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

Published online by Cambridge University Press:  16 February 2009

David Archard
David Archard
Affiliation:
University of St. Andrews
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Extract

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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Type
Articles
Information
Legal Theory , Volume 3 , Issue 3 , September 1997 , pp. 273 - 290
Copyright
Copyright © Cambridge University Press 1997

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References

1. This is the argument of Plamenatz, John, Man and Society (Vol. 1. Chapter 6. 1963)Google Scholar, and Consent, Freedom and Political. Obligation (1968).Google Scholar For discussion of his argument, see Siegler, Frederick, Plamenatz on Consent and Obligation, 18 Phil. Q. 256–61 (1968)CrossRefGoogle Scholar and Jenkins, John J., Political Consent, 20 Phil Q. 60–66 (1970).CrossRefGoogle Scholar

2. Husak, Douglas N. & Thomas, George C. III, Date Rape, Social Convention, and Reasonable Mistakes, 11 Law & Phil. 95–126 (1992).CrossRefGoogle Scholar

3. An excellent account of consent is provided by Kleinig, John, The Ethics of Consent, 8 Canadian J. Phil. Supplement. 91–118 (1982).CrossRefGoogle Scholar

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).Google Scholar

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. 27–36 (1975).CrossRefGoogle Scholar

7. Husak, & Thomas, , supra note 2.Google Scholar

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]Google Scholar 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)Google Scholar, who quotes Hobbes, Thomas in support, “Whoever voluntarily doth any action, accepteth all the known consequences of it,”Google ScholarLeviathan, 218Google Scholar (Oakeshott, Michael ed., 1955).Google Scholar

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

11. For critiques of this model in the context of legal thinking about rape, see McSherry, Bernadette, ‘No! (means no?’), 18 Alternative L. J. 27–30 (1993)Google Scholar, and Naffine, Ngaire, Possession: Erotic Love in the Law of Rape, 57 Mod. L. Rev. 10–37 ( 1994).CrossRefGoogle Scholar

12. See evidence given to the British Law Commission, Consent in the Criminal Law, Consultation Paper No. 139 (London: HMSO, 1995), 10.Google Scholar 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)Google Scholar, citing Boston Globe, 01 29, 1985, p.9.Google Scholar

15. This argument is given most notable expression by MacKinnon, Catharine. See, for instance, her Rape: On Coercion and Consent, inGoogle ScholarToward a Feminist Theory of the State 171–83 (1989).Google Scholar See also Pateman, Carole, Women and Consent, 8 Political Theory 149–168 (1980)CrossRefGoogle Scholar, reprinted in her The Disorder of Women: Democracy, Feminism and Political Theory 71–89 (1989).Google Scholar

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)CrossRefGoogle Scholar; Remick, Lani Anne, Read Her Lips: An Argument for a Verbal Consent Standard in Rape, 141 U. Pa L. Rev. 1103–51 (1993)CrossRefGoogle Scholar; Schulhofer, Stephen J., The Gender Question in Criminal Law, 7 Social Phil. & Poly 105–137 (1990).CrossRefGoogle Scholar

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

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

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)CrossRefGoogle Scholar; see also Cahill, Spencer E., Cross-Sex Pseudocommunication, 26 Berkeley J. Soc. 75–88 (1981)Google Scholar; Muehlenhard, Charlene L., Misinterpreted Dating Behaviors and the Risk of Dale Rabe, 6 I. Soc & Clinical Psychol. 20–37 (1988)CrossRefGoogle Scholar; Shotland, R. Lance and Craig, Jane M., Can Men and Women Differentiate between Friendly and Sexually Interested Behavior? 51 Soc. Psychol. Q. 66–73 (1988)CrossRefGoogle Scholar; 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. 14–25 (1992)CrossRefGoogle Scholar; Kowalski, Robin M.Inferring Sexual Interest from Behavioral Cues: Effect of Gender and Sexually Relevant Attitudes, 29 Sex Roles 13–36 (1993).CrossRefGoogle Scholar

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 830Google Scholar: “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).Google Scholar

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

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.Google Scholar

25. Id. at 118–20.

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

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