From Consensual to Trusting Sexual Relations
Sometimes sexual acts are not exactly consensual, but still morally permissible. Suppose you kiss someone spontaneously, without having discussed it. If all that mattered was consent, you might be a sexual offender. But spontaneous, uninvited sexual activity—while far from being always or even generally permissible—sometimes is. What can explain why some seemingly nonconsensual acts are okay, while others clearly aren’t?
Most philosophers appeal to a notion of implied consent. I propose an alternative answer: trust. My aim is not to replace the concept of consent—consent is still important—but rather to give trust its own place on the conceptual stage.
The focus on consent has problems. Consensual sex is not always good sex. As the philosopher Quill Kukla explains, “We can fully autonomously agree to all sorts of harmful and unethical things, for terrible reasons...I might agree to do something that I find degrading or unpleasantly painful, perhaps because…my partner isn’t interested in finding out what would give me pleasure.” Radical feminists have argued that consent is a deficient tool: a lot of consensual sex—plagued by power differentials and unequal gender norms—is just as morally problematic as rape.
Why do we latch onto consent? One reason is our model of sexual decision making. In the world of theory, both partners have complete information about their own and the other’s desires, communicate clearly—asking for permission to act and requesting what they want—and act according to what’s communicated. Such situations are highly idealized (but perhaps not ideal). The truth is that sex is complicated by our ignorance of ourselves and others, mixed signals, impulsiveness and shyness, and power inequalities. And despite—and maybe because of—these facts, good sex is possible.
To see how trust can lay the groundwork for fruitful relations, consider an analogy with doctor-patient relationships. In medical contexts, Richard Holton and Zoe Fritz argue, “the doctor takes responsibility for the uncertainty.” Trust enables a division of labor to occur:
The patient will often accord much discretion to the doctor: to decide on treatment, to handle the uncertainty, perhaps to act as a custodian of information, selecting and sharing that which is in their interests, and withholding information which they think will not be in their interests to know. Here there should be consent, but again it will not always be fully informed consent. What needs to be informed is the trust.
For the trust to be informed, the doctor and patient must come to a shared understanding of the decision-making process—who will make certain kinds of calls and in what ways. This will vary: some patients might want to be apprised of everything; others left in the dark. There is no catch-all description of what constitutes a trusting doctor-patient relationship.
Trusting sexual relations can resemble doctor-patient relations in the following way: both partners are in a state of ignorance about their partner’s desires, their own desires, and the outcomes of certain acts. I might not know what you like, what I like, or what will happen if I perform a certain action. Likewise, one person may “take charge”—there may be a division of labor that occurs as part of a trusting relationship.
Thinking about sexual ethics in terms of trust allows us to appreciate how taking risks in the bedroom can be morally positive. Trust can transform the meaning of acts. It can turn the problematic into the permissible, as when I give my partner a key to my flat to drop off a bag and they surprise me by assembling my new table and cooking me dinner. If they were a mere acquaintance, this may have been a breach of privacy. Trust turns it into a sweet gesture—even if I did not explicitly consent their doing it.
So when you go in for the spontaneous kiss, trust is what can make you a romantic, not a sex offender. If your partner trusts you, the kiss might be welcomed. If it is unwelcomed, trust may salvage the relationship, as they might trust you not to try it again or ask before you do.
In romance as in life, there is an element of moral luck involved; you may not know if the a spontaneous kiss will be welcomed until you try it. As Annette Baier writes, “we come to realize what trust involves retrospectively and posthumously, once our vulnerability is brought home to us by actual wounds.”
Katherine Angel has recently argued that sexual ethics should embrace ambivalence and ignorance about our desires:
If asked, we might not say that what we want is sex in a hotel with a gruff stranger. It might be inaccurate to say either that we did, or that we didn’t. Desire isn’t always there to be known. Vulnerability [to giddiness] is the state that makes its discovery possible.
Trust makes this vulnerability possible. Some might wonder if this argument will easily lend itself to abuse. Indeed, many see the recognition that we might not know what we want as only a small leap away from arguing that “no” does not really mean “no” and the like. But this is a misunderstanding of the argument. A man who attributes a woman’s resisting his sexual overtures to ambivalence or shyness is deluded, not discerning. Appealing to someone’s uncertainty or saying “she liked it” is no form of permission when those claims are false.
By fostering trusting relationships, we can transform our vulnerabilities into opportunities. How do we foster trust? That’s a question for another time, but the short answer is: be trustworthy. A trustworthy partner is one who thinks about their partner’s desires and asks when appropriate; they gather information, empathize, put themselves in the other’s shoes. They do not narrowly seek their partner’s consent. They seek to understand.
Sarah W. Hirschfield  is doing an MPhil in Philosophy and is a member of Trinity College, Cambridge.