Sexual Consent

Consent theory in sexual ethics, Jonathan Ichikawa argues, has a Euthyphro problem. -/- It is widely held that sexual violations are explicable in terms of nonconsensual sexual contact. But a notion of consent adequate to explain many moral judgments typical of sexual ethics — a notion that vindicates the idea that consent cannot be coerced, that it must be sober, that children cannot consent to sex with adults, etc. — cannot, Ichikawa argues, be articulated, motivated, or explained in a way (...) independently of moral judgments about sexual wrongs. Consequently, if there is as tight a connection between consent and sexual violation as many people think there is, there is good reason to suppose that that connection must ultimately explain consent in terms of sexual wronging, rather than vice versa. The paper highlights some costs and drawbacks to this horn of the Euthyphro dilemma in sexual ethics. One central upshot of the argument will be that mainstream accounts of sexual ethics fail in their explanatory ambitions. Consent cannot play its canonical explanatory role. (shrink)

Book review of Hallie Liberto's Green Light Ethics.

When philosophers consider factors compromising autonomy in consent, they often focus solely on the consent-giver’s agential capacities, overlooking the impact of the consent-receiver’s conduct on the consensual character of the activity. In this paper, I argue that valid consent requires justified trust in the consent-receiver to act only within the scope of consent. I call this the Trust Condition (TC), drawing on Katherine Hawley’s commitment account of trust. TC constitutes a belief that the consent-receiver is capable and willing to act (...) as we expect from them. If such trust is not warranted, I argue, consent lacks the appropriate normative grounds. After establishing TC, I explore its application in the sexual arena, asserting that due to the non-contractual dimensions of sexual activity — such as the dynamic nature of sexual desires and the absence of external factors effectively binding sexual partners to the terms of consent—trust is warranted in sexual consent by means of care. I define care as a special sensitivity and attention toward the partner’s will and discuss how this approach leads to safer intimate relationships in practice. (shrink)

In this paper, I discuss a subset of preferences in which a person desires the fulfillment of a choice they have made, even if it involves the violation of their desires, as in rape fantasies. I argue that such cases provide us with a unique insight into personal autonomy from a proceduralist standpoint. In its first part, I analyze some examples in light of Frankfurt's endorsement theory and argue that even when we cannot endorse a practical decision that involves being (...) violated, we nonetheless regard those cases as instances of autonomy. Therefore, autonomy does not necessarily require endorsement. Instead, I propose that the nature of the relevant highest-order volition dictates the procedure that should be established in one’s desire structure for its fulfillment. In the second part, I discuss how an agent may effectively consent to the violation of their decision by another person. Ordinary consent typically refers to actions but fails to communicate one's higher-order desires or commitments. To address this limitation, I propose a practical tool that accomplishes this by signaling shifts in the normative context where the agents are interacting. (shrink)

Arguments for what consent is often appeal to its functions. For instance, some argue that because consent functions to express the consent-giver’s autonomous control over her normative boundaries, consent must consist in a mental state. In this paper I argue that consent has an often overlooked function, and that its having this function has consequences for our views of what consent is. I argue that consent has a relationship-shaping function: acts of consent can alter and enable personal relationships. This function (...) grounds an argument for the following claim: some acts of consent cannot be morally transformative unless there is uptake, or acceptance, or cooperation, on the recipient’s part. That is to say, at least some acts of consent need to be “cosigned” by both parties. This rules out what I call “unilateral” conceptions of consent, according to which consent can be given by the giver alone, and nobody else needs to enter the picture. (shrink)

On a version of consent theory that tempts many, predatory sexual relations involving significant power imbalances (e.g. between professors and students, adults and teenagers, or employers and employees) are wrong because they violate consent-centric norms. In particular, the wronged party is said to have been _incapable_ of consenting to the predation, and the sexual wrong is located in the encounter’s nonconsensuality. Although we agree that these are sexual wrongs, we resist the idea that they are always nonconsensual. We argue instead (...) that it is possible for students, teenagers, employees, etc. to fully consent to sexually predatory encounters; denying as much renders survivors of predation vulnerable to compounding harms. Survivors face a dilemma: give up either their understanding of their experience as wrong, or their self-conception as an agent capable of consenting. We call the latter phenomenon _agential demotion_. (shrink)

What role does audience uptake play in determining whether a speaker refuses or consents to sex? Proponents of constitution theories of uptake argue that which speech act someone performs is largely determined by their addressee’s uptake. However, this appears to entail a troubling result: a speaker might be made to perform a speech act of sexual consent against her will. In response, we develop a social constitution theory of uptake. We argue that addressee uptake can constitute a speaker’s utterance of (...) ‘no’ as a speech act of consent under some conditions, but that this does not prevent us from judging that an addressee committed rape. Second, we claim that addressee uptake is not the only form of uptake that matters—the uptake of other members of the discursive community matters too, and can override the addressee’s uptake, constituting the speaker’s utterance as the speech act it was intended to be. (shrink)

A complete theory of the permissibility of sex must not only determine the permissibility of sex between typical adult humans. In addition, it must also adequately take into consideration sex acts involving non-human animals, children, and humans with intellectual disabilities. However, when trying to develop a non-discriminatory account that includes these beings, two worrying problems of animal sex arise. To surpass them, I argue for a reformulation of the standard theory. To produce a truly inclusive account our theory should be (...) focused on assent, dissent, the significance of sex, and the similarity of the beings engaging in the sex act. (shrink)

The gray area of sexual violations generally refers to ambiguous sexual experiences that are not readily distinguishable from rape or sex. Such experiences are describable as ambiguous or complex in a way that, to some, seems to defy existent categories of sexual experiences. This leads some feminists to approach the gray area as a puzzle that must be resolved either by understanding it as a new category, or by upholding existing rape categorization. Rather than dispelling the gray-area ambiguity by resolving (...) conceptual puzzles, I assign the gray-area ambiguity a positive analytical role by attending to it in a historical and dialectical light. By tracing histories of feminist antirape discourse, I elaborate a way of understanding the “gray area” of sexual violations, articulating it as a historical condition affecting the interpretive possibilities of our sexual experiences. Such an approach underscores the potential of the gray area to inaugurate feminist critique in virtue of its status as a historically specific yet ambiguous horizon where our experiences can contradictorily seem not-like rape, but not-like sex. (shrink)

Philosophers have become newly interested in the ethics of sex. One promising feature of this new discussion is that it has been broadening our moral lens to include individuals whose sexual interests have historically been denied or ignored. One such group is the elderly. Contrary to popular belief, many elderly people want to have sex and see it as a regular part of their lives. If society harbors ignorance about or prejudice against elderly sexuality, it harbors stronger views against the (...) sexual expression of elderly people with dementia. People with dementia are often prohibited by nursing‐home staff, sometimes in extreme ways, from having sex with their partners. This prohibition is at least partly motivated by the goal of protecting the vulnerable. However, cutting people with dementia off from sex has negative health effects and is a needless restriction of their autonomy. In this article, I argue that the expanding moral lens in sexual ethics should include the sexual expression of elderly individuals with dementia and that their sexual expression should be respected. Specifically, I argue that many people with dementia are competent to consent to sexual activity with their long‐term partners. (shrink)

Contemporary debates about sexual ethics are dominated by a consent-oriented approach—consensualism. This position well explains the immorality of such acts as rape, pedophilia, bestiality and necrophilia. However, consensualism faces difficulties when it comes to adultery or HIV transmission. This article analyzes such unacquired moral obligations not to engage in consensual sex. A new natural law approach is proposed to explain and justify these obligations. This position places central importance in the evaluation of sexual acts on whether they are aimed at (...) achieving some common good and whether they harm some other good. As will be shown, the new natural law overcomes the difficulties of consensualism and grounds unacquired obligations in sexual ethics. And if this approach is combined with a pluralistic view of the goods that are realized in sex, then the new natural law does not allow the conservative conclusions about sexual morality inherent in the old natural law theory. (shrink)

Philosophy &Public Affairs, Volume 52, Issue 1, Page 69-100, Winter 2024.

This paper aims to provide an in-depth examination of the fundamental elements of rape, specifically focusing on intention and consent, within the context of “deceiving someone into having sex”. The analysis will involve exploring model cases and scrutinising the intentions of both the deceiver and the deceived in relation to consent. Through conceptual analysis, the concept of “deceiving someone into having sex” will be clarified, drawing insights from typical applications of this concept. Additionally, this paper will critically evaluate the main (...) arguments against these conceptualisations of “deceiving someone into having sex”. This is done to demonstrate the flaws that undermine these arguments, thus highlighting the insufficiency of these approaches in fully discrediting the concept. Moreover, it will be argued that deceiving someone into having sex can be regarded as a form of coercion, and thus rape, aligning with the established criteria for identifying rape cases. In conclusion, this paper argues that the conception of “deceiving someone into having sex” as a form of rape challenges the narrow framework through which we traditionally understand rape, necessitating the recognition that the scope of the concept of rape extends beyond our previous limits. (shrink)

Philosophical work on the concept of consent in the past few decades has got to grips with it as a rich notion. We are increasingly sensitive to consent not as a momentary, atomic, transactional thing, but as a complex idea admitting of various qualities and dimensions. In this paper we note that the recognition of this complexity demands a theoretical framework quite different to those presently extant, and we suggest that the enactive approach is one which offers significant value in (...) this regard. In consonance with arguments made by Laurie Penny about how consent is a continuous and dynamic process, we outline how an enactive approach identifies consent as temporally extended (rather than momentarily transactional), and as affected by the skilfulness of the agents involved, the fitness of community provided resources to negotiate the consensual relationship over time, and the unfolding of circumstances in the situation in which the joint action is taking place. We argue that the value of an enactive perspective on consent is in highlighting these complexities, and providing resources to articulate and theorise them in ways that are not open to other current approaches. (shrink)

Rather than as a giving of permission to someone to transgress one’s bodily boundaries, I argue for defining sexual consent as feeling-with one’s sexual partner. Dominant approaches to consent within feminist philosophy have failed to capture the intercorporeal character of erotic consciousness by treating it as a form of giving permission, as is evident in the debate between attitudinal and performative theories of consent. Building on the phenomenology of Maurice Merleau-Ponty, Ann Cahill, Linda Martín Alcoff, and others, I argue that (...) taking consent to be an intercorporeal and dynamic coexistence of desiring bodies opens up new ways of thinking about the role of consent in sexual ethics. I suggest that phenomenology’s theories of embodied consciousness, operative intentionality, and the direct perception of others provide a better groundwork for conceptualizing the role of ambiguity and subtle power dynamics in sexual encounters than attitudinal or performative accounts of consent. I also defend my view against Jonathan Jenkins Ichikawa’s argument for doing away with the concept of consent in sexual ethics due to consent's stubborn and infelicitous presupposition of permission-giving. (shrink)

In this paper I will use sex by deception as a case study for highlighting some of the most tricky concepts around sexuality and moral psychology, including rape, consensual sex, sexual rights, sexual autonomy, sexual individuality, and disrespectful sex. I begin with a discussion of morally wrong sex as rooted in the breach of five sexual liberty rights that are derived from our fundamental human liberty rights: sexual self-possession, sexual autonomy, sexual individuality, sexual dignity and sexual privacy. I then argue (...) (against the standard interpretation) that experimental findings in moral psychology show that the principle of respect for persons—a principle that grounds our human liberty rights—drives our intuitive moral judgments. In light of this discussion, I examine a puzzle about sex by deception—a puzzle which at first may seem to compel us to define 'rape' strictly in terms of force rather than sexual autonomy. I proceed by presenting an argument against the view that, as a rule, sex by deception undermines consent—a position held by prominent thinkers such as Philippe Patry (2001), Onora O’Neill (2003), Rubenfeld (2012), Tom Dougherty (2013a, 2013b), Joyce M. Short (2013), and Danielle Bromwich and Joseph Millum (2013, 2018). As we will see, sex following deception to increase your chances does not always constitute rape. Lying about your age, education, job, family background, marital status, or interest in a relationship, for example, does not make your sex partner incapable of consenting, which is to say that sex by deception need not be rape. I even go so far as to say that sex with another person that is facilitated by withholding information about having a venereal disease shouldn't be classified as rape. Although sex by deception doesn't compromise consent, it nonetheless violates the principle of respect for persons, not by vitiating sexual autonomy and compromising consent, but by failing to respect other sexual rights, such as our rights to sexual dignity, individuality, and privacy. (shrink)

Drunken sex is common. Despite how common drunken sex is, we think very uncritically about it. In this paper, I want to examine whether drunk individuals can consent to sex. Specifically, I answer this question: suppose that an individual, D, who is drunk but can still engage in reasoning and communication, agrees to have sex with a sober individual, S; is D’s consent to sex with S morally valid? I will argue that, within a certain range of intoxication, an individual (...) who is drunk can give valid consent to have sex with an individual who is sober. (shrink)

Politics, Philosophy & Economics, Volume 21, Issue 4, Page 393-414, November 2022. Sometimes, people consent to sex because they face social constraints. For example, someone may agree to sex because they believe that it would be rude to refuse. I defend a consent-centric analysis of these encounters. This analysis connects constraints from social contexts with constraints imposed by persons e.g. coercion. It results in my endorsing what I call the “Constraint Principle.” According to this principle, someone's consent to a sexual (...) encounter lacks justificatory force if they are consenting because withholding consent has an adverse feature, they are entitled to withhold consent without it being the case that withholding consent has this adverse feature; and it is not the case that the consent-giver has sincerely expressed that, out of the options that are available to their sexual partner, they most prefer to go through with the sexual encounter in the circumstances. (shrink)

Consent, on a standard theoretical framework, is a way of giving permission or waiving a right. Dougherty’s book is about the ‘scope’ of consent: which acts are permitted by a given act of consent? Along the way, Dougherty offers a view about what consent consists in and why it does its morally transformative work. The book is an exemplar of careful analytic philosophy. Philosophers working on consent in that tradition will find it essential reading. Following are more specific reactions that (...) will, I hope, convey a more specific sense of the book, and also engage and critique it and the tradition it exemplifies. (shrink)

This book is about permissive consent--the moral tool we use to give another person permission to do what would otherwise be forbidden. For instance, consent to enter my home gives you permission to do what would otherwise be trespass. This transformation is the very thing that philosophersidentify as consent--which is why we call it a normative power. It is something individuals can do, by choice, to change the moral or legal world. But what human acts or attitudes render consent? When (...) do coercive threats, offers, or lies undermine the transformative power of consent? What intentionsor conventions are necessary to render consent meaningful?This book develops a novel theory that explains the moral features of consent in some of the most central domains of human life--but that also serves as a study in how to theorize normative power. It argues that consent is a moral mechanism with exactly the set of features that, when triggered,prevents another person's behavior from constituting a certain kind of wrongdoing. What kind of wrongdoing? It depends on what sort of permission is being granted. Sometimes consent permits others to enter, occupy, or act within some bounded domain wherein the consent-giver holds moral authority. Inthese cases, consent operates to prevent what the book calls: Invasive Wrongdoing. By identifying the moral features that underlie this special wrongdoing, we can learn what it takes to render consent. (shrink)

Miller analyzes the relationship between consent and autonomy by offering three pictures. For autonomy, Miller distinguishes between procedural, substantive, and weak substantive autonomy. The corresponding views of consent are what Miller has termed as consensual minimalism, consensual idealism, and consensual realism. The requirements of sexual consent under consensual minimalism are a voluntary informed agreement. However, feminist critiques reveal the inadequacies of this simple position. Consensual idealism, which corresponds with substantive autonomy, offers a robust picture where consent and autonomy must be (...) based on non-oppression. However, this view is considered too ideal and it ignores context. Weak substantive autonomy takes into account the context in the sexual domain. Correspondingly, consensual realism takes into account the context and still fulfills the requirements of consent. (shrink)

The fifth text-revised iteration of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR) defines paraphilia as “any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature, consenting human partners”. Paraphilic disorders specifically denote a paraphilia that is “currently causing distress or impairment to the individual or a paraphilia whose satisfaction has entailed personal harm, or risk of harm, to others”. A diagnosis of paraphilic disorder either demands the personal (...) distress and/or impairment of function that is caused by the atypical sexual urges and fantasies to be present, or the status of non-consent of the other person that these sexual fantasies and urges are directed towards when acted upon by the patient. This paper discusses how consent not only becomes the standard for permissible and legal sexual activity with other persons, but also, when the diagnostic criteria are taken at face-value, for sexual pathology in the DSM-5-TR when the patient acts on their sexual urges. After a close investigation of various possible interpretations of the element of non-consensuality in the diagnostic criteria for paraphilic disorders, this paper concludes that the DSM-5-TR does not offer a clarifying explanation on how mental health professionals should under-stand its approach to diagnosing paraphilic disorders, leaving us with an ambiguous, unclear and unsettled conceptualisation of what it would mean to fulfil its diagnostic criteria. (shrink)

It is widely accepted that consent is a normative power. For instance, consent can make an impermissible act permissible. In the words of Heidi Hurd, it “turns a trespass into a dinner party... an invasion of privacy into an intimate moment.” In this chapter, I argue against the assumption that consent has such robust powers for moral transformation. In particular, I argue that there is a wide range of sex that harms or wrongs victims despite being consensual. Moreover, these cases (...) are not limited to those where con- sent is vitiated by background conditions. I start by calling this category of consensual sex Bad Sex. I then distinguish subspecies of this category, including psychological pressure, social coercion, and epistemically unsafe sex. I end by responding to an objection on which we should treat at least some subspecies of Bad Sex as rape. Though this alternative proposal is often motivated by ameliorative and strategic considerations, I argue that such considerations actually count against collapsing the categories of Bad Sex and rape. (shrink)

L’affaire Weinstein et le mouvement #MeToo ont mis la question des violences sexuelles au premier plan. Depuis, le consentement renvoie naturellement au consentement sexuel et amoureux, envisagé comme un sésame de l’égalité entre femmes et hommes. Pourtant, il est bien difficile à définir, et soulève trois problèmes. Le problème juridique, bien connu de celles et ceux qui suivent l’actualité, peut être résumé ainsi: que faire pour que les cas de viol, d’agression et de harcèlement sexuels soient efficacement punis ? Le (...) deuxième problème est moral : comment penser des relations amoureuses et sexuelles qui ne soient pas fondées sur des normes sociales sexistes et inégalitaires ? Enfin, le problème politique : comment ne pas reconduire les injustices de genre qui se manifestent dans les rapports amoureux et sexuels ? La magistrale analyse du consentement que propose Manon Garcia revisite notre héritage philosophique, plongeant au cœur de la tradition libérale, mettant à nu ses impensés et ses limites. De John Locke aux théoriciennes féministes françaises et américaines, en passant par Michel Foucault et les débats sur la pratique du BDSM, c’est une nouvelle cartographie politique de nos vies privées que dessine cet essai novateur. Au terme de ce livre, il s’agira en somme, pour reprendre la formule de Gloria Steinem, d’« érotiser l’égalité » plutôt que la domination : en ce sens, le consentement sexuel, conçu comme conversation érotique, est sans doute l’avenir de l’amour et du sexe. (shrink)

Our autonomy can be compromised by limitations in our capacities, or by the power relationships within which we are embedded. If we insist that real consent requires full autonomy, then virtually no sex will turn out to be consensual. I argue that under conditions of compromised autonomy, consent must be socially and interpersonally scaffolded. To understand consent as an ethically crucial but nonideal concept, we need to think about how it is related to other requirements for ethical sex, such as (...) the ability to exit a situation, trust, safety, broader social support, epistemic standing in the community, and more. (shrink)

Deception, like coercion, can invalidate the moral force of consent. In the sexual domain, when someone is deceived about some feature of their partner, knowledge of which would be dispositive of their decision to have sex – a dealbreaker – the moral validity of their consent is undermined. I argue that in order to determine whether someone has discharged their duties of disclosure in the sexual domain, we should ask whether, upon receiving a token of consent to sex, they have (...) a justified belief that their partner would consent to the sexual encounter given all the features that it has. I argue that whether an agent has a justified belief in this proposition is a function of the agent’s body of evidence and which alternatives uneliminated. (shrink)

Philosophy and Phenomenological Research, EarlyView. Despite the acknowledgement of the moral significance of consent there is still much work to be done in determining which specific sexual encounters count as unproblematically consensual. This paper focuses on the impact of deception. It takes up the specific case of deception about one's self. It may seem obvious that one ought not to lie to a sexual partner about who one is, but determining which features of oneself are most relevant, as well as (...) the lies which it follows would be impermissible to tell, is complicated. It is argued here that deception about one's morally valenced character traits, those we think of as virtues and vices, are particularly problematic. This is true regardless of whether knowing the truth about those traits would have made a difference to one's partner's consent. Attention is then drawn to a range of types of lies that one ought not to tell. (shrink)

At the end of 2017, Kristen Roupenian’s short story, Cat Person, went viral. Published at the height of the #MeToo movement, it depicted a ‘toxic date’ and a disturbing sexual encounter between Margot, a college student, and Robert, an older man she meets at work. The story was widely viewed as a relatable denunciation of women’s powerlessness and routine victimization. In this paper, I push against this common reading. I propose an alternative feminist interpretation through the lens of Simone de (...) Beauvoir’s notion of narcissism: a form of alienation that consists in making oneself both the subject and the ultimate project of one’s life. Framing Margot as a narcissist casts her as engaging, not in subtly coerced, undesired sex, but rather in sex that is desired in a tragically alienated way. I argue that Beauvoir’s notion of narcissism is an important tool for feminists today – well beyond the interpretation of Cat Person. It presses us to see systematic subordination not just as something done to women, but also as something women do to themselves. This in turn highlights the neglected role of self-transformation as a key aspect of feminist political resistance. (shrink)

Deception sometimes results in nonconsensual sex. A recent body of literature diagnoses such violations as invalidating consent: the agreement is not morally transformative, which is why the sexual contact is a rights violation. We pursue a different explanation for the wrongs in question: there is valid consent, but it is not consent to the sex act that happened. Semantic conventions play a key role in distinguishing deceptions that result in nonconsensual sex (like stealth condom removal) from those that don’t (like (...) white lies). Our framework is also applicable to more controversial cases, like those implicated in so-called “gender fraud” complaints. (shrink)

This paper emphasizes a need to recognize sexual refusals both in public discourse and in the context of particular interactions. I draw on sociolinguistic work on the structure of refusals to illuminate a much-discussed case of alleged sexual violence as well as to inform how we ought to think and talk about sexual consent and refusal more generally. I argue on empirical and ideological grounds that we ought to impute the same significance to refusals uttered in sexual contexts as we (...) do to those uttered in nonsexual contexts. Finally, I propose an amendment to the definition of affirmative consent that would put it in line with the conclusions drawn in the rest of the paper. (shrink)

The standard liberal sexual ethic maintains that consent is the only requirement for ethical sexual relations. While consent is certainly necessary for an adequate sexual ethic (and it’s important to know what it involves), I argue that it’s far from sufficient. The key claims that I advance are the following: (1) The consent-only model of sexual ethics affirms a “casual” view of sex and therefore it can’t make sense of and properly combat what’s worst in the sexual domain: namely, the (...) grave evil of sexual violence. (2) The consent-only model of sexual ethics fails properly to recognize the special significance of human sexuality and the nature of erotic love and its role in human sexual fulfillment and therefore it can’t make sense of and properly support what’s best in the sexual domain: namely, a committed erotic loving relationship. A more adequate sexual ethic, I maintain, would be a more traditionalist one that involves the following: it would give proper recognition to the special significance of human sexuality, avoid dehumanization in sexual desire, and encourage and support committed erotic love and its role in human fulfillment. Moreover, it would regard this as requiring that we cultivate sexual virtues such as chastity, modesty, and fidelity, and that we encourage and support life-long monogamous marriage as the proper context for human sexual relationship. (shrink)

The article offers a challenge to, and an invocation of, the values of Lasallian mission against rape culture. It addresses the continuum of violence, from outright misogynistic terrorism to an ongoing threat of assault and harassment, to the normalization of emotional and physical coercion of (primarily) women; and it explores historical responses within the Lasallian tradition to this pervasive problem in society and identifies a few rich resources within its underlying charism for tackling this pernicious evil (the virtue of silence (...) / listening & a paradigm of association). The Lasallian obligation to address rape culture and attitudes of patriarchal normalcy is articulated; and a challenge is issued to actively teach students about healthy relationships, gender norms, and sexuality. Women and men on college campuses need to be willing to engage these difficult but necessary conversations and take responsibility for their part in the transformations needed in society and on college campuses. (shrink)

In the matter of the body, even comparative language—the very use of English today—is soaked through and through with the Cartesian version of the intuition of dualism: the idea that we are fundamentally a mind and a body that must be either related ingeniously, or else reduced to one another. Instead, by deliberately looking at genres that pertain to other aspects of being human, I seek to go deeper into texts that simply start elsewhere than with intuitions of dualism, even (...) while being engrossed in the category of the experiential ‘body’. (shrink)

A new book by Maurizio Balistreri, "Sex robot. L’amore al tempo delle macchine", is reviewed. Sex robots not only exacerbate social, ethical and cultural issues that already exist, but also come with emergent and novel ones. This book is intended to build on the recent research on both robotics and the growing scholarship on sex robots more generally, however with greater attention to the developments of the philosophical issues of how to deal with these new artefacts and steps for living (...) among these types of systems into the future. (shrink)

What is good sex? This question can be evaluated in multiple dimensions, the moral dimension being only one of them. My main thesis in this paper is that a criterion for good sex is whether the participants are on a par with each other. This can be understood as a moral ideal. In order to make this argument, I first explain what is meant by “sex”. This is, on the one hand, to delineate clearly which phenome-na are included in the (...) definition for the purposes of this argument. It is, on the other hand, to repel the problematic image of sex as something exclusively physical. In a second step I will address the issue of consent. Consent is, in my view, a minimal condition for the moral quality of sexual activities. It is only when consent is given by all participants that sexual activity is legitimized. Of course many related questions arise in this context, but without consent, we cannot speak of the moral quality of sexual activities at all. But why is consent so important? It is important to protect people. The protection is more successful if we take into account the attitude with which people engage with each other sexually. Sexual activities where people are on a par with each other are morally better than those where people are not. Being on par means that each participant’s desires and wishes are respected equally. I develop this thesis further by engaging with different objections. If we set out to question whether a sexual activity is morally good, we will also have to answer the question whether the participants who are engaged in this activity are on a par with each other. (shrink)

In both popular and scholarly discussions, sexual consent is gaining traction as the central moral consideration in how people should treat one another in sexual encounters. However, while the concept of consent has been indispensable to oppose many forms of sexual violence, consent-based sexual ethics struggle to account for the phenomenological complexity of sexual intimacy and the social and structural pressures that often surround sexual communication and behavior. Feminist structural critique and social research on the prevalence of violation even within (...) consensual sex suggest that consent is insufficient to ground responsibility; a more fundamental orientation toward the value of sexual agency provides a better foundation for sexual ethics. Using feminist critical theory, phenomenology, and black feminist thought, this dissertation develops a socially situated and relational notion of sexual agency and diagnoses how such agency is neglected in prevailing discussions of consent in moral philosophy and legal theory. I argue that the ethical question of responsibility to another in a sexual encounter—apart from juridical considerations—should be reframed around the value of each person’s socially situated practices of agency. Preceding and extending beyond the obligation to gain valid consent for an action, responsibility demands adapting one’s intentions and behaviors in response to the wider range of another’s communicative expressions of agency. However, communicative expressions can be ambiguous or overdetermined by social context and cultural norms; they often offer only provisional traces of agency. To address this inherent uncertainty in intimacy, I propose drawing on insights from Emmanuel Levinas about the dynamic, open-ended nature of relationality, responsibility, and communication. Responsibility toward another does not depend on securing certainty about their “yes” or “no,” but requires responding continuously under conditions of uncertainty and ambiguity, adapting behaviors and intentions to make room for another’s agency despite its opacity. (shrink)

In addition to protecting agents’ autonomy, consent plays a crucial social role: it enables agents to secure partners in valuable interactions that would be prohibitively morally risk otherwise. To do this, consent must be observable: agents must be able to track the facts about whether they have received a consent-based permission. I argue that this morally justifies a consent-practice on which communicating that one consents is sufficient for consent, but also generates robust constraints on what sorts of behaviors can be (...) taken as consent- communicating. (shrink)

In this paper, I answer the following question: suppose that two individuals, C and D, have been in a long-term committed relationship, and D now has dementia, while C is competent; if D agrees to have sex with C, is it permissible for C to have sex with D? Ultimately, I defend the view that, under certain conditions, D can give valid consent to sex with C, rendering sex between them permissible. Specifically, I argue there is compelling reason to endorse (...) the following thesis: -/- Prior Consent Thesis: D, when competent, can give valid prior consent to sex with her competent partner (C) that will take place after she has dementia, assuming that D is the same person as she was when she gave prior consent, meaning that, if D, when competent, gave prior consent to sex with C, then C may permissibly have sex with D. In section I, I explain both the background and the existing literature on this issue. In section II, I outline relevant stipulations about the kinds of cases I will be examining. In section III, I defend the Prior Consent Thesis. And, in section IV, I address objections to the Prior Consent Thesis. (shrink)

If consent is valid (that is, morally transformative), then in every case it is either valid or invalid. This is because of the notion that (when valid) consent eliminates a right and a person either has or lacks a right against another. A parallel problem to the paradox of symmetrical attackers applies to consent. That is, there is a case in which two people neither consent nor do not consent to one another. As a practical matter, attorneys, judges, legislators, physicians, (...) and sex partners should not treat consent as morally significant, except perhaps as defeasible evidence of what makes another person’s life go better. They might still want to follow the law because there is likely a duty to follow law even when its purported justification is mistaken. (shrink)

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R (...) v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged. (shrink)

This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment of section 273.2 (...) in 1992. Revisions to the Model Jury Instructions posted by the National Judicial Institute are also considered. (shrink)

While the importance of Consent has been discussed widely over the last few decades, interest in its study has received renewed attention in recent years, particularly regarding medical treatment, clinical research and sexual acts. The Routledge Handbook of the Ethics of Consent is an outstanding reference source to this exciting subject and the first collection of its kind. Comprising over thirty chapters by a team of international contributors the Handbook is divided into five main parts: General Questions Normative Ethics Legal (...) Theory Medical Ethics Political Philosophy ¿ Within these sections central issues, debates and problems are examined, including: the nature and normative importance of consent, paternalism, exploitation and coercion, privacy, sexual consent, consent and criminal law, informed consent, organ donation, clinical research, and consent theory of political obligation and authority. ¿ The Routledge Handbook of the Ethics of Consent is essential reading for students and researchers in moral theory, applied ethics, medical ethics, philosophy of law and political philosophy. This volume will also be very useful for those in related fields, such as political science, law, medicine and social science. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about whether (...) a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)