Published online by Cambridge University Press: 16 February 2009
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 others.
1. I employ the terms “victim,” “plaintiff,” and “defendant” throughout the article, but I do so with considerable reticence. While these descriptions capture the fact that my ultimate interest is in determining the conditions under which the law should recognize consent as a means of defeating the prima Facie case for the commission of a crime, or as an affirmative defense to a prima facie case for the commission of a tort, they obscure the fact that I believe such conditions cannot be specified until we understand the conditions under which persons alter others' moral rights and duties. While both tort law and criminal law mirror morality in many respects, I take the latter to be the appropriate guide to the evaluation of the former. I am thus primarily concerned in this article with the conditions under which persons alter others' moral rights and duties. Inasmuch as my use of the legal descriptions of parties may obscure this ambition and confuse the reader into thinking that I am making doctrinally descriptive claims, my use of these terms is unfortunate. But since I consider the alternatives to these descriptions—such as “the consenter” and “the consentee”—aesthetically disqualifying, I shall risk the confusion.
2. To say this is to say that a particular subjective mental state is a necessary condition of consent. It is not to say that it is a sufficient condition of consent. As I will argue in the next section, it is a sufficient condition for prima facie consent, since prima facie consent does not require, as a moral matter, any observable conduct (that is, it does not embody an actus reus condition). However, as Section IV makes clear, possession of the mens rea of consent is not a sufficient condition of consent, for it may be the product of youth, insanity, duress, etc., and, hence, lack moral force.
3. Brentano, F., The Distinction Between Mental and Physical Phenomena, in Realism and the Background of Phenomenology 39Google Scholar (Chisolm, R. ed., 1960)Google Scholar (excerpted from Brentano, F., Psychologie vom Empirischen Standpunkt, Vol. I, Book II. Ch. iGoogle Scholar, (Terrell, D.B. trans., 1874)Google Scholar. I shall follow Daniel Dennett in capitalizing Brentano's term so as to distinguish it from the concepts of “intent,” “intentions,” and “intentional,” which are particular Intentional states. See Dennett, D.C., Content and Consciousness 20 (1969).Google Scholar
6. Model Penal Code. Sec. 2.02(2)(a)(i).
7. This is not to say that the man would necessarily be liable for rape. After all, if, in her mistaken belief that he was Robert Redford, the woman manifested all appearances of consent, then he might reasonably have believed that she was consenting and, hence, he might have acted without culpable mens rea. As this suggests, his liability will turn on whether he possessed the mental state required for liability. This constitutes an inquiry separate from that required to determine whether he committed the actus reus of rape by having intercourse with a woman who, in fact, failed to give consent.
8. I shall later refer to this thesis, in its subsequently modified form, as “the first identity thesis,” developing a second identity thesis in Section IV concerning the further conditions of responsibility jointly required before a plaintiff or victim will be deemed to have altered the morality of a defendant's prima facie bad actions via the exercise of prima facie consent.
9. 46 Wash. 2d 197, 200, 279 P.2d 1091, 1093 (1955).
10. 80 Wis. 523, 50 N.W. 403 (1891). In this case, the 11-year-old defendant lightly tapped the shin of the 14-year-old plaintiff. Severe injury ensued leading to eventual loss of the plaintiff's leg. The court found that inasmuch as the defendant intended to make physical contact with the plaintiff, he was liable for battery, notwithstanding the fact that the jury found that he intended no harm.
11. This more general formulation reflects the fact that, if the crime charged is a general intent crime requiring knowledge (but not purpose) on the part of the defendant, then the victim must have as her purpose that which the defendant must know. If the crime charged requires malice vis-à-vis material elements of the actus reus, then the victim must have as her purpose that which the defendant must be consciously aware of substantially and unjustifiably risking. If the crime or tort charged requires mere negligence vis-à-vis material elements of the actus reus, then the victim must have as her purpose that which the defendant should be consciously aware of substantially and unjustifiably risking. Since plaintiffs and victims more often assume the risk of a defendant's recklessness or negligence than intend the object of that recklessness or negligence, these latter two scenarios will be rare. While the assumption of a risk is akin to consent, its object is to be analyzed quite differently. In what follows, therefore, my remarks shall be intended to apply only to cases in which a plaintiffs or victim's consent is raised as a means of defending against either a general or specific intent crime.
12. See, e.g., Schulhofer, S.J., The Feminist Challenge in Criminal Law, 143 U. Penn. L. Rev. 2151, 2181 (1995)CrossRefGoogle Scholar (arguing that consent in the sexual context should mirror “every other context-affirmative permission clearly signalled by words or conduct”); McGregor, J., Force, Consent and the Reasonable Woman, in In Harm's Way 231, 242Google Scholar (Coleman, J.L. and Buchanan, A., eds., 1994)Google Scholar (claiming that “[c]onsent is performative, it is something that an agent does”).
13.  A.C. 182 (1976). In Morgan, a woman's husband encouraged two military subordinates to return to his house and engage in sexual intercourse with his wife, assuring them that, while she might manifest resistance, she would in fact be a consenting participant. When later charged with rape, the men insisted that, while they perhaps should have known that she was not consenting, they in fact believed that she was. Since the law under which they were tried made rape a general intent crime requiring knowledge of the victim's lack of consent, the court rightly held that if the defendants genuinely believed that the victim was consenting, they could not know that she was not consenting and, hence, they could not be held liable for rape.
14. In this symposium, Emily Sherwin advances a conception of consent that adopts this weaker claim. Sherwin concedes that “consent is both a subjective decision and a social act,” but she emphasizes the latter as the component that matters most See Sherwin, E., Infelicitous SexGoogle Scholar, in Part II of this symposium in the next issue of this journal.
15. Steven Katz argues that the resistance requirement to which victims are subject under many rape statutes is justified by the fact that “[t] he interaction between force and resistance make it likely that the man's attention was directed toward the woman's resistance, and hence her nonconsent” Katz, S.B., Expectation and Desire in the law of forcible Rape, 26 San Diego L. Rev. 21, 45 (1989)Google Scholar. Notice that Katz's argument makes affirmative actions on the victim's part important not because they provide evidence of the victim's mental state, but because they provide evidence of the defendant's mental state. Donald Dripps, by contrast, argues that current rape statutes should be revised to remove altogether from the set of material elements of the offense lack of consent on the victim's part. Under his analysis, a man who uses force or threat believing it to be necessary to achieve intercourse with a woman is guilty of rape, even if the woman has deliberately sought such violent sex of her own free will, and engages in it fully consensually. Dripps, D.A., Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent, 92 Colum L. Rev. 1780 (1992).CrossRefGoogle Scholar
16. Such defendants may be culpable, because, inasmuch as they have no good reason to believe that their victims are consenting, they are at least negligent with regard to a material element of the actus reus. Culpability absent wrongdoing, however, typically suffices only for attempt liability. To be guilty of a completed crime, defendants typically must act culpably and do wrong. A per se evidential rule might thus result in imposing liability for completed crimes on persons who do no wrong, and who are thus, at most, guilty of attempted crimes.
18. For case of analysis. I am following H.L.A. Hart's well-known account of the conditions of excuse. See generally the essays collected in Hart, H.L.A., Punishment and Responsibility (1968).Google Scholar
19. Model Penal Code sec. 210.3(b).
20. McGregor argues, for example, that voluntary intoxication should not only be recognized to vitiate consent, but should also create a presumption of nonconsent on the part of a plaintiff or victim. She argues further that if any intoxication can be proved, this “should establish the element of the actus reus ‘without consent.’” McGregor, , supra note 12, at 244–45.Google Scholar
21. And if intoxication ever does render a defendant incapable of governing his conduct in accordance with reason, it presumably render him incapable of forming and acting in accordance with the requisite mens rea that defines the offense charged.
22. As we shall see, the criminal law does not adopt a sliding scale of responsibility, and hence, it offers an alternative means of analyzing the application of the second identity thesis.
23. For the classic defense of the sliding scale of moral responsibility, see Austin, J.L., A Plea for Excuses, 57 Proc. Arist. Socy 1 (1956)Google Scholar. It is this argument that Larry Alexander makes in response to the second identity thesis in his contribution to this symposium. See Alexander, Larry, The Moral Magic of Consent IIGoogle Scholar, in Part II of this symposium in the next issue of this journal.