Consent versus Chastity
in Sexual Ethics
 

  
[ This essay presumes that the reader is familiar with Ayn Rand's novels The Fountainhead and Atlas Shrugged. Warning: plot spoilers. ]

Ayn Rand proposed, in Atlas Shrugged, to present a radical view of sex and sexual ethics. However, her later writing never actually presented a detailed discussion of this topic. The writings of Nathaniel Branden, including some published under Rand's auspices, discussed some aspects of the matter, but from a purely psychological standpoint — and not all of the key questions about sex are psychological. In this essay I want to look at another aspect of sex: the aspect that falls under legal philosophy. I will argue that a careful application of Rand's principles in this field in fact leads to conclusions more radical than any Rand stated.

By focusing on the legal aspects, I am not in fact offering a complete theory of the ethics of sex. I am simply setting outer boundaries, showing what is to be avoided. Within those boundaries, people still have to choose what is actively to be pursued; and I am not going to discuss that question, as I don't consider it part of the proper function of law to dictate this (nor would such a view be consistent with Rand's ideas about law).

However, I think that setting those outer boundaries clearly will already be enough to generate some fairly strong conclusions, stronger than is often recognized.
  

The fundamental theme of Rand's philosophy of law is that "force should be used only in retaliation and only against those who initiate its use". This is consistent with — and indeed implies — two other ideas: (1) individual human beings own their own bodies and have a right to do with them as they will (self-ownership); (2) all relationships between human beings should be based on consent obtained without duress, fraud, or misrepresentation of material facts (informed consent). The first of these principles is common in the libertarian literature, the second in the literature of medical ethics; while they may sometimes be misapplied there, the fundamental ideas are both valid.

Now, how well does the traditional law of sexual conduct fit the standard of informed consent? The answer is, extremely poorly.

Consider, to begin with, the law of rape, under which a woman's previous history of "unchastity" (meaning sexual relations with any man not her husband) can be presented as evidence of the rapist's innocence. The presumption seems to be that by allowing one man to have sexual intercourse with her, she established that any man might do so. The principle is exactly as if the law said that a homeowner invited a guest to stay with them, they granted permission to anyone who liked to come in and sleep in their beds and eat their food; or as if the law said that a storeowner who allowed people to take away merchandise for a price therefore had to let people do so for any price they chose to pay, or none at all. (Note that Rand explicitly applies the idea of price to sexual relations — though specifying a nonmonetary one.)

Under this law, a woman's consent to sexual relations is in fact no longer required, once she is classified as "unchaste." And this means that in fact she is under strong legal pressure to remain "chaste," the pressure of being exposed to what in fact must be counted as the initiation of force, with no legal recourse, if she ceases to be "chaste" — she is not free to consent to sexual relations while she is in this condition. Unchaste women are sexual outlaws; just as any man might kill a male outlaw and take his possessions (which cannot be called his property, as he is without legal rights), so any man might rape an unchaste woman.

It was traditionally argued that this defense was necessary, as otherwise a woman might falsely claim to have been raped to protect her "reputation" and thus subject an innocent man to punishment. But the reputation in question was, simply, a reputation for chastity; and the single greatest component in its value was the denial of legal protection to unchaste women, which made a reputation for unchastity a source of constant danger. So the incentive to women to lie was created by the very law that supposedly was necessitated by the probability of their lying.
  

Consider another traditional law: that a man could defend himself against charges of rape by proving that the woman in question was his wife. In other words, a husband was not required to obtain his wife's consent to a specific act of intercourse. She had consented at the altar; and after that, he could command and she had to obey, or be compelled by force. In the nineteenth century this law was applied with complete rigor, to the point where there are recorded cases of women still recovering from childbirth injuries being compelled to endure their husbands' sexual attentions; in the twentieth century the law provides some protection against a husband's use of excessive force or demand for acts injurious to his wife, but until recently no husband would ever be considered a rapist for forcing sex on his wife after she refused him. Her informed consent was not necessary under this law.

More generally, most jurisdictions had criminal statutes concerning many sexual acts that a woman, or a man, might consent to: fornication, adultery, oral or anal copulation, and prostitution were all crimes in most states, even if all parties consented to them. Adultery, in particular, was treated as a property crime against the husband, who could claim damages, or bring criminal charges, or, in many jurisdictions, kill his rival and go unpunished.

(I have used the past tense here, but many of these laws are still in force in many states. The last time I investigated, the majority of states still denied that a husband could be charged with rape against his wife, for example.)
  

The recurring theme of these laws, in fact, is a denial of women's ownership of their own bodies, and thus they conflict with the libertarian ethic of self-ownership. They are, in essence, an analog of slavery, allowing one human being to hold property rights in the person of another. And this is true for both chaste and unchaste women. In fact, there is a striking parallel in the ancient Roman law of land ownership (see Richard A. Epstein's Simple Rules for a Complex World for this point). The Romans divided land into two categories: that which had been appropriated by a single man, who could use and occupy it permanently and exclude others from doing so; and that which had been appropriated for common use, so that anyone could use it but no one could exclude others from using it or occupy it for longer than a single use. (Farmland was typical of the former case; roadways of the latter.) Women were equally divided into those whose sexuality was reserved for one man, their present or future husband — the "chaste" — and those whom any man could use at his convenience — the "unchaste." And neither category of women had any more say in how they were used than a parcel of land had in how it was used. Women were not legal subjects.
  

The law of rape, quite explicitly, defended not a woman's control over her own body, but her chastity. This is why there are the odd exceptions in that law. A married woman's chastity, her status as the exclusive sexual possession of one man, is not violated by sexual acts with that one man; so her husband cannot rape her — he cannot violate his own rights to her by using her. A woman who has sexual relations with a man she is not married to ceases to be exclusively available to one man, and therefore becomes available to all men — she no longer has any chastity to defend. All of these laws, which require elaborate and awkward explanations in terms of self-ownership and consent, are easily and straightforwardly explained in terms of the ethic of chastity.

And, beyond the simple legal dimensions, this ethic pervades our culture. The "reputation" that women are taught to value is a reputation for chastity, a reputation for being the property of one man — and within a legal system that inflicts such harsh consequences on the loss of that status, fearing the loss of reputation is simply realistic prudence. The traditional symbolism of marriage originated as an assertion of chastity; and though it is now sometimes claimed that bridal white is not literally an emblem of virginity (the virgin being the only chaste unmarried woman), this was exactly its historical origin. Note, too, for a more archaic version, the ancient Jewish law that a rapist could make good his crime by marrying the victim — which still shows up in various English ballads, among other places. His crime was treating sexuality that was meant to be privately appropriated as if it could be commonly appropriated; by privately appropriating it himself, he restored the woman's injured chastity. How a woman might feel about a life of marriage to a man who had forced himself on her was not an issue.
  

Consider, too, the widespread sense that marriage must be between a man and a woman. If marriage is viewed as a contract through which sexual relations are formalized, this makes no sense; for same-sex couples can also engage in sexual relations, and can gain many of the same benefits from formalizing them. But if marriage is understood as the appropriation of a woman's chastity, then this restriction makes perfect sense: a man has nothing for another man to appropriate, and a woman is not a legal subject and cannot appropriate another woman's chastity.

Therefore, if we are to reject coercion in human relationships, we must be prepared to reject many accepted values of our culture and much of its iconography, for that iconography makes sense only as a celebration of chastity. Here Ayn Rand at least gave us a prototype in Atlas Shrugged, in Dagny's proud public avowal of having been Hank Rearden's mistress.
  

I don't believe that Rand thought through all the implications of her views, though. Many of her characters still marry, Howard Roark and Ragnar Danneskjold among them; and there is no suggestion that the laws under which they do so are other than the traditional, coercive rules, which were still in force in every state in the United States in 1956. Moreover, Rand indicates a fascination with the traditional image of the man as appropriator and the woman as possession. Consider the plot of The Fountainhead, where Howard Roark starts out by raping Dominique Francon and by the novel's end has married her, transforming his violation of her chastity into an affirmation of it by the traditional Biblical rules.

Nonetheless, Rand's conception of the rights that should be preserved by a proper legal system clearly implies a different view of sexual relations. Such a view would start from the right of self-ownership, and would then approach sex in terms of consent, contract, and partnership, exactly as those terms are used in business relationships. The business of the law would not be to make some voluntary sexual transactions into crimes, nor to dictate the terms on which sexual transactions should be conducted, nor to embody certain favored terms (such as heterosexual monogamy) in special legal forms, but simply to apply the same legal protection to all transactions.

Some states have gone a significant distance in this direction already. California, where I live, forbids testimony about a rape victim's previous sexual history, and allows prosecution of a husband for raping his wife; and it has legalized all sexual acts between consenting adults in private (excluding special cases such as incest and prostitution). But many others retain all the old legal rules. In the long run, those rules need to be changed, and various others need to be changed even in California and similarly "liberal" states.
  

As I said at the beginning, these arguments say nothing about the positive desiderata for sexual relationships. There certainly are things to be said about this, on the basis of general ethics, of the specific biological interests and risks that derive from human reproduction and the sexual transmission of disease, and of the psychological impact of sexual relationships in human life. But what I have argued above, if it is accepted, already implies major changes in sexual values and conduct, changes that would have to be taken into account in any consideration of these further issues. So I offer this essay as a starting point.

© 1998 William H. Stoddard