Moral Sex: It’s Not All About Consent

When is sex wrong?

Posted Apr 05, 2018

Wikimedia Commons
Source: Wikimedia Commons

Is nonconsensual sex ever morally permissible? The answer depends in part on what "consent" means and what we can reasonably require that people know about each other before they engage in sex.

Agreeing to have sex is not the same as consenting. In an ethical context, "consent" is short for "voluntary informed consent." An agreement is voluntary when it's not forced or coerced. If Chris threatens to kill Pat's cat, if Pat doesn't agree to sex, Pat's agreement is not voluntary. So, the agreement is not consent.

What does it mean to be informed in this context? It means, among other things, that the person understands what they are agreeing to and its normal implications, and that they do agree because they were deceived.

As Jed Rubenfeld, Professor of Law at Yale Law School, argues, if you deceive a person merely in order to make the person agree to sex, then their agreement does not count as consent.

Rubenfeld, however, goes onto say that having sex with a person who hasn’t consented to the act is rape. Always. No Exceptions.

But suppose you lie a little about your age to your sex partner in order to increase your chances of "getting lucky." You are 30 but you say you are 28. As it turns out, your sex partner is obsessed with the age of their sex partner, but you don't know this. They would not have agreed, had you told them your real age (30 rather than 28). This is a kind of sex-by-deception. Does that make it a case of rape?

Absolutely not. It was at least a little wrong for you to lie before having sex with them, but you did not rape them. The sex wasn’t wrong. You could not reasonably have known that they would have said “no," if you had told them you were 30.

If you withhold information that would not by itself make a difference between a "yes" and a "no," the your involvement in the act isn't wrong. Withholding information that would have made the person say “no” violates the person’s private consent rules. But this does not automatically make the other person's involvement wrong.

The exception to this is if you intentionally withhold information you know will make the person say "no" to sex. Your partner's consent rules may well be idiosyncratic and unprincipled. But if you lie about something merely in order to prevent the other person from saying "no" to sex, and you proceed to have sex with them, then this is sexual misconduct.

Is it rape? It could be. Here is one way the envisaged scenario may play out:

Partner: You know how paranoid I am about having sex with people who are older than me, right?

You: Yeah, I know. You told me all night.

Partner: It actually really freaks me out. Are you sure you are 28?

You: Yes! I told you already. I am 28. Now, let’s get on with it.

Is it rape? I think we could reasonably say that it is. There are clearly many instances of rape that deserve much harsher condemnation than this one. But lying to someone with the sole purpose of getting them to "agree" is arguably an instance of coercion.

There are many other ways that the scenario could play out where your act would not count as rape. If you lie about your age merely to increase the chances of having sex with someone, that is different from lying while knowing (or having good reasons to think) the person will say “no” if you don’t.

Berit "Brit" Brogaard is the author of On Romantic Love.

References

Rubenfeld, J. (2012-2013). “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy,” The Yale Law Journal, 122, 6: 1372-1669.