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

  • David Archard (a1)

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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Frederick Siegler , Plamenatz on Consent and Obligation, 18 Phil. Q. 256–61 (1968)

John J. Jenkins , Political Consent, 20 Phil Q. 6066 (1970).

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

Frank Snare , Consent and Conventional Acts in John Locke, 13 J. Hist. Phil. 2736 (1975).

Ngaire Naffine , Possession: Erotic Love in the Law of Rape, 57 Mod. L. Rev. 1037 ( 1994).

Lois Pincau , Date Rape: A Feminist Analysis, 8 Law & Phil. 217–43 (198)

Lani Anne Remick , Read Her Lips: An Argument for a Verbal Consent Standard in Rape, 141 U. Pa L. Rev. 1103–51 (1993)

Stephen J. Schulhofer , The Gender Question in Criminal Law, 7 Social Phil. & Poly 105137 (1990).

Antonia Abbey , Sex Differences in Attributions for Friendly Behavior: Do Males Misperceive Females' Friendliness? 42 J. Personality & Soc. Psychol. 830–38 (1982)

Charlene L. Muehlenhard , Misinterpreted Dating Behaviors and the Risk of Dale Rabe, 6 I. Soc & Clinical Psychol. 2037 (1988)

R. Lance Shotland and Jane M. Craig , Can Men and Women Differentiate between Friendly and Sexually Interested Behavior? 51 Soc. Psychol. Q. 6673 (1988)

Tracy D. Bostwick and Janice L. Delucia , Effects of Gender and Specific Dating Behaviors on Perceptions of Sex Willingness and Date Rape, 11 J. Soc. & Clinical Psychol. 1425 (1992)

Robin M. Kowalski Inferring Sexual Interest from Behavioral Cues: Effect of Gender and Sexually Relevant Attitudes, 29 Sex Roles 1336 (1993).

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Legal Theory
  • ISSN: 1352-3252
  • EISSN: 1469-8048
  • URL: /core/journals/legal-theory
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