November 10, 2023
The following are some thoughts I developed in online Discourse™ after reading a silly journal article.
We lack a rich philosophical, or least cultural, vocabulary for consent. Consent can be given for a variety of acts (some of sexual nature) under various degrees of coercion, from economic to the threat of physical force. No decision is made in a vacuum. Under which circumstances is consent valid? Is there a spectrum of acts that require different circumstances for consent to be valid? Capitalist philosophers encourage us to ignore "weak" economic coercion, drawing sharp lines between morally-wrong coercion and neutral exploitation and inducements. Yet the cold pavement and empty stomach are not a natural, Hobbesian consequence of a refusal to work: they are an option selected and prepared by political policy. You might enthusiastically work a pleasant job or begrudgingly work one that pays well. Sex work, where sexual consent is given under economically coercive circumstances, is a noteworthy sharp edge on these spectrums.
Laws generally invalidate consent only in the most obvious situations, applying similar penalties for each violation. For merely questionable circumstances, society applies weak, ad-hoc punishments. It's not illegal to sleep with an employee, but you might get fired for it. It's not illegal to date a much younger adult, but you may face social consequences. The pseudonymous author of "Zoophilia Is Morally Permissible" argues that if we respect immediate animal agency, there is no inherent moral reason they cannot consent to sex, and that without such a reason laws against bestiality have no moral basis.
Unlike the author, I think that heuristics can provide sufficient moral justification for laws in a world where we cannot directly examine the mind of another, and that such heuristics justify inability-to-consent (statutory rape) laws. It should be illegal for a jailer to have sex with his ostensibly-consenting prisoner: even though 0.000001% of the time it might be fine and the coercion truly isn't significant, both parties can lie and there's no objective way for an onlooker to evaluate the decision-making process of the prisoner. I think that such arguments justify blanket bans on sexual contact across large age/power/understanding differentials - with minors, animals, prisoners, people with severe mental disabilities, etc. - without requiring any inherent component of the act to be wrong. The severe harm done to prisoners who would be raped justifies the slight harm of preventing a few otherwise-consenting prisoners from having sex.
"Bensto" also argues that information one party cannot understand does not affect their capacity to consent, giving the example of a deer in the forest (emphasis mine):
The deer who consents to me feeding him does not understand – and does not have the cognitive capacities to understand – my complex motivation to hand him food or the stories that I will later tell to my friends about this unusual encounter. The range of information that animals can learn differs from that of humans. This is not a problem though, because information that we do not have the capacity to grasp cannot constitute a deal breaker.
I disagree and argue that information that we do not have the capacity to grasp is still relevant to whether our consent is valid. For instance, animals are incapable of understanding that they are being "fattened up" for slaughter, but if they could they would likely refuse to eat. Why should we consider an impossibly-smart animal? As an extension of our general responsibilities towards the agency of "diminished" parties. I argue that:
(a) is self-evident, generally held, and assumed by Bensto. If there is no prohibition against overriding the choices of others, then their immediate consent has no moral relevance. But note that violations are usually punished by social consequences. Animals are legally property; their owners can do almost anything to them. A parent or guardian can override even arbitrary decisions by their ward, down to what clothes their 17-year-old wears to school.
We should hold (b), inventing a "best self" and following its demands, because it leads to sensible outcomes and is less arbitrary than the competing options:
Another alternative is a "partial" rule: respect the hypothetical wishes of the diminished party if they were able to fully understand the choice, but with no other alterations. This rule must predict some changed decisions, otherwise we're back at the rule of immediate consent. But a modification that gives a party the ability to "fully understand" a choice while attempting to preserve their current decision-making process is hard to understand: their current process is intrinsically tied to their current level of understanding. Such a rule also leads to bad outcomes.
Consider the case of an impulsive toddler who doesn't want to get a vaccine injection. The partial rule might tell us that, even if they were able to fully understand the risk of sickness and death vaccination would prevent, the impulsive toddler would willingly choose not to get vaccinated. But it's hard to tell: who can say how much ignorance of the facts affects their decision-making process?
Consider the case of a hopelessly-drunk person who wants to drive back to the bar. A good friend should take their keys, even if the drunk will certainly still be mad about it once they sober up. The partial rule tells us that, since the drunkard would choose to drive even if they were endowed with full understanding of the situation (i.e. not drunk), we should let them.
I won't seek to set out a strong justification for (c) here. The idea that parents, guardians, pet owners, etc. have some degree of responsibility to their wards is intuitive. Besides, if we accepted the "best self" rule without something to govern when it should be invoked, the responsible party could choose never to exercise this power and again backdoor into the discarded "immediate consent" rule.
The degree of responsibility we have for others varies based on the relative difference in power and understanding. I think this is roughly symmetrical: when one party has absolute power over another, they have an absolute responsibility to act in that party's best interests. And only when two persons have equal power and understanding can they can meet as equals and act totally selfishly. Since two people can never can be exactly equally matched, this also implies that we are all, at least a little, responsible for each other.
The overwhelming majority of human-animal contact takes place in conditions of absolute human domination: in factory farms. Animals are legal property, and it is legal for their owners to do almost anything to them. Modern animal agriculture additionally requires sexual contact with animals: something like ten million female pigs are inseminated by humans each year. These acts are legalized under the ubiquitous exceptions to bestiality and animal cruelty laws. These laws usually generally prohibit mutilation of or sexual contact with animals, except for farming purposes.
Under these conditions, discussing the details of animal agency is largely beside the point.