Consenting to Sex

Fr. Tadeusz Pacholczyk

Recent news articles exploring the post-#MeToo world of romance have noted the phenomenon of cell phone “consent apps,” allowing millennials to sign digital contracts before they have sex with their peers, sometimes strangers they have just met. Many of these apps are being refined to include a panic button that can be pressed at any time to withdraw any consent given. Lawyers reviewing the practice, as might be anticipated, have urged caution, noting that consent apps are not able to provide definitive proof of consent, because feelings may “change throughout an evening, and even in the moments before an act.”

When we look at modern views about sex, it’s not a stretch to sum them up this way: as long as two consenting adults are involved, the bases are covered. When it comes to “sex in the moment,” consent is touted as key, allowing for almost all mutually-agreed upon behaviors or practices.

Yet this approach to sex is fundamentally flawed, and it’s often the woman who is the first to notice. Even when consenting unmarried couples scrupulously use contraception, there remains an awareness, particularly on the part of the woman, that a pregnancy could follow, and a concern about who will be left holding the bag if that were to happen. Sex between men and women involves real asymmetries and vulnerabilities, with men oftentimes being, in the words of sociologist Mark Regnerus, “less discriminating” in their sex drives than women, eager to forge ahead as long as there appears to be some semblance of consent. Women often sense, rightly, that consent for a particular sexual act ought to be part of something bigger, a wider scope of commitment.

Consenting to sex, of course, signifies the surrendering of our self to another. Sex ultimately speaks of giving our self, and receiving another, in a total, rather than a fragmentary way. This is part of the reason why this unique human activity holds a perennial fascination for us; it goes far beyond other forms of communication, exchange, and bonding. To give our self fully to another, and to receive that person fully, forms a bond with them that extends beyond the morning dawn. Human sexual union is not a mere joining of bodies, but is preeminently a joining of human hearts. It is, at its core, consenting to share one of the deepest parts of our self with another. As Dr. Angela Franks has perceptively noted:

Sexuality is not simply a matter of something that I have, as though my body is another possession just like my wallet or my car. If, as Gabriel Marcel said, I am my body, then sexuality has to do with my very person, which has a deep value. To use the language of Pope John Paul II, when a person is reduced to being merely an object for another’s desire, then the experience violates the core of one’s sense of self.

In casual sexual encounters, the consent we give each other may seem sincere and genuine, expressing our desires within the moment, but this kind of consent is largely transactional and temporary. By consenting to pre-marital or extra-marital sex, we declare, in effect, that we are giving ourselves, our bodies and our hearts to each other, although in truth, our giving remains partial and conditional, and we may be out the door the next morning or the next month. Our consent, limited and qualified as it is, amounts to little more than an agreement to use each other as long as it’s convenient, and when the break up occurs, we are hurt, because we thought we had something special, even though we didn’t really want to commit to anything special.

In the final analysis, human sexual activity calls for something much deeper and more abiding than mere transactional consent, namely, the irrevocable and permanent consent of spouses. Professor William May describes it this way:

In and through his act of marital consent… the man, forswearing all others, has given himself irrevocably the identity of this particular woman’s husband, while the woman, in and through her self-determining act of marital consent, has given herself irrevocably the identity of this particular man’s wife, and together they have given themselves the identity of spouses. …Husbands and wives, precisely because they have given themselves irrevocably to each other in marriage, have established each other as irreplaceable, non-substitutable, non-disposable persons and by doing so have capacitated themselves to do things that non-married individuals simply cannot do, among them to ‘give’ themselves to one another in the act proper and exclusive to spouses—the marital act—and to receive the gift of life.

Through the enduring commitment of marital consent, a man and a woman establish the foundation for personal sexual consent. In the absence of that larger marital commitment, all other consents, even with legalized authorization or electronic notarization, ring hollow.

COMING UP: Why 42 had to be impeached twenty years ago

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Twenty years ago this month, I found myself seriously double-booked, so to speak.

The editing of the first volume of my John Paul II biography, Witness to Hope, was entering the ninth inning, and I was furiously engaged in exchanging edited and re-edited copy with my editors in New York. At the same time, the Clinton impeachment drama was cresting. And as I had long done speechwriting for Congressman Henry Hyde, chairman of the House Judiciary Committee, I spent week after week of split time, working on John Paul II from 9 a.m. to 4 p.m., then switching to impeachment for a couple of hours before returning to Witness to Hope in the evening.

It was not the optimal way to work but it had to be done, even if it seemed likely that the president would be acquitted in a Senate trial. On December 19, 1998, the House of Representatives voted two articles of impeachment and senior House members, including Mr. Hyde, solemnly walked the two articles across the Capitol and presented them to the Senate’s leaders. On toward midnight, Henry Hyde called me and, referring to Senate Majority Leader Trent Lott, said, “We’re not going to make it. Trent won’t fight; I saw it in his eyes.” After a long moment I replied that, if we were going to lose, we had a duty to lay down a record with which history would have to reckon.

Which is what the great Henry Hyde did during the January 1999 Senate trial, where he bent every effort to prevent the proceedings from descending into farce.

For Hyde, the impeachment of President Bill Clinton was an unavoidable piece of nasty business. It was not a matter of partisan score-settling, nor was it a matter of punishing a president for gross behavior with an intern in the White House. It was a matter of defending the rule of law. As Henry put it to me when it seemed clear that the president had perjured himself and obstructed justice, “There are over a hundred people in federal prisons for these crimes. How can the chief law enforcement officer of the United States be guilty of them and stay in office?”

Impeachment is a political process and it was clear by mid-fall of 1998 that the politics were not breaking toward removing the president from office. They had been pointed that way over the summer, though. And as the pressures built, it seemed as if the Clinton presidency might end as Richard Nixon’s had: Party elders, in this case Democrats, would go to the White House, explain that it was over, and ask the president to resign for the sake of the country. Then around Labor Day that year, Maureen Dowd of the New York Times and other columnists began suggesting that, if Clinton were impeached and convicted, the sexual revolution would be over, the yahoos of reaction would have won, and we’d be back to something resembling Salem, Massachusetts, during the witchcraft insanity.

That was preposterous. It was also effective. And within days, at least in Washington, you could fill the templates shifting: This wasn’t about the rule of law, it was about sex and the yahoos couldn’t be allowed to win. (That Henry Hyde was the leader of the pro-life forces in Congress neatly fit this storyline, of course, abortion being a major plank in the platform of the sexual revolution.)

So once the game was redefined — Are you for or against the puritanical yahoos? — there was little chance to wrench the political process back to what it was really about: the rule of law. In his opening speech during the president’s trial, Henry Hyde tried valiantly to refocus the argument, insisting that high office did not absolve a man from obeying his constitutional oath to faithfully execute the laws of the United States and his oath swearing to tell the truth to a federal grand jury. To suggest that it did was to “break the covenant of trust” between president and people, dissolving “the mortar that binds the foundation stones of our freedom into a secure and solid edifice.”

It wasn’t a winning argument. But it was the right argument. And on this 20th anniversary, the nation should remember with gratitude those like Henry Hyde who, under fierce assault, stood for the rule of law.

Featured image by Gage Skidmore | Flickr