Three Problems with Sexual Autonomy

Taken from Dr. Timothy Hsiao’s article, Consenting Adults, Sex, and Natural Law Theory, [Philosophia, vol. 44, 2016], pp. 3-6…

“Bad Consent

The first and perhaps most obvious problem is that we can consent to activities that are bad for us. Self-injury is one such example. Someone who enjoys cutting himself simply because he finds the experience to be pleasurable is not acting as he should, even if he voluntarily initiates the activity and sincerely finds it to be a fulfilling part of his life. Or consider “transabled” persons who genuinely desire for some healthy part of their body to be amputated. The mere fact that one may find deep psychological fulfillment in living as an amputee does not justify the amputation of an otherwise healthy limb. What these examples show is that what we can consent to is not always what we should consent to.2 Since we can consent to things that we should not consent to, it follows that consent alone isn’t sufficient to morally justify some activity.

One response to these kinds of cases might be to distinguish between mere consent and informed or ideal consent. That is to say, one’s consent is valid only if he is aware of the relevant facts regarding what he is consenting to. Self-harmers, we might say, do not fully understand the self-destructive consequences of their actions. Their actions were not truly informed, and hence they never validly consented. If they had really understood the consequences of what they were about to do, then they would have chosen otherwise.

However, if informed or ideal consent is just a matter of knowing the risks of one’s actions, then it is quite conceivable that someone may still freely choose to pursue self-destructive activities, having understood and accepted the risks. Adopting a heightened standard of consent might rule out some of these cases, but it is not strong enough to rule out all them.

Perhaps one might make the stronger claim that someone who is aware of the risks of self-harm would, by that very fact, know that it is something that should not be done. But why think that a sufficiently informed person would not choose to engage in self-destructive activities? If the answer is that a sufficiently informed person would know what is truly good for him and thus act accordingly, then what is doing the justificatory work is no longer his consent, but his knowledge of some further fact that works to constrain his decision-making. This appeal to a more basic moral standard beyond mere consent ends up betraying the liberal position; for by conceding this, one acknowledges that consent has value only insofar as it is used to make decisions based on knowledge of what is truly good for us. The value of consent lies not in the ability to make our own decisions, but in making the right decisions. The issue then becomes one of determining what is in fact good for us as human beings.

Dismissing these cases as examples of mental illness fail for the same reason. Although it is true that many people who desire to harm themselves are in fact mentally ill, the explanation for why their condition constitutes a mental illness will have to do with the fact that they are led to make disordered choices. But evaluating a choice as disordered can only make sense if we have some understanding of what a proper choice should look like, an understanding that is rooted in our knowledge of how human beings ought to function. Indeed, as Leon Kass (1975) has observed, the very aim of medicine itself is the restoration of proper bodily function.

Alternatively, a proponent of liberal sexual ethics might simply choose to bite the bullet and grant that the kinds of self-destructive activities previously mentioned are in fact morally permissible. Allowing persons the right to engage in actions that are admittedly self-destructive and counterintuitive, on this view, is the only consistent way of affirming the inherent value of personal autonomy and individual freedom for everyone. The moral right to personal autonomy grants each person the right to determine how he wants to live. For some, that may involve lifestyles that are radically different from what we are typically accustomed to. Nevertheless, these life choices must be respected.

This reply provides a way out of my first objection. But for many, conceding this may be too high a price to pay. Most of us have the firm intuition that there is something deeply wrong with a person who chooses to harm oneself or amputate a healthy limb for sheer psychological satisfaction, even if the consequences are understood and voluntarily assumed. Our intuitions on such matters provide a prima facie source of moral wisdom that should not be discarded so lightly. 3 A theory which permitted this would constitute its own refutation.

That said, my case against liberal sexual ethics is not based on intuition alone. In what follows I offer two more objections, both of which expose deep conceptual problems in appealing to consent.

Consent Lacks Inherent Moral Power

A second (and more fundamental) problem with any consent-based sexual ethic is that it simply misunderstands how consent works. We can think of the act of consent as conferring a moral stamp of approval on some activity. Consent works by giving permission for someone to do something that would have otherwise been forbidden.4 If I consent for you to perform some action, then the fact of my consent is what gives you the authorization or permission to act accordingly.

However, my consenting to an activity only legitimates it if I already have the authority to authorize that activity. If I do not, then my consent has no normative force despite whatever verbal assent I may give. This is because consent, considered by itself, lacks any intrinsic moral power. I cannot, for example, legitimately consent for you to take your neighbor’s property, since I have no right to control his property to begin with. I may say that I am giving you permission, but my consent is meaningless because it does not proceed from an authoritative basis. Consent is not a “moral master key” that can magically authorize just anything. Consent can only authorize some activity if that activity is already permissible for the person authorizing it.5 Treating consent as the “touchstone of morally permissible sex,” as Primoratz puts it, is putting the cart before the horse. Whatever moral power we may attribute to consent, this power must be derivative of more basic moral facts that render consent meaningful.

Put another way, consent only has moral power when considered under the backdrop of an underlying moral theory, similar to how the normative force of a policeman’s commands depend essentially on his occupying a position of authority. His commands are authoritative not because of the fact that they are commands, but because they originate from a position of authority that bestows them with normative force. Since the legitimacy of consent is dependent on a pre-existing moral framework, the question we should ask is whether we have any pre-existing duties or obligations that restrict the scope of what we are allowed to consent to. It therefore begs the question to appeal to consent alone to establish the moral permissibility of certain kinds of sexual activity, since consent can only justify these activities within the context of a moral theory that already allows them.

None of this should be taken as saying that consent plays no justificatory role in ethics. Rather, the point is that the power of consent is derivative from a more basic framework, and that this framework ought to be the main subject of ethical inquiry. These same points apply to the autonomy arguments considered earlier. Like consent, the legitimate exercise of autonomy is limited by what is already morally permissible. The mere fact that something is chosen does not make it right.

When it comes to self-ownership, it does not immediately follow from the fact that one owns himself (assuming that this is coherent) that his use-rights over his own body are absolute and unlimited. Ownership of something like a cell phone, watch, or pencil plausibly entails an exclusive right to determine how it may be used. But why think that this is analogous to persons, who constitute a very different type of thing? The reason why we think that it is permissible to do whatever we want to our “mere property” (short of harming others) is because we implicitly understand that cell phones, watches, pencils, and the like aren’t items with basic dignity or intrinsic value. But unlike a cell phone or pencil, persons are moral agents with rights and responsibilities who stand in certain relations to themselves and others. In Kantian terms, persons are intrinsically valuable as ends-in-themselves, whereas mere objects are valuable only as means to further ends.

This radical difference between persons and mere property implies very different standards of treatment between the two. The reason why I can do whatever I want to my watch (such as sell it or smash it) is because there are no morally salient facts about the watch that limit what I can do with it. The watch is a non-moral entity, and as such as I can use without regard to its own well-being.6 This explains why my right of ownership over “mere property” is unlimited. But if we substitute the watch with something that has inherent moral worth and which can be harmed in morally salient ways, then my use-rights are limited by its well-being.7 Like consent and autonomy, the scope of ownership and use-rights is constrained by more basic moral facts.

Thus, if we own ourselves, then we own ourselves in a way that is very different from how we own mere property. Our nature as moral beings sets limits on the scope of what we may do to ourselves in the name of self-ownership. Since these limits are derived from some underlying moral theory, it doesn't follow from the mere fact of self-ownership that we have an absolute right to do whatever we want to ourselves. This is especially true if we have duties to ourselves (something many religious and philosophical traditions have maintained). By appealing to self-ownership as an argument in support of certain controversial sexual practices, one simply begs the question by assuming the truth of the very philosophical anthropology being debated.

The Purpose of Consent is to Choose Real Goods

A third problem with a consent-based sexual ethic is that it neglects to take seriously the nature of consent. The power to consent and make autonomous choices has a purpose, and that purpose is to endorse only those actions that are truly good for us. This, along with the previous objection that the moral power of consent depends on some underlying moral framework, explains why some acts of consent are licit and others are not. Thus, the extent to which appeals to consent can render some sexual activity morally permissible is constrained by whether that activity is truly good for us.

The defender of a consent-based ethic might reply by saying that certain sexual activities are in fact good for us, and so consenting to them is perfectly consistent with respecting the purpose of consent. But this needs an argument. It is not something that can be shown merely by appealing to the fact of consent. In other words, one needs to state and argue for a comprehensive theory of human flourishing or some basic moral standard. Any such theory, if it is to be non-circular, must appeal to facts beyond mere consent, autonomy, or self-ownership. While advocates of traditional sexual morality have offered powerful defenses of their underlying philosophical anthropology, this task has been ignored by defenders of liberal sexual morality.8”