Unjust Sex and the Opposite of Rape (2)

William Hogarth, After

(Part One)

This is the second part of my series on John Gardner’s article “The Opposite of Rape”. As I explained in part one, my goal in this series is to consider whether or not Gardner’s analysis in that article is problematic in some way. I tend to think it is not — with one possible exception — and I’m trying to justify that opinion here. The main justification is that Gardner’s analysis is quite similar to that offered by certain feminist scholars of sexual ethics. In this sense, it is not so much problematic as it is unoriginal. I set this up in part one by discussing Ann Cahill’s article ‘Unjust Sex vs Rape’. You should really read part one before proceeding any further…


…Still here? Good. As you will now, no doubt, remember I concluded part one by suggesting that Cahill’s analysis of ‘unjust sex’ can be taken to endorse two propositions:

Proposition 1: There is more to ‘bad’ (i.e. morally unwelcome) forms of sex than rape and sexual assault; or, to put it a different way, the mere presence of sexual consent is not enough to make a sexual interaction morally commendable.

Proposition 2: Because of this, an excessive focus on consent in discussions of sexual ethics can be misleading, and possibly unhelpful, because it does not move the needle sufficiently toward a normative ideal of male-female sexual relations.

My claim is that Gardner’s analysis can also be taken to endorse these two propositions. The main difference is that whereas Cahill starts with morally problematic sex, Gardner starts with morally commendable sex. This is what he means by the ‘opposite’ of rape. The choice of words may be a little unfortunate, but the inquiry itself seems perfectly legitimate: if rape is undeniably bad, what is undeniably good? Gardner has an answer for this.


1. Good Sex as a Kind of Teamwork
When we try to figure out what makes sex ‘good’ we confront an embarrassment of riches. There are many things that make sex good: it provides intense physical pleasure, it brings people closer together, it allows for playful experimentation and, in some cases, enables procreation. Gardner agrees with all this. He thinks there are many dimensions to good sex. Nevertheless, he wants to focus on just one. He does so because he thinks it is important when it comes to distinguishing good sex from rape/sexual assault. That dimension is the collaborative one. Good sex, according to Gardner, is a collaborative enterprise. It is when two (or more) people ‘come together’ as one (Gardner explicitly references the Beatle’s song and the possible double entendre in his article).

This is where the teamwork idea comes in. Teamwork is a collaborative enterprise par excellence. It happens when a group of people get together and coordinate their actions toward a common goal/purpose. But it is more than that. Commonality of purpose is not enough. The people in a team are responsive to one another: there is a ‘sustained interpersonal feedback loop’ (2017, 6) between them. Their collaboration is more the sum of its parts. There is a joint intention at play. They don’t just do things for themselves; they do things for the team, as a collective.

Gardner uses lots of examples to flesh this out. One, taken from Ian McEwan’s novel Enduring Love, is about a group of people who spontaneously collaborate on trying to rescue someone from a hot air balloon (with tragic results for one person when the team disintegrates). Gardner makes much of this example in his article, but I’m not going to go through it here because it would take too long to explain and seems to me to be unnecessarily complicated. Other examples, which are much more straightforward, include an orchestra/band/jazz improv group working together to play music. Gardner particularly likes the jazz improv example because it involves spontaneous, playful collaboration, and not simply the repetition of rote-learned notes. Nevertheless, in each case, the group of musicians is working together with a joint intention to make good music.*

Good sex then, according to Gardner, is a kind of teamwork. It involves two or more people working together toward a joint end. What is that joint end? Well it could be many things but the most obvious (and the most intrinsic to the sexual activity itself) is mutual pleasure and satisfaction. The partners are, to put it bluntly, trying to ‘get off’ together:

…I propose that we think of good sex as a kind of team activity (for which ‘teamwork’ serves as a mere shorthand [because it is odd to think of sex as work]). Not only do the sexual partners have common intentions regarding the pleasure and satisfaction that each is to bring to the other and the general menu of ways in which that pleasure and satisfaction is to be achieved and such like; each also has a version of the infinitely reflexive intention I just described. Each intends that they do it together, that it be a joint pursuit and not just a pursuit in common… 

(Gardner 2017, 7)

Good sex is not, however, perfectly symmetrical. Being part of the same sexual team, doesn’t mean that the parties to the sex are doing the same things to each other and taking on the same roles. Teamwork sometimes has this feature but often does not. Usually there are different parts to be played by different team members — think, once again, of the jazz improv group and the different instruments being played. But teamwork is symmetrical in one critical respect: all parties to the activity are agents. They all take on some active role in achieving the common purpose; no one is a passive recipient of the actions of the other. Gardner expresses this in a typical philosophical way. He says that a good, two-party, sexual interaction is an agent-agent interaction; it is not an agent-patient interaction. It is two people doing something together not one person doing something to another.

It is worth noting how similar this is to Cahill’s analysis of ‘bad’ sex. As you’ll recall from part one, Cahill argues that bad sex — be it unjust or rape/sexual assault — is not characterised by symmetry of agency. Indeed, one of its distinctive features is that female sexual agency lacks the same power as male sexual agency. In the case of unjust sex, female sexual agency is extremely limited; in the case of rape/sexual assault, it is dismantled or disenabled. The fact that there is this similarity in the analysis — albeit arrived at from different directions — is one of the things that convinces me that Gardner’s analysis is in line with what Cahill says.


2. Gardner’s Dangerous Idea: Does consent matter?
There is, however, one aspect of Gardner’s analysis that could be problematic. Having concluded that good sex is distinguished by its collaborative (agent-agent) nature, Gardner proceeds to consider the role of consent in sexual ethics. He doesn’t define consent but does offer some general comments about it that are suggestive.

For one thing, Gardner is adamant that consensual activities often involve agent-patient asymmetry. Indeed, he hints that this is the most natural/normal form of consensual activity. If you consent to something it usually means that you are waiving your claim right to non-interference by another. For example, if I consent to being medically examined by my doctor, I am waiving my claim right to bodily integrity/privacy, and waiving his/her duty to respect my bodily integrity/privacy. The doctor then takes on the agent role — he/she performs the examination — and I take on the patient role (literally) — the examination is performed on me. It is not an active collaboration. I merely signal a willingness to forgo rights that I would otherwise have. It is this signalling that is the hallmark of consent.

Understood in this way, Gardner argues that people expect consent to do too much work in sexual ethics. Consent is a concept that applies to many different domains of human activity. It plays an important moral role across those domains. But it cannot morally vindicate sex because (a) it tends to presume the agent-patient asymmetry and (b) good sex involves agent-agent symmetry. So, while consent might make a sexual interaction permissible (barely and bleakly), it cannot make it commendable. This is true even of recent attempts to reform the concept of consent, e.g. the move towards affirmative consent or, even, ‘enthusiastic and willing’ consent. The former because it still allows for agent-patient asymmetry and the latter because it probably stretches the concept of consent too far. As Gardner himself puts it:

Taking the concept of consent to be the only legitimate currency for the evaluation of sex puts the concept under a lot of pressure to do a lot of work. Consequently, many have been tempted to reintroduce other currencies of evaluation indirectly by packing them into a ‘refurbished’ ideal of consent….One wonders how those who place such demanding restrictions on (valid) consent can possibly interact with their doctors, lawyers, electricians, taxi drivers, decorators, auto mechanics, hairstylists, dentists, bank tellers, dry-cleaners and the many others whose everyday interactions with them call for their consent. 

(Gardner 2017, 12)

But here’s where we get to Gardner’s potentially dangerous idea. All of the comments to this point suggest that there are at least two distinct ethical dimensions along which one can evaluate a sexual interaction: (i) the collaborative dimension and (ii) the consensual dimension. In other words, you can ask of any sexual interaction ‘Was it collaborative?’ and ‘Was it consensual?’. The following diagram captures the idea.

Now, from my perspective, this is an odd way to think about it. To me, it seems to make sense to collapse the consensual dimension into the collaborative one — that is, to assume that any collaborative sexual interaction must also be consensual. It would strike me as odd to suggest that two people had engaged in a collaborative sexual act (a ‘good’ sexual act) that was non-consensual. But Gardner doesn’t seem to see it that way. Although he is never explicit about it, he says several things that suggest that he views the consensual dimension as being distinct from the collaborative one. The clearest example of this is when he suggests that consent may be ‘unnecessary’ to good sex:

Here, I am advancing the more explosive proposition that, when the sexual going is good, consent is also unnecessary. Before you explode, bear in mind that my case proceeds, not from the thought that consent is too high an expectation for our sex lives, but rather from the thought that it is too low an expectation. Ideally, I suggest, the question of consent does not arise between sexual partners, for the question of consent belongs to sex individualistically, even solipsistically conceived… 

(Gardner 2017, 13)

I call this a ‘dangerous’ idea partly because it goes against so much of the orthodox thinking about sexual ethics. Nowadays, ‘consent’ is seen as the sine qua non of permissible sex. Consent simply must be present in order for sex to be permissible. But what Gardner suggests in this quote is that there are types of permissible (in fact, morally ideal) sex that do not involve consent. This not only goes against the orthodoxy, it also takes Gardner away from the Cahill-style argument about unjust sex — there was nothing in what Cahill said that suggested that consent was irrelevant/unnecessary to good sex (though she was skeptical about its central role in contempoary discussions of sex).

I appreciate, of course, what he is trying to say. People in long term intimate relationships have frequently told me that the giving and receiving of consent plays no explicit role in their ongoing sex lives. They just don’t think about it that way. But, of course, the mere fact that they don’t think about it in that way doesn’t mean that consent isn’t, at least implicitly, given. Furthermore, I think Gardner’s idea could be particularly dangerous if it is translated into practice. Say that there is some dispute as to the propriety of a sexual interaction. Gardner’s argument suggests that there are two ways to establish its propriety: (i) prove that it was consensual or (ii) prove that it was collaborative. But how do people prove that sex is collaborative? Is there a danger that a collaborative standard could be more subjective and prone to epistemic disputes of the he said/she said variety? This is a problem that has long afflicted debates about consent, of course, but there have been recent improvements in this regard with the introduction of evidential rules for proving the existence of non-consent. Would we need to create a new set of rules to make a collaborative standard workable?


3. Avoiding the Dangerous Idea
Gardner does not answer that question. The reason for this is that shortly after introducing his dangerous (“explosive”) idea, he marks out an escape route from its more unpalatable consequences. His escape route hinges on a distinction between agreement and consent. This is not a distinction I find useful, but I’ll try to explain what he says.

He argues that two people can agree to a collaborative enterprise without consenting to that enterprise. He gives the example of two people who agree to meet at a certain time and location. They both give undertakings to be at the relevant location at the relevant time. The meeting is a joint activity and exhibits agent-agent symmetry. But it would be strange indeed to suggest that it involved both parties consenting to be at the same location at the relevant time. The two parties do not signal and exchange consents with one another. Agreement is, thus, distinct from consent.

This gives us a way to avoid the unpalatable conclusion. Perhaps cases of permissible sex that do not involve consent do involve sexual agreement? Perhaps, as Gardner puts it, ‘when sexual consent is unnecessary that is only because we are lucky enough to have sexual agreement instead?’. That sounds plausible, but it then reframes the argument, particular when you think about it in terms of some practical dispute as to the priority of a sexual interaction. Instead of the dispute hinging on the epistemic signals needed for reasonable belief in consent it hinges on the epistemic signals needed for belief in agreement. It’s not entirely clear how different those are going to be from the current status quo — particularly since consent is often defined in terms of agreement (something Gardner is aware of and, not surprisingly, disagrees with).

Gardner isn’t entirely happy with this agreement vs consent, get-out-of-jail-free card. One problem he has with substituting agreement for consent is that he is still committed to the collaborative ideal and he thinks that some collaborative actions do not involve any prior agreement. There can be spontaneous collaboration in which there is joint activity and intention, but no prior exchange of undertakings. The balloon-rescue example from Ian McEwan’s novel is trotted out at this point again, as is spontaneous musical improvisation. Some people might suggest that you can imply agreement from spontaneous collaboration, but Gardner thinks we should resist this suggestion because it would neutralise the normative power of agreement.

By this point in the paper, Gardner seems to have painted himself into a corner. He has suggested that consent is not necessary for permissible sex (and not sufficient for ideal sex). He has spotted the unwelcome (‘explosive’) implications of this view and tried to avoid them by suggesting that we substitute agreement for consent, but then he has found that unsatisfactory. In the end, he hits upon the following solution to his dilemma. He distinguishes between two types of agreement (i) performative agreement and (ii) cognitive agreement. Performative agreement involves the actual making of an agreement with someone, i.e. the prior exchange of undertakings; cognitive agreement involves being in agreement with another, i.e. being of one mind/sympatico with them. The latter may be what arises in cases of spontaneous collaboration and it may be what saves Gardner’s position from it potentially unwelcome implications. Furthermore, Gardner argues that being of one mind with someone else requires an ‘ongoing consensus’, which suggests a need to check-in with your collaborator to see whether there still is agreement. This is similar to the view — common among consent theorists — that sexual consent in an ‘ongoing’ act, i.e. you retain the right to withdraw consent at any time. But Gardner doesn’t like this understanding of consent because he thinks it means that consent loses some of its distinctiveness as a normative concept. Indeed, he goes so far as to say that there would be no point to consent if it did not mean that you forego some of your rights to prevent/deny another person performing an act on you for some extended period of time.

So, through some elaborate conceptual engineering, Gardner is able to arrive at a position on collaboration and agreement that is not far from the mainstream view on sexual consent. Was it worth all the effort to end up in the same place? Maybe — maybe Gardner is right that our thinking about sexual consent has become hopelessly confused and that we need an alternative conceptual vocabulary to capture what is going on in cases of normatively bad and normatively ideal sex. My own sense is that it is unnecessarily confusing, particularly if we are to continue to accept, as Gardner seems to be urging, that there are two kinds of permissible sex: (i) consensual and (ii) collaborative (with cognitive agreement).


4. Conclusion
To briefly sum up, Gardner thinks that consent is not enough to morally vindicate sex. There is lots of (morally) bad (though not impermissible) sex that is consensual. Some additional ingredient is needed to move us from bad to good. That ingredient, according to Gardner, is teamwork. Good sex is a collaborative act in which two (or more people) work together to accomplish a common purpose (sexual pleasure/fulfillment) as a team. This does not mean that they take on symmetrical roles in the collaborative act, but it does mean that they are both agents. The problem with consensual sex is that it does not require both parties to be agents. Indeed, consent, as a concept, is more naturally applied to cases in which one party (the agent) does something to another (the patient). The danger with becoming fixated on the consent standard is that it could, consequently, perpetuate the gendered stereotype of women (the patients) giving up sex to men (the agents).

In saying all this, I think that Gardner is being consistent with a long-standing view among feminist critics of sex-under-patriarchy and the centrality of the consent standard in modern thinking about sexual ethics. I’ve tried to demonstrate this by illustrating the similarities between his views and the views of Ann Cahill. Where Gardner differs from this long-standing view is in his suggestion that consent may not be necessary for morally permissible sex. This is a more dangerous idea and one that could lead to problems in practice. Gardner tries to avoid these unwelcome implications by substituting the concept of agreement for that of consent. In doing so, he thinks he is being more conceptually precise, but he ends up endorsing a view that is not that dissimilar to the one endorsed by many consent theorists.

* Having played in bands that were prone to improvisation, this seems a little bit idealistic to me. In many instances, one member of the collective will try to dominate and hog the limelight. Nevertheless, I appreciate that Gardner is focused on ideals rather than realities in his article.

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