What are the acceptable limits of consent?

Consent is something that we obviously value very greatly in modern Western society.  Consent is often the difference between a crime and an unpunishable act.  In the realm of sexual acts, consent (sometimes) is what makes activity acceptable to the law.  When we talk about sodomy laws, we frequently repeat the phrase “consenting adults.”  These are consenting adults in the privacy of their bedroom, therefore the state shouldn’t interfere.  Consent is one way to mark a line between activity protected by the right to privacy and activity into which interference by the criminal system is justified.  If there isn’t consent, then at least one of the parties’ privacy rights – or more broadly, right to individual autonomy – is not being respected.  Autonomy is to right to do as we will with our own lives, as bodily integrity is the right to do as we will with our bodies.  When these rights are breached, the other party can no longer say that he or she was justified by autonomy – the limit to autonomy is where it interferes with someone else’s.

Of course, this is all well and good, and as a general rule I agree to consent as the line we should use.  I don’t think, for example, that the government should interfere due to some overriding “public interest” when consenting adults participate in sadomasochistic activities.  I don’t believe that the public morality, when people are having sex in private, all consenting, and therefore not harming anyone else’s autonomy, can override the autonomy interests of the participants.  But that said, I found an interesting paradox in an essay I was reading for a paper I’m writing on sexual autonomy.  The author gave the example of two gay men kissing in the street.  The men argue that they have an autonomy interest in being able to express themselves affectionately – and indeed, autonomy goes behind a mere geographic sense of “privacy,” so that the interest exists on a public street as much as in a private home.  But then some bystander argues that her autonomy interest is being violated because she doesn’t want to see men kissing.  Where do we draw a line?  If autonomy only goes so far as the limits of others’ autonomy, then they men shouldn’t be able to kiss – but do we want to go this far?  I certainly don’t.  Does everyone in the neighborhood have to consent, or only the “reasonable” ones?  What is reasonable?  A member of the moral majority?  An interesting paradox.

About Avory

Avory Faucette is a queer feminist activist, writer, and public speaker. Zie graduated from the University of Iowa with a JD in 2009, focusing on international human rights and gender/sexuality issues in the law. Hir current work focuses on queer identity, policy, and marginalized identities under the queer umbrella. As a genderqueer person, zie comments frequently on non-binary identity, transgender and genderqueer issues, and media coverage of these populations. Zie also speaks at colleges, universities, and events on transgender and queer issues and conducts trainings on related topics.

Posted on July 17, 2008, in law & politics, rape and tagged , , , , , , . Bookmark the permalink. Leave a comment.

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