“Consent” is not enough

When articulating what he believed to count as hard-core pornography, Supreme Court Justice Potter Stewart declared in 1964 that “I know it when I see it.” Well, Justice Stewart would be seeing a lot of it today. In Long Island last year, a 22-year old man named Patrick Carey received a 6-month jail sentence and mandatory registration as a sex offender after using images of women from his former high school to create pornography without their formal consent. Yet it was not as if the photos in question were already explicit. Instead, Carey had used artificial intelligence software to manipulate the likenesses of the women, generating the sexually exploitative material.

The problem of prosecuting those responsible for “deepfake porn” has been looming over several years, and it’s continually claiming more terrain for itself in the course of daily life. A high school Westfield, N.J., was recently awash with faked nude images of female students being shared by their male peers, using the same variety of programs as Carey did. Remember, we are talking about high school students here.

The devil, however, remains in the legal details. In Carey’s conviction, it was not the 1,198 AI-generated pornographic photos he had produced, but the fact that he had happened to post a compromising one of a minor as well that brought him to justice. The criterion of consent is also proving insufficient for dealing with a surge in child pornography made entirely through artificial intelligence. Law enforcement and the courts must now confront an unnerving prospect: Here you have pornography that is claimed to “hurt” no one.

But that’s the problem. There is real moral harm occurring in these situations. Hypothetical or not, any individual voluntarily subjecting themselves to these patterns of production and consumption brings upon themselves damages that impact the whole human community of which they are a part. Princeton professor Robert P. George has forcefully made the point in his work Making Men Moral that “What cannot serve valuable purposes does not deserve protection as a matter of the moral right to privacy.” In other words, actions that are not ordered towards the common good of humanity don’t constitute absolute rights that must be civilly defended.

What is at stake in the realm of supposedly private moral action for Professor George is “the realization of human goods by persons and the communities they form.” Human beings, in acting on their own, are in fact acting on behalf of the society they happen to particularly inhabit. There is no such thing as a purely private morality; what is beheld and called good is perpetually in the eyes of the whole, publicly shared and mediated in all spheres of behavior.

In maintaining objective standards for what is universally wrong and obscene, a society can collectively condemn any form of pornography whether or not consent itself is a factor at all in its creation. As Louise Perry contends in The Case Against the Sexual Revolution, “Sex must be taken seriously.” She adds: “Consent is not enough. Violence is not love. Loveless sex is not empowering. People are not products.” By bequeathing to us a moral calculus chiefly driven by the thin concept of consent, the sexual revolution leaves human sexuality hollowed of its hallowedness. Atomizing us in our morality brought with it the promises of individual expression, but it neglected to inform us of the perils of self-destruction hidden in the preamble.

Pornographic images created by AI give the appearance of absolution in abstracting the act from its involvement with others. However, what it cannot do is abstract us from our own inner moral faculties. George helpfully reminds us that moral agency remains despite the absence of apparent public responsibility. Beginning the equation with consent alone concerning pornography’s place in our culture neglects to recognize its more fundamental problem of what it says about us and contorts within us. To cry out about “things that ought not to be done” (Genesis 20:9) protects the sexually vulnerable and uplifts our standards for sexuality by making us accountable to God and thus His law before trying to chisel in our own caveats for obedience.

We can be grateful that enough of our civilization’s lapsed Christian convictions remain for now to compel many to take pause with deepfaked pornography and its grotesque exhibition of what truly lies within the depraved human heart and mind. But only in returning to an honest sense of the obscene can there be a lasting defense against transgressions like these. The injustice committed against women or children violated by what our brave new world has artificially made possible will only find its correction in a society wholeheartedly committed to what is pure for its own sake. Then, we wouldn’t even need to see “it” to begin with.