Consent to sex

What makes it permissible for one person to have sex with another? The popular slogan “Yes means yes” 1 seems to point us in the right direction: the consent-giver’s agreement. But this can be no more than a partial answer. After all, sexual desire, arousal, and attraction starts before puberty, 2 and these feelings are also experienced by people with substantial intellectual and cognitive impairments. Few people think that the agreement of a person with severe dementia, let alone a child’s, could justify another person having sex with them. Similar worries arise about intoxicated consent. Drink and drugs can impact decision-making capacity, and given that some substances lower inhibitions, enhance sexual desire, and increase impulsivity there are also worries about the voluntariness of inebriated consent. 3 Even in the best-case scenario—one in which amorous partners are competent, sober, and willing—the question remains: what exactly have they agreed to when they have agreed to sex? Sex includes a wide range of activities, and without a clear answer to that question it is unclear which acts consenting parties have waived their rights against.