A better sex ethic

Psyche and Eros, soul and desire.

There is now an almost perfectly predictable response to new allegations of sexual abuse by famous and powerful people. The allegation becomes public, the person is generally denounced (or, as in the case of Roy Moore, bitterly defended by their allies), and then in the aftermath, as the discussion moves from the specifics of the case to the general matter of consent and ethical sex, people begin to express confusion.

People will say: Consent seems very complicated, especially because genuine consent is governed by all kinds of operative power dynamics that are submerged in some cases and explicit in others. In trying to figure out how to navigate consent in a society that is increasingly conscious of the power differentials born out of race, wealth, status and gender, people sometimes come up with interesting calculi for hashing out when it’s permissible to have sex:

It was around this time that I remember sitting in a casual gathering where a straight, white male activist said, “Our gender and race has all the power. So when you want to have sex with a woman you have to ask and get her verbal consent.” He continued, “If that woman is a person of color, she is oppressed by both her gender and her race and then you should really ask twice.” The literalism of his ratio was ridiculously reductive, and his declarative tone off-putting, but I appreciated that he was trying to articulate how complicated it is to negotiate the invisible forces of privilege and power inside sexual encounters. He was trying to help other young men understand why it can sometimes be hard for any woman to find and voice “no” within a culture that has taught her to mistrust herself, or to value herself through male approval.

I agree with Brit Marling: I’m not sure this young man’s calculus works, exactly. But I can’t blame him for trying to come up with a clear way to reason about ethical sex and stumbling a little with a consent-only frame. In short, I don’t think consent-only is a sufficient framework for thinking about ethical sex.

A couple of disclaimers: There are, of course, inveterate predators to whom none of this matters; I’ve written about them and do not direct these comments to them. There are, likewise, people who feign confusion about consent or sexual ethics in bad faith to be bothersome or to criticize, in an indirect way, the project of improving our sexual culture. I don’t intend to talk to them either, as they are not serious engaging the questions at hand. And lastly, I am not referring here to criminal acts but to sex that, at the very least, meets the minimum criteria of legality.

Theoretically, it is easy to divine consent. You ask someone if they want to have sex with you, and they say yes or no. In reality, though, consent is more complicated than that, because power differentials between individuals can subtly affect a subordinate person’s ability to render genuine consent. An employee, for example, might find it difficult to turn a boss down, or a graduate student a professor, or an aspiring writer an important editor. These people all have power because they have the ability to actualize something their subordinates want or need. In those situations, we might easily say consent isn’t available and any pursuant sexual relationships would be inappropriate to varying degrees.

But it gets even more complicated than that. I’m going to use a couple of characters here — let’s call them Giton, a man, and Tryphaena, a woman— to illustrate what I mean. Tryphaena loves Giton very much, and deeply wants him to love her back. Giton does not love her, but he wouldn’t mind having sex with her. Could she consent to him? Perhaps we would say yes. But their situation is very much like that of the employee, or graduate student, or professor: He has the power to actualize something she wants, which is his love for her, and he is using that as leverage to procure a (diminished) kind of consent. Tryphaena doesn’t want to have sex with him; she wants him to love her, but she will trade the former in hopes of the latter, not unlike the much more obvious cases above. This is a pretty common case in ordinary life, and we don’t usually say it constitutes non-consensual sex.

Now let’s modify the case a little. Tryphaena loves Giton very much, Giton doesn’t love her, and she is a noble woman of middle age, and he is a very young man from the lower class. We can start trying to calculate how the power weighs out in this situation, but it’s difficult to do: Normally being middle-aged gives a person power over a younger person, but is that truly the case when it comes to women and men in particular? How wide are the class gaps? And so on. The consent picture, informed by power dynamics, becomes very murky. And these kinds of cases are very common because people come from many different walks of life and the power they wield over one another changes often and is not always clear or easily articulated.

None of this is to say it can’t be sorted out; it can be, but I think the way to do that is to realize we’re asking a couple of different questions disguised as one question, and that the matter of how to have ethical sex would be easier to figure out if we split the two questions up.

The first question is: Did the two parties consent? That is, did the parties consciously affirm agreement to have sex in this instance, all other matters aside? An affirmative answer here is necessary but not sufficient for ethical sex.

The second question is: Is the sex proposed good for the person who has rendered consent? I argue this ought to be necessary as well for ethical sex.

In the case of Tryphaena and Giton, which stands in for murky or complicated consent situations, both parties have consented. The reason it still feels icky is because having sex would not be good for Tryphaena (and arguably not for Giton either.) It would hurt her in the long run. She may accept that as a consequence or refuse to recognize that, but it is the case. Though she may consent, the question “would having sex be good for this person?” is not one Giton can answer affirmatively. Therefore he should elect not to have sex with her.

So that is my proposal for a slight tweak to our sex ethic. The consent question is absolutely necessary and absolutely must be answered in the affirmative for any sexual act to be ethical; it is a necessary pre-condition for sex. But so, too, should be an affirmative answer to the question “is this good for the person?” This will bring clarity to many situations where thinking strictly in terms of consent would lead to murky or confusing results.

Some might say: Well, how do I know what’s good for someone? The answer is that you have to know something about them, their intentions and their context, and you have to use your reason and empathy and apply the golden rule. In sex, as in life, there is little mathematical certitude. But thinking carefully and at length about how your decisions will affect other people never leads to worse results, in my experience, than acting quickly or on impulse.