Even when a person (V) appears to have consented to another person (D) crossing a boundary set by her (V's) interests, we sometimes treat V's apparent consent as ineffective. This may either be because the law does not permit consent to validate the actions concerned, or because V's consent is undermined by the presence of additional factors which render it insufficiently autonomous to be effective. Although efforts have been made to categorise and systematically analyse the additional factors in play in the latter set of cases, so far they have not yielded any measure of normative or doctrinal consonance. 1 Broadly stated, the central theses of this paper are (1) that prima facie consent is undermined when the prima facie consenter's autonomy to choose whether or not to consent has been unfairly constrained, and (2) that theoretical and doctrinal clarity can be promoted by analysing the factors that unfairly constrain autonomy in the criminal law using a framework developed in contract law to determine analogous questions arising in relation to assent to a contract. In Part I, I describe the notion of consent that I use in this paper. This part of the paper is partly stipulative, but to the extent 1 See for instance Heidi M. Hurd, "The Moral Magic of Consent", Legal Theory 2 (1996) 121 and Larry Alexander, "The Moral Magic of Consent (II)", Legal Theory 2 (1996) 165. Hurd's proposal on this issue (which I examine in this paper) was unacceptable even to Larry Alexander, with whom she set out to co-author her paper. See also Rebecca Williams, "Deception, mistake and vitiation of the victim's consent", Law Quarterly Review (2008) 132 for an overview of the doctrinal confusions (at least in English law) about the factors that vitiate prima facie consent. In fact, Arudra Burra, "The Significance of Consent", available at http://www.law.ucla.edu/home/index.asp?page=817 (cited with permission) argues that it is futile to seek an overarching explanation for the manner in which prima facie consent is undermined, since different non-consensual acts are wrong for different, 'domain-specific', reasons. 3 findings, these theorists inductively reason about the nature of consent, and suggest answers to vexed problems of law. Unfortunately, since there are also a variety of plausible opinions about what consent does, 4 any answer to the question "How does consent achieve what it does?" that focusses on only one type of case gives us only a partial picture, unsuitable by itself for inductive hypothesising about consent. Therefore, instead of adopting either of these approaches, I ask a question logically prior even to the question of what consent is-"What is it to have the ability to give valid consent?" Beyleveld and Brownsword have, in their meticulous study of the Hohfeldian nature of consent, addressed this question, 5 and I will adapt their findings to flesh out the view of consent that I adopt in this essay. I.1 The Hohfeldian identity of the ability to validly consent The ability to grant valid consent exists in jural rel...

When, if ever, do mistaken beliefs render sexual activity non-consensual despite a person's seeming consent? I suggest that existing answers can be improved upon by paying due attention to two things, (1) that valid consent is often given through exercises of sexual autonomy that are, to different extents, unreflective rather than considered; and (2) that a belief can define both the object of consent, and a precondition for it. I propose that where V putatively consents to sexual activity with D, the falseness of a belief that V holds renders the sexual activity non-consensual when it means either that what happened to V fell outside the (consideredly or unreflectively selected) boundaries of the object of V's consent, or that a precondition that V consideredly set for her consent, had not been met.

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