Current Thoughts: Consent, part 2 – internal and external

{Originally posted on my tumblr on Tues Jan 21 2014}

When people talk about consent, they often use the word to mean two different things. One of them is internal consent, which is what I talked about in part 1. The other one is external consent, which is communication about the internal state of consent. It is important to recognize that it is internal consent that matters. External consent is necessary because since consent is an internal state, the only way anyone but the person experiencing it can know about it is if they are told. To discuss this, I make a table with the four possibilities.

1.External consent is yes
|| Internal consent is yes
2.External consent is not yes
|| Internal consent is yes
3.External consent is yes
|| Internal consent is not yes
4.External consent is not yes
|| Internal consent is not yes

Cases 1 and 4 are the simple cases.
In 1, the person is in a state of consent and has communicated this, so things can happen.
In 4, the person is not in a state of consent and has either communicated this, or simply not communicated anything affirmative, so things should not happen.

Case 2 comes up a lot when people talk about consent. My thoughts on it are as follows.
First, since it is impossible to distinguish case 2 from case 4 from the outside, it is not ethical to proceed on a lack of external consent in the hopes that case 2 is the true one. This relates to a concept from statistics: the two kinds or errors possible here vary inversely, so you use prioroties to decide how much of each you’re willing to permit. Since according to my system of ethics, the priority is to avoid violating consent whenever possible, as many cases as might happen of not acting in case 2 (even though there was internal consent for this) are permitted in order to avoid cases of acting in case 4 (and violating someone’s consent). Therefore anyone who does proceed against external consent is doing something wrong, even if internal consent turns out to have actually been present.
Second, people who have acted in what turned out to be a case 2 is what I call ‘Schrödinger’s rape’ or ‘you are only not a rapist bcause you got very lucky’ {substitute words other than rape/rapist for when the violation is not sexual}. This is like sticking a gun out of your window and firing repeatedly into the street, but it turning out that you didn’t actually hit anyone. Less damagae occured than could have, which is good, but this does not make the action less wrong.

Case 3 is the most complicated one. It is one we want to do everything possible to avoid, but at the same time the only way to avoid it entirely is to never go forward with anything at all, and this isn’t possible. My general conclusion, ethically, is that the more likely case 3 is to occur, the more measures have to be taken against it. This is why I think that as long as we live in the society and culture we do, it is necessary to reassure people you might be asking something of that no is perfectly acceptable, and as OK as a yes. This is one of the areas where, if someone gives external consent but I feel there is something wrong, it is my ethical responsibility to do something about this and not simply proceed, and possibly to end up deciding not to proceed at all. This is why there are situations where the final determination does end up being ‘it is never alright to do this even if the person says yes’ (for instance, statuatory rape), because the chances of case 3 occuring are too high.

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