Modeling Sex as a Joint Activity22 February 2021
There has been an ongoing philosophical discussion over the last three decades on consent and refusal of sex qua speech acts – that is, acts performed in the uttering of certain words (typically, ‘yes’/‘no’) in a sexual setting. Both consent and refusal are ‘second-turn speech acts’. The thought is simple: for my ‘yes’/‘no’ utterance to be appropriate, I must have been previously addressed with an interrogative act of some sort. Sexual advances can therefore be construed as interrogative acts, which make a subsequent ‘yes’/‘no’ response relevant and expected. Interrogative acts comprise a number of different speech moves. Requests, offers, invitations, proposals – these are all interrogative in character. The question I’d like to tackle here is, Which kind of interrogative act, if any, provides a good model for sexual advances?
Consent/refusal talk models sexual advances as permission requests. That consent and refusal concern permission is largely agreed upon. In paradigmatic consent exchanges, one party asks permission to do something (‘May I do such-and-such?’), and the other allows them to do it, while taking on, to some extent, a passive role. Informed medical consent, for example, means a patient grants a doctor (or a team of doctors) permission to conduct a certain medical procedure upon their body. Consent to be searched means a suspect grants the police permission to search their person or effects. And consent to cookies (with which we have all become more than familiar) roughly means granting a domain’s owner permission to collect one’s data and track one’s activity on their website. In all such cases, the one who plays an active role – the one who will get to do something – is the requester (the doctor, the police officer, the domain’s owner), not the consenter.
If this is so, then conceiving of sexual advances as permission requests, and of the ‘yes’/‘no’ response that follows in terms of consent/refusal, is to model sex as an agent-patient asymmetrical activity. Since all partners’ positive sexual agency matters, a model of this sort should be met with a critical eye. Even more so, once we acknowledge that the asymmetry is heavily biased towards men. Nothing about permission requests implies that women must ‘suffer’ sex while men are the performers. But given cultural realities, what people all too commonly have in mind in thinking and talking about sex is a man who actively requests sex and a woman who lets him or otherwise refuses to let him do things to her. A hierarchical model for heterosexual sexual relationships is thereby constructed – a model in which the man gets to use the woman’s body with her permission, and the scope of a woman’s sexual agency only comprises two alternatives: voluntarily acquiescing or refusing to acquiesce to a man’s desires.
Resisting this view involves conceptualizing sexual advances as different types of interrogative acts. Let’s quickly sift through the pragmatic shape of the basic interrogative types, beginning with simple requests and offers. Simple requests (e.g. “Would you take out the trash, please?”) are attempts to get the hearer to do something; offers (e.g. “I can lend you some money, if you wish”) are promises that the speaker commits to keep on condition that the hearer accepts. In both cases, the bringing about of the state of affairs at stake (e.g. taking out the trash, lending money) requires the active contribution of one party (the requestee, the offerer), but not necessarily a contribution from the other. This makes it clear that neither simple requests nor offers provide a good model for sexual advances – sex would still be pictured as an asymmetrical activity.
Invitations and proposals are better candidates, since they both involve a contribution from the speaker and hearer in the carrying out of the activity in question. However, one thing is to invite you to my birthday party; quite another thing is to propose that we throw a party together. Although an invitation, once accepted, calls for action on both sides (the inviter will have to throw the party and the invitee will have to show up), the details of the event are appanage of the inviter. By contrast, a proposal, once agreed to, opens up a negotiation as to how to proceed – we will decide together the theme and size of the party, the location, etc. A genuine proposal is an attempt to get another person to take part in some joint, fully collaborative activity. Conceiving of sex as something initiated by a proposal means, I claim, conceiving of it as an agent-agent symmetrical activity. It means construing sex as something that one does with the other person and over which each partner has an equal say. Interestingly, one does not, strictly speaking, consent to a proposal or refuse it – one agrees to a proposal or rejects it. Consent and refusal turn out not to be the right speech categories when it comes to responding to sexual advances. And the issue, as a speech act analysis shows, is not merely terminological.
The view I am sketching is a ‘regulative ideal’, for it leaves aside all the many cases in which sex is less than fully collaborative, as it were. Sex may sometimes be offered to please the other person or even requested as the granting of a favor. While this is far from ideal, it can (and does) happen, and it isn’t per se unethical, provided that everyone involved has communicated their wish to engage in the sexual activity in question. My point, to state it out loud, is that, in philosophizing over sex and the language we use to engage in sexual activities, we should be aware of the ideological implications that an emphasis on sexual consent/refusal might have. A proposal model of sexual advances, which does without consent and centralizes agreement and negotiation, avoids the risk of reinforcing a sexist stereotype of female sexual passivity and fares better than alternatives in picturing sex as a joint activity.
 See, e.g., Langton, Rae (1993), “Speech Acts and Unspeakable Acts”, Philosophy & Public Affairs; Cowart, Monica (2004), “Understanding Acts of Consent: Using Speech Act Theory to Help Resolve Moral Dilemmas and Legal Disputes”, Law & Philosophy, 23(5): 494-525; McGowan, Mary Kate (2009), “On Silencing and Sexual Refusals”, The Journal of Political Philosophy, 17(4): 487-494; and Dougherty, Tom (2015), “Yes Means Yes: Consent as Communication”, Philosophy & Public Affairs, 43(3): 224-253.
 Speech acts can be performed non-verbally, as when one nods assent in lieu of saying “Yes”. That people frequently approach for sex non-verbally does not rule out a speech act reading of sexual advances.
 See, among many others, Cowart (2004), McGowan (2009), and Dougherty (2015).
 See, esp., Anderson, Michelle (2005), “Negotiating Sex”, Southern California Law Review, 41: 101-140; and Gardner, John (2018), “The Opposite of Rape”, Oxford Journal of Legal Studies, 38(1): 48-70.
 For a different interpretation of invitations, see Kukla, Rebecca (2018), “That’s What She Said: The Language of Sexual Negotiation”, Ethics, 129: 1-28.
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