Though people discuss consent in a variety of contexts, consent is perhaps most discussed in the contexts of medicine and sex. While there are obvious differences between consenting to a medical procedure and consenting to sex, there are also similarities between the concepts of consent. In both, valid consent is the kind of agreement that makes it permissible to do something to another’s body that would not otherwise be okay to do. It’s accepted that valid consent in either case cannot be coerced nor produced by deception.
It seems though that there are differences between medical and sexual consent yet to be explored. Specifically, there seems to be an asymmetry in the epistemic requirements of valid consent between the medical and the sexual domains. Valid consent to a medical procedure requires that consenters are sufficiently informed of relevant aspects of the procedure, alternative treatment options, and potential consequences. Medical professionals do their best to ensure these conditions are met.
On the other hand, what knowledge is one required to have in order to give valid sexual consent? Consider a paradigmatic case of sexual consent. Two people meet at a party, hit it off, go to one person’s house after the party, and at one point, end up having sex. When they consent, they merely affirm to each other that they want to have sex. Many people would consider this consent valid. There is comparatively very little information required to validly consent to sex. The epistemic requirements of medical consent are more demanding than those for sexual consent.
Is there a good reason for there to be less information required to validly consent to sex than a medical procedure?
One plausible justification for this asymmetry is that there are unique obligations to inform that physicians have to patients that don’t exist between sexual partners. According to the American Medical Association, physicians have professional duties to promote the well-being of their patients, and thus have a duty to ensure that patients are validly consenting to medical treatments. Not only must physicians refrain from deceiving patients, they also must make sure patients are well-positioned to make a choice that is reflective of their own interests.
If sexual partners do not have a duty to inform, then it could explain the lower standard for sexual consent. To evaluate if sexual partners have these obligations, consider the following case:
Uninformed Jim: Jim and Martha meet at a party and agree to go back to Jim’s house to have sex. Unfortunately, Jim falsely believes that sex consists in someone holding his left index finger in their hand. Martha does not know that Jim holds this belief, and upon receiving Jim’s verbal agreement to have “sex”, she proceeds to initiate penetrative sex, which Jim does not object to.
What can be said about this case? Martha has neither deceived nor coerced Jim. Martha could not have possibly been expected to know that Jim had such a radical misunderstanding of sex, especially given the short time they had known each other. If she had any suspicion of his false belief, she could have been more explicit in her proposition to Jim. If Jim would have objected to continuing with penetrative sex, then Martha could have been responsive to his rescinded agreement. It seems plausible that Martha has not forgone any epistemic obligations that she might have towards Jim.
However, the result of this is that it gives us the strange outcome that Jim’s consent is valid, where his consent really seems problematic at best. It would be peculiar to claim that one is consenting validly to some act when in fact they have an entirely false belief about what it entails. Jim is consenting to some act B and mistakenly calling it A. It seems that, though Martha is perhaps blameless for acting upon Jim’s token of invalid consent, that his consent is invalid nonetheless.
The differences in obligations between sex partners can explain why one is not blameworthy for having sex with someone, even if they are underinformed. It does not, however, explain whether someone’s sexual consent should be considered valid in the case that she is misinformed. Differences in relational obligations cannot go so far as to explain why the standards of valid consent should be asymmetric.
Barring other explanations that I consider elsewhere, we’re left with an unjustified asymmetry between consenting to a medical procedure and consenting to sex. My speculation is that the asymmetry exists because we have a larger and longer history of detailed thinking about consent in the medical context. Medical consent also has an extensive regulatory history that has led to clear consent requirements. Sexual consent lacks both extensive theoretical consideration and clear regulatory guidance. This theoretical and regulatory history has led the standards of medical consent to be more demanding and precise.
It seems that we have reason to alter our conditions of consent so that they are symmetrical. Either we make sexual consent more epistemically demanding or medical consent less so. There are at least two reasons in favor of amending sexual consent to be more demanding rather than make medical consent less demanding. First, increasing the demandingness of sexual consent can increase the protections to consenters. By increasing the epistemic standard of sexual consent, we better ensure that people know what they are consenting to when they consent to a token of sex, thus allowing them to make decisions that are in line with their interests.
Second, there are epistemic reasons to think that medical consent should be theoretically deferred to, and thus that sexual consent should be altered. The conditions of medical consent have been discussed within intellectual communities more extensively than sexual consent, which are comparatively recent and relatively lesser-examined. Why think that this history is morally significant in favor of the conditions of medical consent? It is evidence of the amount of research that has been conducted for these conditions. Though concepts of medical consent are not without their problems, it does not mean that they should not be preferred.
How might raising the epistemic standard for sex work? Minimally, it seems plausible that sexual consenters should be informed about the acts they are consenting to, as well as the risks and benefits associated with consenting. Future analysis will help delineate the epistemic guidelines for consent and assist in making precise the obligations that sexual partners have to one another in light of a more demanding sexual consent standard. Strengthening the epistemic requirement would also provide strong moral reason for better sexual education in school and to promote honest communication between sexual partners regarding sexual preferences, knowledge, and expectations. In addition to resolving the asymmetry, these are independently beneficial upshots of strengthening the demands of sexual consent.
Megan Kitts
Megan Kitts is currently a PhD Candidate at the University of Colorado Boulder working in applied ethics. She will begin as a Clinical Ethics Fellow at Baylor College of Medicine this summer.
Both medical and sexual procedures involve someone else touching or manipulating your body. In both cases.