Welcome to our discussion of Emily Tilton and Jonathan Jenkins Ichikawa’s “Not What I Agreed To: Content and Consent”, published in the most recent issue of Ethics. You can find the paper here. Quill Kukla’s critical précis is immediately below. Please join the discussion!!
Quill Kukla writes:
In “Not What I Agreed To,” Emily Tilton and Jonathan Ichikawa explore the status of consent in cases in which the choice to have sex is premised on a false understanding of reality. These include cases where one partner agrees to wear a condom and then slips it off surreptitiously without the other partner knowing, for instance, or cases where one partner tells small lies, perhaps about finding someone’s daughter’s art interesting, in order to get the other partner to agree to sex. Such cases are intuitively ethically murky, and it is not obvious what import such deceptions and misunderstandings of reality have for consent. In an influential article, “Sex Lies, and Consent” (2013), Tom Dougherty argued that if someone deceives someone else in a way that leads to them agreeing to sex, when they would not have agreed to sex had they known the truth, then the deception invalidates that consent. That is, for Dougherty, if someone is lied to about a “deal breaker”, no matter how minor, then they have not in fact given consent at all, even if they believe that they have. Tilton and Ichikawa disagree. They argue that in such cases, the issue is not lack of consent, but rather that the consent was given for a different act from the one that actually happened. Thus, what has gone wrong is semantic; the content of the act of consenting is not the right content to match what actually then happens. They point out that when we agree to sex, we do not agree to sex in any form and under any circumstances; we agree to sex under specific conditions and of particular sorts. To sum up their account with a quotation, “We think the issue is about what one agrees to, not about what kind of agreement it is, i.e., whether the agreement amounts to valid consent.”
Tilton and Ichikawa are concerned to preserve the intuition that, contra Dougherty, in some cases of deception – for example, polite white lies – the resulting sex is in fact consensual, even though the deception may be less than morally ideal. They want an account of how the content of the act of consenting is determined, such that it comes out that sex after such white lies still counts as the kind of action that the person has agreed to, even ifthey would not have agreed to the sex had they known about the deception. This is really the tricky heart of the article, it seems to me. The content of the act of agreement can’t be settled by speaker intention, for them, first because speakers cannot meaningful be expected to consider all the possible ways in which sex might or might not go as expected when they consent, and second because if they do have it explicitly in mind that (say) they only agree to sex if their partner really likes their daughter’s art, then this gives the wrong verdict on consensuality for Tilton and Ichikawa’s purposes.
Tilton and Ichikawa’s solution is to appeal to social conventions to help settle the content of acts of consent. They argue that, unless someone explicitly specifies otherwise, our collective norms around what people can be expected to be consenting to given various interactions (defeasibly, cancellably) settle the content of the act. People are allowed to have any deal breakers they want, but they need to make these explicit if they wouldn’t be conventionally assumed. To use one of their examples, when you give someone permission to kiss you at the end of the date, social convention specifies that you have consented to a kiss on the lips, but not on the ass. If you don’t wish to be kissed on the lips, you would need to say, “Yes, but not on the lips.” Likewise, they argue, social convention determines that when you agree to have intercourse with someone, you have agreed to have intercourse regardless of polite white lies, unless you specify otherwise. Thus, absent any such specification, sex after white lies that would have been dealbreakers is still consensual sex. Conversely, it is conventionally understood that if we agree to sex with a condom, then we are not thereby agreeing to sex without a condom, so slipping off the condom counts as a violation of consent whether or not the person has specified that this would be a dealbreaker – again, not an invalidation of consent, but an act other than the one consented to. This is philosophically interesting; just as the meanings of our words are not entirely up to us, but are set by social use, likewise, for Tilton and Ichikawa, the meanings of our acts of consent are not entirely up to us.
Tilton and Ichikawa use this account to take up the difficult case of whether having been born with a different set of genitals than one has now needs to be disclosed to a potential partner before sex, as a condition of that sex being consensual. In other words, is it part of our social conventions that when we agree to sex, we are agreeing on the condition that our partner has not had their genitals reconstructed, unless this has been made explicit? They claim that in some subcommunities, like their own, genital reconstruction doesn’t need to be disclosed, because there is no default expectation or requirement that people’s genitals are unreconstructed. But in other communities, this cannot be assumed. Thus in their subcommunity, there is no duty for trans people to disclose genital surgery in order to have consensual sex, while in other, more transphobic communities, there is such a duty. This duty, they argue, poses unjust, invasive, and inappropriate obligations on (some) trans people, and hence these transphobic social conventions are bad and should be changed. All the same, in such communities, not disclosing genital surgery can constitute a consent violation.
I would like to raise two kinds of questions about Tilton and Ichikawa’s rich and thoughtful account.
- As is clear from their account of the case of people with reconstructed genitalia, different subcommunities have different social conventions. For instance, in some subcommunities infused with rape culture, dressing skimpily and asking to lie down on a bed is implicitly taken as consent to sex; in others, thankfully, it is not. But this means that the people involved in a sexual encounter may well belong to different subcommunities with different norms – both in the sense that the partners may belong to different subcommunities from one another, and in the sense that each person may belong to overlapping communities with different norms. A queer woman from a traditional homophobic, transphobic, and patriarchal culture may belong equally to a subcommunity in which reconstructed genitals are no big deal, and to one in which they are assumed to be an absolute dealbreaker, and there will be different conventional assumptions about what needs to be specified and what is being implicitly agreed to in negotiating sex in the two communities. Or, this gap may lie between partners. When there are such conflicts between partners’ conventions or within one partner’s multiple communities, which set of conventions in fact settles the act of consent and gives it a definite content?
Tilton and Ichikawa allow for cases of ‘genuine indeterminacy,’ in which social norms are not settled or conflict. But this seems to me an insufficient response. Once we notice the complex intersectionality of identity, it seems like such cases of indeterminacy will be very widespread indeed. Sexual mores, assumptions, and norms are highly culturally variable, to put it mildly. Moreover, this is not a manageable kind of indeterminacy. When we are dealing with speech acts that are not politically or ethically charged, it’s fine to allow them to be polysemic and underdetermined. As long as we can coordinate with one another, open-textured meaning is unthreatening. But we want to be able to say that there is a real fact of the matter as to whether someone consented to sex or not. While there may be rare grey cases, in general it is both legally and ethically crucial that we are able to determine this. The responses, “It was consensual insofar as I am a member of community A but not insofar as I am a member of community B,” or, “Well, it was consensual by your standards but not by mine,” seem deeply unhelpful. Consenting to sex is a relational action, and it seems incoherent to say that it is occurring for one of the relational parties but not another, if they are operating under different sets of norms. Notice, importantly, that we cannot solve this by saying that the person who consented is the one whose social conventions determine the content of what has been agreed upon (even bracketing the point that individuals may belong to multiple communities with conflicting conventions). This is because, despite the widespread, unfortunate tendency for us to talk about sex as though one person requests sex and the other person consents to sex, in almost all ethical sex, consent is not asymmetrical in this way – both parties must consent in order for consensual sex to occur.
Tilton and Ichikawa say that “The fact that some people in the grip of rape culture might think something conventionally indicates consent to sex, doesn’t make it so.” But it seems like on their account, it does make it so within that subcommunity, if it’s a unified enough community to have its own established norms. And rape culture definitely seems to meet this bar; indeed, I fear it is the dominant community. I am not sure by what measure, within their account, we can use to say that participants in rape culture are simply wrong about what consent consists in, rather than that they (like the transphobes who insist on disclosure of genital surgery) just have bad norms, but bad norms that do establish what consent means within their community. Nor am I sure how we decide whose norms get to settle meanings in the unfortunately common case where someone from this community has sex with someone who does not take themself to have consented.
- I am concerned that Tilton and Ichikawa’s model of consent as an action with a definite content cannot make sense of the ethical role that consensuality plays in sexual activity, and risks re-entrenching a troubling picture in which the ethical weight in a sexual encounter lies in a moment of contract-like initiation. According to the picture that I have developed elsewhere (Kukla 2018, Kukla 2021), relatively few sexual encounters start with a discrete act of consenting. Rather, consensual activity is activity that expresses the self-determining agency of everyone involved, such that everyone involved knows that everyone else involved is expressing their self-determining agency, and everyone involved can exit the activity as soon as they want to. According to this picture, consensuality is a feature of activity, not simply the output of a single establishing speech act, and it needs to be ongoing throughout the sexual encounter, as feelings and activities shift around.
But for Tilton and Ichikawa, consent is enacted in a speech act (or communicative gesture) with a highly determinate semantic content. I am wondering how consent can be ongoing in this case. I do not buy that one act of agreement at the start of an encounter makes sex consensual as long as everything that happens is covered under the default semantic conventions governing the original agreement; we have to be willing and agential throughout the encounter. Would their response be that we are implicitly engaging in indefinitely many acts of consenting as the encounter progresses? If so, is each of these definite enough to have a specific semantic content, as it would need to on their account? This feels to me like an unacceptably inflationary account of semantics, and an implausible account of speech acts. More generally, I worry that Tilton and Ichikawa’s account distorts how sexual encounters actually are initiated and progress, by putting too much weight on an initial moment of contract-like agreement, with an overly definite semantic content. To put the point the other way around, if a sexual encounter does not start with a definite initiating moment of agreement, as many don’t, then it is not clear to me how Tilton and Ichikawa have the resources to say whether the encounter is consensual.
Dougherty, Tom. “Sex, lies, and consent.” Ethics 123, no. 4 (2013): 717-744.
Kukla, Rebecca. “That’s what she said: The language of sexual negotiation.” Ethics 129, no. 1 (2018): 70-97.
Kukla, Quill R. “A nonideal theory of sexual consent.” Ethics 131, no. 2 (2021): 270-292.
Tilton, Emily, and Jonathan Ichikawa. “Not What I Agreed To: Content and Consent.” Ethics (2021).