Best explanation and sexual ethics

Consider three ethical claims about sexuality:

1. Rape is always wrong.

2. Incest is always wrong.

3. Bestiality is always wrong.

Take these claims in the strong sense: they hold genuinely always, no matter what the circumstances. Rape is wrong even if the victim is in a coma, is unharmed physically, permission is given by a proxy, and nobody (including the victim) ever finds out. Incest is wrong even between consenting adult relatives raised apart, with no chance of conception. Bestiality is wrong no matter whether the animal is aware of the event, and no matter how low on the evolutionary scale the animal falls or how much the animal wants the act. All these things are wrong even if much rides on them: they are wrong even to save multiple lives, including the life of the victim in case (1).

Now, although it is easy to find ethical views of sexuality that explain why rape, incest and bestiality are almost always wrong, it is hard to find coherent and well-developed views that explain why these are always wrong. But such views do exist. I know of two families of them: there are traditional natural law views and there are views like those of Karol Wojtyla which meld natural law with personalism (my One Body is in this category). However, these two families of views also entail highly controversial further prohibitions on unmarried sexuality, artificial contraception and same-sex sexual activity.

This yields an indirect inference to best explanation argument for the controversial further prohibitions: the best views we have that explain (1)–(3) also entail these further prohibitions.

Of course, one can try to turn the argument around. But I think generally speaking we have better epistemic access to what is forbidden than what is permissible, and so arguing from commonly accepted prohibitions to controversial prohibitions is better than arguing from commonly accepted permissions to controversial permissions.

I am not saying that those who deny the controversial prohibitions need to deny that (1)–(3) are exceptionlessly true to be consistent. I am just saying that they probably aren't going to have a good explanation for why (1)–(3) are exceptionlessly true.

The consent norm for sexual activity is insufficient

Consider the thesis that consent is the only norm of sexual activity. Of course, this does not imply the crazy claim that every consensual sexual act is permissible. Some consensual sexual acts violate promises, or constitute the neglect of some non-sexual responsibility (e.g., sex while driving), or just have sufficiently bad consequences for one or more people. Rather, the thesis can be taken to say that consent is the only norm of sexual activity as sexual, that it is the only distinctively sexual norm.

The thesis is still false. To see this, we will need a distinction between things that are very wrong and things that are wrong but not very wrong. Then:

1. Every case of coitus without consent is a case of rape.
2. Every case of rape is gravely wrong as a sexual act.
3. There is a case of coitus which is wrong as sexual but not gravely wrong.
4. So, there is a case of coitus which is not rape but is wrong as sexual. (2 and 3)
5. So, there is a case of coitus which is wrong as sexual even though there is consent. (1 and 4)

(When I say that a case of coitus is wrong, I mean that at least one party responsible for the coitus is in the wrong. That party could be one of the participants in coitus, but need not be: a rapist does not actually have to participate in the act of coitus, but could instead force two other people to engage in coitus with themselves.)

I think premise 3 is very plausible. It would be quite surprising if sexual wrongness of coitus only came in grave and not-at-all varieties, with nothing in between. But I can also offer an argument for premise 3 (I’ve used this argument in a previous post which gave a similar but perhaps less clear argument) assuming that consent is the only norm of sexual activity—the target of my argument obviously can’t dispute that.

We imagine a continuum of cases of coitus, where at one extreme there clearly is no consent and at the other extreme there clearly is consent.

(For instance, it could be a set of cases where a party threatens an adverse consequence if coitus is not engaged in: at one end, the consequence is torture and at the other end it’s a minor expression of minor displeasure. Accepting coitus as an alternative to torture is not consent. Accepting coitus as an alternative to witnessing a minor expression of minor displeasure can be consent (assuming that minor displeasure is all there is; obviously, minor displeasure from a tyrant could have further adverse consequences—including torture and death).)

Assuming consent is the only norm of sexual activity, there is no sexual wrong at the consent end of the continuum and there is grave sexual wrong by (1) and (2) at the no-consent end of the continuum. Given continuous variation in cases, we would expect continuous variation in wrongdoing. So if at one end we have grave sexual wrong and at the other end no sexual sexual wrong, somewhere in the middle there should be a case of non-grave sexual wrong, which is what premise (3) says.

Note how the enthusiastic consent alternative to the consent norm nicely escapes the argument. For the proponent of the enthusiastic consent norm case can agree to (2) but say that there are some non-grave sexual wrongs. These non-grave sexual wrongs could, for instance, include some of the cases where there is consent but the consent is insufficiently enthusiastic.

Pragmatically speaking, this is a risky argument to use in teaching. The problem is that a student might try to get out of the argument by denying premise (2) which, given the rape problem on many campuses, would be very bad. On the other hand, if students have a sufficiently strong commitment to (2), this argument could have positive consequences for campus sexual culture by getting them to realize that minimally-valid consent is not enough for permissibility (even if by definition it is enough to make the act not be a case of rape).

Philosophically, there is a technical weakness in that the notion of a sexually wrong act is a bit foggy. I think one can reformulate the argument by dropping the “sexual” qualifier in the argument but specializing to cases where there is no promise breaking, there are no bad non-sexual consequences, etc. But it’s hard to explicate the “etc.”

Actions that are gravely wrong for qualitative reasons

Some types of wrongdoing vary in degree of seriousness from minor to grave. Stealing a dollar from a billionaire is trivially wrong while stealing a thousand dollars from someone poor is gravely wrong. A poke in the back with a finger and breaking someone’s leg with a carefully executed kick can both be instances of battery, but the former is likely to be a minor wrong while the latter is apt to be grave.

On the other hand, there are types of wrongdoing that are always grave. An uninteresting (for my purposes) case is where the gravity is guaranteed because the description of wrongdoing includes a grave-making quantitative feature as in the case of “grand theft” or “grevious bodily harm”. The more interesting case is where for qualitative reasons the wrongdoing is always grave. For instance, murder and rape. There are no trivial murders or minor rapes.

Of course, even if a type of act is always seriously wrong, the degree of culpability might be slight, say due to lack of freedom or invincible ignorance. Think of someone brainwashed into murder, but who still has a slight sense of moral discomfort—although her action is gravely wrong, she may be only slightly culpable. My interest right now, however, is in the degree of wrongness rather than of culpability.

We can now distinguish types of wrongdoing that are always grave for qualitative reasons from those that are always grave merely for quantitative reasons. Here is a fairly precise characterization: if W is a type of wrongdoing that is always grave for qualitative reasons, then there is no sequence of acts, starting with a case of W, and with merely quantitative differences between the acts, such that the sequence ends with an act that isn’t grave. Grand theft and grevious bodily harm are examples of types of wrongdoings that are always grave merely for quantitative reasons.

On the other hand, it is intuitively plausible that murder and rape are not gravely wrong for merely quantitative reasons. If this intuition is correct, then we get some very interesting substantive consequences. In the case of rape, I’ve explored some relevant issues in a past post, so I want to focus on murder here.

The first consequence of taking murder to be always gravely wrong for qualitative reasons is that there is no continuous scale of mental abilities (whether of first or second potentiality) that takes us from people to lower animals. An unjustified killing of a lower animal is only a minor wrong (take this to constrain what “lower” means). If there were a continuous scale of mental abilities from people to lower animals, then murder would be gravely wrong only for quantitative reasons: because the victim’s mental abilities lie on such-and-such a position on the scale. So once we admit that murder is gravely wrong for qualitative reasons, we have to suppose a qualitative gap in the spectrum of mental abilities. This probably requires the rejection of naturalism.

A second consequence is that if killing a consenting adult in normal health is murder—which it is—then euthanasia is gravely wrong. For variation in health and comfort is merely quantitative, and one cannot go from a case of murder to something that isn’t gravely wrong by merely quantitative variation, since murder is always gravely wrong for qualitative reasons.

I suspect there are a number of other very interesting consequences of taking murder to be gravely wrong for qualitative reasons. I think these consequences will motivate some people to give up on the claim that murder is gravely wrong for qualitative reasons. But I think we should hold on to that claim and accept the consequences.

A puzzle about medicine and war

The following seem to be true:

1. It is never permissible for the state to force on a non-consenting innocent patient medical procedures very likely to cause death.
2. It is sometimes permissible for the state to force a non-consenting drafted soldier to go to near certain death in a just war.

In regard to (1), the state can legitimately force patients to undergo medical operations involving minimal risk and invasiveness, at least as long as the patients have no conscientious objection to them (a restriction that has an obvious military analogue): vaccinations are the standard example. This is very puzzling: Why the distinction?

Here is a suggestive hint. We can imagine circumstances where a war against a vicious enemy could only be won by an attack by non-consenting draftees even though it was morally certain that most of the draftees would be captured and horrendous medical experiments would be done on them by the enemy. Such an attack could well be permissible, even though much less extreme medical experiments could not be intentionally imposed on non-consenting patients even for an equal good (say, to defeat some awful disease). This suggests a difference between directly imposing harms and acting in a way that is morally certain to lead to the self-same harms. This is exactly the sort of difference that the Principle of Double Effect is sensitive to. Someone who thinks that foreseeing/intending differences do not matter is probably not going to be able to make the distinction between enforced medical procedures and the draft.

At the same time, the Principle of Double Effect does not seem sufficient to remove the puzzle concerning (1) and (2), since it doesn't really get at what it is that is so special about medical procedures likely to cause death as opposed to military operations likely to cause death. Probably another part of the puzzle has to do with the integrity of the body. But it's tricky: the importance of bodily integrity is not enough to make all enforced medicine wrong. It seems that the state can legitimately require procedures that are minimally invasive and minimally risky, but cannot legitimately require procedures that are minimally invasive but highly risky (think of injecting someone with a vaccine versus injecting someone with a fully functional virus).

Maybe it's like this: the fact that an intentional procedure directly transgresses bodily integrity typically calls for consent. But in at least some cases where someone's lack of consent is strongly irrational, that lack of consent can be overridden for a sufficiently good cause. But where the lack of consent is at least somewhat rational, the lack of consent cannot be overridden. When the risks are minimal, the lack of consent is strongly irrational, barring conscientious objection. But when the risks are high, lack of consent is at least somewhat rational. Medical procedures always transgress bodily integrity, so we get (1). On the other hand, commanding an attack likely to lead to death (or torture or being the victim of vicious medical experiments) does not transgress bodily integrity, and so a completely different set of standards for consent and authorization is in place. This is a mere sketch. I am not sure the details can be worked out.

Notice, also, that the account in the preceding paragraph does not apply to sexual cases. Even if someone's lack of consent to sex is strongly irrational (imagine a contrived case where a married person for completely irrational or even malicious reasons refuses to have sex with a spouse, despite the fact that great benefits would come to society from their having sex--perhaps a killer robot has been programmed by a mad scientist to stop its rampage only if they have sex), it is wrong for the state to force the person to have sex. Once again, sex is morally exceptional.

Consent and sex

Here are some facts about sex and consent.

1. Without valid consent, sex is always seriously wrong.
2. Merely proxy consent for sex (say, by parents on behalf of a child) is never valid.
3. Child consent for sex is never valid.
4. Consent may be withdrawn at any time when discontinuation is still possible.

And yet:

5. Sometimes sex is permissible (with consent, of course).

There aren't many cases other than sex where the analogues of 1-5 apply. Here's one potential such case. The Nuremberg code forbids medical experiments that involve a significant risk of serious injury or death to a healthy subject, except in the case of self-experimentation, assuming the other conditions of the code are met. But if such self-experimentation is permissible, it seems likely that it would be morally permissible (though we may have good reasons to rule it out in professional medical ethics codes) to hire someone to perform such experiments on one. To do such experiments without valid consent from the employer/subject would be seriously wrong, neither proxy nor child consent would be sufficient for validity, and one would have to stop whenever consent was withdrawn.

But notice an important feature of the medical experiment case: the reason these strong consent restrictions are in play is because of the significant risk of serious injury or death. If one modifies the experiment to make the risk insignificant, weaker consent standards come into play. In particular, parents will then be validly able to consent.

But in the case of sex, the reason for the strong consent standards does not come from risks of injury or death, whether physical or psychological. For we can suppose a case where the person is unconscious, where 100% effective prophylactics are used and where the person will never be informed of the event, and hence there is no danger of physical or psychological injury. Even so, the strong consent standards for sex apply. For instance, merely proxy consent is still not sufficient.

Notice, too, another interesting feature of the medical experiment case. Even when the experiments are done in a moral good way, it is regrettable that there was no other way of getting the benefits. But sex isn't like that: when it is engaged in in a morally good way, typically there is nothing regrettable about it--quite the opposite.

So there seems to be something exceptional about sex and consent. The other cases where such strong requirements of consent need to be in place are look to be cases where one needs permission to impose something very bad on someone. That's not what's going on in sex. What is going on? My view is that sex is tied very closely to love, and love requires freedom... But filling out detail isn't easy.

Consent is not sufficient for permissibility of sex

Rape isn't just wrong, but it is historically among the handful of the very worst types of crimes, sharing that unhappy position with murder, torture and treason. I take it that every instance of rape is very seriously wrong.

But now consider a spectrum of sexual acts: on one of the spectrum is a sexual act motivated by the man threatening the woman with death; on the other end of the spectrum is a sexual act motivated by the man threatening the woman that if she doesn't have sex with him, he won't take her out to the movie that they planned to go to. In the death case, the sex is non-consensual and hence rape. In the no-movie case, the sex is consensual and hence not rape: the threat is way too mild to invalidate consent.

Somewhere in that spectrum is a transition--be it vague or not--between non-consent and consent and hence between rape and non-rape. But every instance of rape is very seriously wrong. When we have continuously transitioned away from a very serious wrong, we shouldn't expect to immediately land in the territory of moral innocence. Rather, we should expect to land either in the territory of another wrong, either another very serious wrong or a "merely" serious wrong. If we start with an act of torture and continuously reduce the degree of pain, eventually we will get an act that isn't torture--but an act that falls somewhat short of the amount of pain needed for it to count as torture is still a serious battery.

Thus we should expect there to be sexual acts that are consensual, but seriously wrong because they are neighbors to rape. Moreover, we should expect that these acts will still wrong for reasons connected to their sexual nature, just as rape is very seriously wrong for reasons connected to its sexual nature. Consent, thus, is necessary but not sufficient for sexual integrity.

Here's a different way to put the argument. If one thinks that consent is the only condition needed for the permissibility of sex (with respect to sexual integrity--of course, there are other conditions, such as whether promises are broken, etc., but they aren't properly sexual), then one has to think either that (a) we have a transition from a very seriously wrong act to a completely innocent act in the above spectrum without any intermediate cases that are wrong but not seriously so, or (b) there are cases of rape that are non-seriously wrong. I think (a) is implausible and (b) is clearly false.

The spectrum I generated above was based on a spectrum of threats. But one can also generate a spectrum based on degrees of sobriety, degrees of understanding, clarity of expression (consent is a speech act), etc.

This has an important consequence particularly relevant to college judicial policies: If acts that aren't rape but are close to rape are seriously wrong, then in cases where it cannot be shown that a rape occurred, but it can be shown that either a rape occurred or a serious wrong close to rape occurred, it can still be just to levy serious punishment. Of course, this would require due process, and hence a way to operationalize the notion of such acts close to rape.

Note 1: None of my argument is meant to give aid or comfort to those who want to narrow the definition of rape. Rather the point is to widen the scope of wrong acts, for instance in the way that the "enthusiastic consent" movement does.

Note 2: The argument I am giving is not a sorites. Vagueness complicates the argument, but does not, I think, destroy it.

Seduction, advertising and provocative dress

Thesis: It is wrong to intentionally attempt to sexually excite another person without the other's consent.

I will argue for the Thesis in a moment. But at the moment, I want to clarify a few things and give some consequences. I take it to be a consequence of the Thesis that the following three actions are wrong:

1. Including sexually suggestive imagery in advertising in non-pornographic media in order that the viewer might be sexually excited and thus inclined to favor the product.
2. Dressing in a provocative way in public in order to sexually excite others.
3. Seducing another by trying to cause another to become sexually excited, when the other does not consent to being caused to become sexually excited, whether the means be a romantic dinner, ethanol, unfermented grape juice, a movie, a touch, a word, etc.

Both to clarify the Thesis and to explain why these follow from it, note first that consent is not the same as enjoyment or wishing. Thus, that a reader of a magazine might enjoy being sexually excited at a model in an ad does not entail that the reader consents to that excitement. One way to see this is to consider the following case. Yakov is a Jewish man who smells some delicious sweet and sour pork while walking by a Chinese restaurant. He wishes God had permitted him to eat sweet and sour pork. He then remembers that in Talmudic law, it is permissible to violate kashrut to save your life (except in times of religious persecution). The food smells so good that he desires that the cook should come out, point a gun at his head, and tell him to eat some sweet and sour pork. He would enjoy this, moreover. (Let's suppose he's a very brave man much given to pleasures of the palate, so the sight of a gun pointed at his head would not spoil the delicious taste.) However, the fact that he wishes the cook to do this, and that he would enjoy it, does not contradict the fact that he has not consented to having a gun placed to his head. One can desire something and know that one would enjoy it when it would come, but nonetheless not consent to it.[note 1]

Thus, even if it were true that the readers of a magazine would enjoy the sexual excitement, it would not follow that they consent to it. I do restrict claim (1) to the case of non-pornographic magazines, because the reader of a pornographic magazine can be presumed to give consent to being sexually excited by the contents. (This might be partly definitional of a pornographic magazine. I am not saying that there is nothing wrong with pornography, just that its wrongness does not follow from the Thesis.) Likewise, that someone comes to enjoy being seduced, and even comes to consent to its continuation, does not entail that the initial attempt to sexually excite was consented to. At the same time, consent can be implicit in a context, so this is not going to cover all cases of seduction (e.g., it will not cover seduction in the context of a relationship where such seduction is implicitly consented to and where the implicit consent is not withdrawn—again, I do not want to say that all consensual seduction is acceptable, but only that it does not violate the Thesis).

Observe, also, that expectation is not the same as consent. A person might expect that a popular non-pornographic magazine contains some provocative imagery, or that a date will try to seduce one, but expectation is not the same as consent. It should be no defense in a theft case that a man knew that a neighborhood was rife with muggers when he went out for a walk and hence he consensually handed over his wallet, so it wasn't theft.[note 2]

In any case, even if most readers of some non-pornographic magazine or most bystanders consented to being sexually excited, there would surely be some who did not, and if the intention was to excite all readers or all bystanders of the appropriate sex and sexual orientation, then some would be excited non-consensually, and a violation of the Thesis would occur.

What is kind of interesting about this argument is that many arguments against the sexual objectification of women have involved the harm to women from such objectification (see, e.g., Dworkin). While I think such arguments are basically sound, they miss out on a dimension of the question, which is that in many not overtly pornographic contexts the male viewers are not consenting to sexual excitation, and hence are being wronged.

I am assuming here that sexual excitement is a state of the person that includes some emotional and some physiological components, and that these physiological components involve, at least in part, the physiological state of the person's sexual systems.

Why should we believe the Thesis? I think it follows from the same considerations as make sexual assault be wrong. Sexual assault can range from full-scale violent rape to a sexual pat on the behind. What is common in all of these cases is that the contact is sexual in nature and not consented to. (Whether the contact is desired, wished for or enjoyed ought to be irrelevant to the question whether a sexual assault occurred, though obviously the more undesired the contact, the worse the crime.) It seems plausible to suppose that any sexual manipulation of parts of the physiological sexual systems of a person is wrong.[note 3] Nor should it matter much whether the manipulation is done directly by means of the assailant's body, or by the intermediate use of some tool. Even if the manipulation is done by means of the victim's own self without the victim's consent, this is surely sexual assault (think of the case of hypnotizing an unconsenting subject[note 4]).

Cases of intentionally sexually exciting someone are cases of intentionally manipulating the physiological sexual systems of the other. Hence if they are non-consensual, they are wrong for the same reasons that sexual assaults not involving physical contact are wrong. Hence the Thesis is true.

Interestingly, then, sexual assaults against men are not as rare as people think—I suspect a lot of ordinary magazines contain them.