The consent norm for sexual activity is insufficient

Consider the thesis that consent is the only norm of sexual activity. Of course, this does not imply the crazy claim that every consensual sexual act is permissible. Some consensual sexual acts violate promises, or constitute the neglect of some non-sexual responsibility (e.g., sex while driving), or just have sufficiently bad consequences for one or more people. Rather, the thesis can be taken to say that consent is the only norm of sexual activity as sexual, that it is the only distinctively sexual norm.

The thesis is still false. To see this, we will need a distinction between things that are very wrong and things that are wrong but not very wrong. Then:

1. Every case of coitus without consent is a case of rape.
2. Every case of rape is gravely wrong as a sexual act.
3. There is a case of coitus which is wrong as sexual but not gravely wrong.
4. So, there is a case of coitus which is not rape but is wrong as sexual. (2 and 3)
5. So, there is a case of coitus which is wrong as sexual even though there is consent. (1 and 4)

(When I say that a case of coitus is wrong, I mean that at least one party responsible for the coitus is in the wrong. That party could be one of the participants in coitus, but need not be: a rapist does not actually have to participate in the act of coitus, but could instead force two other people to engage in coitus with themselves.)

I think premise 3 is very plausible. It would be quite surprising if sexual wrongness of coitus only came in grave and not-at-all varieties, with nothing in between. But I can also offer an argument for premise 3 (I’ve used this argument in a previous post which gave a similar but perhaps less clear argument) assuming that consent is the only norm of sexual activity—the target of my argument obviously can’t dispute that.

We imagine a continuum of cases of coitus, where at one extreme there clearly is no consent and at the other extreme there clearly is consent.

(For instance, it could be a set of cases where a party threatens an adverse consequence if coitus is not engaged in: at one end, the consequence is torture and at the other end it’s a minor expression of minor displeasure. Accepting coitus as an alternative to torture is not consent. Accepting coitus as an alternative to witnessing a minor expression of minor displeasure can be consent (assuming that minor displeasure is all there is; obviously, minor displeasure from a tyrant could have further adverse consequences—including torture and death).)

Assuming consent is the only norm of sexual activity, there is no sexual wrong at the consent end of the continuum and there is grave sexual wrong by (1) and (2) at the no-consent end of the continuum. Given continuous variation in cases, we would expect continuous variation in wrongdoing. So if at one end we have grave sexual wrong and at the other end no sexual sexual wrong, somewhere in the middle there should be a case of non-grave sexual wrong, which is what premise (3) says.

Note how the enthusiastic consent alternative to the consent norm nicely escapes the argument. For the proponent of the enthusiastic consent norm case can agree to (2) but say that there are some non-grave sexual wrongs. These non-grave sexual wrongs could, for instance, include some of the cases where there is consent but the consent is insufficiently enthusiastic.

Pragmatically speaking, this is a risky argument to use in teaching. The problem is that a student might try to get out of the argument by denying premise (2) which, given the rape problem on many campuses, would be very bad. On the other hand, if students have a sufficiently strong commitment to (2), this argument could have positive consequences for campus sexual culture by getting them to realize that minimally-valid consent is not enough for permissibility (even if by definition it is enough to make the act not be a case of rape).

Philosophically, there is a technical weakness in that the notion of a sexually wrong act is a bit foggy. I think one can reformulate the argument by dropping the “sexual” qualifier in the argument but specializing to cases where there is no promise breaking, there are no bad non-sexual consequences, etc. But it’s hard to explicate the “etc.”

The greatest discovery in the history of human biology

If one searches for "the greatest discovery in the history of biology", the top hits indicate that it was the discovery of DNA. Maybe, though I'm not sure. But least in the history of human biology, the greatest discovery surely was the discovery that pregnancy is caused by coitus. (A discovery presumably made independently in multiple cultures.)

Natural teleology

Breathing is intrinsically directed at oxygenation even if we're breathing helium. But if one knows it's helium, it may not be possible to voluntarily intend it for oxygenation. Imagine I'm in a room filled with helium. I'll pass out and die soon. I first hold my breath. But then I realize there is no point to that. So I let myself go and breathe. After I let myself, go my breathing isn't intentionally directed. But the breathing still has oxygenation as a telos.

So the breathing both is and is not directed at oxygenation? Perhaps what we need to do is to distinguish between action and activity. Breathing is always an activity, but it only becomes an action when it is willed. The activity of breathing always has oxygenation as a telos (maybe not the only one). The action of breathing may have oxygenation as a telos, but need not--breathing can have all sorts of voluntary purposes, such as signalling to a confederate, etc. But such a case, one is signalling to a confederate with breathing, an activity that has oxygenation as a purpose, whether or not it achieves that purpose.

What I said about breathing and oxygenation also applies to intercourse and reproduction to a significant degree.

Condoms

This post is based on a slight expansion of an analogy I once read in the New Oxford Review. Consider three cases:

1. Fred throws seed on a normal, fertile field. He enjoys the fresh air, the motion of the arm, the tossing of the seed, the symbolism of participating in God's creative activity.
2. Fred throws seed on an infertile field. He enjoys the fresh air, the motion of the arm, the tossing of the seed, the symbolism of participating in God's creative activity.
3. Fred covers up his field with a giant plastic sheet. (Why? Maybe because the seed has some kind of parasite that he doesn't want to reach the ground, or maybe because he doesn't want the bother of having any plants come up.) Then he walks on the sheet, and throws seed on it. He enjoys the fresh air, the motion of the arm, the tossing of the seed, the symbolism of participating in God's creative activity.

I think that in cases (1) and (2), Fred really is sowing the field. But not in case (3). Moreover, while one can symbolically participate in God's creative activity in sowing in an infertile field (think of how the Gospel also is sometimes appropriately preached to an audience who refuses to pay attention—the seed of the Gospel can fall on rocky ground), one does not do so by covering up the field with a giant plastic sheet and throwing seed on that (imagine covering up someone's ears, and then preaching the Gospel). The covering up of the field has an anti-creative symbolism. So the last bit of Fred's motivations in (3) in fact is mistaken.

In case (3), I think we would say that Fred is not sowing the field, though we might say that he is sowing the plastic. He is engaging in an activity different from that in (1) and (2). This is true whether we consider the symbolic theological meaning or not.

Suppose we do not see the difference between (3) and the first two cases. Then consider:

4. Fred puts a garbage bag in the middle of the field. He then tosses the seed, one by one, into the garbage bag. He enjoys the fresh air, the motion of the arm, the tossing of the seed, the symbolism of participating in God's creative activity.

But that's absurd. There is no symbolism of participating in God's creative activity—quite the opposite. And even if we do not consider the symbolism, it is clear that what Fred is doing in case (4) isn't sowing—it's throwing seed into a garbage bag. But (3) is not relevantly different from (4)—in (3), it's just as if the garbage bag were stretched flat over all of the field.

If this is right, then it is plausible that "sex with a condom" is not at all the same kind of activity as sexual intercourse. Just as in (3) and (4), the relevant kind of causal interaction between Fred and the soil was lacking, so in "sex with a condom" the relevant kind of causal interaction between the persons' reproductive systems is lacking.

This, of course, coheres well with the Catholic canonical view that intercourse with a condom fails to consummate a marriage. And if one adds the premise, accepted by the Christian tradition, that climactic sexual activity is only permissible in the context of intercourse, we get the conclusion that sex with a condom is not permissible, since it is a different kind of sexual activity (more like what the tradition calls "unnatural acts"). Moreover, this is true even in the case where the condom is used not for contraceptive purposes, but to prevent the transmission of disease (see my remarks in (3) on Fred's possible motivations).