm, 103Google ScholarEthics 635 (1993).Google Scholar

9. Vokes v. Arthur Murray, Inc., 212 So. 2d 906 (1968) at 907.Google Scholar

10. See Ch. 6. Sexual Exploitation in Psychotherapy, in Werlheimer, , Exploitation (1996).Google Scholar

11. See State v. Rusk, 289 Md. 130, 424. A. 2d 720 (1981).Google Scholar The defendant had also intimidated the prosecutrix by taking the key's to her car, disregarded her statement that she did not want to have sexual relations with him, and was said to have “lightly choked” her.

12. Director of Public Prosecutions v.Morgan (1975), 2 All E.R. 347.Google Scholar

13. Dripps, D., Beyond Rapt: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 Colum. L. Rev. 1780 (1992) at 1797.Google Scholar

14. Indeed, it might be thought that this case is, in one way, more serious than those in which force is used to overcome the victim's resistance, namely, that it requires the victim to act inauthentically.

15. See MacKinnon, C., Feminism Unmodified 5–6 (1987).Google Scholar

16. See Posner, R., Sexand Reason 384 (1992).Google Scholar

17. For a discussion of nonexperienual harm, see Feinberg, J.. Harm to Others Ch. 2 (1984).Google Scholar

18. Schulhofer, S.J., Taking Sexual Autonomy Seriously: Rape Law and Beyond, 11 Law & Phil. 35 (1992) at 70.CrossRefGoogle Scholar

19. Dripps, , supra n. 13 at 1796.Google Scholar

20. Dripps, , Force, Consent, and the Reasonable WomanGoogle Scholar, in In Harm, 's Way (Coleman, J.L. and Buchanan, A. eds., 1994) at 235.Google Scholar McGregor says that she borrows the notion of “border crossings” from Nozick, Robert's Anarchy, State and Utopia (1974).Google Scholar

21. I think it no objection to the commodity (or any other) view of the law of sexual crimes that it “wildly misdescribes” the victim's experience. West, R., legitimating the Illegitimate: A Comment on Beyond Rape, 93 Coium. I., Rev. 1442 (1993) at 1448.Google Scholar The question is whether a view provides a coherent framework for protecting the rights or interests that we believe ought to be protected. Indeed, it is an advantage of a “property” theory that it provides a basis for critiquing the traditional law of rape. That A lakes B's property without B's consent is sufficient to show that A steals B's property. Force or resistance is not required.

22. See Murphy, J., Some Ruminations on Women, Violence, and the Criminal LawGoogle Scholar in In Harm's Way (Coleman, J. and Buchanan, A. eds., 1994) at 214.Google Scholar

23. Wright, R., Feminists, Meet Mr. Darwin, The New Republic, 11 28, 1994, at 37.Google Scholar The evolutionary logic of nonconsensual sex is different for men. It is physically difficult to accomplish, and “the worst likely outcome for the man (in genetic terms) is that pregnancy would not ensue … hardly a major Darwinian disaster.”

24. This is obviously true on a retributive theory of punishment, in which the level of punishment is related to the seriousness of the offense. But it is also true on a utilitarian theory, for the more serious the harm to the victim, the greater “expense” (in punishment) it makes sense to employ to deter such harms.

25. Murphy, , supra n. 22 at 216.Google Scholar

26. Wertheimer, , Coercion (1987).Google Scholar

27. This is derived from a case introduced by Schulhofer, , supra n. 18.Google Scholar

28. Muelenhard, C.L. and Sclirag, J.L., Nonviolent Sexual CoercionGoogle Scholar in Acquaivtance Rape (Parrot, A. and Bechhofer, L. eds., 1991) at 119.Google Scholar

29. Don Dripps has suggested to me that case (5) is a variant on prostitution. In the standard case of prostitution, A proposes to pay B with A's mone)'. In this case, A proposes to pay B with B's money.

30. As Stephen Schulhofer says, because there are “few pervasively shared intuitions” with regard to what constitutes serious misrepresentation as distinct from puffing or “story telling,” the decisions as to “whether to believe, whether to rely and whether to assume the risk of deception … are often seen as matters to be left to the individuai.” Supra n. 18 at 92.Google Scholar

31. It is less clear—and informal intuition (and pumping of friends) has done little to help—whether women would regard sexual relations while unconscious as worse than or not as bad as forcible sexual relations. One might think that it is worse to consciously experience an assault on one's bodily and sexual integrity, but it might also be thought that it is better to know what is happening to oneself than not to know.

32. I say “first” indication, because B could consent while sober to what she subsequently consents to while intoxicated.

33. Estrich, S., Real. Rape (1987) at 98.Google Scholar

34. See the discussion of coyness in Wright, R., The Morai. Animal (1994).Google Scholar

35. “Here are the keys to my can don't let me drive home if I'm drunk.” See, e.g., Schelling, T., The Intimait Contest for Self-Command, in Choice and Consequence Ch. 3 (1984).Google Scholar

36. Schulhofer, , supra n. 18 at 70.Google Scholar

37. Okin, , Justice, Gender, and the Family (1989).Google Scholar

38. See Barry, B., Theories of Justice 116–17 (1989).Google Scholar

39. With apologies to Robin West.

40. Hume, , A Treatise of Human Nature, bk. III, sec. II.Google Scholar

41. I thank Pat Neal and Bob Taylor for pressing me on this point.

42. Hume, , An Enquiry Concerning the Principles of Morais, sec. III, pt. I, par. 3.Google Scholar

43. Okin, , supra n. 37 at 32.Google Scholar