A philosopher’s case for the importance of good—if ethically questionable—humor. A good sense of humor is key to the good life, but a joke taken too far can get anyone into trouble. Where to draw the line is not as simple as it may seem. After all, even the most innocent quips between friends rely on deception, sarcasm, and stereotypes and often run the risk of disrespect, meanness, and harm. How do we face this dilemma without taking ourselves too seriously? (...) In Wisecracks, philosopher David Shoemaker examines this interplay between humor and morality and ultimately argues that even morally suspect humor is an essential part of ethical life. Shoemaker shows how improvised “wisecracks” between family and friends—unlike scripted stand-up, sketches, or serials—help us develop a critical human skill: the ability to carry on and find the funny in tragedy. In developing a new ethics of humor in defense of questionable gibes, Wisecracks offers a powerful case for humor as a healing presence in human life. (shrink)

It is widely accepted that consent is a normative power. For instance, consent can make an impermissible act permissible. In the words of Heidi Hurd, it “turns a trespass into a dinner party... an invasion of privacy into an intimate moment.” In this chapter, I argue against the assumption that consent has such robust powers for moral transformation. In particular, I argue that there is a wide range of sex that harms or wrongs victims despite being consensual. Moreover, these cases (...) are not limited to those where con- sent is vitiated by background conditions. I start by calling this category of consensual sex Bad Sex. I then distinguish subspecies of this category, including psychological pressure, social coercion, and epistemically unsafe sex. I end by responding to an objection on which we should treat at least some subspecies of Bad Sex as rape. Though this alternative proposal is often motivated by ameliorative and strategic considerations, I argue that such considerations actually count against collapsing the categories of Bad Sex and rape. (shrink)

In this paper I will use sex by deception as a case study for highlighting some of the most tricky concepts around sexuality and moral psychology, including rape, consensual sex, sexual rights, sexual autonomy, sexual individuality, and disrespectful sex. I begin with a discussion of morally wrong sex as rooted in the breach of five sexual liberty rights that are derived from our fundamental human liberty rights: sexual self-possession, sexual autonomy, sexual individuality, sexual dignity and sexual privacy. I then argue (...) (against the standard interpretation) that experimental findings in moral psychology show that the principle of respect for persons—a principle that grounds our human liberty rights—drives our intuitive moral judgments. In light of this discussion, I examine a puzzle about sex by deception—a puzzle which at first may seem to compel us to define 'rape' strictly in terms of force rather than sexual autonomy. I proceed by presenting an argument against the view that, as a rule, sex by deception undermines consent—a position held by prominent thinkers such as Philippe Patry (2001), Onora O’Neill (2003), Rubenfeld (2012), Tom Dougherty (2013a, 2013b), Joyce M. Short (2013), and Danielle Bromwich and Joseph Millum (2013, 2018). As we will see, sex following deception to increase your chances does not always constitute rape. Lying about your age, education, job, family background, marital status, or interest in a relationship, for example, does not make your sex partner incapable of consenting, which is to say that sex by deception need not be rape. I even go so far as to say that sex with another person that is facilitated by withholding information about having a venereal disease shouldn't be classified as rape. Although sex by deception doesn't compromise consent, it nonetheless violates the principle of respect for persons, not by vitiating sexual autonomy and compromising consent, but by failing to respect other sexual rights, such as our rights to sexual dignity, individuality, and privacy. (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)

In recent years, an old challenge to informed consent has been rediscovered: the challenge of ignorance. Several authors argue that due to the presence of irreducible ignorance in certain treatments, giving informed consent to these treatments is not possible. The present paper examines in what ways ignorance is believed to prevent informed consent and which treatments are affected by that. At this, it becomes clear that if the challenge of ignorance truly holds, it poses a major problem to informed consent. (...) The paper argues, however, that from both an empirical and a theoretical point of view, it is not convincing that ignorance prevents informed consent. Still, it seems important that the presence of irreducible ignorance is openly discussed during the informed consent process. (shrink)

This paper discusses the volenti non fit injuria maxim. The volenti maxim states that a person is not wronged by that to which she consents, provided her consent is valid. I will argue, however, that the volenti maxim does not apply to all instances of valid consent. In some cases the consenter is wronged even if his consent is valid. Valid consent can only release others from consent-sensitive duties, not from consent-insensitive duties. If the consentee flouts a consent-insensitive duty the (...) consentee wrongs the consenter and thereby commits a wrong. (shrink)

What is it to take responsibility for a moral failure? This chapter investigates taking responsibility for wrongdoing. It starts by considering a prominent view in the literature: that to take responsibility for a wrong is to blame oneself for it. Contrary to the self-blame account, it is argued that taking responsibility and self-blame can come apart in various ways. Instead, the normative footprint account is defended. It is suggested that wrongdoing changes the normative landscape in systematic ways: it can create (...) duties to apologize, to acknowledge the wrong done, to make amends, to respond to the wronged party’s upset. To take responsibility for a wrong is to own the normative consequences of one’s wrong. (shrink)

Agents have powers to bring about change. Do agents have normative powers to bring about normative change directly? This chapter distinguishes between direct normative change and descriptive and institutional changes, which may indirectly be normatively significant. This article argues that agents do indeed have the powers to bring about normative change directly. It responds to a challenge claiming that all normativity is institutional and another claiming that exercises of normative powers would violate considerations of supervenience. The article also responds to (...) a challenge - generalizing Kent Hurtig’s recent challenge about consent - which states that exercises of normative powers are valid only in cases that do not matter - they never bring about a “normative transformation” of what the agent overall ought to do. It turns out that consent is normatively transformative in some cases, but the main contribution of exercises of normative powers is at the contributory level not that of overall oughts. Invalid exercises of normative powers are void of any normative effects. Rational agents as possessors of normative powers are not merely responsive to pre-existing normative reasons, but they can also create normative reasons. A “responsive” view of rational agency sees us as being able to track existing normative reasons and make descriptive changes (on which normative changes supervene). The “creative” view of rational agency sees us as being able not only to construct institutions but also to create normative reasons directly. The chapter concludes that agents are both responsive and creative. (shrink)

This article argues that resolutions are reason-giving: when an agent resolves to φ, she incurs an additional normative reason to φ. Resolution-making is therefore a normative power: an ability we have to alter our normative circumstances through sheer acts of will. I argue that the reasons we incur from forming resolutions are importantly similar to the reasons we incur from making promises. My account explains why it can be rational for an agent to act on a past resolution even if (...) temptation causes a shift in her preferences and even her judgment about what to do, and offers a response to a common objection to the normativity of resolutions known as the bootstrapping problem, on which if resolutions were reason-giving, they would problematically allow us to bootstrap any action into rationality simply by resolving to perform it. (shrink)

When philosophers consider factors compromising autonomy in consent, they often focus solely on the consent-giver’s agential capacities, overlooking the impact of the consent-receiver’s conduct on the consensual character of the activity. In this paper, I argue that valid consent requires justified trust in the consent-receiver to act only within the scope of consent. I call this the Trust Condition (TC), drawing on Katherine Hawley’s commitment account of trust. TC constitutes a belief that the consent-receiver is capable and willing to act (...) as we expect from them. If such trust is not warranted, I argue, consent lacks the appropriate normative grounds. After establishing TC, I explore its application in the sexual arena, asserting that due to the non-contractual dimensions of sexual activity — such as the dynamic nature of sexual desires and the absence of external factors effectively binding sexual partners to the terms of consent—trust is warranted in sexual consent by means of care. I define care as a special sensitivity and attention toward the partner’s will and discuss how this approach leads to safer intimate relationships in practice. (shrink)

This paper argues that a sweatshop worker's choice to accept the conditions of his or her employment is morally significant, both as an exercise of autonomy and as an expression of preference. This fact establishes a moral claim against interference in the conditions of sweatshop labor by third parties such as governments or consumer boycott groups. It should also lead us to doubt those who call for MNEs to voluntarily improve working conditions, at least when their arguments are based on (...) the claim that workers have a moral right to such improvement. These conclusions are defended against three objections: 1) that sweatshop workers' consent to the conditions of their labor is not fully voluntary, 2) that sweatshops' offer of additional labor options is part of an overall package that actually harms workers, 3) that even if sweatshop labor benefits workers, it is nevertheless wrongfully exploitative. (shrink)

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is (...) the state’s duty to promote. The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explains how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s “self-interest” conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s “sovereign autonomy” conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances. I resolve this dilemma by explaining that Raz’s “autonomy is good” conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s “self-interest” conception, or Feinberg’s “sovereign autonomy” conception. (shrink)

Arguments involve, at minimum, attempts at presenting something that an audience will take to be a reason. Reasons, once understood, affect an addressee’s beliefs in ways that are in some significant sense outside of their direct voluntary control. Since such changes may impact the well-being, life projects, or sense of self of the addressee, they risk infringing upon their autonomy. We call this the “autonomy worry” of argumentation. In light of this worry, this paper asks whether one ought to seek (...) an addressee’s consent before arguing with them. We first consider the view that arguing of any sort and on any topic requires consent. However, such a view is extreme, and we reject the general requirement of consent because argument contains its own internal permission structure. We find, however, that this permission structure is not always operative, and that consent may nonetheless be morally required in certain kinds of cases. (shrink)

In this article we examine the effectiveness of consent in data protection legislation. We argue that the current legal framework for consent, which has its basis in the idea of autonomous authorisation, does not work in practice. In practice the legal requirements for consent lead to ‘consent desensitisation’, undermining privacy protection and trust in data processing. In particular we argue that stricter legal requirements for giving and obtaining consent as proposed in the European Data protection regulation will further weaken the (...) effectiveness of the consent mechanism. Building on Miller and Wertheimer’s ‘Fair Transaction’ model of consent we will examine alternatives to explicit consent. (shrink)

ABSTRACT An influential argument against the possibility of obligations to oneself states that the very notion of such obligations is incoherent: If there were such obligations, we could release ourselves from them; yet releasing oneself from an obligation is impossible. I challenge this argument by arguing against the premise that it is impossible to release oneself from an obligation. I point out that this premise assumes that if it were possible to release oneself from an obligation, it would be impossible (...) to violate that obligation. I note that there are two interpretations of this assumption, one conceptual and one psychological. I argue that, on both interpretations, the assumption is false—at least according to independently plausible accounts of obligations to oneself and of what it means to waive an obligation. My arguments paint a picture of obligations to oneself that not only challenges the argument against their coherence, but also illuminates these obligations’ relationship to other parts of the moral domain. (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)

Bioethicists involved in end‐of‐life debates routinely distinguish between ‘killing’ and ‘letting die’. Meanwhile, previous work in cognitive science has revealed that when people characterize behaviour as either actively ‘doing’ or passively ‘allowing’, they do so not purely on descriptive grounds, but also as a function of the behaviour’s perceived morality. In the present report, we extend this line of research by examining how medical students and professionals (N = 184) and laypeople (N = 122) describe physicians’ behaviour in end‐of‐life scenarios. (...) We show that the distinction between ‘ending’ a patient’s life and ‘allowing’ it to end arises from morally motivated causal selection. That is, when a patient wishes to die, her illness is treated as the cause of death and the doctor is seen as merely allowing her life to end. In contrast, when a patient does not wish to die, the doctor’s behaviour is treated as the cause of death and, consequently, the doctor is described as ending the patient’s life. This effect emerged regardless of whether the doctor’s behaviour was omissive (as in withholding treatment) or commissive (as in applying a lethal injection). In other words, patient consent shapes causal selection in end‐of‐life situations, and in turn determines whether physicians are seen as ‘killing’ patients, or merely as ‘enabling’ their death. (shrink)

Disclosure in clinical practice is aimed at promoting patient autonomy, usually culminating in patient choice (e.g., to consent to an operation or not, or between different medications). In medical ethics, there is an implicit background assumption that knowing more about (X) automatically translates to greater, or more genuine, autonomy with respect to one's choices involving (X). I challenge this assumption by arguing that in rare cases, withholding information can promote a patient's autonomy (understood as the capacity for rational choice in (...) alignment with one's values and goals). (shrink)

This paper offers a qualified defence of physician non-compliance with antiabortion legislation in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. The paper examines two ethically troubling trends of post-Dobbs legislation: narrow and vague maternal health exemption clauses and mandatory reporting of miscarriages in jurisdictions where patients may criminal prosecution for medically induced abortions. It then examines and defends a professional obligation on the part of physicians to comply with the law. This obligation, however, (...) is defeasible. The paper then argues that physicians’ obligations to comply with the law is defeated when the law is illegitimate and following the law would constitute bad medical practice. Finally, it argues that the ethically troubling trends in post-Dobbs antiabortion legislation may meet these criteria. (shrink)

The present paper constitutes a critique of David Alm’s article “Punishment, Consent and Value”, in which it is argued that the consensual theory of punishment defended by C. S. Nino is false. Whilst Alm believes that this theory is grounded on an inadequate model of normative relations, here I will defend the hypothesis that such an assessment derives from an insufficient conception of human value and respect.

Resumen Tanto el concepto típicamente utilitarista de protección social como el concepto típicamente kantiano de consentimiento ocupan un lugar central en la estrategia que ensaya C. S. Nino para justificar la institución del castigo. Sin embargo, en este trabajo intentaré demostrar que ambos conceptos son irreconciliables. La encrucijada, en cualquier caso, es la siguiente: mientras el primer concepto, interpretado a la luz de la teoría ética del autor, parece tornar innecesaria la apelación al segundo concepto, una interpretación alternativa del primer (...) concepto tampoco nos situaría ante un mejor panorama filosófico.In the present article I aim to show that the meaning of the first concept, as well as the Kantian concept becomes truly intelligible only when we manage to read Nino’s penal theory in the light of his own ethical theory. Thus, on the hypothesis that this is indeed the best possible reading, the strategy tried out by Nino will have to face a difficult crossroads: either adopt a concept of social protection that will definitely displace the notion of consent from the justifying plane where the theory operates; or embrace a broader idea of protection where the notion of consent finds a less uncomfortable place. As will be argued, none of the alternatives is without its problems. (shrink)

Intento criticar en el presente trabajo el enfoque sobre el poder del consentimiento defendido por David Owens. Según este enfoque, la capacidad de consentir responde a un interés normativo característico, el cual consistiría en permitir que ciertas obligaciones personales sean incumplidas, sin importar lo que materialmente se siga de ello, como la transgresión de nuestros intereses no normativos. Aquí sostendré que el enfoque de Owens confundiría dos planos de consideraciones: el plano relativo a la capacidad general de consentir y el (...) plano relativo al ejercicio de dicha capacidad en casos concretos. Para comprender el primer plano, el enfoque puede ser provechoso. No obstante, para comprender el segundo, lo más razonable sería apelar a la idea de razones personales para actuar, una idea que no parece haber recibido suficiente atención en la literatura habitual sobre el consentimiento. (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)

Ethical challenges to certain aspects of research on human subjects are not uncommon; examples include challenges to first-in-human trials (Chapman in J Clin Res Bioethics 2(4):1–8, 2011), certain placebo controlled trials (Anderson in J Med Philos 31:65–81, 2006; Anderson and Kimmelman in Kennedy Inst Ethics J 20(1):75–98, 2010) and “sham” surgery (Macklin in N Engl J Med 341:992–996, 1999). To date, however, there are few challenges to research when the subjects are competent and the research is more than minimal risk (...) with no promise of direct benefit. The principal reason given for allowing research that is more than minimal risk without benefit is that we should respect the autonomy of competent subjects. I argue that though the moral intuitions informing respect for autonomy are sound, there is another set of intuitions regarding what we take to be just treatment of another when one agent knowingly causes or allows suffering on another agent. I argue that concerns generated by commutative justice serve as limitations on permissible research. I highlight our intuitions informing this notion of justice by appealing to work done on theodicy; what counts as a morally sufficient reason for God to allow suffering in humans is applicable also to the researcher-subject relationship. I conclude that all human subjects who are exposed to more than minimal risk research should enjoy the same actual protections (e.g., subpart D) as those given subjects who cannot consent. (shrink)

Debate over the normativity of virtual phenomena is now widespread in the philosophical literature, taking place in roughly two distinct but related camps. The first considers the relevant problems to be within the scope of applied ethics, where the general methodological program is to square the intuitive (im)permissibility of virtual wrongdoings with moral accounts that justify their (im)permissibility. The second camp approaches the normativity of virtual wrongdoings as a metaphysical debate. This is done by disambiguating the ‘virtual’ character of ‘virtual (...) wrongdoings’. Doing so is supposed to provide illuminating ontological distinctions that inform ethical aspects of the debate. We argue that each approach faces its own set of issues, and as a result, motivates consideration of an alternative. The alternative we suggest turns inquiry concerning the normativity of virtual wrongdoings into a distinctively conceptual question. Rather than asking whether some action is right or wrong, or whether some virtual phenomenon counts as a particular action at all, we argue that research into the normativity of virtual wrongdoings may be guided by reflecting on whether a concept that originated and developed within a non-virtual context should be exported into a foreign virtual domain. We consider this approach and several objections. (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)

Uptake is typically understood as the hearer’s recognition of the speaker’s communicative intention. According to one theory of uptake, the hearer’s role is merely as a ratifier. The speaker, by expressing a particular communicative intention, predetermines what kind of illocutionary act she might perform. Her hearer can then render this act a success or a failure. Thus the hearer has no power over which act could be performed, but she does have some power over whether it is performed. Call this (...) the ratification theory of uptake. Several philosophers have recently endorsed an alternative theory of uptake, according to which the hearer can determine the nature of the act the speaker performs. According to this theory, if the hearer regards an utterance as illocutionary act y, then it is act y, even if the speaker intended to perform act x. Call this the constitution theory of uptake. The purported advantage of this theory is that it identifies a common but underanalysed way in which speakers can be silenced. I argue that despite its initial intuitive pull, the constitution theory of uptake should be rejected. It is incompatible with ordinary intuitions about speech, it entails a conceptual impossibility, and it has unsavoury political implications, entailing that marginalised speakers barely qualify as agents. (shrink)

Philosophy and Phenomenological Research, EarlyView. Despite the acknowledgement of the moral significance of consent there is still much work to be done in determining which specific sexual encounters count as unproblematically consensual. This paper focuses on the impact of deception. It takes up the specific case of deception about one's self. It may seem obvious that one ought not to lie to a sexual partner about who one is, but determining which features of oneself are most relevant, as well as (...) the lies which it follows would be impermissible to tell, is complicated. It is argued here that deception about one's morally valenced character traits, those we think of as virtues and vices, are particularly problematic. This is true regardless of whether knowing the truth about those traits would have made a difference to one's partner's consent. Attention is then drawn to a range of types of lies that one ought not to tell. (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)

In this paper I first argue that we do not need to intend all the features of X in order to consent to X. I will present cases in which agents intend to consent to gambles, and intend to consent to have sex with people under certain descriptions, de re, rather than de dicto. Next, I argue that deception – even deception about features of a sexual act that qualify as “deal-breakers” for a participant – might not always have the (...) power to undermine sexual consent. In both sections I craft my arguments by appealing to a proposal about the scope of rights. I suggest that we may have intentions regarding our sexual experiences that do not map onto the rights that we actually hold pertaining to those sexual experiences. (shrink)

This article offers an account of the information condition on morally valid consent in the context of sexual relations. The account is grounded in rights. It holds that a person has a sufficient amount of information to give morally valid consent if, and only if, she has all the information to which she has a claim-right. A person has a claim-right to a piece of information if, and only if, a. it concerns a deal-breaker for her; b. it does not (...) concern something that her partner has a strong interest in protecting from scrutiny, sufficient to generate a privilege-right; c.i. her partner is aware of the information to which her deal-breaker applies; or c.ii. her partner ought to be held responsible for the fact that he is not aware of the information to which her deal-breaker applies; and finally, d. she has not waived or forfeited her claim-right. Although we present this account in the context of sexual relations, we believe a virtue of the account is that it can be easily translated into other contexts. (shrink)

Humanoid robots used for sexual purposes are beginning to look increasingly lifelike. It is possible for a user to have a bespoke sexbot created which matches their exact requirements in skin pigmentation, hair and eye colour, body shape, and genital design. This means that it is possible—and increasingly easy—for a sexbot to be created which bears a very high degree of resemblance to a particular person. There is a small but steadily increasing literature exploring some of the ethical issues surrounding (...) sexbots, however sexbots made to look like particular people is something which, as yet, has not been philosophically addressed in the literature. In this essay I argue that creating a lifelike sexbot to represent and resemble someone is an act of sexual objectification which morally requires consent, and that doing so without the person’s consent is intrinsically wrong. I consider two sexbot creators: Roy and Fred. Roy creates a sexbot of Katie with her consent, and Fred creates a sexbot of Jane without her consent. I draw on the work of Alan Goldman, Rae Langton, and Martha Nussbaum in particular to demonstrate that creating a sexbot of a particular person requires consent if it is to be intrinsically permissible. (shrink)

In the 2020 Yale Law Journal article, “Commonsense Consent,” Roseanna Sommers argues that deception is compatible with the layperson’s intuitive sense of consent. That is, unlike the canonical understanding of consent defended by legal scholars and philosophers, the notion of consent defended by the folk is not invalidated by deception. In this study, I find that while respondents do appear to attribute consent to victims of deception, they do so in a limited number of contexts – i.e., they attribute de (...) re consent to victims of de dicto deception and attribute de dicto consent to victims of de re deception. When the two varieties of consent and deception are properly disambiguated and matched type for type however, we see the reverse phenomenon – i.e., participants refrain from attributing de dicto consent to de dicto deception and refrain from attributing de re consent to de re deception. If this is right, rather than saying, as Sommers does, that deception generally fails to invalidate commonsense consent, we should refine our understanding of commonsense consent to include two varieties of consent, each of which is in fact invalidated by its own variety of deception. (shrink)

This paper argues that an instance of trash-talking is permissible if and only if the relevant sports organization’s system of rules permits the expression. The argument for this position rests on the notion that if there is no relevant side-constraint on trash-talking, then if the player commits to a moral boundary on trash-talking then that is the moral boundary on trash-talking. I then argued that there is no relevant side-constraint on trash-talking and that the players commit to the ownership theory (...) as the moral boundary on trash-talking. Hence, the ownership theory is the moral boundary for trash-talking. I then considered a number of objections, the most important of which are that there is a side-constraint against trash-talking because it is degrading, disrespectful, exploitative, or objectifying and that the ownership theory is false because it confuses what is wrong with what is penalized. (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)

This paper considers the relationship between institutions and the “sexual imaginary,” understood as the set of affective and imaginative resources that produce certain forms of sexual subjectivity. Drawing on the work of Cornelius Castoriadis and Moira Gatens, I argue that institutions play an important role in shaping sexual imaginaries. Historically, institutions have been sites in which unjust sexual norms have been reinforced and legitimized. I analyse the growing trend of consent education at Australian universities to explore how institutions may also (...) represent potential sites for contesting and reimagining these norms. Feminist critiques of consent suggest that consent education may in fact reproduce a narrow and conservative vision of sexuality, one that aligns with the neoliberal politics of the contemporary university. This paper contributes to these critiques by exploring how both the neoliberal university and consent theory are premised on a distorted vision of the subject as a rational, disembodied being. I argue that transforming dominant sexual imaginaries requires recognizing and interrogating both how desire permeates institutional spaces and the role of desire in ethical sexual relations. (shrink)

:This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three "pure models" (...) of the mens rea requirements for complicity are distinguished, based on the three theories of liability conventionally distinguished in the general part of Anglo-American criminal law. One of these, the vicarious responsibility model, is put aside initially because of both its descriptive inaccuracy and its normative undesirability. The analysis proceeds using the other two models: that of the mens rea requirements for principal liability for completed crimes, and that of the mens rea requirements for attempt liability. Both the common law and the Model Penal Code are seen as complicated admixtures of these two models, the common law being too narrow in the scope of its threatened liability and the Model Penal Code being both too broad and too opaque in its demands for accomplice liability. The normative recommendation of the paper is to adopt the model for the mens rea of complicity that treats it as a form of principal liability, recognizing that the overbreadth of liability resulting from adoption of that model would have to be redressed by adopting a "shopkeeper's privilege" as an affirmative defense separate from any mens rea requirement. View HTML Send article to KindleTo send this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle. Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Find out more about the Kindle Personal Document Service.UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Your Kindle email address Please provide your Kindle [email protected]@kindle.com Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Dropbox To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox. UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Google Drive To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive. UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Export citation Request permission. (shrink)

Within bioethics, two prevailing approaches structure how we think about the role of medical surrogates and the decisions that they must make on behalf of incompetent patients. One approach views the surrogate primarily as the patient's agent, obediently enacting the patient's predetermined will. The second approach views the surrogate as the patient's custodian, judging for herself how to best safeguard the patient's interests. This paper argues that both of these approaches idealize away some of the ethically relevant features of advance (...) care planning that make patient preferences so inscrutable and surrogate decision-making so burdensome. It proposes a new approach to surrogate decision-making, the Fiduciary Agency Approach. On this novel approach, the surrogate has authority to not only act on the patient's behalf as the patient's agent but also to decide on the patient's behalf as the patient's fiduciary. One upshot of this new approach is that surrogates must sometimes go against the expressed dictates of the patients' advance directives not necessarily because doing so would be in the patient's best interest but rather because doing so would best represent the patients' will. (shrink)

The pelvic exam is used to assess the health of female reproductive organs and so involves digital penetration by a physician. However, it is common practice for medical students to acquire experience in administering pelvic exams by performing them on unconscious patients without prior authorization. In this article, we argue that such unauthorized pelvic exams (UPEs) are sexual assault. Our argument is simple: in any other circumstance, unauthorized digital penetration amounts to sexual assault. Since there are no morally significant differences (...) between UPEs and other instances of digital penetration, UPEs are sexual assault. So, insofar as one is against sexual assault, one should be against UPEs. (shrink)

Although the principle of informed consent is well established and its importance widely acknowledged, it has met with criticism for decades. Doubts have been raised for a number of different reasons. In particular, empirical data show that people regularly fail to reproduce the information provided to them. Many critics agree, therefore, that the received concept of informed consent is no more than a myth. Strategies to overcome this problem often rest on a flawed concept of informed consent. In this paper, (...) it is suggested that informed consent is a communicative act between two persons. The challenge is to elucidate the norms and constraints for successfully performing such a communicative act. The view developed here has major consequences with regard to the standards for information disclosure as well as for the general scope of 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)

What role does audience uptake play in determining whether a speaker refuses or consents to sex? Proponents of constitution theories of uptake argue that which speech act someone performs is largely determined by their addressee’s uptake. However, this appears to entail a troubling result: a speaker might be made to perform a speech act of sexual consent against her will. In response, we develop a social constitution theory of uptake. We argue that addressee uptake can constitute a speaker’s utterance of (...) ‘no’ as a speech act of consent under some conditions, but that this does not prevent us from judging that an addressee committed rape. Second, we claim that addressee uptake is not the only form of uptake that matters—the uptake of other members of the discursive community matters too, and can override the addressee’s uptake, constituting the speaker’s utterance as the speech act it was intended to be. (shrink)

Most anti-paternalists claim that informed and competent self-regarding choices are protected by autonomy, while ill-informed or impaired self-regarding choices are not. Joel Feinberg, among many others, argues that we can in this way distinguish impermissible “hard” paternalism from permissible “soft” paternalism. I argue that this view confronts two related problems in its treatment of ill-informed decision-makers. First, it faces a dilemma when applied to decision-makers who are responsible for their ignorance: it either permits too much, or else too little, intervention (...) to satisfy its proponents. Second, the most promising rationales in favor of the view ignore the distinction between an agent’s voluntarily bringing about some state of affairs, on the one hand, and an agent’s voluntarily assuming a risk, on the other. I conclude that a decision-maker’s ignorance is irrelevant to the permissibility of intervention on her behalf. If it is permissible to intervene in a given ill-informed choice, it would be permissible to intervene in an otherwise similar but informed choice, at least provided that intervention would produce similar benefits in both cases. This shows that we should sometimes accept straightforwardly paternalistic rationales. (shrink)

Our decision-making is often subject to framing effects: alternative but equally informative descriptions of the same options elicit different choices. When a decision-maker is vulnerable to framing, she may consent under one description of the act, which suggests that she has waived her right, yet be disposed to dissent under an equally informative description of the act, which suggests that she has not waived her right. I argue that in such a case the decision-maker’s consent is simply irrelevant to the (...) permissibility of proceeding. I then consider two alternative views. According to the first, people susceptible to framing are able to give valid consent so long as they are sufficiently informed. This suggestion, I argue, maintains an overly narrow focus on mere quantity of information to the exclusion of other choice-affecting factors. A second response, which appeals to hypothetical consent, is likewise of little use in resolving the moral problem posed by framing effects. I conclude that if susceptibility to framing undermines the validity of consent, we may have good reason to reconsider whether consent has the rights-waiving function commonly attributed to it. (shrink)

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)