Consent theory in sexual ethics, Jonathan Ichikawa argues, has a Euthyphro problem. -/- It is widely held that sexual violations are explicable in terms of nonconsensual sexual contact. But a notion of consent adequate to explain many moral judgments typical of sexual ethics — a notion that vindicates the idea that consent cannot be coerced, that it must be sober, that children cannot consent to sex with adults, etc. — cannot, Ichikawa argues, be articulated, motivated, or explained in a way (...) independently of moral judgments about sexual wrongs. Consequently, if there is as tight a connection between consent and sexual violation as many people think there is, there is good reason to suppose that that connection must ultimately explain consent in terms of sexual wronging, rather than vice versa. The paper highlights some costs and drawbacks to this horn of the Euthyphro dilemma in sexual ethics. One central upshot of the argument will be that mainstream accounts of sexual ethics fail in their explanatory ambitions. Consent cannot play its canonical explanatory role. (shrink)

In both popular and scholarly discussions, sexual consent is gaining traction as the central moral consideration in how people should treat one another in sexual encounters. However, while the concept of consent has been indispensable to oppose many forms of sexual violence, consent-based sexual ethics struggle to account for the phenomenological complexity of sexual intimacy and the social and structural pressures that often surround sexual communication and behavior. Feminist structural critique and social research on the prevalence of violation even within (...) consensual sex suggest that consent is insufficient to ground responsibility; a more fundamental orientation toward the value of sexual agency provides a better foundation for sexual ethics. Using feminist critical theory, phenomenology, and black feminist thought, this dissertation develops a socially situated and relational notion of sexual agency and diagnoses how such agency is neglected in prevailing discussions of consent in moral philosophy and legal theory. I argue that the ethical question of responsibility to another in a sexual encounter—apart from juridical considerations—should be reframed around the value of each person’s socially situated practices of agency. Preceding and extending beyond the obligation to gain valid consent for an action, responsibility demands adapting one’s intentions and behaviors in response to the wider range of another’s communicative expressions of agency. However, communicative expressions can be ambiguous or overdetermined by social context and cultural norms; they often offer only provisional traces of agency. To address this inherent uncertainty in intimacy, I propose drawing on insights from Emmanuel Levinas about the dynamic, open-ended nature of relationality, responsibility, and communication. Responsibility toward another does not depend on securing certainty about their “yes” or “no,” but requires responding continuously under conditions of uncertainty and ambiguity, adapting behaviors and intentions to make room for another’s agency despite its opacity. (shrink)

On a version of consent theory that tempts many, predatory sexual relations involving significant power imbalances (e.g. between professors and students, adults and teenagers, or employers and employees) are wrong because they violate consent-centric norms. In particular, the wronged party is said to have been incapable of consenting to the predation, and the sexual wrong is located in the encounter’s nonconsensuality. Although we agree that these are sexual wrongs, we resist the idea that they are always nonconsensual. We argue instead (...) that it is possible for students, teenagers, employees, etc. to fully consent to sexually predatory encounters; denying as much renders survivors of predation vulnerable to compounding harms. Survivors face a dilemma: give up either their understanding of their experience as wrong, or their self-conception as an agent capable of consenting. We call the latter phenomenon agential demotion. (shrink)

Some say that consent is essentially just a state of mind. Others say it is essentially just a communication. Many say it is both. I say it is neither. Instead it is an act, or rather a pair of acts—an internal mental act in the first instance, an external performative act in the second. Each of those acts is an act of commitment, intrapersonally in the first case and interpersonally in the second. The content of the commitment is, familiarly enough, (...) to give permission to someone else to do something that it would be wrong for them to do without your permission. The novelty lies in seeing consent as an act of commitment in those two dimensions and in seeing those as commitments that persist until and unless undone by an act of a similar sort. (shrink)

This article deals with the question of which kinds of deceptions vitiate consent to sexual relations. More specifically, it addresses the question of which characteristics of the perpetrator (e.g. their identity, wealth, or marital status), of their relations with the victim (e.g. marriage, long-term intentions), or of the sexual act itself (e.g. protected) vitiate consent when deception is involved. In this proposal, we offer our view on how this question should be answered: the criminalisation of deceptive sex should be cautiously (...) extended to include deception regarding any characteristic of the deceiver or the relationship on which the deceived’s consent was conditional, where the deceiver was aware of this conditionality. To support our proposal, we examine the different definitions of “deceptive sex” and diverse legal approaches taken to its criminalisation in the United Kingdom, Germany, and Israel, and discuss their respective merits and shortcomings. Surprisingly, different jurisdictions take strikingly different stances on these matters. This diversity ranges from the narrow definition of traditional English law (and its more opaque contemporary version in England, Canada, and Israel) to the minimalist approach of the German system. To counter the risk of over-criminalisation inherent in our proposal, we also propose using an offence lighter than rape and criminalising only those deceivers who actively lied and whose actual knowledge of the victim’s hypothetical refusal can be proven beyond reasonable doubt. Overall, while our proposal would cautiously extend the criminalisation of deceptive sex to some types of cases that are currently not criminalised, it would also significantly limit the criminalisation of deceptive sex by enhancing the requirements regarding both the accused’s actus reus and their mens rea. (shrink)

Politics, Philosophy & Economics, Volume 21, Issue 4, Page 393-414, November 2022. Sometimes, people consent to sex because they face social constraints. For example, someone may agree to sex because they believe that it would be rude to refuse. I defend a consent-centric analysis of these encounters. This analysis connects constraints from social contexts with constraints imposed by persons e.g. coercion. It results in my endorsing what I call the “Constraint Principle.” According to this principle, someone's consent to a sexual (...) encounter lacks justificatory force if they are consenting because withholding consent has an adverse feature, they are entitled to withhold consent without it being the case that withholding consent has this adverse feature; and it is not the case that the consent-giver has sincerely expressed that, out of the options that are available to their sexual partner, they most prefer to go through with the sexual encounter in the circumstances. (shrink)

When, if ever, do we wrong ourselves? The Self-Other Symmetric answer is: when we do to ourselves what would wrong a consenting other. The standard objection, which has gone unchallenged for decades, is that Symmetry seems to imply that we wrong ourselves in too many cases—where rights are unwaivable, or “self-consent” is lacking. We argue that Symmetry not only survives these would-be counterexamples; it explains and unifies them. The key to Symmetry is not, as critics have supposed, the bizarre claim (...) that we must literally give ourselves consent if we are to avoid wronging ourselves. Instead, it is that we authorize ourselves simply by making decisions, just as we can authorize others by making decisions jointly. (shrink)

Deception sometimes results in nonconsensual sex. A recent body of literature diagnoses such violations as invalidating consent: the agreement is not morally transformative, which is why the sexual contact is a rights violation. We pursue a different explanation for the wrongs in question: there is valid consent, but it is not consent to the sex act that happened. Semantic conventions play a key role in distinguishing deceptions that result in nonconsensual sex (like stealth condom removal) from those that don’t (like (...) white lies). Our framework is also applicable to more controversial cases, like those implicated in so-called “gender fraud” complaints. (shrink)

I argue that “consent” language presupposes that the contemplated action is or would be at someone else’s behest. When one does something for another reason—for example, when one elects independently to do something, or when one accepts an invitation to do something—it is linguistically inappropriate to describe the actor as “consenting” to it; but it is also inappropriate to describe them as “not consenting” to it. A consequence of this idea is that “consent” is poorly suited to play its canonical (...) central role in contemporary sexual ethics. But this does not mean that nonconsensual sex can be morally permissible. Consent language, I’ll suggest, carries the conventional presupposition that that which is or might be consented to is at someone else’s behest. One implication will be a new kind of support for feminist critiques of consent theory in sexual ethics. (shrink)

Throughout her work, Audre Lorde maintains that her self-preservation in the face of oppression depends on acting from the recognition and valorization of her feelings as a deep source of knowledge. This claim, taken as a portrayal of agency, poses challenges to standard positions in ethics, epistemology, and moral psychology. This article examines the oppositional agency articulated by Lorde’s thought, locating feeling, poetry, and the power she calls “the erotic” within her avowed project of self-preservation. It then explores the implications (...) of taking seriously Lorde’s account, particularly for theorists examining ethics and epistemology under nonideal social conditions. For situations of sexual intimacy, for example, Lorde’s account unsettles prevailing assumptions about the role of consent in responsibility between sexual partners. I argue that obligations to solicit consent and respect refusal are not sufficient to acknowledge the value of agency in intimate encounters when agency is oppositional in the way Lorde describes. (shrink)

The way in which consent to sexual interactions is understood in the US is undergoing a transformation. Many universities, sometimes at the behest of lawmakers, are moving to adopt ‘affirmative consent’ policies, which define consent in terms of affirmative behavior that goes beyond mere silence or lack of resistance. Although these policies are a move in the right direction, I argue that their content has not been properly understood. In particular, the circumstances in which nonverbal behavior may communicate consent are (...) more limited than might be apparent. And even though these circumstances can be abstractly identified, it is difficult to give people adequate guidance about when some of them obtain. Moreover, I argue that no matter how the allowance for nonverbal behavior is construed, affirmative consent policies unnecessarily prohibit interactions that people may have reason to engage in. I propose an alternative policy that remedies these problems with the affirmative consent policies that are currently being implemented. And I note that the justification for this alternative policy does not turn on any special features of the university setting. Instead, the account I give suggests grounds for reforming the law as well. (shrink)

In this paper, I answer the following question: suppose that two individuals, C and D, have been in a long-term committed relationship, and D now has dementia, while C is competent; if D agrees to have sex with C, is it permissible for C to have sex with D? Ultimately, I defend the view that, under certain conditions, D can give valid consent to sex with C, rendering sex between them permissible. Specifically, I argue there is compelling reason to endorse (...) the following thesis: -/- Prior Consent Thesis: D, when competent, can give valid prior consent to sex with her competent partner (C) that will take place after she has dementia, assuming that D is the same person as she was when she gave prior consent, meaning that, if D, when competent, gave prior consent to sex with C, then C may permissibly have sex with D. In section I, I explain both the background and the existing literature on this issue. In section II, I outline relevant stipulations about the kinds of cases I will be examining. In section III, I defend the Prior Consent Thesis. And, in section IV, I address objections to the Prior Consent Thesis. (shrink)

In addition to protecting agents’ autonomy, consent plays a crucial social role: it enables agents to secure partners in valuable interactions that would be prohibitively morally risk otherwise. To do this, consent must be observable: agents must be able to track the facts about whether they have received a consent-based permission. I argue that this morally justifies a consent-practice on which communicating that one consents is sufficient for consent, but also generates robust constraints on what sorts of behaviors can be (...) taken as consent- communicating. (shrink)

According to the Behavioral View of consent, consent must be expressed in behavior in order to release someone from a duty. By contrast, the Mental View of consent is that normatively efficacious consent is entirely mental. In previous work, I defended a version of the Behavioral View, according to which normatively efficacious ‘consent always requires public behavior, and this behavior must take the form of communication in the case of high-stakes consent’. In this essay, I respond to two arguments by (...) proponents of the Mental View. First, Larry Alexander, Heidi Hurd and Peter Westen have argued that my view has mistaken implications concerning the culpability of different actors. I counter that my version of the view does not have these implications, as it leaves us free to draw moral and legal distinctions between different offences involving non-consensual behavior. Second, Larry Alexander and Kimberly Ferzan have argued for an analogy between consent and abandonment: on the grounds that the normative power to abandon resides in one’s will, Alexander and Ferzan concludes consent does too. I counter that abandonment requires behavior, and call into question the assumption that the ethics of property have much to teach us about the ethics of sexual consent. (shrink)

In ethics, a highly relevant and divisive topic is that of consent. Many moral dilemmas and ethical forks in the road turn on the question of consent. But how do we differentiate between the consensual and the non-consensual? There is no simple answer to this question and philosophers are quite divided, as they tend to be. Some believe that consent is a mental state whereas others maintain that it is a behavioral expression of some kind. There are others still who (...) argue that consent is some combination of mental states and communication. In this paper, I shall defend the view that consent is a mental state and that it does not depend on any type of behavior. My central thesis is that only this view accounts for the ethical importance of consent in a liberal moral framework where consent matters due to its connection to our intrinsic right to personal autonomy. Additionally, views that make consent dependent on behavior have counterintuitive, and sometimes morally unacceptable, consequences for what is and isn’t consensual. I argue that only the view that I defend can account for the moral significance that consent should have. (shrink)

Misconceived Consent: Miguel has stage IV lung cancer. He has nearly exhausted his treatment options when his oncologist, Dr. Llewellyn, tells him about an experimental vaccine trial that may boost his immune response to kill cancer cells. Dr. Llewellyn provides Miguel with a consent form that explains why the study is being conducted, what procedures he will undergo, what the various risks and benefits are, alternative sources of treatment, and so forth. She even sits down with him, carefully talks through (...) the most important points, and gives him time to ask questions. Though it is a Phase 1 study and the chance that he will benefit is very low, Miguel happily agrees to take part. A week later, after the first experimental injection, she asks him if he is worried about the risks. “Risks?” he asks. “I’m sure this is safe—you’re a doctor, after all!”. (shrink)

There is an ongoing debate about the “ontology” of consent. Some argue that it is a mental act, some that it is a “hybrid” of a mental act plus behaviour that signifies that act; others argue that consent is a performative, akin to promising or commanding. Here it is argued that all these views are mistaken—though some more so than others. We begin with the question whether a normatively efficacious act of consent can be completed in the mind alone. Standard (...) objections to this “mentalist” account of consent can be rebutted. Here we identify a much deeper problem for mentalism. Normatively transformative acts of consent change others’ reasons for acting in a distinctive—“robust”—way. Robust reason-changing involves acts aimed at fulfilling a distinctive kind of reflexive and recognition-directed intention. Such acts cannot be coherently performed in the mind alone. Consent is not a mental act, but nor is it the signification of such an act. Acts of consent cannot be “completed” in the mind, and it is a mistake to view consent behaviour as making known a completed act of consent. The robust reason-changing account of consent developed here shares something with the performative theory, but is not saddled with a label whose home is philosophy of language. Certain kinds of performative utterance may change reasons robustly, but not all robust reason-changing involves or requires acts of speech, and consent can be effected by a wide range of behavioural acts. (shrink)

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in (...) my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” ; “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration. (shrink)

Decision theorists recognise that information is valuable only insofar as it has the potential to change a decision. This means that since acquiring more information is time-consuming and sometimes expensive, judgements need to be made about what information is most valuable to acquire, and whether it is worth acquiring at all. In this article I apply this idea to informed consent and argue that the most valuable information relates not to what the best treatment option may be but to possible (...) futures a patient may regret. I conclude by proposing a regret-minimisation framework for informed consent that I contend better captures the true nature of shared decision making than existing formulations. (shrink)

Philosophical work on the concept of consent in the past few decades has got to grips with it as a rich notion. We are increasingly sensitive to consent not as a momentary, atomic, transactional thing, but as a complex idea admitting of various qualities and dimensions. In this paper we note that the recognition of this complexity demands a theoretical framework quite different to those presently extant, and we suggest that the enactive approach is one which offers significant value in (...) this regard. In consonance with arguments made by Laurie Penny about how consent is a continuous and dynamic process, we outline how an enactive approach identifies consent as temporally extended (rather than momentarily transactional), and as affected by the skilfulness of the agents involved, the fitness of community provided resources to negotiate the consensual relationship over time, and the unfolding of circumstances in the situation in which the joint action is taking place. We argue that the value of an enactive perspective on consent is in highlighting these complexities, and providing resources to articulate and theorise them in ways that are not open to other current approaches. (shrink)

A longstanding debate regarding the nature of consent has marked a tri-fold division among philosophical and legal theorists according to whether they take consent to be a type of mental state, a form of behaviour, or some hybrid of the two. Theorists on all sides acknowledge that ordinary language cannot serve as a guide to resolving this ontological question, given the polysemy of the word “consent” in ordinary language. Similar observations have been noted about the function of consent in the (...) law and use of the word “consent” in legal contexts. This paper makes a parallel argument regarding consent’s characteristic normative role: roughly, to transform moral prohibitions into permissions. This role is neither unique nor essential to any one particular kind of thing, be it a mental state, form of behaviour, or hybrid of the two—rather, it is played by mental states and behaviour in independent and context-sensitive ways. The upshot is that insofar as we are interested in its normative implications, we ought to adopt a pluralistic approach to consent which gives independent weight to the moral contributions of facts about mental states and facts about behaviour relative to a context. (shrink)

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two (...) non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well. (shrink)

By giving consent, we sometimes give permission or make it the case that we are not wronged. What does it take for an act to be an act of consent? This is the question this paper deals with. The question does not presuppose the view that consent is a communicative act. For those who take it as a mental state, the question is what does it take to express consent? It will be argued that an act is an act of (...) consent if and only if the consent-giver believes she gives someone permission to do or omit something by performing the act. A normative intention is not required for consent. It is further argued that this view also bears on the question of what falls within the scope of consent and shows how it differs from the evidential account advocated by Tom Dougherty. I also argue that the view defended in this paper does not imply – as some think – that the consent-receiver could wrong the consent-giver without being able to know that this is the case. (shrink)

Duties to oneself are allegedly incoherent: if we had duties to ourselves, we would be able to opt out of them. I argue that there is a constraint on one’s ability to release oneself from duties to oneself. The release must be autonomous in order to be normatively transformative. First, I show that the view that combines the division of the self with the second-personal characterization of morality is problematic. Second, I advance a fundamental solution to the problem of the (...) incoherence of duties to oneself, one that does not rely on any division of the self, temporal or otherwise. I build upon the prevalent idea that, in releasing others from duties, we exercise the power of consent. The transformative force of consent partly derives from our autonomy. Invoking a plausible characterization of autonomy, I argue that release from duties requires the right kind of mental state. (shrink)

Consent that is voluntary, informed and given by a competent person sometimes transforms a wrong into a right act. How does consent that meets these requirements change the moral property of an act, namely that of being a wronging of a person? This is the question this paper will deal with. Some authors argue that valid consent changes the moral property of an act by changing the reasons which speak against the act. This account of the normative force of consent (...) will be critically examined and rejected. An alternative model will then be put forward and defended according to which consent changes the moral property of an act if and only if the wrong‐making property of the act is that it is not consented to. The upshot will be that consent does not eliminate the wrong‐making property if the unconsented act is wrong for other reasons than not being consented to. (shrink)

There is broad agreement among research ethicists that investigators have a duty to obtain the informed consent of all subjects who participate in their research trials. On a common view, the duty to obtain this informed consent follows from the need to respect persons and their autonomous decisions. However, the nature of informed consent and the demands it places on investigators are open to dispute and recently have been challenged. Respect for persons, it has been claimed, does not require investigators (...) to guarantee that the subjects enrolled in their trials comprehend the risk/benefit information disclosed to them or even that they appreciate the difference between research and therapy. According to this critique, the significance of defects in informed consent, like therapeutic misconception or unrealistic optimism, has been greatly exaggerated. This article reevaluates informed consent in clinical research in light of this critique. It not only rebuts the main points the critics raise, but also shows that other points they raise can be accepted by a doctrine of informed consent that resembles the common view in maintaining that autonomous authorization is central to informed consent. (shrink)

Recent years have seen a proliferation of philosophical work on consent. Within this body of work, philosophers often appeal to an account of the interests, values, or functions that underpin the power of consent. By far the most commonly cited value realized by the power of consent is the promotion and protection of the power-holder’s autonomy. This focus on autonomy yields what I call the Gate Opener Model of consent, according to which the central valuable function of consent is to (...) give the power-holder control over whether other people can act in certain ways. In this article, I argue that the Gate Opener Model of consent is inadequate. I then defend an alternative Relational Model of consent, according to which a central valuable function of consent is to enable a non-instrumentally valuable form of interaction between people. (shrink)

Informed consent is normally understood as something that a patient gives prior to a medical intervention that can render it morally permissible. Whether or not it must be given prior to the intervention is debated. Some have argued that subsequent consent—that is, consent given after a medical intervention—can also render an otherwise impermissible act permissible. If so, then a patient may give her consent to an intervention that has already been performed and thereby justify a physician’s act retroactively. The purpose (...) of this paper is to argue that even if subsequent consent can render an otherwise impermissible act permissible, doctors are still blameworthy if they rely on it when prior consent could be given, because they would be banking on the justification of their interventions. Since doctors can only guess if patients will consent after the fact, they would be placing their patients at unreasonable risk of being disrespected as persons. (shrink)