Consent theory as hermeneutical injustice

Abstract

I describe respects in which an overemphasis on the role of consent in sexual ethics gives rise to hermeneutical injustices. Although consent is widely invoked with feminist motivations to combat rape culture, the role to which it is often put, I argue, is often antithetical to its laudable feminist aims. Various influential stereotypes about consent and sex influence the public imagination, interacting to produce and reinforce harmful ‘inference tickets’ that impede public and individual understanding of important positive and negative kinds of sexual interactions. Rather than trying to replace inadequate conceptions of consent with more inflationary ones, I suggest that feminists should use different language and frameworks to express their critiques and motivate positive cultural change.

I. Introduction

Hermeneutical injustices happen when the collective hermeneutical resources make someone’s important experiences unjustly difficult to understand. If, for example, one lives in a culture where a gender binary is widely assumed, non-binary people will suffer the effects of systematic failure to understand their experiences and identities.

Contemporary discourse about sexual violence and sexual ethics tends to be centred primarily around the notion of consent. This is at least partly the result of laudable feminist motivations and reforms; but contrary to its intent, I’ll argue, this component of our collective set of hermeneutical resources often amounts to hermeneutical injustice. Too often, the consent framework for sexual ethics amounts to the wrong conceptual tool for the job, leading to systematic misunderstanding of certain wrongful interactions, and ultimately contributing to rape culture.

Illuminating some of the harms of rape culture in terms of hermeneutical injustice is by no means novel; Fricker’s (2007) own example of sexual harassment is an obvious case in point, and other feminist philosophers, such as Katharine Jenkins (2017) and Millicent Churcher (2024), have also connected rape culture to hermeneutical injustice. One important difference between my project and theirs is that the hermeneutical problems I focus on are closely associated with the invocation of sexual consent. Invoking consent is typically motivated as a feminist response to rape culture; I’ll argue that this attempted solution partly misses the mark, and itself gives rise to related feminist concerns.

II. Some motivating examples

Here, a few vignettes that may help motivate my project.

• Pressure Alex goes on a date with Alan. He’s nice enough, but she doesn’t feel much of a spark. She isn’t sure whether more attraction might develop and she doesn’t want to be rude, so accepts his invitation to come to his place after dinner. She does not develop a sexual interest in him, and she politely tries to deflect his increasingly persistent sexual advances. Eventually, however, she decides to agree to have sex with him. She’d prefer not to, but he isn’t making a graceful exit easy, and she doesn’t want to hurt his feelings. They have sex; it isn’t great.¹

• Grooming Taylor develops a crush on her university professor, who notices this and takes advantage of his position of authority to manipulate her into becoming closer with him. Taylor is flattered and excited by his flirtation, and one day she decides to kiss him. Their affair lasts a few months. Later, when she learns that it was one in a series of similar relationships he’s had with his students, she feels that she was manipulated and violated.²

• Underage Lily, a 15-year-old teenager, sneaks out to go to a show one night, where she meets a man in his 20s and develops a sexual relationship with him. She is excited by this ‘forbidden’ relationship, which makes her feel more grown-up. She knows that the law criminalizes such relationships, but she takes pride in it and is excited by it.³

• Spontaneous Kiss Bill and Bob meet on a dating app. Bill is into Bob and wants to get more physical with him, but he’s not sure whether Bob feels the same way. Bill tries to use his body language to invite further intimacy, moving closer, touching him casually, and making eye contact. But Bob is a bit awkward, and keeps chattering about random things. Bill isn’t sure whether Bob isn’t noticing the cues he’s been giving, or whether he’s rejecting them, or even whether he also wants to get closer, but is just too shy. He decides to just go for it; he interrupts one of Bob’s sentences with a kiss. This surprises Bob, but he is not at all upset; he’d continued chattering because he had been too shy to make his own interest evident.

• Mutual Spontaneous Kiss Like Spontaneous Kiss, but in this version, Bill and Bob are both interested, and shy, and not sure how to make the first move. At one point, they make eye contact, and although they aren’t sure whether it’s welcome, they each decide to kiss the other.

None of these vignette descriptions used the word ‘consent’, but all of them naturally invite discussion in those terms. Pressure, Grooming, and Underage are all cases where someone is wronged by intimate sexual conduct; there is a strong temptation to explain those wrongs in terms of consent. But I’ll argue in what follows that there is good reason to resist that temptation.

It’s not obvious what to think about Spontaneous Kiss and Mutual Spontaneous Kiss, but I think that the consent framework also contributes to hermeneutical challenges in those cases. Spontaneous Kiss invites us to think either that Bill has sexually assaulted Bob with a non-consensual kiss or that Bob consented, despite having made no indication to that effect before the kiss happened, both of which are uncomfortable verdicts. The same is even true of Mutual Spontaneous Kiss; each person kissed the other without first being sure whether the other would welcome it. Surely this wasn’t a case of mutual sexual assault, was it? But if not, does that mean it might after all be OK to kiss people without their consent sometimes? Consent theory in sexual ethics makes cases such as Spontaneous Kiss and Mutual Spontaneous Kiss somewhat puzzling.⁴ I’ll put the majority of my focus on this paper on issues raised by cases like Pressure, Grooming, and Underage, where I’ll argue that consent theory misdiagnoses the wrongs in question; I’ll return in Section VIII to cases such as Spontaneous Kiss and Mutual Spontaneous Kiss, where consent theory makes it hard to understand some cases that seem like positive sexual interactions.

Even though the consent framework was intended largely as a response to and a reaction against rape culture, I’ll argue that it sometimes serves to reflect and perpetuate it.⁵ Consequently, the hermeneutical challenges to which consent gives rise constitute hermeneutical injustices.

III. Hermeneutical resources

Before developing my critique of the emphasis on consent in sexual ethics, a few remarks about what hermeneutical injustice does and does not require are in order. This is important for two reasons. Most obviously, understanding what I mean by hermeneutical injustice is necessary to understand what I mean when I say that the consent emphasis gives rise to it. But it is also important to forestall an obvious objection to my suggestion that the problems I’ll discuss amount to hermeneutical injustice. That objection, I think, reflects a widespread misunderstanding of Fricker’s notion of hermeneutical injustice; correcting it is of general philosophical interest, regardless of one’s views about consent.

The objection is this: Hermeneutical injustices involve hermeneutical lacunae—gaps in the collective hermeneutical resources, where important properties or experiences are overlooked or misunderstood because there isn’t a word or a concept that characterizes them. However, according to the objection, the cases that motivate my project don’t seem to be cases where the problem is that a word or a concept is missing. And, the objection continues, if they were, the problem would rest with those gaps, not with consent.

But it’s a mistake to think that hermeneutical injustices are always a matter of missing words or concepts. Fricker (2007) never said it was, and indeed, some of her own examples are counterexamples to that false generalization.⁶ This point has been made by a number of authors in recent years, so I’ll be relatively brief in my treatment here.⁷

Fricker introduced the notion of hermeneutical injustice with the case of Carmita Wood, a victim of sexual harassment who faced structural obstacles to making her experiences understood. The remedy to these obstacles was a community of people who had undergone similar experiences, a general consciousness-raising campaign, and most saliently, a new term—‘sexual harassment’—which served as a vehicle to spread this shared understanding.

It’s an evocative story, and a useful illustration of an important phenomenon. But I think that some of the accidental features of this example have been given outsized emphasis, resulting in an importantly skewed perspective on hermeneutical injustice.⁸ Hermeneutical injustices occur any time important aspects of one’s experience are obscured due to unjust hermeneutical marginalization. Leaving gaps in collective hermeneutical resources is only one of the many ways in which hermeneutical marginalization can raise these challenges. Often hermeneutical injustices occur, not because some concept or label is lacking, but because of the presence, in the collective hermeneutical resources, of harmful controlling stereotypes.⁹

Some of Fricker’s own cases illustrate the range of possibilities. She (2007: 157) discusses, for instance, a stalking victim, Joe, whose experiences misfit the conventional stereotypes of stalking. Fricker also discusses (2007: 164) a case of a gay man whose patterns of thought are heavily influenced by the negative stereotypes about homosexuality that are prominent in his culture; those stereotypes prevent him from understanding the tender and loving feelings he has towards another man, directing his thoughts instead to deviant and pathological conceptions of a homosexual bogeyman. In each of these cases, the problem isn’t a missing concept; it’s a set of stereotypical associations that make certain experiences difficult to understand as legitimate.

Jen Foster and I have described the hermeneutical resources at issue in these cases as normative inference tickets—patterns of stereotypical association that make certain transitions in thought feel so obvious as to be automatic (Foster and Ichikawa 2023). Some concepts or labels are strongly associated with inferential patterns, and the easy availability and automaticity of these inference tickets can be useful or harmful. Useful patterns will make some important things much easier to recognize; harmful ones will tend to obscure important insights. We suggest, for example, that the label ‘sexual harassment’ is deeply associated with an ‘import’ inference ticket linking certain kinds of workplace conduct to sexual harassment:

There is also an intuitive and automatic ‘export’ inference ticket linking sexual harassment to wrongdoing:

The combined presence of these two inferences tickets in the collective hermeneutical resources helps explain why it is now so much more intuitive and automatic to link behaviours characteristic of sexual harassment to wrongdoing. The stereotypes attached to sexual harassment make it easy to draw inferential links from one side to the other:

These inference tickets are useful, because they help explain significant social patterns of behaviour, help regulate better workplace cultures, and give victims of sexual harassment opportunities to explain and the misconduct they are experiencing and call for its redress. This is why introducing this term and its associated stereotypes amounted to a hermeneutical advance. By contrast, harmful inference tickets interfere with understanding. Joe’s experience of stalking was obscured in part by a set of hermeneutical resources that included inference tickets linking stalking to a different set of motivations and gender dynamics from those he was experiencing. There is a strong set of default assumptions in the public imagination about what stalking looks like; since Joe’s experience didn’t look like the stereotype, it was difficult to recognize for what it was, giving rise to hermeneutical injustice. Foster and I do not think that inference tickets need to be typically thought to be exceptionless, but we emphasize that inference tickets do encode a powerful default status in the public imagination. So even if many people would deny that one of these inferences is actually valid, they will still typically tend to infer according to it, which is why it amounts to a hermeneutical obstacle for Joe: Since his experience obviously does not match the expected pattern of stalking, it tends not to be recognized as such.

In summary, hermeneutical injustices do not only arise in cases of missing labels or concepts, they can also arise from the patterns of inferences encoded in deep collective stereotypes.¹⁰ In the remainder of this paper, I shall argue that the ubiquitous emphasis on and discourse about consent in sexual ethics contributes to harmful stereotypical connections, leading to hermeneutical injustice, in a variety of ways.

IV. Pretense of autonomy and egalitarianism

A number of feminist theorists have argued that consent theory in sexual ethics makes false promises. Alisa Kessel calls this the ‘cruel optimism’ of sexual consent, writing in her (2020: 361) that ‘potential victims and perpetrators alike sustain an optimistic attachment to consent as the evidence of agency that distinguishes sex from rape, when in fact the perverse construction of victim/survivor-as-agent and of perpetrator-as-victim has, for centuries, facilitated the persistence of sexual violence’. In making promises upon which it fails to deliver, consent, Kessel says, tends ‘to obscure sexual violence in a set of questions around victimhood and agency, rather than to clarify whether or when it has occurred’ (Kessel 2020: 359).

Likewise, Manon Garcia (2023: 37) describes this role for consent in popular discourse:

Consent increasingly is the hinge that will open the door not just to nonviolent sex but also to women’s freedom from sexual domination generally. Across diverse arenas of public life, consent is perceived as a silver bullet: it is the only way to prevent rape and, not unrelatedly, it is the key for challenging the many ways in which patriarchy has shaped our sexualities.

The false promise of consent is related to a false presupposition about equality and autonomy: That the decision whether to consent to a sexual encounter is, always or typically, made in an autonomous way, removed from the influence of patriarchal oppression. As many radical feminist scholars have emphasized, this is far from true, and the use of labels such as ‘consent,’ which reinforce that picture, tend to perpetuate this misunderstanding.

This point has been made by many feminist scholars over several decades—in addition to those cited above, see especially Pateman (1988), Davis (1990), Dworkin (2008), and MacKinnon (2016)—so I will not belabour it here. The main thing I add to this critique of consent theory is to categorize these problems as matters of hermeneutical injustice. This serves, along with the other critiques below, to illustrate the deep ways in which stereotypes about consent and sex interact to negative hermeneutical effect.

V. Consensual, therefore fine

Contemporary liberal sexual ethics is characterized in significant part by its dual oppositions to sexual violence, on the one hand, and conservative sexual moralism, on the other. Consent is meant to be the progressive response to both regressive elements: It is key to combating sexual violence, because we emphasize that sex without consent is unacceptable; it also serves against traditional sexual moralism by allowing that when there is consent, sex of all kinds is something to be welcomed and celebrated.

In a 2016 episode of his conservative radio show, Rush Limbaugh stated, in an incredulous and derisive tone of voice, the following description of the mainstream liberal position on sex and consent:

You know what the magic word, the only thing that matters in American sexual mores today is? One thing. You can do anything, the left will promote and understand and tolerate anything, as long as there is one element. Do you know what it is? Consent. If there is consent on both or all three or all four, however many are involved in the sex act, it’s perfectly fine. Whatever it is. But if the left ever senses and smells that there’s no consent in part of the equation then here come the rape police. But consent is the magic key to the left.¹¹

Limbaugh’s remarks were widely circulated and criticized within mainstream liberal circles. Part of what so many of us found ridiculous about them was that Limbaugh seemed so incredulous about what was to us the very ordinary idea that consent could render counternormative sexual interactions ‘perfectly fine’.¹² Limbaugh was lambasting what he took to be the hypocrisy of liberal culture, since it tolerates or even celebrates many forms of sex outside of the heterosexual matrimonial paradigm, while at the same time condemning other kinds of deviant sexual interactions, just because they happen to be non-consensual. Limbaugh was approaching the question against a more regressive background, according to which all sex outside certain traditional norms is morally suspect. The main reason sexual assault is wrong, on this regressive framing, is because it is sexual, not because it is assault.

Some of these sex-negative assumptions do still influence many people’s thoughts about sexual ethics.¹³ But it is certainly true that contemporary culture has moved a long way in the direction that Limbaugh was so incredulous about. In many circles, it is widely believed—or even treated as so obvious as to be barely worth mentioning as a commitment—that if sex is consensual, then it is ‘perfectly OK’. Manon Garcia (2023: 14) writes that ‘the notion of consent produces overlooked moral inferences—first among them, that consent is the criterion for permissible sex’. In other words, there is a widespread ‘Consensual|$\rightarrow$|Fine ’ inference ticket:

One sometimes sees explicit commitments to the generality of this inference. A 2021 blog post from the Center for Positive Sexuality,¹⁴ for example, states that ‘[b]eing sex positive means you believe that all sex is good sex as long as it’s consensual’. Alan Wertheimer (2003: 1) writes that ‘we should regard it as morally and legally permissible to engage in sexual relations if and only if the parties consent to do so’. Some theorists acknowledge that consent is not a ‘moral panacea’, and so is consistent with sex being morally wrong¹⁵—consensual sex can be wrong if it breaks a promise, for example—but this is consistent with consent being the measure of permissible sex qua sex.

As I mentioned above, the stereotypical connections encoded in inference tickets don’t have to be treated as exceptionless, in order to be genuinely held and psychologically and socially influential.¹⁶ There is an inference ticket from x is a bird to x can fly, due to the tight stereotypical connection between birds and flight, even though everybody knows about penguins and ostriches. Inference tickets tolerate exceptions, but due to the robustness and automaticity of the stereotypical connections, an exception to them would have to be exceptional; absent special reason to think we’re considering one of those unusual examples of a flightless bird, one expects a bird to fly.

So even if someone doesn’t think that consent always makes sex permissible—or even permissible qua sex—their thoughts and patterns of inference might well still be affected by this inference ticket.¹⁷ If it was consensual, then—it’s natural to infer very quickly and automatically, unless there is reason to think of the case as exceptional—it was fine.¹⁸ I think that several of the cases I gave in Section II—Pressure, Grooming, and Underage —fit into this ‘exceptional’ category: They involve important wrongs, even though their victims consented. (I know that many contemporary readers may not find it at all obvious that these cases involve consent. I’ll say more about why I think so in the sections that follow.) An inference ticket such as the one we’re discussing here marginalizes these kinds of experiences, and makes them more difficult to recognize and understand. If Alex complains about Alan’s entitled and disrespectful sexual conduct, she may have a difficult time having her experience understood. After all, didn’t she consent?

The inference ticket from consensual sex to moral appropriateness obscures the possibility of consensual sexual wrongs, thus contributing, in cases such as these, to hermeneutical injustice.

VI. Wrongful, therefore non-consensual

I just described ways in which the Consensual|$\rightarrow$|Fine inference ticket sometimes produces hermeneutical obstacles to the understanding of wrongdoing. Other times, things play out in a different harmful way, pushed along by a closely related inference ticket. I said above that it’s easy and automatic to infer, ‘it was consensual, therefore it was fine’—but if one is sufficiently confident that it wasn’t fine, one might be inclined to infer in the opposite Wrong|$\rightarrow$|No Consent direction, along the lines of modus tollens:

Call this the ‘Wrong|$\rightarrow$|No Consent ’ inference ticket. In cases such as Pressure or Grooming, one might accurately perceive that a sexually violative interaction is occurring. If so, one might reflexively and automatically infer, in line with this inference ticket, that the interaction is not consensual. Recent years have rightly brought increased attention to the moral importance of the variety of ways in which sexual behaviour can be violative, but I do not think the consent framing helps us understand all such cases.

In Pressure, although it is true that Alex has been mistreated, and she is correct to feel violated, I think it would be a mistake for her or someone else to conclude that the eventual sexual interaction wasn’t consensual. Alan was insensitive, pushy, and entitled, and his boorish behaviour contributes in obvious ways to systemic gender oppression and rape culture, and he deserves criticism for all of this. But, I want to insist, he is not guilty of rape, as he would be if he had sexually penetrated her without her consent.¹⁹ Saying it wasn’t rape can sound in some contexts like a justification for his behaviour—this is the Consensual|$\rightarrow$|Fine inference ticket at work again—hopefully it is clear that this is not my intent. We need further, more subtle ways to explain sexual violations.

I feel much the same about Grooming: Taylor’s professor is manipulative and callous, and he is abusing the status to which he has been appointed, and perhaps he’s also shirking his pedagogical duties.²⁰ But none of this means she didn’t consent. When Alex and Taylor agree to have the sex that they have with their abusers, their agreement is a morally important part of their interactions, even though those interactions nevertheless amounted to abuse.

The Wrong|$\rightarrow$|No Consent inference ticket gives rise to multiple harms, in cases lsuch as these. The problem isn’t just that perpetrators of one kind of sexual wrong are painted with the wrong negative brush (although I do think this is one problem). This kind of oversimplistic, binary approach to sexual misconduct also contributes to broader social harms. For example, it contributes to harmful ‘monster myths’ about sexual violation, which tend to perpetuate rape culture.

Emily Tilton (2024) compellingly argues that the tendency to catastrophize sexual violence is actually a component of rape culture, alongside the tendency to respond sceptically to testimony about sexual violence. The assumption that sexual violence is typically perpetuated by monstrous predators is not a way to minimize sexual violence, but it makes the binary—was this a sexual assault or not?—that much more momentous, to detrimental effect.

Tilton’s discussion is given in terms of rape, not consent. But since I am assuming, with contemporary orthodoxy, that sex without consent is rape, the inference ticket from violation to non-consent also leads directly to the attribution of rape. We could spell that out with a second inference ticket: This sex was violative, therefore it was non-consensual; It was nonconsensual, therefore it was rape. We may even continue: It was rape, therefore he is a rapist, with the extreme negative connotations that word brings.²¹

The automaticity of these inferences may lead one to reject their starting point, denying that the interaction was after all violative, because the idea that a given individual deserves that much condemnation is felt implausible.²² This

is a way in which the Wrong|$\rightarrow$|No Consent inference ticket can contribute to the same harms I attributed to the Consensual|$\rightarrow$|Fine one. But there are also different harms when it doesn’t do so: It treats people who are guilty of being pushy or insensitive or manipulative as if they were guilty of the starker and much more loaded transgression of rape. While I agree with feminist theorists and commentators that all-too-common behaviours like that of Alan in Pressure are both contributors to systemic problems and deserving of individual censure, I don’t think equating them with rape will, on the whole, contribute to positive cultural change.

Describing such cases as non-consensual would also, I think, be false; so an inference ticket that pushes someone who recognizes the violative nature of the interaction in that direction would interfere with a more accurate understanding of the experiences in question, thus amounting to hermeneutical injustice.²³

VII. Agential demotion

Melissa Rees and I have posited an additional set of harms that arise from the Wrong|$\rightarrow$|No Consent inference ticket (Rees and Ichikawa 2024). These harms too, I think, amount to hermeneutical injustice.

Consent is closely associated with agency; core to the idea of consent is that it is a way of letting people decide for themselves what is permitted. When we do not treat someone’s willing agreement as a reflection of their own agency, we tend to say that the agreement didn’t constitute genuine valid consent. This is why one cannot consent under circumstances of radical deception, for example: If one agrees to write one’s signature on a piece of paper, having been told that it grants permission to have their photograph taken and used in promotional materials, but it turns out to have been a rights waiver that indicates permission to be punched in the face, one has not given valid consent to being punched in the face. Consent requires some degree of of knowledge about what one is agreeing to. The same is true if one signs the contract at a hypnotist’s irresistible suggestion; consent requires a degree of personal competence that is absent in this case. This also applies to sexual consent. If one is radically deceived about what kind of sexual interaction one is agreeing to, for example, what ends up happening may be something to which one didn’t consent.²⁴ Likewise if one is blackout drunk.

Information and competence are key components to agency, and it is certainly orthodoxy to hold that an adequate degree of agency is necessary for valid consent. It’s also widely thought that if one agrees to something, and does have adequate agency, this suffices for valid consent. In other words, in cases where one agrees to something but that agreement doesn’t constitute consent, this must be because one lacked adequate agency to be capable of consent.

Rees and I argue that this gives rise to a dilemma for some victims of violative sexual relationships. I’ll focus here on Lily from the Underage case above, which comes from our paper. Lily, as stipulated above, is an enthusiastic teenage participant in her sexual relationship with an adult man. She doesn’t, at the time, recognize it for the inappropriate and potentially violative relationship that it is. But we needn’t suppose that she’s wholly insensitive to these concerns. She knows, let’s imagine, that it is a criminal offence for her older boyfriend to have sex with her, and she knows that people often say that such relationships can’t involve genuine consent. Perhaps she is considering this idea. Someone with her best interests at heart is attempting to convince her that her relationship amounts to a serious wrong against her. And like so many people who argue this, let’s imagine that the way they do so is by telling Lily that because she is an underage teenager, she can’t consent to have sex with an adult man. This is a very natural way to try to make this point, and, given the force of the Wrong|$\rightarrow$|No Consent inference ticket, one might easily feel that it’s the only way to do so.

Suppose that Lily is receptive to this argument. She comes to question whether things were as simple as she’d been supposing. She recognizes the vulnerability of children, including young teenagers like herself, and questions whether her sexual preferences and actions really are enough to make it OK for an adult man to have sex with her. (Lily, we’re imagining, is coming to think about the issue the way I’d assume most readers of this paper think about it.) Maybe she comes to recognize this as a violative relationship. Insofar as she is influenced by the intuitive force of the Wrong|$\rightarrow$|No Consent inference ticket, she is likely to conclude that since the interaction was violative, she did not after all consent to it.

Lily knows that she has been an eager and enthusiastic participant in the relationship; she knows that she has told her partner that she wants him to have sex with her. But she is now seriously questioning whether that amounted to consent. When someone decides to give permission for something, or even to explicitly request it, that typically amounts to consent; the main reason it might not do so is because they don’t have the relevant agential capacity. If someone is under the strong influence of drugs, and so isn’t responsible for their actions, their expressed agreements don’t amount to consent. So likewise if someone has severe cognitive limitations and literally doesn’t understand what they are doing. Could her own agreements to have sex with this older man, Lily now wonders, have been like that?²⁵

For Lily to decide that she didn’t actually consent, she may need to treat herself as less than a full agent. She knows she said yes, but she now discounts the moral significance of that fact, much as she would if she were discounting an agreement made in a drugged stupor or from someone with no idea what they were getting into. Rees and I call this phenomenon agential demotion. Lily has to treat herself as less than a full agent, even though she really did make genuine and morally efficacious decisions. We argue that agential demotion in such cases often leads to significant harms, including the undermining of self-trust, a sense that one has no control over one’s lives and decisions, and self-targeted victim-blaming. All of this is to the subject’s detriment, both generally and hermeneutically—these are respects in which people such as Lily are prevented from understanding themselves and their experiences. If Rees and I are correct about this, these are hermeneutical injustices, and the ubiquity of the consent framework in sexual ethics, and especially the Wrong|$\rightarrow$|No Consent inference ticket, contributes to them.

VIII. Men doing sex to women

Outside sexual contexts, if we’re discussing whether A consents to B doing |$\phi$|⁠, there are a few things you will naturally assume about A, B, and |$\phi$|⁠. We wouldn’t use this language, for example, if |$\phi$| doesn’t have anything to do with A. Unless you and I have a fairly specific kind of relationship, no one will talk about me consenting to your having toast for breakfast.

We also don’t talk about A consenting to B  |$\phi$|ing when |$\phi$| is something that A has instructed or requested B to do. If I tell you to open the window and you do so, whether I consented to you opening the window is not at issue. (We may discuss whether you consented to opening the window, for example, if we are considering whether I forced or coerced you to do it. But my consent isn’t part of the story here.)

In Ichikawa (2020), I argued on the basis of observations such as these that generally talk of whether A ‘consents’ to B |$\phi$|ing presupposes the idea that |$\phi$|  is something that B wants, and that A is a mere gatekeeping permission-giver. In the sexual case, this corresponds to a familiar stereotype of heterosexual interactions: Sex is, to put it a bit crudely, a thing men want to do to women; a woman gets a say in the matter, but her role is limited to deciding whether he gets to do the thing he wants to do, for his own sexual ends.

In my (2020) paper, I posted this connection, between consent and whose interests are prioritized, as a semantic presupposition. On the view I sketched there, it would be linguistically defective to describe a case where A |$\phi$|’s because B asked them to as a case of B  having ‘consented’ to A  |$\phi$|ing. But a version of this point is available even if one does not accept this strong connection. Whether or not there is a genuine semantic connection along these lines, it is very plausible that there is a widespread inference ticket linking consent to this kind of asymmetry of interests:

For example, Kukla (2018) suggests that consent is distinctively connected to requests; one may consent to a request, but not to an invitation or an offer of a gift. Moreover, these stereotypical connections also apply within the sexual realm. As Ann Cahill (2001: 174) puts it, ‘if... intercourse were clearly beneficial to women, if they were experiences that women, as self-interested, autonomous, rational beings, perceived as appealing and desirable, we would not speak of women’s consent, but rather of their desire’.

This is but one of several related stereotypes connected to intuitive ideas about consent. As a number of feminist critics have observed, consent is also intuitively associated with an asymmetry between active agents and passive participants who are acted upon.²⁶ These stereotypical connections are not in competition; indeed, they mutually reinforce one another.

These stereotypes of consent are closely connected to powerful heterosexual stereotypes about sex. According to widespread controlling images about sexuality, sex, by and large, is a thing that men (always or almost always) want for their own ends. The role for women is doubly receptive: Women can choose whether to permit men to have the sex that they want, and if they do, they allow themselves to be acted upon sexually.

Much sex conforms to these stereotypes, but there are clear feminist reasons to normalize alternate sexual scripts; these stereotypes contribute to the marginalization of women’s sexual pleasure and sexual agency in obvious ways. Of course, they also marginalize the myriad forms of queer sex that do not deserve to be marginalized, including sex that is not between a man and a woman. And even in cases that do involve heterosexual sex, they also reinforce harmful gender roles, making men and women alike feel like they ought to conform their behaviour interests to these patterns.²⁷ They also contribute to a failure of imagination about alternatives to a ‘pursuer’/‘seduction’ model of flirtation—perhaps this is why some commentators have worried that feminist values about sex might prevent too many ordinary sexual interactions.²⁸

This creates many hermeneutical problems: It makes it more difficult to understand less standard but more equitable modes of sexual interests, preferences, and experiences. As Kukla (2018) emphasizes, for example, there are many ways in which partners can suggest and discuss sexual interactions other than by asking and giving permission to do things to one another. Sex that is proposed via an invitation can be freely and gratefully accepted; describing such an acceptance as ‘consent’ brings in conceptual associations that tend to assimilate this quite different kind of interaction to the passive granting of permission.

The same goes for the kinds of sexual interactions John Gardner (2018) describes as ‘teamwork sex’—sex that cannot properly be conceptualized as one person acting on another, but is rather a matter of a collective team—composed of two (or more) sex partners acting as a group agent. This, Gardner suggests, should be the standard model for good sex; he suggests that ‘consent’ is a poorly suited label to describe it:

[W]hen the sexual going is good, consent is also unnecessary. Before you explode, bear in mind that my case proceeds, not from the thought that consent is too high an expectation for our sex lives, but rather from the thought that it is too low an expectation. Ideally, I suggest, the question of consent does not arise between sexual partners, for the question of consent belongs to sex individualistically, even solipsistically, conceived, to sex conceived as something that one person does to another (even if, in the course of their sexual encounter, the individuals concerned take scrupulously equitable turns in being the doer and the done to). The proper antidote to this somewhat melancholy conception of sex, or of what sex can be, is not to replace what Lacey calls the ‘individualised notion of consent’ with some refurbished (and perhaps less individualised) notion of consent, but rather to replace the emphasis on consent, which cannot but be individualised, with an emphasis on some less individualised notions. (Gardner 2018: 60)

I agree.

This series of stereotypes about sex contributes to rape culture. Despite the good intentions underwriting so much consent-centred discourse about sex, that discourse actually has a tendency to reinforce those harmful stereotypes, because consent itself is deeply tied up with closely related inference tickets. One cannot use consent to emphasize the importance of critiquing the presupposition foundations of a sexist set of norms around sex, when thinking about consent itself carries the same presuppositions. Too much focus on consent perpetuates hermeneutical injustice.

IX. Ameliorative analyses and inflationary consent

I do not expect many consent theorists to be easily and quickly persuaded by my critique. Many of the conceptual associations I am discussing are ones most consent theorists will wish to disclaim. For example, I said in Section VIII that the idea of A  giving consent to B  tends to imply that B  is the one who wants it, and A  is in a mere passive, permission-giving role, and that in the case of sex, it’s generally assumed that women are giving consent to men. But many contemporary consent theorists are explicit that this isn’t what they mean by ‘consent’—they think that consent should be enthusiastic, and mutual, and they always remember to specify that all parties and all genders need to make sure they have consent before having sex.

I do not question the sincerity of these commitments, but I am sceptical about their efficacy. Words, concepts, and their deeply associated stereotypes are powerful things, and those stereotypes can’t simply be stipulated away by fiat. Recall that inference tickets can persist despite the recognition of exceptions. So just because someone is happy to affirm that all parties to sexual interactions need to consent to them, it doesn’t follow that they aren’t powerfully affected by a set of stereotypical connections that make it very natural to infer that sexual consent is typically a matter of women gatekeeping men’s desired actions. This is one of the respects in which words are powerful, and one’s choice of words is far from arbitrary. Attempts to stipulate new meanings for old words risk carrying along old and unwanted associations, hidden below the surface. In Ichikawa (2020: 25), I analogized this point about ‘consent’ to ill-fated twentieth-century attempts to stipulate a gender-neutral sense of the male pronoun ‘he’.

The consent theorists I’m critiquing quite often do have illuminating, helpful, and progressive things to say about sexual ethics. They emphasize the importance of good communication, mutual desire, prioritization of one’s partner’s preferences, and attention to subtle but important communicative signals, and the like. Such an advice, quite often, is an expression of moral wisdom. My complaint is with the idea that this wisdom is well expressed as a matter of consent.

Sometimes—motivated, I expect, by the Wrong|$\rightarrow$|No Consent  inference ticket—consent theorists attempt to develop inflationary characterizations of consent, which are stipulated to include features recognized as morally important for ethical sexual interactions. I have in mind the suggestions that genuine sexual consent must be enthusiastic, or mutual, or continual, or an expression of one’s authentic desire. This kind of consent theorist may think that many of the points I’ve raised above miss their target, because I am falsely assuming that sexual consent has the same features that consent in other areas does. They may agree, for example, that, ordinarily, talking of A  consenting to B  doing something implies that it’s something A  wants and B  is at best open to, but maintain that this is irrelevant for consent theory in sexual ethics, where consent is stipulated to involve mutual desire.²⁹

As I observed above, however, many of the stereotypes attached to consent do tend to attach to sex, and reinforcing connections between consent and sex are likely to make those connections stronger. One can continue to specify that by ‘consent’ one means something more subtle, more complicated, more sensitive to moral insight³⁰—this seems to be the standard strategy in mainstream liberal culture at present—but eventually, it is right to ask what point these growing conceptual distortions serve.

I don’t assume that there couldn’t be a good answer to that question—as philosophers working in the tradition of ameliorative analysis and conceptual engineering have observed, there can be a good reason to pursue campaigns of conceptual change.³¹ (Indeed, broadly speaking, worries about hermeneutical injustice might be excellent reasons to pursue such conceptual reform.) But if one is pursuing a revisionary analysis, one should have a good reason, and one’s revisionary moves should be motivated by well-conceived goals about what role the analysandum ought to play. I think that in recent decades, many theorists and activists have simply assumed that the role consent should play in sexual ethics is to demarcate the boundaries of morally legitimate sexual interaction. This paper contributes to a growing body of literature challenging that assumption.³²

What are the alternative, better ways to discuss sexual ethics? They needn’t look all that different from what many inflationary consent theorists say. It is important to attend sensitively and respectfully to one’s partner’s sexual interests and desires, including ones communicated subtly.³³ It is good to ensure that one has sufficient evidence that a particular activity falls within one’s partner’s permissive intention, before engaging in that activity.³⁴ It is good for sex to involve mutual, dynamic, erotic desire.³⁵ But—as the last few sentences I just wrote illustrate—one can make these points without doing so in the language of consent. If the general thrust of this paper is correct, doing so is a way to diminish hermeneutical injustice.³⁶

Footnotes

References