CONSENT is big news. We take the position that CONSENT IS NOT ENOUGH. In our curriculum we teach students to think of the other person and whether there is MUTUALITY in a sexual interaction! CONSENT is important but there is more to teach about sexual relationships besides making a contract up front! Write to us if you are interested in our newer versions of the curriculum, email@example.com
When is a Kiss Just a Kiss?
In this unit, we take some fairly famous examples of stolen kisses to ask whether consent was needed and necessary. In the next section we’ll think about what exactly consent means. But for now, let’s just think about a simple kiss.
Does a person need to ask permission to kiss? Imagine the most romantic movie kiss you’ve seen. Did one person ask another person, “May I kiss you now?” Or did it seem more mutual, both partners looking longingly or lustfully into each others’ eyes, both knowing what was coming next, both pairs of lips meeting? What happens if one partner initiates? Is it ever permissible to steal a kiss? To initiate a kiss without knowing how another will respond? And if you think this is ok, why do you think that? Why would that be different than grabbing someone’s butt or crotch? What is it about a kiss that is so meaningful and yet so innocent?
Read the following excerpt from Leonore Tiefer’s (1998) lecture on kissing, delivered at the Kinsey Institute.
Kissing means attachment and feels good, and can be elaborated into social situations far removed from its origins.
Our experience of security and sensuality begins in infancy as we are held while we nurse. The sucking experience, the use of tongue and lips, the aroma of body and skin, the touch on the face – the theory suggest that every kiss from infancy on reverberates with deeply felt echoes of attachment, pleasure, feeling good, and gives kissing its emotional power. The lips and tongue have large representation in the brain – every infant must suckle to survive. As we suckle, we feel, and we don’t forget.
Humans’ vertical posture and the emotional power of eye contact for all primates brings other elements into the kiss. Even in cultures where mouth-to-mouth tongue kissing is disapproved of, reverberations of attachment and security produce the eros of cheeks rubbing together, or the power of inhaling the aroma of a beloved’s face. There may be biting, nibbling, nipping or blowing on the lips and face as part of the sexual script of lovers. What Margaret Mead called the “oceanic kiss” involves the lips only as a minor feature, but if we want to generalize the attachment and pleasure theory, the kissing reverberates even when it’s only one mouth doing the work. After all, in infancy, it’s only one mouth.
Because kissing can arouse powerful regressive longings for intimacy, the power of kissing can be dangerous, which becomes an important theme in Western legend and literature. Where people cannot choose their own mates, or where the free expression of sexuality is considered a religious sin, kisses come to symbolize social chaos. Thus, in Western lore and Hollywood movies, we have endless stories of dangerous love kisses – the ones that mortally bond the wrong pair (Romeo and Juliet, Tristan and Isolde).”
Reprinted with permission from Lenore Tiefer.
The Effects of Kissing
While researchers aren’t exactly sure how or why people started kissing, they do know that romantic kissing affects most people profoundly. The Kinsey Institute describes a person’s response to kissing as a combination of three factors:
- Your psychological response depends on your mental and emotional state as well as how you feel about the person who is kissing you. Psychologically, kissing someone you want to kiss will generally encourage feelings of attachment and affection. If you’re kissing someone you don’t like, or you’re kissed against your will, your psychological response will be completely different.
- Your body physically reacts to being kissed. Most people like to be touched, and that’s part of your body’s response to kissing. But kissing also affects everything from your blood to your brain. We’ll look at your body’s biological reactions to kissing in detail in a later section.
- The culture in which you grew up plays a big part in how you feel about kissing. In most Western societies, people are conditioned to look forward to—and enjoy—kissing. The behavior of the people around you, depictions in the media and other social factors can dramatically affect how you respond to being kissed.
More Facts About Kissing
What an Incredible Smell You’ve Discovered
People in some cultures rub one another’s noses or cheeks rather than, or in addition to, kissing. Anthropologists theorize that this “Eskimo kiss” grew from people smelling one another’s faces much the way animals do.
Do We Have to Hear the Kissing Part?
Modern research suggests that members of just about every culture on the planet kiss. However, anthropologists and ethnologists have described a few cultures in Asia, Africa and South America in which people do not kiss at all. Some of these cultures view kissing as disgusting or distasteful. On the other hand, other researchers point out that these societies may view kissing as too private to discuss with strangers. In other words, they might kiss but not talk about it.
There aren’t many records of kissing in the Western world until the days of the Roman Empire. Romans used kisses to greet friends and family members. Citizens kissed their rulers’ hands. And naturally, people kissed their romantic partners. The Romans even came up with three different categories for kissing:
- Osculum was a kiss on the cheek
- Basium was a kiss on the lips
- Savolium was a deep kiss
Kissing Under the Mistletoe
Today, some people seem to spend the holiday season waiting under the mistletoe in the hopes of kissing whoever passes by. But until the 1400s, kissing under mistletoe was a big commitment. Such kisses often meant that a couple was engaged.
Cooties from Kissing
Most people know that mouths are germy places. Kissing is directly tied to a few illnesses:
- Mononucleosis is often called “the kissing disease” because it is carried in saliva and can be spread through kissing.
- The herpes simplex 1 virus causes cold sores and is easily transmitted through kissing.
- Although kissing doesn’t necessarily cause meningitis, researchers have tracked a correlation between teenagers’ number of kissing partners and likelihood of developing the disease.
- Some researchers theorize that bacteria that cause gastric ulcers may spread through kissing.
Consent and Kissing
“Georgie Porgie Pudding and Pie,
Kissed the girls and made them cry;
When the boys came out to play,
Georgie Porgie ran away.”
Let’s take three examples of kisses that were not consented to (See the 2011 article, Sex-harass suspension of 1st grader stirs debate, for the entire story.)
- In Lexington Kentucky, six-year-old Johnathan Prevette was taken out of the classroom and didn’t get to go to an ice cream party because he was being punished for kissing a girl in the class.
- A 7-year-old boy in Queens, Brooklyn kissed a girl and tore a button off her skirt, he says, to make her look more like his favorite teddy bear, Corduroy.
- In Brockton, Massachusetts a first-grader was suspended for 3 days after he put two fingers inside a girl’s waistband. He said he only did it after she touched him.
It might be easy to say that feminists have caused these problems by keeping schools vigilant about sexual harassment, but feminist expert Nan Stein, of the Wellesley Center for said that this isn’t sexual harassment. The little boys probably don’t even know what that is.
Even lawyers don’t see a problem. In this article we are discussing, one civil rights attorney who has handled school discipline cases was quoted as saying, “The connotation is you’re getting some kind of sexual gratification, or wanting sexual gratification, or are putting pressure on for some kind of sexual gratification, when a 6-year-old doesn’t have that capacity.”
Okay maybe it’s not sexual harassment. It’s not severe; it’s not pervasive; it’s not a pattern of behavior. But what rule is it breaking and why might that be an important rule?
Readings and Discussion:
Take a look at this opinion piece by author Elizabeth Simpson (1996): Kids Should Obey Rules for Kids, Not for Grown-Ups
Now read Susan Wloszcyna’s (2003) article from USA Today: When a Kiss Isn’t Just a Kiss
And, for another perspective, read Jonathan Stillerman’s (2003) article: Masculinity in the Media: Doing Unto Others at the Oscars
A Conversation Between Four Teen Writers on the Website Scarleteen:
Retrieved from http://www.scarleteen.com and reprinted with permission. Names have been changed per request of the website founder and executive director.
I’m sure I don’t need to ask, but, anyone catch the Oscars on Sunday?
If you didn’t here’s a recap of the scene I’m going to talk about:
When he won his surprise best actor trophy for his role in The Pianist, Adrien Brody walked on stage, and planted a very big kiss, with tongue possibly involved, on presenter Halle Berry. From my perspective, she looked shocked and maybe a little upset while the kiss was actually happening, and then when the camera went back to her as the two were walking off the stage, she seemed happy enough and they had their arms around each other.
After the kiss initially ended, Brody motioned to Berry and said, “I bet they didn’t tell you that was in the gift bag!”
Now, there’s no evidence that these two know one another, let alone that they know one another intimately (Halle’s married and her husband was in the audience).
So, knowing that Brody had just won a major award in a huge surprise, is what he did sexual harassment, and would Halle Berry be right in speaking up about this? Maybe she’s fine with it in hindsight, but I really wonder how she felt at that moment.
I’ve tried to defend his actions to my partner over the past couple of days, but I just can’t do it. I can’t think of a reasonable defence for him. I’d say now that she isn’t his property. My partner rightly pointed out to me that as a presenter in that situation, Berry might have expected that the winner would give her a peck on the cheek and maybe a hug, but that would be it.
What do you think?
Ick, ick, ick. I saw that, too. And I am much less likely to dismiss it after he so rudely took up much more than his fair share of time, calling to the orchestra to stop, talking for at least two minutes.
If he was that inconsiderate and rude right after that, well……….
In short, no, it did NOT look to me like Halle Berry was okay with that kiss, and I do feel it would be appropriate for her to say something about it. Excitement and surprise doesn’t really cut it with me as an excuse for that.
CINNOBUN: I can honestly say I didn’t see anything really wrong with it.
DREAMTEEN: what he did was wrong. i am a survivour of sexual abuse and something like that would trigger me. 1 in 3 women are survivours. how would he know how she would feel about his actions. he violated her boundaries.
Based on all that you just read, consider the following questions:
- Do you need consent to kiss?
- Under what circumstances should you ask first?
- How wrong is it and under what circumstances might it be wrong to ask?
- Does asking ruin the fun?
- Do girls and women really want to be swept off their feet?
- Does it matter what gender the kiss initiator is?
- How harmful could an unwanted kiss be?
- What’s the difference between an unwanted kiss and an unwanted butt grab?
- Does the kind of kiss it is matter?
- Is tacit (unspoken) consent enough?
- How do you know if someone wants you to kiss him or her?
- How can you be sure you’re perceiving that person correctly?
Reading and Discussion: Consent and Autonomy
Why is consent important? Is consent to sex more important than consent to other acts? We treasure our freedom and believe in our individual rights, but what rights do we have regarding consent? A primary right seems to be one’s right to autonomy, to make one’s own choices, to live one’s own life according to one’s own wishes, and to yield decision-making or choices to others only through a contract or agreement or love. Think of the They Must Be Giants song, “You’re not the boss of me.” At its most basic level, that’s what autonomy means—being the boss of yourself. Respecting someone else’s autonomy must then mean respecting that he is the boss of himself, and that while we might want to persuade people to do things, forcing them to do things shows disrespect for their autonomy.
What does autonomy mean? It means that you are your own person who makes decisions freely. In common speech, you’re acting autonomously when you’re being true to yourself, standing up for what you believe, thinking for yourself (and recognizing how others influence you but not letting those influences determine what you believe in). One of the biggest insults a parent can say is, “You just think that way because your friends think that way.” Right? And why is that so? Because growing up in this society, you probably treasure the ability to make your own decisions and the awareness that you and only you can determine what you do. Even the youngest of children say to a parent, “You can’t make me!” declaring their independence. Of course a parent can make the child do all sorts of things, but after a certain age, this is done through persuasion, encouragement, and coercion. Autonomy is self-determination.
Philosopher Marilyn Friedman (2003) describes in the reading what autonomy consists of. And understanding autonomy is important for understanding the importance of consent in sexual relationships as well as what counts as coercion.
So how does consent fit?
Again, at its most basic level, consent is agreement. If your Dad says do your homework and you say “all right” you are consenting to do your homework. If you don’t say anything, but go upstairs to your room and start doing your homework, you’re also consenting. The point is, you really do have a choice. Even if your Dad says, if you don’t do your homework we’re not going to watch “The Wire” tonight, you still have a choice. It’s just a choice that has some limitations. Even if you really really loved the TV show “The Wire,” we probably would all agree that it was still up to you to do your homework or not. We can take this example further, but there will be much better ones to come having to do with sexual requests.
There is an important debate today regarding whether explicit consent is necessary for a sex act or whether implicit consent is good enough. Explicit means the person has done or said something that means consent. “Yes, yes, oh yes” sound pretty much like explicit consent, doesn’t it? And if a girl puts your hand on her breast, this explicitly says that it’s okay to feel her up (unless of course she is saying at the same time, “Feel my heartbeat”, at which point you might ask yourself, “Is she flirting with me? Does she really want me to feel her breast? What am I supposed to do now?”)
Another way to categorize different kinds of consent is verbal vs. behavioral terms. Some people argue that unless someone says “yes,” then the other person can’t assume yes, no matter what the behaviors might indicate. They say this because behaviors are very much up to interpretation and people can make judgments about behaviors that are quite wrong. In fact, there is some research on rapists that shows that they are much more likely to see a woman flirting with them or even just being nice to them as an indication that the woman wants to have sex with them. Say what?
Does a person have to get verbal consent every time? Some people say that if two people know each other and have a pattern of doing certain things together then behavior is enough to show consent.
In a typical situation of a boy pushing a girl to do more than she might feel comfortable with, it is always the girl’s responsibility to say no. The assumption is that the boy will push and push because that’s what boys want. We know of course that that’s not true. It’s a stereotype, but it certainly can happen that way. And people have asked, why is it the girl’s responsibility? Why can’t we put responsibility on boys to ask? If they ask, then it shows respect for girls’ autonomy, their ability to choose.
Questions to think about:
- Without consent are you taking advantage of someone?
- What are the reasons why a girl might not want to have sex and go along with it anyway?
- What reasons might cause a boy who doesn’t want sex to go along with it?
- To what extent is it his/her responsibility to say no?
- To what extent is it the initiator’s responsibility to ask?
Consent on Youtube
There’s a humorous video on youtube showing a young woman and young man on a bed. They stop their carrying on for a moment to negotiate consent, but in response to the question, “Should we go on?” the guy pulls out of his back pocket a long legal contract. She then calls in her lawyer to go over it. They both allow their lawyers to negotiate the sex acts of the evening and bring up possibilities for future dates.
You can view the video here.
Coercion, Freedom, and Manipulation
Can silence ever constitute consent? Of course it can indicate consent, along with other actions, but whether or not we want to trust it is a different question. To know if another person is truly consenting, in the absence of the “yes, yes, oh yes,” we need to know there isn’t coercion or manipulation.
It is important to distinguish between autonomy and freedom. Autonomy is something more than freedom.
Consider the following excerpt from the Stanford Encyclopedia of Philosophy:
Reprinted with permission from Autonomy in Moral and Political Philosophy. First published Mon Jul 28, 2003; substantive revision Tue Aug 11, 2009. Christman, John, “Autonomy in Moral and Political Philosophy”, The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2011/entries/autonomy-moral/>.
When someone makes an autonomous choice, they’re not only free in the sense that there is no coercion, but they are also not unduly influenced by others. Their choice is truly their own. They’re not just doing it from pressure or because everyone is doing it.
Coercion negates consent. Coercion means causing someone to do something against their will. If someone was forced to do something, then they weren’t acting autonomously. And even if they consented, there may have been coercion or lots of pressure. But how much pressure does there need to be before a person is considered to be coerced? If your mom nags and nags at you to do your laundry and you finally give in and do it, does that mean you didn’t consent freely? If she threatens to take away your allowance for the next week if you don’t do your laundry and then you consent, is that not consenting freely? If she threatens to destroy your dvd collection if you don’t and then you consent, is that not consenting freely? How much pressure counts as coercion? Does it depend on the individual or are there some sorts of pressure that we might agree are always coercive?
Let’s move the discussion to sex. We don’t have to think about intercourse. We can talk about any sex act in terms of coercion. Does begging (a kind of nagging) constitute a coercive kind of pressure? It certainly is pressure for some, but is it coercive? What about if a boy says to a girl he will break up with her if she doesn’t do something? Many of you would advise that girl to just walk away from a guy like that, because you recognize that an ultimatum like that seems too coercive. But if you think that this is coercive, then you also think that somehow such an ultimatum takes away a little bit of the freedom the girl has to make her own decisions. In other words, you are viewing the ultimatum as more than just pressure.
What do we do with the problem that many people have mixed feelings about sex? They might want to, and not want to do something at the same time. That certainly complicates sex. Psychologists Charlene Muehlenhard and Zoe Peterson (2007) write that we tend to see sex as either wanted or unwanted. They write that there’s a difference between wanting to engage in sex or a sex act and being willing to. This might be confusing, so let’s look at a couple examples. Abbie does not want to have sex with Jim, but she is willing to for a variety of reasons (she wants Jim to like her, she feels bad for Jim because his parents are divorcing, or it seems too awkward at that moment to say no). Whether or not these are good or bad reasons for having sex (and please substitute making out or any other sex act in these examples), she was still willing and experienced herself as willing. In another example, Jack really wants to have sex with Kyra but he is unwilling to because he (feels he doesn’t know her well enough yet, knows she’s been going out with someone else, wants to wait until he’s married). Whether or not you agree with his reasons, it’s clear that even though he wants something, he’s not ready to consent to it. With these examples in mind, in situations in which teens might really want sex, what do they need to do to show or not show consent?
Discussion: Boundaries of Consent
To what can a person consent? Is anything okay? As long as two people consent to something, this consent is not coerced, they have adequate information about the consequences, and they are of sound mind, is it fine to consent to whatever they want? For example, if one person asked another person to murder her would it be fine as long as both consented? The philosopher Onora O’Neill (1985) asks if surgery between two consenting adults morally right. You would probably say that it is not.
So what about sex? Are there any acts that are potentially so harmful that no one should be able to consent to them? Who can consent? Later we will discuss why children can’t consent to sex, but for now, let’s consider what is it about a person that makes him or her able to consent. We assume that some sort of competence is necessary to consent—a competence that comes with age, mental ability, soundness of mind, and more. We clearly understand that certain people have questionable ability to consent. So, how competent is competent? Does having knowledge make consent valid? For medical procedures we are given something to read that tells us what the procedure entails and what the risks are. But are any of us all that knowledgeable to really consent to a medical procedure? How much do you have to understand before your consent is valid?
What about in matters of sex? How much sexual knowledge do you need to know to make consent valid? What if a teen believes that a girl can’t get pregnant if she’s on top? Does that make her consent to have sex invalid? She clearly does not have enough information to make sensible decisions. So, picture a teen who isn’t developmentally disabled, who isn’t consenting to sex with a 50-year-old teacher or her soccer coach, who isn’t drunk, BUT who simply doesn’t have a lot of information about sex—maybe her school didn’t have a good sex ed course, maybe she doesn’t read much on the internet, maybe she got bad information from a cousin. Is her consent valid?
Discuss some of these considerations in small groups or as a class.
Can a person change his or her mind during sex?
In circumstances where consent is given, can a person change his or her mind in the middle of a sex act? Some who believe that boys have more powerful sexual urges than girls might say this is unfair to a boy who has the potential of developing a case of “blue balls.” Although “blue balls” is rarer than jokes about it might indicate, it describes the uncomfortable feeling a boy can get if he is messing around for a long time with no release/ejaculation. Does the fact that it might be momentarily painful for a boy make it less right for a girl to change her mind?
There are plenty of other reasons for changing one’s mind: if a partner won’t wear a condom, if you don’t have a condom, if sex begins and it’s painful, or if either partner feels uncomfortable once sex begins. But there are two kinds of questions with regard to this change in thinking that are important to ask:
- What kind of behavior is needed to show a change of mind? Once intercourse has begun, is it all over?
- What can a person do or say that indicates a change of mind. Is doing something enough? E.g. pulling away? Why or why not?
For those who might have argued that it is unfair to change one’s mind in the middle of intercourse, answer the following questions.
- What does that say about autonomy or free choices if a person can’t change one’s mind and follow that change through?
- Why is intercourse different from other sex acts? Once you start to kiss someone can you never pull away? Once a person has a shirt off, is it unfair to put it back on? What’s different about intercourse?
Autonomy and Friedman
Philosopher Marilyn Friedman(2003) writes a great deal about autonomy. She begins with a description of what autonomy is and then goes on to say that to be autonomous, a person needs to be able to reflect on her wants and desires and evaluate them. That’s different than being a sheep. The idea is that unless you are able to think through why you believe what you believe, want what you want, and do what you do, you may just be acting according to others’ wishes. Indeed, that’s one of the reasons teachers in school ask you to keep journals and self-reflect on your learning. They want you to make it your own. And they want you to figure out if you really believe what you do or if you’re just following the crowd.
Friedman also says that just because your beliefs are a part of the culture you grew up in doesn’t mean you’re a sheep for following them. When you self-reflect on them, when there is the potential for non-conformity, and when you can rebel against them if you wish, then they’re really autonomous beliefs. Read the following quote from Friedman:
People’s values and commitments are often grounded in social norms and conventional practices. Most people assimilate to some extent the norms of their cultural milieus. People who reflect on their values and commitments are often thereby reflecting on norms they have assimilated from the culture(s) in which they were raised or currently live. Such reflections may, of course, result in the personal (re)affirmations of those norms. Yet critical reflection on norms also harbors the undeniable potential for personal repudiation of assimilated norms. (Friedman, 2003, p. 60).
Think about the following questions:
- What makes someone deserving of our respect?
- In our society, in what ways have girls and women’s autonomy been challenged?
- In what ways have boys’ and men’s autonomy been challenged?
Reading and Discussion: Consent and Alcohol
Alcohol impairs judgment. This has been taught in many a health class throughout the nation. This is why there are police officers who wait, hidden, on Saturday nights, ready to pull over any car that wavers a bit over the center yellow line. But people who have been drinking generally tend to feel as if their judgment is not impaired, and unless a person is visibly very drunk, people tend to believe that other people’s judgments are not impaired. How impaired does a person have to be to invalidate their ability to consent to sex?
Take the policy at Brown University. It isn’t a policy about drinking; that is to say, drinking doesn’t invalidate consent. But impairment does. They write that it’s an offense to have sexual relations with another who has a “mental or physical incapacity or impairment of which the offending student was aware or should have been aware” (Brown University, Office of Student Life).
Now consider the following he/she scenarios (although note that any of these could occur in homosexual couples):
- If she has been drinking but he can’t tell if she’s drunk, can he trust her consent? How much consent does he need? Why?
- If he has been drinking and just vomited, how does that affect his ability to consent? Why?
- If he is passed out unconscious, can she proceed to do something sexual to him? Why?
- If she has been drinking and asks him to come back to her room to have sex, is that invitation valid? Why?
- If he has been drinking and asks her to come back to his room and have sex, does that make his invitation invalid? Why?
- Are these last two different in some way because of gender? Why or why not?
So what exactly are the indications of impairment? For example, if he asks her to have sex and she asks him to use a condom, does her asking him to use a condom mean that her judgment was not that impaired and her consent to have sex was valid? You might say yes to this question. And if so, what if it’s a different question, like whether or not he would prefer to go to her room? What makes each of these questions an indication or not an indication of mental soundness/mental impairment even when she has been drinking?
The Context of the Drinking
Some cases of consent and lack of consent are more clear, not because of the drinking but because of the circumstances of the drinking. For example, if someone has spiked the punch so the alcohol level is way higher than she expects, is she intoxicated against her will? On the other hand, what is she purposely drinks in order to have fun and hook up that night? Does that make her drunken consent more valid?
Drinking and Responsibility
Alcohol weakens the capacity to act on the basis of reason. Because of this, we tend to say a person is not responsible for their behavior when they have been drinking, but responsible for drinking to the point that they cannot be responsible.
But the problem is that alcohol rarely takes away all of a person’s reason. If we really stood by the idea that a person has no responsibility when he or she is under the influence of alcohol, then people would do all sorts of things and get away with them by drinking first.
Is a person morally responsible for his or her intoxicated behavior? If one person ISN’T capable of consent, then why is the other person held responsible for going ahead and having sex when he or she was drinking too?
Philosopher Alan Wertheimer (2003) wonders how consent and alcohol pertain to intoxicated gamblers. Should we ask hotels to pay them back? If not, then in some ways we hold people responsible for what they do when they’re drunk if they get drunk on their own accord. In one study, when college students were asked to rate different scenarios as “rape” or “not rape,” when they were presented with a scenario that indicated the “woman was severely impaired by alcohol and/or drugs and did not have the ability to resist,” only 18% of college students labeled that rape.
Exercise: Alcoholic Consent, Some Unusual Examples to Consider
From Wertheimer (2003),Ch. 11, Intoxication
Partying. A and B have dated, but have not had sex. A says, “Is tonight the night?” B says, “Yeah, but let’s have a few drinks first.” Later on, B gets quite high and responds positively to A’s advances.
- Does this count as consent?
Inhibitions. A and B have dated. B has said that s/he is not ready for sex. From her/his own experience and from other sources, B knows that alcohol consumption distorts judgment. Still, without thinking much about it, B consumes several drinks at a party. When A proposes that they have sex, s/he feels much less inhibited than usual, and s/he half-heartedly says “there has to be a first time.”
- Does this count as consent? Would A be wrong to press on?
Fraternity Party. B is a college freshman. S/he has never had much to drink. S/he attends her first fraternity party and is offered some punch. S/he asks, “Does this have alcohol?” A responds, “Absolutely.” S/he has several glasses, and becomes quite “high” for the first time in her/his life. When A proposes that they go to her/his room, s/he agrees.
- Does A have her consent? Is A wrong? Would this be rape?
Spiked. B attends a fraternity party for the first time. There is a keg of beer and a bowl of punch that has been “spiked” with vodka but labeled as nonalcoholic. B has several glasses of punch and becomes quite high. When A proposes that they go to his room, she agrees.
- Does A have her consent? Is A wrong? Would this be rape?
Dutch Courage. A and B have dated. B is a virgin and feels frightened of and guilty about sex. Believing that s/he will never agree to sex if sober, s/he consumes 4 drinks in one hour. After some kissing and “petting”, A says “Are you sure it’s OK?” B holds up her glass, smiles, and says “It is now.”
- Does A have consent? Is A or B wrong? Would this be rape?
Aphrodisiac. An aphrodisiac has been developed (in reality, there aren’t any). A slips a pill into B’s drink. Having become excited, B, who has never shown much interest in sex, proposes they have intercourse.
- Does A have consent? Is A wrong? Would this be rape?
Lactaid. B refuses to have sex with A because s/he has been experiencing abdominal pain. After testing positive for lactose intolerance, s/he begins taking lactaid pills. S/he feels much better on this “drug” and agrees to have sex.
- Does A have consent? Is A wrong? Would this be rape?
Discussion: Consent and Alcohol
- Is there a difference between alcohol affected consent and intoxicated consent?
- Is it really possible to know at what point a person’s “free will” is affected?
- In the examples above, was there a difference for you if the drunkenness was self-induced vs. other-induced? Is there “more consent” if the person got drunk on purpose? And what if she got drunk on purpose in order to have the courage to have sex?
- Some people might have argued that A has a responsibility to protect B from herself in some of the examples above. Why would that be so? Can you take a Kantian view now and develop a law that you would like to have applied to all people?
- How is autonomy affected by alcohol?
- Where does respect enter the picture in terms of the treatment of other people when they are drunk?
Reading and Discussion: The Antioch Policy
Read through the Antioch Policy and discuss the following questions:
- Thinking idealistically, is this a good policy?
- Is it practical?
- How would drinking or doing drugs affect each of these points?
Reading and Discussion: Age and Consent
As we learned in the previous section, the ability to consent is affected by alcohol. The ability to consent is also affected by age. Can you think of reasons why age is an important factor in whether or not a person is able to consent to sex? Some cultures do not have age. If we didn’t have age, what would we use as an indicator of the ability to consent?
When it was announced in 2008 that Jamie Lynn Spears, the 16-year-old sister of Britney Spears and star of Nickelodeon’s “Zoey 101”, was pregnant, it left some wondering whether her boyfriend, Casey Aldridge, was guilty of “statutory rape.” Statutory rape is a term used to describe sexual intercourse in which one of the participants is under the age required to give consent for sex. In the United States, it is illegal to have sexual intercourse with, or to sexually penetrate, someone who is not considered to be old enough by state law. This is because, according to state law, they are not yet at an age in which they are able to consent. Aldridge was reportedly 18 years old at the time of conception.
What do you think? Is it illegal or unethical for an 18 year old to have sex with a 16 year old?
Since it is unknown where Spears and Aldridge’s child was conceived, it is unknown whether they broke the law, because laws about the legal age of consent vary across states. 16 is the most common age of consent, although this varies. In addition, many states have what is called an “age gap provision.” This means that if you are similar in age to the victim, it is not considered a crime, or it is considered a lesser crime. Let’s examine the laws in the states where Spears and Aldridge’s child may have been conceived.
In Louisiana, where Spears lived between taping sessions, the age of consent is 17 and it is illegal to have sexual intercourse with someone between age 12 and 17 when the person is 19 or older. Verdict? NOT GUILTY.
In Mississippi, where Aldridge lives, the age of consent is 16. Verdict? NOT GUILTY.
In California, where “Zoey 101” is taped, the age of consent is 18. There is no age gap provision in California, although the type of offense and punishment decrease when the offender is close in age to the minor. Verdict? GUILTY.
Ask your teacher what the laws for age of consent and age gap provision are in your state.
There are other important laws and legal trends that pertain to age of consent. First, the behavior that is considered illegal for those under the age of consent varies. Dating, hugging, kissing, and holding hands are not illegal in any states, while sexual intercourse or penetration is illegal for those under the age of consent in all states. However, there are some interesting differences between state laws:
- Several state laws establish that groping through clothes, fondling, or oral sex is also illegal for persons under the age of consent.
- Some states determine that sex between same-sex partners is illegal under all circumstances, even when both partners are above the age of consent.
- Some states have an exception for age of consent laws when the two partners are married or live together.
What do you think these laws say about the state’s view of what is considered to be ethical sex?
The History of Age of Consent
Below is a table displaying changes in the legal age of consent in the United States from 1895 to 1996. Think about what factors may have caused these changes. Also think about how the differences may affect young people living during these two time periods. What might the legal age of consent look like in 2050?
Changes in Lowest Legal Age for Heterosexual Consent, 1885 and 1996 (Schaffner, 2003)
* not available
Mistake of Age Defense
Another law in some states pertains to situations in which the older partner believes that the younger partner is over the age of consent. Approximately 13 states have the “mistake of age” defense. This means that if the older sexual partner believes, within reason, that the victim is over the age of consent, he or she is not guilty of a crime. This law brings up interesting questions as to what responsibility a person has to ensure that his or her sexual partner is over the age of consent. Can you think of circumstances in which this law may apply?
Differences between Males and Females
A last important consideration in issues related to age of consent is the gender of the individuals involved. Some country’s laws about age of consent vary by the gender of the person. For example, in Afghanistan, a male must be 18, and a female must be married in order to legally have sex. In Austria, a male’s age of consent is 14 and a female’s age of consent is 16. Even in the United States, gender plays an important role in age of consent. Men are prosecuted much more than women for having sexual relations with someone under the age of consent. When women are prosecuted they tend to have a much larger age gap, meaning they are much older than the victim. Why do you think gender matters?
Exercise: Age of Consent Vignettes
1. Most people who believe that premarital sex is not unethical would think that it is okay that Spears and Aldridge had sexual intercourse. But let’s examine these issues closer. Would you have the same response if Aldridge was 25 years old?
At what age is it not okay to have sex with a 16 year old? Indicate your response on the below line.
2. What if he were her manager? In this circumstance, at what age is it not okay to have sex with a 16 year old? Indicate your response on the below line.
In some states, such as Connecticut and Maryland, when a person of authority engages in sexual relations with a younger individual, they raise the age of consent to 18 rather than 16. Do you agree with this? Why or why not? Do you think other states should adopt this principle?
3. What if Spears’ mother and father gave consent for Spears to have sex with Aldridge. In this circumstance, at what age is it not okay to have sex with a 16 year old? Indicate your response on the below line.
Why do you think these laws exist?
Do these laws protect minors or limit their autonomy? What needs to be protected? Why?
Jordan is 15 years old and has been dating Pat, a 20 year old, for several months when they have sex for the first time. Jordan is very shy and this is the first time Jordan has been in a relationship and has had a sexual experience.
- Is it wrong for the 15 year old to have sex with the 20 year old?
- What things should Jordan and Pat consider when making this decision? What’s the risk for each of them?
- Imagine that Jordan has had sex before. Does that mean that Pat should not worry as much about whether or not Jordan is mature enough to consent?
- The names of the persons in this vignette were chosen because they can apply to males or females. Does gender matter?
Dante is 21 years old and is at a college party where he meets Ann. He assumes that she is in college, but never asks. They hang out throughout the night and later go back to his apartment where they have sex. He doesn’t know that Ann is actually 16 years old and is a sophomore in high school.
- Should Ann have told him her age?
- How responsible was Dante, on a scale from 1 to 10, for asking for Ann’s age?
Carol is 15 years old and Matt is 22 years old. Carol has been going out with Matt behind her parents’ backs for three months. She tells her parents that she is sleeping over her girlfriend’s house in order to spend the night and have sexual intercourse with Matt. Putting away Carol’s laundry one day, Carol’s mother finds her birth control bills. Carol’s mother is extremely upset, especially when she discovers that Matt is 22 years old. She confronts Carol and demands that Carol stop seeing Matt. Carol does not deny her involvement with Matt and refuses to stop seeing him because “I love him and he loves me.”
- Does Carol’s mother have the right to prevent Carol from seeing Matt?
- Some states have lower ages of consent when parents give consent for their child to have sex. In addition, in the majority of cases, it is parents that report illegal sex with someone under the age of consent. What does this say about adolescent’s autonomy?
Alyssa is 15 years old and Marshall is 21 years old. They have been dating for 2 years. Although Alyssa’s age is under the age of consent in her state, she decides that she is ready to have sex and talks to her mother about it. Her mother gives approval and takes her to the health clinic to acquire protection against pregnancy and STDs and Alyssa and Marshall have sex.
- Is it unethical that Alyssa and Marshall have sex?
- Does it matter how long they have been in a relationship?
- Does it make it less unethical that Alyssa’s mother has given her approval?
Jeremy is 15 years old and identifies as gay. He has recently started attending a support group for coming out. This group has attendees that are diverse in age. One of the older men flirts with Jeremy and asks him on a date.
- Is it wrong to pick up someone at a support group?
- Would it matter if the man who picks up Jeremy was 18 years old? How about 25?
After seriously dating Woody Allen for more than a decade, in 1992, Mia Farrow found nude photos of her adopted daughter, Soon-Yi Previn, in Woody Allen’s apartment. At that time Soon-Yi was 21 years old and Woody Allen was 56. Farrow freaked out. This was obviously a betrayal to their relationship, but was it sexual abuse? Allen and Previn continued to date and later married. In response to the morality of dating and then marrying his ex-lover’s daughter, Woody said “the heart wants what the heart wants. There’s no logic to these things. You meet someone and you fall in love and that’s that.”
- Can you control who you love?
- Are you responsible to do so?
- Did Woody Allen do something wrong?
- Does it make a difference that Soon-Yi Previn was over the age of consent?
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