THE general point of view of this article is that sexual activities...

THE general point of view of this article is that sexual activities and sexual relationships to which people consent are morally superior to those to which they do not. If phenomena like sex and sexual relationships can be morally distinguished by their level of consent, then they can be empirically distinguished, because otherwise the moral distinction would be bootless. We want then to describe the range of phenomena connected to sex using a variable of the degree of consent, and will do so by analogy with the morally rich literature on consent in labor relations, especially that on the more idealistic side of Marxism. Some feminist literature can be misread as collapsing all degrees of consent to sex short of utopian into sexual harassment or rape, and our purpose is partly to construct a moral disagreement with that tendency.

 

That is, arguments which insist that discussion of high and low value incentives for consent to sex necessarily amount to a discussion of coercion, making the sex equivalent to rape, keep us from considering policies that reduce or mitigate coercion in sex. For example, prostitutes who work in regulated houses of prostitution are less likely to be raped, killed, infected by venereal or sexually transmitted diseases, and to transmit them to Johns.1 If one tries to abolish prostitution rather than regulate it, it does not actually get abolished. Instead, the medical control, the legitimation of condom use, and the security provisions created by a bouncer downstairs are what are abolished. Thus the actual public policy choice is between young women's poverty, abuse in the home, or drug dependence creating incentives for young women to risk rape, mutilation, and violent death, and HIV, versus a certain vague legitimation of prostitution by providing safe environments for it to happen.

 

The ideal alternative is that clients (mostly men) should stop providing incentives for the continuation of the trade, that young women abused at home should have protection from abuse without running away, that good jobs with a wage rate comparable to returns from prostitution should be available to troubled women (especially those from 16 to 25 years old), and that an active labor market policy should induct them into ordinary well-paid jobs. But as long as utopia is not yet here, we should ideally recognize that both the prostitutes and the Johns would be better off if there were less rape, violence, and HIV infection associated with prostitution rather than more. And that means that the degree of coercion in consent should be regarded as a continuous variable, with a distance between regulated and unregulated prostitution, even at the grimy lower middle of the variation from rape to egalitarian marriage.

 

The same is also true at the highest end. The constitutional principles of a marriage, as with those for a government, may be materially altered by events. The marital constitutional principles agreed to before marriage or childbearing may be that the husband and the wife will share the child care burden, and particularly the responsibility for seeing to it that the care is actually delivered. But if the husband assumes that part of his constitutional liberty untouched by the birth of a child to include the liberty to have a long run in the morning while the children are got ready for school, and the liberty to arrange to be on an afternoon soccer team to use the resulting muscles in a good cause, the constitution gets eroded. The practical interpretation of the marriage's constitution should be renegotiated under a changing child care burden, hopefully without a civil war and ideally, one in which labor is shared equally. The subtle differences over which of each other's traditional liberties can be discussed and invaded are differences in that subset of marriages nearer the utopian end. Policies on liberties and their invasions regarding sexual relations need subtlety, so that the husband's coercion to change the nappies, and then later to drive kids to the Brownies' meetings, can be negotiated. Thus, a very good egalitarian marriage not adjusted for (or in the alternative, adjusted in the typical, unconscious, and invisible gender specific ways) variations in the child care burden and its scheduling, with sexual access as a normative condition of the continued existence of the marriage, is more coercive when the scheduling of equality cannot be renegotiated.

 

Such a moral arrangement of subjective phenomena like consent creates a problem of social engineering, of how to make the assessments of subjective states, such as intent, consent, informed consent, embedded in such moral judgments, available for moral discourse and social control. In the case of sex, presumably the main environment in which assessments of consent are to be made available is at the level of the couple. But insofar as oppression is routinely built into relations between members of couples, especially couples of mixed genders, we have to ask how to make such subjective states, and the morally suspect actions that they sometimes give rise to (for example, the intent to have sex regardless of the non-consent of the other), available to social influence. We will argue that approaching such problems through the lens of legal philosophy takes a particularly rigid and clumsy social apparatus, human rights litigation, as the social engineering model. We will argue that this is both dangerous to the values embedded in the liberal legal paradigm, and morally obtuse as an approach to social control. In doing so, we join other feminists attempting to reconcile the seemingly contradictory arguments of feminism and liberalism.2

 

Part of the problem of this literature is that the immense majority of sexual interactions "at risk" of high level coercive sexual relations are in fact not realized, and we have to explain the non-occurrence of sexual harassment (and of course figure out how to increase non-occurrence) as well as the occurrence. Only some unwelcome sexual approaches are "incidents at risk" for sexual coercion. Those men, for example, who might have been interested but were waiting for a sign (that they are capable of understanding), and get either no sign, or a negative sign, may never make an unwelcome advance. Such incidents do not create coercive consent. In turn, the proportion of refused male approaches where the refusals are not well received by the man is larger as a percentage of all unwelcome approaches than of all approaches. Getting unwelcome and harassing approaches changes the perception of dangers of coercive sex.3

 

The first author, of course, has not experienced life as a woman, but the experience he had of homosexuals up until the massive change in the proportion who have "come out" publicly was almost all of unwelcome approaches, and of that, a very large proportion were harassment. This does not, of course, mean that the population of gay men in those days had a high proportion who disregarded signs of lack of welcome; they simply did not make approaches. It simply means that a large proportion of the approaches (to an unwelcoming person) will be considered harassing approaches.

 

We will want also to come back to the problem of constructing utopian conditions of consent. We will define that utopian condition much along the lines that Marx and the more utopian wing of Marxist thought does in discussing alienation in the labor relation, after having (we hope) cleared the way by refuting the notion that legally punishing all coercion is the way to decrease alienation in sexual relations.

 

 

I. AN OUTLINE OF THE ARGUMENT

In the first part of this article we want to explicate the notion of "consent" from a sociological point of view, and in particular we want to distinguish different levels and kinds of consent, so that the degree of consent becomes a variable that can be observed and studied. We believe that conceiving of consent as a variable also clarifies moral and legal questions, but that will be argued later. The general point here is that the dimension spanned from rape by a stranger by the use of threats to fully free informed and reflective consent has many intermediate stops, and these require different sociological explanations as well as different moral evaluations.

 

We will distinguish sharply between consent as conceived by the consenting parties and consent as construed by social control agencies (for example, in trials for rape, or in judgments about whether women were "deserving" of relief).4 Quite often "constructive consent" is used in the law in an oppressive way, as for example in denying that marital rape can take place because by marrying the woman consented to sex. Police and court processing of rape prosecutions often collects evidence of women's consent to the social relationship in which non-consenting sex took place, or consent to sex at a different time or even with a different person, as evidence about the a priori probability that, in spite of her testimony, she actually consented. These a priori probability estimates are socially significant because they affect the judgment of probability involved in the "beyond reasonable doubt" condition for a criminal conviction for rape. But the negative consequences for the position of women of such social constructions of consent, or of the probability that there had been consent, should not obscure the fact that there are significant variations in the experience of women between sex to which they have consented to and sex to which they have not.

 

In particular we want to discuss the complexities introduced into the notion of consent when sexual episodes with different degrees of consent are embedded in, and conceived as an aspect of, long-term relationships that themselves have different degrees of consent. We believe that this complex issue is clarified if we systematically develop the analogy between consent of different degrees to particular tasks at work and to temporary working conditions, and when it does and does not involve consent of different degrees to a long term relationship in the labor market. Long term labor market relationships are often associated with career advantages, trade-union representation, grievance procedures, and the like. Reluctant consent to exchanges about particular tasks has a different sociological and moral significance when it is embedded in relationships with different degrees of consent and different constitutions for remedy of conditions not consented to. We plan to use this analogy to illuminate comparable relations between relationship consent and episode consent in sexual relations.

 

The second part of the article deals with the liberal creed on consent. We will argue that liberal doctrine and practice tends to use grievance procedures or therapy rather than law in solutions to problems of low degrees of consent to episodes in relationships that are themselves consented to, while criminal law and civil law damages are often available for the same actions not embedded in voluntary relationships. One of the reasons that the law is a clumsy tool, even when administered with good will, is that legal processes demand that evidence about psychological states, such as the consent be "objectified," be socially certifiable. And, of course, the criminal law (as opposed to divorce law, for example) has the further disadvantage as an instrument that it will only convict when the crime is demonstrated beyond reasonable doubt. That is, criminal law is uniformly biased against the victim, and more biased when the existence of the crime requires the social certification of psychological states such as "intent" (such as first degree murder charges) or "lack of consent" (such as rape). We will further argue that the embedding of sex in "voluntary" relationships tends to make oppression within them invisible to the liberal law, and only remediable by educational, therapeutic, or grievance procedure methods.

 

In the third part we will explore the dimension of alienation, in the sense of being used for the purposes of others. Again the labor market analogy will prove useful, because work, too, ranges from work undertaken (or at least also undertaken) for pleasure, personal development, and generosity of spirit, to work undertaken only for external rewards or avoidance of punishment. Quite often from a moral point of view we want to distinguish systems and acts in which work or sex is given consent to because the work or sex brings the consenter pleasure, or contributes to personal growth, or is undertaken out of generosity and a sense of responsibility for the fate of others, from systems or acts in which, all things considered, one gets more out of the exchange than one loses by consenting to the work or sex.

 

Thus we might distinguish even the highest levels of consent, those involving informed and reflective consent in a relationship which itself is, by constitution, one entered into in an informed and reflective way, from acts or relationships that are alienated, entered into for external rewards rather than for pleasure, growth, and generosity. Much of the fire of Marxist morality comes from the notion that "true" consent requires unalienated reasons for the consent, so that informed and reflective consent to a labor relation because the alternative is not eating is inferior to consent for pleasure, growth, and generosity, consent motivated by joy in work. The same is true for the fire in some radical feminist analyses of consent in sex, that autonomous consent to episodes in a relationship whose constitution has been consented to in an autonomous and reflective way are superior in the same way that the utopian end of labor relations are. Work can be still "constrained" by its purposes and the lack of good tools, without being oppressive, and so can sex.

 

 

II. SITUATING OUR ARGUMENT

The "liberal" view, as represented in the typical theory of microeconomics, is that whatever grounds for consent are adequate to a legitimate market participant are good enough for moral and political analysis—people can choose to be unalienated rather than rich if that is what they really want. Or, as a liberal political theorist might say, the state should not be permitted to regulate certain behaviors because people should enjoy liberty from the state regarding personal, sexual matters.5 At what point the state should intervene with liberty in favor of equality is the subject of much debate in political theory and among feminists who might be loosely categorized as pro-pornography and pro-prostitution feminists and anti-pornography and anti-prostitution feminists.6 While our analysis speaks to those theoretical debates, what we hope to do here is to distinguish the willing and alienation components of the analysis of consent empirically, in part so that they can be distinguished morally and politically.

 

Since it will soon become obvious anyway, we may as well say here that we approach the problem mainly from a "liberal" point of view. That is, we believe that adults should be allowed to consent to sexual activity, as well as to work, on tainted grounds, whenever, all things considered, they think that is best for them. We believe that the dimension from alienated consent to unalienated consent is best addressed from a structural, ideological, or cultural point of view, with a view to decreasing the grip of those institutions, ideas, and conditions of life that tend to increase the risk of people giving alienated consent. In Pateman's terms, it may be that relinquishing the idea of "property in the person" will lead to a more free democratic social and political society, but "property in the person is necessary to understanding certain institutions and practices" including an empirical understanding of consent itself.7

 

Or, to put it another way, the hegemony of patriarchal ideals, institutions, and patriarchal conditions of the control of resources should not ordinarily be fought by interfering with sexual activity between consenting adults, even when tainted by hegemonic institutions, because that is both an ineffective and an intrusive way to fight hegemony. In the labor market, those who work only to eat are likely to resist intrusions that do not arrange that they should eat. In the labor market, interfering with alienated consent to work tends to turn alienated workers against radicalism. In a similar way, we may end up having our allies be our enemies by taking a strong position against alienated sex.

 

 

III. THE DEGREE OF CONSENT

The purpose of this section is to lay out the dimension that runs from rape, to grudging consent, to full, free, informed, and reflective sex, which we will call the dimension of "degree of consent." However, just as tasks and jobs are embedded in careers, much sex takes place in continuing social relations in which episodes (with varying degrees of consent) take place in a context of relationships themselves constituted by different degrees of consent, and with different degrees of remedy for lack of consent to an episode. Episodes of tasks at work and events of sex have their sociological and moral meaning shaped by the nature of consent to the relationship. Grudging consent to episodes of sex, for example, is quite a different thing when embedded in coercively formed relationships than when embedded in relationships freely chosen with reflective consideration of all they implied (including what they implied about grudging sex).

 

Consequently, we plan to give four examples for each degree of consent, one involving episodes of work, one involving episodes of sex, one involving relationships of work, and one involving relationships of sex. The dimension from "involuntary" to "consenting," as conceived here, for the two types of episodes and the two types of relationships, is laid out in Table 1.

 

There are two types of coercion with different moral evaluations, different sociological origins, and different relations to consent, which are fundamentally towards the rape end, namely force (and the threat of force, which we will not distinguish from force here) and fraud. Usually the byword of macho culture, "All's fair in love and war," is not actually a statement that threats with machine guns are appropriate seductive moves, but rather an endorsement of the use of false promises, lies, misrepresentations of sentiments, and the like, in recruiting consent to sex. In the old days, force and fraud were often distinguished by the different legal remedies of criminal prosecution for rape and civil remedies for "breach of promise," or by the distinction (somewhat problematic in the documents) between rape and "seduction."

 

It seems to us that the distinction between force and fraud maintained even at the piggish end of male culture, and the similar distinction reflected in the difference between criminal and civil remedies, reflect a real difference in the degree of violations of the right to consent. In the face of fraud, wise women or women of scruple need not consent, and they risk losing only the advantages promised in case the offer was sincere; in the face of the threat of or application of force, they risk violence and injury, regardless of wisdom or scruple. That is, episodes of sex by rape and seduction by fraud and misrepresentation are distinguished by the degree of consent.

 

Similarly, prisoners in concentration camps whose task is to dig graves while guns are pointed at them are in a worse position than workers recruited by a capitalist to dig without being informed that the firm is bankrupt. Slaves in a long-term relationship created by force (in which they may nevertheless be able to bargain about some episodes of work) are in a worse position than formally free workers recruited with pensions promised from a fund whose guardians plan to abscond to Brazil. Women in coercive patriarchal families who may be burned by their in-laws are in a worse situation than women who are free to leave and have been promised that their children will be supported, only to find (as sometimes happens in very patriarchal cultures) that it is only their male children that will be supported in such circumstances. Consequently, in Table 1 the four instances of consent with fraud are distinguished from the four instances of consent in the face of a threat or application of force by being lower in the table and more toward the consenting end. Of course, we are still in a pretty grim part of the table.

 

Table 1. The Dimension from Rape to Full, Free, Informed, and Reflective Consent, with Four Illustrations at Each Step

ExamplesConsent by:Work, TasksEmploymentSex EpisodeSex RelationshipForce

Fraud

Grudging Consent On Net Balance Informed Consent Reflective Consent Reflective Const.

Guns trained Wages fraud Speedup Incentive pay Safety regulations Acad, grant proposal Volunteer workSlavery Pension fraud Peonage

Reserve army unemp Network hiring Job evaluation syst. Kibbutz, ERISA

Rape

All's fair in love Let go to sleep Call girl

By the way, married Decide before next Have child together

Wife burning Bigamy, secret Give child father Go where money is HIV screening Couple therapy Egalitarian marr. cont

 

The four examples just below the fraud line in Table 1 are labeled "grudging consent," by which we mean that the overall situation is coercive, because there is a threat of unpleasantness, or of danger to a long run relationship involved in the consent. That is, the consent is accompanied by a consciousness that it is not really willing, not something that one would do for the benefits involved, but rather something that one does to avoid worse unpleasantness. Unsafe work undertaken by deep sea divers, because the company's contract would be at risk if the diver refused, is an example in the world of work.8 Similarly, grudging consent involved in a date with someone whose friendship is generally valued might be reflected in the description we once heard, "Sometimes you F%$% them so they'll let you go to sleep."

 

For relationships, the consent of a traditional Guatemalan peasant to a debt which will feed his family, but which implies employment by the hacendado until it is paid off, involves grudging consent; so does the "shotgun marriage" of traditional lore.

 

The distinction between grudging consent and considering that on net balance this is the best one can do is primarily one of how far the constraints of a given situation are deliberately arranged by the person to whom consent is given. For example, if the welfare system is so arranged that the standard of living of those who get welfare is systematically kept under that of people who are performing the poorest-paid jobs, the system as a whole is arranged so that one is "forced to work." But no particular employer has arranged that some particular workers are worse off if they do not come to work for him (or her), so from the workers' point of view having to work is a "fate," perhaps to be changed by politics in the long run. Given that fate, one can voluntarily choose to work for one employer rather than another. The distinction between grudging consent and on-net-balance consent is the one that makes capitalism less oppressive than feudalism, and that makes sex for money less oppressive than rape, fraud, or adapting to a coercive situation. This of course involves looking at the episode in isolation from how the person who paid for sex negotiated the conditions. It is characteristic of prostitution, as it is also of marriage, that entry into a secluded space under terms previously arranged isolates both the prostitute and the wife from the normal protections of civil society. In that environment, the situation can become coercive, can become rape, that is, sex without consent. And of course, the act itself may seem coercive to one or both of the participants, even if they have "socially" consented. No doubt the risk of being raped and being the victim of sexual violence is greater in the lives of most prostitutes than of most wives (or husbands). Our central point here is not that prostitution is a pleasant activity for most prostitutes, but only that it is morally and experientially more consenting than rape or sex agreed to under conditions of fraud. Similarly, marriage to someone one doesn't love because one married for money is more consenting than the historical shotgun marriage, where a contraceptive failure and family pressure has put one in a marriage that has no other redeeming value. It's not the best one could wish, any more than is employment because employment is better than being unemployed; "wage slavery" is better than peonage. So we argue that incentive pay with the worker choosing how hard to work for a known reward is better than a speedup to which he or she has not consented; reacting to the potential competition of the unemployed is better than not being able to react as in peonage; being a call girl is better than being badgered to exhaustion for sex; and marrying for money is better than a shotgun marriage. In short, we argue that "best available all things considered" is a weary, stale, flat, and unprofitable sort of freedom, but better than prison.

 

By "informed consent" we mean roughly the same thing as is meant by it in the provisions of the human subjects review for medical experiments, or for certain dangerous medical procedures such as general anesthesia. The idea is that the person eliciting consent gives as much information as the person consenting can understand at the time about what risks are involved, what negative consequences might befall, whether or not the eliciting person or organization undertakes financial and other responsibilities to deal with those risks, and the like.

 

But the eliciting authority is not responsible for providing easy access to alternative sources of information, for arranging group discussion, for suggesting questions that the person might think about, for guiding the person into ways to improve his or her competence to make the decision, and for developing details of the alternatives not recommended (or not included in the experiment), so that a truly intelligent decision could be made. It is like "informed consent" to economic development in the days before honest environmental impact statements. Nevertheless, informed consent is better than "on net balance" consent, because it makes sure the person knows what he or she is consenting to, at least to the extent he is capable of understanding.

 

That is, the person who elicits "informed consent" is supposed to provide the amount of information about the recommended treatment which would be sufficient, for a reflective person well educated on the topic and in a circle which discusses and investigates such topics, for a sane and responsible decision. But that person is not supposed to make sure that the discussion is so arranged so as to maximize the competence of the person giving consent, to make him or her reflect, be educated, join a support group, investigate, and get a second opinion. So "informed consent" in the table above is distinguished from "reflective consent" along the lines suggested by Soltan.9

 

Soltan studied processes in which workers and managers together worked out the evaluations of skills needed for various jobs, so that the constitution of the system of unequal reward for jobs was itself negotiated; the workers (and managers) were able to reflectively consider the unequal rewards for jobs, as well as separately consent (at least in the "all things considered" sense) to the jobs that they held under that system. This is better than getting a job through a brother, and knowing in advance what the job would entail and what it would pay, without having any part in consenting to the system as a whole that created the job and evaluated it. But still, consenting to take a known job in a system that is created by someone else is better than having to take the only job that keeps body and soul together, in the employment system above. Similarly, having worked most of the way during the evening to consenting to an episode of sex, and being informed at the end that you can, in some realistic sense, quit now if you object to adultery, is worse than considering together what constitutional conditions within the relationship should be there before the sexual episode would be fully and freely consented to, but more consensual than being a prostitute who didn't get to inquire about marital status.

 

The highest degree of consent in the table is one which is reflective and furthermore takes place under a formal or informal constitution (for the relationship, group, or other relevant social environment) to which in turn the person consents. One may reflectively consent to a marriage because one wants to have children and because marriages are the main way in which others agree to be responsible parents to children. But one may wish that the legal constitution of such marriages were not such as to give differential responsibilities, costs, and control to different genders in case of a breakup. So "reflective constitutional consent" refers to a situation in which one not only reflectively consents to one of the alternatives factually presented, but also consents to the system that produces the array of alternatives, with their respective costs, risks, distributions of benefits, and the like.

 

One may deliberately choose an informal constitution governed by the goodwill of the parties in the belief that goodwill more often produces alternatives one would want to live with; so "constitutional" consent does not necessarily entail a formal provision of rights. Of course, it quite often does have formal aspects. The reflective belief that the alternatives with which one is confronted were developed by a system one can trust, and reflectively agreed on by a procedure to which one consents, is the highest form of consent considered here.

 

For example, when one accepts the obligation to be on a Ph.D. dissertation committee, one has probably also consented to the constitution of the department which sets the requirements for the dissertation and determines how responsibility is assigned, how measurement of a good job of supervision is done, and how that measurement is to be tied to rewards and to informal respect among colleagues. Such an idealized consent to a task is consent not only to read a particular dissertation, but to the system that generates the responsibilities involved. Similarly, one consents to the constitution of the Kibbutz before being employed in it.

 

It appears from the work of Gerson that nowadays among young educated couples, the women have to be satisfied with the relationship in general and in particular with the division of responsibilities, the likelihood of divorce, and the like, before they are willing to have children in it.10 Consequently, a lot of them decide not to have children. Implicit bargains between the genders often are not kept when it turns out there is much more work than expected. Though the pressures resulting in the default are different, something similar apparently happened to the egalitarian ideals under which women joined the early Kibbutzim—the process is one which involves consent to the constitution of the particular marriage as a condition of consent to having children. A wise woman will not ignore the probability that implicit bargains about equality in child care will not be lived up to, and would probably prefer a constitution for marriage in which that were not true. To that degree, the ignoring of the pressures in the preceding statement thus changes the consent to "reflective consent" rather than "reflective constitutional consent," and so the ignoring is essential to regarding it as in or not in the highest category of consent.

 

The overall argument of this section has been that we have to distinguish degrees of consent by the degree to which the "consent" has coercive elements in it. That degree varies in a continuous fashion from rape to sexual consent in a marriage to whose constitution one has reflectively agreed, and from concentration camps to Kibbutzim. We also argue that both episodes (consent to tasks or to episodes of sex) and relationships (e.g. jobs and marriages) can both be classified into degrees along the consent variable. In the next section we consider the relationship between episodes and relationships in the liberal creed, especially in its relation to law and other normative structures.

 

The argument that follows relies on the argument above. Those readers doubtful about whether the distinctions above make sense will have to suspend disbelief, in order to follow the argument about what happens when, for example, people consent at a high level to a job, but much less to some particular task included in the job. For example, having to buy a gift for the boss's mistress may disturb a secretary who is otherwise very satisfied with the job in general. Similarly, if sexual intercourse is painful and embarrassing for one or the other after menopause or climacteric, but the marriage as a whole is given informed consent by both, one or both may give grudging consent to episodes the other demands. The following sections consider the philosophy of such conflicts. But this requires that the reader, for a while, distinguish relationship and episode consent, and does not make a dichotomy between fully reflective constitutional consent and all else being rape or slavery.

 

 

IV. THE LIBERAL CREED: LAW, GRIEVANCE PROCEDURE, AND CIVILITY

The reason for distinguishing consent in the task or sexual episode from consent to employment or marriage relationships is as follows: the liberal creed favors higher over lower levels of the former type of consent in all aspects, but distinguishes sharply among the various means of protecting non-consenting parties according to the relational context. "Grievances" at work are strongly distinguished from "causes for action" in the labor law as a subdivision of civil law. The liberal creed favors grievance procedures within private employment relationships because it favors the protection of workers from conditions they have not consented to. But it also favors grievance procedure over legal remedies in part because going to the law destroys consenting employment relationships, and so raises the cost of the remedy for the grievant.11 For example, sexual harassment procedures are (in general) grievance procedures rather than legal remedies, and tend to occur where liberal doctrine favors grievance procedures in labor relations, which is where the degree of consent to the relationship is in the middle ranges.

 

Beyond grievance procedures, the liberal creed favors norms of civility. By "norms of civility" we mean norms that say that participants in informal interaction should positively value the consent of others, so that the same achievement of one's own wishes is more valuable if obtained by "reflective constitutional consent" rather than "all things considered" consent, and so on throughout the levels of consent outlined above. By "norms of domesticity," or more briefly "domesticity," we will mean extending the norms of civility (that is, extending the positive valuation of the free reflective consent of the other) to marriage and family life. Thus, a marriage conforms more to the norms of domesticity if, for example, sexual consent is less often grudging consent as defined above, and more often willing, tit-for-tat, all things considered consent; it conforms even more if it is more often reflective consent than "all things considered" consent.

 

To analyze the impact of relational consent on violations of consent of an extreme kind, we often need to analyze the practice of representatives of the law. In most US local police departments, the police will arrest the assaulter in domestic calls where it is apparent that an assault in the legal sense has taken place. But this is generally conceived as: (1) a preventive short-run measure against further violence, and (2) a first step towards encouraging therapy. This is now the usual formal police norm. In the past, the practical reason the police did not arrest the assaulter was that if the family decided to stay together, the prosecution's case would fail because the assaulted person would not testify, and prosecutors were then major actors in determining arrest behavior. Despite programs of mandatory arrest in domestic violence calls that emerged in some cities in the 1990s, it is still the case that prosecutors often fail to press charges, and if there are charges, they are often minimal and the "punishment" is usually mandatory anger management therapy. That is, the arrest is treated as a prevention of further violence, rather than the first step in punishing a crime.

 

The criminal justice system, then, even with evidence that a crime has been committed, informally acts as if the private relationship can be invaded by a criminal conviction only with the consent of the person with the grievance. And the person with a grievance in a family obviously often believes that an assault should be a crime only if they decide to prosecute—informally they believe they can "agree" to be assaulted. Obviously not all of us agree that immunities to the law of assault should obtain within marriages; in fact, the most likely person to kill another person is his or her spouse or lover. The most likely person to injure or kill a child (especially teenage boys) is the father, or a lover of a female custodial parent. (Such assaulted children are more likely to run away than complain to the police.) But all these facts about families being dangerous to their members have a small place in the criminal processing of offenses against the law of assault.

 

The result of this situation is, then, that after the arrest to stop the violence, the liberal approach to grievances within a marriage, even law and order defenders, as well as liberal legal doctrine, approach assault prosecution in marital disputes with therapeutic rather than legalistic remedies. The liberal paradigm here consists of battered women's shelters with counseling rather than jails for assaulters. The purpose of the therapy is, in large measure, to introduce the norms of civility into the marriage, to introduce a particular brand of domesticity.

 

Similarly, the violation of a labor contract by an employer does not usually result in a civil suit to enforce the contract.12 The main reason, unless the contract explicitly specifies otherwise, is that both parties to that contract have the right to terminate it without recourse; the contract is "at will". This means that ordinarily a person who sues will be fired. But these provisions of traditional labor law rest on an assumption that the employer has not contracted just for specified services (as in a formal subcontract) but instead for a wide "zone of indifference." Within that wide range of tasks within which the employee is considered indifferent, the employee has agreed to any of them under the usual conditions of such work. As specified in Table 1, safety regulations often specify the conditions of the task under which the employee is expected to be able to refuse without losing his job. In case such non-conformity for safety reasons is punished, the liberal practice is to arrange a grievance procedure internal to the firm, rather than a legal proceeding, to enforce the norms of the collective contract.

 

The variation in the remedies for violence within the family, available to non-consenting parties, then, varies from criminal remedies, to civil remedies, to grievance procedures within the relationship, to therapeutic intervention. Our argument here is that this variation is to be explained primarily by the level of consent to the relationship in which identical acts are carried out. For a battered woman, the variation from an arrest of the husband (or father, or son) for assault as compared to therapy and temporary respite in a battered women's center is a variation in how much she wants to preserve the relationship. Consent to a relationship involving non-consenting episodes changes both the moral and the legal significance of the grievance, at least in practice. Psychiatry or therapy in a battered women's center may both encourage divorce when it turns out to be hard to introduce domesticity into a particular marriage. Similarly, rape convictions are generally harder to get when there is any relationship at all, no matter how fleeting, that shows relational consent by the raped person.13

 

To put the same point in another way, the methods of reform in the liberal paradigm vary according to whether episodes of violation of non-consent occur in a consenting relationship. The higher the level of consent to the relationship (in the sense defined above in Table 1), the more reform efforts are directed towards education, therapy, or mediation, and the less they are oriented towards the law, arbitration, or grievance procedures. High levels of consent to the relationship produce reform efforts that try to introduce norms of civility and domesticity into the interaction.

 

Thus it is in employment relationships of the "all things considered" level of consent where one is more likely to introduce sexual harassment grievance procedures, with many of the civil liberty protections (and much of the ineffectiveness) of the criminal law. But in marriages in which much sexual consent is obtained by badgering, or by gifts measured by economic value, one is more likely to introduce a psychiatrist. The psychiatrist may in turn help solve the problem by divorce, reducing the level of consent to the marriage, or by increasing the offender's valuation of higher levels of consent to episodes within the marriage.

 

This sharp distinction between grievances in private relationships and causes for legal action among people at arm's length renders local and family subcultures lacking norms of civility and domesticity invisible to the liberal paradigm in its legal form. The hegemonic subculture of marital relations and family life is not very committed to the norms of domesticity, norms that value consenting cooperation more highly than coercive or "callous cash payment" consent. As such, in the legal paradigm much oppression becomes invisible to public policy.

 

Invisibility of oppression within consenting relationships gives great difficulty to the liberal legal approach with such problems as "date rape," where the consent to the relationship turned out to be uninformed (the risk of rape was not part of the date bargain). This surrounds the non-consent with an ambiguous penumbra of consent. Moreover, in practical terms, consent generally involves being with the coercive partner in private, so that there are only two witnesses who very often have different stories about the nature of the consent. In statistical terms, the penumbra of consent changes others' (for example, juries') judgment of the a priori probability that consent might have taken place, since dates are a normal occasion for sexual consent while being snatched in a dark alley by a stranger is not.14 So the perception of the facts, the assumed background probabilities, and the reliability of the evidence about whether there was sexual consent or not, all are shaped by consent to the relationship.

 

But further, the moral assessment of episodes of coercion is shaped by the fact that many people expect that marriages will involve types of consent that fall toward the coercion end of the scale in Table 1. Somewhere near a quarter of both men and women in the United States expect that marriages will normally involve people slapping each other, for example (the percentage tolerating slapping children is higher); in that context the legitimacy of slapping on dates is probably higher than is permitted by the usual norms of civility on the street, but lower than its legitimacy in marriage. Even having a low level of legitimacy for slapping probably undermines people's negative moral evaluations of the use of force on dates.

 

What we would therefore expect of the liberal paradigm as applied to date rape is that its defenders would hover uncomfortably between treating it as coercion between people at arms length, so (except for difficulties of providing evidence) as rape to be punished in the criminal law, and treating it as an unfortunate feature of macho themes in the culture, so to be treated by fireside discussions in dormitories, by therapy, and gossip.

 

In addition to all these considerations about the relational context determining judgments of the level and kind of consent, and the remedies, many of the provisions of the liberal code have to do with using only one's own resources to get consent. Thus, in the employment contract, it is a corrupt practice for a salaried manager to get a cut on the price of building his or her swimming pool from a contractor who hopes to be the favored bidder in the firm that the salaried manager manages. The employee of the client is then using the resources of stockholders to gain private advantages, which would be perfectly in order (if not very high up in our scale of values) if both jobs were paid for by resources from the manager's own bank account. So what is legally at fault here is not the use of resources to get "all things considered" consent, but instead that the employee was only to use the resources for higher purposes (even if corporate profit is not a very high purpose), not his own benefit.

 

Similarly, it is legitimate generally for psychiatrists to use their skills at intimate conversation, or for professorial authors to use their prestige, or for corporate treasurers to use their personal wealth, to gain consent to marriage or more fleeting relationships. But it is not legitimate for psychiatrists to use the intimacy established on the basis of therapeutic trust, nor for professors to use the weight of their names on letters of recommendation, nor for corporate treasurers to use promotions in the accounting department, to gain consent to marriage or more fleeting relationships.

 

These normative limitations in the use of otherwise usable resources to gain consent come about because the resources are granted only to be used on behalf of particular institutional purposes. Intimacy established in therapy is supposed to be used for therapy, professional prestige is to be used in letters without fear nor favor, and promotions are to be used to improve the efficiency of the accounting branch.

 

The definition of exactly where the boundary between personal resources and resources held in trust lies is often difficult to draw in practice. Various managerial oversight mechanisms, such as the control by human resources executives over hiring by foremen and the suppression of sexual harassment, were originally intended to secure benefit to the corporation rather than to the foreman. These practices protect the integrity of organizational incentive systems, and, in the case of sexual harassment policies, also the right not to consent. More briefly, grievance procedures, including those about sexual harassment, often serve the purposes of consulting professionals and higher management as well as (or instead of) the people protected by them.15 Moreover, institutionalized processes tend to be captured and extended by the societies in which they are embedded, which results in a policy that reinforces social norms of sexuality rather than one which challenges them.16

 

The general argument of this section has been that the liberal paradigm of how to organize society and its law generally supports organizing social relationships and episodes of social behavior from lower to higher levels of consent in the sense defined in Table 1. Additionally, the organization of law and society must be such that there is systematic differentiation between the remedies appropriate for infractions according to the level of consent and to the relationships within which the coercive episodes take place. Hence, a analysis of the liberal normative system entails the simultaneous two-fold classification of situations and relationships along the dimension of consent. At the higher degrees of consent to the relationship, in general, the response of the liberal paradigm will tend to be to obtain higher levels of consent in episodes by educational and therapeutic means rather than by legal means or formalized grievance procedures. At the middle degrees of consent to the relationship, we will tend to find the liberal paradigm producing formalized grievance procedures within the relationships, rather than legalized protections of the non-consenting party and punishments of the more coercive party. Only when relationships show little evidence of consent do we find the liberal legal paradigm in full sway. Liberalism is thus a more supple and extensive normative system than is apparent if we view it from the point of view of legal philosophy.

 

 

V. ALIENATED CONSENT

By "alienated consent," we mean here that the activity or relationship consented to involves large elements which in themselves are experienced as out of the control of the consenting person. Ordinarily this lack of control will be experienced negatively in itself, and it may involve consent to particular tasks or sexual activities that are experienced negatively. So an approximation to what we mean by alienated consent is that there is a good deal of negative experience in what is consented to, but that this is more than balanced by other considerations giving a net positive balance. Alienated consent normally has more negative effects when it is recognized by the person who has given up autonomous consent on matters to which he or she has consented. Thus, the concept specifies a situation in which, in order to get the benefits of a relationship, people may consent to tasks or sexual episodes, to which they would not have consented without the package deal. When the person doing this does not know the extent of autonomy given up, he or she may feel defrauded.

 

The fundamental definition of alienated labor according to Marx is that workers, by selling their labor, turn control over that labor and over what it produces to the person buying the labor, so it is alienated in the literal sense that autonomy has been sold. But it is clear that the reason he was interested in this definition is that he believed that work could be so organized that it would produce enough commodities to make everyone happy, while ensuring that large parts of work are experienced as matters controlled by the worker, done for pleasure, contributing to the growth of the worker's competence and capacity to be a full participant in the society, and having a component of value due to the generous way it was contributing to the welfare of others. Work pervaded by autonomous consent to each of its elements is Marx's ideal.

 

The empirical proposition in Marx's indignation toward the alienation of labor (defined as the selling of labor in capitalist labor markets) is that autonomous consent to each of the elements of work is less likely in employment, and especially in factory employment, than in the work of an autonomous peasant or artisan. Further, given the social relations among workers and their mutual support, we could expect that unalienated work (again in the formal sense of unsold work) of urban workers in a democratically governed socialist economy could be expected to be more pleasurable, to contribute more to personal growth, and to involve more generosity of spirit, than could autonomy embedded in the autonomous peasant participation in "the idiocy of rural life."

 

These propositions are not, perhaps, very clearly articulated by Marx, and are perhaps somewhat more imaginative than practical, but there is nothing inherently wrong about his conception of alienation as a variable. Nor is there anything wrong with his core conception that a relation in which all of the elements are consented to is healthier than a relation in which the elements consented to only just outweigh those one would rather weren't there, and in which the worker had no autonomy in the choice about the negative elements without losing the whole package.

 

Likewise, we can define the ideal, unalienated sexual episode or relationship as one in which the largest share of the core elements of the relationship are positively valued; that is, they would be autonomously consented to as good things on their own, as contributing to pleasure, personal growth, or giving to someone to whom one is glad to give.

 

Because of the core significance of the relationship between episodes of sexual activity and relationships with a sexual aspect, the first complex of alienations we have to deal with are those in which consent to the episodes and consent to the relationship are out of joint: where consent to sexual episodes is alienated because it entails consent to continuing relationships which would not be spontaneously consented to, or where consent to relationships is alienated because it entails consent to sexual behavior which would not otherwise be spontaneously consented to.

 

It seems that broadly the two types of alienation have different distributions between the genders. Women more often find themselves "using" sex to preserve relationships valued on other grounds, while men more often "use" consent (or apparent consent) to relationships to obtain consent to sexual behavior. This disproportion gives an odd cast to the discussion of alienation. The irresponsibility of men who regard episodes as not entailing support for resulting children has a low valuation by the formal regulations of modern liberal societies. Men probably have about equal low valuation of routine lack of consent to sexual episodes in marriage or long term romances (they call it "frigidity"). Probably the main episodic unwillingnesses of men relevant here are reluctance in cuddling—except for "foreplay" perhaps—and lack of patience and willingness to learn skills in producing women's orgasms.17 From the point of view of eternity, that is "male frigidity" as well, but is probably less reproved.

 

To put it another way, in the liberal paradigm on sexually tinged relationships, the "wifely duty" of a more ancient sexual code has been morally, relatively downgraded, and the "duty to work at the relationship" morally upgraded. The failure of men (and more rarely women) to do well on working at the relationship is taken with more moral seriousness now than it used to be. The two types of refusal to give alienated consent elicit different overall evaluations, and particularly different evaluations from feminists, male or female. However, everyone agrees that autonomous consent to the sexual episodes, and to a relationship agreed on by both parties to be implied by such episodes, is less alienated than either of the mixed cases.

 

The cuddling versus orgasmic orientation also produces alienation directly at the episodic level.18 It is virtually impossible to take cuddling from another person without also giving it, and one hardly ever speaks of one person exploiting another by cuddling them. But in the usual case, at least for the moment of orgasm, one person is using the other to have an orgasm. Consenting to the episode is, then, often agreeing to being out of control for that moment. The question of the relation between these two is quite often distorted as a question about "foreplay," but that does not capture the difference in the degree and kind of alienation in a sexual interaction when throughout it, the other person seems interested only in orgasms. To put it somewhat roughly, if one is going to be generous to another person during their orgasm, one needs a context of mutuality to elicit that generosity. That context of generosity generally speaking includes cuddling, but it also normally involves intimate conversation with listening as well as talking, laughing together, and the like. The inherent mutuality of cuddling symbolizes well the dimension of alienation we are interested in here, so we use it as a metaphor for the whole complex.

 

The ratio of mutuality to the use of another sets the context for experiencing another's pleasure as an instance of one's own generosity rather than of the other's exploitation. Because having one's own orgasm with someone else is inherently making use of them, it is crucial that that use be in the context of mutuality; conceiving of mutuality as enabling the other person to have an orgasm themselves, as in calling cuddling "foreplay," takes as the model for mutuality the model of the "just price." The just price is no doubt less alienating than "all the traffic will bear," but it misses the inherently alienating aspect of another person wanting intensely to make use of one, for a bit.

 

If we conceive of this problem of differential consent to components of the episode in a way analogous to the problem of differential consent to the relationship and consent to the episode, there are two ways to be alienated within the episode as well. One can be alienated from the episode because the overall pattern of behavior indicates that the other person is "just using" the episode to have an orgasm, rather than as an environment in which to exchange generosities. Or, one can be alienated from the episode because the other person seems to be interested only in the equal skin contact part and not in the orgasmic part.

 

If we then conceive of the dimension from alienated to unalienated sexual relationships or episodes as ranging from those in which none of the elements of the total experience are such as would be positively chosen to ones in which all of them would be positively chosen, it is clear that by and large those which fall toward the coercive end of the scale in part one are likely to be alienated. Further, those in which the parties feel that they have been fairly treated in generating the relationship alternatives and episode alternatives among which they have chosen, and that they have chosen in a reflective and fully informed way, as in the "reflective constitutional consent" category of Table 1, are likely in general to be less alienated.

 

But even at the high end of the consent variables, one can easily imagine remaining imbalances in the degree of consent to the other's definition of the meaning of the episode in terms of the relationship, or in the proper ratio of conversation and cuddling to orgasmic sex within the episode. The central source of alienation in sex is similar to the source of alienation in social relations in general: the fact that for a large number of people the consent of others to the relationship is the only way to have the desired relationship, and consent to the episode is the only way to have the episode. Because living by oneself and masturbating is for many people undesirable on net balance, they have to consent to what will elicit others' consent. This is the same sort of fact as that one cannot have a job without providing those services employers will pay for. Further, the episodes of sexual activity one has access to are sharply limited by the choices of the other partner about what sorts of episodes he or she thinks are entailed by, forbidden by, integral to, or extraneous but permissible in, the relationship that the partner believes has been consented to. And, conversely, the relationships one has access to are sharply limited by the activities and commitments, entailed in those relationships, that one can get the relevant others to choose.

 

The central source of alienation is that it is very unusual for there to be an exact mapping between both the variety and frequency of episodes and the depth, commitment, and monopoly of the relationships that would be autonomously chosen by the two parties. The extreme form of such alienation, of such failure of mapping of choices in joint endeavors, is, of course, not being chosen at all. Being unemployed because no one wants to buy one's services is like being unmarriageable. For demographic reasons and perhaps for normative reasons as well, not being able to form sexual relationships is most common among older women, especially widowed and divorced older women, among homeless and unemployed men, and among those of both genders with physical and mental disabilities. If they are to have sex at all, it tends to be "relation-less" sex, especially masturbation, pornography, and prostitution. Whenever, in cases of such lack of mutual choice, the core aspirations denied for lack of reciprocal choice are for eroticized relationships (as opposed to orgasms), the ideal-typical expression of such alienation is in "soft porn," or as we would call it "relationship pornography." We mean the sort of pornography found in Gothic romances, or in the typical fiction and advice items in magazines like Redbook. The point here is not about whether the pornography is sexually explicit, but rather that the degree of explicitness is irrelevant, since the central erotic object is the romantic relationship rather than the orgasmic detail.

 

Not being able to form "an adequate number and kinds of" social sexual episodes that lead to orgasm, with "adequacy" here defined by what would be chosen if mutual choice did not constrain the choice, is of course quite common among those who cannot form long-term satisfactory sexual relationships. But many people of both genders are in continuing sexual relationships in which the number and kinds of sexual episodes chosen by one of the people is not the same as the number and kinds chosen by the other. Marriages in which most orgasms occur in masturbation, or in which cuddling is too often and too intently turned into foreplay, or in which romance and playfulness disappears because it is too inconvenient to step out of the tasks and obligations of daily life, are examples of alienation due to the lack of mutual choice at the level of episodes within chosen relationships.

 

 

VI. CONCLUSION

The main points of this article all have to do with introducing complexity into our moral judgments of the social organization of consent to sex, by using the developed philosophy of consent to employment and work. We are well aware of the fact that, in general, the urge to introduce complexity into moral matters is a move of conservatives, but we hope to be outliers in this regression analysis, and establish ourselves as liberal complexifiers.

 

The first complexity has to do with turning the dichotomy of consent that has been used in the past into a continuous variable that can be used in a variety of empirical situations to distinguish better from worse, rather than good from bad. The second complexity has to do with simultaneously classifying sexual relations and sexual episodes separately on this dimension of the degree of consent, by analogy with the similar distinction introduced by Chester Barnard (with the "zone of indifference" of the employee—the best analysis we know is still Herbert Simon's into the analysis of the labor relation.)19 Consent to a variety of tasks is built into the employment relation, but consent to a task is still a separate choice question. The argument is that people, and we, typically treat episodes differently if they are conceived of as part of a relationship that is consented to, though not entirely differently, than we do more fleeting episodes.

 

The third complexity is that government of intimate episodes, like government of grievances in employment relationships, is treated differently by the social control apparatus when it occurs within relationships that the people consent to and want to preserve. The range of variation is from legal intervention, to grievance procedures, to therapy, as the consent to the relationship increases. Our argument is that we need to make this distinction because treating it as all the same thing violates common morality, and ignores the variety of strategies that we all use in social control.

 

The fourth complexity is that even if sexual relations are consented to, they could be better yet if things were so arranged that a larger share of the aspects of the things consented to were experienced positively, under the control of the participant, done for pleasure, contributing to the growth of the participant, and done out of generosity toward the control, pleasures, growth, and opportunity for generosity of the other—unalienated, in short.

Questions

According to West, which of the following is NOT a reason why a woman should avoid consensual but undesired sex?

1.  It diminishes her Autonomy.
2.  It diminishes her Pleasure.
3.  It diminishes her Self-Assertion.
4.  It diminishes her Integrity.

According to Wertheimer, which of the following would be most likely to be considered an example of sexual consent obtained through criminal deception?

1.  Person A fails to disclosed he has a sexually transmitted infection to Person B.
2.  Person A fails to disclose that he has been having sex with Person B's sibling.
3.  Person A falsely declares that he loves Person B.
4.  Person A falsely declares the he intends to marry Person B.

According to Pineau, the best evidence suggests that male sexuality is not subject to rational and moral control.

--

1. True
2. False