When does a woman give valid consent to sexual relations?

Consent to Sexual Relations, by Alan Wertheimer. Cambridge, UK: Cambridge University Press, 2003, 276 pages. Cloth, $70.00.

In law school, some students invariably position themselves in the front of the classroom, hoping to engage the professor in a series of hypothetical variants of the case law, perhaps finding much personal reward in the process, if not always finding rewarding answers to complex problems. One guesses that Alan Wertheimer, the author of Consent to Sexual Relations, was once such a student (albeit as a Ph.D., rather than a law student). In only 276 pages Wertheimer poses no fewer than 120 hypothetical situations, and each is named, alphabetized, and reprinted in an appendix for easy reference (e.g., A man places one bullet in a chamber of a revolver. He says, "If you refuse to have sex with me, I'm going to spin the chamber, point the gun at your head, and shoot. You've got a 5/6 chance that the chamber will be empty. It's your call.").

This book is clearly not for those who seek a primer on the law of sexual consent. Nor is it a book for those who think in broad categories of black and white as it is for those who enjoy exploring fine shades of grey. For example, consider the scenario mentioned above. If the example above can be considered to invalidate the hypothetical woman's consent, then should it follow that the next example, also a probabilistic case of threatened harm, is a case of rape? (A and B meet at a bar and go back to A's apartment. B rebuffs A's advances. A smiles at B and says, "Look, you're alone with someone you don't know, who's much bigger and stronger, and for all you know, has beaten and raped several women. Maybe I'm not as nice as I seem." B is very frightened by A's remarks and does not resist A'S advances.). As these and other hypothetical situations illustrate throughout the book, there are no easy answers as reward. Wertheimer describes his purpose as philosophical rather than practical, and organizes the book around the central question of when a woman gives valid consent to sexual relations.

In the introductory chapter of the book, Wertheimer eschews the traditional mantra of "no means no," and considers instead when "yes means yes," or, more specifically, when some token of a woman's consent makes it morally or legally permissible for a man to move forward with his sexual advances. Wertheimer admits from the outset that his analysis is gendered, meaning that the person whose consent is at issue is female, and the person who requires such consent is male, in part because this approach reflects empirical reality. He introduces an underlying tension (which he further develops in later chapters) between protecting women's positive and negative autonomy: to the extent that we seek to safeguard women (i.e., to protect their negative automony), we should set the bar high for what qualifies as consent, but to the extent that we wish to allow women to realize their own goals and desires (i.e., to grant them positive autonomy), the bar should be set lower.

Chapter 2 briefly sketches the law of rape. Wertheimer starts with the law because he believes that it defines the issues that an adequate theory of consent must confront. He outlines statutory trends with regard to issues of force and threats, victim incapacity, marital rape exemption, and the like. In this vein, Wertheimer notes that most states have abandoned the statutory requirement of "utmost resistance" on the part of the victim as requisite to a rape claim, although Wertheimer rightly wonders to what extent fact-finders might continue to implicitly use resistance as a barometer of a claim's validity. In this chapter, Wertheimer also defends a consent-based model against accusations that it wrongly provides an invitation to put the victim rather than the defendant on trial.

Chapter 3 is the longest chapter of the book, and this seems unnecessary, a delay of the book's forward progress. In this chapter, Wertheimer discusses principles of evolutionary psychology. The point to be elucidated here is that via natural and sexual selection, men and women have evolved competing sexual interests. In particular, it may have been adaptive for men to have evolved a propensity for sexual aggression under certain circumstances, and, conversely, for women to experience rape as a highly aversive experience. As such, a sound approach to issues of consent should be responsive to the evolved sexual psychology of men and women (e.g., in evaluating the viability of institutions and mechanisms seeking to control the problem of rape). At the same time, Wertheimer cautions that evolved dispositions should not be equated with genetic determinism. The points are fine, but are belabored and have been made elsewhere (e.g., Symons, 1979; Buss, 1998). Given the extended discussion here, it is somewhat surprising that insights from evolutionary psychology are seldom applied to the second half of the book (chapters 612), in which the analysis shifts from sex to consent. For example, it seems relevant to have discussed the implications of evolutionary psychology in Chapter 9, which covers deception as a problem potentially vitiating consent in sexual relationships.

Chapter 4 considers nonconsensual sex from the perpetrator's perspective. Theories of rape as about violence and not about sex (RVNS) are considered, at which point evolutionary psychology is called upon to show that rape is motivated at least in part by reproductive aims. The evolutionary perspective is also contrasted with the Standard Social Science Model (SSSM). While the SSSM theorizes that rapists are males who are socialized in the wrong manner, evolutionary theory posits that rapists may be men with too little socialization against adaptive dispositions to sexually aggress. Finally, the prevention of rape is briefly considered. For example, Wertheimer underscores that to the extent that we deny rape's sexual underpinnings in favor of theories of RVNS, men may learn that their sexual behavior is acceptable so long as it is nonviolent. Because much of rape does not involve seemingly gratuitous violence, this may be problematic for prevention efforts.

Chapter 5 turns to the perspective of the victim, and seeks to understand the ways in which rape is harmful to the victim. This chapter is more philosophical in nature than its predecessors. In defining harm, Wertheimer distinguishes between well-being interests and rights-based interests in sexual autonomy (he uses a property analogy of burning down a house as an invasion of a well-being interest, and trespassing, which does no palpable harm, as an invasion of a rights-based interest). He also considers objective versus subjective harm, and rational versus irrational victim perceptions of harm, as well as reasons as to why rape may be a special kind of harm (this last point informed by evolutionary psychology). All of this is in service of how best to define when sexually aggressive behavior might be justifiably considered as morally or legally wrong.

Chapter 6 turns explicitly to issues of consent, and in particular, to determining the value of consent. Wertheimer considers whether consent renders sexual relations consistent with Kant's formula of humanity (FH), the idea that we should treat others as ends in themselves and never merely as means. He later argues that valid consent is sufficient to make sex morally and legally permissible, arguing that other conditions (e.g., reciprocity, equality, communication, mutual sexual attraction, and intimacy) are not required, in part because of the value of autonomy and the idea that sex can serve multiple motives. He concludes the chapter by rejecting both "sexual piggishness" and "sexual priggishness," arguing that morally permissible sex should not be beyond moral criticism, but also that sexual interactions that are morally criticized should not necessarily be morally impermissible.

Chapter 7 is devoted to ontological questions about what sort of phenomena constitute consent. Wertheimer begins by contrasting three views of consent: (a) a subjective view (i.e., consent is a psychological phenomenon, requiring a relevant mental state); (b) a performance view (i.e., consent is behavioral, requiring an expression of consent in an appropriate way); and (c) a hybrid view (i.e., both a mental state and a consent token are necessary). He argues that because the point of consent is to alter an interaction with another person, it is not enough to possess a mental state and that a public indication of underlying will is required. He suggests that an individual can token consent either verbally, nonverbally, or through silence or inaction. At the end of the chapter, he considers situations in which a woman changes her mind about sex, and claims that it is not as wrong to continue to have sexual relations with a woman who withdraws her consent during a sexual encounter as it is to commence sexual relations without consent (i.e., he opines that control over the duration of a sexual encounter is not as important as control over with whom and when one engages in sex). It is surprising, given Wertheimer's call for empirical analyses of the harms of nonconsensual sex (in Chapter 5), that he provides no data for this claim.

Chapters 8-11 provide an analysis of the criteria by which consent is valid or morally transformative, focusing on issues of coercion, deception, competence, and intoxication. Wertheimer argues that a woman's consent is valid only if she is competent and her consent is neither coerced nor deceived. The difficult task is in determining just what constitutes competence, coercion, and deception. In Chapter 8, Wertheimer focuses his analysis on the extent to which threats, offers, inequalities, and economic pressure compromise the "voluntariness" of a woman's consent. Chapter 9 focuses on deception and is by far the least conclusive chapter in the book. A good part of the chapter is devoted to exploring the distinction between fraud in factum (a person is deceived about what is done) and fraud in the inducement (a person is deceived about some of the facts surrounding something that they have consented to). Wertheimer concludes that this distinction is not morally relevant and is difficult to apply to sexual consent. Chapter 10 considers factors such as age, mental retardation, and false preferences which may compromise a woman's competence in giving valid consent. Wertheimer devotes all of Chapter 11 to the subject of intoxication, in part because drugs and alcohol are implicated in many instances of "date rape." Much of his discussion focuses on the "voluntariness" of a woman's intoxication.

In Chapter 13, Wertheimer shifts gears ("with some trepidation") to address an entirely different question: when should a woman give valid consent to sexual relations? Specifically, given an asymmetry in sexual desire between partners, are there moral reasons for the less desirous partner to consent to sexual intercourse more often than she would otherwise desire? This has been a topic of recent interest and empirical investigation (see review in Impett & Peplau, 2003). Wertheimer considers the possibility that the frequency with which couples engage in sex is a matter to be governed by the principles of distributive justice (i.e., on occasions when a man wants sex and his wife does not, is it fair for her always to say "no"?). This chapter, perhaps more so than others, raises more questions than answers, and as such, provides fertile ground for future inquiry and empirical investigation (e.g., in what ways may consenting to unwanted sex harm women?).

In summary, this book provides no easy answers to the provocative questions that it raises--a necessity, we suppose, in understanding such a deeply philosophical, highly publicized, and for many, highly emotional issue. A few weaknesses should be noted. Wertheimer explicitly acknowledges the importance of empirical data to support his claims, but at times, fails to provide relevant data (e.g., for data on the harms of engaging in consensual unwanted sex, see O'Sullivan & Allgeier, 1998; for data on the relevance of justice to close relationships, see Clark & Mills, 1993). Wertheimer also provides wonderful analogies that highlight the intricacies and nuances of sexual consent, but often overuses analogy as a means of argument. Nevertheless, this book will provide readers with a more sophisticated understanding of the moral, legal, and psychological issues surrounding sexual consent and should appeal to a broad range of readers from law, philosophy, and the social sciences.

REFERENCES

Buss, D. M. (1998). Sexual strategies theory: Historical origins and current status. The Journal of Sex Research, 35, 19-31.

Clark, M. S., & Mills, J. (1993). The difference between communal and exchange relationships: What it is and is not. Personality and Social Psychology Bulletin, 19, 684-691.

Impett, E. A., & Peplau, L. A. (2003). Sexual compliance: Gender, motivational, and relationship perspectives. The Journal of Sex Research, 87-100.

O'Sullivan, L. E, & Allgeier, E. R. (1998). Feigning sexual desire: Consenting to unwanted sexual activity in heterosexual dating relationships. The Journal of Sex Research, 35, 234-243.

Symons, D. (1979). The evolution of human sexuality. New York: Oxford University Press.

Reviewed by Emily A. Impett, Ph.D., & Mark Huppin, J.D. Address correspondence to Emily Impett, Center for Research on Gender and Sexuality, San Francisco State University, 2017 Mission Street, Suite 300, San Francisco, CA, 94110; e-mail: [e-mail].