Is consent enough?

Seven years ago Matthew Johns, a rugby star, and several other players had group sex with a 19-year-old woman. According to a work colleague, the woman boasted at first about what happened. Five days later, though, she told police she had been assaulted. The police investigated but found no evidence that there had been lack of consent.

The case has only now erupted into public view in Australia. Matthew Johns has been sacked from his media and coaching positions and has has been subjected to intense media criticism for his actions. It is being said that his career is over.

There's an important point to be made here. My concern isn't to defend Matthew Johns or other sports players. It's to highlight just how unworkable a liberal morality is.

In doing so, I'm going to draw on an excellent column by Andrew Bolt. I've criticised Bolt recently for his liberal attitude to ethnicity. His latest piece, though, is one of the best criticisms of liberal morality you're likely to read in the mainstream media.

First, I'll briefly summarise what I see as the problem. Liberal moderns have rejected the idea that certain actions are inherently moral or immoral. One reason for this is that they believe that individual autonomy is the highest good.

If we view certain actions as inherently immoral, and therefore not permissible, there is a restriction on our autonomy, on our power to act as we will (our "agency"). It is this restriction that liberals hold to be immoral.

Therefore, liberals tend to argue that actions are not inherently good or bad, and that we should "liberate" ourselves from old-fashioned "repressive" moral conventions.

Does this mean that anything goes? Not quite. Because "agency" is what matters, it is important to liberals that everyone consents to an action. So everything is permissible as long as there is consent.

But this hasn't worked out so well in practice. In the case of Matthew Johns, for example, the woman initially consented to what was likely to be an exploitative and degrading act - and unsurprisingly felt abused afterward.

So liberals have begun to emphasise not only consent but also respect. There is nothing that is inherently right or wrong, but we must show respect to others in our behaviour.

But this too has its problems. This is judging an action according to a subjective mental state. Let's say a man visits a prostitute. According to the liberal theory I've described, prostitution itself would not be considered inherently immoral. What would matter was whether the prostitute and client freely consented and whether they respected each other.

How do we know if they respected each other? If the man is courteous toward the prostitute is that enough? Perhaps on one visit the prostitute and client were in a fine mood and did feel a positive regard toward each other. But maybe on the next visit they were both grumpy and felt contempt toward each other. Is the first visit moral and the second one immoral?

And if it's argued that a prostitute and a client can't truly ever respect each other because of the nature of the act itself, then this is really a hidden way of asserting that prostitution is inherently (i.e. in its nature) wrong - something that would then contradict the liberal insistence that autonomy is the highest good.

Which brings me to Andrew Bolt's impressive criticism of Professor Catherine Lumby, an academic ethicist who was hired by the rugby league in 2004 to advise players on moral issues.

Professor Lumby took the fashionable liberal view that nothing is inherently wrong and that all that is required is consent:

ABC reporter: There have been stories of a culture of group sex in rugby league. What do you think of group sex? Do you think it's OK if it's consensual?

Lumby: Speaking as an academic, I think that there's no problem with any behaviour which is consensual in sexual terms.

Again, in 2004, when six rugby players were investigated for having had group sex with a young woman, Professor Lumby insisted that there was nothing inherently right or wrong in what had happened:

The idea that group sex is abhorrent is a very particular view. What matters is that we avoid asserting moral beliefs as moral truths.

Professor Lumby developed a policy for the rugby league which stated that what players really needed was:

ongoing education about how to negotiate sexual encounters in a way which ensures informed consent is always obtained.

Some players took this message to heart, even filming girls on their phones giving consent before the group sex sessions began.

Andrew Bolt does a good job of explaining why consent alone doesn't make an action moral:

The problem is that trusting to consent alone means - for a start - trusting that people are smart enough and strong enough to work out all by their uncertain selves what's good for them.

... even though she consented to the sex - or didn't object - the woman was still left feeling so "useless", so "worthless" and so "really small" that her life collapsed ... She can't forgive Johns and the other men: "If I had a gun I'd shoot them right now. I hate them, they're disgusting ..." she said.

...But bad judgment is not the only problem with insisting only on “consent”, not morality.

Consent also means it’s every man for himself. That you can do whatever you can force some silly or intimidated woman to agree to, however much it will hurt them.

If this teenager consented to group sex, there was nothing more for Johns and his mates to know. Indeed, none seemed to think they had a duty to protect this young woman from what degraded them all.

She agreed. End of questions. But it hasn’t been the end of the regretting.

That’s what Lumby’s fashionable morality never factored in - the weakness and stupidity of people. Their impulsiveness. Inexperience. The way their judgment gets washed away by booze, or lost in the crowd.

For a Lumby, even a young NRL buck in a bedroom with a naked girl and his mates is a perfectly rational moral agent. And the girl, too.

For a Lumby, the idea that such flighty people be handed moral rules worked out over centuries of collective mistakes and regrets is almost an insult - a crime against freedom.

“Morality is a blueprint for living that someone hands to you,” she’s tut-tutted. But “ethics is a zone we all enter when we find ourselves, by choice or necessity, negotiating those rules”.

Negotiating, in this case, until someone says “yes” to group sex.

Well, a girl in Christchurch did say “yes” when morality would have shouted that she say “no”.

See her crying now. See Johns weeping, too, on A Current Affair, having heard the “yes” that a Lumby once swore was all he’d need to keep him safe.

I think Bolt is spot on in the entire column. It's a genuinely conservative line of thought on morality presented to millions of readers. However, I would make one criticism of Bolt's position.

Andrew Bolt doesn't consider why Professor Lumby (and most of the commentators at his own blog) believe what they do.

If he did, he would be forced to confront an unpalatable truth: that Professor Lumby has applied principles that Bolt himself believes in to the sphere of morality.

Professor Lumby believes that autonomy is the highest good: that what matters is that we aren't constrained by things we can't choose for ourselves as individuals. She applies this principle quite logically to morality. For instance, she once declared French writer Catherine Millet's promiscuity to be admirable because it demonstrated "a sense of self which is quite independent of social norms".

Andrew Bolt likewise is a liberal in his first principles. He once criticised the Australian Football League for being over-regulated; he described his ideal society in comparison as,

a field in which anyone can play anything they like, as long as they don't hurt anyone else.

This is not a call to follow the good, or even to recognise that an objective good exists; instead, the good is doing as you will without impediment. It's not that far removed, in principle, from Professor Lumby's assumption that there is no objective good to follow, but that what matters is what we will as autonomous agents.

Similarly, Andrew Bolt once wrote that the great thing, the thing to celebrate about immigration, was that ethnicity could be made not to matter, so that,

a Zambian can captain the wallabies [the national rugby team]

The source of such an idea is once again autonomy theory. Just as autonomy theory insists that we should not be impeded in our self-determination by an objective morality, so too does it claim that we should not be constrained in creating who we are by an unchosen ethnicity. Transcending ethnicity becomes a moral good rather than an alienating loss.

That's why Andrew Bolt has repeatedly criticised Aborigines for holding to a distinct ethnic identity. Bolt has told them they should instead follow,

The humanist idea that we are all individuals, free to make our own identities as equal members of the human race

Free to make our own identities. Autonomy (determining our own self) is held here by Bolt to be the highest good when it comes to ethnicity, just as it is for Professor Lumby when it comes to morality.

So Bolt is conservative only in the sense that he doesn't follow a liberal principle all the way down the line. He draws back at the idea that morality is determined by consent alone.

The job of attacking consistently at the root of the problem - at liberal first principles - will have to be done by others.