Sommers, Roseanna. Commonsense Consent
2020, Yale Law Journal, 2232
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Added by: Tomasz Zyglewicz, Shannon Brick, Michael GreerAbstract: Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. While there seems to be broad consensus that consent is important, little is known about what people think consent is. This article undertakes an empirical investigation of people’s ordinary intuitions about when consent has been granted. Using techniques from moral psychology and experimental philosophy, it advances the core claim that most laypeople think consent is compatible with fraud, contradicting prevailing normative theories of consent. This empirical phenomenon is observed across over two dozen scenarios spanning numerous contexts in which consent is legally salient, including sex, surgery, participation in medical research, warrantless searches by police, and contracts. Armed with this empirical finding, this Article revisits a longstanding legal puzzle about why the law refuses to treat fraudulently procured consent to sexual intercourse as rape. It exposes how prevailing explanations for this puzzle have focused too narrowly on sex. It suggests instead that the law may be influenced by the commonsense understanding of consent in all sorts of domains, including and beyond sexual consent. Meanwhile, the discovery of “commonsense consent” allows us to see that the problem is much deeper and more pervasive than previous commentators have realized. The findings expose a large—and largely unrecognized—disconnect between commonsense intuition and the dominant philosophical conception of consent. The Article thus grapples with the relationship between folk morality, normative theory, and the law.Comment (from this Blueprint): Content warning: details of rape. This article presents a series of experimental studies that have an important result for understanding a legal puzzle that has plagued many feminist theorists. Sommers argues that the dominant explanation of the puzzle has been wrongly diagnosed by feminist theorists, and that attention to folk intuitions about the nature of consent can explain the law's inconsistent treatment of consent that is procured by deception.Liberto, Hallie. The Problem with Sexual Promises2017, Ethics, 127(2): 383-414.
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Added by: Emma Holmes, David MacDonald, Yichi Zhang, and Samuel Dando-MooreAbstract: I first distinguish promises with positive sexual content (e.g., promises to perform sexual acts) and promises with negative sexual content (e.g., promises to refrain from sexual acts—as one does when making monogamy promises). I argue that sexual content—even positive sexual content—does not cause a promise to misfire. However, the content of some successful promises is such that a promisee ought not to accept the promise, and, if she does accept, she ought then to release her promisor from the promise. I argue that both positive and negative sexual promises have content of this kind.Comment (from this Blueprint): Liberto argues that promises to have sex, and promises not to have sex, are a special type of promise that it is morally wrong to make. She does this by first arguing why promises to have sex are “overextensive”. This means that sexual promises promise something too important: sex. After she concludes that promises to have sex are overextensive she spends the second half of the paper arguing why promises not to have sex (i.e. monogmany promises) are not disanalogous to promises to have sex, and thus are also overextensive.Kukla, Quill R.. A Nonideal Theory of Sexual Consent2021, Ethics, 131(2): 270-292.
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Added by: Emma Holmes, David MacDonald, Yichi Zhang, and Samuel Dando-MooreAbstract: Our autonomy can be compromised by limitations in our capacities, or by the power relationships within which we are embedded. If we insist that real consent requires full autonomy, then virtually no sex will turn out to be consensual. I argue that under conditions of compromised autonomy, consent must be socially and interpersonally scaffolded. To understand consent as an ethically crucial but nonideal concept, we need to think about how it is related to other requirements for ethical sex, such as the ability to exit a situation, trust, safety, broader social support, epistemic standing in the community, and more.Comment (from this Blueprint): Kukla uses this paper to describe a view of consent which is relational. This means that rather than asking questions about what each person individually consented to or not, the question is how the people having sex communicated. If they communicate sufficiently well then the sex is consensual, and if they do not it is not. We can use this to challenge a view of consent which has been implicit in most of the readings so far. This paper is used to discuss blameworthiness and responsibility for wrongful sex, and to ask questions about what the real world obligations of agents are, given their lack of complete informationTilton, Emily, Jenkins Ichikawa, Jonathan. Not What I Agreed To: Content and Consent2021, Ethics, 132(1): 127-154.
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Added by: Emma Holmes, David MacDonald, Yichi Zhang, and Samuel Dando-MooreAbstract: 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.Comment (from this Blueprint): Tilton and Ichikawa attempt to work out what goes wrong in certain deception cases but not in others. This is useful as a reply to Dougherty's argument that sex from deception is always morally serious and it engages with the issues Fischel raises around gender deception.Jenkins Ichikawa, Jonathan. Presupposition and Consent2020, Feminist Philosophy Quarterly. 6(4).
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Added by: Emma Holmes, David MacDonald, Yichi Zhang, and Samuel Dando-MooreAbstract: 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.Comment (from this Blueprint): Here Ichikawa argues that the language of "consent" to sex presupposes that there is a 'requester' who asks for sex and a 'consenter' who then replies yes or no. Ichikawa argues that this reinforces sexist norms of how sex works.Alexander, Larry, Hurd, Heidi, Westen, Peter. Consent Does Not Require Communication: A Reply to Dougherty2016, Law and Philosophy. 35: 655-660.
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Added by: Emma Holmes, David MacDonald, Yichi Zhang, and Samuel Dando-MooreAbstract: Tom Dougherty argues that consenting, like promising, requires both an appropriate mental attitude and a communication of that attitude.Thus, just as a promise is not a promise unless it is communicated to the promisee, consent is not consent unless it is communicated to the relevant party or parties. And those like us, who believe consent is just the attitude, and that it can exist without its being communicated, are in error. Or so Dougherty argues. We, however, are unpersuaded. We believe Dougherty is right about promises, but wrong about consent. Although each of us gives a slightly different account of the attitude that constitutes consent, we all agree that consent is constituted by that attitude and need not be communicated in order to alter the morality of another’s conduct.Comment (from this Blueprint): The authors argue that consent is an attitude, rather than an act of communication. They give two examples to support this view where the communication of consent doesn’t occur or goes wrong somehow, but nonetheless (they claim) it is intuitively a consensual interaction.Hampton, Jean. Political Philosophy1996, Boulder, CO: Westview Press.
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Added by: Carl FoxPublisher's Note: Political philosophy, perhaps even more than other branches of philosophy, calls for constant renewal to reflect not just re-readings of the tradition but also the demands of current events. In this lively and readable survey, Jean Hampton has created a text for our time that does justice both to the great traditions of the field and to the newest developments. In a marvelous feat of synthesis, she links the classical tradition, the giants of the modern period, the dominant topics of the twentieth century, and the new questions and concerns that are just beginning to rewrite contemporary political philosophy.Hampton presents these traditions in an engaging and accessible manner, adding to them her own views and encouraging readers to critically examine a range of ideas and to reach their own conclusions. Of particular interest are the discussions of the contemporary liberalism-communitarianism debates, the revival of interest in issues of citizenship and nationality, and the way in which feminist concerns are integrated into all these discussions. Political Philosophy is the most modern text on the topic now available, the ideal guide to what is going on in the field. It will be welcomed by scholars and students in philosophy and political science, and it will serve as an introduction for readers from outside these fields.Comment: Many of the chapters would make for good introductory readings to standard topics in political philosophy, including: social contract theories, political authority, distributive justice, liberalism vs communitarianism, nationalism.Hurd, Heidi. The Moral Magic of Consent1996, Legal Theory 2(2): 121-146.
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Added by: Carl FoxAbstract: We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to others' exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of othersComment: Good introduction to the topic of consent as it makes clear both how strange it is as a power and how pervasive it is in our moral practices. Goes on to provide an interesting argument for consent as a subjective mental state and offers an account of what that might be. Could support a lecture or seminar on consent, or would make good further reading if the topic is only touched on briefly.Pitkin, Hanna. Obligation and Consent – II1966, The American Political Science Review 60, March: 39-52.
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Added by: Carl FoxIntroduction: [The doctrine of "hypothetical consent"] teaches that your obligation depends not on any actual act of consenting, past or present, by yourself or your fellow-citizens, but on the character of the government. If it is a good, just government doing what a government should, then you must obey it; if it is a tyrannical, unjust government trying to do what no government may, then you have no such obligation. Or to put it another way, your obligation depends not on whether you have consented but on whether the government is such that you ought to consent to it, whether its actions are in accord with the authority a hypothetical group of rational men in a hypothetical state of nature would have (had) to give to any government they were founding. Having shown how this formulation emerges from Locke's and Tussman's ideas, I want now to defend it as a valid response to what troubles us about political obligation, and as a response more consonant than most with the moral realities of human decisions about obedience and resistance. At the same time the discussion should also demonstrate how many different or even conflicting things that one might want to call "consent" continue to be relevant - a fact which may help to explain the tenacity of traditional consent theory in the face of its manifest difficulties. Such a defense and demonstration, with detailed attention to such decisions, are difficult; the discussion from here on will be more speculative, and will raise more questions than it answers.Comment: Largely superseded by later work (see, for instance, Stark's 'Hypothetical Consent and Justification'), but still an interesting exploration of hypothetical consent and legitimate authority, as well as offering further critique of actual consent theories of political obligation. Would make for good further reading or an option for anyone attracted to more of a history of philosophy approach.Pitkin, Hanna. Obligation and Consent – I1965, The American Political Science Review 59, December: 990-999.
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Added by: Carl FoxIntroduction: One might suppose that if political theorists are by now clear about anything at all, they should be clear about the problem of political obligation and the solution to it most commonly offered, the doctrine of consent. The greatest modern political theorists took up this problem and formulated this answer. The resulting theories are deeply imbedded in our American political tradition; as a consequence we are al- ready taught a sort of rudimentary consent theory in high school. And yet I want to suggest that we are not even now clear on what "the problem of political obligation" is, what sorts of "answers" are appropriate to it, what the con- sent answer really says, or whether it is a satis- factory answer. This essay is designed to point up the extent of our confusion, to explore some of the ground anew as best it can, and to invite further effort by others. That such effort is worthwhile, that such political theory is still worth considering and that it can be made genuinely relevant to our world, are the assump- tions on which this essay rests and the larger message it is meant to conveyComment: Still a good introduction to the topic of political obligation and does a nice job of distinguishing some of the main questions within that topic. Very thorough discussion of Locke. The third section on Tussman is a bit dated, but does discuss some of the issues surrounding political obligation and children and adults who are not fully competent.
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