The Right Coast

November 14, 2004
Consent -- to Sex and Otherwise
By Maimon Schwarzschild

I'm in snowy Colorado Springs for a law-and-philosophy conference on consent: consent to sex, mostly; but also consent to things like euthanasia, and even to bad commercial deals (when the alternatives, for instance, are even worse). The texts for the conference are two very good books on the subject: Alan Wertheimer's "Consent to Sexual Relations", and Peter Westen's "The Logic of Consent". The subject, like a lot of subjects, is more and more difficult the more you think about it. When is your "consent" to sex, say, legally or morally valid? Not, surely, if you are being threatened with a gun. But suppose the man says he will break up with you if you don't sleep with him? Suppose he says he really cares for you, when it's not true? Suppose your husband wants to have sex, you don't really feel like it, but you go along? Suppose you go to a fraternity party and get drunk? Suppose you are mildly retarded? Suppose you are not-so-mildly retarded? Suppose your child is ill and needs expensive treatment: you ask a rich acquaintance for help and he says he will give you money if you will sleep with him?

The conferees, including Westen and Wertheimer themselves, are mostly philosophers or law teachers with philosophical interests. You would expect philosophers to put forth general, abstract principles for assessing something like consent. (You might expect much the same from legal scholars.) And I think there is something of a consensus among the group at this symposium -- a very smart group, present company excluded -- that consent is usually valid if it is motivated by an offer, not a threat; and a threat is what would put you in a position that it would not be just (or legal) to put you in. But, perhaps not surprisingly, what people think about consent in all these cases turns out to depend a lot on the specific facts of the case. There are a million stories in the naked city. Not so easy to lay down principles for dealing with all of them.

PS Alan Wertheimer's book is published by Cambridge University Press, and is offered at a reasonable price, especially in paperback. Peter Westen's book is published by Ashgate, an academic publisher, and the price is very high indeed. This isn't Westen's fault in any way: these are the prices that academic publishers charge. This is TheRightCoast, and far be it from me to cavil at the market. (And it's very true: the alternatives to free markets are far worse.) Still, did I mention that academic publishers charge very high prices for their books?