Ethics Discussion Forum: Emily Tilton and Jonathan Jenkins Ichikawa “Not What I Agreed To: Content and Consent”

Welcome to our discussion of Emily Tilton and Jonathan Jenkins Ichikawa’s “Not What I Agreed To: Content and Consent”, published in the most recent issue of Ethics. You can find the paper here. Quill Kukla’s critical précis is immediately below. Please join the discussion!!

Quill Kukla writes:

In “Not What I Agreed To,” Emily Tilton and Jonathan Ichikawa explore the status of consent in cases in which the choice to have sex is premised on a false understanding of reality. These include cases where one partner agrees to wear a condom and then slips it off surreptitiously without the other partner knowing, for instance, or cases where one partner tells small lies, perhaps about finding someone’s daughter’s art interesting, in order to get the other partner to agree to sex. Such cases are intuitively ethically murky, and it is not obvious what import such deceptions and misunderstandings of reality have for consent. In an influential article, “Sex Lies, and Consent” (2013), Tom Dougherty argued that if someone deceives someone else in a way that leads to them agreeing to sex, when they would not have agreed to sex had they known the truth, then the deception invalidates that consent. That is, for Dougherty, if someone is lied to about a “deal breaker”, no matter how minor, then they have not in fact given consent at all, even if they believe that they have. Tilton and Ichikawa disagree. They argue that in such cases, the issue is not lack of consent, but rather that the consent was given for a different act from the one that actually happened. Thus, what has gone wrong is semantic; the content of the act of consenting is not the right content to match what actually then happens. They point out that when we agree to sex, we do not agree to sex in any form and under any circumstances; we agree to sex under specific conditions and of particular sorts. To sum up their account with a quotation, “We think the issue is about what one agrees to, not about what kind of agreement it is, i.e., whether the agreement amounts to valid consent.”

 

Tilton and Ichikawa are concerned to preserve the intuition that, contra Dougherty, in some cases of deception – for example, polite white lies – the resulting sex is in fact consensual, even though the deception may be less than morally ideal. They want an account of how the content of the act of consenting is determined, such that it comes out that sex after such white lies still counts as the kind of action that the person has agreed to, even ifthey would not have agreed to the sex had they known about the deception. This is really the tricky heart of the article, it seems to me. The content of the act of agreement can’t be settled by speaker intention, for them, first because speakers cannot meaningful be expected to consider all the possible ways in which sex might or might not go as expected when they consent, and second because if they do have it explicitly in mind that (say) they only agree to sex if their partner really likes their daughter’s art, then this gives the wrong verdict on consensuality for Tilton and Ichikawa’s purposes.

 

Tilton and Ichikawa’s solution is to appeal to social conventions to help settle the content of acts of consent. They argue that, unless someone explicitly specifies otherwise, our collective norms around what people can be expected to be consenting to given various interactions (defeasibly, cancellably) settle the content of the act. People are allowed to have any deal breakers they want, but they need to make these explicit if they wouldn’t be conventionally assumed. To use one of their examples, when you give someone permission to kiss you at the end of the date, social convention specifies that you have consented to a kiss on the lips, but not on the ass. If you don’t wish to be kissed on the lips, you would need to say, “Yes, but not on the lips.” Likewise, they argue, social convention determines that when you agree to have intercourse with someone, you have agreed to have intercourse regardless of polite white lies, unless you specify otherwise. Thus, absent any such specification, sex after white lies that would have been dealbreakers is still consensual sex.  Conversely, it is conventionally understood that if we agree to sex with a condom, then we are not thereby agreeing to sex without a condom, so slipping off the condom counts as a violation of consent whether or not the person has specified that this would be a dealbreaker – again, not an invalidation of consent, but an act other than the one consented to. This is philosophically interesting; just as the meanings of our words are not entirely up to us, but are set by social use, likewise, for Tilton and Ichikawa, the meanings of our acts of consent are not entirely up to us.

Tilton and Ichikawa use this account to take up the difficult case of whether having been born with a different set of genitals than one has now needs to be disclosed to a potential partner before sex, as a condition of that sex being consensual. In other words, is it part of our social conventions that when we agree to sex, we are agreeing on the condition that our partner has not had their genitals reconstructed, unless this has been made explicit? They claim that in some subcommunities, like their own, genital reconstruction doesn’t need to be disclosed, because there is no default expectation or requirement that people’s genitals are unreconstructed. But in other communities, this cannot be assumed. Thus in their subcommunity, there is no duty for trans people to disclose genital surgery in order to have consensual sex, while in other, more transphobic communities, there is such a duty. This duty, they argue, poses unjust, invasive, and inappropriate obligations on (some) trans people, and hence these transphobic social conventions are bad and should be changed. All the same, in such communities, not disclosing genital surgery can constitute a consent violation.

 

I would like to raise two kinds of questions about Tilton and Ichikawa’s rich and thoughtful account.

 

  1. As is clear from their account of the case of people with reconstructed genitalia, different subcommunities have different social conventions. For instance, in some subcommunities infused with rape culture, dressing skimpily and asking to lie down on a bed is implicitly taken as consent to sex; in others, thankfully, it is not. But this means that the people involved in a sexual encounter may well belong to different subcommunities with different norms – both in the sense that the partners may belong to different subcommunities from one another, and in the sense that each person may belong to overlapping communities with different norms. A queer woman from a traditional homophobic, transphobic, and patriarchal culture may belong equally to a subcommunity in which reconstructed genitals are no big deal, and to one in which they are assumed to be an absolute dealbreaker, and there will be different conventional assumptions about what needs to be specified and what is being implicitly agreed to in negotiating sex in the two communities. Or, this gap may lie between partners. When there are such conflicts between partners’ conventions or within one partner’s multiple communities, which set of conventions in fact settles the act of consent and gives it a definite content?

 

Tilton and Ichikawa allow for cases of ‘genuine indeterminacy,’ in which social norms are not settled or conflict. But this seems to me an insufficient response. Once we notice the complex intersectionality of identity, it seems like such cases of indeterminacy will be very widespread indeed. Sexual mores, assumptions, and norms are highly culturally variable, to put it mildly. Moreover, this is not a manageable kind of indeterminacy. When we are dealing with speech acts that are not politically or ethically charged, it’s fine to allow them to be polysemic and underdetermined. As long as we can coordinate with one another, open-textured meaning is unthreatening. But we want to be able to say that there is a real fact of the matter as to whether someone consented to sex or not. While there may be rare grey cases, in general it is both legally and ethically crucial that we are able to determine this. The responses, “It was consensual insofar as I am a member of community A but not insofar as I am a member of community B,” or, “Well, it was consensual by your standards but not by mine,” seem deeply unhelpful. Consenting to sex is a relational action, and it seems incoherent to say that it is occurring for one of the relational parties but not another, if they are operating under different sets of norms. Notice, importantly, that we cannot solve this by saying that the person who consented is the one whose social conventions determine the content of what has been agreed upon (even bracketing the point that individuals may belong to multiple communities with conflicting conventions). This is because, despite the widespread, unfortunate tendency for us to talk about sex as though one person requests sex and the other person consents to sex, in almost all ethical sex, consent is not asymmetrical in this way – both parties must consent in order for consensual sex to occur.

 

Tilton and Ichikawa say that “The fact that some people in the grip of rape culture might think something conventionally indicates consent to sex, doesn’t make it so.” But it seems like on their account, it does make it so within that subcommunity, if it’s a unified enough community to have its own established norms. And rape culture definitely seems to meet this bar; indeed, I fear it is the dominant community. I am not sure by what measure, within their account, we can use to say that participants in rape culture are simply wrong about what consent consists in, rather than that they (like the transphobes who insist on disclosure of genital surgery) just have bad norms, but bad norms that do establish what consent means within their community. Nor am I sure how we decide whose norms get to settle meanings in the unfortunately common case where someone from this community has sex with someone who does not take themself to have consented.

 

  1. I am concerned that Tilton and Ichikawa’s model of consent as an action with a definite content cannot make sense of the ethical role that consensuality plays in sexual activity, and risks re-entrenching a troubling picture in which the ethical weight in a sexual encounter lies in a moment of contract-like initiation. According to the picture that I have developed elsewhere (Kukla 2018, Kukla 2021), relatively few sexual encounters start with a discrete act of consenting. Rather, consensual activity is activity that expresses the self-determining agency of everyone involved, such that everyone involved knows that everyone else involved is expressing their self-determining agency, and everyone involved can exit the activity as soon as they want to. According to this picture, consensuality is a feature of activity, not simply the output of a single establishing speech act, and it needs to be ongoing throughout the sexual encounter, as feelings and activities shift around.

 

But for Tilton and Ichikawa, consent is enacted in a speech act (or communicative gesture) with a highly determinate semantic content. I am wondering how consent can be ongoing in this case. I do not buy that one act of agreement at the start of an encounter makes sex consensual as long as everything that happens is covered under the default semantic conventions governing the original agreement; we have to be willing and agential throughout the encounter. Would their response be that we are implicitly engaging in indefinitely many acts of consenting as the encounter progresses? If so, is each of these definite enough to have a specific semantic content, as it would need to on their account? This feels to me like an unacceptably inflationary account of semantics, and an implausible account of speech acts. More generally, I worry that Tilton and Ichikawa’s account distorts how sexual encounters actually are initiated and progress, by putting too much weight on an initial moment of contract-like agreement, with an overly definite semantic content. To put the point the other way around, if a sexual encounter does not start with a definite initiating moment of agreement, as many don’t, then it is not clear to me how Tilton and Ichikawa have the resources to say whether the encounter is consensual.

 

References:

 

Dougherty, Tom. “Sex, lies, and consent.” Ethics 123, no. 4 (2013): 717-744.

 

Kukla, Rebecca. “That’s what she said: The language of sexual negotiation.” Ethics 129, no. 1 (2018): 70-97.

 

Kukla, Quill R. “A nonideal theory of sexual consent.” Ethics 131, no. 2 (2021): 270-292.

 

Tilton, Emily, and Jonathan Ichikawa. “Not What I Agreed To: Content and Consent.” Ethics (2021).

31 Replies to “Ethics Discussion Forum: Emily Tilton and Jonathan Jenkins Ichikawa “Not What I Agreed To: Content and Consent”

  1. I have two queries.
    The counter-examples to “deal-breaker” do not seem to do the job. A agrees to sex knowing that there is a chance she will become pregnant as a result of the sex although she does not want to become pregnant. She becomes pregnant, something she did not consent to. This is supposed to vitiate consent. But why would an untoward outcome of a gamble vitiate consent? Later developing facts do not normally affect consent, e.g., gambling, insurance, employment decisions. Which leads to my second question: Is the aim to provide an account peculiar to consent to sex?
    “It is up to individuals to determine what is important when it comes to their choosing to have sex.” Yet the reliance on community norms and considerations of some account of justice to determine what conditions an individual puts on consent appear to hollow out you commitment to individual choice.

  2. Thanks very much, Quill, for this engaging critical precis, and thanks to Ethics and PEA Soup and Sukaina for hosting this discussion! It’s a real honour to have our work engaged in this way!

    Emily and I are about to sit together for a couple hours this morning (Thursday Pacific time) to discuss and coordinate our initial responses; and we’ll both make sure to keep checking in and continuing to engage over the rest of today and tomorrow.

    Quill’s summary of our main ideas and motivations looks just right to me. Our main idea is that to deal with this set of complicated issues about sex and deception, we need to think more about metasemantic questions about the content of consent — and it turns out that complex ethical questions about the conditions under which consent is valid play less of a central role. And convention does step in to fill in a lot of the details at that metasemantic level, just as it does for language and speech acts generally.

    We’ll respond to Quill’s two main critiques, and other posts that come up, in subsequent comments. For clarity, we’ll comment as individuals, although much (perhaps not all!) of what we say is what we both think.

    More substantive engagement coming soon after Emily and I have a brief chat.

    Thanks again!

  3. Thanks for these interesting concerns, Quill, and to everyone who has helped to set up this discussion!

    Jonathan and I have broken up your two main concerns into smaller pieces, which we intend to address in separate comments to make our responses more digestible. The concern I’ll be addressing now is your worry that some subcommunities–those infused with rape culture–have problematic consenting conventions that conflict with the consenting conventions in less problematic subcommunities.

    Jonathan and I disagree that rape culture influences consenting conventions in the ways people tend to worry that it does. To see why, consider a different “convention” people sometimes attribute to rape cultures–if a man buys a woman dinner, then, by accepting that dinner, the woman has thereby consented to sex. People have raised the worry before that, on our account, this amounts to genuine consent. But we don’t think this is right. Even in (our) rape culture, it is simply not the case that accepting the dinner amounts to consenting to sex. Were this *really* a convention, then many of our everyday practices would be quite different. Offering to cover a friend’s meal would have radically different implications, as would taking a visiting guest speaker out to dinner after the talk; if your mother came into town, neither of you could non-awkwardly offer to buy the other lunch. But of course, this is not the case, and it’s not the case because accepting the meal offer doesn’t *really* amount to consenting to sex.

    More plausibly, the man who insists that the woman consented to sex by accepting his meal offer is *justifying* his violation of her consent, not genuinely appealing to a real convention. He thinks he *owed* him sex, by virtue of accepting his offer. This (wrongly presumed) entitlement, though, is different from a convention that makes accepting that offer amount to consent. So, the alternate explanation I’m offering for this case is that rape culture supplies a (false, or at least misleading) justification for violating her consent that those in the grip of rape culture may (unjustly) find compelling.

    We can now extend this explanation to the case actually offered by Quill: the skimpily dressed woman who just wants to lie down on the bed. Quill suggests that in subcommunities in the grip of rape culture, this amounts to consent to sex. I would disagree, for the reason offered above. While a man in the grip of rape culture might *take* this to be consent to sex, he does so wrongly–the “convention” he appeals to does not exist, and is instead an idea that is invoked to justify his violation of her consent. So, I think I (and Jonathan) understand the central mechanisms of rape culture a bit differently than Quill does. Quill suggests that rape culture is sustained by conventions that make certain behaviors or agreements amount to consent in an unjust way (a way that is particularly disadvantageous for women). I, on the other hand, think that rape culture functions to supply “justifications” for consent violations that are compelling to those in the grip of rape culture, but which are not based in reality.

    To be clear, this doesn’t address Quill’s broader concern about how to handle cases of genuinely inconsistent or conflicting conventions. It does, however, help to deflate the concern a *little* bit, as it suggests that there may be fewer cases of genuine indeterminacy than Quill is suggesting here.

  4. One of Quill’s worries about our project is about the degree to which conventions are indeterminate, given the multiplicity of overlapping subcultures that make up our world. If there’s one group for whom an unmarked “let’s go mess around” is understood to express consent only for above-the-waist touching, and another where it is understood to express consent for penetrative intercourse, and we have a couple with a member from each group — or even individuals who are part of both groups — how do we decide who’s conventions are operative?

    We don’t have a systematic answer to this question, but I think we have some things to say that should make the prospect less worrying than Quill’s commentary suggests.

    For one thing, as Emily mentioned in her 1:38 comment above, we don’t think conventions vary as much as Quill suggests they do. Even in the mainstream rape culture we live in, dressing sexily isn’t consent to sex.

    For another, we don’t agree that intersectionality generates a wide set of diverse conventions in the way Quill suggests. Many identity categories, though important for many purposes, do not correspond to different conventions governing the meaning of consenting behaviours. Intersectionally diverse people coexist in a shared society with broad meanings — for consent just as for language in general. Communicating with people with different identities can raise special challenges on occasion, but it doesn’t make things particularly difficult as a matter of course. And indeed, in the interpersonal sexual realm most at issue here, there sexual interactions between people with diverse identities is extremely common, creating even more of a role for a shared set of communicative norms. (To take one obvious example: men and women often have sex with one another; the conventions governing communication around sex have been developed across gender lines.)

    Certainly there are some specific communities where there are more local specific sexual conventions — BDSM communities, some queer communities, some religious communities — but people in these communities tend, for good reason imo, to take particular care to be explicit about what they’re doing and what they want and what they mean, especially when interacting with outsiders. (They also tend to be likelier to have most of the their sexual interactions within those communities.)

    Third, if people miscommunicate in their initial acts of consent, people can withdraw consent when it becomes clear that something is happening that they didn’t intend. And of course, partners are morally required to exhibit sensitivity to such withdrawals, or they may commit nonconsensual sexual violation. This reduces the moral importance of what exactly the initial signal was. This interactive element — related to Quill’s second point — is, we agree, crucial to ethical sex.

    But of course there can be misunderstandings, especially when engaging with people in unfamiliar cultures with unfamiliar norms and customs. In such cases, we think there’s good moral reason for extra care. If I am contemplating performing a sexual action with a partner whom I know to have agreed to sex, but where I’m unsure whether they intended to agree to this particular action, this is a good occasion to use my words and check in. If they didn’t mean to agree to it, but gave me a signal that was indeterminate as to whether it was consent for it, I think it would be indeterminate whether it would be a nonconsensual sexual violation for me to do it without asking. But it would still be selfish, inconsiderate, and potentially traumatizing. So even if consent is indeterminate, we have other ways to explain why it’s not OK.

  5. What’s the motivation for preserving this intuition that consent is valid post-white lie (or any intuition) about sexual ethics? It seems obvious that our intuitions about sexual ethics are deeply messed up by the society in which we live – that is, we have no reason to believe that they track what’s morally correct. I’m usually pro-use of intuitions in ethics. But in sexual ethics, intuitions are more likely to count as a strike against a theory than a point in favor.

    Maybe similarly: so consent is determined (at least in part, and it seems like in large part) by contingent social facts. Maybe a hundred years ago, most people would have agreed that by entering into a marriage, a woman is consenting to provide her husband with sex regardless of her own desires. On such a view, it was not possible for a husband to rape his wife. Are you suggesting that (regardless of whether this is ethically desirable) this was true at that time? Just want to be clear on whether that’s a bullet that’s being bitten.

  6. Quill’s second main comment is about the importance of ongoing consensuality in sexual activity.

    We’ll answer some of those concerns directly in a moment. First, a preamble.

    I’d like to clarify some of my broader views that don’t come out in this paper. I’ve been very inspired by Quill’s 2018 paper, “That’s what she said,” which, as Quill says, points out that good sexual interactions do not typically begin with the asking and giving of consent. In some of my other work, I’ve run with that thought in a direction sort of orthogonal to the one in this paper, arguing that the exclusive focus on consent in sexual ethics has been a mistake. (The place I’ve defended this most explicitly so far is my “Presupposition and Consent”.) The other way one could go — Quill’s way, I think, especially in their 2021 paper — is to emphasize the importance of ongoing consent in a way independent from acts of consenting. (I’m speaking for myself here — Emily, I think, is still making up her mind about these questions.)

    In this paper, Emily and I do work in the consent framework — partly for the purpose of argument, as it is still widespread, and partly because we do think consent plays SOME important ethical roles. (I haven’t thought about it enough yet, but I think the metasemantic issues we raise also apply pretty much the same way to the other forms of sexual negotiation in Kukla 2018 — invitations and gift offers. Those have semantic contents too.) And acts of consent are morally significant outside of the sexual realm too, and we do think what we say here is general. (This is the answer to one of J.Bogart’s questions.)

    With that out of the way, we’ll go on to responding more directly to Quill’s second set of thoughts. Our responses are intended to be consistent with Quill’s rejection, with which we wholeheartedly agree, of the idea that “the ethical weight in a sexual encounter lies in a moment of contract-like initiation.”

  7. Quill’s second concern is actually, I think, two distinct worries. One concern is whether the account of consent Jonathan and I are working with can satisfy the account of consensual activity that Quill endorses. Quill characterizes consensual activity as “activity that expresses the self-determining agency of everyone involved, such that everyone involved knows that everyone else involved is expressing their self-determining agency”. Another concern is whether our account is overly contractual, and so cannot account for the intuition that consent must *persist* in order for an interaction to genuinely be consensual. These two worries are, obviously, related. But for now, I will just discuss the worry that our account cannot capture the account of consensual activity that Quill endorses (Jonathan will discuss the other one).

    It can’t–but we don’t want it to. The role that Quill assigns to consent is too involved; it sets too high a bar for an activity to be deemed consensual. This is *not* to deny that (sexual) activity *should* involve participants who are all expressing their self-determined agency. (Most?) sexual interactions which lack this feature are somehow deficient–it would be better (usually?) if all the participants were expressing their self-determined agency. But the notion of consent is not well-suited to picking out this feature. People can, I think, reluctantly consent, or consent because they feel like they have a duty to, or even consent despite not really wanting to, all things considered. Consent offered in situations like these will still (often) result in the genuine waiving of a right. This is especially apparent when we turn our attention to cases that don’t involve sex. People reluctantly consent, or consent despite not really wanting to, all the time. This is obviously not ideal–but the fact that the act doesn’t express their self-determined agency doesn’t render the act nonconsensual.

    Inflationary notions of consent, I think, stretch the concept in unhelpful ways. While the feature Quill identifies is an important one, we shouldn’t try to capture it by inflating our notion of consent. We should instead–as I think Quill agrees–give consent a less central role, and focus on the other features/conditions/etc. which enable good and moral sex.

    It is possible that what’s going on is that Quill is drawing a fairly sharp distinction between consent, on the one hand, and consensual activity, on the other. Offering consent might be one of several ways a sexual interaction begins (so not all sexual interactions begin with consent), but all sexual interactions must be consensual activities. If this is what’s going on, I would emphasize that our account is concerned with consent rather than consensual activity. (I’m also not sure how I feel about this distinction, if it really is being made).

  8. Quill finds a tension between our claim that consent is a communicative act with a semantic content and the idea that consent can and often should be ongoing throughout a sexual encounter. They wonder whether to make sense of that, we need “infinitely many acts of consenting as the encounter progresses”.

    I don’t feel the same intuitive problem with the idea of a communicative act that takes place in an extended way, throughout a sexual encounter. A token uttering of words isn’t the only way to communicate; and some are by their nature extended.

    Consider for example a traffic light. When it is green, that is a signal that cars may go — not indefinitely, or not even necessarily for a specified amount of time — but as long as the signal is still being sent. A green light is a communicative signal that gives permission for something to happen while, and only while, it is ongoing. Sexual consent could be like that too.

    All of the questions about the precise content of the consent apply to ongoing speech acts just as well as they do to one-off ones. An ongoing act of sexual consent — performed via a combination of words, facial expressions, body language, and deliberate bodily actions — may still leave unspecified whether it is consent to sexual activity only if there is a condom, or true love, or an M on the birth certificate, or whatever.

    I guess it does seem right that sometimes, as sexual encounters progress, one needs a new act of consent, as opposed to the continued persistence of one already underway. I don’t know how to draw that line, but it seems right to posit it for the initiation of different kinds of sexual activity that are widely recognized as significant — removing clothing to expose someone’s genitals, for instance, or sexual penetration, or removing a condom, or tying someone up. But I don’t see an argument pushing us off the common-sense idea that this happens a few times, not an infinite number.

  9. Here’s a reply to J.Bogart’s 11:48 comment.

    J.Bogart observes that it is strange to suppose that later-developing facts might affect whether something now is consensual. I’m not sure whether I agree with that general claim or not, but for our purposes here, that’s grist for our mill. The dealbreakers principle, as stated, says that if there’s a feature of the act to which one’s will is opposed — which we’ve interpreted in this counterfactual way — there’s no valid consent. We agree with J.Bogard that least some features of some cases of sex — ones having to do with their future consequences — cannot plausibly play this role.

    I should mention here that, as cited in the paper, this particular argument isn’t our own — we take this consideration against the dealbreaker framework pretty much directly from Hallie Liberto’s nice paper, “Intention and Sexual Consent”. But since we agree with Hallie we’re happy to defend her argument here. 🙂

    J.Bogart also writes that “the reliance on community norms and considerations of some account of justice to determine what conditions an individual puts on consent appear to hollow out you commitment to individual choice.”

    We disagree. Social conventions do affect individuals, and they can make it so that some preferences or restrictions are more difficult to communicate than others. This makes life harder for people with counternormative standards, and in some cases, it can constitute an injustice. But we insist that it is possible for them to perform the specific consenting acts they want to; they’ll just have to use more words, or otherwise specify, to do it.

  10. I have a worry about the appeal to social convention, related to Kukla’s question (1) and the point about rape culture. Not that long ago, in many communities, it was conventionally expected that when a woman resisted sex with a man, she may be putting on a mere “token resistance”—her “no” really means something like “keep trying until I say yes.” (The way that this harmful convention was situated in beliefs about consent that were pervasive in the legal system is documented in Lois Pineau’s 1989 “Date Rape: A Feminist Analysis.”) Nowadays, the social convention around the importance of interpreting “no” as “no” has changed for the better in many communities. But we don’t want to commit ourselves to the view that back when the widespread convention was such that “no” was commonly interpreted as “keep trying” that the sex that followed was consented to in the way that matters. I’m sure the authors don’t want to commit to this view either, so my question is: how do we avoid the result that “no” ever means something other than “no” while taking social convention to fill in the details for consenting speech acts?

    I like Emily Tilton’s point in her comment that accepting dinner even in rape culture does not amount to consenting to sex, but I’m not sure this goes far enough to address the criticism. With the case of women’s “no” constituting “token resistance,” the social convention was enshrined enough in culture that lawyers were trained to into this social meaning in classic law text books (also discussed in the Pineau article I mentioned.) We can even imagine some women enjoying the game of token resistance, buying into the convention, and enjoying the sex that followed (even though, meanwhile, the convention harmed the many women who really did not want the sex that followed a perceived instance of “token resistance.”) This is to say I think the idea that “no” sometimes meant something other than “no” was a real social convention, but an awful one from the perspective of getting to the kind of sexual consent that we think matters—the convention left women vulnerable to exploitation, undue pressure, and sexual violence. And, I might be wrong, but given how the convention was accepted even in legal proceedings, I find it hard to see how we can respond to this problem by arguing that it was never a real social convention at all.

    Curious to hear more from the authors—thank you for the thought-provoking paper!

  11. This is a reply to P.’s 2:03 comment.

    I think the two worries P. raises are actually quite different. The first concerns the motivation for preserving our intuitions about sexual ethics, given the chance that our intuitions about sexual ethics are deeply messed up. There are two reasons. The first is that there are strong feminist reasons to maintain a fairly distinctive account of sexual consent violations. If white lies invalidate sexual consent in the same way (and to the same extent!) that ignoring an explicit refusal does, then the account of the distinctive harm of sexual consent violations is too weak to be useful. The second reason to preserve these intuitions is that we do not *just* consent to consent–we consent to all kinds of things! While it might be the case that our intuitions about sexual consent are seriously defective (though I am unsure about this assumption), it isn’t particularly plausible that *all* our intuitions about consent, in *all* domains, are defective. And in non-sexual cases, it is clear that things like white lies don’t invalidate consent.

    P.’s second worry concerns problematic consenting conventions. P focuses on the convention that, by entering into a marriage, the woman is consenting to provide her husband with sex regardless of her own desires. This case is a bit trickier than the ones discussed in previous comments, as the law did seem to enshrine this particular problematic convention. Despite this, I’m inclined to make the same move that I made above: I deny that there was *really* such a convention, and argue instead that the law functioned as a (messed up, obviously) justification for the violation of women’s consent by their husbands. Whether there was *really* such a convention is an empirical fact, so this is just speculation. But one thing to consider–would men back then really not know that their wives were trying to withhold their consent when they were refused sexual advances? Would they want their friends or coworkers to know that when their wife denied their advances, they persisted anyway? I sort of doubt it (at least in general). This suggests that the so-called “convention” is not *really* a convention, but instead justification for what is known to be wrongful.

    If it *were* the case that the convention operated as the law insisted it did, then I suppose we would have to bite the bullet.

  12. Emily Tilton, thank you for your thoughtful responses to both of my concerns! I’m curious now about what the use of consent is on your account. If we don’t distinguish between consent violations from white lies and other consent violations, then “the account of the distinctive harm of sexual consent violations is too weak to be useful.” But if it’s a possibility that before the advent of the notion of marital rape, a woman in fact consented to every instance of sex with her husband (and I think it’s more than a possibility! “would men back then really not know that their wives were trying to withhold their consent when they were refused sexual advances? Would they want their friends or coworkers to know that when their wife denied their advances, they persisted anyway?” To the former, it seems very likely that it wouldn’t occur to them since the concept of marital rape didn’t exist, though I suppose I don’t know for sure. To the latter – my god, yes! The extent to which male bonding even today can consist of bragging about forced sex boggles the mind.) – then what in the world does the concept of consent do for us as feminists? We’d have to locate the wrong of rape entirely elsewhere here. And if we’d have to locate it elsewhere in a society in which these genuinely were the social facts, then why, in our society, would consent suddenly take on any importance?

  13. This is a reply to Emma@2:51.

    Emma asks about the toxic perception of “no as token resistance,” and how it fits into our paper.

    Maybe this is a hot take — and I’m not sure whether or not Emily agrees with me — but I actually think that, while the interpretation in question is definitely toxic and part of rape culture and a very bad thing, the problem here isn’t really a consent problem, and so our paper doesn’t have any direct implications on it.

    If a man asks to have sex with a woman and she says no, and he (perhaps falsely) believes that she wants him to keep asking and will eventually happily say yes, I think that while he does have some important and harmful misapprehensions about the situation, he has correctly interpreted her no as a refusal.

    If he keeps asking and she eventually says yes, there are several possibilities.

    On one possibility, this was what she was hoping for; he correctly interpreted her intentions. If they go on to have sex, it is consensual, welcome sex. If it is morally bad, it is not for reasons having to do with her consent. (Maybe it reinforces a harmful script that perpetuates rape culture, but that’s a social harm, not a violation of her.)

    On another possibility, she didn’t want him to keep asking — he was pestering her — but eventually changes her mind and freely decides to have sex with him after all. This is pushy and reflects badly on him, but is also, I think, not a consent violation.

    On a third possibility — the worst one — she continues not to want to have sex with him, but feels as if she has no choice. She fears violence, perhaps, if she continues to decline. Or perhaps she is so exhausted that she finally decides giving in the only open choice. If he has sex with her now, I think this may well be a consent violation, but for different reasons than the ones we highlight in our paper. I think this kind of case might well be a case of acquiescence failing to constitute valid consent, due to significant coercion. (Emily and I definitely think this is a thing that can happen — we just argue that it’s not what’s happening in the deception cases we focus on.) The problem isn’t in the content of what she agreed to — she did agree to the kind of sex that ended up happening — but it wasn’t valid consent because it was coerced.

    (This, I think, reflects one of the shortcomings of the emphasis on consent in sexual ethics. It has a hard time explaining when and why it is morally bad to ask to have sex with someone.)

  14. Replying to P’s 3:34, adding on to Emily’s 2:52:

    Another consideration to mention, in favour of the idea that even when the law protected marital rape, there was not, in many communities, an operative convention to the effect that marriage always amounts to a woman’s consent to sex with her husband: women, including wives, are also part of the social class who establishes these conventions. We get a distorted picture of the culture if we only focus on men bragging to one another.

    Maybe it’s worth separating out different kinds of cases, too. I think it’s totally certain that many wives did (and do) feel like it was wrong to refuse sex to their husbands. And this is a very toxic idea that we have every reason to reject as soundly as possible. But the question we’re looking at here is, if a wife DID, contrary to operative social norms, say no to her husband, perhaps even struggling back, which he forcefully penetrated her, did her “I do” at the alter constitute an agreement to have sex even under such future circumstances? (And we may add: that performing what look like acts of refusal wouldn’t amount to a withdrawal of such consent.) I think it’s not at all plausible that there was a convention to that effect, or even that it was widely believed that there was one.

    Note that on the contrary view, a husband complained that his wife was refusing to have sex with him, he would have been speaking falsely.

    I think Emily’s interpretation is much more plausible: these were correctly recognized as cases of husbands forcing their wives to have sex without their consent. (If you’re right, P, that they would feel no shame about it, this would show that they falsely believe that it’s fine to have sex with their wives without their consent.)

  15. This is such a great discussion and I can’t possibly respond to everything that is being said!

    Putting rape culture to one side for the moment (I will try to come back to it in a separate comment), I am worried that in their responses to me, JI and ET are focusing too much on the conventions around *whether consent has happened at all*, whereas the more interesting issue that is central to their paper is *what is the content of the consent,* that is, what exactly do social conventions dictate that you are agreeing to when you give the message that you are agreeing to SOMETHING. Once we re-focus on that question, I just don’t think it’s plausible to dismiss the idea that different subcultures have quite different conventions around this, and that potential partners or even individuals often belong to competing and contradictory subcultures in this regard. Consider for instance how within the larger gay male community, barebacking is on the table as an option in subcultures, whereas condom use is presumed to be the norm in others. Consider the expectations for higher sexual activity if you go home with someone within hookup culture than if you are in a more conservative dating community, where only making out might be presumed. It seems to me that we have conflicting expectations and negotiate conflicting norms all the time! And it seems hard to avoid my point that many people belong simultaneously both to very progressive sex-positive communities and to much more conservative communities of origin. Again, as I said in my original critique, normally, messiness and indeterminacy in meaning is acceptable, but it seems to me like it is very important that we not have a perspectivalist or underdetermination view of whether consent has actually been violated or not.

  16. A separate point, on rape culture: I am highly unconvinced by the dinner example. The convention in rape culture, I take it, is that allowing someone to buy you dinner *on a date*, where we have all sorts of elaborate social conventions for what counts as a date, constitutes presumptive consent, not that allowing any dinner purchase at all counts as presumptive consent.

    In general, I know so very many women who have blamed themselves for their own rapes and been unsure whether they counted as rape because they have done things that constitute presumptive consent within rape culture, which they have nontrivially internalized. So many. These are real norms that have a powerful hold, not just some incel confused fantasy.

    (Note that, interestingly, while plenty of non-women get raped, it is women who are unsure of whether they were raped because they went along with social practices indicating consent within rape culture, because it is deeply part of that culture that women are the ‘consenters’ and that men are automatically always up for sex. This means that men often can’t see their own rapes for a quite different reason, namely that rape culture postions them as unrapable. And of course enbys are just confusing period, within this cultural frame. But I digress.)

  17. “ Another consideration to mention, in favour of the idea that even when the law protected marital rape, there was not, in many communities, an operative convention to the effect that marriage always amounts to a woman’s consent to sex with her husband: women, including wives, are also part of the social class who establishes these conventions.”
    What do you intend by ‘convention’? In the Anglo-American world into the 20th century, a married woman was presumed to consent to sex with her husband under common law, a view retained as statutory criminal law displaced common law, a duty to provide sex was widely preached in a variety of Christian faiths. There was not widespread rejection or objection, nor prosecution under other guises of such instances, and not much penalty for the husband known to insist. So why is that not the social convention? What do you think the real convention was, and what basis?

  18. Thank you for your response to my question, Jonathan Ichikawa.

    One thing I was thinking in response to your take: I think Dougherty’s analysis of consent (we validly consent when we waive the rights we intend to waive) can perhaps explain the difference between possibilities 1 & 2 (it looks like consent) and possibility 3 (it doesn’t look like consent.) In possibilities 1 & 2, the woman eventually intended to waive her right against sex with the man. In possibility 3, she didn’t intend this and agreed to the sex for other reasons (e.g., she instead intended to avoid violence.)

    I’m not sure the difference-maker for valid consent in these cases can be that the man coerced the woman in case 3 and not in cases 1 & 2. He may have exhibited precisely the same coercive/pestering behavior in all three cases, following the social script (maybe telling himself this is normal “seduction” and not wrongful “coercion”). The key difference-maker doesn’t seem to be that there is coercion only in the third case, but rather that in the third case the woman didn’t want the sex. (Or, could there be coercive *behavior* in all three cases, but only in the third case was he successfully coercive?)

    I agree there’s a lot more to ethical sex than just consent (!). I still worry cases like this one point to a problem for taking established social conventions to settle the content of what is consented to. In this case, the question is whether certain forms of resistance mean consent to further sexual overtures. The guy in 1/2/3 possibilities might be acting according to an established social meaning of women’s resistance, taking himself to be engaging in a normal sexual interaction when interpreting resistance as an invitation to try again. Whether or not it is a *normal* interpretation of resistance, he wrongs the woman in (at least) the 3rd possibility by interpreting her resistance as an invitation (or consent) to keep trying, since it was not intended that way. This is even if the dominant way of interpreting a woman’s resistance in his community = consenting to further sexual overtures.

  19. This is a response to J Bogart’s 4:39 comment.

    We’ve claimed (in a couple of places now) that, at least plausibly, there was not *actually* a convention that made agreement to marriage count as agreement to sex, despite the existence of laws that stated the contrary. This claim has received some pushback, from J Bogart and others.

    To make our position more plausible, it might help to first note that there are different types of social conventions. There are legal conventions, moral conventions, metasemantic conventions, conventions of etiquette, etc. These conventions interact in various ways–moral conventions exert influence on legal conventions, and vice versa; conventions of etiquette may be mistaken for moral conventions; etc. Jonathan and I take metasemantic conventions as our main focus. We are interested in how various social conventions shape the meaning of our words. More specifically, we’re interested in how convention shapes the content of our agreement. To recall an especially illustrative example from our paper, suppose a man is wrapping up a first date with a woman. The date has gone well, and he asks if he can kiss her. She says yes. Despite not specifying where the man may kiss her, it is clear that it would be okay for the man to kiss her on her lips, but not her butt. Jonathan and I explain this by suggesting that various social conventions have shaped the content of her agreement. So, the metasemantic conventions are shaped in part by other social conventions.

    What I’ve said up to now might be taken to support J Bogart’s point–I’ve granted (as one should) that different kinds of social conventions interact. But J Bogart’s point is that there used to be a legal convention that held that women consented to sex (indefinitely) by virtue of consenting to marriage. How, then, could I deny that there were metasemantic conventions that shaped the content of what women agreed to? It is at this point that the distinctions between various kinds of social conventions are helpful. There is conceptual space between legal conventions and semantic conventions. And, more importantly, various legal conventions do not necessarily shape semantic conventions.

    The question to ask now is: how plausible is it that the legal convention in question–that women who have agreed to marriage have agreed to sex indefinitely–really managed to influence metasemantic conventions? To answer this question, it will not be sufficient to point to individuals who (even genuinely!) believe that consent to marriage is consent to sex indefinitely. This is insufficient because people can be mistaken about the conventions at play; so, there may be individuals who genuinely believe that consent to marriage constitutes indefinite consent to sex even when there is no such convention. Instead, we should consider the intelligibility of a wife refusing the sexual advances of her husband. The convention being discussed, were it operative, would presumably make such an attempted refusal unintelligible–after all, by agreeing to marriage, she agreed to sex indefinitely! In contrast, if the woman’s refusal *is* intelligible, this suggests that the legal convention has not managed to influence metasemantic conventions–when a woman consents to marriage, she is not *actually* heard as consenting to sex indefinitely.

    My suspicion, as I’ve said elsewhere, is that women’s refusals of their husbands’ sexual advances were intelligible as such. Men, at least often, knew they were violating their wives’ consent. These consent violations were not legally actionable because of the established legal rules, but they were consent violations nonetheless. This is, of course, empirical conjecture. But note how shockingly unjust it would be if women’s refusals were *literally* unintelligible to their husbands. (It is, of course, shockingly unjust that marital rape was legally permissible at all; but it is another thing to insist that the conventions were so bad that women’s refusals were not intelligible!).

  20. Hi Emma, thanks for your follow-up.

    I agree with your characterization of the wrong of someone who persists in asking after several no’s — the harm is in the asking itself. But I don’t think I want to put it, as you did in your comment, as a matter of his falsely taking her to have consented to his continuing to ask. Higher-order requests like that here aren’t on the table. And, while unwanted propositions are an important part of some sexual harassment, I think they are a pretty different kind of issue from nonconsensual sexual contact, i.e., sexual assault. (It’s not like things would have been better if his question had gone up a level each time: “OK may I ask you again if I can fuck you?” is bad in a similar way.)

    We don’t articulate any particular line on the ethics of sexual propositions. Certainly I think there are good and important questions there. But I don’t think our paper particularly implicates them.

  21. Quill @4:23 writes:

    “I just don’t think it’s plausible to dismiss the idea that different subcultures have quite different conventions around this, and that potential partners or even individuals often belong to competing and contradictory subcultures in this regard. Consider for instance how within the larger gay male community, barebacking is on the table as an option in subcultures, whereas condom use is presumed to be the norm in others. Consider the expectations for higher sexual activity if you go home with someone within hookup culture than if you are in a more conservative dating community, where only making out might be presumed.”

    I agree that different subcultures often come with different kinds of expectations or ideas about what is common. But for this observation to play the role you suggest, Quill, these norms would have to get into the conventions for interpreting sexual consent itself. While I agree that that can happen, I think it’s easy to exaggerate how common or easy that will be. It is after all widely recognized that, although you’re right that in a hookup culture meeting someone at a certain kind of social event and going home together would give rise to an expectation for sexual activity — one that might not be present in a more conservative culture — going home with someone doesn’t constitute consent to that sexual activity in either culture. Likewise, a culture where barebacking is presumed to be a possibility isn’t thereby a culture where ‘yes’ to sex automatically means ‘yes’ to sex without a condom.

    Our view is certainly not the view that one consents to whatever is considered normal in one’s culture in the circumstances one is in. We don’t have very specific commitments about what it takes to perform an act of consent, but I think we basically have in mind the kinds of things that defenders of ‘affirmative consent’ standards like: “yes, let’s have sex” is a paradigm, but lots of nonverbal cues in response to particular developments are involved too. The conventional defaults play key roles when one performs a communicative act sufficient for consent, but leaves certain details about what exactly one is consenting to unspecified.

    Again, the conventions in question are conventions about the meanings of our consenting signals; we’re not talking about what kind of sex is and isn’t normal.

    In cases where there’s significant ambiguity about what is consented to, where the background cultural norms aren’t able to pick up enough slack with respect to particular activities one is contemplating initiating, we think there is particular reason for the parties to use their words and specify for themselves. If someone wants to spank their partner, say, and they straddle communities where spanking does and does not “come standard”, they should probably ask. Cross-cultural and cross-subcultural interactions make this even more important, because there is more room for miscommunication. So I guess I think, in the cases where cultural diversity does result in indeterminacy about important questions, that *is* the plausible result.

  22. Thanks for the reply. One more follow up in response to Emily’s comment: “But note how shockingly unjust it would be if women’s refusals were *literally* unintelligible to their husbands.” I agree this is shockingly unjust, but I fear this accurately describes the experiences of many women throughout human history—sometimes women’s refusals are literally unintelligible to men as refusals! :(



    I don’t think you need to bite a bullet that says “if a man, owing to social convention, could not hear his wife’s refusals as refusals, then she consented” but the idea that social convention settles the meaning of our consenting speech acts is hard to square with social conventions that distort interpretations of women’s speech acts, like “no means yes,” “no means keep trying,” “Christian women cannot justly refuse sex with their husbands,” and the belief that “women don’t mean what they say.” Social convention has to have a lot to do with meaning, but do other things contribute to meaning, like what we intend to express? The problem with these cases is that sometimes a woman cannot express what she intends to express in a way that is correctly interpreted, because social convention is such that her intended meaning will be distorted (her refusals cannot be heard as refusals). But if it also matters what she intends to express, then we can explain why she wouldn’t be consenting even when she utters a speech act that is (wrongly) conventionally understood to give consent.

  23. Thanks to Emily, Jonathan, and Quill for the excellent paper and commentary!

    Apologies if this shows up twice — I encountered difficulties posting. Anyway, I have a clarificatory point of sorts and then a couple of clusters of questions.

    1. fwiw, in that 2013 article, I actually intended to be arguing that deception about a deal-breaker makes it the case that the sex was “not what was agreed to.” My thought was the range of this agreement is determined by the consent-giver’s intentions and a deal-breaker is a feature of a sexual encounter such that the consent-giver does not intend to engage in an encounter with this feature. I say “fwiw” because I don’t take an author’s intentions to determine the meaning of a text and in attempting to write up that view, I definitely didn’t do a good enough job: there are various passages that suggest I had different views in mind (e.g. the view that deal-breakers are defined counterfactually in terms of what someone would agree to if they weren’t deceived; the view that deception about deal-breakers invalidates consent). So I take full responsibility for any wire-crossing!

    2. Since writing that article in 2013, I came to think that consent isn’t a mental phenomenon but rather requires expressive behavior. So I’m much more amenable to a view like Emily’s and Jonathan’s, according to which the range of agreement is determined by a feature of the consent-giver’s speech-act. Still, I’m inclined to disagree with some of their view’s details. In appealing to the idea that conventions play a metasemantic role, I take their view to be emphasizing the semantics of a consent-giver’s utterance. If that’s right, then I’d be worried that this isn’t leaving enough room for pragmatics in the communication of consent (understood along broadly Gricean lines e.g. a consent-receiver successfully infers the consent-giver’s “speaker meaning” even though this is not communicated via conventional means.) I suspect that incorporating pragmatics would also help address some of the indeterminacy concerns that have already come up in this discussion. To fold in semantics alongside pragmatics, I think a promising approach is to consider the total evidence concerning how to interpret the speech-act—evidence that includes its semantic content but also includes facts relevant to communication via pragmatics. (I defend a view like this in my recent book The Scope of Consent—please forgive the plug 🙂 ). So my first question is: Do Emily and Jonathan think that what a consent-giver agrees to can be determined by what they communicate pragmatically? If so, then how does their view account for this?

    3. Suppose for the sake of argument that consent is a speech-act and hence “what is agreed to” is determined by features of this speech-act. It seems to me that we should place independent moral weight on whether a sexual encounter is against someone’s will. (fwiw, I think that for theorizing sexual assault this is a more important consideration than facts about speech-acts, and it sounds like Jonathan might agree?) If that’s right, then we would need an account that tells us of any sexual encounter: was this encounter against someone’s will? So I’m curious: (i) do Emily and Jonathan agree that we should place moral weight on whether a sexual encounter is against someone’s will? (ii) do they have any thoughts about how we should go about building an account of which sexual encounters are against someone’s will? (ii) do they have any thoughts about what this account should imply for a case in which a deceived person takes part in a sexual encounter which has a feature such that their will is opposed to any sexual encounter with this feature?

    Thanks in advance!

  24. Hi Tom, thanks for your questions (and the compliment!)!

    I did actually recently become aware of your new book — by coincidence, in fact, my copy of it arrived today! I’m looking forward to reading it!

    As for your questions:

    Interesting question about pragmatics. Emily and I have never talked about this so I’ll just tell you my off-the-cuff thoughts, and she can add hers if she likes. I guess one could develop a view like ours in one of a variety of ways with respect to the role of pragmatics, but I’ll tell you the one that I think I find most appealing — based in part on my more general views about semantics and pragmatics. (My guess is someone can recreate our view in a different guise if one had a different attitude about pragmatics, but I haven’t worked that out.) I think of semantics as about truth conditions, or satisfaction conditions, or what have you, and pragmatics as other information conveyed, perhaps by inference from what one actually said. (There’s a different tradition of using ‘pragmatics’ to include things like context-sensitivity; since that gets into truth conditions, I think of that as semantics.)

    So I guess I think that the content of a consenting act is by definition a matter of the semantics.

    This isn’t to say that pragmatically-imparted information can’t play a role in settling the content of beliefs, because semantics can be affected by salient information, including pragmatically communicated information. If I say, for instance, “it’s getting cold” and glance meaningfully at the window, I may pragmatically communicate that I want you to close the window. Now the window is salient; for that reason, you may say, “I promised not to close it,” and the referent of your “it” is the window. In some sense this is because of my pragmatic communication, but in a derivative way. It’s a semantic matter that the referent of “it” is the window.

    In the same way, I think, pragmatically-imparted information can play causal roles in determining the semantic content of consent. Actually I think Emily and I discuss examples in our paper that are like this. If someone says “safety is important to me, I have never had sex with anyone without using a condom”, the content of that assertion is a historical fact about themself, but it implicates that if there’s going to be sex tonight, they’ll insist on condom use. This of course is not consent of any kind. But later on, if there is consent to sex, this pragmatically-communicated fact can play a causal role in settling that consent to sex is limited to sex with a condom, even if this isn’t ever said in words.

    I’ve gone on long enough for now so I’ll think more about your second question, about sex against someone’s will, and aim to follow up tomorrow. (Unless Emily beats me to it and I don’t have anything to add!)

  25. I’m following up on Jonathan’s 8:50 response to Quill’s 4:23 post emphasizing the significance of their worry about ambiguity/indeterminate conventions. I agree with what Jonathan said above, but want to elaborate the point in a bit more detail.

    Let’s take Quill’s example of conflicting conventional expectations as a starting point. Men from certain queer subcommunities may take condomless sex to be the conventional norm, while other men may take sex with a condom to be the norm. Suppose two men from these different subcommunities have sex, and their conflicting expectations do not arise in conversation prior to sexual initiation. As a result, there is a serious miscommunication. One man proceeds to initiate sex without a condom, to the other man’s dismay. (Assume, further, that sexual activity is ceased the moment the miscommunication is discovered).

    In this case, it is obvious that things are less than ideal. It is even obvious that at least one man has been harmed. But has he been *wronged*? Has the other man acted *wrongfully*? My intuitions ere are far from clear; I don’t know what to think. It is obvious that something (far) less than ideal has occurred. But it is not obvious to me that anyone has wrongfully, or that they have *not* acted wrongfully. On the one hand, the man who reasonably presumed protected sex was the norm reasonably presumes his consent was to protected sex. But the man who initiated unprotected sex not only reasonably presumed the consent was to unprotected sex, he also stopped as soon as the other man withdrew his “consent”. If we assume something wrongful has happened, we implicitly assume the perspective of the man who presumed protected sex was the norm. If we assume that *nothing* wrongful has happened, then we implicitly assume the perspective of the man who presumed that unprotected sex was the norm. Given that we have no reason to presume one perspective over the other, neither judgment seems warranted. Thus, this case leaves me feeling torn; I don’t know what to think.

    If you share my intuitions about this case, then you should be tempted by the view that there is genuine indeterminacy here. The content of what was agreed to is unspecified, so the question about wrongful action cannot be answered.

    Quill says that, in general, messiness and indeterminacy in meaning are acceptable. However, they say that, in cases like the one above, it is important that we avoid underdetermination. The thrust of their concern is, to my mind, practical. Cases like the one described above are bad, and the stakes are relatively high. Thus, it would be nice if there were a fact of the matter about the content of the consent in cases like the one above. This seems both obvious and uncontroversial. However, they take this concern about the *practical* stakes of avoiding indeterminacy and turn this into a desideratum for a theory of consent. That is, they’re searching for a theory that will resolve this difficult issue.

    I think this search is understandable but misguided. It is not the place of a theory of our actual practices to provide determinacy when in fact our practices yield none. (And, recall, if you share my intuitions about the case discussed above, you should at least be tempted by the view that there is genuine indeterminacy.) Instead, what we should hope for is that theories of these practices will illuminate issues like these and provide helpful ways forward. I think our view does this. And, crucially, it does this in part by recognizing the genuine indeterminacy that exists in these cases.

    When the man being penetrated clarifies that he does not consent to what is taking place (unprotected sex), the normative status of the case (intuitively) ceases to be ambiguous. It is obvious that–if penetration persists–that it is both nonconsensual and wrongful. The difference is, plainly, that the content of consent is made explicit. Our account straightforwardly explains and accounts for the normative significance of specifying the content of this consent. Moreover, our view highlights practical ways to address ambiguities or indeterminacies that may arrive in real cases like this one. The key is to engage in clear and meaningful sexual communication with potential partners. This communication is *especially* crucial when you have good reason to think that you may be sexually engaging with someone who comes from a subcommunity with different conventions than you. Only by making certain expectations explicit can you ensure that your consent has the contours that you intend.

    This obviously doesn’t fully resolve the worry raised by Quill. Successfully communicating sexual expectations can be extremely difficult, for a variety of reasons. But I think we should be wary of any view that purports to quickly resolve Quill’s worry. Any view that makes these cases too easy is likely obscuring important facets of these cases.

  26. This article sounds really interesting. Thanks for the excellent summary and commentary, Quill Kukla.

    I was curious about the verdict the paper delivers on this famous and troubling punishment for rape by deception. Was wondering if the authors can help me think through this case/what the paper will say. I’ve always hated the verdict in the trial but am open to being wrong about the judgement

    One option, I guess, is to say that it would be good to change the discriminatory community norms that suggest one should disclose Palestinian identity before casual sex, but maintain that these this was rape. But that judgment seems too harsh in this cases, although perhaps there is a more minor ethical transgression involved?

    https://www.google.com/amp/s/abcnews.go.com/amp/International/palestinian-claimed-jew-jailed-rape-deception/story%3fid=11224513

  27. @12:38 am, Emily wants to bite the bullet on indeterminacy, by saying it is not clear in the case of conflicting norms for condomless sex whether or not anyone has been wronged, and she takes this to be evidence that there is genuine perspectivalism and indeterminacy going on. But the issue of whether someone has been wronged is not the same as the issue of whether there was a consent violation, I don’t think. Someone can have their consent violated without there being anyone who wronged them, based on legitimate exculpatable miscommunication or misunderstanding. We could think, as I do, that the man who was not up for condomless sex had his consent violated, and ALSO think that the man who violated his consent did not wrong him (though he harmed him) because he genuinely believed that the first man had consented to condomless sex.

    To put the point perhaps more straightforwardly, it seems to me to beg the question in favor of the indeterminacy of consent to assume that if it is indeterminate whether the first man has been wronged, then it is also indeterminate whether he consented. There is no reason to hook these two questions together a priori.

  28. This is a reply to Tom Dougherty’s point (3) above, about the moral significance of sex against someone’s will. Certainly I agree that there are important moral questions that do not correspond to consent questions, and “whether a sexual encounter is against someone’s will” is at least a reasonable gesture at some of those issues. But I don’t assume, as it sounds like maybe you do, Tom, that this notion is ultimately going to play central roles in precise moral theorising. (So I don’t feel the same pressure I think you do to articulate a general theory of whether an encounter is against someone’s will.)
    I think there’s one important line to draw at consent. I think this is the right place to answer questions about sexual assault. I also think it’s important that this not be the only line. (In both these respects I agree with Robin West’s “Sex, Law and Consent”.)

    It sounds like you want to draw another important line at being against one’s will. I’m not firmly opposed to an important line there, but I’m also not convinced that that’s the (or maybe even a) key question. Other issues seem like they may have a similar moral status: sex that is unwanted; sex that is disrespectful; sex that is harmful; etc. I’m skeptical about simple one-concept principles that are intended to sort sex into the fine and the bad.

    I guess I’m also not sure that we have a clear and robust enough conception of “against one’s will” to do the work in question — thinking about the kinds of dealbreaker cases that feature in your paper, and some of the counterexamples to them, seem as vexing for the “against one’s will” idea as they do for consent.

  29. Jumping in a bit into the exchange between Quill and Emily —

    I think we were assuming, at least for the purpose of discussion, the pretty mainstream idea that consent to X is or expresses a waiver of one’s rights against X. So the idea of a consent violation without wronging anyone isn’t really on the table for us. (We can accommodate a cousin of the move you make by describing a wronging for which one is not culpable, perhaps due to an excusable misunderstanding.)

    As for whether it requires biting a bullet to posit this kind of indeterminacy, I guess I think that I, and probably Emily too, might have more differences in intuition with you, Quill, than I’d realized. When I think about cases where someone leaves the sex acts they consent to vague, and something happens that they wouldn’t have agreed to had they been more specific, but where some but not all local conventions allow that it can be assumed as a default, the idea that it is in indeterminate whether they consented to it just does seem like the intuitive verdict, to me anyway. (And so likewise, I think, whether they are wronged.)

    These things typically get resolved in the moment, as the salience of the possibility of the acts in question makes people get more specific about their consent or refusal. But until that happens, I do think it’s indeterminate. Not only do I not consider that an embarrassing result, I have a hard time seeing what other verdict is plausible.

  30. This is a very fruitful and interesting paper. I don’t want to focus on the cons since I think the commentators already pointed out much of them. But one of the strengths of this paper and discussion is identifying the problems surrounding consent and the complexities and tensions of and between people’s desires, harm, autonomy, and well-being.

    As somebody who mostly studies ethics generally, I can’t help but see further philosophical research into identifying the many causes of indeterminacy and under-determinacy and figuring out the means for preventing or minimizing them as well as ways of dealing with them retroactively (after the fact).

    The paper and discussion have addressed the first two steps: 1) identifying the issues and 2) identifying some of the causes of such issues; I think there could be more to 2. But overall, I think it would be fruitful for ethicists to take insights from epistemologists on these issues in order to adequately remedy them as much as we can.

    My experience as a gay man has been different. I don’t think there was a big barebacking culture; it could be a stereotype. Maybe in the past (pre-2000s). But after the AIDS epidemic there has been a surge in safe sex advocacy within the gay community. Maybe now with the advent of PreP there’s a returning of barebacking culture in the gay community, which is unfortunately met with alternative unintended consequences. But even before the advent of PreP, all of my sexual encounters with other men have been followed by lots of communication beforehand.

    I do think one reason why many people fail or don’t communicate their sexual desires/expectations is that they often feel that talking about sex will destroy their chance of a romantic relationship with that person. Negative social perceptions about being a slut is strong. Even if both parties have a strong desire for sex with each other, they may be hesitant about talking about it beforehand and may end up with indeterminacy which could lead to problems for them.

    I am hoping there will be more normative theories about preventing and dealing with the indeterminacy before and after the fact.

  31. I’d like to make a somewhat general observation about consent, ethics, law, and rules.
    People often interpret norms about sex in terms of consent in a way that is not mandatory. This complications the ascription of ideas about consent to legal conventions. (And as Emily pointed out yesterday, there is yet another complicated connection between legal conventions and social semantic ones.)

    We had an extended discussion yesterday, for instance, of the idea that until various feminist reforms in the late 20th century, the law treated wives as having consented irrevocably in advance to any future sex with their husbands. While I haven’t made a study of all the relevant criminal codes, many did not carry such a commitment. While it is true that criminal law ruled out criminal sanction for men for raping their wives, it did not (or at least it did not always or explicitly) do so by saying that wives have already consented to any sex that happens. Rather, it simply exempted husband-wife sex from the relevant criminal code.

    Here for instance is Canada’s Criminal Code definition of rape as of 1970:

    143. A male person commits rape when he has sexual intercourse with a female person who is not his wife,
        (a) without her consent, or
        (b) with her consent if the consent
            (i) is extorted by threats or fear of bodily harm,
            (ii) is obtained by personating her husband, or
            (iii) is obtained by false and fraudulent representations as to the nature and quality of the act.

    This does not say that wives have consented to sex with their husbands; it just says the law against nonconsensual sex doesn’t apply to wives. Indeed, this code arguably presupposes wives might or might not consent. If by definition they must consent, then the “who is not his wife” clause is redundant.

    (There is a famous 18th-century legal quotation committing to the consent interpretation, but I am not convinced that that particular opinion was ever either widely held or enshrined in law.)

    Something quite similar is true of so-called “age of consent” laws. In the public imagination, they establish the age at which someone is capable consent. In actual criminal codes, they do not typically say any such thing. (And they are not typically called “age of consent” laws.) Rather, they carve out a set of cases where consent is not a legal defence against sexual assault. In other words, as far as the law goes, a child’s consent is *irrelevant*, not impossible, to whether an adult’s sexual interaction with them is criminal.

    Both these cases, I think, reflect a too-strong connection in the public imagination between consent and permissibility. This leads us, I think, to some inaccurate views about when we should think consent is and is not present.

    (Outside the legal context, people make similar mistakes when discussing institutional norms and rules. In the 80s and 90s, some people condemned professional codes banning patient-therapist sex on the grounds that they falsely assume patients incapable of giving consent, thereby infantilising them. There is similar rhetoric more recently about student–teacher relationships. But their being nonconsensual is just not the only reason one might wish to prohibit such relationships, so these rules do not carry this assumption.)

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