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The Sext Wars: Consent, Secrecy, and Privacy

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4 Responses

  1. Patrick says:

    Isn’t relying on the concept of consent somewhat problematic when the law presumes that minors aren’t capable of legal consent? How do we reconcile these two concepts?

  2. The presumption of sexual non-consent certainly makes sense if we are thinking of pre-pubescent children or relations between a minor and a much older person or family member. It seems very strange, though, to maintain that teenagers can under no circumstances consent to sex with each other, or even to sexual acts not amounting to intercourse (such as sending racy pictures) with each other. I don’t think we really believe that a 16-year-old boy cannot consent to sex with a 16-year-old girl, or vice versa, whatever statutory rape laws might say. The presumption of non-consent in such cases is not only unjustifiably paternalistic, but it also leaves us no truly meaningful way to distinguish between a teenager’s seemingly voluntary sexual choices and clearly involuntary acts that might be imposed upon her. Creating and sending an intimate photograph of oneself (assuming that there was no coercion involved) demonstrates some measure of choice and control over one’s body; distributing that image without the creator’s permission clearly violates that choice and control.

  3. This is not in reference to the bulk of the post, but the reply to the “other Patrick” above:

    I do wonder about the notion of consent among young people (drawing lines here of course is notoriously difficult), not so much the questionable presumption of non-consent, but whether teenagers really have a clear conception of what “consent” fully means, legally and otherwise. Indeed, what counts for consent remains in some respects, I think, a tricky issue in general, at least on occasion and perhaps in more than just those cases we may describe as at the margins (or as ‘outliers). Several variables come into play here: consent involves a communicative act of “informing,” a speech act which is rather context-dependent (i.e., has both semantic and pragmatic dimensions), involving wants and desires, capabilities and expectations, assumptions and background (or implict and tacit) knowledge, and so forth. Informing is also, as Onora O’Neill reminds us, norm-dependent: “Unless speakers and audiences adhere to certain mutually accepted epistemic and ethical norms, and take one another to adhere to those norms, communication cannot succeed.” What about, for example, cases where the act of communication can not be described as clearly propositional or intentional, or is supplemented by inferences (say, about someone’s emotional state or attitude) by one party not wholly intended or anticipated by the other party? Informing can be, as O’Neill and others have pointed out, “referentially opaque” (in which case conventional semantic meaning may break apart from contextual or pragmatic factors that affect either speaker or hearer’s meaning). Beliefs held by the respective parties invariably affect the inferences drawn and this reminds us of how much hinges on the inferential abilities of the parties, upon those messy contextual factors (that fall under the rubric of ‘pragmatics’ in a technical sense and thus take us beyond reliance on what O’Neill, after linguists and cognitive scientists, term the ‘conduit/container’ metaphor of communicative acts that centers simply upon the idea of ‘transfer of content’).

    I realize this is all fairly abstract and I don’t expect these questions to be fully addressed here, but I wanted to at least raise them to the extent that we may unreflectively believe or routinely think (or at least I suspect we do so) we possess a clear understanding of what “the act” of consent entails, and all the more so among individuals who in terms of psychological maturity at least, are not adults.

  4. I can certainly relate to your skepticism about consent, Patrick (O’Donnell). But that’s largely because I’m skeptical about consent generally, with regard to both adults and children. In fact, I think that one of the problems in debates over issues such as sexting is the bright-line distinction between adults and children. The presumption that all adults are capable of informed consent and that no children are leads to some perverse results – e.g. when a 17-year-old prostitute is treated as a victim but a 19-year-old prostitute it treated as a criminal. I don’t believe that the answer to such oddities is to presume consent at younger and younger ages; rather, I think the answer is to maintain our skepticism about consent even as people cross the threshold from childhood to adulthood. To the extent that we are concerned, for instance, that a 15-year-old’s decision to send an explicit photograph of herself is not a fully informed decision, our concern should not be limited to her youth. Rather, we should be concerned (for example) about whether social norms selectively put pressure on girls and women to sexualize themselves in these kinds of ways, and whether this sexualization is in their best interest in the long run, especially given the double standard applied to female sexual expression.

    As a general matter, I think much of the consent that characterizes social interactions is questionable. Our society takes a very legalistic view of consent that often fails to take adequate account of the forces of social coercion and construction. Given that this is the case, I agree that children as a group are of course even more vulnerable and less informed as compared to adults. But that is exactly why we should sometimes be less alarmed by the things children do with each other: all children are consent-challenged to roughly the same degree within their peer group, as all adults are within their peer group. The further apart in age, experience, or power two people are, the more we should be concerned about the effect of asymmetrical consent. So it makes sense to be alarmed about, for example, sexual contact between a 30-year-old and a 15-year-old, given the great disparity in knowledge, experience, and relative social power. By the same token, we should be less concerned about sexual contact between two 15-year-olds.

    In any event, it’s quite clear that the furor over sexting is not driven by concern for the autonomy of the creators of the images. If this were true, we would treat the creators of the images more sympathetically than the distributors, which is the opposite of what tends to happen. And to reiterate the point I made in response to the first Patrick, characterizing all the actions of children as non-consensual erases a distinction of great importance: it treats a choice that at worst ultimately harms oneself (creating and sending an image of oneself) the same way it treats choices that hurt others (deliberately distributing that image to unintended recipients).

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