Consent to Sex: When is it Legitimate and Illegitimate?

Consent and Censorship
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Consent and Censorship
Consent to Sex: When is it Legitimate and Illegitimate?
The liberal legal theory and legal feminist theory have shaped the relationship between sex and the law. These theories set a clear boundary between consensual and non-consensual sex. Non-consensual sex constitutes rape, non-consensual but nonviolent sex between cohabitants, marriage partners, date participants, or intoxicated, unconscious, or mentally incapacitated victims. Sex in these circumstances is considered sexual assault and is liable to legal action. However, many scholars, like West (2010), argue that using consent or non-consent as a demarcate for willing sex is risky. This is because several factors, such as environmental conditions, states of mind, and social structures, overwhelmingly compel and suggest that women consent to sex even when it is unwanted. Therefore, there is a need to ask the question, under what circumstances does verbal coercion invalidate consent to sex? Verbal coercion invalidates sex when it negatively affects the person who consented to it.
A quick look at the background on consensual and non-consensual sex shows that non-consent is a major determinant of sexual assault. The law uses consent as a dominant paradigm to distinguish sex and sexual violation (Palmer, 2016). It has largely ignored criminal behavior in consensual sex. Critics argue that the law should stay out of consensual sex, whether it is for pleasure, money, status, or peer pressure. Consensual sex should not be subject to civil sanctions, political critique, or regulation. The law considers the consent of two or more parties as consensual sex, which is therefore victimless. Supporters of the legal feminist theory argue that consent to sex gives the individual autonomy. Concession is close to how an individual expresses and is central to their perception of a good life, pleasure, and satisfaction. Thereby, consensual sex is a key dimension of an individual's autonomy. If the sex is of positive value to both participants and causes no harm to third parties, then the consent is rendered victimless. In short, consent legitimizes the sex that follows.
Reliance on consent and non-consent as a distinction between sexual assault and willing sex has had its fair share of critiques. Scholars like West (2010) argue that there are circumstances where consent to sex can be rendered illegitimate. Sometimes consensual sex can be unwanted and unwelcome, and it has a lasting impact on the victim. It causes personal harm, particularly to one’s psychological condition, and harms one's autonomy, integrity, and identity. However, the law does not cover this type of sex, and society largely ignores it. West further argues that to protect victims of consensual but undesired sex; we should redefine our understanding of criminal behavior in sex and its impact on the victim.
Many times, consensual sex has some coercion in the background. Consensual sex with no harm to third parties does not imply that it has no negative consequences. Consensual sex may be desired or undesired, and sometimes people consent to sex they do not desire (Archard, 2022). One may ask, why would people, particularly women, engage in undesired sex? There are many reasons. For instance, married women consent to undesired sex either as a religious obligation, out of fear of violence, or to fulfill the traditional role of a wife. As for unmarried women, they engage in undesired sex for peer approval, financial security, concern for children, or simply because of the cultures in the environments they grew up in. Undesired sex has many consequences. For starters, it damages the sense of self. Women who engage in sex to please others rather than themselves alienate themselves from their pleasures and desires. Gradually the woman loses her value, as it lowers her self-esteem and becomes part of her identity.
Consent to sex is not the only factor that should justify sexual behavior. What matters more is how the consent fits into acceptable sexual behavior. The most important factor is how one party behaves and how the other party is treated (Archard, 2022). Take the scenario where a family of two, Janice and Kevin, are orphaned, and since Kevin is older, he takes the liberty of providing for Janice. When Janice reaches 19, Kevin loses his job and coerces Janice to have sex with an older man for money. Janice is not entirely willing, but Kevin emotionally manipulates her. In the end, Janice accepts to have sex with the older man. In this situation, Janice is left in a state where she is not free to choose. Although the sex is consensual, her brother and the older man have secured her consent inappropriately, invalidating the consent to sex.
Lying can also invalidate sexual consent. Deceiving another person into sex is wrong (Bromwich, & Millum, 2018). At first, lies may seem trivial because people sometimes lie to get others to like them. Nevertheless, let us take the example of a surgeon who lies to their patient about the risks of an operation. Supposing the operation had the risk of mentally incapacitating the patient, and the surgeon did not inform the patient, the consent becomes invalid. The surgeon has undermined the autonomy of the patient by lying, which is the same in sexual relations. Lying invalidates sexual consent if the person would have otherwise not given consent if they knew the truth. A good example is when Jenny and Alvin have sex. Jenny neglects to tell Alvin that she is HIV positive, and he only finds out after they have had sex several times. Even if she has not infected Alvin, this type of lying invalidates the sex as it lies outside the restricted range of possibilities to which Alvin would have consented. Lying violates a person's autonomy and denies them the opportunity to make their own decisions. Therefore, lying about a situation where the person would have otherwise not consented to sex if they knew the truth invalidates the consent to sex.
Under the law, even with consent, incest is legal. A father who verbally or emotionally coerces his daughter to have sex with him is still illegal, even when she is of a proper age to consent. The law regulates sexual consent between families directly related by blood, such as parent-daughter or sister-brother relationships. In cases like this, consent does not legitimize sex. The same can be said for verbal coercion for economic reasons (prostitution). Sex, due to economic pressure, is not a meaningful marker of the individual's autonomy (West, 2010). It does the opposite by taking away the individual's autonomy, as they are not engaging in sex for pleasure but for money. The individuals lose their own identity as they lose control over their sex life. Lastly, sex with a minor, even with consent, is illegitimate. Minors cannot make that decision themselves; therefore, it is illegal. The law regulates sex with consent only under these three circumstances.
Basing sexual assault and sex on consent alone is problematic. Many factors influence consent to sex, and sex obtained this way is not always desired. It adversely affects the person consenting to undesired sex and their self-perception. Consent should be regarded according to its meaning and va...