Friday, May 17, 2013

As Long As Everyone Knows the Deal

In the Atlantic, Conor Friedersdorf grapples with a question: Does love dictate the form and appearance of sexuality within a relationship? Does respect require or proscribe certain activities? Is the claim that participants in a sex act love and/or respect one another - or that these things are independent of each other - the final word, or are the rest of us allowed to second-guess them and assert that the boundaries that we understand border the proper expression of sexuality are absolute, unless those who would cross them prove them harmless to our satisfaction?

In other words, who determines whether or not they are being loved and respected - or loving and respectful? And what is the actual definition of abuse, or degradation?

A question that I have always found helped me consider questions like these is quite simply - Can someone take your self-respect and/or dignity from you, or must you agree to give it away?

I am in the camp that says that questions of love, respect, degradation and the like are all in the eye of the individual. But I think that it's important that we look at these things expansively. As someone who believes, to borrow a phrase from one of the debating parties in the piece, that the content of civilization can be boiled down to the single element of consent, it's important that we really understand what that means.

Consent isn't enough to guarantee that sexual behavior is moral. Adultery, the deliberate conception of unwanted children, the careless spread of H.I.V.—all could happen in consensual encounters. As those uncontroversial examples suggest, the people who truly think consent is the only thing that matters in sexual conduct are a tiny minority, even in San Francisco.
Conor Friedersdorf, “The Ethics of Extreme Porn: Is Some Sex Wrong Even Among Consenting Adults?
While this is an interesting and compelling argument, I would counter-argue that these are not cases of “consensual encounters.” If we assume that by “adultery” Mr. Friedersdorf means cheating on a partner who expects, and reasonably understands that they have been promised, monogamy and exclusivity then adultery is no more consensual than if a mean-spirited spouse gave away the family car. Breaking commitments to a third party should not be considered a purely consensual activity, because the third party has not consented to the effects on their interests. In the cases of the deliberate conception of a child that the other partner does not want or the careless (or deliberate, for that matter) spread of H.I.V., it is not enough to say that since the simple act of sex was consensual, that this constitutes a consensual encounter. After all, leaving out important facts can be considered just as fraudulent as including lies:
There are four elements of fraudulent nondisclosure, also known as misrepresentation by omission: (1) a party conceals a material fact; (2) the fact is within the concealing party’s knowledge; (3) the concealing party knows that the acting party will rely on this nondisclosure on the presumption that the fact does not exist; and (4) the concealing party has a legal/equitable duty to communicate the fact.
Common Law Fraud Claims” Bench and Bar of Minnesota
Now, while Jill may not have a legal/equitable duty to communicate to Jack that she intends to have a baby by him before they go to bed together, it's difficult to argue that he was truly consenting if he would have refused to have sex with her otherwise. (And in Tennessee, at least, if Jack need to resort to fraud to get into Jill's pants, he could be charged with rape.) Likewise, if Jack withholds from Jill the fact that he is HIV positive or has AIDS, there are jurisdictions in which he'd be liable for prosecution, so it seems that a case can be made that there is an expectation that such status should be revealed.

In that regard, “consent” should be considered to be something more than two people both deciding that it would be fun to have sex with one another - I submit that it's more properly construed as, firstly, all parties knowing beforehand, exactly what they are letting themselves in for, to the best of the other person's understanding, and knowing that, assents to it. (Whether that's BSDM, the possibility of having a baby or having to wear clown makeup and a rubber nose.) And secondly, in accordance with the idea that all parties must agree that it doesn't break commitments freely entered into with others. True, one's sexuality is not like a physical object that can be literally possessed by another, but if we can determine that sharing information when one agreed not to is morally iffy, even when the person who receives it consents to learn, we can put cheating on a partner in the same category. (In the end, every crime that we do not consider to be victimless is really about consent - victimless crimes are the only ones in which a crime has been committed even when everyone - even those people not a party to or having an interest in the action - consents.)

In this broader context, I do think that it's possible to make consent into the only thing that matters. (Although I freely admit that someone might immediately come up with a case that challenges that. I haven't spent much time looking for one.) What people whom we have determined to be capable of informed consent do between themselves is really none of our business, regardless of the degree to which we are squicked out by their actions.

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