Of the many topics in the philosophy of sex is permissible sexuality. Philosophy however sometimes tends to overintellectualize the discussion. What makes sex permissible may not be so strict. Drawing from Immanuel Kant’s humanity formulation, I argue that permissible sex requires only informed and voluntary consent, but under two conditions, which Thomas Mappes mostly gets right. Then I move to Howard Klepper and argue that he is only halfway right in his account and that permissible sexuality need not go beyond consent and its two conditions. In the humanity formulation from the Metaphysics of Morals, Kant argues that we must not treat humanity, in ourselves or in others, as a mean only but also as an end in itself. So according to Kant, sexuality is never permissible unless in marriage. He says:
There is only one condition under which [sex] is possible: that while one person is acquired by the other as if it were a thing, the one who is acquired acquires the other in turn; for in this way each reclaims itself and restores its personality. But acquiring a member of a human being is at the same time acquiring the whole person, since a person is an absolute unity. Hence it is not only admissible for the sexes to surrender and to accept each other under the condition of marriage, but it is possible for them to do so only under this condition (“Duties toward the Body” 142).
This means that it is impossible to possess a person without violating the humanity formulation unless that person also possesses you. So, while you are possessed, you get yourself back as your own possession by possessing the person who possesses you. And for Kant, again, this is only possible in marriage. In any other sex, the two partners are merely using each other as objects for sexual pleasure. Even if they both consent, their sex is not permissible by Kantian standards. That only marriage can satisfy the humanity formulation has troubling consequences for Kant’s account. First, it means that gay and lesbian sexuality is also permissible if it occurs in a monogamous, loving marriage. Kant lists homosexuality under crimina carnis contra naturam as against the ends of humanity and an abuse of sexuality (“Crimina Carnis” 144). Yet, it follows that a homosexual relation can be permissible simply if it meets the condition of marriage. Second, what of a loveless marriage? It is very possible that a married couple, who no longer love each other perhaps on the brink of divorce, can have sex akin to casual sex strangers may have. Marriage is not enough to guarantee the formula of humanity. In such marriage as described nothing in practice separates their sex from any other. Is the fact that they are married guarantees they will treat each other to their ends? Surely Kant is not wrong, but perhaps he should not limit his considerations to marriage only.
The humanity formulation contains further problems. The formulation does not necessarily speak of human beings but of the humanity in human beings. We must treat the humanity, or the capacity to reason and pursue our own ends, as an end in itself. This means that when we employ the services of a carpenter for instance, if he has freely reasoned to pursue carpentry and agreed to provide his services to us, we are permitted to use these services as means when we act in a way he consents to by, for example, paying him for his labor. To return to topic, it follows that we may do the same with a prostitute if both parties consent. Kant’s formulation then should not be restricted to merely marriage. We are capable of satisfying the formulation and treating humanity as both means and ends so long as we respect the ends of our partner and achieve mutual consent. And this is exactly what I argue: informed and voluntary consent, described by Thomas Mappes in his account, is indeed enough to render sex permissible, that is, to use another sexually as a mean and an end in itself. However, this is only true if we meet both of Mappes’ conditions. We are (1) not to lie and withhold information, and (2) threaten and coerce when we have sex. The two conditions are necessary, as we must remain ethical, but not to the extent Mappes describes. We violate condition one only as far as sex itself is concerned. In other words, we only violate informed consent if we lie about wanting sex but not intending and giving our partner an orgasm. We also violate informed consent if we lie about sexual diseases or if we trick our partner into procreating. So, from Mappes’ account, only scenarios (2) and (3) would seem to constitute a violation (Mappes, 234). Lying about an orgasm – or rather not giving your partner an orgasm – is a violation of informed consent because to consent to sex and have no orgasm is not really sex at all. Lying about procreating is a violation because to consent to sex but instead procreate – assuming procreation was mutually agreed on to be excluded – is again not sex, but something else. And lying about sexual disease really violates both conditions. These three are violations of the first condition because they directly lie about sex itself. If two partners consent to sex, they must have sex, anything that is not sex violates informed consent. In any other case, Mappes lists a few but we can imagine more scenarios, how specific and/or explicit consent must be is vague. Beyond the scope of sex itself, it is difficult to extend any further consideration to what is relevant. When both partners consent, what exactly are they consenting to? They cannot possibly consent to everything during and after sex, and everything that can even narrowly relate to the decision-making process. Condition two dictates we must not threaten and coerce otherwise sex is not voluntary and thus permissible. This condition is obvious; to harm another person is immoral. Coercive offers however do not fit this criterion. Given case 6 (Mappes, 240), Mappes simply assumes that upon rejection the professor would abuse his authority and retaliate at the student because his offer is a threat that is implicit rather than verbal. But again this is a big assumption on Mappes’ part and it does not follow. Thus, only a threat is a violation of the voluntary consent. Taken together, as long as the persons involved consent and the two (revised) conditions are met, there can be no objection to casual sex, sex with strangers or prostitution and the like. Sex is still not permissible if it is not between two consenting adults and/or one or two conditions are violated: sex with children, rape, bestiality, to name a few. Now I turn to Howard Klepper, who argues that informed and voluntary consent is insufficient for permissible sexuality. According to Klepper, we are morally obligated beyond just consent and thus must respect our partners during and after sex. Klepper argues for sexuality to be permissible we must satisfy our partner and give them an orgasm, and we may not violate the privacy of sex by being indiscreet (Klepper 251-252). This respect for partner after consent is only halfway right. As I have already discussed, giving your partner orgasm in obligatory so Klepper is correct in this instance. However, the latter part of his argument is mistaken. To consider moral obligations to your partner in sex after sex is absurd. First, if we treat our partner as a mean and an end in itself when we consent to sex, and when we have sex, violating the privacy of our partner afterwards and treating them as objects or means does not violate the humanity formulation. Even if Klepper is right and to be indiscreet about your partner after sex is to use that partner as a mere mean, we have already treated them as an end earlier, so we have satisfied the formulation. We are then permitted to use them as means in this way or another because we have also treated them as an end. If this objection is unconvincing, there is something more intuitively wrong with Klepper’s account. It follows that to be discreet and honor our partner’s privacy we have to keep our silence forever and our moral obligations are essentially lifelong. And certainly we cannot be expected to do so. Klepper exaggerates the commitment we must pay to a very simple act. Permissible sexuality need not go beyond informed and voluntary consent, and so the latter part of Klepper’s account is mistaken.
Klepper also makes another point in his account that needs to be addressed. He argues that to treat your partner in sex as a mere mean or object, even if there is consent, is morally wrong. If a slave consents to slavery or a masochist consents to sadomasochism, it remains morally wrong. Consent is insufficient (Klepper, 254). We can extend Klepper’s argument here to mean that if principle ethical code is violated, consent is irrelevant. And I agree. However, Klepper presents a scenario similar to this: partner A agrees to partner B using partner A as an object during sex, and ask is this sex permissible or not? Klepper would answer no. I argue that this sex is still permissible, at least in this case. There is an assumption that partner B will be used as a mere mean only, but after all partner A is respecting partner B and his/her ends. I said earlier that as long as we behave in a way that our partner can consent to, by respecting their autonomy and person, we are not acting immorally. Sex is then still permissible unless we harm another as is the case with slavery and sadomasochism.
From Kant’s formulation of humanity we can conclude that we can treat humanity as a mean and an end in itself. But this need not be limited to marriage alone. We can extend this formulation to any sex insofar as both partners are consenting adults, and their consent is informed and voluntary. As long as we do not lie or threaten in the way I described, sex is permitted with no further obligations.