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)

This article has two broad purposes. First, as a political philosopher who has been interested in the concepts of coercion and exploitation, I want to consider just what the analysis of the concept of consent can bring to the question, what sexually motivated behavior should be prohibited through the criminal law? Put simply, I shall argue that conceptual analysis will be of little help. Second, and with somewhat fewer professional credentials, I shall offer some thoughts about the substantive question itself. (...) Among other things, I will argue that it is a mistake to think that sexual crimes are about violence rather than sex and that we need to understand just why the violation of sexual autonomy is a serious wrong. I shall also argue that the principle that “no means no” does not tell us when “yes means yes,” and that it is the latter question that poses the most interesting theoretical difficulties about coercion, misrepresentation, and competence. In addition, I shall make some brief remarks concerning two questions about consent and sexual relations that lie beyond the criminal law: What “consent compromising behaviors” should be regarded as indecent, although not criminal? When should someone consent to sexual relations within an enduring relationship? (shrink)

Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law Cambridge, MA: Harvard University Press, 1998, xii + 284 pp.

Proposing and consenting to sex are things that ordinary people manage to do all the time, yet legal regulation of sex seems to be an intractable problem. No one is satisfied with rape law, but no one knows quite what to do about it.

A little more than two years ago, a Texas woman, faced with a knife-wielding intruder demanding sex from her, tried to talk her attacker into wearing a condom to protect herself against the possibility of contracting AIDS. A grand jury refused to indict the man because jurors believed that the woman's act of self-protection implied that she had consented to sex.

Sex raises fundamental philosophical questions about topics such as personal identity and well-being, the relationship between emotion and reason, the nature of autonomy and consent, and the dual nature of persons as individuals but also social beings. This article serves as an overview of the philosophy of sex in the English-speaking philosophical tradition and explicates philosophical debate in several specific areas: sexual objectification, rape and consent, sex work, sexual identities and queer theory, the medicalization of sexuality, and polyamory. It situates (...) these topics in a framework of shifting cultural attitudes and argues for the importance of the philosophy of sex. It ends with some suggestions about future research, particularly with regard to the changing nature of pornography and sexual justice in legal theory. (shrink)

One of the dominant themes of the symposium from which this collection of articles arose was the ontological status of consent. Is consent a particular state of mind? Is it the signification of that state of mind via a conventionally recognized act? Or, is consent a normative concept that evaluates not only the presence of a state of mind or act, but also the appropriateness of that state of mind or act in the particular circumstances?

Many of Menander's comedies are structured according to a rape plot pattern in which a young Athenian citizen usually rapes and impregnates a female citizen prior to the opening of the play. In most cases, the rape leads to a happy ending: the marriage of the rapist and victim. This casual treatment of rape is striking because in all other respects Menander's plays are not only scrupulously faithful to Athenian law, they also use Athenian legal and social norms as their (...) own generic conventions. Although the rape of a female citizen was a serious oense in Athenian law, potentially punishable with death, and a flagrant violation of the norms of Athenian citizenship, Menandrian comedy never morally or legally problematizes rape. This study considers how the comedies neutralize the potential legal signicance of rape and what this tells us about Athenian law and the ideology of democratic citizenship. It argues that by portraying a neutral form of rape, Menander's comedies implicitly articulate those factors which had the potential to bring "rape" within the purview of Athenian legal discourse. Menandrian Comedy's strategic fidelity to the norms of Athenian citizenship also tells us something about the gender ideology of Athenian democratic citizenship, that is, the ways in which relations between the sexes support and sustain civic relations between men in Athenian political culture and democratic ideology. While Menander's romantic plots uphold the laws of citizen marriage, they do not passively enact the legal constructs. In one common variant of the rape plot, the gendered construction of citizenship embedded in Athenian law is specically conjoined to democratic norms. In this type of play, a wealthy young citizen rapes and eventually marries the daughter of a seemingly poor citizen. By using rape to generate matrimonial unions between the rich and the poor, these plays extend democratic norms into the social arena. The formation of marriages across class lines disrupts the eects of intergenerationality in reproducing social and economic inequalities. (shrink)

Let me begin by admitting that I am wary of any comprehensive definition of consent. This bias stems from my professional concentration on criminal law, in which nouons of freedom and responsibility play vital roles in a wide range of contexts. In each context, however, one discovers that freedom means something different. A voluntary act is any bodily movement not caused by external force or nervous disorder. On the other hand, a voluntary act, however horrific its results, ordinarily may be (...) punished only if the actor was subjectively aware that the act was wrong. In any event, a voluntary act may be excused as the product of duress if another person procures the actor's cooperation in the crime by an illegal threat that would overcome the resistance of a person of ordinary firmness. (shrink)

This paper aims to provide an in-depth examination of the fundamental elements of rape, specifically focusing on intention and consent, within the context of “deceiving someone into having sex”. The analysis will involve exploring model cases and scrutinising the intentions of both the deceiver and the deceived in relation to consent. Through conceptual analysis, the concept of “deceiving someone into having sex” will be clarified, drawing insights from typical applications of this concept. Additionally, this paper will critically evaluate the main (...) arguments against these conceptualisations of “deceiving someone into having sex”. This is done to demonstrate the flaws that undermine these arguments, thus highlighting the insufficiency of these approaches in fully discrediting the concept. Moreover, it will be argued that deceiving someone into having sex can be regarded as a form of coercion, and thus rape, aligning with the established criteria for identifying rape cases. In conclusion, this paper argues that the conception of “deceiving someone into having sex” as a form of rape challenges the narrow framework through which we traditionally understand rape, necessitating the recognition that the scope of the concept of rape extends beyond our previous limits. (shrink)