Abstract
This journal has frequently taken the position that consent, or at least informed consent, is all that from a secular viewpoint is necessary for an activity to be ethical. We argue to the contrary, that consent is and only is a political criterion for determining criminality—even for a libertarian. Consensual behavior can be unethical—although it should not be criminalized—if the consent will never be truly revocable in the future or if such revocability is severely compromised. We give three examples, one from common experience, and two from the areas normally covered in this journal.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Block (2000), at p. 11. I do not endorse this article; blackmail is execrable.
Block (1997), at p. 246. See comment, supra, note 1.
I would also add “privacy rights,” because I regard them as a species of property rights. See Fulda 2001.
Whether adultery is consensual, as is so-often claimed, is by no means clear. It depends on whose consent matters and thus on how consent is defined; this issue is well beyond the scope of this article.
Also beyond the scope of this article is how consent is signaled, negotiated, recognized, and the like. These are three naturally separate issues: What consent allows and in what contexts and what it does not allow and in what contexts; what consent consists of, its nature and definition; and finally, how the participants [can] know something is consensual. This paper is concerned with the first of these issues alone.
Card (2002), at p. 174.
This is really not surprising; if one wanted to reproduce and see one's offspring to maturity, one had to begin procreating exceptionally early, given the short life span of the bulk of mankind in the past and in some countries today.
A referee pointed out that both Hagen in 2003 (theoretically) and Rind, Tromovitch, and Bauserman in 1998 (this one an empirical, meta-analytic study) have questioned how much damage sexual abuse does to minors. The present author sees no relevance in either study. Both deal with sexual abuse, not noninjurious, noncoercive, nondeceptive, child-initiated sex, for one thing. For another, all sexual abuse violates the consensual norm; the question here is a normally contrary-to-fact question: Namely, whether if that norm were not violated, the behavior would nevertheless be unethical. Perhaps the referee meant to suggest that if one can “break free” from abuse, one can a fortiori break free from consensual relationships. This does not follow.
The former is arguably best—for the child, at least—forgotten and buried or, alternatively, reconstructed positively (although for society's sake, it is quite obviously best punished); the latter is quite another matter.
Downing (2004).
Because consensual lust-murder pacts preclude consent to anything in the future, not just merely to revoking a single pattern of consent, it is conceptually different. The same, of course, goes for suicide bombers. Thus, there is a role for government in these instances; in the case of suicide bombers, the role might be life imprisonment, not execution. Execution gives them the martyrdom they seek. No suicide bomber wants to spend a lifetime in a federal prison. Contrary to popular belief, they are afraid of punishment, just not capital punishment.
References
Block, W. (1997). The case for de-criminalizing blackmail: A reply to Lindgren and Campbell, 24 W. St. U. L. Rev. 225.
Block, W. (2000). Blackmail is private justice—A reply to Brown, 34 U.B.C. L. Rev. 11.
Card, C. (2002). What’s wrong with adult-child sex. Journal of Social Philosophy, 33, 170–177.
Downing, L. (2004). On the limits of sexual ethics: The phenomenology of autassassinophilia. Sexuality and Culture, 8(1), 3–17.
Fulda, J. S. (2001). Reputation as property, and its relation to privacy. Computers and Society, 31(1), 27–28.
Godbeer, R. (2002). Sexual revolution in early America. Baltimore: Johns Hopkins University Press.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Fulda, J.S. The Limits of Consent. Sexuality & Culture 17, 659–665 (2013). https://doi.org/10.1007/s12119-013-9168-3
Published:
Issue Date:
DOI: https://doi.org/10.1007/s12119-013-9168-3