Naked Photos Dilemma

On another tricky issue of consent

Flora Bennett was nineteen years old when she allowed her then partner, Ethan Stone, to take pictures of her naked. There was no coercion involved. She was quite happy to be photographed. The photographs were artistic in style rather than pornographic—the kind of pictures one might see in a photography magazine.

A few years later, Flora and Ethan broke up. They discussed what to do with the photographs. Ethan offered to destroy them, but Flora wasn’t that fussed about it all, and said he could keep them so long as he never showed them to anybody else. He agreed to this, never having had the intention to share them anyway, and they went their separate ways.

Fast forward twenty years, and Flora is now a minor celebrity. Not a household name, by any means, but she’s done a bit of acting and appeared on stage in the West End. Ethan still has the photographs, looks at them occasionally, but has begun to worry that perhaps he’s behaving unethically when he does look at them. 

He has no intention of sharing the photographs with anybody else, and has no particular reason to think that present day Flora would object to him looking at the pictures, though he realises she might, but he can’t shake the feeling that it might be immoral for a man in his forties to be looking at naked photographs of an ex-partner that were taken twenty years previously, when she was only nineteen.

So what do we make of all this? Is his intuition that there’s something dodgy going on here correct?

It is possible you think there is no obvious moral wrong in this scenario. Flora was nineteen when the pictures were taken, she said Ethan could keep them, the photos are not pornographic, and he hasn’t, nor would he, show them to anybody else.

Fair enough, as far as it goes, but the problem is that this response sidesteps a lot of the moral complexity involved in this situation, the most interesting part of which has to do with whether Flora’s consent was informed, and how it has been affected by the passage of time—did she properly understand to what it was she was consenting?

If you’re thinking, well of course she understood, it’s not exactly a complicated situation, then ask yourself this question: if middle-aged Ethan, a man she did not know, had magically turned up as Flora was making her decision about the fate of the photos, would she have chosen differently and asked for them to be destroyed? I’d wager that probably she would have chosen differently.

The general point here is that it seems unlikely that Flora could have performed the imaginative leap necessary to get a true sense of how she’d feel if she were confronted with the reality of middle-aged Ethan looking at pictures of her naked, and that if there were a way of getting her to experience how she’d actually feel in that situation, there’s a good chance she’d have chosen differently. To that extent, her consent was not properly informed.

Likely many people will not be persuaded of the significance of this objection. After all, we consent to many things in the knowledge that we can’t be absolutely sure how we’ll feel about it all in the future, but this doesn’t seem to make the consent any less binding. It is true that we sometimes get things wrong, but often we just have to live with the consequences.

There is merit to this rejoinder, obviously, but let’s give our thought experiment one final tweak, and see where that leaves us.

Ethan, aged twenty, and Flora, aged nineteen, are sitting opposite each other in a diner talking in hushed tones.

Ethan: I love you, Honey Bunny, and I want you, will you always be mine, will I always be able to make love to you?

Flora: Oh yes, Pumpkin. I love you too. I’ll always be yours!

Ethan: Even if I were forty, bald and fat?

Flora: Even then!

Ethan: Even if you are as you are now–young and beautiful?

Flora: Yes, until the end of time, Pumpkin. We are two souls inextricably bound into eternity. With my body, I thee worship!

Ethan: I worship you too, Honey Bunny!

Fast forward twenty-five years, Ethan recalls this conversation, hops into a newly invented time-machine, and zooms back to when Flora was still only nineteen. He’s in her bedroom, and she’s fast asleep...

Given this scenario, very few people will think that she has actually consented to a sexual encounter with the older version of her boyfriend. Yet the situation here is not so very different from the situation with the photographs. Obviously, it will be objected that she didn’t really mean it when she said that she’d be happy for the older version of Ethan to have sex with her. However, this objection doesn’t work, because even if she had meant it, most of us would still say that the older version of Ethan cannot assume consent. Quite simply, Flora did not really know to what it was she was consenting, so her consent was not informed. If we make the same judgement about the photographs, it means that Ethan is right at least to worry that there might be something immoral about him continuing to possess them.

Do you agree? Should Ethan destroy the photographs?