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“A Nod's as Good as a Wink”: Consent, Convention, and Reasonable Belief

  • David Archard (a1)
Abstract

Consider the following examples of behavior by Smith:

1. Smith, seated at her restaurant table, gives an order to the waiter;

2. Smith gets into a cab and names a destination;

3. Smith agrees to Jones's suggestion that they go back to Jones's apartment for a few drinks;

4. Smith casts her vote in some election.

In each of these instances what can Smith be understood as consenting to? Is she consenting to (1) pay the bill for whatever meal she orders; (2) pay the fare for the journey to her named destination; (3) sexual intimacy with Jones; and (4) accept the authority of whatever individual or political part is elected? The fact that Smith does not actually express her consent to each of these states of affairs or outcomes need not mean that she is not giving her consent to them. The idea that individuals can give their consent in ways other than by means of a formal verbal expression of agreement is a familiar, if controversial, one.

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1. This is the argument of Plamenatz John, Man and Society (Vol. 1. Chapter 6. 1963), and Consent, Freedom and Political. Obligation (1968). For discussion of his argument, see Siegler Frederick, Plamenatz on Consent and Obligation, 18 Phil. Q. 256–61 (1968) and Jenkins John J., Political Consent, 20 Phil Q. 6066 (1970).

2. Husak Douglas N. & Thomas George C. III, Date Rape, Social Convention, and Reasonable Mistakes, 11 Law & Phil. 95126 (1992).

3. An excellent account of consent is provided by Kleinig John, The Ethics of Consent, 8 Canadian J. Phil. Supplement. 91118 (1982).

4. This is the case as long as Jones did rely upon Smith's future performance, and Smith intended Jones to expect the further act or was careless in allowing such an expectation to be formed.

5. Singer Peter, Democracy and Disobedience 47 (1973).

6. For a defense of the view that this is how John Locke understood consent, see Snare Frank, Consent and Conventional Acts in John Locke, 13 J. Hist. Phil. 2736 (1975).

7. Husak & Thomas , supra note 2.

8. The requirement of mens rea is met if the defendant knows that the sexual intercourse is unconsented. As to the question of whether it matters that the belief in consent is sincere, even if unreasonable, there has been much debate, especially in the wake of the infamous Director of Public Prosecutions v. Morgan [1975] case. I presume a prevailing agreement that his belief in her consent, to give the required mens rea, must be both sincere and reasonable. I leave open questions of how “reasonable” is to be construed—whether, for instance, it is relative to this particular individual or to men in general.

9. Nino C.S., A Consensual Theory of Punishment, 13 Phil. & Pub. Aff. 295 (1984), who quotes Hobbes Thomas in support, “Whoever voluntarily doth any action, accepteth all the known consequences of it,”Leviathan 218 (Oakeshott Michael ed., 1955).

10. Eibl-Eibesfeldt I., Expressive Movements, in Non-Verbal. Communication 303 (Hinde R.A., ed., 1972).

11. For critiques of this model in the context of legal thinking about rape, see McSherry Bernadette, ‘No! (means no?’), 18 Alternative L. J. 2730 (1993), and Naffine Ngaire, Possession: Erotic Love in the Law of Rape, 57 Mod. L. Rev. 1037 ( 1994).

12. See evidence given to the British Law Commission, Consent in the Criminal Law, Consultation Paper No. 139 (London: HMSO, 1995), 10. 32. One respondent speaks of “ritualized stop words.”

13. “Her lips said ‘no’ but her eyes said ‘yes’” is a familiar excuse offered by a man who sexually persists in the face of his victim's protest

14. Estrich Susan, Real Rape, 100 (1987), citing Boston Globe, 01 29, 1985, p.9.

15. This argument is given most notable expression by MacKinnon Catharine. See, for instance, her Rape: On Coercion and Consent, inToward a Feminist Theory of the State 171–83 (1989). See also Pateman Carole, Women and Consent, 8 Political Theory 149168 (1980), reprinted in her The Disorder of Women: Democracy, Feminism and Political Theory 7189 (1989).

16. Among those who have defended an affirmative verbal consent standard (consent is given if and only if an explicit “yes” or its verbal equivalent is uttered) are: Pincau Lois, Date Rape: A Feminist Analysis, 8 Law & Phil. 217–43 (198); Remick Lani Anne, Read Her Lips: An Argument for a Verbal Consent Standard in Rape, 141 U. Pa L. Rev. 1103–51 (1993); Schulhofer Stephen J., The Gender Question in Criminal Law, 7 Social Phil. & Poly 105137 (1990).

17. Husak & Thomas , supra note 2, at 109.

18. At one point they speak of “the dangers of trying to resolve these matters without consulting empirical data”; supra note 2, at 110.

19. A classic article is Abbey Antonia, Sex Differences in Attributions for Friendly Behavior: Do Males Misperceive Females' Friendliness? 42 J. Personality & Soc. Psychol. 830–38 (1982); see also Cahill Spencer E., Cross-Sex Pseudocommunication, 26 Berkeley J. Soc. 7588 (1981); Muehlenhard Charlene L., Misinterpreted Dating Behaviors and the Risk of Dale Rabe, 6 I. Soc & Clinical Psychol. 2037 (1988); Shotland R. Lance and Craig Jane M., Can Men and Women Differentiate between Friendly and Sexually Interested Behavior? 51 Soc. Psychol. Q. 6673 (1988); Bostwick Tracy D. and Delucia Janice L., Effects of Gender and Specific Dating Behaviors on Perceptions of Sex Willingness and Date Rape, 11 J. Soc. & Clinical Psychol. 1425 (1992); Kowalski Robin M.Inferring Sexual Interest from Behavioral Cues: Effect of Gender and Sexually Relevant Attitudes, 29 Sex Roles 1336 (1993).

20. Consider the following opening paragraph from Abbey Antonia, Sex Differences in Attributions for Friendly Behaviour: Do Males Misperceive Females' Friendliness?, supra note 17, at 830: “The research described in this article grew out of the observation that females' friendly behavior is frequently misperceived by males as flirtation. Males tend to impute sexual interest to females when it is not intended. For example, one evening the author and a few of her female friends shared a table at a crowded campus bar with two male strangers. During one of the band's breaks, they struck up a friendly conversation with their male table companions. It was soon apparent that their friendliness had been misperceived by these men as a sexual invitation, and they finally had to excuse themselves from the table to avoid an awkward scene. What had been intended as platonic friendliness had been perceived as sexual interest. After discussions with several other women verified that this experience was not unique, the author began to consider several related, researchable issues.”

21. The classic study of conventions as a solution to coordination problems is Lewis David K., Convention: A Philosophic Study (1969).

22. Husak & Thomas , supra note 2, at 124.

23. An extract from the 1993 policy document reads, “If the level of sexual intimacy increases during an interaction (i.e., if two people move from kissing while fully clothed—which is one level—to undressing for direct physical contact, which is another level), the people involved need to express their clear verbal consent before moving to that new level.”

24. Husak & Thomas , supra note 2, at 124–25.

25. Id. at 118–20.

26. Ridout R. and Witting C., English Proverbs Explained 129 (1967).

27. For helpful critical comments of an earlier draft of this article I am indebted to the anonymous referee of Legal Theory.

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Legal Theory
  • ISSN: 1352-3252
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