|Should we choose standards of consent from behind a veil of ignorance?|
People are often mildly to severely intoxicated when they have sex. This creates a problem. If someone signals consent to sex whilst voluntarily intoxicated, should that consent be treated as morally/legally valid? I have been very slowly working my way through Alan Wertheimer’s excellent paper on this topic (cleverly entitled ‘Intoxicated Consent to Sexual Relations’). So slow has been my progression that I have actually written three previous posts examining the complex web of moral claims associated with it. But in doing so I have yet to share Wertheimer’s own view. Today, I finally make up for this deficit.
A brief review of previous entries is in order. First, recall that throughout this series the focus is on the heterosexual case involving a man (who may or may not be intoxicated) who has sex with an intoxicated woman. The reason for this focus is that this is probably the most common scenario from a legal perspective and the one that reveals the tensions between traditional liberal legal theories and certain feminist theories. One of the ways in which these tensions are revealed is when it comes to the relationship between personal responsibility and consent. It is widely accepted that voluntary intoxication does not absolve one of responsibility for one’s actions. This widespread agreement was utilised by Heidi Hurd in her argument that intoxicated consent should be valid. Otherwise, she says, we are in the unusual position that an intoxicated man is responsible for raping an intoxicated woman but she herself not responsible for signaling consent. Conversely, there are those who argue that the kind of victim-blaming that goes on in such sexual offence cases is perverse. Susan Estich makes this case by arguing that just as we would not hold someone responsible for being assaulted if they walk down a dark alleyway at night, so too should we not hold a woman responsible just because she was intoxicated at the time of a sexual assault.
Both Hurd’s and and Estrich’s arguments were examined in a previous entry. Both were found to be lacking. Hurd’s argument was problematic because it assumed that the kinds of mental capacities involved in making ascriptions of responsibility were the same as those involved in assessing the validity of consent. This is not the case: there is good reason to suppose that higher mental capacities (ones that are more likely to be impaired by even mild degrees of intoxication) are required for valid consent. Likewise, Estrich’s arguments were found to be lacking because her analogies involved cases where people were clearly the victims of crime. The difficulty in the intoxicated consent case is that if the signaled consent is valid no crime has taken place. So you really have to determine the validity of the consent before you appeal to these moral equivalencies.
The upshot of all this is that there is no straightforward relationship between claims about intoxicated responsibility and intoxicated consent. There are more complex moral variables at play. Wertheimer’s goal is to reveal these variables and see whether they can help us to answer our opening question: is intoxicated consent valid? As we shall see, Wertheimer’s answer to this question involves a quasi-Rawlsian approach to setting the standards for sexual consent.
1. Intoxicated Consent in non-Sexual Cases
A useful window into the complex variables at play is to look at intoxicated consent in non-sexual cases. Wertheimer starts with the following:
Major Surgery: ‘Consider consent to a medical procedure. It seems entirely reasonable that a patient’s voluntary intoxicated consent to a major surgery should not be treated as valid if B’s intoxication is or should be evident to the physician, even if the physician has provided all the relevant information. A physician cannot say, “She was drunk when she came in to sign the consent form. She’s responsible for her intoxication, not me. End of story.”’ (Wertheimer 2001, 389)
This sounds reasonable. If someone walked into a doctor’s surgery after a few drinks and tried to consent to having her leg amputated, a doctor would surely be obliged to tell her to come back at another time. But what does this intuition reveal about the relationship between intoxication and consent? Wertheimer thinks it reveals that principles of consent are sensitive to at least three sorts of considerations:
Relative Costs: The principles of consent are sensitive to the ‘costs of the process of obtaining consent relative to just what is at stake’. In other words, the higher the potential costs, the more important (and more rigorous) we should be in ensuring that the consent is valid. We would worry that intoxicated consent to having one’s leg amputated would not be valid, but we would probably not worry that intoxicated consent to the use of a tongue depressor was valid. There is less at stake in the latter case.
Possible Errors: The principles of consent are sensitive to the two kinds of error that might arise: (i) false positives, i.e. assuming that someone has consented when really they have not; and (ii) false negatives, i.e. assuming that someone has not consented when they really have. To put it another way, the standards for consent have an impact on both positive autonomy (i.e. on the ability to get what we want) and negative autonomy (i.e. on the ability to avoid what we do not want). We need to be sensitive to those impacts when setting the appropriate standards.
Feasibility: The principles of consent are sensitive to both the possibility and feasibility of obtaining high quality consent. The medical context is instructive here again. If you have an elderly patient suffering from dementia, then it may simply be impossible or infeasible to get high quality consent to medical treatment (i.e. we may always be unsure whether their signals convey their higher-order preferences). But treatment may be necessary for their well-being so we may be satisfied with a less-than-ideal standard of consent. Contrariwise, in the case of the intoxicated patient looking to have their leg amputated, higher quality consent is feasible if we simply wait until their intoxication has ended. Consequently, we should be less satisfied with low quality consent in that case.
Wertheimer considers how these three factors impact upon our moral judgments in several other cases, I won’t mention them all here. One that is worth mentioning — because it highlights tensions between certain feminist theories and liberal principles of consent — is the standard of consent deemed appropriate when seeking an abortion. Many feminists are in favour of allowing women ready access to abortion. In favouring this, they often oppose or resist high standards of consent to abortion. For instance, they will oppose setting age restrictions, requiring women to be lectured to about the development of the foetus, the stipulation of waiting periods to avoid hasty decisions, and so on. Why do they oppose these things? Wertheimer argues that it is because, first and foremost, there are no natural defaults when it comes to setting standards of consent, and second because they see how these restrictions are part of a coordinated attack on women’s positive autonomy (i.e. their desire to access services they want to access). When the standards are too high, positive autonomy is undermined (because the system errs on the side of too many false negatives).
The conclusion to be drawn from all this is that, when it comes to intoxicated consent to sex, we need to factor in the three considerations mentioned above and examine the consequences of setting high/low standards of consent.
2. So how should we view intoxicated consent?
When we do so what might our conclusion be? Analogies aren’t always helpful when it comes to better understanding the ethics of sexual interactions. Some people insist that there is something unique and special about those interactions that cannot be fully captured by analogical reasoning. But analogical reasoning is often all we have in ethical cases. In this vein, Wertheimer pursues one last analogy before considering intoxicated consent to sex. The analogy is with the case of intoxicated gambling.
The legal position is usually that gamblers bear the moral and financial burden associated with intoxicated gambling. In other words, if you go into a casino, consume copious amounts of alcohol, and gamble away a significant amount of money, then you usually suffer the consequences (it does, of course, depend on whether gambling is legal in the relevant jurisdiction). Is this the right approach to take? Maybe, but it may well depend on how much the gambler stakes on their bets. If they gamble away a few hundred or thousand dollars, we might hold them to it; but if they gamble away their house or all their earthly possessions, we might view it differently. Again, the quality of the consent required would vary as a function of what the costs are likely to be.
Why might we take this attitude toward intoxicated gambling? Here’s where Wertheimer makes his main contribution. He says that one way to work out the right standard of consent is to adopt an ex ante test. In other words, ask the would-be intoxicated gamblers, prior to the fact (i.e. before they are intoxicated and before they know whether they have won or lost on their gambles), what standard of consent they would like to apply to their intoxicated gambling. In proposing this question, Wertheimer is advocating a methodology that is somewhat akin to Rawls’s famous methodology for deriving principles of distributive justice. Rawls argued that in order to settle on a just distribution of social goods, we should imagine would-be citizens negotiating on the relevant principles behind a veil of ignorance (i.e. without knowing where they will end up in society). Wertheimer is adopting a similar veil of ignorance test for his would-be gamblers.
Wertheimer’s ex ante test: When deciding on the appropriate set of consent principles for any intoxicated activity, we should ask the would-be participants which set of principles they would prefer to govern that activity before the fact (i.e. before they have actually engaged in that activity whilst intoxicated).
What are the results of this test? A full analysis of the gambling case would require a longer paper but we can make some suggestions. One is that would-be gamblers might favour a relatively low standard of consent (at least when the stakes are low). Why is that? Because they probably find the combination of alcohol consumption and gambling to be pleasurable. Hence, they might be inclined to favour a set of consent principles that allows them to engage in that combination of activities (up to a certain level of potential loss). In this sense, they tweak the precise mix of consent principles so as to favour their positive autonomy, and err slightly on the side of more false positives than negatives.
How about intoxicated consent to sex? Again, the procedure is the same: you ask women ex ante which mix of consent principles they would favour for intoxicated sexual encounters. They could favour a strict approach — i.e. no consent signal provided whilst intoxicated is valid — or a more liberal approach — where this comes in various degrees. When choosing the standard, they will need to pay attention to the level of harm involved relative to the cost of obtaining high quality consent, the feasibility of obtaining high quality consent, and the type of sexual autonomy that ought to be favoured.
Can we say anything more concrete? This is one of the more frustrating aspects of Wertheimer’s article. After his lengthy analysis, he still doesn’t have a preferred policy proposal. But he does say three interesting things. First, he says that there are reasons to think that positive sexual autonomy might favour the validity of, at least some, instances of intoxicated consent. Indeed, it might be that the combination of alcohol consumption and sexual activity is highly valued:
It’s not just that some women may wish to engage in sex and drinking simultaneously. Rather, drinking to the point of at least moderate intoxication may be crucial to what some regard as a desirable sexual and social experience. We do well to remember that a woman may choose to become (moderately or even severely) intoxicated precisely because she wants to suspend, curtail, or weaken some of her stable psychological traits.
It’s always dangerous when a man purports to say anything about what we would ‘do well to remember’ when it comes to women’s sexual preferences. But this does seem intuitively right to me. I think moderate intoxication is part and parcel of many positive social and sexual interactions, and that people often desire the intoxicated state because of its disinhibiting effects. That said, Wertheimer’s second key point is that this potential value needs to be balanced against the emotional and physical harms of an intoxicated sexual encounter. Here, he thinks we need to know much more about the effects of such encounters, and what the potential harms of erring on the side of false positives would be. The tricky question of regret also enters the fray:
The validity of a woman’s intoxicated consent to sexual relations is not a function of her actual ex post regret or satisfaction with respect to a given sexual encounter. The point of B’s sexual consent is always ex ante: it renders it permissible for A to have sexual relations with her. But the principles of consent that establish when we should regard a woman’s consent token as valid may take account of the ex ante disvalue of her ex post regret. If the evidence suggests that women are, in fact, likely to severely regret sexual relations to which they have given intoxicated consent, that is some reason to regard intoxicated consent as invalid.
This brings us to Wertheimer’s third key observation, which is that the harm of any such sexual encounter is likely to vary depending on the prior relationship between the two individuals. This is problematic insofar as it seems to allow for past sexual history to influence our moral assessment of the relevant consent standards (which, as anyone who has studied the history of rape laws will know, is highly contested). Nevertheless, it is part of Wertheimer’s view that consent standards may vary relative to the potential marginal harm of a sexual encounter. And the potential marginal harm from a first time intoxicated sexual encounter is likely to be higher than the potential marginal harm arising from an encounter between two long-term partners. He uses the following example to illustrate his approach:
Suppose that a married couple hosts a New Years Eve party, get roaring drunk, falls into bed, and has sex. It would be crazy to think that the husband does something seriously wrong here simply because his wife consents while quite intoxicated, unless the wife had previously indicated that she does not want to have her intoxicated consent taken seriously… Why do I think this view would be crazy? Because (in part) there is no ‘non-autonomy based’ physical or psychological harm to a marginal sexual interaction with a person with whom one frequently has sexual relations as contrasted with the case where a woman might have avoided sexual relations with that person altogether.
To briefly sum up, there is no simple rule when it comes to intoxication and sexual consent. The consistency thesis, which holds that the same standard should apply to sexual consent as applies to responsibility, is unattractive because it assumes the capacities for consent are equivalent to the capacities for responsibility. The impermissibility thesis, which holds that intoxicated consent should never be deemed valid, is unattractive both because the analogies use to support it are unhelpful and because of its potential impact on positive sexual autonomy.
Instead, the standard for consent should vary as a function of three variables: (i) the relative costs of procuring consent vis-a-vis the potential harms of the activity being consented to; (ii) the preference for false positives over false negatives (i.e. the value of favouring positive autonomy over negative autonomy); and (iii) the feasibility and/or possibility of procuring high quality consent. In figuring out how these variables work in the case of intoxicated sexual consent, we should adopt an ex ante test. This means we should ask the would-be intoxicants which standard of consent they would prefer prior to engaging in the intoxicated variant of the activity.
In doing so, we will probably learn that: (a) there is some value in allowing for some degree of intoxicated consent (from the perspective of positive sexual autonomy); (b) this value must be balanced against the potential harms of intoxicated sexual activity (including the likely ex post regret); and c) the appropriate standard is likely to vary depending on the potential marginal harm of the sexual encounter (where this is likely to be lower in the case of long-term partners than it is in the case of new ones).