Consent possesses what Heidi Hurd calls “moral magic, “i.e., the capacity to transmute criminal conduct into beneficent events. It transmutes homicide into assisted suicide, trespass into hospitality, kidnapping into travel, and rape into lovemaking. Yet, though we are all accustomed to speaking of consent, we typically struggle to explain what we mean by it, and how does it work.
Is there a single conception of consent that encompasses all of its usages in criminal law, or only a variety of distinct and unrelated usages?
Is consent a communication that is objectively expressed, or it is an experience that is subjectively felt, or it is either, or both?
Is consent an inherently normative concept like “justice” and “right”, or does consent’s validity depend upon its being competent, informed and free?
Can offenses, which are presently framed in terms of ‘nonconsent’, be reformulated without any mention of ‘consent’?
Is it better to define criminal offenses like rape in terms of ‘nonconsent’, or in terms of ‘force’? (or does it make no difference?)
Is it possible to consent while remaining silent, or while saying “no”? (If so, ought it to be?).
Does consent to something, say ‘X’, entail being aware of ‘X’, or can one consent to ‘X’, without being aware that ‘X’ is present?
Is it possible to give prospective consent that one cannot later rescind or retroactive consent after the fact?
Is implied consent (e.g., the consent to sexual intercourse that wives implied by marrying) a legal fiction that can easily be eliminated, or is implied consent inherent in conceptions of consent?
We shall cover these and other issues of consent in light of weekly readings. The weekly readings will range from essays and chapters in philosophical accounts of consent to case-based problems.