Why We Should Reject the Uptake Condition

This chapter argues that we should reject the Uptake Condition, according to which an action falls within the scope of consent only if the consent-receiver successfully interprets the consent-giver’s behaviour as motivated by an intention to permit this action. We should reject this condition on the grounds that a public commitment can be sufficient for consent in the absence of uptake with the consent-receiver. Since the Uptake Condition is implied by the Successful Communication Principle for the scope of consent, we must also reject the Successful Communication Principle. However, since the Behavioural View is not committed to the Uptake Condition, it does not follow that we must reject the Behavioural View.

The Available Reliable Evidence Principle

This chapter develops a principle that grounds the scope of consent in the appropriate interpretation of the consent. The appropriate interpretation is determined not by conventions but by certain evidence about what the consent-giver intends to authorize with their consent. To formulate a precise principle for the scope of consent, the chapter introduces the notion of ‘reliable evidence’. This is the evidence such that both the consent-giver and the consent-receiver must reasonably accept that this evidence bears on the appropriate interpretation of the consent. According to ‘Available Reliable Evidence Principle’, an action falls within the scope of someone’s consent when the reliable evidence that is actually available sufficiently supports interpreting the consent-giver’s behaviour as motivated by an intention to authorize this action. This principle is almost correct, but requires an important modification that comes in Chapter 11.

Conclusions

This concluding chapter summarizes the Evidential Account that is comprised of the Interpersonal Justification Argument, the Expression of Will View, and the Due Diligence Principle. After elaborating how the account applies, this chapter surveys remaining doubts that we may have about this account. Doubts are inevitable because there is a tension between two attractive thoughts. On the one hand, there is a pull to thinking that a consent-giver should be able to control the scope of their consent. On the other hand, there is a pull to thinking that the consent-receiver should have epistemic access to the scope of the consent. Since the consent-giver may fail to control the epistemic access of the consent-receiver, these thoughts cannot be fully reconciled, and so any account will miss out on something attractive. After discussing how the Evidential Account responds to this tension, this book ends by revisiting the topic of sexual deception. The Evidential Account entails an expansive view of sexual misconduct in so far as the account implies that many sexual deceivers engage in non-consensual sex with their victims.

Introduction

This chapter introduces this book’s investigation into the question of which normative principle governs the scope of consent. The scope of someone’s consent is the range of actions that they permit by giving consent. The ultimate conclusion of this book is that the scope of consent is determined by certain evidence that bears on the appropriate interpretation of the consent. To reach this conclusion, this book’s investigation involves taking a stance on what constitutes consent. By appealing to the idea that someone can justify their behaviour by appealing to another person’s consent, this book defends the view that consent consists in behaviour that expresses a consent-giver’s will for how a consent-receiver behaves. Discovering the principle for consent scope’s is important for a variety of practical applications, including sexual deception: by engaging in deception, a perpetrator can unwittingly manipulate their victim into taking part in a sexual encounter that lies outside the scope of their consent.

The Mental View

This chapter introduces the Autonomy Argument for the Mental View of consent. The Mental View is that consent consists in a mental attitude. The key ideas of the Autonomy Argument are that since consent is an expression of our autonomy, and since our thoughts are maximally under our control, consent consists in our thoughts. This argument provides support for the Mental View over its rival, the Behavioural View, according to which consent requires outward behaviour. However, this support is limited by the fact that the Behavioural View also implies that we have a robust amount of control over our consent. If we accept the Mental View, then we face a further question of which mental attitude constitutes consent. Since consent must persist until the time at which the consent-receiver acts, the most plausible version of the Mental View identifies consent with the mental state of intention.

The Expression of Will View I

This chapter begins developing the Expression of Will View, according to which someone consents by expressing their will for how another person behaves. This view is motivated by the Interpersonal Justification Argument, which makes use of the idea that an agent can justify treating an individual in a certain way by appealing to that individual’s consent. By locating consent as a means of interpersonal justification, this approach situates consent alongside forfeiture and waivers as ways that we can give up complaints against other people causally contributing to harms that we suffer. What distinguishes consent from these other bases of interpersonal justification is that consent involves an individual deliberately expressing their will for how an agent behaves.

The Successful Communication Principle

This chapter introduces the case for the ‘Successful Communication Principle’ for the scope of consent, according to which an action falls within the scope of someone’s consent when the consent-giver successfully communicates an intention to permit this action. This principle pairs with a view of consent as consisting in successful communication between the consent-giver and the consent-receiver. This principle and view can be motivated by the Control Argument, which appeals to the idea that an agent wrongs a victim by acting in the victim’s personal domain in a way that the victim does not control. For a consent-giver to control a consent-receiver’s conduct in virtue of the consent-receiver being guided by their consent, there must be successful communication between the consent-giver and the consent-receiver.

The Due Diligence Principle

This chapter argues that the scope of someone’s consent is partly determined by evidence that the consent-receiver has a duty to acquire via investigation. The ‘enhanced reliable evidence’ is defined as the union of the available reliable evidence and any reliable evidence that the consent-receiver has a duty of due diligence to acquire. We should accept the ‘Due Diligence Principle’ for the scope of consent. According to this principle, an action falls within the scope of someone’s consent when both the available reliable evidence and the enhanced reliable evidence sufficiently support interpreting the consent-giver’s behaviour as motivated by an intention to authorize this action.

The Behavioural View

This chapter argues that we should reject the Mental View in favour of the Behavioural View on the grounds that consent must be public. Like promises, consent modifies the demands that we can make of each other, and these demands structure the ways that we hold each other accountable. To the extent that duties are public, duties are better suited to structure how we hold each other accountable. Since consent changes which duties people have, this provides us with a rationale for why consent requires public behaviour. While an advocate of the Behavioural View will hold that consent requires behaviour, they should also allow that someone must have a mental attitude to consent. Accordingly, they should adopt a graded approach to sexual offence policies, according to which acting merely without someone’s affirmative consent is a less grave offence than acting against someone’s will.

Why We Should Reject the Intention Condition

This chapter argues that we should reject the Intention Condition, according to which an action falls within the scope of consent only if the consent-giver intends to permit this action. There are two key objections to the Intention Condition. The False Belief Objection concerns the possibility that a consent-giver lacks a permissive intention because they express their consent while falsely believing that this expression does not constitute valid consent. The Mistake Objection concerns consent-givers who make mistakes when communicating consent. Because of these mistakes, the consent-givers do not intend to permit certain actions, even though their behaviour expresses permission for these actions. When the consent-giver’s intentions diverge from their public behaviour, the scope of their consent is determined by the appropriate interpretation of their behaviour. Since the Intention Condition implies otherwise, we must reject the Intention Condition. Since the Intention Condition is entailed by both the Permissive Intention Principle and the Successful Communication Principle, we must reject both these principles.