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The question of sexual consent:
Between individual liberty and
human dignity
David Simard
Sexologies (2015) 24, e65—e69
Keywords: Sexual consent; Desire; Will; Sadomasochism;
Prostitution; Sex work; Human dignity
Summary: In sexual matters, the concept of consent has recently
come to the forefront. The concept allows a distinction to be made,
notably from a legal standpoint, between what is considered to be
raped and what is not. It is however a concept that is difficult to
define with any clarity; its boundaries are fuzzy and it is the subject
of much controversy, particularly with regard to the issues of
prostitution and sadomasochistic practices (BDSM) within the ethics
of sexuality. The purpose of this article is to attempt to clarify the
terms of the debate. It firstly questions the foundations of sexual
consent by analysing the differences or the conceptual confusion
between desire and will, based initially on a reading of the
philosophers of the 17th century René Descartes and Baruch
Spinoza, who have opposing ideas with regard to the position of
desire relative to intellect in human beings, before moving on to the
psychoanalyst Sigmund Freud, who introduces the idea of
unconscious desire. The article then shows that the impossibility of
absolute liberty, and therefore consent free of any constraint, leads
certain feminist organisations to question individual consent, even
when it has been clearly formulated, and to invoke against this the
notion of human dignity in a transcending sense, inspired by
Immanuel Kant, the German philosopher of the 18th century. This
concept is examined and studied in cases of prostitution and
sadomasochism (BDSM). The conceptual analysis ultimately reveals
the metaphysical nature both of the individualistic approach of
consent and of the Kant-inspired approach of human dignity.
Introduction
The concept of consent is central to the ethics of sexuality. It
permits a distinction to be made between what is considered to be
sexual assault and what is not. Now, this is not necessarily obvious
or to be taken for granted, given that there is on the one hand a
concept of consent based on will or disassociated from desire
(Caouette, 2015), and on the other hand a concept of consent based
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on desire, or which believes that consent to sexual relations when
these are not desired is consent to forcible entry and a source of
trauma (Martine, 2013). The question then arises of the value of
consent, when that to which one has consented appears to
contravene moral values that are upheld in society as being
important. The notion of human dignity is accordingly used by some
present-day feminists in order to reject consent to sexual relations
with prostitutes or which are sadomasochistic. It is these two issues,
that of consent being founded on desire or will on the one hand,
and that of the recognition of consent through a principle of
transcendence on the other hand, which will be hereafter
highlighted.
Some statistical data
Sexual assaults
According to the World Health Organisation (WHO), world-wide,
35% of women indicate that at some time in their life, they have
been exposed to sexual violence from their partner or someone else
(WHO, 2014). In the United States, according to the 2010 survey of
the National Center for Injury Prevention and Control of the Centers
for Disease Control and Prevention, 18.3% of women and 1.4% of
men state that they have been raped sometime over the course of
their life, and 44.6% of women and 22.2% of men state that they
have suffered other forms of sexual violence without penetration
(Black et al., 2011).
The figures for prostitution
With an entire section of prostitution dominated by criminal
networks and human trafficking, and given the high ideological
stakes that disrupt the principles of scientific research (Weitzer,
2005), it is difficult, if not impossible, to establish the number of
people throughout the world engaged in an activity of prostitution.
The figure of 40 to 42 million people practising prostitution
throughout the world is sometimes suggested (Charpenel, 2012).
Sadomasochistic practices and fantasies
There are very few figures available from surveys of the general
population on followers of sadomasochistic sexual practices. A 2008
study by the School of Public Health and Community Medicine of
the University of New South Wales in Australia, reports that 1.8% of
sexually active people stated that they had indulged in practices
which can be considered as BDSM in the year preceding the survey
(Richters et al., 2008). In France, there are statistical data to be
found in a survey dating back to 1993, coordinated by the INSERM
(National Institute of Health and Medical Research), which sought to
analyse sexual behaviour, not in terms of BDSM practices, but of the
related fantasies. According to this survey, the prevalence of
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fantasies involving punishment and bondage was very low, from 0.5
to 1.8% depending on the practices and the gender (Bajos et al.,
1998).
Consent, a matter of desire or will?
These statistical data relate to sexual relations without con-sent and
practices for which we shall look at the value of consent. The
question of the foundation of consent refers back to the idea we
have of human beings and of the way people interact. In a very
general sense, desire is an urge directed towards something. Will
could therefore very well be included under this heading, as could
need, longing, wishing, etc. However, such a jumble of definitions
does not permit us to think about concrete situations or to decide
between what does or does not form consent.
Desire as an action of will controlled by intellect: the Cartesian
approach
In the third maxim of his provisional moral code, in the Discourse on
the Method, Descartes stated that he should try to change his
desires rather than changing how things stand in the world
(Descartes, 1953 [1637]). For him, desire comes from will, and will is
only led to desire things presented to it by intellect. It is therefore
possible to change his desires since desire is will, and will is itself
controlled by intellect. Consent would then rest upon will
enlightened by intellect and would consist in the very determination
of desire in terms of the object of such desire through a rational
thought process.
Desire preceding intellect: the Spinozist concept
This approach to desire, in which it is preceded by intellect, would
be called into question on the one hand by Spinoza, a quasi-
contemporary of Descartes, and on the other hand by the founder
of psychoanalysis: Sigmund Freud. For Spinoza, to be a human being
is, fundamentally, to have desires. This primacy of desire in human
beings derives from the fact that it is inherent in the essence of any
creature to strive to per-severe in its being. Desire presents this
defining feature in which it is not merely the endeavour to
persevere in one’s being, but moreover the consciousness of this
endeavour (Spinoza, 1965 [1677]). Hence, desire precedes intellect
and, contrary to Descartes, Spinoza does not believe that intellect is
capable of changing desires. Desire as endeavour falling under the
heading of human essence precedes any object which may be
desired, and the objects which are acquired through desire are more
a function of the circumstances than of a reasoned choice which
might indicate to us one object or another as being desirable. Desire
can therefore no longer be considered the fruit of choice. Hence, if
to consent is to choose freely, desire cannot form the basis of
consent.
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Desire preceding intellect: the Freudian approach
Freud would go even further. For him, the partition between
desire/intellect takes the form of a partition between the
unconscious and conscious mind. At the point at which Spinoza
defined desire as the endeavour to persevere in one’s being,
accompanied by consciousness, the psychoanalyst places it firmly on
the side of the unconscious mind. Desire may in fact be prevented
from access to conscious mind by repression, and even the most
powerful desires are unconscious, whilst nevertheless remaining
active (Freud, 1968 [1915]). We can state at this juncture that if will
is considered to be the result of a conscious choice, whether
reasoned or not, then it is likely to be in opposition with desire,
insofar as this is repressed since it is not acceptable for many
different reasons. It seems under these conditions hazardous to
consider that consent must be founded on desire, namely ultimately
something which the person may wish to know nothing about. It
seems that will, which is on the side of consciousness, is more
appropriate. This does not mean that it has nothing to do with
unconscious desire. But since complete self-transparency cannot be
attained, it seems difficult to find a better basis for consent, which
cannot be defined by a liberty, which would consist in the absence
of any determinism or constraint.
Individual consent called into question
The impossibility for an individual to have absolute liberty is
doubtlessly the reason for some feminist organisations to be critical
with regard to consent (Abolition 2012, 2013). Another organisation
for which under certain conditions, consent is not admissible: the
UN. This organisation has indeed ruled that in circumstances
involving trafficking, the fact that the consent of a victim of
trafficking in persons to exploitation shall be irrelevant (Office on
Drugs and Crime, 2004).
Difficulties in evaluating the value of consent
But, for the French philosopher Geneviève Fraisse, this is not an
argument for challenging the authenticity of consent. It is in fact a
complicated and perilous undertaking to seek to enter a person’s
inner self in order to judge the value of his/her consent (Fraisse,
2007). Another philosopher, Michela Marzano, also concentrated on
the complexity of consent, where because on the one hand it is
impossible to reduce a person to what that person says, and
because on the other hand a person is not transparent to him- or
her-self, that his/her words may be loaded with ambivalence, and
that they are always spoken in a context beset with constraints and
conditioning, this does not authorise us to refute his/her words by
purporting to know, for him/her and better than him/her, what this
says about his/her desire (Marzano, 2006).
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Consent and constraints
It is within this logic that the UN protocol seems to fall. This does
not in fact hold consent in general to be irrelevant, but any consent
given under circumstances such as those in which it is taken into
account is judged not to be pertinent. Now, these circumstances are
relatively well-defined and cover elements upheld in court to be
classed as rape or sexual assault. It is therefore not enough for
consent to be expressed within a context in which certain
constraints prevail for it not to be taken into account; such
constraints must be specific and must themselves already be
reprehensible by law.
Dignity over and above consent
It is then a question of knowing to what extent an approach not
independent of the person can draw on elements external to the
latter in order to identify or morally condemn practices and
activities implying sexual relations, even when these are consented
to and where they do not constitute an offence or crime. It is here
that some feminist discourses, on sex work but also on
sadomasochism, invoke the predominance of human dignity.
The Kantian approach to the dignity of humanity
Dignity is understood to be conformity with a rank considered to be
loaded with a reference value. The opposite of dignity is therefore
any debasing of this value. It is a notion regularly invoked in ethical,
and more specifically bioethical, debates, but also nowadays in the
ethics of sexuality. The German philosopher Immanuel Kant often is
a reference in this. He presents the distinctive idea of referring the
concept of dignity simultaneously to the concepts of liberty,
autonomy and respect for the subject, and to the idea of a
transcendence which would go beyond any human being. He thus
articulates what is nowadays found to be in a relationship of
opposition, from a philosophical but also legal point of view,
between on the one hand dignity regarded as an attribute of the
subject which may be cited against a third party, and on the other
hand dignity regarded as an attribute of humanity, which transcends
people and which may be cited against them, and this even with
regard to whatever they might have consented to. The Kantian
approach leads us back however to the problematic idea of absolute
liberty, which embeds within the subject (the individual) the value of
his/her consent, which would itself be absolute. For Kant, it is this
possibility for reason to apply its own law, i.e. its autonomy and its
liberty, which constitutes its morality, and which forms its intrinsic
value. Every human being exists, according to him, as an end in
themselves and not merely as a means to be used by this or that will
at its discretion. This is what Kant describes as being the dignity of
human nature (Kant, 1848).
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Dignity as opposed to individual liberty
This absolute liberty is rejected by the feminists mentioned above.
For them, one must start out from very real life conditions, and take
into consideration the constraints that prevail under such
conditions. But instead of promoting a concept of liberty and of
consent as being relative, these feminist positions on the contrary
introduce another form of transcendence, placed in a vision of
human dignity detached from the will of the people involved,
permitting the consent of the latter to be ignored, even when clearly
formulated and when the level of prevailing constraint does not
involve force.
Transcending human dignity applied to sex work
The application of such an approach as far as sex work is concerned
has the effect of removing any distinction between sex work and
rape. Accordingly, anyone who performs sex work, and this
regardless of the conditions under which such work is performed, is
considered to be a victim. Thus, if the problems of consent reside in
the interaction between the individual sphere and the collective
sphere, the transcending position of human dignity will resolve the
tension between the two by taking the individual sphere out of the
equation.
Consent invalidated by a traumatic childhood experience?
Generally, the individual sphere is invoked by the transcending
position of human dignity in order to highlight reasons supposed to
take into account the formulation of the consent and disqualify it.
Abolitionist associations indeed assert that the majority of people
performing sex work suffered sexual abuse in their childhood, often
of an incestuous nature (cf. notably Poulin, 2003). This approach is
subject to controversy (Chaumont, 2012; Lilian, 2012). But the
philosophical question is to find out whether the fact of having
possibly experienced sexual trauma in childhood invalidates a priori
any expression of consent to sexual work at an adult age. This
question extends even beyond the field of sex work and sexuality to
apply to any form of consent. If we respond to the question in the
affirmative, we are back to the problem raised by Geneviève Fraisse,
where we are trying to judge the value of someone’s consent by
exploring that person’s inner self.
Desubjectivating human dignity
The rejection of the concept of liberty as absolute leads abolitionists
to refute any possible liberty, including non-absolutist, i.e. liberty
which is hinged, even problematically, on the notions of constraint
and conditioning. Human dignity then finds itself residing in the
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place left vacant by liberty, and is paradoxically then associated with
the failure to recognise human beings as responsible subjects.
Feminist tensions with regard to sadomasochism
The same type of issues can be found when it comes to
sadomasochistic practices (BDSM).
Defence of BDSM seen from an anthropological angle, by Gayle
Rubin
Debates about sadomasochism were particularly heated within
American feminist movements in the 1970s and 1980s. Several
radical feminists, such as Robin Ruth Linden, Diana Russell or Susan
Griffin, contributed to the collective work Against sadomasochism: a
radical feminist analysis (Linden et al., 1982). Several were also
members of the feminist group Women Against Violence in
Pornography and Media, against which the anthropologist Gayle
Rubin notably protested (Rubin, 2010). The latter thus founded in
1978 in San Francisco an association fighting for the rights of sado-
masochistic lesbians.
Human dignity and sadomasochism: a legal approach
It was only at the very end of the 20th century, during a process of
legal reflection, that the principle of human dignity would be raised
with regard to sadomasochistic practices. In 2005, the European
Court of Human Rights (ECHR) considered that ‘‘the ability to
conduct one’s life in a manner of one’s own choosing may also
include the opportunity to pursue activities perceived to be of a
physically or morally harmful or dangerous nature for the person
concerned’’ (ECHR first division, 2005). The legal expert Muriel
Fabre-Magnan considered that this ruling repudiated the primacy of
the concept of human dignity in favour of that of personal
autonomy (Fabre-Magnan, 2006). According to her, even in the case
of consent, no one can validly consent to being harmed in a manner
contrary to the dignity of human beings (Fabre-Magnan, 2007).
There again, therefore, human dignity functions as a transcending
principle, and even moves closer to its first hierarchical meaning of
dignitas (social or functional rank), which more than providing
entitlement to rights, confers a duty.
Conclusion
The different sides of the debate revolve around an individualistic
representation of liberty versus a collective and more political, if not
moral, representation of human beings. This dichotomy cannot
however summarise all the possible positions, which can be and are
adopted with regard to questions of consent and human dignity. By
giving priority to the individual over the group for that which
constitutes the very being of the individual or from the behavioural
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point of view, the fundamentally social condition of the human
being is relegated to second place by individualism (cf. Mill, 2006
[1843]). It is nevertheless true that there is something which
exceeds and precedes each individual taken in isolation, namely
social reality, which is not solely the sum of the individuals of which
it is composed. But the concept of human dignity inspired by Kant
reintroduces a form of transcendence of a religious or metaphysical
nature, and which raises both a philosophical and a political problem
for democracies, which are not merely anxious to preserve
individual liberties, but also secular liberties. Consent should
therefore be thought of as linking individual liberty to collective
principles, both of which should be inherent to human reality.
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