Undermining Prima Facie Consent in the Criminal Law

Abstract

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...

A Critique of Carceral Feminist Arguments on Rape Myths and Sexual Scripts

“…See Jones (2012) on the first point, and Tadros (2006) and Dsouza (2013) on the second. norms, and so it would be naïve to assume that apparent choices are always straightforwardly and authentically free and unconstrained (Littleton, 2011;Coy et al, 2011;Turchik et al, 2010;Krahé et al, 2007).…”

“…There are some who argue that for women to bear the responsibility of saying ''no'' in contexts in which silence might be taken for ''yes'' is necessary to avoid convicting and punishing men who lack mens rea (Panichas 2006, p. 634-635;Dsouza, 2013). On the other hand, the idea that law should give credence to the view that silence or passivity might 8.…”