What is consent? With the #metoo movement dominating everything from our literature, to our screens and finally to our consciousness (hooray!) it’s time to reflect on what it actually means to give consent.
The word consent arises from the Latin consentire which literally translates as feel together – con meaning together and sentire to feel. Hence, the word is bound up by a language of emotion – to consent means not only to agree or yield to someone else’s desires verbally, but to actually feel in a way that is similar to someone else.
Let’s start with autonomy
Autonomy is pretty simple. It refers to someone’s right to do with themselves as they wish. That is, to be autonomous refers to an ability to be self-governing both in mind and body. Autonomy, therefore, relies on the idea that an individual is able to make rational choices using information that they have to hand. And in turn, (stay with me here) making a rational choice is about being able to use reason to decipher facts.
But what if these facts are false? What if you’ve made a reasoned decision and as such have consented to a sexual act, but have done so under false pretences. It seems pretty easy to say that an act is non-consensual in cases where someone is pretending to be someone else (see Gayle Newland 2017 case).
In those cases, the victim wasn’t able to fully execute their autonomy because although they thought they had the facts at the time, those facts turned out to be false. Although verbally Ms Newland’s victim may have consented, they were not feeling together. That is, they were not ‘on the same wavelength’. The act was not consensual.
Drawing the line
It seems obvious in the above case that the sexual deceit warrants calling the act non-consensual. Ms Newland pretended to be a man when she was, in fact, a woman, and had the victim known the truth, this fact would have changed the outcome.
But what about the 2014 case of Ricardo Agnant who posed as an NFL player to get laid. Sure, he shouldn’t have done it and it is morally questionable, but were those acts non-consensual on the basis that if the women had known he was lying they wouldn’t have consented? If you take that one step further, what if someone is cheating on you? If you knew they were lying then it would be a dealbreaker, but does that make it non-consensual?
As you can see, it’s very difficult to define what level of deceit constitutes a sexual violation or assault.
Is agreement to sex always consent?
No. If someone has sex with another person and uses false information to get them to consent, they have engaged in non-consensual sex. In deceiving your sexual partner, you’ve robbed them of the chance to make a fully autonomous decision. Tom Dougherty from Cambridge sums it up in his paper Sex, Lies and Consent:
“Deceiving someone into sex vitiates her consent to sex, and it is seriously wrong to have sex without someone’s valid consent to sex. Therefore, deceiving someone into sex is seriously wrong. The seriousness of this wrong is widely recognized when the deception involves, say, spousal impersonation. But it is wrongly overlooked in the case of run-of-the-mill deception.”
So, are we missing a crucial definition of consent in our conversations? Is run-of-the-mill deception sexual assault?
It seems obvious to me that if you know you’ve lied to someone to get them into bed, then that is sexual assault. Whilst I personally think there is a strong case for defining rape by fraud within the law but there does need to be a discussion about degrees of deception. Clearly, most cases of run-of-the-mill deception are a moral issue, not a legal one.
If you participate in gender or STI deception then that is obviously threatening to your partner’s ability to consent. But what about if you tell someone you’re not married when you are? What if a man tells a woman she’s beautiful to get her into bed? What if a woman tells a man she’s a natural blonde when she’s actually a brunette? (guilty!)
In theory, these should be counted the same. If you’ve been lied to in a way that would change your consent, then your consent at the time was intentionally misinformed and was therefore not valid. My point is, if we accept rape by fraud in cases of gender and STI deceit on that logic, what about run-of-the-mill deception?
Nicole Westmarland of Durham University ends my argument (for now) by pointing out that whilst lying to induce consent isn’t nice, it’s not deceptive in a way that is on par with rape. She comments:
“You could say that about face cream that promises to make you beautiful. That’s deception but it’s the degree of deception? It’s about what degree you go to…It’s not nice, but is it rape?”