Those interested in sexual ethics or the nature and moral significance of consent would benefit from a careful reading of Alan Wertheimer's Consent to Sexual Relations. The fundamental question of the book is this: when does a woman give valid consent to sex? This question is notable for its gender-specific character and its emphasis on valid consent rather than consent as such. Both features are deliberate and may identify what is most controversial in Wertheimer's book.
Wertheimer opens with a review of legal controversies meant to highlight the need for a general theory of consent to sex. He then examines the psychology of sex, arguing in support of the conventional notion that ‘women have what men want’, and that it is therefore women's consent that is the key issue. He seeks to explain these gender dynamics in terms of evolutionary psychology, offering a standard socio-biological account of sexuality. Wertheimer then uses this framework to critique some common views on rape (e.g., the view that perpetrators desire domination, not sex) and to argue that because women potentially invest so much of their reproductive future when they have sex, we would expect evolution to favour in women a psychology that places a high stake in avoiding non-consensual sex. Thus, the psychological distress of non-consensual sex should be especially significant for women.
Much here warrants critical challenge, but these chapters are only preliminary. It is when he turns to the moral and conceptual analysis of consent that Wertheimer is at his best, displaying formidable analytic skills and apt use of hypothetical cases. His focus on valid consent is grounded in two observations. The first is that consent can be morally or legally transformative: What would be impermissible for A to do to B in the absence of consent becomes permissible when B consents (bracketing, as Wertheimer does, effects on third parties). Wertheimer notes that many think consent alone is insufficient to render sex permissible, calling this the ‘consent plus’ view, but rejects it in favour of ‘consensual minimalism’, which holds that ‘a suitably but not excessively robust consent is sufficient to legitimize sexual relations’ (p. 140). He favours this view largely to give moral space for a plurality of motives for engaging in sex.
His preference for consensual minimalism forces him to confront a second observation: although consent can be morally or legally transformative, not every unambiguous token of consent has this effect. This observation admits of two explanations: (1) not all tokens of consent indicate the presence of actual consent; (2) even though an unambiguous token of consent is real consent, not all consent is valid. Wertheimer endorses (2), favouring a purely performative rather than a psychological or hybrid conception of consent.
His reasoning in favour of this conception is suspect. To support it, he must refute Patricia Kazan's view that, although consent does not require a positive psychological attitude towards its object, it does require a positive attitude towards the act of consenting. He challenges this view using a case in which a woman is told that, unless she appears eager to consent to sex, she will be killed. Wertheimer rightly notes that in this case the woman presumably ‘wants to perform the relevant token of consent’ (p. 152). But Wertheimer cannot move to the conclusion that the victim has a positive attitude towards the act of consenting without begging the question at hand – namely, whether consent can be reduced to a clear token of consent.
In any event, on Wertheimer's account it is not consent as such that does the transformative work, but rather valid consent. The focus thus turns to the ‘principles of valid consent’, or PVC. Distinguishing moral and legal contexts, we have two questions: What are the principles of valid consent from the standpoint of morality (PVCM)? And what should we take to be the principles of valid consent for the sake of the law (PVCL)?
Wertheimer addresses each by considering the conditions that tend to invalidate consent – coercion, deception and the lack of competence – devoting a chapter to each plus one to intoxication (a particularly controversial threat to competence). In each area, Wertheimer is more effective at defining issues and ruling out unacceptable accounts of PVC than he is at offering a positive account. Nevertheless, he reaches some positive conclusions. One obvious principle of valid consent is that it not be coerced. The difficulty lies in defining coercion. Wertheimer notes that a coercive proposal involves a threat to make others worse off relative to some baseline. But what is the proper baseline? Wertheimer favours a ‘moralized’ baseline: coercion exists when one threatens to make others worse off than they have a right to be.
As an account of coercion, this is problematic. If an armed man walks in on the rape of his wife and responds by threatening to shoot the rapist unless he desists, it is natural to say the husband coerces the rapist. It is less obvious that the rapist's rights are violated. This problem aside, Wertheimer probably has identified a principle of valid consent: consent to sex is invalid when tokened in response to a threat to make one worse off than one has a right to be. While this principle cannot take us far without an account of relevant moral and legal rights, that may be a virtue. It shows that the validity of consent cannot be judged outside the context of a moral or legal framework.
Throughout, Wertheimer's analysis is motivated by commitment to respecting both negative and positive autonomy. ‘Negative autonomy’ is our freedom to refrain from participating in activities to which we do not consent. ‘Positive autonomy’ is our freedom to participate in activities to which we consent. Wertheimer worries that if we become too zealous in defending negative autonomy, especially in PVCL, we will truncate positive autonomy.
For example, Wertheimer is unsympathetic to those who would construe sexual coercion to extend generally to cases in which consent is tokened in a context of patriarchal oppression. His worry here is that doing so restricts women's positive autonomy. On the issue of intoxication, Wertheimer offers reasons why women might favour drunken sex and argues that an overly restrictive account of PVC (especially PVCL) would undermine women's autonomy to act on such reasons. He also argues that while children's consent should be treated as invalid, the consent of adults with the cognitive capacities of children should not be so uniformly dismissed, since treating their consent as invalid constitutes a lifelong truncation of positive autonomy.
Wertheimer concludes with a discussion of when women should consent to sex in intimate relationships, framing this as a question of justice. Many will likely find this chapter problematic. There is good reason to think that negotiations of sexual intimacy should be guided by something like the ethics of care, not by principles of justice – a concern that Wertheimer does not sufficiently address. Overall, however, Wertheimer offers a thoughtful and provocative treatment of his subject that deserves careful reading.
