The Goalposts of Consent

People routinely justify government on the basis of “consent.”  As in: “There’s a social contract, and you’re obliged to follow it.”

If you deny consent, they just move the goalposts of consent very close.  In fact, they usually give the government an instant touchdown.

How exactly do they move the goalposts?

Step 1: Switch from explicit to implicit consent.

If you say, “I never signed this social contract,” they reply, “The social contract is implicit.”

Step 2: Switch from implicit consent to hypothetical consent.

If you object, “You can always deny implicit consent with explicit non-consent,” they reply, “The social contract is hypothetical.”

Step 3: Switch from hypothetical consent to pseudo-consent.

If you object, “You can always deny hypothetical consent with actual non-consent,” they reply, “The social contract is what hypothetical reasonable people would consent to.  If you deny consent, you’re not reasonable, so your non-consent doesn’t count.”

Which is tantamount to: You consent whether you consent or not.

Similarly, people routinely justify sex on the basis of “consent.”  As in: “You consented to have sex, so you can’t claim to be the victim of a sexual assault.”  Yet in recent years, especially on college campuses, activists have responded by moving the goalposts of consent very far.  In fact, some fanatics apparently treat consent as ex post: Have sex first, then decide if you consented afterwards.

How exactly do they move the goalposts?

Step 1: Switch from implicit to explicit consent.

If you say, “My partner never said no,” they reply, “Unless your partner explicitly says yes, they didn’t consent.”

Step 2: Switch from explicit consent to repeated explicit consent.

If you say, “My partner said yes,” they reply, “Your partner must say ‘yes’ every time contact escalates.”

Step 3: Switch from explicit consent to explicit consent without “pressure.”

If you say, “My partner said yes repeatedly,” they reply, “They felt pressured to do so” or “They had too much to drink.”

Step 4: Switch further to “enthusiastic consent.”

If you say, “My partner said yes repeatedly, without pressure, while sober” they reply, “You still should have noticed that they weren’t thrilled about it.”

In the background, there lurks a severe gender-based double-standard.  Most obviously, women don’t have to worry that they’ll be accused of sexual assault if they have sex with a drunk male.

If we step back, the effect of moving the goalposts of consent is obvious.

Moving the goalposts for government legitimizes everything that government does.  If you can’t withdraw consent from government, then you consent to whatever it does to you.  Even military slavery.

Moving the goalposts of consent for sex delegitimizes most of the sex that actually occurs.  After all, most sex happens in long-term relationships – and people in long-term relationships normally rely on implicit consent alone.  (And yes, people in long-term relationships occasionally use extreme pressure to get sex, such as threatening divorce if refused).

The motivation for moving the goalposts of consent for government is similarly obvious.  People move the goalposts because they are statists.  They think government should have a free hand to trample naysayers.  In the words of Dexter‘s Miguel Prado, “I’ll do what I want, when I want, to whomever I want! Count on it!”

The motivation for moving the goalposts of consent for sex is, in contrast, rather mysterious.  It’s tempting to say that their goal is total celibacy, a la Orwell’s Junior Anti-Sex League, but the shoe doesn’t fit.  People who insist on the absurdly high bar of enthusiastic consent still seem confident that lots of sex is going to happen.  And as far as I can tell, they are quite comfortable with their expected high-sex scenario.

So what’s really going on?  My best guess: People who move the goalposts of consent for sex are horrified by the idea that any woman might have an unpleasant sexual experience.  (In principle they worry about men as well, but they tacitly embrace the stereotype that men rarely have unpleasant sexual experiences).  And they’re too economically illiterate to realize that the only way to prevent all unpleasant sexual experiences is to prevent sexual experiences of any kind.

What’s more, they’re too psychologically oblivious to realize that they’re making the silent shy majority even more anxious about sex than they already are.

P.S. My chief doubt about the latter story is that the only person I actually know who sympathizes with moving the goalposts of sexual consent is highly economically literate.  But I say that he’s a lone outlier.

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Bryan Caplan is Professor of Economics at George Mason University and Senior Scholar at the Mercatus Center. He is the author of The Myth of the Rational Voter: Why Democracies Choose Bad Policies, named “the best political book of the year” by the New York Times, and Selfish Reasons to Have More Kids: Why Being a Great Parent Is Less Work and More Fun Than You Think. He has published in the New York Times, the Washington Post, the Wall Street Journal, the American Economic Review, the Economic Journal, the Journal of Law and Economics, and Intelligence, and has appeared on 20/20, FoxNews, and C-SPAN.

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Alex Knight
Alex Knight
1 month ago

This is very similar in nature to what Marc Stevens separately outlines in his excellent book, Adventures in Legal-Land, and its companion sequel, Government Indicted.

Jared Livesey
Jared Livesey
1 month ago

Did everyone consent to your property claims?