Ethics Explainer: Consent

In many areas of life, being able to say “yes”, to give consent, and mean it, is crucial to having good relationships.

Business relationships depend on it: we need to be able to give each other permission to make contracts or financial decisions and know that the other person means it when they do.

It’s crucial to our relationships with experts who we rely on for critical services, like doctors, or the people who manage our money for us: we need to be able to tell them our priorities and authorise the plans they devise in light of those priorities. And romantic relationships would be nothing if we couldn’t say “yes” to intimacy, sexuality, and the obligations we take on when we form a unit with another person. 

Giving permissions with a “yes” is one of our most powerful tools in relationships. 

Part of that power is because a “yes” changes the ethical score in a relationship. In all the examples we’ve just seen, the fact that we said “yes” makes it permissible for another person to do something to or with us – when without our “yes”, it would be seriously morally wrong for them to do that very same thing. This difference is the difference of consent.

Defining Consent

Without consent, taking someone’s money is theft: with consent, it’s an investment or a gift. Without consent, entering someone’s home is trespass. With consent, it’s hospitality. Without consent, performing a medical procedure on someone is a ghoulish type of battery. With it, it’s welcome assistance. 

The same action looks very morally different depending on whether we have said “yes”. This has led some moral philosophers to remark that consent is a kind of “moral magic”. 

Interestingly, there are times when this moral magic can be cast even when a person has not said “yes”. In the political arena, for instance, many philosophers think it doesn’t take very much for you to have consented to be governed. Simply by using roads, or not leaving the territory your government controls, you can be said to have consented to living under that government’s laws. 

The bar for what counts as consent is set a lot higher in other areas, like sexual contact or medical intervention. These are cases when even saying “yes” out loud might not be enough to cast the “moral magic” of consent: we can say “yes”, but still not have made it okay for the other person to do what they were thinking of doing.

For instance, if a person says “yes” to sex or to get a tattoo because they are drunk, at gunpoint, ill-informed, mistaken, or simply underage, most ethicists agree it would be wrong for a person to do whatever they have said “yes” too. It would be wrong to give them the tattoo or try to have sex with them, because even though they’ve said “yes”, they haven’t really given consent. 

This leads philosophers to a puzzle. If saying “yes” alone isn’t enough for the moral magic of consent, what is?

Do we need the person to have a certain mental state when they say “yes”? If so, is it the mental state, the combination, or just the “yes” that really matters? This is a long and wide-ranging debate in philosophical ethics with no clear answer.

Free and Informed

Recently ethicist Renee Bolinger has argued that the real question is not what consent is, but how best to avoid the “moral risk” of doing wrong. She argues that in this light, we can see that what matters is not what consent is, but what our rules around consent should be, and those rules should consider consent a ‘performance’, or an action, such as speaking or signing something. 

Some policy efforts have tried to come up with “rules about consent” that codify when and why a “yes” works its moral magic. There is the standard of “free and informed” consent in medicine, or “fair offers” in contracts law. Ethicists, however, worry that these restrictions are under-described, and simply push the important questions further down the line. For instance, what counts as being informed? What information must a person have, for their “yes” to count as permission?

We might think that knowing about the risks is important. Perhaps a person needs to know the statistical likelihood of bad outcomes. However, physicians know that people tend to over-prioritise relatively small risks, and in emotional moments can be dissuaded from a good treatment plan by hearing of “a three in a million” risk of disaster. So would knowledge of risk be sufficient for informed consent, or do we need to actually know the probability?   

There is a final important question for our thinking about consent. Whatever consent is, are there actions you cannot consent to?

A famous court case called R v Brown established in 1993 that some levels of bodily harm are too great for a person to consent to, whether or not they would like to experience that harm. In any area of consent – medicine, financial, sexual, political – this is an important and open question.

Should people be able to use their powers of consent to do harm to themselves? The answer may depend on what we mean by harm.