Sex, Friendship and Consent

Anne Jacobson wonders whether sexual activity always requires the capacity to consent, see sex in the country of the aged. In this I posting will examine what sort of consent is needed for sexual relations. I will argue what counts as consent varies with the relationship between the parties involved. In medicine consent is always necessary. If I go to the doctors and she takes my blood pressure I simply roll up my sleeve and hold my arm out. My consent is implicit. If I am about to have a transplant my consent is not implicit or even verbal but signed. Moreover in order for my signature to be valid I must understand both the nature and possible outcomes of the procedure. In a medical setting how detailed my consent needs to be depends on the procedure. Procedures vary and different procedures have different consent requirements. In what follows I am only concerned with consent to non-exploitative sexual relationships and will exclude bizarre relationships. These relationships will include gay and lesbian ones. I am also only concerned with non-harmful relationships. These relationships exclude ones in which an unwanted pregnancy might occur or harm due to unprotected sex which might occur if one of the partners was HIV positive. In such relationships, unlike medical procedures, because all of them require much the same understanding and carry little risk of harm it would appear to follow that the consent requirements should be the same in all cases.

However even if the understanding required and risks involved vary very little the partners might. For instance two students on a blind date are very different from partners who have lived together for twenty years. I will now argue that adequate consent to sex varies with the relationship between the partners involved. I want to look at sexual consent from the viewpoint of friendship. It might be objected not all sexual relationships take place between friends. The strength of this objection depends on what we mean by friends. I want to differentiate between act being done in friendship and an act being part of friendship.

I will consider sexual acts done in friendship first. Aristotle suggested that there could be friends of utility. That is people might be bound together because together they might reach their own respective goals. A one night stand between two students could be understood as done in the friendship of utility. Each partner is simply seeking to satisfy his/her sexual desires. I would suggest that provided each partner is capable of consenting that this consent can be implicit. For instance undressing or acting in a sexually provocative manner might be regarded as giving implicit consent to sex. However it is conceivable that one partner might misread the signals so it is important that both partners are capable of consenting. If someone is capable of consenting then he/she is capable of refusing consent by saying no. I would suggest if both partners are capable of refusing consent that implicit consent should count as valid consent. I would further suggest that if one of the partners later thinks that he/she should have said no does not invalidate that consent. A patient’s consent to heart surgery is not invalidated if he latter regrets his decision due to the outcome caused by unforeseeable circumstances.

Let us consider the question of competence further. It is just about possible to view sex between a client and prostitute as an act done in the friendship of utility even though they have different goals. The client is seeking to satisfy his sexual desires whilst the prostitute is seeking financial reward. However few prostitutes, if any, are happy hookers. It is possible to argue that even though the prostitute can easily say no, her social situation means she is not competent to give real consent. I suggested above if both two people are capable of refusing consent that implicit consent should count as valid consent. The above example shows it is relatively easy to ascertain if someone consents but that it is much harder to ascertain if he/she is competent to give consent. Tightening the consent requirements will not change this difficultly so in the rest of this posting it will be assumed implicit consent between competent adults is valid consent.

I now want to examine some of the consequences of accepting the above assumption. Let us now consider whether someone can give adequate consent if he/she is under the influence of alcohol or another drug. Sex often takes place between those who are mildly intoxicated with only implicit consent and I would suggest such consent is perfectly valid. Let us consider one partner is very intoxicated. I would suggest in this case even if he/she gives explicit consent that his/her consent is invalid as he/she is not competent to give consent. Clearly there are difficult cases in which it is hard to ascertain whether someone to competent to give consent. Because of these difficult cases an objector might suggest that implicit consent is inadequate consent and as a result suggest that consent requirements need to be explicit. Someone must say yes. I would reject such a suggestion because it doesn’t address the real problem; whether someone is competent to say yes. My objector might nonetheless maintain that because competence is sometimes hard to ascertain, especially in retrospect and that implicit consent given by a competent person is an inadequate standard to apply. In response I would reply drink means it is difficult to assess whether someone is competent to drive a car and an arbitrary standard is applied. My objector might now respond such an arbitrary standard is not available when determining competence to consent to sexual relations. I accept this point. However there is no arbitrary standard to assess competence to give consent in a medical setting and a patient’s competence usually can be assessed. In difficult cases it is usually left to the courts to determine competence. It seems to me even if it is difficult to assess someone’s competence in borderline cases that implicit consent between competent parties should be regarded as valid consent. Lastly someone who has been taking drink or drugs should not enter into in any sexual relation not only because he/she cannot give competent consent but also because he/she is not capable of understanding of whether his/her partner is giving consent or capable of giving consent.

I now want to consider a difficult case outlined by Mike LaBossierre as follows.

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’ talking philosophy

Six weeks later the women reported she had been raped. If we accept that valid consent can be implicit consent between competent partners was she raped or did she change her mind? Clearly the women in question said no but because she didn’t say no a few minutes later was she then giving her implicit consent? The fact that afterwards she simply went to sleep seems to support the idea that at the time she didn’t feel as though she had been raped. Surely rape requires anger at the time of rape even if this anger has sometimes to be suppressed. It appears to follow that she wasn’t raped and as a result had given some form of implicit consent. I am somewhat reluctant to accept the above conclusion. Implicit consent cannot be presumed from a lack of resistance. I have suggested sexual relationships take place in some kind of friendship, even this is only the friendship of utility. If one partner obtains nothing from a sexual relationship then he/she is being used purely as a means. To use someone simply as a means is wrong according to Kant, even though he would have viewed sexual relationships very differently to the way I am doing here. The above case did not take place in this type of friendship as having sex was of no utility to the women in question and she was being used purely as a means. It follows the above was a case of rape. My objector might suggest that this example shows the need for explicit rather than implicit consent to sexual relations. However accepting his suggestion might not have made any difference in this case, the woman in question might have said yes simply to stop herself being pestered in order to go to sleep. I would repeat my suggestion that consent implicit or explicit must take place in a spirit of friendship even if this friendship is only one of utility.

I now want to consider acts that are done as part of friendship. According to Bennett Helm friendship should be understood partly in terms of the friends forming a “plural agent”.  This involves friends having a joint evaluative perspective (1).  A joint evaluative prospect should mean such friends feel the same way about sexual relations and that implicit consent between competent partners should be regarded as valid consent. Sometimes of course even though the partners share the same perspective the time might be wrong for one of the partners and he/she should simply say ‘not now’. It might be thought that for a couple, such as a married couple, who had been friends for many years all that would be required would be implicit consent. Let us return to Anne Jacobson’s ‘country of the aged’, is possible to have consensual sex if someone has dementia. Perhaps prior to dementia the couple had a loving relationship and enjoyed good sexual relations. Perhaps in these circumstances the prior relationship meant that implicit consent was in place. Personally I wonder why someone should want to have sex with someone suffering from dementia, such sex seems analogous to sex with a non-responsive robot or if the personality has left the person a form of masturbation. Regardless of these concerns such sex is non-consensual, because one of the participants cannot say no, and should be regarded as rape. Implicit consent is only valid consent if both partners are competent to say no.

The above leads to the following conclusions about the conditions in which consensual sexual relationships should take place.

1. Sexual relations must always take place in friendship. Even if this friendship must be seen as between friends of utility. It is important to clear that some relations between friends might not take place in a spirit of friendship as illustrated by the case of the two students used above. I would suggest that this is a necessary but not sufficient condition.
2. Consent must be given even if this is only implicit consent. As consent must always be done in friendship it follows if there is any doubt as to whether implicit consent is being given it is required that the doubter satisfies his/her doubts.
3. Consent given must be given by someone who is competent. He/she must understand what he/she is doing and the possible consequences.
4. Lastly someone must be competent enough to understand if his/her partner is giving or capable of giving consent. This applies particularly in cases such as dementia, drink and drugs.

To conclude I have argued that the two examples I have used above are cases of rape. Many would disagree with my conclusion especially in regard to the first example. They might point out even if the student in the example used the other only as a means to satisfy his sexual desires that his actions were not the same as someone who uses force. Such worries seem meaningful to me. However does this mean we need to reconceptualise rape? I'm not sure and will consider the question in another posting.

1.    Bennett Helm, 2010, Love, Friendship the Self, Oxford, page 282