Eli Benjamin Israel (Temple University), "Caring for Valid Sexual Consent"
Forthcoming, Hypatia
Walking in this world as a straight guy often feels pretty straightforward when it comes to sex. For too long, I failed to see the disparity between how I exercise my sexual agency and how women do the same. It wasn't until closely listening to stories from female friends, colleagues, and partners that I began to understand their risky sexual reality - one riddled with discomfort, harassment, and fear of violation. I've never experienced my potential sexual partners as a threat or a risk of any kind beyond possible heartbreak, and suddenly I heard stories of harm and fear of the most explicit kind – fear of being physically violated and hurt, of finding themselves in a situation where they feel like they don't have a choice, or even of having their partners failing to truly listen and understand what they want, and most importantly, what they don't want.
I asked myself, how do they manage to walk in this world as sexual beings? And in many conversations where I tried to get an answer, the same word came again and again, in different forms: "safety" — a search for a sense of security, respect, care, and nuanced attentiveness in every potential sexual partner, going beyond what can be expressed verbally in real-time. Feeling safe when interacting with a potential partner, when making oneself vulnerable, for too long seemed trivial, and suddenly I hear this is a central concern that shapes the sexual experiences of many. As I went on in my inquiries, I learned this is not exclusive to women, but something that also shapes the lives of others who belong to different disfavored groups in our society.
I understand the search for safety to the extent that it can be pursued in sexual partners, especially in more casual settings, as what stands behind what one tries to do when they attempt to grasp the kind of person they are having a drink with. The reason why we try to get details about them that do not necessarily count for their sexual attractiveness, or why it's important for us to see at least a glimpse of good character in a person who is already perfectly attractive to us - it's a pursuit of some kind of assurance that they will act as we expect and desire them to if we give ourselves to them. An assurance that it's going to be okay, or at least that it will not go terribly wrong. Realizing this made me also revisit my own past relationships and instances where I was too focused on myself and wasn't attentive enough to my sexual counterparts.
Sex is a domain of pleasure, but also of great vulnerability, and so even with the best intentions, we sometimes hurt the people we are with. Perhaps this is part of the sexual experiences of many of us, hurting and being hurt, but the cause for what I find to be some of the more nuanced forms of harm — lack of care and attentiveness — has been overlooked, in real-life and in our theories of consent. In "Caring for Valid Sexual Consent" (forthcoming in Hypatia), I explore these dynamics more in depth and suggest an answer, not only to what we look for, that "safety" and assurance, as well as for what we are required to provide our partners with what they need to safely, and I claim – justifiably, consent.
It's widely accepted that consent is significant in virtue of representing one's autonomy. In the sexual domain, this concerns what sexual acts they want and decide to enact, and so, it's not just about being connected to one's own sexual desires and boundaries, but about the autonomous status of the actions that actually come about. However, when philosophers consider autonomy-compromising conditions in consent, they often focus solely on the consent-giver, in their decision-making and communicative capacities. In this way, the impact of the consent-receiver's conduct on the consensual character of the activity is overlooked. For preventing violations and harm, I claim we must include the latter in our reasoning about consent, and that seems to me what people try to address in their pursuit of safety and assurance. Therefore, I suggest we rethink consent as something we work on and build together: In our capacity as consent-givers, we must assess whether our partner will act appropriately in order to have confidence that the activity will be consensual and conforming with our autonomy; and as consent-receivers, we must provide our partners with what's necessary for making such assessment and getting that confidence.
And here things get tricky – We are talking about persons, other autonomous beings, and so we can't really predict, let alone know, how they will act. When we consent to someone, we make ourselves vulnerable to them, to their will, in a way that leaves us no other choice but to trust. This trust, however, may not be blind. We've got to hold onto something that makes it plausible for us to believe that they’re trustworthy and will act in consensual ways. The first part of my argument focuses on this line, which I call the Trust Condition (TC). I draw on Katherine Hawley's commitment account of trust and claim that TC constitutes a justified belief that the consent-receiver is capable and committed to act within the scope of our consent. If such trust is not warranted, I argue, consent simply lacks the appropriate normative grounds and becomes invalid. This is true of every instance of consent, and in fact, we can find this condition for consenting in many of our everyday interactions with other people — from when we hand our car keys to the valet to when we consent to the doctor to perform surgery on us.
Trust is warranted in such scenarios primarily by means appropriate to their contractual characters. However, we may see in the non-contractual dimensions of sex, such as the dynamic character of our sexual desires and boundaries, as well as intimate settings in which sex occurs, which makes its clauses much harder to externally enforce, the need for a distinct way of warranting trust in the sexual domain. In the second part of my paper, I argue that care, defined as an attention toward the partner's will, is a necessary skill for us to hold to consensually (and so, safely) act on our sexual partners. When we care, we become attuned to them in ways that go beyond what is communicated, and it allows us to grasp signs of willingness and unwillingness that sometimes our partners themselves fail to realize they hold.
Arguing for care as a skill that we should foster in our capacity as sexual consent-receivers, as well as something we must communicate to allow our sexual partners the chance of justifiably giving consent, I believe we aptly target the need for safety assurances characteristic of many people’s sexual search. In addition - and here is where I find myself in this paper and think it becomes an important conversation for men to hold with themselves – we understand better what is required for being good consent-receivers and more ethical partners. As I said, violations of different levels are all too common in sexual interaction. This may not always be product of malicious intentions, but we are nevertheless responsible for that and must foster skills to avoid infringing harm. It's easy to be overwhelmed by one's own sexual wants that overshadow our partners, but the requirement of care, to establish proper trust, helps us situate ourselves in a better position to correctly act on another.
The paper: