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The Scope of Consent

The Scope of Consent TOM DOUGHERTY

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Tom Dougherty 2021 The moral rights of the author have been asserted First Edition published in 2021 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020952644 ISBN 978–0–19–289479–3 DOI: 10.1093/oso/9780192894793.001.0001 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Acknowledgements When writing this book, I have been fortunate to benefit from many people. I am particularly grateful to Johann Frick, Hugh Lazenby, Hallie Liberto, and Victor Tadros, from whom I have learned an enormous amount about the issues covered by this book. Some of my intellectual debts are so important that I would like to highlight them at the outset. Johann has made me appreciate how much philosophical mileage can be got from the idea of interpersonal justification. Hugh has helped me realize the importance of a consent-receiver’s epistemic access to the scope of consent. Hallie has persuaded me that consent can be given by directives like requests, and I have been significantly influenced by Victor’s challenges to the view that uptake is not necessary for consent. In addition, Hallie and Victor came up with cases that steered me towards the conclusion that someone can consent to an action without intending to permit this action. These are only some of the ways that they have shaped my views, and I am also grateful to each of them for their support and friendship over the years. I have also benefited a great deal from conversations with many other philosophers and from their feedback on my work. The research for this book has taken many years, and I have not done a great job of keeping records of all of the people who have helped me along the way. Here is a no doubt incomplete list of the people whom I would like to thank for conversations and comments: Larry Alexander, Scott Anderson, David Archard, Ralf Bader, Elizabeth Barnes, Christian Barry, Renée Jorgensen Bolinger, David Boonin, Angela Breitenbach, Danielle Bromwich, Eamonn Callan, Karam Chadha, Clare Chambers, Steve Clarke, Garrett Cullity, Robin Dembroff, Luara Ferracioli, Kim Ferzan, John Filling, Helen Frowe, Eduardo García-Ramirez, Eleanor Gordon-Smith, Dan Greco, Alex Grzankowski, Simone Gubler, Dan Halliday, Sally Haslanger, Richard Healey, Sam Hesni, Richard Holton, Joe Horton, Adam Hosein, Zöe Johnson King, Karen Jones, Shelly Kagan, Rachel Keith, John Kleinig, Quill Kukla, Rae Langton, Seth Lazar, Jed Lewinsohn, Christian List, Neil Manson, Jeff McMahan, Kris McDaniel, Tristram McPherson, Colin Marshall, Joseph Millum, Andreas Muller, Véronique Munoz-Dardé, Mark Murphy, Serena Olsaretti, Mike Otsuka, David Owens, Tom Parr,

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Hanna Pickard, Alejandro Perez-Carballo, Ketan Ramakrishnan, Anni Räty, Massimo Renzo, Stella Rhode, Ian Rumfitt, Luke Russell, Bernhard Salow, Paolo Santorio, Debra Satz, Peter Schaber, Laura Schroeter, Adam Slavny, Paulina Sliwa, Lucy Smith, Michael Smith, Nic Southwood, Gopal Sreenivasan, Aaron Thieme, Judy Thomson, Suzanne Uniacke, Beth Valentine, Laura Valentini, Mark Van Roojen, Daniel Viehoff, Uri Viehoff, Kenny Walden, Tom Walker, Alan Wertheimer, Caroline West, Peter Westen, and Quinn White. Among the people who will not get the public recognition that they deserve for helping me are anonymous reviewers for journals and for Oxford University Press. Additional thanks to Aaron Thieme for superlative proofreading on a tight schedule and for apparently infinite patience when correcting comma abuse. I have also benefited from feedback from audiences at the University of Sydney, the Australian National University, the University of Melbourne, University of Adelaide, the University of Western Australia, Victoria University of Wellington, Charles Sturt University at Canberra, the University of Canterbury, the University of Otago, the Australasian Association of Philosophy Conference, the University of Cambridge, the University of Oxford, the PPE Seminar of the Royal Institute of Philosophy, Birkbeck University, University College London, the University of Stirling, the University of Warwick, Queen’s University Belfast, the London School of Economics, the Society for Applied Philosophy Conference, the University of Glasgow, the University of York, the Joint Session of the Mind Association and the Aristotelian Society, the University of Birmingham, the University of Leeds, University of Münster, University of Zurich, American Philosophical Association–Pacific Division Conference, the Philosophy, Politics, and Economics Society Meeting, Yale University, Georgetown University, the University of Colorado at Boulder, the Massachusetts Institute of Technology, the University of Connecticut at Storrs, the University of Michigan, and the University of California at Berkeley. When writing this book, I have been supported by an Early Career Leadership Fellows Award from the Arts and Humanities Research Council (Council Reference: AH/N009533/1), by a Faculty Fellowship at the Murphy Center at the University of Tulane, and by the institutions that have employed me: Stanford University, the University of Sydney, the University of Cambridge, and the University of North Carolina at Chapel Hill. Thanks to Alice Stevenson for the cover artwork.

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I am also very grateful to Peter Momtchiloff for his advice and support in his capacity as Senior Commissioning Editor for Philosophy at Oxford University Press. Most of all, I am indebted to the support of my friends and family.

Introduction 0.1 The Scope of Consent Like many philosophers, I have a talent for abstraction. That might sound like boasting, but really ‘abstraction’ is just a polite word for not paying attention to what is going on around you. Because this comes easily to me, life is often full of surprises, like finding out after a medical procedure what it involved. Apparently, a biopsy involves cutting out bits of one’s body. I had thought that a tube was being put down my throat to take photos. It was a good hospital, so the medical staff had asked whether I knew what a biopsy was. Because I mistakenly half-thought that I did, I signed the consent form without realizing what I was getting myself into. When I later found out what had happened, I began to wonder: had I really consented to a biopsy? By signing the form, I had certainly consented to something. But was the actual medical procedure something that I had authorized? Or, as I like to put that question, did the biopsy fall within the scope of my consent? My answer is that because I signed a consent form for a biopsy, the biopsy did fall within the scope of my consent. I secretly hope that this might strike you as a piece of common sense, because this will make my view an easier sell. But if it is common sense, then it is common sense that is denied by a common view of consent. According to this view, consent is a normative power in the following sense: by giving consent, we grant someone a permission to perform an action at least in part by intending to permit them to perform this action.¹ Some say that we give people these permissions simply by willing that they have these permissions. Others say that we also need to communicate that we are giving them these permissions. But either way, the thought is that we consent to someone performing an action partly by intending to permit them to perform that very action. While this

¹ Here and throughout this book, whenever gender is irrelevant, I use ‘they’ as a singular gender-neutral pronoun both for characters in hypothetical examples and for scholars. I do so largely for the reasons given in Dembroff & Wodak (2018), and also to avoid making assumptions about scholars’ genders. The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0001

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normative power view is attractive, there has not been sufficient appreciation of one of its central problems, which is that it has implausible implications for the scope of someone’s consent. If consenting to an action requires intending to permit someone to perform that action, then one cannot consent to a biopsy while failing to form an intention to permit a biopsy. Since I achieved that feat when I bumbled through the hospital, the normative power view is false. In its place, I will propose an alternative view, which is centred around the following three key ideas. First, consent involves deliberately engaging in behaviour that expresses one’s will. Second, the scope of the consent partly depends on the right way to interpret this expressive behaviour in light of the available evidence. Third, the scope also depends on how this behaviour should be interpreted in light of any extra evidence that the consent-receiver has a duty to acquire. Let me briefly sketch each idea before showing how these ideas apply to the case of the biopsy. First idea: consent is an expression of the will. The first idea is a view of what consent is. To give consent, it is not enough for us to have certain thoughts. In addition, we need to engage in outward behaviour. Specifically, we need to deliberately act in ways that express our wills concerning how another person acts. There are two ways to do this. First, we can grant them permission. Second, we can direct how they act. An example of a direction would be a request for another person to perform an action. Second idea: the scope of consent depends on the consent-receiver’s evidence. Although consent requires that we deliberately engage in a type of behaviour that expresses our wills, our intentions do not determine which token actions are authorized by our consent. Instead, the range of authorized actions is fixed by the correct way for our consent-giving behaviour to be interpreted. Partly, this interpretation depends on the available evidence concerning what we intended to permit when we engage in this behaviour. But not any evidence will do. This evidence must meet two conditions. First, we must reasonably accept that this evidence bears on how we should be interpreted. Second, recipients of our consent must reasonably accept that this evidence bears on how we should be interpreted. As a term of art, I call evidence that meets both conditions, ‘reliable evidence’. The scope of our consent is fixed in part by the reliable evidence that is actually available. Third idea: the scope also depends on any evidence that the consentreceiver has a duty to acquire. Sometimes, others have duties to acquire additional reliable evidence about which actions we mean to cover. Let us say that the ‘enhanced reliable evidence’ is the sum of this extra evidence

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and the available reliable evidence. The scope of our consent is also fixed in part by the enhanced reliable evidence about what we intend to cover with our consent. Together, these ideas imply that I did consent to the biopsy. By signing a consent form, I was deliberately engaging in permission-giving behaviour. Indeed, I was also deliberately directing the medical staff ’s behaviour with a request. Therefore, twice over I was deliberately expressing my will in a way that constituted giving consent. To interpret this expression of my will, the medical staff had the following evidence: I had signed a form that clearly stated that the procedure was a biopsy, and I had indicated that I knew what a biopsy was. I had to reasonably accept that my consent should be interpreted in light of this evidence. Admittedly, that evidence was misleading, given that I did not know what a biopsy was and hence did not intend to authorize a biopsy. But all the same, I had given the medical staff compelling evidence that I intended to authorize a biopsy when I signed the consent form. Moreover, the medical staff had no duty to acquire additional evidence concerning what I intended to authorize. By getting my response that I knew what a biopsy was, the staff had done all that was required of them. Therefore, the available reliable evidence was the same as the enhanced reliable evidence. Since this evidence sufficiently supported the interpretation that I intended to authorize a biopsy by signing the consent form, the biopsy fell within the scope of my consent.

0.2 Sexual Deception and the Story behind This Book I arrived at that view as the result of a project that began with an interest in lying to get laid. Let me illustrate this with a true story. Even though April Fool’s Day is an inauspicious day for a wedding, you still would not expect the marriage to end with the bride suing the Cuban government for sexual misconduct.² Yet that was the conclusion of Ana Margarita Martinez’s marriage to Juan Pablo Roque, after Roque disappeared from their Florida residence (Bragg 1999). The mystery of Roque’s absence was resolved a few days later when Roque appeared on television broadcast from Havana and unveiled themselves as an undercover spy sent to infiltrate the dissident community in the United States. This was an

² With minor modification, this paragraph is quoted from Dougherty (2018a).

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unwelcome surprise for Martinez, who had thought that Roque was a fellow dissident. Outraged, Martinez filed a lawsuit about the deception against Roque’s employer—the Republic of Cuba. Since Cuba was not in the habit of defending itself in the Florida legal system, Cuba did not contest the suit, and the court awarded Martinez millions of dollars in damages. Part of Martinez’s case was based on the claim that Roque’s fraud meant that Martinez did not consent to sex with Roque. There is a promising way to make Martinez’s case and an unpromising way. The unpromising way was chosen by Martinez’s lawyer, who said that Martinez ‘would not have given [their] consent, had [they] known’. This puts the case in terms of counterfactuals: the lawyer appeals to what Martinez would not have consented to. The problem with this approach is that counterfactuals can hold for all sorts of weird reasons. Suppose that Roque had instead concealed that they were a world champion at massage. And suppose that if Martinez had known that Roque was a world champion at massage, then Martinez would have refused to have sex on one of their early dates and instead insisted on a massage. Even if counterfactually Martinez ‘would not have given their consent, had they known’ how good Roque was at massage, this counterfactual holds for a weird reason that does not bear on whether Martinez consents in the actual world. Because counterfactuals can hold for weird reasons, counterfactuals do not determine whether someone gives valid consent to another person. The promising way to make Martinez’s claim is to say that sex with Roque did not fall within the scope of Martinez’s consent.³ By ‘the scope of Martinez’s consent’, I mean the set of sexual encounters that Martinez made permissible by giving consent. Consider the principle that this scope was determined by the content of Martinez’s intentions. On the assumption that Martinez did not intend to permit sex with a spy, this principle implies that sex with a spy did not fall within the scope of Martinez’s consent. Given that Roque was a spy, it would then follow that sex with Roque fell outside the scope of Martinez’s consent. That is to say that Martinez did not consent to sex with Roque. I had in mind this type of scope-based argument, rather than a counterfactual-based argument, when I wrote the article that began my interest in the topic of this book.⁴ In ‘Sex, Lies, and Consent’, I defended ³ A different way to make the claim is to invoke the idea that Martinez was insufficiently informed to give valid consent. For discussion of how sexual deception can invalidate consent, see Lazenby & Gabriel (2018). ⁴ The argument does not focus on what someone would agree to in a counterfactual scenario but instead focuses on the actual scope of their consent. The argument relies on the premise that

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the principle that our intentions determine the scope of our consent. As I put the idea, ‘the rights that we waive are the rights that we intend to waive’ (Dougherty 2013: 734). That principle prompts us to think about the features of a sexual encounter to which the consent-giver’s will is opposed in the following sense: the consent-giver intends not to permit an encounter with any of these features. I called such a feature a ‘deal-breaker’.⁵ It follows from this principle and definition that if a deceiver hides from their victim the fact that a sexual encounter has a feature that is a deal-breaker for the victim, then the victim does not consent to this encounter. Since this principle places no restrictions on what counts as a deal-breaker, it is not just someone like Roque who is in trouble. The principle implies that a sexual encounter could fall outside the scope of someone’s consent in virtue of deception about any feature whatsoever. For example, this could potentially be deception about someone’s natural hair colour or the university that they attended. If either of these features is a deal-breaker for the consent-giver, then this deception would lead to a non-consensual encounter. What I came to see as the central mistake of that article was my assumption that consent is a mental phenomenon.⁶ This assumption led me to think that our intentions determine the scope of our consent. However, I now think that this assumption is wrong. Our mental states are private, and yet consent publicly transforms our moral relationships the scope of their consent is grounded in the actual intentions that they have in the actual scenario in which they give consent. For criticism of the article based on interpreting it as making the counterfactual argument, see Tadros (2016); Manson (2017); Jubb (2017); Bromwich & Millum (2018). Jonathan Herring (2005) makes a counterfactual-based argument in defence of a similar conclusion to my conclusion about sexual deception. For an extension of the argument beyond deal-breakers, see Matey (2019). ⁵ A possible defect of this term is that it may suggest that we should consider the deals that someone would or would not counterfactually make. However, my definition concerns only the actual contents of the consent-giver’s actual attitudes. ⁶ Another important mistake concerned my argument about the gravity of certain forms of sexual misconduct. The article attracted criticism that persuaded me that I had offered a weak argument for my claim that it is seriously wrong to have sex with someone without their consent (Manson 2017; Brown 2020; Boonin n.d.). One of the main reasons that I offered for this claim was that the claim provides the best explanation of why it is wrong to have sex with a comatose person. However, I failed to consider key alternative hypotheses. Consider, for example, the alternative hypothesis that it is seriously wrong to have sex with someone without their consent when they strongly desire that this sexual encounter not take place. This hypothesis also explains why it is seriously wrong to have sex with a comatose person. But the hypothesis avoids implying that it is seriously wrong for a Yale graduate to have sex with a victim who does not intend to have sex with a Yale graduate, yet does not strongly desire to avoid sex with a Yale graduate. In so far as that implication strikes people as counterintuitive, the rival hypothesis provides an explanation that is more attractive than mine of why it is wrong to have sex with a comatose person. Given the availability of competing hypotheses like this, my argument to the best explanation was weak.

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with each other. Since consent is a public phenomenon, we must engage in outward behaviour to give consent. Once we take on board that point, we lose the motivation to hold that our intentions all by themselves fix the scope of our consent. So what does fix the scope of consent? For a while, my hypothesis was that the scope is determined by the permissions that the consent-giver successfully communicates to the consent-receiver. That hypothesis implies that consent involves a meeting of minds between the consent-giver and the consent-receiver. Through this meeting of minds, the consent-giver can control the consent-receiver’s behaviour. Since there was no meeting of the minds between Martinez and Roque that Martinez was permitting sex with an undercover spy, that hypothesis bodes ill for Roque. The hypothesis implies that if Martinez did not communicate that Martinez was permitting sex with a spy, then sex with a spy lay outside the scope of Martinez’s consent. However, I ended up thinking that this hypothesis faces two decisive objections. The first objection is that consent can be given by someone who publicly declares that they are giving someone a permission, even though this declaration has not yet come to the attention of the consent-receiver. For example, a homeowner can consent to a neighbour walking on their lawn by putting up a sign that indicates that the neighbour is permitted to walk on the lawn. Even if the neighbour has not yet read the sign, the sign would still create a permission for the neighbour to walk on the lawn. The second objection is that someone can consent to a particular action, even though they do not intend to permit this action. This scenario is exemplified by our introductory case of the biopsy. The scenario is also exemplified by a case in which a sober customer falsely believes that they are intoxicated, and so does not believe that they can validly consent to a tattoo. We can suppose that the customer thinks that it is common knowledge with the tattoo artist that the customer is too drunk to permit the tattoo, and consequently the customer does not attempt to communicate that they are giving the tattoo artist a new permission. Yet by requesting the tattoo, the customer would give consent to the tattoo. Because of cases like the tattoo case, I settled on the view that consent is given not only by behaviour that expresses permission, but also by directions like requests. While that view answers the question of what consent is, the view does not yet answer the question of what fixes the scope of consent. While I was puzzled about this question, I was also writing about how coercion invalidates consent and about what is required for informed

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consent.⁷ For those topics, I increasingly found it helpful to place consent within Thomas Scanlon’s (1986, 1998) view of the moral significance of choice. What I found so useful about Scanlon’s view was the theoretical role that the view gives to interpersonal justification. On Scanlon’s view, the permissibility of an agent’s action depends on whether the agent can justify the action to each individual who is affected by the action. While I did not agree with Scanlon’s claim that all of interpersonal morality can be explained in terms of interpersonal justification, I was persuaded that interpersonal justification structures an important part of interpersonal morality, including the part that concerns consent.⁸ On these grounds, I came to think of consent as a consideration that a consent-receiver can invoke in order to justify their behaviour to the consent-giver. If we think of consent in terms of interpersonal justification, then we can make progress on the scope of consent by asking the following question: how can a consent-receiver justify an action by appealing to the consent? My answer to this question has two parts. First, a consent-receiver can justify their behaviour by appealing to how the consent-giver has expressed their will for how the consent-receiver behaves. Second, this justification is evidentially constrained. On the one hand, it is constrained by the available evidence concerning how the consent should be interpreted. On the other hand, it is also constrained by any evidence that the consent-receiver has a duty to acquire. In both respects, this justification is constrained by the evidence that the consent-giver and the consent-receiver must reasonably accept as bearing on how the consent should be interpreted. When the relevant evidence sufficiently supports the interpretation that the consentgiver engaged in their consent-giving behaviour with a certain action in mind, the consent-receiver can appeal to the consent in order to justify performing the action. What does this principle for the scope of consent imply for sexual deception? We will return to this question at the end of the book, but let me flag up front two key implications. First, this principle allows for leniency towards an agent when there is no available evidence that a sexual encounter

⁷ Some of this work has been published in Dougherty (2020, 2021, forthcoming). Other work of mine on coerced consent is currently unpublished. Although I do not discuss at length in this book the conditions for when consent is valid, an interpersonal justification approach to consent gets further support from providing an attractive account of these validity conditions. ⁸ For work that also aims to circumscribe the role that interpersonal justification plays in interpersonal morality, see Frick (2015: 219–223). For related criticism of non-circumscribed contractualism, see Kamm (2007: 455–490).

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involves a deal-breaker for their partner and the agent has no duty to acquire further evidence about this. Second, the principle still has severe implications for some deceivers. For example, if Roque’s evidence indicates that sex with a spy is a deal-breaker for Martinez, then Martinez did not consent to sex with Roque.

0.3 This Book’s Structure and a Road Map The book’s structure follows the trajectory of my thinking about the scope of consent. The book has three main parts, each of which discusses a separate account. Each account is a package of a view of consent, a principle for consent’s scope, and an argument that motivates this view and principle. Part I of the book sets out the ‘Mental Account’. According to this account, consent is a mental phenomenon, and the scope of consent is fixed by the consent-giver’s intentions. Part II sets out the ‘Successful Communication Account’. According to this account, consent involves communicative behaviour, and the scope of consent is fixed by what the consent-giver successfully communicates to the consent-receiver. Part III sets out the ‘Evidential Account’, which I endorse. According to this account, consent involves deliberately expressing one’s will, and the scope of consent is fixed by certain evidence concerning how the consent should be interpreted. Here is how that structure breaks down, chapter by chapter. In Chapter 1, I begin by clarifying the question of what fixes the scope of consent, and I discuss the methods that I will use to answer the question. In Part I of the book, I discuss the Mental Account. In Chapter 2, I discuss the account’s principal motivation. This is the ‘Autonomy Argument’. The rough idea is that since consent is an expression of our autonomy, and since our intentions are always under our control, consent consists in our intentions. In Chapter 3, I argue that the Autonomy Argument also has implications for the scope of consent. There is little value to the consent-giver controlling whether they consent, unless they also control what they consent to. This extension of the Autonomy Argument motivates the ‘Permissive Intention Principle’ for the scope of consent. This principle grounds the scope of consent in the mental content of the consent-giver’s intentions concerning which actions to permit. In Part II of the book, I set out the case for and against the Successful Communication Account. This account endorses the Behavioural View of

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consent, according to which consent requires external behaviour. In Chapter 4, I argue that we should reject the Mental View in favour of the Behavioural View on the grounds that consent is a public phenomenon. In Chapter 5, I turn to a specific version of the Behavioural View. This is the Successful Communication View. This view can be motivated by the idea that an agent wrongs a victim by acting in the victim’s personal domain in a way that the victim does not control. This idea lies at the heart of the ‘Control Argument’. The argument also supports the ‘Successful Communication Principle’ for the scope of consent. According to this principle, an action falls within the scope of someone’s consent when the consent-giver successfully communicates an intention to permit this action. In Chapter 6, I offer the first part of my argument for why we should reject the Successful Communication Principle. The principle implies that consent is given only when a consent-receiver recognizes that the consent was given. However, this implication is false. A counterexample is the aforementioned case in which a homeowner puts up a sign that states that a neighbour can walk on the homeowner’s lawn. By putting up the sign, the homeowner consents to the neighbour walking on the lawn even if the neighbour remains unaware of the sign. We can see this by considering the possibility that a third party reads the sign. Since the third party would know that the homeowner has given consent, it follows that the homeowner has given consent. In Chapter 7, I offer the second part of my argument for rejecting the Successful Communication Principle. Like the Permissive Intention Principle, the Successful Communication Principle implies that an action falls within the scope of someone’s consent only when they intend to permit this action. That implication is also false. There are various cases in which the appropriate interpretation of a consent-giver’s public behaviour diverges from their private intentions. Examples include the aforementioned biopsy case and the aforementioned tattoo case. When the consent-giver’s behaviour diverges from their intentions, the scope of their consent is fixed by the appropriate interpretation of their behaviour. In Part III, I develop the account of consent that I endorse. This is the Evidential Account. In Chapter 8, I start to develop the ‘Expression of Will View’ of consent. I motivate this view with the ‘Interpersonal Justification Argument’. This argument focuses on the idea that an agent can justify treating an individual in a certain way by appealing to how the individual has expressed their will. In Chapter 9, I elaborate that the Expression of Will View is a disjunctive view, in so far as it allows that consent can be given either by deliberate

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behaviour that expresses permission or by deliberate behaviour that directs how another person acts. In Chapter 10, I return to the question of which principle governs the scope of consent. I argue that the scope is not fixed by conventions but instead by certain evidence about what the consent-giver intends to cover with their consent. To formulate a precise principle for the scope of consent, I introduce the notion of ‘reliable evidence’. This is the evidence such that both the consent-giver and the consent-receiver must reasonably accept that this evidence bears on the appropriate interpretation of the consent. Using this notion, I formulate the ‘Available Reliable Evidence Principle’ for the scope of consent. According to this principle, an action falls within the scope of someone’s consent when the reliable evidence that is actually available sufficiently supports interpreting the consent-giver as intending their consent-giving behaviour to apply to this action. This principle is almost correct, but requires an important modification. That modification comes in Chapter 11, where I argue that the scope of someone’s consent is also determined by any additional reliable evidence that the consent-receiver has a duty to acquire. I define the ‘enhanced reliable evidence’ as the union of the available reliable evidence and any reliable evidence that the consent-receiver has a duty to acquire. I conclude that we should accept the ‘Due Diligence Principle’ for the scope of consent. According to this principle, an action falls within the scope of someone’s consent when both the available reliable evidence and the enhanced reliable evidence sufficiently support interpreting the consent-giver as intending their consent-giving behaviour to apply to this action. In the concluding Chapter 12, I summarize the Evidential Account and survey the remaining doubts that we may have about this account. I end this book by revisiting the topic of sexual deception.

1 The Question of Consent’s Scope Consent allows people to perform a range of actions, but this range has its limits. Ashley says to their house guest, ‘Make yourself at home while I am at work,’ and now Taylor can put their feet up and watch television. But Ashley’s consent does not give Taylor permission to stick their finger in Ashley’s peanut butter and suck it clean, even if Taylor likes doing that in their own home. Among all of the permissions that Ashley can give Taylor, some will be granted by Ashley’s consent, while others will not. I call this range of permissions the ‘scope’ of Ashley’s consent.¹ This book’s central question is which principle governs the scope of someone’s consent. The correct principle will specify the considerations that determine what this scope is. There are various hypotheses for what these considerations might be. Is Taylor prohibited a peanut-buttery digit because of Ashley’s intentions when giving consent? Is Taylor prohibited this because of the meaning of what Ashley says? Because of how Taylor interprets Ashley? Because of background conventions concerning what house guests are allowed to do in people’s homes? To set up our investigation into which principle is correct, a few preliminaries will help. In Section 1.1, we will pin down the question of what determines the scope of consent. In Section 1.2, we will look at the methods that we will use to answer this question.

1.1 Framing Assumptions The English word ‘consent’ is used broadly to refer to different moral phenomena. Only one of these is this book’s topic. This is the consent that releases other people from duties. It is sometimes called ‘permissive consent’ ¹ For work that uses this definition of the ‘scope’ of consent, see Archard (1998: 6–7); Manson (2018). This differs from what Neil Manson and Onora O’Neill (2007: 77–84) have in mind when they talk of the ‘scope of informed consent requirements’. By this, they mean the biomedical interactions for which people must seek the informed consent of patients or research participants. The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0002

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    ’  

(Manson 2016). Permissive consent contrasts with other agreements, like promises or transfers of property. These agreements can create duties and bring about other changes in our moral relationships with each other. Since this book’s topic is permissive consent, I will have this in mind whenever I use the term ‘consent’ from now on. Since consent can make actions permissible, it is theoretically important for normative ethicists who are after a theory of right and wrong action. In addition, consent is practically important for many of our interactions. In particular, consent is necessary for making permissible certain medical interactions and sexual interactions.² In turn, our theory of consent should inform how we design the institutional and legal rules that govern these interactions. While institutional and legal issues will sometimes feature in our discussion, our principal concern is with the morality of consent. When consent is morally efficacious, I call it ‘valid consent’.³ When it is morally inefficacious, I call it ‘invalid consent’. While the valid/invalid consent terminology is widely used in moral philosophy and bioethics, it is less common in the philosophy of the criminal law.⁴ This is because the criminal law itself often uses the word ‘consent’ as a success term, so that the term only applies to something that is legally efficacious.⁵ On the success term usage, one would not describe someone as ‘consenting’ when they agree to sex at knifepoint. In turn, some philosophers of the criminal law also use ‘consent’ as a success term when they are talking about both legal consent and moral consent. These philosophers would use different terms to describe what I call ‘invalid consent’. For example, if someone agrees to sex at knifepoint, then Heidi Hurd (1996) would describe this as merely ‘prima facie consent’, while Kimberly Ferzan and Peter Westen (2017) would describe this as ‘assent’. ² Other key applications include consent to the use of property, consent to data-sharing, and consent to the use of computers. However, I lack the expertise to address the complexity of these issues. For a helpful essay on the legal aspects of consent to the use of computers, which brings out the importance of the issue of consent’s scope, see Grimmelmann (2016). ³ The orthodoxy is that there are three necessary conditions for valid consent. First, valid consent must be given by a suitably competent agent. For example, if someone is highly intoxicated or a small child, then it is likely that their consent is morally inefficacious. Second, valid consent must be given by someone who is suitably free. For example, consent given under a death threat is also morally inefficacious. Third, valid consent must be given by someone who is suitably informed. For example, medical consent is often not valid when given by a patient who is unaware of alternative treatments. ⁴ For similar definitions of ‘valid consent’, see Wertheimer (2003: 121); Pallikkathayil (2011): 7; Tadros (2016: 204); Bolinger (2019: 80). ⁵ For consent in the law, see Westen (2004) and Beyleveld & Brownsword (2007). For discussion of consent and sexual misconduct in the law, see Schulhofer (1998).

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Whether we use ‘consent’ as a success term is a merely terminological issue on which nothing substantive hangs. This terminological issue will not affect our discussion, as I will be setting to one side invalid consent.⁶ It is only when consent is valid that the question arises: which actions are morally affected by the consent? To pin down that question, it will help to specify the way that valid consent changes our moral relationships with each other. These relationships have a dyadic structure in the respect that we have ‘directed duties’ that we owe to each other. For example, you owe me a duty not to step on my toes. This is equivalent to my having a claim-right against you that you not step on my toes. By stating that your duty is equivalent to my right, I mean that there is a single normative relationship that we can describe either as you owing me that duty or as me having that right against you. With respect to duties to omit actions, we can state the general equivalence between directed duties and claim-rights as follows:⁷ X owes Y a duty not to perform A if and only if Y has a claim-right against X not to perform A.

For brevity, I will simply call these ‘duties’ and ‘rights’ from now on. These are the aspects of our moral relationships that are affected by consent. If Y gives consent to X performing action A, then Y can release X from a duty not to perform A and waive a right against X performing A. In that respect, consent is a three-place relation between the individual giving consent, the individual receiving consent, and an action (or set of actions). It will help to have terms to refer to the individual who gives consent and the individual to whom consent is given. Respectively, I call these individuals the ‘consentgiver’ and the ‘consent-receiver’. I do not mean for this terminology to imply that a consent-receiver must be aware of the consent. Indeed, in due course, I will argue that someone can be unaware that they have received consent. Instead, all that I mean by calling someone a ‘consent-receiver’ is that they are the target of the consent. ⁶ Consequently, I will not discuss an interesting possibility that Serena Olsaretti suggested to me. Could an instance of low-level coercion undermine consent to one action while not invalidating consent to a different action? If this is possible, then coercion can have the effect of putting some, but not all actions outside the scope of someone’s consent. ⁷ For discussion of how claim-rights and duties correlate, see Thomson (1990). Some scholars refer to directed duties as ‘bipolar obligations’. For discussion of directed duties and bipolar obligations, see Sidgwick (1874); Sreenivasan (2010); Thompson (2004); Darwall (2006); Cruft (2019); Wallace (2019).

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    ’  

The moral default is that we owe each other duties not to interact with each other’s personal domains. For example, we have duties not to lay hands on each other’s bodies or property. These duties form protective perimeters that demarcate each individual’s personal domain. Consider what happens if someone breaches one of these duties. Suppose that you drop your antique crystal vase on my foot and the vase shatters. I can complain that your action was wrong because it destroyed a valuable crystal vase for no good reason. This complaint would not be grounded in my right to determine how you act in my personal domain. By contrast, if I complain that you are violating my right that you not harm my foot, then I am voicing a domain-based complaint against your action. I have this complaint because you have wronged me by breaching a duty that you owed to me. This breach would typically leave a ‘moral residue’ in the sense that you must apologize and compensate me for the harm that I suffered (Thomson 1990: 82–98). Valid consent has the normative effect of releasing people from these domain-based duties. Consequently, an individual’s consent can make it the case that the individual is not wronged by how an agent acts in the individual’s personal domain. But while consent can eliminate this type of wronging, it may be that the consent does not prevent the consent-receiver from wronging the consent-giver in a different way. Suppose that Ashley consents to Taylor hanging out in their home while Ashley is at work. In addition, Ashley makes Taylor promise to go out and buy milk at some point during the day. Taylor does not buy milk and instead stays inside all day. By staying inside all day, Taylor does not wrong Ashley in virtue of trespassing in Ashley’s personal domain. That wronging is precluded by Ashley’s consent. However, Taylor does wrong Ashley in virtue of breaking their promise to Ashley. Ashley’s consent does not eliminate this wronging. This illustrates the general phenomenon that even if an individual consents to an agent’s action, it may still be that the agent wrongs the individual with this action, and it may still be that the action is impermissible. This point is particularly important for sexual ethics. While an agent needs their partner’s sexual consent to avoid wronging them, consent is not a moral panacea. A sexual encounter can be consensual and yet be morally problematic on other grounds. Since consent releases people from duties and waives rights, the normative effects of consent are constrained by facts about which duties and rights we have simply as moral persons. These are our ‘natural’ rights and duties, which contrast with the rights and duties that we ‘acquire’ as a result of our

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interactions and relationships with other individuals.⁸ Within theories of rights, it is uncontroversial that we have natural rights that others do not interfere with our personal domains. These rights correlate with duties to omit certain actions. It is more controversial whether we have any natural rights that correlate with duties that others have to perform actions. To avoid unnecessary controversy, I will remain neutral on whether we have natural rights that correlate with duties to perform actions. Instead, I will focus on natural rights that correlate with duties to omit actions. These duties of omission are the locus of most, if not all, of the practical interest in consent. For example, medical consent releases people from duties to refrain from medical procedures, while sexual consent releases people from duties to refrain from sexual activity. Some people object to thinking of sexual ethics in this way. They worry that this portrays sexual activity as asymmetric, with one party doing something to another. Moreover, some people worry that this problem is aggravated by the gendered assumption that men play the role of initiators and women, the passive consenters.⁹ I am sympathetic to the concern that consent is often talked about in this way, but I do not see this as a problem that is inherent in the concept of consent itself. We can employ the concept in egalitarian discourse that recognizes everyone’s sexual agency. For example, it is conceptually coherent to say that two people need each other’s consent to an encounter in which they are equally sexual agents.¹⁰ Similarly, it is coherent to say that the moral default is that two people symmetrically have duties not to engage in sexual activity with each other, and they each need to release the other from these duties. Another constraint on the normative effects of our consent comes from the grain of the rights that we possess. Some people take the view that we have coarse-grained rights that others do not have sex with us, but we lack fine-grained rights against specific types of sexual interaction. To illustrate this type of view, consider the following case of Hallie Liberto’s (2017: S134):

⁸ There is a terminological issue as to when, if ever, we should use the term ‘consent’ to refer to releasing people from acquired duties and waiving acquired rights. I will remain neutral on this terminological issue because nothing substantive hangs on it and because acquired rights and duties will not be the primary focus of our discussion. ⁹ In particular, see MacKinnon (2016: 440) and also Palmer(2017: 476); Kukla (2018: 75–76); Gardner (2018: 60). ¹⁰ As Karamvir Chadha (2020) points out, joint sexual activity is composed of particular sexual acts performed by individuals, and these individuals need each other’s consent for performing these acts.

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    ’   Paternalistic Deal-Breaker. Jo and Casey are having sex. Jo catches a slightly pained expression on Casey’s face and asks Casey if the intercourse is hurting Casey. Casey knows that if Jo learns that the intercourse is hurting Casey, that Jo will want to stop having sex with Casey immediately, for Casey’s sake. Casey is in some pain but wants Jo to have a sexually satisfying experience. Casey says, ‘No, honey.’

To analyse this case, Liberto (2017: S137) makes the following two claims. First, Jo has a coarse-grained right that Casey not have sex with Jo. Second, Jo does not have a fine-grained right that Casey not have sex with Jo when Casey is in pain. Since consent can only make a difference to rights and duties that actually exist, the scope of Jo’s consent could not be affected by a non-existent fine-grained right. Therefore, on Liberto’s view, it is impossible for Jo to restrict the scope of their consent to sexual encounters in which Casey is not in pain.¹¹ The normative effects of consent are also constrained by facts about which rights and duties the consent-giver has the authority to change. For example, when Ashley tells Taylor to make themselves at home, Taylor’s range of new permissions is partly determined by the permissions that Ashley can grant. Ashley cannot let Taylor clamber through their neighbour’s window to make toast, since it is not up to Ashley who gets to do that. Since Taylor owes that duty to the neighbour, Ashley cannot release Taylor from the duty. Likewise, the normative effects of our consent would also be constrained if we cannot waive some of our own rights (Tadros 2011, 2016). Suppose that someone explicitly says to another person, ‘You may kill and then eat me.’ The consent-giver clearly means to permit being cannibalized. But consider the hypothesis that the consent-giver cannot waive their right against being cannibalized. If this hypothesis is correct, then the consent would not create a permission for the consent-receiver to cannibalize the consent-giver. Similarly, if the consent-giver cannot waive their right against being cannibalized, then this would restrict the normative effects brought about by the consent-giver saying, ‘You can do whatever you want to me.’ Because of these points, our background theory of rights and duties constrains our account of how consent changes our moral relationships

¹¹ There is a separate issue of whether someone can place conditions on when their consent has moral force. For example, Jo could say, ‘On condition that you do not have a headache, I hereby waive my right against sex with you.’ For discussion of conditional consent, see Chadha (forthcoming).

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with each other. In this book, I will be setting to one side the question of which background rights and duties we have. Downstream from accepting a theory of these background rights and duties, we need a principle that tells us which of these are altered by someone’s consent. That principle is the focus of this book. Accordingly, the foregoing points are framing assumptions for our discussion. These points circumscribe this book’s central question of what determines the scope of someone’s consent. We can state this question as follows: of the domain-based duties from which a consentgiver can release a consent-receiver, what determines which duties are eliminated by the consent-giver’s valid consent? Since rights are equivalent to duties, that question could also be stated in terms of rights. To avoid cluttering our discussion by repeating these framing assumptions, I will leave these implicit from now on.

1.2 Methodology What methods should we use to answer the question of what determines the scope of consent? There are four methods that I will sketch upfront. The comparative method. Often, it is a good idea to answer a philosophical question holistically, by fleshing out alternative answers and choosing between these answers in light of all their respective advantages and disadvantages. As well as making it more likely that we arrive at the truth, this method helps us understand why the question is philosophically interesting and difficult. This is how I interpret the ‘comparative method’ of moral philosophy.¹² Here is how I will adopt the comparative method in our inquiry. Ultimately, we are seeking the correct principle that specifies what determines the scope of someone’s consent. To choose between candidate principles, we need to see how these principles can combine with views of what constitutes consent, as well as arguments that motivate these views and principles. I will use the term ‘accounts’ to refer to packages of arguments, views of consent, and principles for consent’s scope. This book will compare the pros and cons of three main accounts. These are the Mental Account, the Successful Communication Account, and the Evidential Account. When we

¹² A paradigmatic use of this method is Henry Sidgwick’s (1874) investigation into the ‘Methods of Ethics’. I interpret John Rawls (1971) as using this method when arguing for their principles of justice over utilitarianism.

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investigate these accounts, it will turn out that there is a special reason to adopt the comparative method for our inquiry: certain arguments for views of consent also provide support for principles governing consent’s scope. The method of cases. One way to make progress in moral philosophy is to consider the implications that views and principles have for various cases. This is the so-called method of cases. It has two parts. First, the method involves taking an independent stance on which claims we should accept or reject about certain cases. Sometimes, these claims can be accepted as intrinsically plausible. Often, when philosophers wish to indicate that we should accept a claim on its own terms, then they will describe this claim as ‘intuitively’ correct or say that the claim is supported by ‘intuition’. As I understand talk of ‘intuition’ in this context, this does not presuppose any particular moral epistemology and instead is simply a way of flagging that a claim is being offered as an undefended premise in an argument. On this way of thinking, if one philosopher presents a claim as ‘intuitive’, and another philosopher does not find the claim plausible, then the latter philosopher does not accept a premise in the former philosopher’s argument. At other times, it can be appropriate either to provide a sub-argument that defends a claim about a case or a discussion of the claim that makes clear why we should accept it. Second, the method uses these claims to evaluate views and principles. On the one hand, if a view or principle entails a claim that we independently have reason to reject, then we have reason to reject the view or principle. On the other hand, if a view or principle entails a claim that we ought to accept, then that counts in favour of the view or principle. In this book, I will use this method extensively to decide which views and principles to reject and which to accept. There are at least three reasons why the method of cases can be helpful. First, if we just discuss abstract ideas, then our discussion risks becoming hard to follow and engage with. It is easier to see what it is at issue when we look at concrete examples. In this respect, I think of using cases as implementing the common advice that authors should use examples to make their writing clear and easy to follow. Second, using cases can also make communication more efficient. Once a community of philosophers has the knack for thinking about what principles imply about cases, these philosophers can quickly communicate a lot with a little. Third, the method of cases pushes us to dive deep into the details of our topic. It is easy to skate over distinctions when doing philosophy at a high level of abstraction, and it is also easy to miss implications of views or principles. A good way to probe these details is to consider what these views and principles imply for cases. I do not mean to imply that the method of cases is essential in this regard. Certainly, there are

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normative ethicists who build detailed theories without focusing on cases. However, I think that it is fair to say that as a general trend the method of cases tends to lead to more detailed theories of normative ethics. I take this to reflect how helpful the method can be for uncovering detail. Bigger-picture arguments. The method of cases has its limits. Let me mention two in particular. First, the method comes unstuck when people do not share intuitions about cases. I see this as an instance of a more general problem. To avoid an infinite regress, an argument must eventually rely on fundamental premises that are not supported by other premises. If people do not agree about these fundamental premises, then the argument will not help these people make philosophical progress together. This general problem potentially affects any argumentative method that we use in philosophy. Second, the method of cases will not by itself help us see the wood for the trees. Ideally, we do not want to see lots of isolated items of detail. We also want to see how these details hang together in a bigger-picture view. Consequently, we should supplement case-based arguments with biggerpicture arguments. Towards that end, I will consider arguments that draw on general moral considerations to answer questions like: what is the relationship between consent and autonomy? Which values are promoted when there is a meeting of minds between the consent-giver and the consent-receiver? In what respect is it morally important that a consentgiver controls the consent-receiver’s behaviour? What role does consent play in interpersonal justification? By reflecting on these questions, we can build arguments that help us choose between views and principles. Using other parts of philosophy. Our inquiry will concern the moral significance of our thoughts, communicative behaviour, and evidence. As a result, our inquiry brings moral philosophy into dialogue with work in the philosophy of mind, the philosophy of language, and epistemology. Drawing on work in these fields can help us make progress in our inquiry into the scope of consent. In particular, this work can help us be precise when talking about thoughts, communication, and evidence. However, work outside moral philosophy does not offer us easy answers to moral questions, such as the question of what determines the scope of consent. In general, we cannot move straight from premises about minds, language, or evidence to conclusions about morality. Instead, moral premises are always required. For example, I will argue that the scope of consent is determined by the appropriate interpretation of the consent-giver’s behaviour. This raises the question of which interpretation is ‘appropriate’. To answer this question, we need to engage in moral philosophy. We cannot

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answer this question just by considering which theory of interpretation is endorsed by philosophers of language. If a theory of interpretation is developed without constraints from moral philosophy, then there is no guarantee that this theory will articulate a conception of interpretation that is suitable for theoretical work in a moral theory. To determine whether the conception is suitable, there is no substitute for substantive moral theorizing.

1.3 Summary The question of the scope of consent is a question about which moral changes are brought about by consent (Section 1.1). When someone’s consent is valid, it changes their relationship with the consent-receiver by releasing the consent-receiver from a duty. This would be a duty that the consent-receiver owes to the consent-giver with respect to how the consentreceiver acts in the consent-giver’s personal domain. Since the consentreceiver’s duty is equivalent to the consent-giver’s right, consent also has the moral effect of waiving a right. In this book, we will set to one side the questions of which rights and duties we have and which conditions must be met for consent to be valid. Instead, we will ask a downstream question. In terms of rights, this question is: what determines which of these waivable rights are waived by someone’s valid consent? Or equivalently, this question can be put in terms of duties: of all the duties from which the consent-giver can release the consent-receiver, what determines the duties from which the consent-receiver is released by the consent-giver’s valid consent? An imprecise, but much simpler way of putting the question is: what determines which actions become permissible as the result of someone’s consent? That simple way of stating the question is not exact, given that an encounter can be consensual, yet impermissible, but it is a reasonable approximation to the question of this book. To answer that question, we will use four methods (see Section 1.2). First, we will look at the pros and cons of three rival accounts. Each account is made up of a view of consent, a principle for consent’s scope, and an argument that supports this view and principle. Second, we will develop and evaluate these accounts by considering their implications for various cases. Third, we will look at bigger-picture arguments. Fourth, we will inform our discussion by drawing on work in the philosophy of mind, the philosophy of language, and epistemology.

2 The Mental View What is consent? This may sound like a purely metaphysical question, but really it is a question about morality—about what changes our moral relationships with each other (Wertheimer 2000). That means that the question has implications both for our theory of which actions are right and wrong and for our policies that deter and punish wrongdoing. Nowadays, it is common for a jurisdiction’s criminal law to define serious sexual offences partly in terms of the absence of valid consent.¹ In turn, this requires defining consent. The standard legal definition is in terms of someone’s will or choice. For example, the United Kingdom’s 2003 Sexual Offences Act states that ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.² Similarly, when revising the sexual offences section of the Model Penal Code, the American Law Institute recently defined consent in terms of someone’s willingness to engage in sexual activity (Moringo 2016). These legal definitions resonate with the common idea that a sexual encounter is nonconsensual when it is against a victim’s will. With respect to morality, this idea is captured by the following view of consent: Mental View of Consent. X gives consent to Y if and only if X has a certain mental attitude.

Here I am using the term ‘mental attitude’ loosely to cover both mental events and mental states. To fill in the details of the Mental View, we need to say more about which mental attitude constitutes consent. The Mental View contrasts with the Behavioural View, according to which consent requires certain behaviour. There are different versions of the Behavioural View, ¹ The criminal law often uses other terms to refer to valid consent. For example, sometimes this is referred to simply as ‘consent’. In that terminology, invalid consent would be described as, e.g., the ‘absence of consent’. In the United States, a small number of states’ rape laws include an ‘affirmative consent definition’ according to which consent must be expressed in behaviour (Tuerkheimer 2016: 451). ² https://www.legislation.gov.uk/ukpga/2003/42/contents, accessed 6 October 2018. The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0003

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which take different stances concerning what is sufficient for consent. But all versions of the Behavioural View posit a necessary condition for consent: the consent-giver must engage in certain behaviour. This necessary condition is denied by the Mental View. In this chapter, we will develop the Mental View of consent and consider what motivates the view. In Section 2.1, we will lay out the central argument in favour of the Mental View. This is the Autonomy Argument. In Section 2.2, we will turn to the question of which position the Mental View should take concerning the type of attitude that constitutes consent. In Section 2.3, we will critically assess the Autonomy Argument by considering the extent to which the Behavioural View also connects consent with autonomy.

2.1 The Autonomy Argument One way to motivate the Mental View over the Behavioural View is to argue that the Mental View has more attractive implications for particular cases. Along these lines, Larry Alexander (2014: 105) discusses a case in which a foreigner decides to let their partner fondle them. However, the foreigner has a poor grasp of their partner’s language. The foreigner utters a phrase that means ‘do it’ in their own language, but means ‘do not’ in their partner’s language. Accordingly, their partner believes that the foreigner is unwilling to be fondled, but their partner continues to fondle the foreigner nonetheless. Alexander (2014: 105) has the intuition that their partner ‘is doing nothing that is without [the foreigner’s] consent and therefore wrong’. Similarly, Heidi Hurd (1996: 137) considers a case in which someone who cannot move, hear, or speak intends to have sex with another person, even though the former person cannot communicate with the latter. Hurd’s intuition is that the former person consents to the sex. This strategy of appealing to cases has had mixed results. Many people have the opposite intuitions about these cases. For example, Alan Wertheimer (2000: 571) also considers a case in which an individual is willing to have sex with their partner, even though the individual indicates that they are unwilling to have sex.³ Since their partner believes that the individual is unwilling to have sex, this case is structurally analogous to ³ This is a hypothetical variant on the infamous 1975 case in the United Kingdom’s House of Lords, Director of Public Prosecutions v. Morgan, in which the victim was unwilling to engage in

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Alexander’s case. However, Wertheimer has the intuition that this individual does not consent. In addition, Wertheimer (2003: 147) considers the very same case as Hurd’s. However, Wertheimer has the intuition that consent is absent in this case. As will become clear in the course of this book, I like using hypothetical cases as much as the next philosopher. Otherwise, philosophical arguments risk becoming inaccessibly abstract, and it is hard to see the implications of general principles. But the case-based methodology has its limits. It breaks down when people disagree in their intuitions about the relevant cases. This disagreement makes the method dialectically unhelpful. We cannot change someone’s mind by appealing to intuitions that they do not share. So, when the method of cases leads to an impasse, we need to look for other arguments in favour of one view rather than the other. Fortunately for the Mental View, there is an argument that can be offered in its defence. This argument appeals to the idea that consent is an exercise of an individual’s autonomy.⁴ In this context, we should conceive of autonomy as a capacity for moral self-governance.⁵ So conceived, our autonomy partly consists in our ability to control our moral boundaries. Hurd (1996: 124–5) invokes this conception of autonomy to argue as follows: If autonomy resides in the ability to will the alteration of moral rights and duties, and if consent is normative significant precisely because it constitutes an expression of autonomy, then it must be the case that to consent is to exercise the will. That is, it must be the case that consent constitutes a subjective mental state.

In this way, Hurd argues that we should accept the Mental View on the grounds that consent is an expression of autonomy. Hurd’s argument is not persuasive because it overlooks the fact that our behaviour is also an expression of our autonomy. For example, we express our autonomy by communicating with other people. If a version of the sexual activity. For other appeals to cases of non-communicated consent in support of the Behavioural View, see Den Hartogh (2011: 301); Owens (2012: 571). ⁴ Some people are skeptical about the connection between consent and common conceptions of autonomy (Manson & O’Neill 2007: 16–22, 69–72). ⁵ In addition to conceiving of autonomy as a capacity, ethicists have developed other conceptions of autonomy. For example, scholars have developed accounts of what it is to be an autonomous agent, accounts of what it is to make a choice autonomously, and accounts of the value of autonomy. For helpful overviews of the literature on autonomy, see Killmister (2018); Stoljar (2018); Christman (2018); Buss & Westlund (2018).

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Behavioural View states that consent requires intentional behaviour, then this version of the view also entails that consent is an expression of our autonomy. Therefore, the assumption that consent is an expression of our autonomy does not favour the Mental View over the Behavioural View. Instead, a more controversial assumption is needed to motivate the Mental View over the Behavioural View. To see what is needed, let us consider Kimberly Kessler Ferzan’s (2016: 405) argument: if we think that what we are protecting is autonomy, then that autonomy is best respected by recognising that the consenter has it within his or her power to allow the boundary crossing simply by so choosing. No expression is needed.

Here Ferzan assumes that the correct view of consent best respects autonomy. This raises the question what it is for a conception of consent to ‘best respect’ autonomy. To reach the conclusion that the Mental View is correct, Ferzan’s argument requires the assumption that consent is constituted by whatever is maximally within our autonomous control. This assumption would provide us with reasons to favour the Mental View over the Behavioural View. To engage in physical behaviour, we need cooperation from the world around us. For example, we can communicate with other people only if they can interpret what we are saying. By contrast, to exercise our mental capacities, we need only an external environment in which we can think. Assuming that we have functioning mental capacities, the exercise of these capacities is entirely within our control. Since the Mental View implies that the exercise of our mental capacities determines how we alter our normative boundaries, the Mental View entails that we have as much control as possible over these boundaries. We can fortify this motivation for the Mental View by considering how someone’s consent can determine whether they are wronged by another person’s behaviour. Along these lines, Ferzan connects consent with grievances. Ferzan (2016: 406) claims that ‘an individual is not wronged, and does not experience conduct as a wrong, when willed acquiescence is present’. I take Ferzan’s idea to be that in these contexts it should be up to the individual whether or not they are wronged by another person. To see why this idea is attractive, consider an action that could potentially wrong an individual by infringing their rights. It is tempting to think that if the individual makes up their mind that they are wronged by this action, then they are wronged by it. And it is tempting to think that if the individual

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makes up their mind that they are not wronged by the action, then they are not wronged by it. This would be to see the individual’s thoughts as determining whether they are wronged by the action. If the individual’s consent to the action consists in their thoughts, then their thoughts determine whether they are wronged by the action.

2.2 What Type of Mental Attitude? The Autonomy Argument also has implications for the question of which mental attitude constitutes consent. For example, is this a desire, choice, or intention? By now, scholars have reached a consensus that consent does not consist in desire.⁶ We might have been tempted to focus on desires because, in sexual encounters, people should be attentive to whether their partners want to have sex. Similarly, in these encounters, people’s conscious thoughts are often about how much they want to have sex with another person. However, there is a significant problem with identifying consent with desire. According to the Autonomy Argument, consent should be under our intentional control. Yet we do not control what we desire. Compare these cases: Invitation/Desire. Your friend has not thought about whether to invite you over to their house. As it happens, their desire to invite you is stronger than their desire not to invite you. Invitation/Choice. Your friend has the same desires as they have in the Invitation Desire case. In addition, your friend deliberates about whether to invite you and decides to do so.

In the Invitation/Desire case, your friend has not exercised any control over whether you come to their house, as they do not control what their desires are. However, in the Invitation/Choice case, your friend has exercised control over their decision to invite you. Accordingly, if an advocate of the Mental View accepts the Autonomy Argument, then they should say that ⁶ At one point, Peter Westen (2004: 32) maintains that ‘factual attitudinal consent can be conceptualised—and, I believe, ought to be conceptualised—as consisting invariably of mental states of desire alone’. Elsewhere, Westen (2004) theorizes consent in terms of choices. For critical discussion of Westen on this point, see (Ferzan 2006: 204–7).

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your friend consents in the Invitation/Choice case, but not in the Invitation/ Desire case. Therefore, they should deny that a mere desire is sufficient for consent. Rather than thinking of consent in terms of desire, some scholars think of consent as a mental act like a choice or decision. For example, Ferzan (2006: 206) claims that ‘what ultimately matters is not that one has a desire but that one chooses to act based on that desire. The desire does not do the work — the choice does.’⁷ This idea is promising, but it cannot be quite right. In order for consent to make an action permissible, the consent-giver must still be consenting to the action at the time that the action takes place. To illustrate this point, compare the following two cases: Car/Constant. At 10 a.m., Parent decides that Teenager may use the family car at 7 p.m. At 7 p.m., Parent is still willing for Teenager to use the car. Teenager uses the car at 7 p.m. Car/Change. At 10 a.m., Parent decides that Teenager may use the family car at 7 p.m. By 7 p.m., Parent has changed their mind and is no longer willing for Teenager to use the car. Teenager uses the car at 7 p.m.

Teenager uses the car with Parent’s consent only in Car/Constant. It is not enough that Parent had previously made a choice to let Teenager use the car in Car/Change. In addition, Parent’s willingness must persist through to the time at which Teenager uses the car. However, Parent’s choices do not persist in this way. Like other mental acts, choices are events. Events have finite durations. In the above cases, Parent’s choices terminated at 10 a.m. To respond to this point, an advocate of the Mental View could take the position that someone consents if they have made a choice and subsequently have not made the opposite choice. This position still holds that facts about consent consist in facts about choices. However, this position does not account for the ways that people’s minds can change without making choices. Consider: ⁷ In later work, Ferzan (2016: 406) follows Westen in claiming that consent is ‘an act of willed acquiescence’. Ferzan (2016: 398) clarifies this by claiming that this involves ‘an internal choice to allow contact—a decision that “this is okay with me” ’. Along similar lines, Alexander (1996: 166) holds that ‘when one consents to what would otherwise be a boundary-crossing act of another, one chooses to forgo or waive one’s moral objection to the boundary crossing . . . To consent is to form the intention to forgo one’s moral complaint against another’s act.’ In later work, Alexander (2014: 108) states that consent consists in ‘waiving one’s right to object—or, if that sounds too much like a non-mental action, that of mentally accepting without objection another’s crossing one’s moral or legal boundary (the boundary that defines one’s rights)’.

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Car/Forgetful. At 10 a.m., Parent decides that Teenager may use the family car at 7 p.m. By 7 p.m., Parent has forgotten that they have made this decision and no longer intends to permit Teenager to use the car. Consequently, at 7 p.m. Parent is unwilling for Teenager to use the car. Teenager uses the car at 7 p.m.

In Car/Forgetful, Parent’s mind has changed even though they never make a choice that is opposite to the choice that they made at 10 a.m. If we take the Autonomy Argument seriously, then we should deny that Teenager has Parent’s consent at 7 p.m. This is because at 7 p.m. Parent is unwilling for Teenager to use the car. If Parent’s consent is maximally within their autonomous control, and Parent is unwilling for Teenager to use the car at 7 p.m., then Parent does not consent at 7 p.m. Rather than identifying consent with a choice, an advocate of the Mental View should identify consent with an intention.⁸ There is an important connection between choices and intentions: one normally forms an intention by making a choice. However, intentions and choices belong to different ontological categories. Choices are mental events, while intentions are mental states. Because intentions are mental states, Parent’s intentions can persist through to the time at which Teenager uses the car.⁹ This explains why Parent consents at Car/Constant. In that case, at 7 p.m. Parent still intends to let Teenager use the car. This also explains why Parent does not consent in Car/Change or Car/Forgetful. In those cases, at 7 p.m. Parent no longer intends to let Teenager use the car. The view that consent consists in intentions has been objected to by Victor Tadros (2016: 205): Some mental phenomena are states of mind: intentions, beliefs, desires, and so on. But we also perform mental actions—forming intentions and beliefs, deciding, choosing, and so on. Those who think that consent can be given without outward behaviour thus need not hold the implausible view ⁸ For a version of the Mental view that conceives of consent in terms of intentions, see Hurd (1996: 126–38). ⁹ For discussion of the difference between mental events and mental states, see Steward (1997). Desires are also mental states, but Michael Bratman (1982) has shown that intentions are different from desires. While desires are the inputs to our practical deliberation, intentions are among the outputs of our deliberation. In the Invitation/Desire case, your friend has not yet deliberated about whether to invite you over for dinner, and so they have not formed an intention to invite you. In the Invitation/Choice case, your friend has concluded this deliberation by making a choice. By making this choice, they form an intention to invite you.

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   that consenting is reducible to certain desires or intentions. They may believe that it is a mental action, similar to the action of deciding or choosing.

This is not a compelling objection to the view that consent consists in intentions, as Tadros simply asserts that the view is ‘implausible’ without giving us any reason to think that the view is implausible. Moreover, Tadros allows that forming an intention is a mental action. On that assumption, an advocate of the intention view can agree that consent is initiated by a mental action. Nonetheless, the advocate of the intention view can maintain their position that the consent is reducible to the intention. This position is more plausible than Tadros’s. An individual’s consent persists even when the individual has completed the relevant mental action. That is because the consent consists in the intention that is formed by that mental action. Tadros’s objection goes wrong by mistaking the beginning of the consent with the consent itself.

2.3 Assessing the Autonomy Argument It is clear from our preceding discussion why the Mental View provides an individual with control over their normative boundaries. But to determine whether this consideration gives us powerful reasons to accept the Mental View over the Behavioural View, we need to consider the amount of autonomous control offered by the Behavioural View. Interestingly, defenders of the Behavioural View have also appealed to autonomy to motivate their view. For example, Seana Shiffrin (2008: 500) holds that someone makes promises and gives consent through the ‘exercise and expression of her will alone’. Since Shiffrin holds that consent requires expressing one’s will, Shiffrin denies that a mental attitude is sufficient for consent. In that respect, Shiffrin rejects the Mental View of consent. However, since Shiffrin holds that consent requires exercising one’s will, Shiffrin agrees that a mental attitude is necessary for consent. Shiffrin argues that this idea is ‘part and parcel with any plausible conception of an autonomous agent’. As Shiffrin (2008: 502) elaborates, if someone were unable to give consent, then they would have unwaivable rights, which: would render (morally) impossible real forms of meaningful human relationships and the full definition and recognition of the self (not to mention

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making medical and dental care cumbersome, dangerous, and awfully painful). To forge meaningful relationships, embodied human beings must have the ability to interact within the same physical space, to share the use of property, and to touch one another. They must therefore be able to empower particular people.

By emphasizing moral impossibility, Shiffrin is pointing out that it is not enough that someone has the physical ability to interact in various ways. To interact in morally healthy ways, this person must have the ability to make these interactions permissible by giving consent. So both defenders of the Behavioural View and the Mental View have appealed to autonomy to motivate their views. Earlier, we noted that the Mental View has a comparative advantage in the respect that it entails that we have more autonomous control over whether we consent than the Behavioural View does. To evaluate the size of this advantage, we need to determine how much more control the Mental View gives us. To that end, we should distinguish two types of control that we can have over our consent (Wertheimer 2003). First, we can have the negative ability to ensure that we do not consent when we intend not to consent: Negative autonomy is defined as the capacity to ensure that one is not validly consenting.

Second, we can have the correlative ability to ensure that we are consenting when we intend to consent: Positive autonomy is defined as the capacity to ensure that one is validly consenting.

Both capacities are maximized by the most plausible version of the Mental View, which holds that a certain intention is necessary and sufficient for consent. From now on, I will have this version in mind when I talk, for brevity, of the Mental View. When it comes to positive autonomy, the Mental View has an advantage over the Behavioural View. According to the Mental View, a consent-giver can control whether they consent simply by controlling whether they have a certain intention. But according to the Behavioural View, an individual must also engage in some form of behaviour to give consent. If an individual cannot engage in this behaviour, then the Behavioural View implies that the

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individual cannot consent. This would be a limit to the individual’s positive autonomy. How large is this limit to their autonomy? This question will be answered differently by different versions of the Behavioural View. For example, consider a demanding version of the Behavioural View, according to which someone consents only if the consent-receiver successfully interprets the consent. This demanding version implies that the consent-giver’s positive autonomy is limited whenever the consent-giver cannot control how they are interpreted (Tadros 2016: 207). By contrast, consider an undemanding version of the Behavioural View, which does not require that a consent-receiver must be aware of the consent. This undemanding version implies the consent-giver’s positive autonomy is limited to a lesser extent. The Mental View has only a slender advantage over this undemanding version of the Behavioural View when it comes to positive autonomy. The version of the Behavioural View that I will eventually endorse—the Expression of Will View—is a relatively undemanding version of the Behavioural View. When it comes to negative autonomy, the picture is more nuanced. There are two parts to an individual’s capacity for negative autonomy. On the one hand, negative autonomy partly involves the ability to avoid consenting in the first place. On the other hand, negative autonomy also partly involves the ability to revoke consent that has previously been given. The Mental View maximizes an individual’s ability to avoid giving consent in the first place. However, some versions of the Behavioural View similarly maximize the individual’s ability to avoid giving consent in the first place. This ability is maximized by any version of the Behavioural View that posits the following necessary condition: someone consents only if they engage in deliberate behaviour. This necessary condition implies that someone can avoid giving consent by refraining from this deliberate behaviour. This necessary condition is endorsed by the accounts that we will consider as rivals to the Mental Account. These are the Successful Communication Account and the Evidential Account. As I will formulate these accounts, both accounts endorse the claim that someone must engage in deliberate behaviour to give consent.¹⁰ Therefore, with respect to one’s ability to avoid giving consent in the first place, the Mental Account has no advantage over the Successful Communication Account and the Evidential Account.

¹⁰ For a view that denies this claim, see Bolinger (2019).

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With respect to revoking consent, the Mental View unambiguously ensures that revoking consent is in each individual’s control. This is because the Mental View implies that someone revokes their consent just by changing their mind. What does the Behavioural View imply about revoking consent? Again, this question will be answered differently by different versions of the Behavioural View. According to one version of the Behavioural View, an individual must engage in behaviour to withdraw their consent. According to this version of the Behavioural View, if the individual is paralysed and consequently cannot engage in this behaviour, then they cannot withdraw their consent. However, this result can be avoided by other versions of the Behavioural View. For example, a different version of the Behavioural View claims that someone continues to consent only if they still have a certain mental attitude. By requiring this mental attitude as a necessary condition for the persistence of consent, this version of the Behavioural View implies that someone revokes their consent when they no longer have the relevant mental attitude. Therefore, this version of the Behavioural View implies that someone has just as much control over revoking their consent as the Mental View does. To sum up, it is fair to say that the Mental View has an advantage over the Behavioural View when it comes to securing an individual’s autonomous control over whether they consent. Still, it is important not to exaggerate the size of this comparative advantage. The size of the advantage varies with different versions of the Behavioural View. Some versions of the Behavioural View are undemanding about the behaviour that is required for consent. For example, some versions of the Behavioural View do not require that the consent-giver has made the consent-receiver aware of the consent. An undemanding version of the Behavioural View makes it easy for someone to give consent. To the extent that it is easy for someone to give consent, their consent is more within their control. Admittedly, undemanding versions of the Behavioural View still imply that someone cannot consent if they are unable to engage in any physical behaviour. An example would be a case in which someone is paralysed. However, a case like this is rare. In most actual cases, a consent-giver can perform the requisite behaviour. This means that considerations of autonomy offer only a modest advantage for the Mental View over an undemanding version of the Behavioural View. Another reason why this advantage is modest is that it is unclear why we should assume that an individual has maximal control over whether they consent. We have just seen that undemanding versions of the Behavioural View imply that an individual has a robust degree of control over whether

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they consent. We saw that, for the Autonomy Argument to motivate the Mental View over the Behavioural View, the argument requires the controversial assumption that an individual has maximal control rather than robust control. That assumption is questionable, and I am not aware of any defence that has been offered for this assumption. This assumption cannot be motivated simply by noting that there is an important connection between consent and autonomy. This connection is secured by the uncontroversial assumption that an individual has a robust degree of control over whether they consent. That uncontroversial assumption is consistent with endorsing the Behavioural View.

2.4 Summary By giving consent, an individual exercises autonomy over how others may act in their personal domain (Section 2.1). Suppose that we should adopt whichever conception of consent gives an individual as much autonomy as possible in this regard. Since an individual has more control over their thoughts than their behaviour, this assumption suggests that we should conceive of consent as consisting solely in the individual’s mental attitudes. This is the Autonomy Argument. If we follow this link between consent and autonomy, then this leads us to a view of the mental attitude that consent consists in (Section 2.2). This is the view that consent consists in an attitude that is tied to our will. Both a choice and an intention are tied to our will. Choices and intentions are importantly connected because people form intentions by making choices. But choices are events, and intentions are mental states. Since people continue to consent even after the choice is over, the most plausible version of the Mental View identifies consent with an intention that is formed by the choice. The Autonomy Argument gives the Mental View only a modest advantage over the Behavioural View (Section 2.3). The Behavioural View ensures that a consent-giver has a robust degree of autonomy over whether they consent. To favour the Mental View over the Behavioural View on the basis of autonomy, we must make the controversial assumption that a conception of consent must give us as much autonomy as possible. However, it is not obvious why we should make this controversial assumption. We could instead make the uncontroversial assumption that a conception of consent should give us a robust amount of autonomy. That uncontroversial assumption is consistent with the Behavioural View.

3 The Permissive Intention Principle In the Introduction, we noted that the scope of consent matters for sexual deception: a victim of deception can unwittingly take part in a sexual encounter that falls outside the scope of their consent. The scope of consent also matters for other forms of sexual misconduct. Consider the testimony of Martha Nussbaum (2016), who recalls, ‘I certainly intended to consent to intercourse. What I did not consent to was the gruesome, violent, and painful assault that he substituted for intercourse.’ Here Nussbaum is making the point that consent to one form of sexual activity does not entail consent to any form of sexual activity. While a benign sexual encounter fell within the scope of Nussbaum’s consent, the actual violent assault did not. Moreover, Nussbaum gestures at what sets the boundaries of the scope of their consent. Nussbaum suggests that this is fixed by what they intended to consent to. This fits with the idea that a sexual encounter is non-consensual in virtue of being against someone’s will. In this chapter, we will discuss a principle that implies that someone’s intentions determine the scope of their consent. In Section 3.1, we will see that the Autonomy Argument has implications for the scope of consent. In Section 3.2, we will see that an advocate of the Mental View should not identify consent with intentions that have descriptive contents. In Section 3.3, we will see that an advocate of the Mental View should instead identify someone’s consent with their ‘permissive intentions’. Roughly, these are intentions to permit another person’s actions. This leads us to the ‘Permissive Intention Principle’ for the scope of consent.

3.1 Mental Content and the Scope of Consent Why does the Autonomy Argument have implications for the scope of consent? Because there is little value to controlling whether one gives consent, unless one simultaneously controls what one gives consent to. Accordingly, we can appeal to autonomy not only to defend a view of The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0004

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what consent is, but also a principle for the scope of consent. Along these lines, I once argued that: rights are intimately linked to our autonomy and agency. They mark out personal realms over which we have exclusive control, and our decisions determine exactly what may permissibly happen within these realms. Having these personal realms is crucial to our leading our lives in the ways that we should like. Fundamentally, this generates duties in other people to respect our wills: they must respect the choices that we make about what shall happen within these realms. If our choices are to maximally determine the permissibility of others’ actions, then the rights that we waive must be the rights that we intend to waive. (Dougherty 2013: 734–5)

Since consent waives rights, I was defending a view of consent’s scope: the consent-giver’s intentions determine which actions are normatively affected by their consent. My reason was that consent should manifest the consentgiver’s autonomy. This is the key idea behind the Autonomy Argument. A similar point arises with the strand of the Autonomy Argument that concerns an individual’s grievances. In Chapter 2, we looked at two related ideas. The first idea is that someone is not wronged by an action if they are willing to permit the action. The second idea is that someone is wronged by an action if they are unwilling to permit the action and their consent is needed for the action. These ideas also support the idea that the scope of consent is grounded in the contents of the consent-giver’s intentions. Consider a particular action for which an agent needs an individual’s consent. Suppose that this action is against the individual’s will. According to the grievances strand of the Autonomy Argument, it follows that the individual is wronged by this action. Therefore, the action would fall outside the scope of their consent. Now suppose that the action is not against the individual’s will. According to the grievances strand of the Autonomy Argument, it then follows that the agent does not wrong the individual by performing the action. Therefore, the action falls within the scope of the individual’s consent. Joining the dots, the grievances strand of the Autonomy Argument implies that the scope of someone’s consent is determined by which actions are against their will. Thus, the Autonomy Argument does not just support the view that consent consists in intentions. The argument also supports a principle for the scope of consent. According to this principle, the scope is determined by

   

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the contents of these intentions. Since the words ‘scope’ and ‘content’ may seem similar, let me clarify the senses that these terms have in our discussion. The scope of consent concerns the normative effects of the consent. The content of an intention is a descriptive feature of someone’s psychology. Therefore, this principle for the scope of consent implies that certain normative effects are grounded in certain features of consent-givers’ psychologies. To make this principle precise, we need to say more about the contents of these intentions. But we can already get the gist of how the principle governs the scope of consent. To apply this principle to any case, we should consider which actions are against the consent-giver’s will. For example, the principle would imply that Taylor is allowed to use Ashley’s en suite bathroom if and only if Ashley using the bathroom is not against Taylor’s will.

3.2 Intentions with Descriptive Contents To come up with a precise principle for the scope of consent, we need to develop the Mental Account so that it takes a stance on the particular intentions that consent consists in. Which intentions would these be? One answer is Heidi Hurd’s (1996). Hurd claims that to consent to another person’s action is to intend that they perform this action. For example, Hurd’s view is that when you consent to another person using your pen, you are intending that this person uses your pen. Admittedly, this person’s action is not your own action. Still, Hurd (1996: 130) argues that you can intend states of affairs that are not your own actions. For example, Hurd claims that you can intend another person’s death. However, Hurd anticipates that some people will not be comfortable with the idea that you can intend another person’s actions. Consequently, Hurd offers the alternative proposal that you consent to someone performing an action by intending to causally contribute to this person performing the action. This is a view according to which consent consists in intentions with descriptive contents. By this, I mean that we can specify the contents of the intentions using only descriptive terms. In other words, we do not need to use normative terms to specify these contents. For example, on Hurd’s view, you consent to someone touching your arm in virtue of intending that this person touches your arm. The content of your intention is the proposition that this person touches your arm. This is a descriptive proposition, as we do not need to use a term like ‘permit’ to express the proposition.

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   

There are two reasons why we must reject Hurd’s view. The first reason to reject Hurd’s view is that it incorrectly specifies the necessary conditions for consent. Hurd’s view implies that intending someone’s action is a necessary condition of consenting to this action. However, this is not a necessary condition for consent. It is possible to consent to someone’s action without intending that they perform this action. For example, you may be indifferent whether someone uses your pen. If you are indifferent, then you neither intend that they use the pen nor intend that they do not use the pen. Even if you have no intentions one way or the other, you could still give this person permission to use the pen. For another counterexample to Hurd’s necessary condition, consider an adapted case of Victor Tadros’s (2016: 209): Car/Truancy. Teenager has been skipping school and driving the family car. Intending to get Teenager to choose to go to school, Parent says, ‘I am not okay with you skipping school and driving around—it bothers me a lot as your parent. Still, I want you to attend out of your own free will. So I am releasing you from your duty not to use the car. But my expectation is that you will respond maturely and decide to attend school.’

Parent intends that Teenager does not use the car. However, Parent consents to Teenager using the car. Therefore, intending Teenager to use the car is not a necessary condition for consenting to Teenager using the car.¹ The second reason to reject Hurd’s view is that it incorrectly specifies the sufficient conditions for consent. Hurd’s view implies that intending someone’s action is sufficient for consenting to this action. However, this is not a sufficient condition for consent. It is possible to intend that someone performs an action without consenting to this action. For example, someone might intend to entrap another person in wrongful activity (Den Hartogh 2011: 301; Tadros 2016: 210). Consider: Entrapment. Bully says that they will smash Enemy’s garden gnome, come hell or high water. Enemy says to Bully, ‘I believe that you will do this, but I am not going to be intimidated into locking my gnome in my shed. Instead, I have set up CCTV to catch you wrongfully smashing my gnome ¹ Similarly, David Owens (2011: 412–3) notes that you could consent to someone’s action in order to prevent them from performing this action. Suppose that you know that if you do not invite your enemy to your party, then they will attend to ruin your party. You also know that if you invite your enemy, then they will snub you by not attending. To prevent your enemy from coming to the party, you invite them.

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without my consent. I will use this evidence against you.’ Enemy knows that this warning will not deter Bully.

Enemy does not consent to Bully smashing their gnome. Yet Enemy chooses to leave the gnome outside, with the intention that Bully smashes the gnome. Therefore, intending Bully to smash the gnome is not sufficient for consenting to Bully smashing the gnome.

3.3 Permissive Intentions To avoid the problems with Hurd’s view, an advocate of the Mental View should claim that someone’s consent consists in an intention with a normative content. Since the effect of this consent is to release another person from a duty, this would be an intention to release that person from a duty. I will call this type of intention a ‘permissive intention’. We can then state a principle for the scope of consent as follows: Permissive Intention Principle (Draft). An action A falls within the scope of the consent that X gives to Y if and only if X intends to release Y from their duty not to perform A.²

This formulation is a draft because it needs a qualification that we will shortly introduce. Why should an advocate of the Mental Account adopt the Permissive Intention Principle? There are two key reasons that people may have. The first reason is that the principle resonates with the common view that consent is a normative power to intentionally change one’s moral relationships with others. According to this view, one releases another person from a duty not to perform an action by intending to release them from this duty. ² For a defence of a principle for consent’s scope along these lines, see Dougherty (2013: 734–5); Manson (2018). Similarly, Alexander (1996: 166) claims that to ‘consent is to form the intention to forgo one’s moral complaint against another’s act’. See also Alexander (2014: 108). Less precisely, Ferzan (2016) claims that consenting to an action involves deciding that this action is ‘okay with’ the consent-giver. Because Ferzan’s view is imprecise, it gets the wrong result with the Car/Truancy case. Parent consents to Teenager using the car even though Parent is explicit that they are not okay with Teenager using the car. A similar problem confronts Alexander Guerrero’s (forthcoming) view that consent involves ‘affirmative endorsement’ of some state of affairs. There is a clear sense in which Parent is not affirmatively endorsing Teenager’s use of the car. Accordingly, Guerrero would need to specify the particular type of affirmative endorsement that consent consists in.

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   

If someone finds this view attractive, then they will also find the Permissive Intention Principle attractive. The second reason is that the Permissive Intention Principle succeeds where Hurd’s view fails. Why do you consent to someone using your pen while you are indifferent whether they use it? Because you intend to release them from their duty not to use it. Why does Parent consent to Teenager using the car in the Car/Truancy case? Because Parent intends to release Teenager from their duty not to use the car. Why does Enemy not consent to Bully smashing their gnome in the Entrapment case? Because Enemy does not intend to release Bully from their duty not to smash the gnome. For the time being, I will make the working assumption that an advocate of the Mental View of consent should adopt the Permissive Intention Principle. But I want to highlight that there is another defensible principle open to an advocate of the Mental View: Communicative Intention Principle. An action A falls within the scope of the consent that X gives to Y if and only if X intends to communicate that X releases Y from their duty not to perform A.³

The Permissive Intention Principle and the Communicative Intention Principle are similar, but these principles are not equivalent. Consider the ways that people are rationally constrained when forming different intentions. When forming a permissive intention, a consent-giver is constrained by the concepts that they possess. For example, a consent-giver can intend to permit a consent-receiver to drink orange juice only if the consent-giver has the concept  . But when forming a communicative intention, a consent-giver is rationally constrained by the limits of the language that they take themselves to share with the consent-receiver. Consider: Limited Vocabulary. Foreigner has decided that an English-speaking Guest may take either the orange juice or the water in their fridge. However, Foreigner only knows the English word ‘water’. Because Foreigner does not know how to communicate a permission to drink orange juice, Foreigner does not form an intention to communicate this permission. Instead,

³ Tadros (2016: 209) claims that consent consists in an attempt to communicate that one is releasing another person from a duty. I interpret Tadros’s view as a version of the Mental View because Tadros allows that a deluded consent-giver could try to communicate telepathically.

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Foreigner only attempts to communicate a permission to drink water when Foreigner says to Guest, ‘Help yourself to water.’

Foreigner’s permissive intention is broad enough to include both orange juice and water. However, Foreigner’s communicative intention is constrained to releasing Guest only from their duty not to take the water. Therefore, the Permissive Intention Principle and the Communicative Intention Principle have different implications for the scope of Foreigner’s consent. We will return to the Communicative Intention Principle in Chapter 7 when the differences between the Permissive Intention Principle and the Communicative Intention Principle become relevant for our discussion. Like other intentions, permissive intentions are propositional attitudes. Imagine that a penalty has been awarded in a game of football, and a striker steps up to take the penalty. Consider the proposition that the striker scores the penalty. Just as this proposition could be the content of the striker’s belief, the proposition could be the content of the striker’s intention. That is, just as the striker could believe that the proposition is true, the striker could also intend that the proposition is true. From conversation, I know that some scholars are reluctant to view intentions as propositional attitudes because they hold that propositions should be identified with the referents of ‘that’ clauses. For example, these scholars hold that belief is a propositional attitude on the grounds that we describe the striker as believing that they will score the penalty. However, these scholars are concerned that we normally use infinitival phrases to attribute intentions to people. For example, we might describe the striker as intending to score the penalty. On the grounds that an infinitival phrase is different from a ‘that’ clause, these scholars conclude that intentions are not propositional attitudes. This is a mistake. For a start, we can seamlessly translate between sentences involving infinitival phrases and sentences involving ‘that’ clauses without any change of meaning. For example, the sentence ‘the striker is going to score the penalty’ means the same thing as the sentence ‘it will be the case that the striker scores the penalty’. Similarly, the sentence ‘the striker intends to score the penalty’ means the same as ‘the striker intends that they score the penalty’. The last sentence is acceptable English, even if it is an unusual way of attributing the intention. Given the availability of these translations, we should be wary of placing too much weight on superficial

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   

syntactical features of sentences.⁴ This brings us to a deeper point. We need to distinguish issues in the philosophy of mind about the nature of attitudes from issues that concern the contingent features of natural languages like English. The question of whether a mental attitude is a propositional attitude is an issue in the philosophy of mind. The nature of an attitude does not depend on what it is unusual to say in English. For example, English could have evolved in such a way that we never used infinitival phrases to attribute intentions. Rather than using sentences like ‘the striker intends to score the penalty’, English-speakers could have ended up always using sentences like ‘the striker intends that they score the penalty’. If our linguistic practices had taken this path, then the latter sentence would sound normal. But this would not have affected the nature of the attitude itself. An intention remains a propositional attitude whichever locution becomes common in English. A characteristic feature of a propositional attitude is that it distinguishes possibilities.⁵ Suppose that a patient is deciding whether to undergo dentistry. For simplicity, let us suppose that there are four possibilities: (1) (2) (3) (4)

The dentist will remove a rotten tooth using surgical tools. The dentist will remove a rotten tooth using garden pliers. The dentist will remove a healthy tooth using surgical tools. The dentist will remove a healthy tooth using garden pliers.

Consider the proposition that the dentist will remove a rotten tooth. This proposition is true if and only if either (1) or (2) is the case. Consequently, if the patient forms a belief that the dentist will remove a rotten tooth, then the patient is ruling out options (3) and (4) and entertaining only options (1) and (2) as ways that the future might go. This is a general feature of beliefs. Whenever we form a belief that p, we rule out epistemic possibilities that are inconsistent with p.⁶ Similarly, permissive intentions distinguish sets of possibilities. Suppose that the patient forms an intention to permit the dentist to remove a rotten tooth using surgical tools. Possibility (1) is the only member of the set of ⁴ A related point is that in so far as we are interested in the nature of an attitude that is attributed by a sentence, we should not focus on the ‘surface grammar’ of the sentence, but instead we should focus on the truth conditions of the sentence. ⁵ My discussion of how propositional attitudes distinguish possibilities is indebted to Robert Stalnaker’s work. See, e.g., Stalnaker (2016) and also Schaffer (2008); Yalcin (2018). ⁶ In this context, an ‘epistemic possibility’ is simply a way that we think the world might be.

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possibilities that the patient intends to permit. The boundary of this set is determined by the restrictions on the content of the patient’s intention. Some restrictions will be explicit. For example, the patient may be consciously thinking that the dentist can remove only a rotten tooth. This restriction rules out possibilities (3) and (4). Other restrictions will be implicit. Even if the thought of garden pliers has not explicitly occurred to the patient, the patient’s permissive intention would implicitly rule out possibilities (2) and (4). That toy model is unrealistic because it artificially supposes that there are only four possibilities under consideration. In the real world, there are infinitely many actions that a patient would intend to permit. For example, if a patient lets the dentist remove their rotten tooth, then the patient allows the dentist to do so in multiple ways. A patient has little interest in the particular sequence of surgical movements, so long as these lead to the desired dental outcome. Instead, the patient would form their permissive intention in a blanket way that allows for variation in these respects. Yet each minor variation yields a slightly different operation. Therefore, the content of the patient’s permissive intention is extensive in the sense that it broadly covers multiple actions. So when the patient consents to dental surgery, there is a respect in which their permissive intention is restrictive and a respect in which their permissive intention is extensive. This suggests a natural proposal for the scope of consent. We can point to all of the restrictions on these intentions. Then we can define two sets of possible interactions, according to the restrictions on these permissive intentions. We can then identify the scope of the consent with the set of possible interactions that lie within these restrictions. We are on the right lines, but there is a problem with this approach. An individual can be unaware that different concepts pick out the same things in the world. This can lead the individual to form conflicting attitudes. Consider: Party Confusion. Lois decides to invite all their co-workers to their party. Their co-workers include Clark Kent. Since Lois thinks that it would be inappropriate for a superhero to attend the party, Lois decides not to invite Superman. Lois does not realize that the same individual is both Clark Kent and Superman. This individual comes to Lois’s party.

Does Lois consent to this individual attending the party? We should feel torn about how to answer this question. There is a sense in which Lois intends to

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   

permit the individual to attend, but also a sense in which Lois does not intend to permit the individual to attend. The problem arises because Lois does not realize that their concepts C K and S necessarily pick out the same individual. This problem can also arise for other sorts of confusion. People are notoriously susceptible to ‘framing effects’ when it comes to probabilities (Kahneman & Tversky 1981). These framing effects can affect someone’s consent (Hanna 2011; Chwang 2016). For example, Lois might intend to permit a physician to perform an operation with a 95% chance of survival, without intending to permit the physician to perform an operation with a 5% chance of death. The puzzle can also arise concerning how a patient conceptualizes a medical procedure. If Lois is unaware that skin is a tissue, then Lois might intend to permit researchers to posthumously remove Lois’s tissues, without intending to permit the researchers to posthumously remove Lois’s skin (Manson & O’Neill 2007: 14, 58). A case like Party Confusion raises two questions. The first question arises in the philosophy of mind and language: how should we characterize the contents of Lois’s attitudes? This issue is difficult and remains contested. To describe the controversy in adequate detail, we would have to go on a long detour with little benefit to our inquiry into the scope of consent.⁷ In any event, it is far beyond my ability to resolve this controversy. Consequently, I cannot make precise claims about the contents of Lois’s mental attitudes. Therefore, I will say vaguely that Lois has ‘conflicting’ permissive intentions in a case like Party Confusion. The second question arises in moral philosophy. When a consent-giver has conflicting permissive intentions concerning a particular action, does the action fall within the scope of their consent? For any particular case, we have three options: ⁷ The contest covers a wide set of issues and entire books have been written about what we should say about, e.g., Lois’s beliefs about Clark Kent and Superman (Salmon 1986). Some say that Lois’s thoughts are not directly about objects but instead are mediated by ‘modes of presentation’. These scholars would distinguish the mode of presentation associated with ‘Clark Kent’ from the mode of presentation associated with ‘Superman’. These scholars would say that Lois believes the individual can fly when Lois thinks about the individual under the mode of presentation of ‘Superman’. However, these scholars would say that Lois does not believe the individual can fly when thinking about the individual under the mode of presentation ‘Clark Kent’. A key challenge for these scholars is to clarify what a mode of presentation is. Other scholars say that Lois’s thoughts are fragmented. These scholars distinguish the Clark Kent fragment of Lois’s mind from the Superman fragment. Describing the Clark Kent fragment, these scholars would say that Lois believes that the individual can fly. But not so for the Superman fragment.

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(i)

It is indeterminate whether the action falls within the scope of the consent. (ii) It is determinately the case that the action falls outside the scope of the consent. (iii) It is determinately the case that the action falls inside the scope of the consent. We could either endorse one of these options for every case or endorse different options for different cases. I do not think that any of these three options is correct for every case. There are some cases for which option (iii) is appropriate and some cases for which option (iii) is inappropriate. Here is a case for which option (iii) is appropriate: Reflection Confusion. Patient owns a private supply of a drug that is administered intravenously. Patient is in a hospital room, and it is dark outside. Since Patient’s eyesight is poor, Patient mistakes their own reflection in the window for another person. Patient points to their reflection and says to Nurse, ‘Give the drug to me, but do not give it to that person.’

Because Patient is confused, they have conflicting permissive intentions about whether to give the drug to themselves. Still, I take it to be clear that Nurse has Patient’s consent to administer the drug to Patient.⁸ Thus, for the Reflection Confusion case, we should pick option (iii) and say that it is determinately the case that giving Patient the drug falls inside the scope of their consent. However, there are other cases for which we should not take option (iii). Suppose that Lois’s objection to Superman’s attendance is not based on Lois’s judgement that it is inappropriate for a superhero to attend the party. Suppose instead that Lois had a painful experience in which Superman wronged Lois. With this experience in mind, Lois decides that they would prefer not to host the party rather than host a party that Superman attends. On the basis of this preference, Lois forms an intention not to permit Superman to attend. For this version of the case, we should pick option (ii) and say that it is determinately the case that the individual’s attendance falls outside the scope of Lois’s consent.

⁸ Thanks to Joe Horton for both the Reflection case and this substantive point.

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   

If we take a case by case approach, then how should we determine whether an action falls within the scope of the consent of someone with conflicting permissive intentions? One possibility is that this is determined by their hypothetical consent: if their confusion were removed, would they consent to the action?⁹ This approach seems to offer the right results concerning the cases that we have considered. In Reflection Confusion, if Patient realized that they were looking at their reflection, then it seems that Patient would still consent to being given the drug. In the version of Party Confusion in which Superman had wronged Lois, if Lois knew that this individual had wronged Lois, then it seems that Lois would refuse to invite the individual. However, there is a good reason not to appeal to a consent-giver’s hypothetical attitudes to determine the scope of their consent. These are attitudes that the consent-giver would counterfactually have in different scenarios. But it is too easy for counterfactuals to hold for odd reasons that do not bear on the scope of someone’s consent. Suppose that if Lois became aware that Clark Kent is Superman, then Lois would be so shocked that Lois forgets that Superman had wronged Lois. And suppose that if Lois forgets the wronging, then Lois would invite Superman to the party. On these assumptions, the following counterfactual holds: if Lois’s confusion were removed, then Lois would hypothetically consent to Superman’s attendance. However, in the actual world Lois remembers the wronging. Consequently, Lois’s highest priority remains that Superman does not attend the party. For this reason, this individual’s attendance does not fall within the scope of Lois’s consent even though hypothetically Lois would consent to the individual’s attendance were Lois’s confusion removed. Rather than invoke hypothetical consent, we should focus on the consentgiver’s actual attitudes. For example, in Reflection Confusion, we could point to the fact that Patient’s actual opposition to ‘that person’ receiving the drug is premised on Patient’s actual false belief that they are not ‘that person’. Meanwhile, in Party Confusion, we could point to the fact that Lois’s actual opposition to inviting the individual who wronged Lois is stronger than Lois’s actual willingness to invite all their colleagues. While I think that the correct principle for the scope of the consent of someone with conflicting permissive intentions should focus on this individual’s actual attitudes, I do not know what this principle should be.

⁹ For discussion of hypothetical consent, see Enoch (2017).

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It seems to me likely that the correct principle will focus on the respective strengths of different intentions. However, there is a further question of what an intention’s ‘strength’ consists in. Since I do not have a proposal to offer about this, the best that I can do is to qualify our draft principle as follows: Permissive Intention Principle. At least when X does not have conflicting permissive intentions, an action A falls within the scope of the consent that X gives to Y if and only if X intends to release Y from their duty not to perform A.

To clarify the principle’s qualification, there is only a limited range of conditions under which someone counts as having ‘conflicting permissive intentions’. The individual has conflicting permissive intentions only when the individual places restrictions on their permissive intentions using certain concepts, while being confused about what these concepts pick out. In particular, we should distinguish a consent-giver who has conflicting permissive intentions from a consent-giver who has false beliefs about an action to which they are giving consent. Consider: Pet. Homeowner is renting out their home. A potential Tenant asks whether pets are allowed. Homeowner replies, ‘Cats are fine, but no dogs.’ Tenant has a dog, but tells Homeowner that their pet is a cat. During the lease, Tenant keeps their dog in the home.

The boundary of Homeowner’s permissive intentions is clear: Homeowner does not intend to permit dogs in the home. Therefore, it would be a mistake to construe Homeowner as having conflicting permissive intentions. Therefore, it would be a mistake to construe Homeowner as having conflicting permissive intentions about whether to permit Tenant’s pet simply because Homeowner has a false belief about the pet. This analysis can help us steer clear of a potential pitfall that comes with the idea that people consent ‘under a description’. Consider: Prostate. Patient is unwilling to permit any operation that makes them sterile. Patient is unaware that prostate removal leads to sterility. Patient signs a consent form for prostate removal.

About a case like this, Neil Manson and Onora O’Neill (2007: 14) would say that Patient consents to the surgery under the description ‘prostate removal’

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   

but not under the description ‘operation that causes sterility’.¹⁰ If we think of people as consenting ‘under a description,’ then it may seem that one of our tasks is to specify the relevant description, such that someone must consent to an action under this description in order for the action to fall within the scope of their consent.¹¹ I think that this task is intractable and we would do better to give up the idea of consenting under a description. We can arrive at a clearer analysis of Patient’s permissive intentions in Prostate by replicating our analysis of the Pet case. Just as Homeowner’s permissive intentions exclude a dog, Patient’s permissive intentions exclude any operation that leaves them sterile. Therefore, an advocate of the Mental Account should say that just as Homeowner does not consent to the dog’s presence in their home, Patient does not consent to the operation. One way to put the point is that since Patient does not consent to the operation, a fortiori Patient does not consent to the operation under the description ‘prostate removal’. There are other reasons why it is not a good idea to go in for the notion of consenting ‘under a description’. I assume that most people adopt this notion because they take the notion to correctly characterize a consentgiver’s thoughts. However, to characterize the contents of thoughts, we should turn to our best theories in the philosophy of mind and the philosophy of language. These theories do not involve the notion of thinking ‘under a description’. So, rather than using that notion, we should theorize the contents of permissive intentions using the notions that these theories do use. Moreover the term ‘under a description’ is unclear. Inside or outside theories of consent, I have not come across a discussion that clarifies what a ‘description’ is meant to be. This is problematic, given that the term is not part of ordinary English. Theoretical jargon needs defining in a way that ordinary language does not. To the extent that a theory relies on unclear notions, the theory itself is unclear. But worse, a lack of clarity invites conflating distinct ideas. There are at least six things that one might mean by talking of the ‘description’ under which someone consents. First, one might mean what the consent-giver believes about the action that they are

¹⁰ For other work on consenting ‘under a description’, see Anscombe and Morgenbesser (1963); O’Neill (1985: 256); Hurd (1996: 127); Westen (2004: 40). ¹¹ For a discussion that frames the issue in roughly this way, see Manson (2018). For a similar framing in the context of discussing sexual consent, see Hurd (1996); Matey (2019).

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consenting to.¹² On this interpretation, a description refers to how the consent-giver would describe an action. Second, one might mean what the consent-giver intends with respect to this action. On this interpretation, a description refers to the content of this intention. Third, one might hold that we think in terms of natural language phrases and some of these phrases are descriptions. This view is widely rejected in the philosophy of mind and language. For example, people could speak different natural languages and yet have thoughts with the same contents. Fourth, one might be presupposing the view that we think in terms of a ‘language of thought’ and this mental language contains descriptions. This view has some adherents in the philosophy of mind and language, but the view is controversial. Fifth, one might hold that we conceptualize entities under certain ‘modes of presentation’ and hence we should characterize the contents of our thoughts in terms of modes of presentation. In the philosophy of mind and language, some scholars endorse this view as part of the solution for puzzles like the one involving Lois. For example, some scholars would say that Lois believes that the individual can fly when thinking about the individual under the mode of presentation ‘Superman’. However, these scholars would say that Lois does not believe that the individual can fly when thinking about the individual under the mode of presentation ‘Clark Kent’. While this view has adherents, it is also controversial. Sixth, one might understand a ‘description’ of an action as an ontological feature of the action itself rather than a feature of a consent-giver’s attitudes about the action.¹³ Since these six options are importantly different, talk of ‘descriptions’ is liable to create confusion.¹⁴ And since some of these options are controversial, talk of ‘descriptions’ may hide how controversial certain commitments are. To avoid this confusion, and to make clear how controversial a theory’s commitments are, we should not theorize consent in terms of ‘descriptions’. Instead, we would do better to use terms that are widely used in the philosophy of mind and language. For example, if we want to posit modes of presentation, then it would be clearest to talk in terms of ‘modes of presentation’. Similarly, if we want to theorize the scope of consent in

¹² See Hurd (1996: 127). This is also implied by Anscombe’s and Morgenbesser’s (1963) claim that the person consents under the description ‘signing some papers that are presented to him’. ¹³ For this use of ‘description’, see Manson (2018). ¹⁴ Another source of potential confusion arises from idiosyncratically characterizing the socalled de re/de dicto distinction (Hurd 1996; Liberto 2017). I discuss this confusion in Dougherty (2018a).

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terms of the contents of beliefs or intentions, then it would be clearest to talk in terms of the contents of these attitudes.

3.4 Summary In Chapter 2, we considered the assumption that we have maximal control over our consent, and we saw that this assumption supports the idea that consent consists in our intentions. In this chapter, we saw that this assumption has implications for the scope of consent (Section 3.1). There is little value in controlling whether we consent unless we also control what we consent to. If we maximally control the scope of our consent, then this scope is determined by the contents of our intentions. This raises the question of what the content of these intentions would be. It is implausible that the scope of consent is determined by intentions that have descriptive contents (Section 3.2). Instead, an advocate of the Mental View should say that the scope of consent is determined by intentions with normative contents (Section 3.3). We adopted the working hypothesis that an advocate of the Mental View should ground the scope of consent in the contents of permissive intentions. A permissive intention is an intention to release someone from a duty. Since permissive intentions are propositional attitudes, we can think of these intentions’ contents in contrastive terms. These intentions distinguish two sets of possible interactions according to whether someone intends to permit these interactions. That gives us a clear way of thinking about the contents of permissive intentions without adopting the problematic idea that someone ‘consents under a description’.

4 The Behavioural View While the criminal law tends to define sexual consent in terms of mental attitudes, so-called affirmative consent policies define consent in terms of behaviour. For a representative example of an affirmative consent policy, consider Princeton University’s: In reviewing possible violations of sexual misconduct, the University considers consent as the voluntary, informed, un-coerced agreement through words and actions freely given, which a reasonable person would interpret as a willingness to participate in mutually agreed-upon sexual acts.¹

Before 2011, few universities had affirmative consent policies. But things changed when the Obama government took steps to tackle sexual assault in tertiary education, and now over 1,400 US universities have affirmative consent policies as part of their campus codes (Tuerkheimer 2016).² To evaluate policies that prohibit behaviour, we need to evaluate the behaviour itself. This is because if policies prohibit benign behaviour, then this raises concerns about how the policies restrict freedom and about the fairness of imposing penalties on people who do not comply with the policies. Since affirmative consent policies prohibit sexual encounters in which participants are willing to have sex but do not clearly communicate this to each other, we need to address the question of whether these encounters are wrongful.³ It might seem that this turns on whether we accept the ¹ This is from subsection ‘1.3.3 Prohibited Conduct’ of Princeton University’s ‘Rights, Rules, Responsibilities, 2019’ resource for ‘University-Wide Regulations’, https://rrr.princeton.edu/ university#comp133, accessed 15 June 2020. ² See the US Department for Education’s Office for Civil Rights’s ‘Dear Colleague’ letter and press releases, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf. and http:// www.ed.gov/news/press-releases/us-department-education-releases-list-higher-educationinstitutions-open-title-i, accessed 15 June 2020. ³ A complete defence of extant affirmative consent policies would also need to address the question of which penalties it is appropriate to impose on someone who breaks these policies. For alternative defences of these policies, see Dougherty (2018b); Guerrero (forthcoming). The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0005

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Mental View or the Behavioural View. After all, the point of contention between these views is precisely whether consent is a wholly mental phenomenon or at least partly a behavioural phenomenon. However, as we will see, advocates of the Mental View and the Behavioural View can converge to a surprising degree in their positions concerning sexual offences policies. In this chapter, we will introduce the case for the Behavioural View and consider what the Behavioural View implies for sexual offence policies. At the outset, we should note that there are different versions of the Behavioural View. In Chapters 5 and 9, we will consider some of these versions, such as the more specific view that consent consists in successful communication. But in this chapter, we will jointly consider all versions of the Behavioural View. In Section 4.1, we will consider an argument that motivates any version of the Behavioural View. This argument appeals to the idea that consent must be public.⁴ In Section 4.2, we will see that an advocate of the Behavioural View can hold that there are two ways that an agent can wrong a victim by acting without their consent. First, an agent can wrong the victim by acting against the victim’s will. Second, the agent can wrong the victim by acting in a way that the victim has not authorized with behaviour. We will consider the gravity of each wrong and draw conclusions for affirmative consent policies.

4.1 The Publicity Argument To understand how advocates of the Mental View and the Behavioural View see the moral significance of a consent-giver’s behaviour, let us consider the following case: Joyride. Anarchist is willing to permit anyone to use their property so long as Anarchist is not inconvenienced. However, Anarchist has never engaged in behaviour that expresses this attitude. While Anarchist is away on holiday, Joyrider breaks into Anarchist’s car without causing damage. Joyrider drives the car and returns it.

In light of Anarchist’s permissive intentions, the Mental View implies that Anarchist consents to Joyrider driving the car. According to the Mental

⁴ This argument incorporates and slightly modifies the argument I gave in Dougherty (2015).

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View, Anarchist’s consent is unaffected by Anarchist’s omission of behaviour that expresses their permissive intentions. That said, an advocate of the Mental View can still see Anarchist’s omission of behaviour as morally significant in a different way. Because Anarchist has not expressed their permissive intentions, Joyrider lacks evidence of these permissive intentions. An advocate of the Mental View can say that if an agent’s evidence indicates that an action is wrong, then it can be appropriate to blame the agent for performing the action. Given Joyrider’s evidence, the advocate of the Mental View can conclude that it is appropriate to blame Joyrider for taking the car (Alexander 2014; Alexander et al. 2016; Guerrero forthcoming). In addition, an advocate of the Mental View can say that Joyrider commits other wrongs. For example, they can say that Joyrider disrespects Anarchist by using the car while lacking evidence that Anarchist is willing to permit this use. The advocate of the Mental View can make this claim without contradicting themselves so long as they insist that this wrong of disrespect is not the wrong of acting without Anarchist’s consent. Meanwhile, the Behavioural View implies that Joyrider does not have Anarchist’s consent. To defend this implication, an advocate of the Behavioural View should explain why Anarchist needs to express their permissive intention with behaviour in order to consent. Put another way, why is it not enough for Anarchist to intend to release Joyrider from their duty not to use the car? The most promising explanation appeals to the idea that consent must publicly transform people’s relationships.⁵ Along these lines, Joan McGregor (2005: 124) argues that: the role that consent is to play in the world [is] to publicly transform legal and moral relationships. Consent can only have this transformative impact if it is communicated from one party to another. ⁵ Several scholars have taken a position like this. John Kleinig (2010: 10) claims that ‘only if consent takes the form of a communicative act can the moral relations between A and B be transformed’. Franklin Miller and Alan Wertheimer (2010: 85) claim that ‘if the point of consent is to actually alter one’s normative relations with others, then some observable indication of one’s will is required’. Richard Healey (2015: 360) endorses the ‘Publicity Condition’ that ‘both the consenter and consentee must, in principle, have access to the information that determines whether consent has been given or revoked’. See also Wertheimer (2003: 148); Den Hartogh (2011: 301); Green (2013: 491). Along somewhat different lines, Neil Manson (2016: 3333) argues that a consent-giver must engage in behaviour to give consent on the grounds that the consentgiver must have an intention to change the consent-receiver’s reasons as a result of the consentreceiver recognizing that the consent-giver has this very intention.

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McGregor’s idea is that communication requires public behaviour. By contrast, a mental attitude would be too private to count as consent. This is the essence of the ‘Publicity Argument’ for the Behavioural View of consent. To make the argument compelling, we need to consider what reasons we have for thinking that consent must be public. For a preliminary argument that consent must be public, consider the connection between consent and promises. Like consent, promises change which rights and duties are in play. While consent eliminates these rights and duties, promises create these rights and duties. To create rights and duties, promises require public behaviour. Let us consider four reasons to think that consent operates similarly to promises in this respect. First, promises and consent can be jointly embedded in complex moral agreements. For example, someone can exchange a promise for another person’s consent. Suppose that Billie and Charlie agree that Charlie can use Billie’s car while Billie is away and in return Charlie will water Billie’s plants. It would be odd to think that Billie can consent without engaging in behaviour but Charlie must engage in behaviour to establish the reciprocal promise. Second, someone can simultaneously communicate that they are making a promise and giving consent. For example, Billie might write to Charlie, ‘You may stay in my home. I promise to stock the fridge.’ Again, it would be odd to think that Billie gives consent before setting pen to paper but Billie needs to engage in behaviour to make the promise. Third, compare how both revocations of consent and promises create duties. Typically, when someone gives their consent, they can withdraw this consent later. By revoking the consent, the consent-giver reimposes on the consent-receiver the duty from which the consent-receiver had been released. Therefore, the Mental View implies that a mere intention can impose a duty on another person. Suppose that Billie had consented to Charlie being in their home but Billie changes their mind. However, Billie does not express this change of mind in behaviour. The Mental View implies that Billie has reimposed on Charlie their duty not to be in Billie’s home. But since promises require behaviour, Billie would have to engage in behaviour in order to impose a promissory duty on Billie themselves. This combination of views is awkward. If Billie does not have to engage in behaviour to give Charlie a duty by revoking consent, then why does Billie have to engage in behaviour to give themselves a duty through a promise? Fourth, compare how reversals of promises and consent eliminate duties. Promises can be reversed in two ways. First, someone could refuse a promise

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when it is offered.⁶ Second, after a promise has been made, the promisee can release the promisor. Suppose that Billie accepts Charlie’s promise to get Billie a ticket for a show. Later, Billie changes their mind and releases Charlie from their promissory duty. To release Charlie from this promissory duty, Billie would need to indicate that Billie is releasing Charlie from the duty. It is not enough for Billie merely to form an intention to remove Charlie’s promissory duty. So, why would a mere intention be enough to constitute consent that would release Charlie from a duty not to enter Billie’s home? I take these four considerations to suggest that promises and consent share a common currency. However, these considerations do not provide us with a knockdown case for rejecting the Mental View of consent. Instead, these considerations provide us only with some reason to combine the Behavioural View of promises with the Behavioural View of consent.⁷ We can strengthen the Publicity Argument by further exploiting the connection between promises and connection. To that end, let us consider why promises require public behaviour. The explanation concerns the valuable functions that promises play in our lives. We can group these functions into three loose groups. First, promises can create expectations that promisees can rely on. This reliance creates trust, which facilitates cooperation.⁸ Second, a promise gives a promisee some control over the promisor’s behaviour. This control can be valuable for various reasons. For example, a promisee may be reassured that a promisor has committed not to divulge one of the promisee’s secrets.⁹ Third, promises help people build relationships with each other. Like other voluntary obligations, promises can allow intimate relationships to develop in morally healthy ways by creating commitment and by protecting individuals from imbalances of power within a relationship.¹⁰

⁶ J. L. Austin (1962) argues that a promise requires ‘uptake’ on the part of the promisee. Shiffrin (2008: 491) argues that uptake need not require an explicit acceptance of the promise; instead, uptake could be constituted by omitting to reject the promise. ⁷ Defending the Mental View of consent, Ferzan (2016: 403–404) rejects that there is an analogy between promises and consent and instead draws an analogy between consent and abandonment. I respond by arguing that abandonment requires behaviour in Dougherty (2019). ⁸ For the connection between promise and reliance, see MacCormick (1972). For the connection between promises, trust, and cooperation, see Fried (1981); Prichard (2002). ⁹ For the connection between promises and assurance, see Scanlon (1990: 207–8), (1998: 302–4). For the connection between promises, assurance, and our interest in relations of authority, see Owens (2012: 146–50). ¹⁰ For how promises create special relationships, see Raz (1977: 228); Markovits (2004). For how promises protect disempowered people in relationships, see Shiffrin (2008).

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A similar story applies to consent. Consent also plays three functions within our lives. First, consent enables intimacy. Against a backdrop of duties shielding the private aspects of our lives, consent facilitates intimacy. Second, consent enables alteration. Against a backdrop of duties protecting the integrity of our bodies and property, consent facilitates interactions that involve change or damage to our bodies or property. Medical consent paradigmatically plays this function but so does consent to the repair of one’s roof. Third, consent enables mutual use. Against a backdrop of property rights that specify which possessions are our own, consent allows us to share these possessions with each other. Similarly, we can share our bodies with each other in various ways. For example, a life model can consent to an artist’s portrait. Consent and promises perform these functions by transforming the ways in which we hold each other accountable. This brings publicity into the picture, as the norms that concern how we hold each other accountable must be suitably public. Consider an insight of Stephen Darwall’s. Darwall argues that normative principles must be public whenever we use these principles to govern attitudes like blame. These attitudes arise ‘from a distinctively interpersonal (or second-personal) perspective in which we presuppose that the standards to which we hold one another are available to everyone in common’ (Darwall 2014: 98).¹¹ To appropriately blame someone for failing to conform to a normative standard, these standards must be public, as ‘we cannot intelligibly hold someone accountable for complying with an inaccessible esoteric principle’ (Darwall 2014: 98). Darwall’s rationale naturally extends to the means by which we hold each other accountable. Insisting that others respect our rights is equivalent to insisting that they discharge the duties that are correlates of these rights. Accordingly, as right-holders, we can hold duty-bearers accountable for carrying out their duties. Now, just as we cannot hold others accountable for complying with inaccessible principles, we cannot hold others accountable for respecting inaccessible rights. Therefore, considerations of accountability favour it being public which rights we have. Some of these rights are ‘natural’ rights. These are the default rights that we have simply as moral persons. These natural rights will be specified by principles of justice.

¹¹ Darwall cites and draws upon earlier work in Darwall (2006). Darwall’s proposal is an elaboration of Rawls’s (1971: 115) view that there is a ‘publicity condition’ that functions as a ‘constraint on the right’ and Rawls’s (1980: 546) view that persons are ‘self-originating sources of valid claims’.

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Therefore, if the principles of justice are public, then our natural rights are public. In addition, Darwall’s rationale naturally extends to consent and promises as means by which we create and eliminate rights. To the extent that consent and promises operate publicly, it is public which rights and duties are thereby eliminated or created. Public consent structures interpersonal accountability in ways that are instrumentally and constitutively valuable for us. The instrumental value arises from the fact that public consent protects our interests in controlling our interactions with each other. Take our interest in excluding others from making unwanted contact with our personal zones. This interest is best served through a system of public accountability. If consent must be expressed, then we can hold each other accountable by making claims like ‘You and I both know that your acting this way is impermissible because I have not indicated that you are permitted to act in this way.’ In addition to this instrumental value, public accountability also has constitutive value for us. This value derives from the way that accountability affects the meaning of our interactions. In so far as consent is public, the consent-giver and the consent-receiver can be mutually assured that the consent-receiver’s behaviour is governed by respect for the consent. This assurance is crucial for how we interpret each other’s actions. For example, in ethical healthcare, it must be public that a physician is motivated to respect a patient’s consent. This affects how the patient and the physician will interpret a medical interaction. In this way, the public face of an interaction determines the meaning of the interaction for these parties.¹² For these reasons, consent is better able to play valuable functions to the extent that consent is public. This gives us an explanation of the Publicity Argument’s premise that consent publicly transforms our relationships with each other. The argument’s other premise is that a mental attitude is too private to play this role. On these grounds, the Publicity Argument concludes that we should reject the Mental View in favour of the Behavioural View. In reaching this conclusion, the Publicity Argument leaves open the question of which version of the Behavioural View we should adopt. Our answer to this question should depend on the extent to which consent must be public. The most extreme option is that consent must be maximally public in the

¹² Similarly, Healey (2015: 359) claims that ‘consent cannot play the role . . . of allowing individuals to interact in valuable ways whilst relating to one another as autonomous agents, if both parties could not have access to the information that determines whether or not consent has been given’.

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sense that the consent-giver and the consent-receiver must both know whether consent has been given. This result is secured by the view that consent consists in successful communication between the consent-giver and the consent-receiver. This is the Successful Communication View that we will discuss in Chapter 5. If all that mattered were public accountability, then we should adopt the Successful Communication View. However, while the Publicity Argument implies that public accountability matters, it does not imply that public accountability is all that matters. There may be other considerations that also bear on what constitutes consent. For example, when we discussed the Mental View, we encountered the idea that consent enables a consent-giver to exercise autonomous control over their normative boundaries. We also saw that if consent requires uptake with the consent-receiver, then the consent-giver is less able to exercise this autonomous control. Therefore, there is a tension between the ideal that the consent-receiver has control over their consent and the ideal that the consent-giver and the consent-receiver both know whether consent has been given. In light of this tension, we may prefer a view of consent that strikes a compromise between considerations of autonomy and accountability. In particular, we may adopt a view that includes the following two claims. First, consent requires behaviour. Second, someone can give consent even if the consent-receiver has not become aware of this behaviour. We should endorse both claims if we think that someone can give consent by putting up a sign on their lawn that indicates that a neighbour is permitted to cross the lawn even if the neighbour has not yet read the sign. An example of a view that endorses both claims is the Expression of Will View of consent, which we will discuss in Part III of this book. In Chapters 5, 6, 7, 8, and 9, we will consider the respective advantages and disadvantages of the Successful Communication View and the Expression of Will View. In due course, I will defend the Expression of Will View. However, that defence requires going beyond the conclusion of the Publicity Argument. The conclusion of the Publicity Argument is only that we should accept some version of the Behavioural View. If we wanted a slogan to capture the idea behind the argument, then we might say that what you do in the privacy of your own mind is not enough to waive your rights in the public sphere.¹³

¹³ Thanks to Laura Schroeter for this slogan.

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4.2 The Gravity of Different Wrongs The Publicity Argument concludes that we should accept the Behavioural View and reject the Mental View. To understand the significance of this conclusion, we need to take a closer look at the implications of each view and in particular their implications for the design of sexual offence policies. While the Behavioural View differs from the Mental View about what constitutes consent, there is room for advocates of these views to agree about other important topics. For a start, advocates of these views may agree about when certain wrongs are committed.¹⁴ Let us distinguish two ways of acting: Acting Without Intention. X acts in Y’s personal domain, and Y does not intend to release X from a duty not to act in this way. Acting Without Behaviour. X acts in Y’s personal domain, Y intends to release X from a duty not to act in this way, and Y has not expressed this intention in behaviour.

According to the Mental View, Acting Without Intention is equivalent to acting without someone’s consent. Consequently, the Mental View implies that Acting Without Behaviour is not sufficient for acting without someone’s consent. However, we noted earlier that it is open to an advocate of the Mental View to say that Acting Without Behaviour constitutes a different wrong. For example, they can say that Acting Without Behaviour is wrong in virtue of being disrespectful. Meanwhile, the Behavioural View implies that Acting Without Behaviour is sufficient for acting without someone’s consent. But it is open to an advocate of the Behavioural View to agree that Acting Without Intention is also wrong. Indeed, if the advocate of the Behavioural View holds that a permissive intention is necessary for consent, then they will agree that Acting Without Intention is also a way of committing the wrong of acting without someone’s consent. Those points concern whether a wrong is committed. There is a separate question of how grave these wrongs are. With respect to this question, there is also some room for convergence between advocates of the Mental View ¹⁴ To be precise, our topic is actions that constitute wrongings rather than actions that are ‘wrongs’ in the sense that these actions are impermissible. I phrase our discussion in terms of ‘wrongs’ for stylistic reasons.

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and the Behavioural View. On the assumption that these advocates hold that Acting Without Intention and Acting Without Behaviour are both wrongs, they can agree that Acting Without Intention is more gravely wrong than Acting Without Behaviour. Indeed, not only can an advocate of the Behavioural View agree on this point; they should agree on this point. To illustrate why, compare the following cases:¹⁵ Omission. Sam is willing for Taylor to sexually penetrate Sam. However, Sam is inexperienced and nervous. Consequently, Sam does not attempt to communicate that they are willing for Taylor to penetrate Sam. Taylor thinks that most likely Sam is willing for Taylor to penetrate Sam. However, Taylor is not fully confident about this. Meanwhile, Taylor is apprehensive about asking and worries that asking will be awkward and indicate inexperience. Moreover, Taylor assumes that Sam will expressly refuse if Sam is unwilling. Taylor penetrates Sam. Unwilling. Cameron and Alex are sexually inexperienced. Cameron is willing to engage in minor sexual activity with Alex, but Cameron is unwilling for Alex to penetrate Cameron. Because Cameron is inexperienced and nervous, Cameron does not express to Alex the types of sexual activity that Cameron is willing to take part in. Alex is not fully confident that Cameron is willing for Alex to penetrate Cameron. However, Alex judges that Cameron is more likely than not to be willing for Alex to penetrate Cameron. Consequently, Alex assumes that if Cameron is unwilling, then Cameron will expressly refuse. Alex penetrates Cameron.

I take it to be clear that Alex wrongs Cameron more gravely than Taylor wrongs Sam. Thus, by comparing these cases, we can see that Acting Without Intention is more gravely wrong than Acting Without Behaviour. In light of this point, an advocate of the Behavioural View needs to make an important acknowledgement. They must acknowledge that the absence of a victim’s expressive behaviour is not sufficient for the most serious forms of sexual offence.¹⁶ Instead, the most serious sexual offences are offences that are against the victim’s will. ¹⁵ In the remainder of this section, our discussion overlaps in substance with Dougherty (2018b: 96–8) and Dougherty (2019: 391–6), where I discuss these cases in order to argue that sex that is against a victim’s will is an especially grave offence, while drawing implications for how we talk about consent, sex, and rape. ¹⁶ For a defence of this claim in the context of evaluating affirmative consent policies, see (Ferzan & Westen 2017: 794–5).

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This point matters for the sanctions that should be imposed by sexual consent policies. As we noted earlier, university campus codes often define sexual consent as affirmative consent. We should reflect on the types of encounters that would be covered by these policies. These policies would cover the encounters in both the Omission and the Unwilling cases. Yet in the Omission case, Taylor commits a wrong that is less grave than the wrong that Alex commits in the Unwilling case. Therefore, it would be proportionate to punish Taylor less harshly than Alex. Therefore, an affirmative consent policy should take a graded approach to punishment: the policy should punish Acting Without Behaviour less harshly than Acting Without Intention. This point also matters for how we talk about sexual assault. Consider the following slogans: Affirmative Consent Slogan: Consent is affirmative consent. Rape Slogan: Sex without consent is rape. It would not be strange for either slogan to feature in a consciousness-raising campaign on a university campus. Similarly, either slogan might feature in an educational consent workshop for new students. But if we think that rape involves sexual activity that is against someone’s will, then both claims cannot truthfully be uttered in the same breath. Affirmative consent involves behaviour that clearly communicates willingness to have sex. Therefore, if we endorse both slogans in the same breath, then we are taking the position that someone like Taylor commits rape. That position is inconsistent with the assumption that rape is an offence that is especially grave in virtue of being against a victim’s will. Could we solve this problem by giving up the assumption that rape is a sexual offence that is against a victim’s will? Not comfortably. That assumption is necessary if we wish to use the term ‘rape’ to pick out the most serious sexual offences. As we noted, the most serious type of sexual offence is not committed in a case like Omission, in which Sam is willing to have sex with Taylor. Instead of applying the term ‘rape’ to Taylor’s conduct, we should apply the term only to sexual misconduct that is against a victim’s will. Another way to put this point is that if we broaden the application of a term like ‘rape’ so that the term applies to less serious offences, then we are diluting the moral significance of the term. This leaves us with a dilemma. Either consent is a wholly mental phenomenon or consent is partly a behavioural phenomenon. If we take the first

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horn of the dilemma, then we can endorse the Rape Slogan but not the Affirmative Consent Slogan. If we take the second horn, then we can endorse the Affirmative Consent Slogan but not the Rape Slogan. However, there is no acceptable way to endorse both slogans in the same breath.

4.3 Summary Why might we think that consent requires behaviour? The most plausible answer is that consent must be public (Section 4.1). To build the strongest case for the view that consent must be public, it is helpful to explore the connection between consent and promises. Given that both consent and promises alter which rights and duties we have, it is natural to expect that there is a single currency for both consent and promises. Since the currency of promises is public behaviour, we have reason to conclude that consent also requires behaviour. In addition, the need for publicity can be explained by considering the functions that promises and consent play in our lives. Promises and consent modify the demands that we can make of each other, and these demands structure the ways that we hold each other accountable. To the extent that rights and duties are public, rights and duties are better suited to structuring how we hold each other accountable. Since promises and consent change which rights and duties people have, this provides us with a rationale for why promises and consent must also be public. Since mental attitudes are too private to structure how we are accountable to each other, the Publicity Argument concludes that we should accept the Behavioural View of consent rather than the Mental View of consent. It is important to be clear about what turns on accepting the Behavioural View at the expense of the Mental View. While advocates of the Mental View and Behavioural View disagree about whether consent requires behaviour, advocates of both views can agree about other key issues (Section 4.2). In particular, they can often agree about whether a certain encounter involves a wrong and how grave this wrong is. In particular, an advocate of the Behavioural View should agree that acting against someone’s will is an especially grave offence, particularly when it comes to sexual misconduct. Conversely, an advocate of the Behavioural View should also agree that a serious sexual offence is not committed simply because someone does not express their willingness to take part in a sexual encounter. This conclusion has implications for how we should design sexual offence policies. An affirmative consent policy should adopt a graded approach to sanctions,

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reserving the harshest sanctions for sexual misconduct that is against a victim’s will. This conclusion also has implications for how we talk about sexual misconduct. We cannot in the same breath say that the absence of sexual consent characterizes rape, that rape is the most serious type of sexual offence, and that sexual consent is affirmative consent.

5 The Successful Communication Principle Imagine that you are deciding whether to take over as the manager of a sports team. In the past, the team’s owner had bought and sold players without paying any attention to the previous manager’s wishes. For you, that is a red line: if you cannot pick your squad, then you cannot manage the team. ‘Don’t worry,’ the owner says, ‘I won’t make any transfers that you don’t want me to make.’ Relieved, you take the job. But every time that you try to meet with the owner to discuss transfers, they are evasive. Meanwhile, the owner sells a lot of deadwood players. Finally, you corner the owner and complain that they have reneged on the agreement, as you are not having any input into player transfers. The owner replies that they have been sticking to the agreement. After all, did you not want all those useless players gone? If so, then the owner has not sold a single player that you did not want to be sold. The owner’s reply will not satisfy you. Even if the transfers happen to coincide with what you want, you are not exercising control over the transfers, and the owner is not being guided by the decisions you make. The reason why is that there is no causal connection between your decisions and the transfers. A similar point applies for consent. A consent-giver does not control a consent-receiver’s behaviour just because the consent-receiver happens to perform only the actions that the consent-giver is willing to permit. This control requires that the consent-receiver is guided by the consent-giver’s permissive intentions. This guidance requires a causal connection between the consent-giver’s permissive intentions and the consentreceiver’s behaviour. These are the ideas that we will develop in this chapter. In Section 5.1, we will look at the ‘Control Argument’ that supports the view that consent consists in successful communication. In Section 5.2, we will look at how this argument can be extended to support the ‘Successful Communication Principle’ for the scope of consent. According to this principle, an action The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0006

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falls within the scope of someone’s consent when the consent-receiver successfully interprets the consent-giver as intending to permit this action with their behaviour.

5.1 The Control Argument In Chapter 4, we introduced the Behavioural View. This is not yet a specific view of consent, as it does not state what behaviour is required for consent. Here is a specification of the view: Successful Communication View. X gives consent to Y if and only if X successfully communicates to Y that X is giving permission to Y.

An attractive feature of this view is that it implies that consent involves a meeting of minds between the consent-giver and the consent-receiver: they reach a shared understanding of how the consent is transforming their moral relationship. In this respect, the view implies that consent is maximally public. While there is appeal to the idea that consent must be maximally public, there is also appeal to the less controversial idea that consent must be public to a considerable degree. Given that other versions of the Behavioural View can guarantee that consent is public to a considerable degree, the Successful Communication View needs further motivation. We can develop this motivation by considering the reasons for thinking that successful communication is morally important. To illustrate this issue, consider: Spam Filter. Ali emails their friend Morgan to ask to borrow Morgan’s car for the rest of the day. Morgan sends an email in response saying that it is fine for Ali to use the car, but this email gets caught in Ali’s spam filter. Meanwhile, Nic is unaware of Morgan’s attempt to send the email, and Nic does not know whether Morgan is willing for Ali to use the car. As a prank, Nic logs onto Morgan’s account and writes an email saying that it is fine for Ali to use the car. This email evades the spam filter and reaches Ali’s inbox. Ali reads Nic’s email and borrows the car.

Morgan intends to release Ali from their duty not to use the car, Morgan has expressed this intention in behaviour, and Ali believes that Morgan has this intention. But Morgan has not successfully communicated with Ali. Instead,

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Morgan failed to communicate because of the spam filter. Therefore, the Successful Communication View implies that Ali wrongs Morgan by using Morgan’s car without Morgan’s consent. This implication cries out for explanation. What is morally amiss about Ali’s behaviour? Let me stress that this is a question about Ali’s behaviour rather than Ali’s culpability. Clearly, Ali acts innocently by using the car. Nic’s prank gives Ali compelling evidence that Morgan has permitted Ali to use the car. In light of this evidence, it is inappropriate to blame Ali for their behaviour. But even if an agent is innocent, it may still be that their behaviour is morally problematic. Indeed, according to the Successful Communication View, Ali uses the car without Morgan’s consent. Since an agent wrongs an individual by using their property without their consent, the view implies that Ali thereby wrongs Morgan. The challenge for the view is to explain why this behaviour constitutes a wronging. In framing the challenge in this way, let me flag a terminological issue. Some people only apply the term ‘wronging’ to behaviour for which the agent is culpable (Wallace 2019). These people will prefer to frame the challenge in different terms. For example, they may prefer to say that the challenge is to explain what is morally defective about Ali’s behaviour. This is not how I use the term ‘wronging’. I am applying the term to non-culpable conduct like Ali’s. This is an important challenge that an advocate of the Successful Communication View must meet. It is a difficult challenge to meet given the features of the Spam Filter case. Both Ali and Morgan believe that Ali is willing for Morgan to use the car. In addition, both Ali and Morgan believe that Ali uses the car because Morgan has consented. Finally, Ali has engaged in behaviour that expresses that they are willing for Ali to use the car. Given all these features of the case, it is hard to see what is problematic about Ali’s behaviour in virtue of which they count as wronging Morgan by using the car without their consent. In response to this challenge, an advocate of the Successful Communication View could appeal to the idea that a consent-giver must control a consentreceiver’s behaviour. This idea forms the basis of an argument that I call the ‘Control Argument’.¹ To develop this argument, let us begin with an insight of H. L. A. Hart’s. Hart (1982: 183–4) famously argued that to capture the way ¹ For a related argument concerning the relationship between consent and control, see Healey (2015: 358). While it is clear that Healey takes this relationship to require that a consent-giver must have epistemic access to whether consent has been given, I interpret Healey as uncommitted on the question of whether the consent must be successfully communicated.

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that legal rights reflect ‘the distinctive concern for the individual’ we need the idea: of one individual being given by the law exclusive control, more or less extensive, over another person’s duty so that in the area of conduct covered by that duty the individual who has the right is a small-scale sovereign to whom the duty is owed.

While Hart’s topic is legal rights, Hart’s picture also fits morality. Just as I can waive a legal right against your cutting my hair, so I can waive my moral right. In that respect, I am a moral sovereign over my hair. While Hart focused on waivers of rights, there is more to our moral sovereignty than waivers. Consider three further aspects to our sovereignty. First, we have the ability to transfer rights to other people. If I own a car, then I can give others the right to decide who may use this car. For example, I can transfer this right either temporarily through a lease or permanently through a sale. Second, we can appoint proxies to act on our behalves. For example, we can empower lawyers to represent us in legal proceedings, and we can empower friends to make medical decisions while we are unconscious. Third, within certain relationships, we can give each other directions. For example, a parent may issue a command to their child.² These are all ways that we authorize each other’s behaviour. When we authorize someone’s behaviour, they are in a position to respect our authority. For someone to respect our authority, they must do more than perform an action that we happen to authorize. If someone performs this action out of self-interest, then this would not constitute respecting our authority. Instead, to respect our authority, someone must perform the action because we have authorized the action.³ In part, this requires that they perform the action out of a motivation to respect our authority. But this motivation is not ² These interpersonal phenomena have institutional analogues. In firms, employees may have free rein to develop plans under their own steam but still need to get these plans approved by their bosses. In an army, a sergeant can give orders to subordinates (Darwall 2006). ³ As Quill R Kukla, writing as Rebecca Kukla, and Mark Lance (2009: 463) note: obedience is an essentially relational notion that cannot be understood just as action that is in accordance with a speech act. When I order you to J, it is not sufficient for the success of my speech act that you happen to J, nor even that my imperative causes you to J. Rather, it requires that you J out of your recognition of your obligation to me to J. See also Darwall’s (2006: 136–7) discussion of Kant.

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sufficient for them being guided by our authorization. In addition, there must be certain causal relations between our authorization and their behaviour. In the case of consent, a consent-receiver’s behaviour would need to be caused by the consent. Specifically, the consent must cause the consentreceiver’s belief that they have been given consent, and this belief must be part of the consent-receiver’s reason for acting. To establish the causal pathway, the consent-giver would need to successfully communicate with the consent-receiver.⁴ This successful communication enables a consentreceiver to be guided by the consent. Reciprocally, the successful communication enables the consent-giver to control the consent-receiver’s behaviour. These considerations provide an advocate of the Successful Communication View with a way of responding to the challenge presented by the Spam Filter case. The Successful Communication View implies that Ali wrongs Morgan. The challenge is to explain why Ali wrongs Morgan. Here is an explanation that can be offered by the advocate of the Successful Communication View. Ali’s behaviour coincides with Morgan’s expressed intentions. But this coincidence does not ensure that Morgan controls Ali’s behaviour. For example, I could do a rain dance in the belief that I am influencing tomorrow’s weather. If it rains, then the weather would coincide with my intentions. But I would not be controlling the weather. Similarly, in the Spam Filter case, even though Ali and Morgan share a belief that Morgan permits Ali to use the car, Ali’s behaviour is not guided by Morgan’s attempt to authorize Ali’s behaviour. Ali’s behaviour is caused by Nic’s prank, which creates the veridical appearance that Morgan intends to authorize Ali to use the car.⁵ Because Morgan’s attempt does not causally influence Ali’s behaviour, Morgan does not control Ali’s behaviour. Consequently, an advocate of ⁴ Along these lines, Darwall (2013: 30) argues that the exercise of normative powers requires mutual recognition: Normative powers can only be exercised second personally, through a reciprocally recognising transaction with another person. And their exercise both presupposes specific authorities, rights, and bipolar obligations, which are reciprocally recognised by the parties to the transaction as existing independently of the transaction, and creates new ones as a result, for example, a promiser’s obligation to a promisee. This mutual recognition would standardly come about by communication: the person exercising the normative power communicates that they are creating or eliminating certain rights and obligations. Similarly, Healey (2015: 358) claims that ‘we only relate to one another in morally decent and valuable ways if we recognise one another as having control over the spheres protected by our autonomy rights.’ ⁵ To bring this point out, it may be helpful to note that Ali has a justified true belief that Morgan is willing to use the car, but this belief does not constitute knowledge. Edmund Gettier (1963) proposes cases like these as counterexamples to the view that knowledge consists in

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the Successful Communication View can say that Ali wrongs Morgan in virtue of acting in Morgan’s personal domain in a way that Morgan does not control. The Control Argument gives an advocate of the Successful Communication View resources with which to respond to the Autonomy Argument for the Mental View of consent. One reason why the Autonomy Argument is appealing is that the argument accommodates the idea that consent is connected to our ability to control what happens in our lives. However, the advocate of the Successful Communication View can reply that the Autonomy Argument overlooks other ways that we exercise autonomy over our personal boundaries. The Autonomy Argument focuses on our ability to release others from duties at will. But there is another respect in which we can exercise autonomous control over our lives: we can control how other people act in our personal domains. The Control Argument connects consent with this conception of autonomy. Another reason why the Autonomy Argument is appealing is that the argument accommodates the idea that consent modulates a consent-giver’s grievances. However, an advocate of the Successful Communication View can reply that the Autonomy Argument overlooks other grievances that we may have. Suppose that you do not mind a new co-worker finishing the bag of nuts at your desk. However, you never tell the co-worker that they may finish the bag. The co-worker assumes that you do not mind and eats the nuts. It is true that there is a certain grievance that you lack concerning their behaviour. Since you were happy for the co-worker to eat the nuts, you cannot complain that they have eaten the nuts against your will. But you do have a separate grievance. They have eaten the nuts without being appropriately authorized by you. Consequently, you did not control whether they ate the nuts. Since you were entitled to control whether they ate the nuts, you have a grievance against the co-worker.

5.2 The Successful Communication Principle Back at the sports club, you are threatening to quit unless you have input into player transfers. ‘Okay, okay,’ the owner says, ‘I promise that I won’t buy or sell a single player unless you’ve put in a formal transfer request.’ You justified true belief. Tadros (2019) uses a ‘Gettier case’ to argue against a target much like the Successful Communication View.

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leave the meeting reassured. Subsequently, you decide that the squad needs further overhauling, and so you submit a formal request for one of your forwards to be swapped for a rival team’s defender. The owner thanks you and begins the transfer negotiations. A few weeks later, the owner reveals to the media that one of your defenders has been swapped for a forward from the rival team. Incensed, you storm into the owner’s office, complaining that the owner reneged on your agreement. However, the owner replies that they have honoured your agreement to its letter. They insist that not a single transfer was made without you placing a formal transfer request. Admittedly, the recent transfer did not fit with the content of your request, but that was not part of the agreement. This response is not going to satisfy you. You do not control the club’s transfers just because the club makes a certain transfer in response to you making a request for a different transfer. For you to exercise control over the club’s transfers, the club’s transfers must be transfers that you request. A similar point applies to consent. For a consent-giver to control a consent-receiver’s behaviour, it is not enough that the consent-receiver acts in response to the consent-giver communicating their willingness to permit some action or another. In addition, the consent-receiver must be guided by the content of what the consent-giver communicates. For this reason, if the Control Argument is sound, then it does not only support the Successful Communication View of what constitutes consent. The argument would also support a principle governing the scope of someone’s consent. The idea behind the argument is that an agent can wrong an individual by acting in that individual’s domain in a way that the individual does not control. For the agent to avoid wronging the individual in this way by performing an action, the individual must have successfully communicated to the agent that they may perform this action. Therefore, if the Control Argument is sound, then the set of actions that the individual permits is determined by what they successfully communicate to the agent. In other words, the Control Argument supports the conclusion that the scope of the individual’s consent is determined by the content of what they successfully communicate to the agent.⁶

⁶ Compare Owens’s (2012: 181) claim that ‘to consent to ø-ing is to communicate the intention of hereby making it the case that ø-ing would not wrong you’. Owens clarifies that this claim needs to be understood as concerning a particular type of wronging in light of the fact that consensual acts can wrong victims in different ways.

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How should we formulate a principle along these lines? To ensure that the consent-giver is aware of the consent, we could borrow an idea from the Mental Account. We can say that, for an action to fall within the scope of the consent, the consent-giver must intend to permit this action. We can then depart from the Mental Account by adding that the consent-giver must successfully communicate to the consent-receiver that they have this permissive intention. This leads us to the following principle: Successful Communication Principle. An action A falls within the scope of the consent that X gives to Y if and only if: (i)

X has intention I to release Y from their duty not to perform A;

(ii) X engages in behaviour B that expresses I; and (iii) Y interprets B as expressing I. In Chapters 6 and 7, we will discuss whether condition (i) and condition (iii) hold. I call these the ‘Intention Condition’ and the ‘Uptake Condition’, respectively. To clarify the Successful Communication Principle, let me spell out how the principle applies to some toy examples. Suppose that Laura has a box that contains a hazelnut chocolate, a coffee chocolate, a raspberry chocolate, and an orange chocolate. Laura aims to share some chocolates with Maria. Let us consider three versions of the case. First, consider the following version of the case: Complete Communication. Laura intends to permit Maria to take the coffee chocolate or the orange chocolate. Laura assumes that Maria knows that Laura’s favourites are hazelnut chocolates and raspberry chocolates. Consequently, Laura says to Maria, ‘Help yourself to my chocolates. Just do not take my favourite ones.’ Since Maria knows that hazelnut and raspberry chocolates are Laura’s favourites, Maria correctly interprets Laura as intending to permit Maria to take the coffee chocolate or the orange chocolate.

In this version of the case, Laura intends to permit Maria to take the coffee chocolate or the orange chocolate, Laura expresses this permissive intention in communicative behaviour, and Maria interprets Laura as intending to permit Maria to take either of these chocolates. Assuming that Maria’s interpretation is based on Laura’s utterance in the normal way, the

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Successful Communication Principle implies that there would be two actions that fall within the scope of Laura’s consent. One action is Maria taking the coffee chocolate, and the other action is Maria taking the orange chocolate. Now, consider a second version of the case: Complete Miscommunication. Laura intends to permit Maria to take the coffee chocolate or the orange chocolate. Laura mistakenly assumes that Maria knows that hazelnut chocolates and raspberry chocolates are Laura’s favourites. Consequently, Laura says to Maria, ‘Help yourself to my chocolates. Just do not take my favourite ones.’ Since Maria falsely believes that orange chocolates and coffee chocolates are Laura’s favourites, Maria incorrectly interprets Laura as intending to permit Maria to take the hazelnut chocolate or the raspberry chocolate.

In this version of the case, there is no action of Maria’s such that Laura intends to permit Maria to perform this action and Maria interprets Laura as intending to permit this action. Therefore, the Successful Communication Principle implies that no actions fall within the scope of Laura’s consent. Finally, consider a third version of the case: Partial Communication. Laura intends to permit Maria to take the coffee chocolate or the orange chocolate. Laura assumes that Maria knows that hazelnut chocolates and raspberry chocolates are Laura’s favourites. Consequently, Laura says to Maria, ‘Help yourself to my chocolates. Just do not take my favourite ones.’ Maria believes that orange chocolates and raspberry chocolates are Laura’s favourites. Consequently, Maria interprets Laura as intending to permit Maria to take the hazelnut chocolate or the coffee chocolate.

In this version of the case, there is only one action of Maria’s such that Laura intends to permit the action and Maria interprets Laura as intending to permit this action. That action is Maria taking the coffee chocolate. Therefore, the Successful Communication Principle implies that only this action falls within the scope of Laura’s consent. From these cases, we can see that the Successful Communication Principle guides us to look at the ‘highest common factor’ in the communication of consent. The highest common factor is the set of actions such that the consent-giver has an intention to permit these actions, the consent-giver

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expresses this intention in behaviour, and the consent-receiver interprets this behaviour as expressing this intention to permit these actions. When communication is fully successful, the highest common factor is the set of all the actions that the consent-giver intends to permit. When communication utterly fails, the highest common factor is the null set. When the communication is partially successful, the highest common factor concerns the partial success. In so far as the consent-receiver’s interpretation is caused by the consent-giver’s expressive behaviour, the highest common factor is the intersection of the set of actions that the consent-giver intends to permit and the set of actions that the consent-receiver interprets the consent-giver as intending to permit by engaging in this behaviour.

5.3 Summary A specific version of the Behavioural View is the Successful Communication View. According to the Successful Communication View, consent requires successful communication between the consentgiver and the consent-receiver. The Successful Communication View can be motivated by considering how it responds to a key challenge (Section 5.1). This challenge is illustrated by the Spam Filter case, in which Morgan sends an email saying that Ali may use the car but the message never reaches Ali. The Successful Communication View implies that Morgan does not consent to Ali using the car and hence that Ali wrongs Morgan by using the car without Morgan’s consent. The challenge is to explain why Ali’s use of the car would wrong Morgan. A response to this challenge comes from the Control Argument. Each of us is sovereign over our personal domains. Because we are sovereign, others must be guided by our intentions for how they behave in our domains. For them to be guided by our intentions, we must control their behaviour. In the case of consent, this control requires successful communication between the consent-giver and the consent-receiver. On the grounds that an individual is entitled to control how other people act in their personal domain, we have a diagnosis of what is wrong with Ali’s behaviour in the Spam Filter case: Ali wrongs Morgan in virtue of acting in Morgan’s personal domain in a way that Morgan does not control. The Control Argument also leads us to a principle for the scope of consent (Section 5.2). According to the Successful Communication Principle, an action falls within the scope of someone’s consent when the consent-giver

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successfully communicates to the consent-receiver that the consentgiver intends to permit this action. This successful communication requires three things. First, the consent-giver must have an intention to permit this action. Second, the consent-giver must express this intention in behaviour. Third, the consent-receiver must interpret this behaviour as expressing this permissive intention. All three conditions must be met for the consentreceiver to perform the action while being guided by the consent. The first of these conditions is the Intention Condition, which we will discuss in Chapter 7. The third is the Uptake Condition, which we will discuss in Chapter 6.

6 Why We Should Reject the Uptake Condition Legend has it that Paul Grice became the best paid philosopher in the world by failing to check the post.¹ The story goes that Berkeley mailed Grice a job offer, but the letter sat neglected in Grice’s pigeonhole at the porter’s lodge of Grice’s Oxford college. Having received no reply, Berkeley thought that Grice must have been so insulted by the proposed salary that Grice had not deigned to dignify the offer with a response. So Berkeley upped their offer and sent a new letter. Unfortunately, this letter also joined the stack of unread post that was accumulating for Grice. Having been rebuffed twice, Berkeley pulled out all the stops and sent an improved third offer. At this point, Grice did happen to check the post and came across all three letters at once. Inferring what must have happened, Grice wrote back, ‘I am now satisfied with the terms that you are offering, and I am pleased to accept.’ Whether or not the legend is true, it is a ray of hope for philosophers lost in abstraction everywhere. It also shines light on the question of whether consent requires uptake with the consent-receiver. Even while Berkeley had sent only the first letter that sat unread, it was still the case that Berkeley had made Grice a job offer. Now, imagine that this letter also invited Grice to attend a distinguished event in a fancy university room to which the general public are not ordinarily permitted access. Suppose that Grice never read the invitation but wandered into this room by chance on the day of the event. Would Grice have been a trespasser? Imagine that Grice ended up on trial for this. The prosecutor is summing up their evidence when a trusty college porter bursts through the courtroom door brandishing the invitation. That should settle that Grice was authorized to be in the room even though Grice had not read the letter at the time at which the event took place.

¹ I had heard anecdotally the embellished version of the story in the main text, but a similar version is narrated by Ian Rumfitt, https://leiterreports.typepad.com/blog/2020/06/it-pays-notto-read-the-mail-a-paul-grice-story.html, accessed 25 June 2020. The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0007

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If that is right, then we must reject the following necessary condition for an action falling within the scope of someone’s consent: Uptake Condition. An action A falls within the scope of the consent that X gives to Y only if Y successfully interprets X’s behaviour as motivated by an intention to release Y from their duty not to perform A.

This condition is implied by the Successful Communication Principle for consent’s scope. Since we should reject the Uptake Condition, it follows that we should reject the Successful Communication Principle. Since the Control Argument of Chapter 5 supports the Successful Communication Principle, it also follows that this argument went wrong. In this chapter, we will see why we should reject the Uptake Condition. In Section 6.1, we will consider a preliminary argument against the idea that revoking consent requires uptake. In Section 6.2, we will come to the main argument against the Uptake Condition. This argument appeals to the idea that a public commitment can be sufficient for consent in the absence of uptake with the consent-receiver. In Section 6.3, we will revisit the Control Argument and consider where it went wrong.

6.1 The Third-Party Interference Objection It is natural to expect that if uptake is necessary for consent to be successfully given, then uptake is also necessary for consent to be successfully revoked. But if uptake is necessary for revoking consent, then someone could fail in an attempt to revoke their consent. That seems worrying. Consider: Revocation Prank. Chair welcomes new staff in their office and ends these meetings by saying, ‘I look forward to our next meeting.’ Chair intends to withdraw their consent to conversing with the staff member and to the staff member’s presence in their office. Colleagues play a prank on foreign PostDoc. Colleagues tell Post-Doc that when Chair ends the conversation in this way, Chair still intends to permit Post-Doc to be in the office. Colleagues say that it is customary for a new staff member to silently admire Chair’s bookshelves after the meeting.

When Chair attempts to withdraw their consent to Post-Doc being in their office, Chair fails to secure uptake with Post-Doc. Therefore, if a

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consent-receiver’s uptake is required for revoking consent, then Chair fails to revoke their consent. This implication is implausible. Once Chair acts in a way that indicates that Post-Doc is not permitted to be in the office, Chair revokes their consent. Therefore, revoking consent does not require uptake. In so far as we have reason to expect that giving consent operates similarly to revoking consent, we have reason to reject the Uptake Condition. Let us call this the ‘Third-Party Interference Objection’. To illustrate the broader significance of this objection, consider Rae Langton’s (1993) influential work on silencing. For our purposes, the important part of Langton’s argument is that there are rape myths that influence heterosexual sexual encounters.² According to one rape myth, women are not genuinely refusing sex when they say no in response to attempts to initiate sex. If a man accepts this rape myth, then he may not interpret a woman as refusing sex when she says no. Similarly, he may not interpret her as revoking consent when she says that she wants an encounter to stop. If uptake is necessary for revoking consent, then it follows that she is continuing to permit the sexual encounter. Since that implication is implausible, we must deny that uptake is necessary for revoking consent.

6.2 The Public Commitment Objection to the Uptake Condition Here is a more direct challenge to the idea that consent requires uptake. Someone can publicly commit themselves to permitting another person’s action without that person becoming aware of this public commitment. Consider: Lawn/Sign. Laura puts up a sign on their lawn that reads, ‘Neighbours: everyone is permitted to take a shortcut across this lawn.’ Most neighbours see the sign. However, Laura’s neighbour Maria is away on a business trip.

Laura has put up the sign with the intention that the neighbours become aware of the sign. But Laura presumably has no expectation that everyone ² On the grounds that these rape myths are perpetuated by pornography, Langton argues that pornography ‘silences’ women by disabling them from performing the speech act of sexual refusal. Langton’s article has stimulated a large amount of work on refusals and whether refusals require uptake. See, e.g., Jacobson (1995); Hornsby & Langton (1998); Bird (2002); Maitra (2009); McGowan (2009); Mikkola (2011); Kukla (2014); Hesni (2018); Gordon-Smith (n.d.).

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will read it. The content of the sign is that everyone may cross the lawn. Therefore, Laura is giving consent to everyone to walk across the lawn. This includes Maria even though Maria has not read the sign. But this fact is inconsistent with the Uptake Condition. The Uptake Condition implies that Laura consents to Maria crossing the lawn only if Maria has read the sign. Therefore, we should reject the Uptake Condition. I call this the ‘Public Commitment Objection’.³ To appreciate the force of the Public Commitment Objection, we need to keep in mind the broader dialectic concerning the Successful Communication Principle. We cannot save this principle by responding that Laura’s consent has had uptake with other neighbours besides Maria. This would not be sufficient to make it the case that Laura has successfully communicated with Maria. Similarly, this would not be enough to ensure that Laura controls Maria’s behaviour via giving consent. If Maria comes home from holiday and crosses the lawn without having seen the sign, then Laura is not controlling whether Maria crosses the lawn. Therefore, the Public Commitment Objection undermines both the Control Argument for the Successful Communication Principle and the principle itself. However, the objection does not undermine versions of the Behavioural View that do not require uptake for consent. After all, putting up a sign is a type of behaviour. The Public Commitment Objection becomes more powerful when we consider a similar case in which Laura’s consent has a more focused target: Lawn/Testimony. Laura puts up a sign that reads, ‘I hereby release Maria from their duty not to walk across my lawn.’ Patricia reads Laura’s sign. Later, Patricia says to Teresa, ‘Maria has been released from their duty not to walk across Laura’s lawn.’ Maria is away on a business trip.

We should accept the following claim: Testimony Claim. What Patricia said to Teresa was true.

³ Alexander et al. (2016) make a similar objection with respect to their ‘Pool Party’ case in which a consent-giver expresses their consent to an intermediary to pass on to the consentreceiver. They take this case to support the Mental View in the debate with the Behavioural View. I respond that this objection does not undermine versions of the Behavioural View that do not require uptake in Dougherty (2019: 390).

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Now what Patricia said to Teresa is that Maria has been released from their duty not to walk across Laura’s lawn. Therefore, from the Testimony Claim, we can infer the following claim: Release Claim. Maria has been released from their duty not to walk across Laura’s lawn.

Similarly, once Patricia reads the sign, Patricia knows about the normative change brought about by the sign: Knowledge Claim. Patricia knows that Maria has been released from their duty not to walk across Laura’s lawn.

But knowledge is factive: if someone knows that p, then it is true that p. Therefore, if Patricia knows that Maria has been released from their duty not to walk across Laura’s lawn, then it is true that Maria has been released from their duty not to walk across Laura’s lawn. In other words, the Knowledge Claim also entails the Release Claim. But Laura’s consent has not had uptake with Maria, who is away on business. Therefore, consent does not require uptake with the consent-receiver. I am focusing our attention on what third-parties could know or truthfully report because this makes it easy for us to see that a consent-receiver’s uptake is unnecessary for consent. However, I am not claiming that consent is given only if either the consent-receiver or a third party is aware of the consent. Indeed, I deny that this is the case. Consider the following variant of our case: Lawn/Unread Sign. Laura puts up a sign that reads, ‘I hereby release Maria from their duty not to walk across my lawn.’ Maria approaches Laura’s lawn at an oblique angle from which it is impossible to read the sign. Since Maria walks behind the sign, Maria never reads the sign.

In light of our analysis of the Lawn/Testimony case, I assume that if Patricia had read the sign five minutes earlier, then Patricia would know that Maria has Laura’s consent, and hence it would be true that Maria has Laura’s consent. But whether Laura consents does not depend on whether Patricia or indeed anyone else has read the sign. Therefore, even if no one has read the sign, Laura has also given consent. Therefore, consent does not need to have uptake with anyone.

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6.3 Distinguishing the Wrong of Acting without Consent from Other Wrongs I find the Public Commitment Objection compelling. And yet I also find appealing the idea behind the Control Argument. This idea is that when others respect our consent, we control how they behave in our personal domains, and they wrong us by failing to be guided by our consent. How can these points be reconciled? The solution involves distinguishing two wrongs. Recall the Spam Filter case from Chapter 5: Spam Filter. Ali emails their friend Morgan to ask to borrow Morgan’s car for the rest of the day. Morgan sends an email in response saying that it is fine for Ali to use the car, but this email gets caught in Ali’s spam filter. Meanwhile, Nic is unaware of Morgan’s attempt to send the email, and Nic does not know whether Morgan is willing for Ali to use the car. As a prank, Nic logs onto Morgan’s account and writes an email saying that it is fine for Ali to use the car. This email evades the spam filter and reaches Ali’s inbox. Ali reads Nic’s email and borrows the car.

According to the Control Argument, Ali wrongs Morgan in the respect that Ali acts in Morgan’s personal domain in a way that Morgan does not control. If this were the wrong of acting without someone’s consent, then uptake would be necessary for consent. However, we have just seen that uptake is not necessary for consent. Therefore, while Ali wrongs Morgan, Ali does not commit the wrong of acting without Morgan’s consent. The mistake in the Control Argument is that the argument misidentifies the wrong of acting without someone’s consent by confusing it with a separate wrong. Here is another case that shows that these two wrongs are separate: Lawn/Forgetful. Laura tells Vera that Vera may walk across Laura’s lawn. Vera hears Laura loud and clear. At no point does Laura change their mind about whether to release Vera from this duty. However, Vera forgets that Laura has said this. Vera takes a shortcut across Laura’s lawn.

In Lawn/Forgetful, Vera has Laura’s consent to walk across the lawn. However, Laura fails to control Vera’s behaviour, as Vera’s behaviour is not causally influenced by Laura’s consent. Therefore, Vera wrongs Laura in the respect that Vera prevents Laura from rightfully controlling who walks on the lawn.

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The Lawn/Forgetful case also exemplifies a third type of wrong. Vera acts in a way that expresses disregard for Laura’s authority to control the use of their lawn. Expressing disregard is a way that Vera wrongs Laura. However, Ali does not express disregard towards Morgan in Spam Filter. Meanwhile, Ali does wrong Morgan by acting in Morgan’s domain in a way that Morgan does not control. Therefore, these wrongs are distinct. Putting these points together, we can distinguish three wrongs that arise from the following actions: Acting Without Being Released. Y acts in X’s personal domain while X has not released Y from a duty not to act in this way. Acting With Disregard. Y acts in X’s personal domain while Y does not believe that X has released Y from a duty not to act in this way. Acting Without Being Controlled. Y acts in X’s personal domain while X fails to control Y’s behaviour in X’s domain.

The wrong of Acting Without Being Released features in neither the Lawn/ Forgetful case nor the Spam Filter case. The wrong of Acting With Disregard features in the Lawn/Forgetful case, but not the Spam Filter case. The wrong of Acting Without Being Controlled features in both cases. Once we have distinguished these wrongs, we should assess the gravity of the wrong of Acting Without Being Controlled. Returning to the Spam Filter case, we can distinguish three questions. This is the first question: Wronging Question. Does Ali wrong Morgan by using the car?

Since Acting Without Being Controlled is a way of wronging someone, we should answer yes to the Wronging Question. Then we face a second question: Explanatory Question. In virtue of what does Ali wrong Morgan?

In light of the Control Argument, we should say that Ali wrongs Morgan in virtue of using Morgan’s car while Morgan is failing to control whether Ali uses the car. This brings us to a third question: Gravity Question. How gravely does Ali wrong Morgan?

This is not a question about Ali’s culpability as an agent, as we know that Ali acts innocently. Instead, it is a question about the size of the grievance that

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Morgan has with respect to how Ali’s behaviour has wronged Morgan. Arguably, it would be ideal for Morgan were Morgan to control Ali’s use of the car. But Morgan is not left with a strong grievance about Ali’s behaviour given that Morgan was trying to permit this behaviour. Therefore, the wrong of Acting Without Being Controlled is a minor wrong.

6.4 Summary The central conclusion of this chapter is that we should reject the following necessary condition for the scope of consent: Uptake Condition. An action A falls within the scope of the consent that X gives to Y only if Y successfully interprets X’s behaviour as motivated by an intention to release Y from their duty not to perform A.

This condition is implied by the Successful Communication Principle for the scope of consent. Since we must reject the Uptake Condition, we must also reject the Successful Communication Principle. However, since the Behavioural View is not committed to the Uptake Condition, it does not follow that we must reject the Behavioural View. Why must we reject the Uptake Condition? For a start, uptake is not necessary for revoking consent (Section 6.1). Someone revokes their consent by expressing that they are revoking their consent even if third parties prevent the revocation from having uptake with the consent-receiver. This situation is exemplified by rape myths that prevent revocations of sexual consent from having uptake. Moreover, someone can give consent by making a public commitment even though the consent-receiver is not yet aware of this commitment (Section 6.2). By becoming aware of this public commitment, a bystander can know that the permission has been granted. The bystander can also pass on this knowledge in testimony. Since knowledge is factive, it follows that the consent has been given. Since this can happen without the consentreceiver being aware of the consent, it follows that uptake is not necessary for consent. This is the Public Commitment Objection to the Uptake Condition. This conclusion is inconsistent with the conclusion of the Control Argument from Chapter 6 (Section 6.3). To explain where the Control Argument went wrong, we should distinguish two wrongs. On the one hand, an agent can

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wrong a victim by acting in their personal domain in a way that the victim does not control. On the other hand, an agent can wrong a victim by acting in their personal domain without their consent. For an agent to avoid wronging someone in the first way, their consent must have uptake with the agent. That is the insight at the heart of the Control Argument. But uptake is not necessary for the agent to avoid wronging them in the second way. That is the lesson that we learn from the Public Commitment Objection. The Control Argument went wrong by conflating the wrong of preventing someone from controlling what happens in their personal domain with the wrong of acting without that person’s consent.

7 Why We Should Reject the Intention Condition How often do people read the terms and conditions when they sign up for services? Or read through all the clauses of contracts? On occasion, I have read the terms of a flat lease, and these have not been the most exciting moments of my life. This is because the clauses are tedious rather than familiar. Because I tend not to give much thought to mildew or locks, it had not previously occurred to me that I would be obligated to report mildew to a landlord or that I would be obligated not to change the locks of my flat. Consequently, reading these clauses was informative, and if I had skipped them, then I would have undertaken certain obligations without realizing that I had done so. Why should consent be any different? My view is that if I sign a medical consent form, then I can consent to certain actions without realizing that I am doing so. This scenario is exemplified by the introductory case of this book, in which I signed a consent form for a biopsy without knowing what a biopsy is. Since I did not know what a biopsy is, I was unable to form an intention to permit a biopsy. Since I consented to a biopsy without intending to permit a biopsy, the following claim is false: Intention Condition. An action A falls within the scope of the consent that X gives to Y only if X intends to release Y from their duty not to perform A.

Rejecting the Intention Condition is significant for the question of what control we have over our consent. Since the condition is false, we do not always intentionally control the scope of our consent. Moreover, rejecting the condition is important for our inquiry into the scope of consent. The Intention Condition is implied by the Successful Communication Principle, according to which the scope of someone’s consent is determined by what the consent-giver successfully communicates to the consent-receiver about the consent-giver’s permissive intentions. The Intention Condition is also implied by the Permissive Intention Principle, according to which the The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0008

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scope of someone’s consent is determined by their permissive intentions. Therefore, by rejecting the Intention Condition, we are rejecting both these principles. We will develop this case against the Intention Condition by looking at two sets of objections. In Section 7.1, we will consider objections based on cases in which people consent while falsely believing that they do not validly consent. In Section 7.2, we will consider objections based on cases in which people make mistakes about what they are consenting to.

7.1 The False Belief Objection The first type of objection to the Intention Condition concerns consentgivers who falsely believe that they are not giving valid consent. Because these people believe that they do not validly consent, they do not intend to grant permissions. But because their beliefs are false, they do validly consent. One way that this can happen is that a consent-giver communicates insincerely by misrepresenting their intentions. To illustrate this scenario, consider a modified version of Neil Manson’s (2016: 3323–4) case: Motorcycle. Rider has just bought a vintage motorcycle. They mistakenly believe that it does not work. Boss asks if they may take it for a ride. Rider is unwilling to permit Boss to use the motorcycle. Because Rider accepts the Mental View of consent, Rider believes that this unwillingness makes it the case that Boss is not permitted to use the motorcycle. Therefore, Rider thinks that Boss is not permitted to use the motorcycle whatever Rider says. To gain favour with Boss, Rider says, ‘Sure, no problem. Why not take it for a spin?’ Rider says this while expecting that the bike will not start. Boss starts the motorcycle and takes it for a ride.¹

¹ Since Manson’s target is Alexander’s (1996, 2014) view that consent involves mentally forgoing an objection to someone’s behaviour, Manson’s version of the case is tailored to being a counterexample to that view. More generally, Manson (2016: 3323) identifies insincere communication as problematic for the Mental View given its commitment to the following thesis: Independence Thesis. There is a logical independence between consent behaviour and the normatively efficacious acts of consent. The behavioural act could be made without the accompanying (mental) normatively efficacious act, and the normatively transformative mental act could be performed without the behavioural act. For related discussion of how insincerity causes trouble for views that stress the mental states of a consent-giver, see Bolinger (2019: 190–3).

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Rider does not intend to permit Boss to use the motorcycle. Yet Rider communicates in a way that clearly indicates that Rider intends to permit Boss to use the motorcycle. Therefore, Rider gives Boss consent to use the motorcycle without intending to permit Boss to use the motorcycle.² The fact that Rider consents to Boss using the motorcycle is significant in two respects. First, the Motorcycle case is a counterexample to key versions of the Mental View. Rider consents while lacking a permissive intention. Therefore, the case is a counterexample to the version of the Mental View that claims that consent consists in a permissive intention. Second, since Rider consents, the question arises as to which actions fall within the scope of their consent. Boss riding the motorcycle falls within its scope. However, Rider does not intend to permit Boss to ride the motorcycle. Therefore, the Motorcycle case is also a counterexample to the Intention Condition for the scope of consent.³ The Motorcycle case causes trouble for the Intention Condition because of the content of the intention required by that condition. Specifically, the Intention Condition states that a consent-giver must have an intention to release someone from a duty. As such, the Motorcycle case does not cause trouble for a slightly different condition. When we discussed the Mental View, we noted that a defensible principle for the scope of consent focuses on the consent-giver’s communicative intentions.⁴ This principle implies the following necessary condition for an action falling within the scope of someone’s consent:⁵

² Manson offers a similar argument against the claim that an intention to release someone from a duty is sufficient for consent. Manson considers a case in which someone inwardly resolves to consent to a kiss from a suitor but outwardly dissents. Nonetheless, the suitor kisses this person. Manson (2016: 3324) claims that ‘[t]his is not mere blameworthiness. To go against someone’s explicit refusal wrongs them, and fails to respect them as another agent with the power to determine whether or not it is permissible for another to touch her.’ ³ It is easy to modify a case like Motorcycle into a case in which a consent-giver intends to permit some actions but not others. Consider: Collection. The facts are identical to the Motorcycle case except for the following differences. Rider’s vintage motorcycle is part of a collection. Apart from the vintage motorcycle, all the motorcycles are modern. Rider says to Boss, ‘Sure, no problem. Why not come round this afternoon and take any motorcycle in my collection for a spin?’ Rider only intends to permit Boss to use the modern motorcycles. Boss using the vintage motorcycle falls within the scope of Rider’s consent. However, Rider only intends to permit Boss to use the modern motorcycles. Therefore, Collection is also a counterexample to the Intention Condition. ⁴ This principle would neatly pair with Tadros’s (2016: 209) view that to consent is to attempt to communicate that one is releasing someone from a duty. ⁵ This necessary condition is also implied by a version of the Behavioural View, according to which someone consents in virtue of getting the consent-receiver to successfully infer the consent-giver’s communicative intentions from the consent-giver’s behaviour.

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Communicative Intention Condition. An action A falls within the scope of the consent that X gives to Y only if X intends to communicate to Y that X releases Y from their duty not to A.

Since Rider intends to communicate that Boss may use the motorcycle, the Motorcycle case is not a counterexample to this condition. However, nearby cases cause trouble for the Communicative Intention Condition. Consider: Telepathy. Deluded mistakenly believes that they can telepathically broadcast their thoughts. Deluded is having a drink with Date in a bar. Stranger asks Deluded whether they can try on Deluded’s hat. Wanting to appear generous to Date, Deluded says, ‘Sure! Help yourself.’ However, Deluded attempts to telepathically communicate to Stranger, ‘Don’t listen to what I am saying out loud! You are not allowed to take the hat!’

This is an odd case, and so we may not have confident intuitions about it. Yet I am inclined to think that Stranger has Deluded’s consent to wear the hat because Deluded explicitly says out loud that Stranger may wear it. If that is right, then the Communicative Intention Condition is in trouble. While Deluded intends to utter an English sentence that signifies that they are permitting the use of the hat, Deluded does not intend to communicate a permission. Instead, Deluded intends to communicate dissent via telepathy. Compare a variant of the case in which Deluded whispers in Stranger’s ear, ‘Don’t take seriously what I am about to say loudly! You are not allowed to take the hat!’ After this whisper, Deluded says loudly in Date’s earshot, ‘Sure! Help yourself.’ In that variant of the case, Deluded does not intend to communicate that Stranger is permitted to wear it. Similarly, in the Telepathy case, Deluded does not intend to communicate that Stranger is permitted to wear the hat. Therefore, on the assumption that Deluded consents to Stranger wearing hat, the Telepathy case is a counterexample to the Communicative Intention Condition. These cases illustrate a more general phenomenon. Someone can have odd intentions because they have false beliefs. Because of these odd intentions, this person may not intend to permit an encounter while deliberately behaving in a way that indicates that they are permitting the encounter. When this person’s intentions diverge from what their behaviour indicates, it is their behaviour that determines whether they consent and what they consent to.

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There is a third way that false beliefs can lead someone to consent to an action while intending not to permit the action: the consent-giver can have false beliefs about whether their consent is valid. Consider a modified version of Hallie Liberto’s (2021: 228–9) case: Cleaning. Girlfriend has been cleaning Boyfriend’s apartment during the daytime, but this time is no longer convenient for her. Girlfriend says that she will stop cleaning the apartment unless Boyfriend lets her enter after 9 p.m. Boyfriend falsely believes that he is entitled to Girlfriend cleaning his apartment at the time of his convenience. Consequently, Boyfriend thinks that Girlfriend is making an illegitimate threat. On the grounds that he is complying with an illegitimate threat, Boyfriend thinks that his consent is invalid. Because Boyfriend thinks that his consent is invalid, he does not intend to give Girlfriend a permission to enter after 9 p.m. Because Boyfriend thinks that it is common knowledge that his consent is invalid, he also does not intend to communicate that Girlfriend is released from this duty.⁶

Boyfriend validly consents to Girlfriend entering his apartment after 9 p.m. But Boyfriend neither intends to permit Girlfriend to enter the apartment after 9 p.m., nor intends to communicate that she is permitted to enter the apartment after 9 p.m. Consequently, the Cleaning case is a counterexample to both the Intention Condition and the Communicative Intention Condition. There are other reasons why someone might falsely believe that their consent is invalid. For example, someone could mistakenly believe that they lack the competence that is necessary for releasing another person from a duty.⁷ Consider: Tattoo/Sober. Hipster wants a tattoo. To build up courage, Hipster drinks ten bottles of Innocence beer. Hipster does not realize that Innocence beer is alcohol-free. Although Hipster feels clear-headed, they put this down to adrenaline, and they assume that they are drunk. Hipster heads to the

⁶ Liberto offers this case as part of their critique of Alexander’s (1996) version of the Mental View of consent. ⁷ Similarly, Westen (2004: 31–2) points out that someone could give valid legal consent while falsely believing that they are too young to give valid legal consent.

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tattoo studio and says to Tattooist, ‘Since I have just drunk ten bottles of Innocence beer, I am too drunk to permit you to tattoo me. But if you’re willing to give me the tattoo, then I promise that I won’t tell anyone. I would like you to tattoo me.’ Since Tattooist knows that Innocence beer does not contain alcohol, Tattooist correctly assumes that Hipster is sober.

Because Hipster believes that they are too intoxicated to give Tattooist a permission to tattoo them, Hipster does not intend to give Tattooist this permission. Because Hipster is communicating that they are too drunk to give this permission, Hipster is not trying to communicate that they are creating this permission. All the same, Hipster does create the permission by soberly requesting the tattoo. Perhaps, Tattooist has a duty to tell Hipster that Hipster is sober. But if Tattooist were to go ahead with the tattoo, then Hipster could not later complain that they were tattooed without their valid consent. There is a fourth way that someone’s false beliefs may cause them to give consent while lacking a permissive intention: they may have false beliefs about which rights they have. Consider: Table. Host and Neighbour live in flats with a communal garden. Their rental agreements state that only Host is allowed to use a garden table near to their door. Host falsely believes that the rental agreements state that Neighbour is also allowed to use the table. Host says to Neighbour, ‘I know that you do not need my permission to use the table, but would you like to have a drink at the table with me?’⁸

Since Host believes that Neighbour has no duty not to use the table, Host neither intends to release Neighbour from a duty not to use the table, nor intends to communicate that they are releasing Neighbour from this duty. Yet Host consents to Neighbour using the table. The same scenario can arise for bodily rights: Patriarchal Marriage. Wife believes that her wedding vows have irrevocably waived her sexual rights against Husband. Several months into the

⁸ This case is structurally similar to a case of Owens’s (2012) in which someone is unaware that they own an umbrella and suggests to someone else that they use it.

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Wife explicitly says that Husband is not under a duty not to have sex with her. Consequently, Wife neither intends to release Husband from this duty, nor intends to communicate that she is releasing him from this duty. Nevertheless, Wife consents to sex with Husband. In response to these objections, an advocate of the Intention Condition could bite the bullet and deny that consent is given in these cases. To make this option more attractive, an advocate of the Intention Condition could say that the relevant actions are permissible for a different reason: if these individuals were aware that they can give valid consent, then they would hypothetically consent to these actions.¹⁰ The hypothetical consent response is unappealing for at least three reasons. First, this response will not work for all of the objections. In the Motorcycle case, Rider is unwilling to permit Boss’s use of the motorcycle. Therefore, if Rider were aware that the motorcycle does work, then Rider would not give consent to Boss. Similarly, in the Telepathy case, if Deluded knew that they could not communicate telepathically, then they would not give consent to Stranger. Second, the hypothetical consent response is unattractive because hypothetical consent is typically insufficient for creating permissions for high-stakes bodily interactions like sex or getting a tattoo. Third, with respect to all these cases, when we judge that the relevant agent is released from their duty, we are unlikely to be influenced by reasoning about what happens in a counterfactual scenario. Instead, we are likely to be moved by the consideration that in the actual world the relevant individual makes and expresses a certain decision. For example, in the Patriarchal Marriage case, it is Wife’s actual proposal of sex that explains why the sex is permissible. As well as being unappealing on its own merits, the hypothetical consent response is dialectically unhelpful for an advocate of the Mental View. The more a theory relies on hypothetical consent to handle problem cases, the ⁹ Chadha (2020) independently devised the same case in the context of researching related issues. Tadros (2016) discusses a similar case of an enslaved person who has internalized oppressive norms that lead them to believe that their dominator does not owe them any duties with respect to their body. Tadros notes that this case provides a challenge to views of consent according to which someone creates permissions by intending to create permissions. Tadros credits this point to Daniel Viehoff in conversation. ¹⁰ Tadros (2016) offers this response with respect to the slavery case mentioned in n. 9. For discussion of hypothetical consent, see Enoch (2017).

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more the theory undermines the appeal of the Autonomy Argument that motivates the Mental View. That Autonomy Argument is based around the ideal that we should maximally control our normative boundaries through our actual intentions. But the more it turns out that these boundaries are regulated by hypothetical consent, the less it turns out that we actually control our normative boundaries.

7.2 The Mistake Objection So far, we have looked at cases in which the consent-giver and the consentreceiver are on the same page about which actions are covered by a token of consent. The next objection concerns cases in which consent-givers make mistakes and consequently do not accurately express their permissive intentions in their behaviour. The scope of their consent is not determined by their intentions but by the public meaning of their behaviour. I call this the ‘Mistake Objection’. This scenario can result from the consent-giver lacking information about what they are consenting to. Consider: Parking. Driver’s car is a model 206. Because Resident mistakenly thinks that Driver’s car is a model 306, Resident is explicitly thinking of a model 306 when forming their intention about which duties to release Driver from. Consequently, Resident intends to release Driver from a duty not to park a model 306 in Resident’s parking space. Resident expresses this intention by saying, ‘You may park in my space.’ Driver parks their model 206 there.

Since Resident does not intend to permit Driver to park a model 206, the Intention Condition implies that parking a model 206 lies outside the scope of Resident’s consent. But that implication is implausible. Resident has released Driver from their duty not to park a model 206 by intentionally uttering the sentence ‘You may park in my space.’ In this context, the appropriate interpretation of this utterance covers the parking of a model 206. The public meaning of Resident’s behaviour determines what they consent to. When discussing earlier cases, we noted that an advocate of the Intention Condition has the option of biting the bullet by conceding that actual consent is not given to the action in question. We also noted that the

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advocate of the Intention Condition could try to make that concession more palatable by invoking hypothetical consent to say why this action is permissible. A similar strategy can be applied to the Parking case. If Resident were aware that Driver owned a 206, then Resident would hypothetically consent to Driver parking a 206. An advocate of the Intention Condition could argue that this hypothetical consent acts as a surrogate for actual consent. This response is not persuasive. It is more intuitive to think that Resident gives actual consent to Driver parking a model 206 in virtue of saying to Driver, ‘You may park in my space.’ That is, the consent is given in virtue of what actually happens rather than in virtue of what hypothetically would happen in a counterfactual situation. To press this point, we can stipulate that Resident hypothetically would let Driver store boxes in the parking space. Therefore, with respect to Resident’s hypothetical consent, parking a model 206 and storing boxes are on a par. However, Resident releases Driver only from their duty not to park their car in the space. This is explained by the fact that by saying, ‘You may park in my space,’ Resident actually consents to Driver parking in the space. Moreover, there are other cases where hypothetical consent cannot come to the rescue: Date Mistake. A rental agreement states that Landlord needs Tenant’s permission to show the flat to prospective tenants. Tenant is only willing for the flat to be shown on Tuesdays. That is the day that Tenant works from home, and Tenant is only comfortable with visitors looking at the flat when Tenant is in the flat. Tenant has not explained this preference to Landlord. Landlord asks if it is ok to show the flat on the 30th. Since Tenant mistakenly believes that the 30th is a Tuesday, Tenant says, ‘Sure, you can show prospective tenants on the 30th.’ Actually, the 30th is the Monday, and so Landlord shows the flat to prospective tenants while Tenant is out of the flat.

Landlord is permitted to show the flat on Monday without Tenant’s presence even though Tenant does not intend to communicate that they are authorizing this visit. However, if Tenant knew that the 30th is a Monday, then Tenant would not communicate consent to a visit on this day. Therefore, Landlord’s permission to show the flat cannot be explained in terms of Tenant’s hypothetical consent. Instead, Landlord’s permission is explained by Tenant’s actual consent. There are similar examples along these lines:

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Identity Mistake. Host is throwing a dinner party. Host would like Attractive to attend. Since Host does not have Attractive’s contact information, Host asks Mutual Acquaintance to pass on an invitation. Since Host mistakenly thinks that Attractive’s name is ‘Robin’, Host says to Mutual Acquaintance, ‘Please invite your friend Robin.’ In fact, Attractive’s name is ‘Bobby’. However, Mutual Acquaintance does have a friend called Robin, and Mutual Acquaintance did once introduce Host to Robin. Consequently, Mutual Acquaintance tells Robin that Host has invited them to the party. If Host had been clear about everyone’s names, then Host would not have invited Robin.

Robin is permitted to attend the party even though Host will realize that this is not the person whom Host intended to invite. Robin’s permission cannot be explained in terms of Host’s hypothetical consent. If Host’s confusion were cleared up, then Host would not consent to Robin’s presence. Instead, Robin’s permission to attend the party is explained by the fact that Host actually consented to Robin’s presence in virtue of saying, ‘Please invite your friend, Robin.’ We should analyse the Date Mistake case and the Identity Mistake case in the same way that we analyse the Parking case. The public meaning of the consent-givers’ behaviour differs from their private intentions. With respect to determining the scope of their consent, the public meaning of their behaviour wins the day. From this, it follows that the Intention Condition is false. In response, an advocate of the Intention Condition might argue that the relevant consent-givers do have intentions to permit the actions in question. For example, the advocate of the Intention Condition might say that Host has an intention to invite a friend of Mutual Acquaintance who is called ‘Robin’. For this reason, the advocate of the Intention Condition could maintain that Host did intend to invite Robin. This response is inadequate. For a start, it will not handle the Parking case, in which it is stipulated that Resident’s intention is an intention to permit Driver to park a model 306. Similarly, in the Identity Mistake case, we need not assume that Host has an intention to invite a friend of Mutual Acquaintance who is called ‘Robin’. Indeed, to press the Mistake Objection, we should stipulate that this is not the content of Host’s intention. Instead, we should imagine that Host brings Attractive to mind by recalling their visual appearance, and Host forms an intention to permit this very person. We can imagine that Host forms this intention before attempting to

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remember this person’s name. It is true that when Host attempts to express this intention, Host utters the sentence, ‘Please invite your friend Robin.’ But the content of someone’s mental states need not align with the content of the sentences that they utter when expressing these mental states. For example, these contents do not align when the speaker is unaware of the reference of the terms that they use to communicate. In the case under discussion, Host is unaware of the reference of the name ‘Robin’. I see the Mistake Objection as a compelling objection to both the Successful Communication Account and the Mental Account. I suggest that the reason why the force of this objection has not yet been noticed is that the debate about what constitutes consent has not paid sufficient attention to the issue of the scope of consent. Once we pay attention to this issue, we can see that the Mental Account is committed to an implausible principle for the scope of consent. The Mental Account’s only resources for formulating a principle of the scope of consent are the mental attitudes of the consent-giver. But these attitudes do not determine the scope of the consent. Instead, the scope is determined by consent-giver’s public behaviour.

7.3 Summary In this chapter, we have seen why we must give up the following claim: Intention Condition. An action A falls within the scope of the consent that X gives to Y only if X intends to release Y from their duty not to perform A.

This claim specifies a necessary condition for the scope of someone’s consent. The necessary condition is entailed by both the Permissive Intention Principle and the Successful Communication Principle. The Permissive Intention Principle is a commitment of the Mental Account, and the Successful Communication Principle is a commitment of the Successful Communication Account. Since we should reject the Intention Condition, we should also reject the Mental Account and the Successful Communication Account. We looked at two objections to the Intention Condition. The first objection is the False Belief Objection. This concerns the possibility that a consent-giver lacks a permissive intention because they express their consent while falsely believing that this expression does not constitute valid

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consent (Section 7.1). We considered four types of false belief that could lead to this scenario. First, the consent-giver might have a false belief about whether consent is given by insincere communication. Second, the consentgiver might have a false belief about how they can communicate. Third, the consent-giver might have a false belief about whether their consent is valid. Fourth, the consent-giver might have a false belief about which rights they have. When the consent-giver engages in behaviour that indicates that they permit an action without intending to permit this action, their behaviour determines whether they consent and what they consent to. The second objection is the Mistake Objection. This concerns consentgivers who make mistakes when communicating consent (Section 7.2). Because of these mistakes, the consent-givers do not intend to permit certain actions, even though their behaviour expresses permission for the actions. Again, there are various ways that this can happen. A consent-giver might be confused about the model of a friend’s car, about someone’s name, or about whether the thirtieth day of the month is a Monday. When the consentgiver’s intentions diverge from their public behaviour, the scope of their consent is determined by the behaviour. Since the Intention Condition implies otherwise, we must reject the Intention Condition.

8 The Expression of Will View I Interpersonal Justification

David Hume (1978: 524) famously found consent and promises puzzling: ’tis one of the most mysterious and incomprehensible operations that can possibly be imagined, and may even be compared to transubstantiation, or holy orders, where a certain form of words, along with a certain intention, changes entirely the nature of an external object, and even of a human creature.

To avoid the conclusion that consent and promises require magical powers, Hume argued that these were simply a matter of human convention. Hume thought that we approve of this convention because it is useful for society, and consequently we judge people virtuous for abiding by the convention. Hume’s conventionalism is implausible for consent. In a state of nature, there are no conventions, and yet the permissibility of having sex with someone depends on whether they validly consent.¹ But even if Hume’s conventionalism is misguided, Hume has still left us with a puzzle about why a normative change is brought about by uttering words like, ‘It’s okay for you to touch my arm.’ To explain why these words have this normative effect, it is not enough to claim that this effect serves various interests of ours.² Pointing out the beneficial consequences of our having a certain normative power does not make any less mysterious how such a power operates. By analogy, we might be puzzled how a swarm of insects can coordinate their behaviour with each other. This puzzle concerns how the coordination occurs. The puzzle is not solved by finding interests of the insects that are served by coordination.

¹ For an argument that promises are possible in the state of nature, see Scanlon (1990). ² Consequently, we cannot solve Hume’s puzzle with Owens’s (2012: 172–82) idea that consent serves a normative interest of ours, namely a permissive interest that we have in being able to grant people permissions. The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0009

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Similarly, even if we identify interests that are served by our ability to consent, we still face a further question of how consent has its normative effects. To dispel the illusion of moral magic, we should situate consent within a broader view of the moral significance of the choices that we make and express to others. The most promising approach explains this in terms of interpersonal justification. Often, others need to justify to us how they treat us. One justificatory strategy is to appeal to what we have said. This places moral significance on our words without implying that these words have magical powers. In this chapter, I will follow this approach and start to develop the view of consent that I endorse: the ‘Expression of Will View’ of consent. In Section 8.1, I situate consent alongside forfeiture and waivers as ways that we can give up complaints against other people causally contributing to harms that we suffer. In Section 8.2, I argue that what distinguishes consent from forfeiture and other waivers is that consent involves expressing one’s will for how another person acts. In Section 8.3, I defend the Expression of Will View’s claim that consent involves a deliberate expression of one’s will.

8.1 Forfeiture, Waivers, and Consent in Interpersonal Justification To develop a view of consent as the expression of someone’s will, I will begin with a bigger-picture view of how choices and expressions of choices feature in interpersonal justification.³ This type of justification concerns how an agent could justify to a patient the way that the agent has treated the patient. We can elaborate the notion in terms of complaints. As we noted at the beginning of our inquiry, we each have a personal domain, which includes our bodies and our property. We have interests in avoiding certain types of interference from others in our personal domains. Suppose that an agent interferes in your personal domain by pinching you. You would have a ³ This view draws on insights from Thomas Scanlon’s (1986, 1998) seminal work on interpersonal justification. For an insightful recent discussion of interpersonal justification, see Frick (2016). Scanlon endorses the comprehensive theory that for an action to be permissible it is both necessary and sufficient that the agent could justify this action to all other individuals. For the purposes of our discussion, we can remain neutral on whether this theory is correct. We need only make the less controversial assumption that normally the fact that an agent could not justify their behaviour to a patient counts in favour of that behaviour being, all things considered, impermissible.

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special grievance against them. While a bystander would also be entitled to object that the agent acted impermissibly, you alone would have the personal complaint that the agent mistreated you. Since this complaint would be grounded in your authority to determine how someone acts in your domain, it would be a ‘domain-based’ complaint. You have a domainbased complaint against someone if they could not justify to you how they act in your domain. When you have a complaint, you could voice it by performing certain speech acts. But whether or not you perform any speech act, you would have legitimate grounds for objecting to the pinch. I have in mind these grounds, rather than their expressions in speech acts, when I say that you would have a personal ‘complaint’ against the pinch. You can have grounds for complaint even without being aware that you do. For example, suppose that you do not realize that your neighbour has tricked you by showing you fraudulent documents that state that they own the fence dividing the front gardens of your properties. In fact, it is rightfully your fence. Your neighbour then paints the fence a colour you hate. You would have a complaint against your neighbour’s action even though your evidence indicates that they have not mistreated you. Similarly, your neighbour would not be able to justify to you painting the fence. In this respect, an action can be unjustified even though your evidence indicates that it is justified. Consequently, we should not think of interpersonal justification as addressed to a patient on the basis of the patient’s limited evidence. Instead, for an action to be successfully justified to the patient, the justification must bring to light all the relevant factual circumstances. Sometimes, an agent could provide this justification to a patient, even when the agent causes the patient harm. For example, if an aggressor culpably poses a threat of harm to an agent, then the agent could justify harming the aggressor in self-defence. Consider: Taser. Murderer is on a killing spree and lunges at Victim with a knife. The only way for Victim to defend themselves is to taser Murderer. Victim tasers Murderer.

By engaging in unjustified aggression, Murderer makes themselves liable to defensive harm.⁴ Specifically, Murderer forfeits their right against necessary ⁴ For an account that appeals to the notion of liability with respect to permissible defensive harm in the context of war, see McMahan (2009).

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and proportionate harm that Victim imposes in self-defence. Because Murderer forfeits this right, Victim could justify to Murderer causing such a harm. Since it is necessary and proportionate for Victim to harm Murderer with the Taser, Murderer has no complaint against Victim causing them this harm. Negligence is another way for a patient to forfeit a complaint against being harmed by an agent. For this negligence to justify the agent in causing the harm, the agent must have an acceptable reason for creating the harm or the risk of harm in the first place. Often, this justification also requires that the agent has given the patient a suitable warning. If the patient negligently ignores the warning and consequently suffers the harm, then the patient may forfeit their complaint against the harm. Consider: Darts. Host tells Guest that Host is about to mention an important house rule. Unfortunately, Guest gets bored by people’s warnings, even when Guest has been told that the warning is important. So Guest stops paying attention and returns to daydreaming about their sports team winning its big game. Host warns Guest not to enter their office when the door is closed because that means that Host is practising darts to prepare for a tournament, and the dartboard is hung against the door. This is the only place in the house with enough room for Host to practise. Because Guest is not paying attention, Guest does not take in Host’s warning, despite nodding along on autopilot and saying, ‘I understand.’ Later Guest opens the door and is hit in the arm by a dart thrown by Host.

Host has an acceptable reason for creating the small risk that someone is hit by a dart. In addition, Host has taken all reasonable measures to warn Guest, and Host has good evidence that Guest had understood this warning. Finally, Guest was hit by the dart because Guest behaved negligently. Consequently, Guest does not have a complaint against Host hitting them with the dart. In the Darts case, Guest loses a complaint against being harmed even though Guest never chose to expose themselves to a risk of harm. Guest never made this choice because their negligence left them unaware of the risk. In other cases, someone loses their complaint against being harmed by choosing to expose themselves to the harm: Hazardous Waste. Officials discover that it is necessary to dig up and relocate hazardous waste. Officials take care to dig the waste up in a way

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that minimizes the danger posed to the public. Even so, it remains dangerous for people to walk around the excavation site, and so Officials put up a fence with a sign that warns people of the danger. Pedestrian is undeterred by the sign and climbs over the fence because they want to take a shortcut home. Pedestrian has bad luck and suffers a harm as a result of being exposed to the waste.⁵

Pedestrian has no complaint against Officials even though Officials’ actions have causally contributed to Pedestrian suffering a harm. This is because Officials could justify to Pedestrian causing this harm. One of Scanlon’s insights is that this justification does not simply concern facts about Pedestrian’s psychology at the time at which Pedestrian made their choice. In other words, the justification concerns more than the mere fact that Pedestrian made a choice in the knowledge that there were harms associated with the option that they chose. In addition, the justification concerns how Officials behaved before Pedestrian made their choice. In particular, Officials had an acceptable reason for digging up the waste, and Officials took all reasonable steps both to minimize the danger and to warn Pedestrian of the danger. Given those background facts, Officials have carried out their duties to put Pedestrian in a good position to choose whether to enter the site. Consequently, the fact that Pedestrian chose to take the risk indemnifies Officials from responsibility for the harm. The same reasoning explains how responsibility is transferred when people sign certain waivers. For example, by signing a waiver form, a climber can indemnify the owners of a climbing gym for harms that the climber suffers when climbing in the gym. These waivers are similar to consent in the respect that consent involves a waiver. But these are different moral phenomena in the respect that consent involves waiving a right against another person’s action. To sign a waiver form at the gym is not to authorize any particular action of the gym owners. There are important differences between forfeiting a right through wrongdoing, forfeiting a right through negligence, and waiving a right

⁵ This is one of Scanlon’s (1998: 256) examples. I interpret Scanlon as holding that the fact that Officials gave Pedestrian a suitable opportunity to choose whether to enter the site is sufficient for Pedestrian lacking a complaint. Even if Scanlon is correct on this point, I claim that a further moral difference is made by Pedestrian voluntarily assuming the risk of the harm. Scanlon recognizes that some types of interpersonal justification require actual choices. For example, for a contract to be binding, it is not enough that all parties have been given the opportunity to agree to the contract. In addition, they must actually have agreed to it.

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through a voluntary assumption of risk. However, these phenomena are alike in the respect that an agent could appeal to the patient’s behaviour in order to justify causally contributing to a harm suffered by the patient. This justification has the following four components. First, the agent has acceptable reasons for engaging in the activity that caused the harm. In our examples, these were reasons to defend oneself, reasons to practise a sport, or reasons to relocate toxic materials. Second, if the agent acts on these reasons, then they expose the patient to a risk of harm. Third, the patient had a reasonable opportunity to avoid suffering the harm. Fourth, the patient did not make use of this opportunity. Given these four facts, the patient lacks a complaint against the harm. In other words, the agent could justify causing the harm to the patient. The same is true of consent to harm. Consider: Mauling. Zookeeper has been mauled by a tiger, and their limb is badly damaged. Surgeon proposes three options. First, Surgeon could do nothing. This would expose Zookeeper to risks of infection and risks of complication in recovery. Second, Surgeon could operate in such a way that Zookeeper would retain the limb. However, Zookeeper would then need to take part in a long programme of physical therapy, and Zookeeper would never regain the full use of the limb. Third, Surgeon could amputate the limb.

The third option of amputation would constitute a harm. The default is that Surgeon could not justify causing this harm to Zookeeper. But this default can be superseded by Zookeeper giving consent. Assuming that the consent were free, informed, and competent, the consent would constitute a justification for Surgeon to amputate the limb. This justification would partly concern Zookeeper’s opportunity to decline the surgery.⁶ Given the risks that accompany declining the surgery, this opportunity may not be attractive to Zookeeper. But Surgeon cannot make this opportunity any more attractive. Therefore, the opportunity is a reasonable opportunity in the circumstances. Accordingly, if Zookeeper consents to the amputation, then Zookeeper gives up a complaint against Surgeon causing the harm of removing the limb. ⁶ Another part of the justification is that Surgeon has acceptable reasons for amputating the limb. Even setting aside Surgeon’s reasons to provide medical services in exchange for remuneration, Surgeon has reasons of altruism to help people in ways that they request.

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8.2 The Interpersonal Justification Argument for the Expression of Will View Once we place consent alongside rights forfeiture and voluntary assumptions of risk, we can reframe the issue of what constitutes consent in terms of the following two questions. First, what types of behaviour play the consent role in interpersonal justification? Second, what distinguishes the behaviour that plays the consent role from the behaviour that plays the role of forfeiture and the behaviour that plays the role of voluntary assumption of risk? If we reframe our inquiry in this way, then it is easier for us to steer clear of theoretical dead ends that might otherwise seem appealing. In particular, we should avoid the view that consent is a special normative power to create a permission for another person to perform an action by forming an intention to create this permission and communicating this intention to that person.⁷ In Chapters 6 and 7, we have seen why this view is extensionally inadequate in the respect that it has implausible implications for various cases. Now we are adding a further reason to reject the view: the view fails to account for the connections between consent and other types of interpersonal justification. These connections are clearest with other voluntary assumptions of risk. Medical consent is a good example. In the Mauling case, amputation involves the certain harm of losing a limb. By contrast, much of medical practice involves imposing risks of harm. Patients can voluntarily assume these risks by giving consent. This is importantly similar to other ways that people voluntarily assume risks. One way is to sign a waiver form, as someone does at a climbing gym. Another way is to ignore warning signs and explore a dangerous excavation site. These ways of assuming risks do not involve forming and communicating an intention to permit another person’s action. The climbing gym is already built, and the waste is already dug up. Therefore, we cannot explain these risk assumptions by appealing to the risk-assumer making and communicating a choice to permit another person’s action. Consequently, if we conceive of permissive consent in terms of forming and communicating an intention to permit an action, then we ⁷ When some people call consent a ‘normative power’, they mean only that consent has the effect of changing the consent-giver’s normative relationship with the consent-receiver. I agree that consent is a normative power in this sense.

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end up with a distorted view that fails to account for the similarities between consent and other voluntary assumptions of risk.⁸ Fortunately, there is a better view that acknowledges both what is distinctive of consent and what consent shares with forfeiture and voluntary assumptions of risk. This view incorporates the idea that when a patient expresses their will for how an agent behaves, the agent could appeal to this expression in order to justify behaving in a certain way. To make this view precise, we need to work through the details of what would constitute a suitable expression of a patient’s will and how this expression would feature in interpersonal justification. In Chapter 9, we will undertake this endeavour. But for now, let us note two paradigmatic ways that this can happen. First, a consent-giver can make a request of the consent-receiver. For example, in the Mauling case, Zookeeper can ask Surgeon to amputate their limb. So long as certain background conditions obtain, this request would provide Surgeon with a justification for amputating the limb. Zookeeper could not reasonably voice the complaint that Surgeon has caused them to suffer the loss of a limb, as Surgeon could reasonably reply that Zookeeper asked Surgeon to remove the limb. Second, a consent-giver can engage in a type of behaviour that expresses permission. For example, Zookeeper could sign a form that indicates that they are permitting Surgeon to perform the amputation. This behaviour could also make it unreasonable for Zookeeper to voice a complaint about the harm. If Zookeeper were to attempt to voice this complaint, then Surgeon could reply that Surgeon had Zookeeper’s permission. I will call the view that consent can be given in these ways the ‘Expression of Will View’ and I will call the preceding argument in favour of the view the ‘Interpersonal Justification Argument’. The Expression of Will View emphasizes what permissive consent shares in common with rights forfeiture and voluntary assumptions of risk: an agent could appeal to a patient’s behaviour to justify to the patient how the agent has treated them. What distinguishes permissive consent from these other types of behaviour is that consent-giving behaviour expresses the consent-giver’s will for how the consent-receiver behaves. In that respect, the consent constitutes an authorization for how the consent-receiver ⁸ Note that here and throughout by ‘consent’, I mean permissive consent—the consent that permits another person to perform an action. It is artificial to view your signing of the waiver as permitting any particular action performed by the gym owners, as these actions are in the past and permissive consent cannot be given to actions that have already taken place. In everyday English, you could be described as ‘consenting’ to the risks of the gym, but this is not permissive consent.

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behaves. For example, when the consent-giver makes a request, the consent-receiver could justify satisfying this request on the grounds that the consent-receiver is acting in accordance with how the consent-giver has expressed their will for how the consent-receiver behaves. This scenario does not obtain with rights forfeiture and other voluntary assumptions of risk. Since Victim tasers Murderer against Murderer’s will, it is false to say that Victim’s behaviour is authorized by Murderer. Similarly, since negligent Guest is unaware that Host is throwing a dart towards the door that Guest opens, Guest is not authorizing Host to throw a dart into their arm. Meanwhile, a climber can assume the risks of climbing at a gym, even though the climber is not authorizing any action of the gym owners. Therefore, although the relevant agents could justify causally contributing to the harms suffered by the relevant patients, these justifications do not concern how the patients have expressed their will for how the agents behave. By contrast, if an agent appeals to a patient’s consent to justify how the agent treats the patient, then this justification concerns how the patient has expressed their will for how the agent behaves. This is what is distinctive of consent. Let me clarify the Interpersonal Justification Argument for the Expression of Will View with two further points. First, we should distinguish acting on a justification from acting with a justification. I will say that an agent ‘acts on a justification’ when the justification coincides with the agent’s motivations. For example, if Zookeeper’s consent constitutes justification for amputating the mauled limb, and Surgeon amputates the limb because Zookeeper consents, then Surgeon acts on the justification. By contrast, an agent ‘acts with a justification’ when there are facts that justify their behaviour. This does not necessitate either that the agent is aware of these facts or that these are the reasons that motivate the agent’s behaviour. To illustrate, suppose that you are leaving an event where many people have brought their umbrellas. Since the umbrellas look similar, you cannot identify which is yours, and so you grab one at random. Suppose that it turns out that you got lucky, and that umbrella does belong to you. The fact that the umbrella is your property justifies you in taking it home. But you were not aware of this fact, and it was not the reason that motivated your behaviour. You act with a justification even though you do not act on this justification. Alternatively, suppose that in Taser, Victim believes that Murderer is joking when Murderer lunges at Victim with a knife. Consequently, Victim does not believe that Murderer poses a threat. Yet Victim tasers Murderer because Victim likes tasering people. Afterwards, when it turns out that Murderer

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was in fact on a killing spree, it would become clear that Victim acted with a justification of self-defence even though Victim did not act on this justification. We can apply this first point of clarification to consent. Since someone need not be aware of a justification that they possess, it follows that consent can be a justification for a consent-receiver’s action even when the consentreceiver is unaware of the consent. In other words, the justification can be furnished even without the consent having uptake with the consent-receiver. This scenario is illustrated by the cases involving Laura’s lawn that we discussed in Chapter 6 when considering why we should reject the Uptake Condition. There, we concluded that someone can receive consent without being aware that they have received consent. Suppose that the consentreceiver performs the relevant action while they are ignorant of the consent. But later the consent-receiver discovers the consent. The consentreceiver could appeal to the consent as a justification for their behaviour even though this justification did not guide their behaviour.⁹ The consentreceiver acted with a justification, but they did not act on this justification. The second point of clarification is that these forms of interpersonal justification depend on the patient actually engaging in the relevant behaviour, rather than the agent merely having evidence that the patient is engaging in the behaviour. This is clearest in the case of self-defence. In the Taser case, Victim’s justification of self-defence depends on the fact that Murderer actually engages in aggressive behaviour in virtue of which Murderer makes themselves liable to defensive harm. It is not enough that Victim has evidence that Murderer poses a threat. To illustrate this point, consider a case of Jeff McMahan’s (2009: 164): Twin. Twin is the identical twin of a notorious mass murderer, Murderer. Twin is driving in a remote area. Twin is non-culpably unaware that in the past few hours, Murderer has escaped from prison in just this area, and the ⁹ This justification concerns only one way that the consent-receiver might otherwise wrong the consent-giver, namely by acting in the consent-giver’s personal domain without being released from a duty that they owe the consent-giver. This is the wrong that we called, ‘Acting Without Being Released’ in Chapter 6. There, we distinguished this wrong from the wrong of ‘Acting Without Being Controlled’, which someone commits in virtue of acting in another person’s domain without being controlled by that person, and the wrong of ‘Acting With Disregard’, which someone commits in virtue of performing an action for which another person’s consent is needed while believing that this person does not consent. If the consentreceiver is unaware of the consent, then they will commit the wrong of Acting Without Being Controlled and the wrong of Acting With Disregard. Therefore, the consent does not provide a justification with respect to these wrongs.

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authorities have warned local residents of the escape. Murderer’s notoriety derives from their invariable modus operandi: Murderer violently breaks into people’s homes and kills them instantly. Twin’s car breaks down, and so they approach a house to ask to use the telephone. The owner of the house is Resident, who believes that Twin is Murderer and consequently tasers Twin pre-emptively to defend themselves.

Since Resident has been warned by the authorities, and since Twin looks just like Murderer, Resident has evidence that Twin poses a threat to their life. Therefore, Resident has an excuse for tasering Twin. But given that Twin has acted permissibly, Resident could not appeal to Twin’s behaviour to justify tasering Twin on the grounds that Twin’s behaviour makes Twin liable to defensive harm. Similarly, in the case of consent, an agent could not justify their behaviour to a patient simply on the grounds that the agent has evidence that the patient has given consent. For the agent to justify their behaviour on grounds of consent, the patient must have actually engaged in consent-giving behaviour.

8.3 Consent as Deliberately Expressing One’s Will As I formulate the Expression of Will View, it requires that a consent-giver must deliberately express their will in order to give consent (Archard 1998: 4–5; Pallikkathayil 2019). Admittedly, not all interpersonal justification appeals to deliberate behaviour. For example, on the most plausible analysis of the Darts case, Host’s justification does not appeal to any deliberate choice that Guest has made, but instead appeals to Guest’s failure to pay sufficient attention. But for other forms of interpersonal justification, the deliberateness of a patient’s behaviour can be crucial. Consider: Firearm Accident. Citizen is a pacifist who would never hurt a fly. Villain has hidden a firearm in Citizen’s bag. Citizen attends a rally organized by Politician. Citizen notices that there is an unexpected heavy object in their bag. To see what the object is, Citizen removes the object from the bag. Bodyguard sees Citizen drawing the firearm from the bag and tasers Citizen.

Citizen does not pose a threat to Politician and does not deliberately create the impression that they pose a threat. However, by taking a firearm out of their bag, Citizen acts in a way that Bodyguard reasonably interprets as

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posing a dangerous threat. Because Citizen does this unintentionally, Citizen does not forfeit their right against being harmed. Although Bodyguard acts blamelessly in light of their evidence, Bodyguard could not appeal to Citizen’s behaviour as forfeiting their right to defensive harm in the way that Victim could appeal to Murderer’s behaviour. The difference between the cases is that Murderer deliberately acts in a way that appears to be posing a lethal threat, while Citizen does not. Similarly, in order for an agent to justify their behaviour by appealing to a patient’s consent, the patient must deliberately engage in a type of behaviour that constitutes consent. To be clear, I am not endorsing the claim that a consent-giver must intend to permit the token action that becomes permitted by their consent. We can see that this claim is false in light of our discussion in Chapter 7. For example, we discussed the Parking case: Parking. Driver’s car is a model 206. Because Resident mistakenly thinks that Driver’s car is a model 306, Resident is explicitly thinking of a model 306 when forming their intention about which duties to release Driver from. Consequently, Resident intends to release Driver from a duty not to park a model 306 in Resident’s parking space. Resident expresses this intention by saying, ‘You may park in my space.’ Driver parks their model 206 there.

The Parking case is a counterexample to the claim that a consent-giver must intend to permit each token action that in fact becomes permitted by their consent. However, the Parking case is not a counterexample to my claim that a consent-giver must deliberately engage in a certain type of behaviour in order to consent. For example, Resident consents to Driver parking the model 206 partly in virtue of the fact that Resident is deliberately engaging in a certain type of behaviour, namely expressing permission. Resident deliberately engages in this type of behaviour, even though Resident does not intend to permit Driver to perform the token action of parking a model 206. My claim that consent requires deliberate behaviour faces an important objection. Renée Jorgensen Bolinger (2019) argues that someone might negligently engage in certain behaviour that indicates that they consent. Bolinger argues that even though the individual does not deliberately consent, the individual could still consent. Bolinger (2019: 192) illustrates this view with an example:

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Key. It is public knowledge in your community that if you say, ‘Feel free to borrow my car for the weekend; the key is on the hook by the door,’ then this utterance communicates consent to the use of your car. It is basically costless to avoid making this utterance. You make this utterance to your flatmate, even though you are not really thinking about what you are saying and you do not mean to communicate consent. You return from your weekend conference to discover that your flatmate did indeed borrow your car.

Bolinger (2019: 192) claims that ‘it would be inappropriate to protest that [your flatmate] had violated your property right, taking your car without your consent—it would be inappropriate even if, when you made the speech, you weren’t really thinking about it and didn’t mean to communicate consent’. Bolinger (2019: 192) justifies this claim by continuing that: you . . . have a responsibility to avoid predictably putting [your flatmate] in a situation in which you do not intend to consent, but which is to them indistinguishable from the one in which you do . . . Failing to do so is negligent or reckless and likely to induce errors for which you can reasonably be held responsible.

On these grounds, Bolinger concludes that you unintentionally consent to your flatmate borrowing the car. Dialectically, this is an especially difficult challenge, because Bolinger’s argument shares common ground with the view that I am developing. This common ground consists of three points. First, in Chapter 7, I endorsed the Mistake Objection, according to which an action can fall within the scope of the consent of a consent-giver who misspeaks, even though the consentgiver does not intend for the action to fall within the scope of their consent. This is morally similar to Bolinger’s scenario in which someone misspeaks by uttering a sentence that normally expresses consent, even though the speaker does not intend to give consent. Second, by considering the protests that someone can appropriately make, Bolinger is framing the issue in the way that I take to be correct. Namely, Bolinger frames the issue in terms of the interpersonal justification that agents could offer patients. Third, I have acknowledged that in other cases, such as the Darts case, someone can lose a complaint through negligent behaviour. Therefore, it may seem that someone can similarly lose a complaint by negligently engaging in behaviour that creates the misimpression that they intend to permit an action.

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Given the strength of this challenge, I am tentative in my claim that consent is given only by a deliberate expression of the will. My main reason for insisting on this claim is that I do not find it plausible that someone could appeal to negligent behaviour to justify sexual activity. This intuition reflects the appeal of the idea that consent-giving should remain to a significant extent under the consent-giver’s control. This is the idea that animates the Autonomy Argument, which gives the Mental Account its appeal. While we should reject the Mental Account, we can retain some of its appeal by endorsing the requirement that consent be given only through deliberate behaviour. That said, if we add this requirement to the Expression of the Will View, then we may end up with a view that has less coherence and a less principled rationale. If that is right, then it may be better for us to give up this requirement for the sake of a more unified view. This modification could easily be made to the Expression of Will View without affecting the rest of its substance. Instead of claiming that consent involves a certain deliberate expression of the will, the modified version would maintain that consent involves either a deliberate or unintentional expression of the will.

8.4 Summary There are many ways that an agent could appeal to a patient’s behaviour to justify the fact that the agent has causally contributed to the patient’s suffering a harm (Section 8.1). By threatening the agent, the patient can forfeit their complaint against the agent harming them in self-defence. By behaving negligently, the patient can forfeit their complaint against suffering a harm that results from their negligence. By voluntarily assuming the risk of the harm, the patient can give up their complaint against the harm. In addition, the patient can give up their complaint by consenting to the harm. What distinguishes consent from these other bases of interpersonal justification is that consent involves a patient expressing their will for how the agent behaves (Section 8.2). For example, if a patient asks an agent to perform an action or indicates that they are permitting this action, then the patient is expressing their will for the agent’s behaviour. The agent could appeal to this expression to justify performing the action. For this justification to exist, it is not necessary that the agent performs the action because the patient has expressed their will. And for the justification to exist, it is not sufficient that the agent has evidence that the patient has expressed their will.

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However, for the justification to exist, it is necessary that the patient has deliberately expressed their will (Section 8.3). For example, if the patient’s consent consists in a request, then the patient must have deliberately made a request. This does not require that the patient intends to permit each token action that is in fact authorized by their behaviour. But it does require that the patient deliberately engages in a type of behaviour that expresses their will for how the agent acts. By accepting the Expression of Will View, we can dispel Hume’s mystery about how consent is morally efficacious. According to the view, we give consent by expressing our wills for how other agents act. They can then appeal to how we have expressed our wills to justify to us how they have treated us. For example, a surgeon could justify amputating a patient’s limb by appealing to the fact that under suitable conditions the patient requested the amputation. To see such a request as having justificatory force, it is not necessary to see it as possessing moral magic. Instead, it is sufficient to see a request as a consideration that forecloses certain complaints: if a patient requests an amputation in favourable circumstances, then the patient cannot reasonably complain about the surgeon performing the operation.

9 The Expression of Will View II Two Ways to Consent

In Chapter 8, we began developing the Expression of Will View. In this chapter, we will further develop the view by characterizing in more detail the two ways in which someone can give consent by expressing their will for how another agent acts. In the course of doing so, our discussion will bring out a further advantage of the Expression of Will View, which is that it can handle the puzzle cases that we discussed in Chapter 7. In Table, Host invites Neighbour to the table for a drink. In Tattoo/Sober, Hipster requests a tattoo. In Patriarchal Marriage, Wife proposes sex. In the Cleaning case, Boyfriend agrees to Girlfriend’s proposal to clean his apartment after 9 p.m. Our account of consent should explain why consent is given in these cases. The Expression of Will View provides an explanation. In each case, the consentgiver expresses their will for how the consent-receiver behaves. Our discussion will proceed as follows. In Section 9.1, we will consider how people can consent by performing certain speech acts like requests. For example, in the Tattoo/Sober case, Tattooist can justify tattooing Hipster on the grounds that Hipster requested the tattoo. In Section 9.2, we will consider how people can consent by expressing that they are giving permission. For example, in the Car/Truancy case from Chapter 3, Parent explicitly expresses that Parent is giving Teenager permission to use the car. Teenager can appeal to this expression to justify using Parent’s car.

9.1 Consent via Directives The Expression of Will View holds that there are two ways in which someone can give consent. To elaborate the view, let us start with the first way. In Chapter 8, we saw that in the Mauling case Surgeon could justify amputating Zookeeper’s limb by appealing to Zookeeper’s request for the amputation. This request would constitute consent. By asking another person to perform an action, the speaker is attempting to direct that person’s The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0010

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behaviour. As such, a request is an example of a ‘directive’.¹ Other examples of directives are orders and proposals. If a speaker commands another person to do something or proposes that this person does something, then the speaker is attempting to direct that person’s behaviour. Someone can consent in virtue of performing a directive. To see why, let us unpack what a directive is and consider how this claim can explain why consent is given in certain cases. There are two ways that directives can influence an agent’s behaviour. First, a directive can make an option possible or impossible for that agent. In particular, proposals often have this effect. Suppose that I propose that we go on a picnic together. Prior to my proposal, you were unable to choose the option of going on a joint picnic. You only had the option of proposing a picnic to me or going on a picnic by yourself. In that respect, my proposal creates a new option for you. Similarly, it is possible for speech acts to make options impossible. For example, suppose that we have a plan to go on the picnic, but then I announce that I can no longer make it. My announcement removes the option of a joint picnic from the options that you can choose between. Second, directives can change the reasons that people have for choosing various options. For example, when a friend asks you to help them move house, your friend is giving you a reason to help them move house. Similarly, when a monarch rescinds a prohibition on political speech, the monarch eliminates a reason that their subjects had to avoid engaging in this speech. Directives are not the only speech acts that change other people’s reasons. Assertions can also change other people’s reasons. For example, if a friend explains to you how to unblock a drain, then you now have a reason to thank them for this. But there is a distinctive way that directives change people’s reasons. When someone performs a directive, they are presupposing that they have the authority to perform this directive. For example, when someone commands another person, they presuppose that they have the authority to command that person (Darwall 2006). By issuing a directive, a speaker alters the addressee’s reasons in virtue of the addressee recognizing that the

¹ I owe the idea that consent could be conveyed by a directive to Hallie Liberto. In this context, we should understand ‘directive’ as a theoretical term that originates in J. L. Austin’s (1962) speech act theory. Perhaps, the English word ‘directive’ brings to mind different connotations. If so, then this theoretical definition diverges from the ordinary English usage of this term. The reason why we need a theoretical term is that these speech acts form a category that is unified in a way that is theoretically important for understanding how people give consent.

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speaker has this authority to change these reasons.² For example, when a speaker makes a request, the speaker gives the addressee a reason in virtue of the addressee acknowledging that the speaker has the authority to give them a reason by making this request. Following David Enoch (2014) and Neil Manson (2016), I will say that this is a way of ‘robustly’ changing someone’s reasons. By endorsing the claim that someone can consent by issuing a directive, we can explain why consent is given in the puzzle cases that we encountered in Chapter 7. These cases caused trouble for the idea that consent requires either an intention to release someone from a duty or an intention to communicate that one is releasing someone from a duty. For example, in Liberto’s Cleaning case, Boyfriend consents to Girlfriend cleaning the office, even though Boyfriend does not intend to permit Girlfriend to do this. Boyfriend lacks this intention because Boyfriend believes that he is consenting under illegitimate duress. Similarly, in the Tattoo/Sober case, Hipster requests a tattoo while mistakenly believing that they are too intoxicated to give valid consent. Because of this mistaken belief, Hipster thinks that they cannot create a permission, and hence they do not intend to create this permission. Meanwhile, in the Table case, Host falsely believes that Neighbour does not need Host’s permission to use a table, and consequently Host does not intend to create a permission when Host invites Neighbour to join them at the table for a drink. Similarly, in the Patriarchal Marriage case, Wife believes that Husband does not need her permission to have sex with her, and consequently Wife does not intend to grant Husband this permission when she proposes sex. In all these cases, the relevant consent-giver does not believe that they are releasing the consent-receiver from a duty not to perform a certain action, and consequently the consent-giver lacks an intention to release the consent-giver from a duty not to perform that action. However, in several of these puzzle cases, it is clear that the consent-givers issue directives. In Table, Host invites Neighbour to the table for a drink. In Tattoo/Sober, Hipster makes a request of Tattooist. In Patriarchal Marriage, Wife proposes sex to Husband. Invitations, requests, and proposals are all directives. Therefore, by endorsing the claim that someone can consent by issuing a directive, we can explain why consent is given in these cases.

² Darwall (2006) calls these ‘second-personal’ reasons in virtue of the fact that the reasons are given by means of interpersonal address. For example, when a speaker issues an order to an addressee, the speaker addresses the addressee in the same way that the speaker would by using the second-person pronoun ‘you’.

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The hardest case to fit into this mould is the Cleaning case, in which Girlfriend proposes to clean Boyfriend’s apartment, and Boyfriend agrees to the proposal. It is not immediately clear that we should view Boyfriend’s agreement as a directive. But on reflection, I think that we should take this view. Our theoretical goal is to mark out a category of speech acts that have similar effects on other people’s behaviour. Given this goal, we should not place weight on the difference between agreements and proposals. This difference concerns who initiates a plan. When someone makes a proposal, they initiate the plan. When someone agrees to another person’s proposal, the plan is initiated by the other person. But in so far as we are interested in how the plan directs people’s behaviour, the identity of the initiator does not make an important difference. Instead, what matters is whether each party’s speech acts direct the other’s behaviour. If someone’s agreement to a proposal directs the behaviour of the initiator of the proposal, then the agreement is a directive. For example, in the Cleaning case, Girlfriend starts entering the apartment after 9 p.m. because Boyfriend agrees to her proposal. In this way, Girlfriend’s behaviour is directed by the agreement between her and Boyfriend. Girlfriend’s behaviour is directed by the agreement because Boyfriend is a party to the agreement. In turn, Boyfriend is a party to the agreement because he agrees to Girlfriend’s proposal. Therefore, Boyfriend directs Girlfriend’s behaviour by agreeing to her proposal. While we should allow that consent can be given via directives, we should also acknowledge that not all directives constitute consent. Consider: Royal Swan. All swans are the legal property of Monarch. Monarch orders Subject to kill a swan but says, ‘However, you do not have my permission to do so.’ Monarch’s intention is to put Subject in a bind whereby Subject commits treason either by refusing a royal decree or by damaging royal property.

Monarch explicitly states that they are not granting Subject permission to kill the swan, and hence Monarch is not consenting to this. Therefore, even though Monarch orders Subject to kill a swan, this directive is insufficient for consent. In light of this point, we need to add a qualification to our view of how consent can be given by directives. As a first step towards specifying this qualification, let us characterize how someone can express a lack of permission. There are two ways in which someone could express this. The first way is that someone could indicate that they are not giving consent:

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Dissent. X gives dissent to Y if and only if X deliberately engages in behaviour B that indicates that X is not releasing Y from a duty.

To interpret this definition, indication should not be understood as implying uptake. Accordingly, someone can indicate dissent, even though they are speaking to someone who fails to recognize that they are dissenting. The second way is that someone can revoke consent that they have previously given: Revocation. X revokes consent given to Y if and only if (i) X has previously given consent to Y, and (ii) X deliberately engages in behaviour B that indicates that X is reimposing on Y the duty from which Y had been released by this consent.

For example, it could be that Monarch earlier told Subject that they were permitted to kill a swan, but now Monarch tells Subject that they are no longer permitted to do so. Using these definitions of dissent and revocation, let us define a term that refers to either: Expressing Lack of Permission. X expresses a lack of permission to Y if and only if Either (i) X gives dissent to Y; Or (ii) X revokes consent given to Y.

Both dissent and revocation of consent are incompatible with consent. Since a directive is trumped by an expressed lack of permission, we must add a suitable qualification to our view of giving consent via a directive. We also need to specify the types of directive that can constitute consent. We should say that consent is given by directives that either create options, robustly give the addressee a reason to choose an option, or robustly remove a reason that the addressee had not to choose the option. Putting these points together, I propose the following view of how someone can give consent by issuing a directive: Consent via a Directive. X gives consent to Y via a directive if and only if (i) X deliberately performs a directive speech act addressed to Y; (ii) this speech act either creates an option for Y, robustly gives Y a reason to choose an option, or robustly removes a reason that Y had not to choose an option; and

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(iii) with respect to this option, X is not simultaneously expressing a lack of permission for Y.

The purpose of the qualification of clause (iii) is to handle cases like Royal Swan: while there is a defeasible case in favour of directives constituting consent, this case can be defeated by dissent or revocation of consent.

9.2 Consent via Expressing Permission We have just seen that consent can be given via directives. However, someone can consent to an agent performing an action while directing them not to perform that action. Consider a case from Chapter 3: Car/Truancy. Teenager has been skipping school and driving the family car. Intending to get Teenager to choose to go to school, Parent says, ‘I am not okay with you skipping school and driving around—it bothers me a lot as your parent. Still, I want you to attend out of your own free will. So I am releasing you from your duty not to use the car. But my expectation is that you will respond maturely and decide to attend school.’

Parent consents to Teenager using the car while directing Teenager not to use the car. Indeed, we could stipulate that Parent says, ‘Even though I am permitting you to use the car, I am asking you as a favour not to use it.’ That would be a request, and a request is a directive. Yet Parent would still be consenting because they are expressing that Teenager has their permission to use the car. Consequently, our account needs to recognize a second way that someone can give consent: Consent via Expressing Permission. X gives consent to Y via expressing permission if and only if X deliberately engages in behaviour B that indicates that X is releasing Y from a duty.

To clarify this idea, let us note a couple of points. First, I am describing this as a way of giving consent via ‘expressing permission’ as a useful shorthand to streamline our discussion. But strictly this way of giving consent involves indicating that the consent-receiver is released from a duty. Second, what matters is that the consent-giver is indicating that they are giving some

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permission or another. The view does not address which token actions the consent is given to. Instead, the view only takes the stance that a certain type of behaviour constitutes consent-giving. Consequently, this idea is not part of a principle for the scope of someone’s consent. Instead, we will develop an accompanying principle for the scope of consent in Chapters 10 and 11. That second clarification is important for appreciating how the Expression of Will View differs from a nearby view. The nearby view is that consent is a normative power in the sense that a consent-giver creates a permission for a consent-receiver to perform an action by forming and communicating an intention to permit the consent-receiver to perform this action. Unlike the Expression of Will View, this normative power view does take a stance on what determines the scope of consent. Because of the stance that this normative power view takes, the view falls victim to the Mistake Objection from Chapter 7. That objection concerns consentgivers who make mistakes that affect how they express their consent. Here is one of the illustrative cases: Parking. Driver’s car is a model 206. Because Resident mistakenly thinks that Driver’s car is a model 306, Resident is explicitly thinking of a model 306 when forming their intention about which duties to release Driver from. Consequently, Resident intends to release Driver from a duty not to park a model 306 in Resident’s parking space. Resident expresses this intention by saying, ‘You may park in my space.’ Driver parks their model 206 there.

Resident consents to Driver parking the model 206, and Resident does not intend to permit Driver to park a model 206. Therefore, the Parking case shows that we must reject the aforementioned normative power view. However, the case can be handled by the Expression of Will View. Since the Expression of Will View does not take a stance on the scope of consent, the view is not committed to a position concerning whether parking a model 206 falls within the scope of Resident’s consent. Instead, the Expression of Will View is committed only to the claim that Resident consents in virtue of engaging in deliberate permission-giving. This is a claim that we ought to accept. The fact that Resident consents to Driver parking a model 206 in the parking spot is explained by the fact that Resident is deliberately engaging in permission-giving behaviour. When someone consents via expressing permission, they consent in virtue of the message that they express. The message is that the consent-giver is releasing the consent-receiver from a duty. This message could be expressed

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either explicitly or implicitly. It would be expressed implicitly when a consentgiver’s behaviour implicitly indicates that they are releasing the consentreceiver from a duty. For example, suppose that you leave a house guest a note with instructions about how to change the temperature of your house. This note does not explicitly say that you are permitting your guest to change the temperature. But the reasonable interpretation of your behaviour is that you are implicitly indicating that you are permitting the guest to change the temperature. If you intended to forbid them from changing the temperature, then why are you telling them how to change the temperature? Because permissions can be expressed implicitly, someone can express permission by making an utterance that simultaneously constitutes a directive. For example, suppose that someone asks you to help them carry their heavy bag. They are doing two things. First, by making a request, they are performing a directive. Second, they are implicitly communicating that they are releasing you from your duty not to lay hands on the bag. Individually, each of these would be sufficient for consent. This illustrates that it is possible for someone to simultaneously give consent both via expressing permission and also via issuing a directive. In Section 9.1, we saw that dissent and revocation of consent trump directives that would otherwise constitute consent. By contrast, an expression of permission is not trumped by a directive not to perform the action. Recall the Car/Truancy case. Parent says that Teenager is permitted to use the car. We noted that Parent can say this while simultaneously requesting that Teenager not use the car as a favour to Parent. With respect to the question of whether Parent consents to Teenager using the car, Parent’s expression of permission wins the day. Since we can ask people not to perform actions without insisting that they have duties not to perform these actions, that is not a surprising result to reach. The result is accommodated by the Consent via Expressing Permission thesis. The thesis does not contain a qualification for directives to trump expressions of permission. In Section 9.1, we developed a definition of giving consent via a directive, and in this section, we developed a definition of giving consent via expressing permission. Using these definitions, we can now state the ‘Expression of Will View’ of consent: Expression of Will View. X gives consent to Y if and only if either X gives consent to Y via a directive or X gives consent to Y via expressing permission.

This is the view of consent that I endorse.

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The Expression of Will View is a disjunctive view in the respect that it holds that there are two ways in which people give consent. All else being equal, a disjunctive view is suboptimal: a non-disjunctive view would be simpler and more cohesive. However, there can be countervailing reasons why a disjunctive view is necessary. In the case of our inquiry, we need a disjunctive view to have an extensionally adequate theory.³ Since Parent consents in the Car/Truancy case, we need a disjunct to cover expressions of permission. But since the relevant individuals consent without expressing permission in the Cleaning, Table, Patriarchal Marriage, and Tattoo/Sober cases, we need a separate disjunct to handle these cases. Moreover, while the Expression of Will View is disjunctive, our overall account retains a significant degree of internal cohesion because both disjuncts are grounded in the Interpersonal Justification Argument. This argument concludes that consent is given by expressions of the consent-giver’s will for how the consentreceiver should act. Since expressions of permission and directives are both expressions of the consent-giver’s will for how the consent-receiver acts, the argument provides a rationale for why these should be grouped together as ways in which we consent.

9.3 Summary In this chapter, we saw that there are two ways that someone can consent by expressing their will. First, they can perform a ‘directive’ speech act (Section 9.1). Examples include requests, invitations, and orders. By holding that people can consent via issuing directives, we can explain why people consent in the puzzle cases that we encountered in Chapter 7. In those cases, people give consent by making requests, making proposals, or issuing invitations. These directives can constitute consent so long as the speakers are not also dissenting or revoking consent. Hence these consent-givers give consent to the consentreceivers performing these actions even though the consent-givers explicitly

³ This need to achieve extensional adequacy also motivates Chadha (2020) to adopt what they call the ‘Hybrid Account of Consent’. Assuming for the sake of argument that the Mental View of consent is correct, Chadha formulates this as follows: ‘X consents to Y’s action if and only if either: (1) X intends that Y’s action not wrong X; or (2) Both (a) X has no intentions regarding whether Y’s action wrongs X; and (b) X chooses Y’s action.’ One of Chadha’s motivations is to accommodate the intuition that Wife consents in the Patriarchal Marriage case.

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say that they are not releasing the consent-receivers from duties not to perform these actions. The second way that someone can consent is by expressing that they are giving another person permission (Section 9.2). For example, a parent could explicitly give permission to their teenage child using the family car while also asking them not to use the car. The parent’s directive points the child away from using the car, and yet the parent consents in virtue of expressing permission. Since the Expression of Will View allows that consent can be given in either of these two ways, it is a disjunctive view: Expression of Will View. X gives consent to Y if and only if either X gives consent to Y via a directive or X gives consent to Y via expressing permission.

Although a disjunctive view is less cohesive and simple, we need to endorse a disjunctive view to have an extensionally adequate account. But although the view is disjunctive, it has some unity in virtue of the fact that it has the Interpersonal Justification Argument as an underlying rationale.

10 The Available Reliable Evidence Principle There is something alarming about the possibility that the scope of your consent could be distorted by factors beyond your control or knowledge. Imagine that while you were sleeping, everyone else in your community has formed an explicit agreement to adopt different conventions. But you are none the wiser, and you go about your day following the outmoded conventions. At your workplace, you hold up your hand in a way that, according to the old conventions, invites a co-worker to give you a high five. Unfortunately, according to the new conventions, this gesture indicates that you are authorizing the co-worker to give you a bear hug. Since the co-worker’s evidence suggests that you are inviting a hug, they hug you. Although this is a far-fetched example, it illustrates how it would be worrying if unknown events could warp the scope of your consent. Now consider two hypotheses for what determines this scope. According to the first hypothesis, the scope is fixed by your society’s conventions. According to the second hypothesis, the scope is fixed by the totality of a consentreceiver’s evidence. Both hypotheses imply that the bear hug falls within the scope of your consent. How can we avoid that implication? One option is to develop a principle that restricts the type of evidence that bears on the scope of your consent. For example, a principle could restrict this to the evidence that you must reasonably accept as bearing on how your consent-giving behaviour should be interpreted. Since you do not have to reasonably accept an unknown new convention as a source of evidence that bears on how your consent-giving behaviour should be interpreted, this principle implies that the evidence from the convention does not bear on the scope of your consent. In this chapter, we will develop a principle along these lines. In Section 10.1, we will consider the reasons to reject a principle according to which the scope of consent is fixed by conventions. In Section 10.2, we will introduce and elaborate the relevant notion of evidence that determines the scope of consent. We will use this notion to formulate a principle for the The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0011

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scope of consent that is almost correct. This is the ‘Available Reliable Evidence Principle’.

10.1 Conventions In Chapters 8 and 9, we saw why we should accept the Expression of Will View. This is a view of what consent is rather than a principle for the scope of consent. If we accept the Expression of Will View, then what principle should we accept for the scope of someone’s consent? In light of the Interpersonal Justification Argument from Chapter 8, we should think of consent as a consideration that enables a consent-receiver to justify their behaviour to the consent-giver. On that assumption, we can reframe the question of consent’s scope as the question of which actions the consentreceiver could justify by appealing to the consent. This suggests that the scope of someone’s consent should be fixed by the appropriate interpretation of the consent. But this does not take us very far, as now we must ask what the appropriate interpretation is. A salient candidate is the conventional interpretation of the consent. We might accept this candidate if we think that the scope of consent is determined by the meaning of the consent-giver’s behaviour, and we think that this meaning is fixed by conventions. Consider linguistic conventions. With a language like English, there are conventions governing the meaning of individual words and how these words combine to form sentences with their own meanings.¹ We also have linguistic conventions for the meaning of certain types of body language like a thumbs up. Beyond linguistic conventions, we have social and legal conventions that assign meanings to behaviours in certain contexts. For example, if someone requests a meal in a restaurant, then this behaviour conventionally indicates that they agree to pay for the meal. Another reason why we might think that conventions bear on the scope of consent is that we might think that we need authoritative common

¹ These linguistic conventions leave at least a narrow role for context to determine the reference of some terms. For example, English’s convention is that the word ‘I’ systematically refers to the speaker. We might say that the conventional meaning of terms combines with the conversational context to determine the ‘semantic content’ of an utterance. This fits with a common way of characterizing semantics. But within the philosophy of language, it is a vexed issue how exactly to draw the semantics/pragmatics distinction, and there is arguably more than one defensible way of drawing it. For discussion of the distinction, see Borg (2012).

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standards to determine this scope. In the context of defending the view that communicative behaviour can be sufficient for consent in the absence of any intention, Bolinger (2019: 185, 187) claims that consent both ‘enables agents to participate in close interactions’ and allows agents ‘to “own” the risks’ associated with these interactions. Bolinger argues that consent must be publicly observable in order to redistribute responsibility for these risks. On these grounds, Bolinger concludes that conventions can determine which behaviour constitutes consent. In defending this view, Bolinger does not discuss the scope of consent, but a natural extension of Bolinger’s view is that the scope of consent would also be established conventionally. If it must be observable that consent redistributes risks, then presumably it must also be observable which actions’ risks are redistributed. If we think that conventions play a direct role in determining the scope of consent, then we might accept a principle like the following: Convention Principle. An action A falls within the scope of the consent that X gives to Y if and only if X deliberately engages in behaviour that conventionally signifies that X is consenting to Y performing A.

According to the Convention Principle, the scope of someone’s consent is determined by the conventional interpretation of their consent. However, the Convention Principle is too simple. There can be unjust conventions concerning what is authorized by certain behaviour (Bolinger 2019: 200–3).² For example, in patriarchal societies, there can be cultural memes that imply that if women wear certain clothes, then this signifies that they consent to sexual contacts like gropes. Similarly, there can be cultural memes that if a woman wears certain clothing and engages in low-intimacy activities like kissing, then this signifies that the woman also consents to more intimate sexual activity. We could imagine that a convention emerges around these memes. This would be an unjust convention in light of the fact that women have legitimate interests in making certain clothing choices while refraining from consenting to sexual contacts and sexual activity. Since

² For example, Bolinger (2019: 192–3, 200–1) claims that if it is unduly burdensome for people to avoid engaging in certain behaviour, then this behaviour does not constitute consent even if there is a convention according to which the behaviour does constitute consent. For further discussion of burdens, conventions, and consent, see Pallikkathayil (2019).

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the convention is unjust, it is not a plausible candidate for fixing the scope of consent. To avoid this result, we could adopt a principle that focuses on just conventions: Just Convention Principle. An action A falls within the scope of the consent that X gives to Y if and only if X deliberately engages in behaviour B in a context where there is a just convention according to which B signifies that X is consenting to Y performing A.

This principle avoids the unwanted implications that unjust conventions fix the scope of consent. But the principle comes with a cost. The principle states a necessary condition for an action falling within the scope of someone’s consent: there must be a just convention according to which the consent-giver’s behaviour indicates that they are permitting this action. This necessary condition is not met whenever there is no suitable just convention. A just convention would be absent in a society that is governed by unjust conventions. A just convention would also be absent in a state of nature where there are no conventions at all. Since the necessary condition is not met in these circumstances, the Just Convention Principle implies that no action ever falls within the scope of someone’s consent in these circumstances. That implication is implausible. There is a deeper reason to reject the Just Convention Principle. Even though there is a connection between linguistic conventions and the meaning of someone’s utterance, successful communication is also possible by non-conventional means. Think about how we express consent nonverbally. Some gestures like a thumbs up have conventional meanings. But we can also communicate consent with non-conventional body language: Odd Face. In an established relationship, Amorous wants to change the usual routine by pulling a comically odd face to signal consent to a kiss. Knowing Amorous’s whimsical character and their weakness for kisses, Partner successfully interprets this behaviour as communicating an invitation to kiss them.

Partner has idiosyncratic knowledge about Amorous. Amorous exploits this knowledge to communicate consent with a facial expression. However, there is no convention that this facial expression has that meaning. Indeed, we could imagine that strangers would find the facial expression baffling.

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Can we see Amorous and Partner as establishing a temporary small-scale convention? Not if we are using the standard conception of a convention. The standard conception concerns patterns of behaviour rather than isolated actions (Lewis 1969; Scanlon 1990). But we can assume that Amorous never pulls the odd face again. Because Amorous’s action is isolated, there is no convention about this action. The case illustrates that not all successful communication involves exploiting conventions.³ One-off forms of communication are possible too. To press that point, think about how we express consent indirectly: Doorstep. Halfway through a jog, Jogger rings the doorbell of a friend. Neighbour says, ‘You look so cold standing outside.’ Jogger works out that Neighbour is inviting them to enter.

There is no background convention according to which an invitation is expressed by the sentence, ‘You look so cold standing outside.’ Rather, Neighbour gets their message across by exploiting the conversational context in a way that goes beyond the conventional meaning of the words that Neighbour uses. These cases illustrate that consent is not just expressed through sentences’ conventional meaning. Consent is also communicated through a listener making idiosyncratic inferences about what a particular speaker means on a particular occasion.⁴ When Neighbour says, ‘You look so cold standing outside,’ this will not come as news to shivering Jogger. But Jogger will assume that Neighbour aims to cooperatively communicate something ³ This point has been missed by some advocates of the Mental View, who have assumed that communication must be conventional when criticizing the Behavioural View. See Alexander (2014: 106); Ferzan (2016: 411–12). I speculate that this error may arise because advocates of the Mental View tend to describe the Behavioural View as the view that consent is given by ‘performatives’, and they may be following Austin’s (1962) classic account of performatives, according to which performatives are conventional forms of behaviour. Austin’s account is mistaken on this point, no doubt because Austin defended this account before the rise of the study of pragmatics. For example, a promise is an example of a ‘performative’, and someone could make a promise through a conversational implicature (Grice 1989). ⁴ In other words, consent is also expressed through pragmatics. Our understanding of pragmatics is indebted to the work of Paul Grice (1989), the pioneer of the so-called conversational implicature. My account broadly follows Grice’s. The fact that we communicate via pragmatics is the principal reason why we should reject Bolinger’s (2019: 194–5) account of communication in terms of behaviours that have certain signals. Roughly, Bolinger’s view is that a behaviour B signals a message p when B makes it more likely that p is the case. Bolinger claims that these signals arise both from conventions and from natural evidential connections. Bolinger’s view cannot explain communication via pragmatics. At best, Bolinger’s view could account for communication via semantics.

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newsworthy. So Jogger will work out that Neighbour has a different message in mind. Since Jogger knows that Neighbour has goodwill, the most plausible candidate is an invitation. (Relax the assumption of goodwill, and the same sentence could be a malicious form of gloating.) In this way, Neighbour’s behaviour exemplifies how a speaker can lead a listener to infer what the speaker means to communicate.⁵ This is not to say that conventions are irrelevant to how we communicate consent. Jogger makes inferences about how to interpret Neighbour on the basis of their total evidence. This evidence includes Neighbour’s speech act and the conversational context. This context will include shared assumptions about social and legal conventions. But crucially conventions are just one of many sources of defeasible evidence. The evidence provided by conventions has to be considered alongside other pieces of evidence about what Neighbour intends to communicate. For example, the conversational context also includes information that Neighbour and Jogger share about each other. In light of the fact that additional evidence can also bear on the appropriate way to interpret a speaker, the Just Convention Principle is wrong to entail that only conventions fix the scope of consent. To accommodate these points, we might modify the Just Convention Principle. Here is a schema for a modified principle: Default Just Convention Principle. (1) As a default, Y’s performing action A falls within the scope of the consent that X gives to Y if and only if X deliberately engages in behaviour B that, according to a just convention, signifies that X is consenting to Y performing A. (2) This default is superseded if and only if condition C obtains.⁶

To turn this schema into a specific principle, we would need to specify condition C in clause (2). The idea behind positing clause (2) is to allow for a speaker’s non-conventional communication of consent or dissent to trump the conventional interpretation of the speaker’s behaviour. So what could condition C be? We could say that the condition is that the consent-giver successfully communicates that they are permitting the relevant action. But that just leads us back to the Successful Communication

⁵ The content of this type of communicative intention is often called the ‘speaker’s meaning’ (Grice 1989; Bach 2012). ⁶ Thanks to conversations with Massimo Renzo and Renée Jorgensen Bolinger for the central ideas behind the Default Just Convention Principle.

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Principle and its problematic commitment to the Intention Condition and the Uptake Condition. More promising candidates for condition C are conditions that concern evidence.⁷ Following this line of thought, we could specify the second clause of the Default Just Convention Principle as follows: (2) This default is superseded if and only if either (i) the available evidence supports the interpretation that X intends B to apply to Y performing A or (ii) the available evidence supports the interpretation that X does not intend B to apply to Y performing A.

Perhaps, the clause needs further finessing, but this finessing should be doable. However, we should be unsatisfied with the idea that there are two distinct sources of the scope of someone’s consent, namely a conventional source and an evidential source. Perhaps, this idea is acceptable if it is the only way to get the right results about various cases. But the fact that there are two separate conditions cries out for explanation. It seems that there should be a deeper explanation of why the conventional interpretation wins by default and why it is trumped by other evidence. Here is what I take the explanation to be: Conventions as Evidential Thesis. Conventions are relevant for the scope of someone’s consent only in so far as these conventions provide evidence concerning how to interpret the consent.

This thesis explains both why the conventional interpretation can be trumped by countervailing evidence and why the default is that the conventional interpretation wins the day in the absence of countervailing evidence. But if we understand conventions as significant only evidentially, then this makes salient alternative principles for the scope of consent. These are ‘evidential principles’ that ground the scope of consent in terms of evidence about what the consent-giver’s behaviour means. According to an evidential principle, conventions would be derivatively important as sources of ⁷ In defending a view of what consent is, Bolinger (2019: 196) argues that we should add the following condition: if, on B’s evidence, it was not rational to believe that A intended his behaviour to communicate consent, then a good faith effort requires B to either assume consent has not been given, or seek more evidence.

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evidence about how to interpret the consent-giver’s behaviour. But what fundamentally matters is the evidence itself, and this evidence could come from non-conventional sources. If we accept an evidential principle for the scope of the consent rather than the Default Just Convention Principle, then we would have a simpler and more cohesive account. We should prefer a simpler and more cohesive account if it is extensionally adequate in the sense that it has the correct implications for various cases. Let us now to run to developing a suitably extensionally adequate principle.

10.2 The Available Reliable Evidence Principle Which evidence might determine the scope of consent? One candidate is the evidence that a generic third-party observer would have. But this candidate is not promising. A generic person lacks any special knowledge that the consent-receiver has concerning how to interpret the consent-giver. For example, a generic person could not decode Amorous’s expression in Odd Face, and yet it would be sufficient if Amorous and Partner are on the same page about what this expression means. A better candidate is the consent-receiver’s evidence. Here is a principle along these lines: Simple Evidence Principle. An action A falls within the scope of the consent that X gives to Y if and only if X is giving consent through behaviour, B, and Y’s evidence sufficiently supports the interpretation that X intends B to apply to Y performing A.

This principle supplements the Expression of Will View. The Expression of Will View tells us that consent is given in virtue of the consent-giver engaging in a certain type of behaviour. On the assumption that consent is given, the Simple Evidence Principle grounds the scope of the consent in the consent-receiver’s evidence concerning how to interpret the consent-giver’s behaviour. The Simple Evidence Principle faces a problem. It may be that a consentreceiver has not come across evidence that bears on how to interpret the consent-giver, but this evidence is available to the consent-receiver. Consider a riff on a case that we encountered when we rejected the Uptake Condition in Chapter 6:

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Lawn/Flag. On Monday, Laura puts up a sign with the following message: ‘If I fly a red flag on any particular day, then this indicates that I am permitting Maria to walk on my lawn on that day.’ On Tuesday, Laura flies the red flag. Since Maria is out of town, Maria neither reads the sign nor sees the red flag. On Tuesday, Patricia walks past Laura’s lawn, reads the sign, and sees the flag. That day, Patricia says to Teresa, ‘Maria is allowed to walk across Laura’s lawn today.’

What Patricia says to Teresa is true, and Patricia knows that Maria is allowed to walk across Laura’s lawn. Therefore, Maria has received Laura’s consent to walk across the lawn. This consent is given in virtue of Laura flying the red flag. However, Maria does not possess the relevant evidence that would enable Maria to interpret the flag-flying as consent. Maria lacks this evidence because Maria has not encountered Laura’s sign. To avoid this problem, we could replace the Simple Evidence Principle with a revised principle that concerns the evidence that is available to the consent-receiver. This raises a difficult question as to what constitutes appropriately ‘available’ evidence. We should exclude evidence such that it is impossible or unreasonable for the consent-receiver to gather this evidence. For example, we should exclude an unexpressed thought of the consent-giver on the grounds that a consent-receiver could not discover this thought without further action from the consent-giver.⁸ We should also exclude behaviour that is so private that the consent-receiver cannot appropriately become aware of this behaviour. For example, if Laura wrote a note in a private diary, then this note is not suitably available to Maria without further assistance from Laura. To access the diary, either Maria would have to act in a morally impermissible way or Maria would have to ask Laura to let Maria read the diary. Similarly, if Laura whispers something when no one is around to hear Laura, then this whisper would not count as evidence that is suitably available to Maria. For example, suppose that Laura puts up a sign saying that Maria may cross the lawn, and Laura then whispers, ‘But only at

⁸ Sometimes, people wonder: what about worlds in which we can read each other’s minds? I do not think that we have much to learn about the ethics of consent from thinking about these worlds. The ethics of consent are sensitive to what we are like. An important fact about us is that we cannot read each other’s minds. The normative principles that govern creatures different from us are unlikely to be the same normative principles that govern us. While we can make progress in moral philosophy by considering our intuitions about unusual cases, we are unlikely to make this progress when the cases concern creatures who are importantly different from us.

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3 a.m. each day.’ This whisper would not place a restriction on the scope of Laura’s consent. Similarly, consider: Lawn/Tree. Laura climbs a tall tree and leaves a note saying, ‘If I put a sign up on my lawn permitting Maria to walk on it, then this sign only concerns what Maria may do at 3 a.m.’ Laura then puts up a sign saying that Maria may walk on the lawn.

If Maria is unaware of the note, then the note should not affect the appropriate interpretation of Laura’s sign. For a start, it is unusual for a note to be left at the top of a tree. In addition, there are many trees in the world, and Maria has no reason to think that this particular tree contains a note. To exclude these types of evidence, we could say that evidence is available when the consent-receiver is physically able to discover the evidence in a morally permissible way without further action on the part of the consentgiver. But this definition threatens to exclude too much. Suppose that on Tuesday Maria is far away on a business trip when Laura puts up a sign that says Maria may cross the lawn. If Patricia were to read the sign, then Patricia would know that Maria is permitted to cross the lawn. Patricia would know this even if Maria cannot gather the relevant evidence. Therefore, we should not define ‘available evidence’ in terms of the evidence that Maria is physically able to acquire. Instead, the best that we can do is to define the evidence that bears on the scope of consent as the evidence that the consent-giver and the consentreceiver must reasonably accept as bearing on the appropriate interpretation of the consent. For example, Maria can reasonably reject, if undiscovered, a whisper, a note in a diary, or a note at the top of a tree as evidence that bears on the appropriate interpretation of Laura’s consent. However, Laura must reasonably accept that a sign on the lawn constitutes evidence that bears on the scope of Laura’s consent even if Maria is too far away to read the sign. Appealing to the notion of reasonableness has the further advantage of making sense of consent’s role in interpersonal justification. For a consentreceiver to justify their behaviour by appealing to certain evidence, the consent-giver must reasonably accept that this evidence bears on how their behaviour should be interpreted. Accordingly, let us stipulate the following definition: Reliable Evidence Definition. By stipulation, evidence is defined as ‘reliable evidence’ if and only if the consent-giver and the consent-receiver must

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reasonably accept that this evidence bears on how the consent ought to be interpreted.

Let us use the term ‘available reliable evidence’ to refer to the reliable evidence that is actually available. To anticipate our discussion in Chapter 11, this contrasts with unavailable evidence that a consent-receiver has a duty to acquire. We can use this definition to formulate a principle for the scope of consent: Available Reliable Evidence Principle. An action A falls within the scope of the consent that X gives to Y if and only if X is giving consent through behaviour B, and the available reliable evidence sufficiently supports the interpretation that X intends B to apply to Y performing A.

In Chapter 11, we will see that the Available Reliable Evidence Principle requires an important revision in order to take into account unavailable evidence that a consent-receiver has a duty to acquire. However, a suitably revised principle will not jettison the notion of reliable evidence that we have just defined. Instead, the revised principle will put the notion to a slightly different use. So, while the Available Reliable Evidence Principle is not quite correct, the notion of reliable evidence is the right notion to use when formulating the correct principle for the scope of consent. The Available Reliable Evidence Principle states that the available evidence must ‘sufficiently support’ an interpretation of the consent-giver’s behaviour. It is not enough that the balance of evidence slightly favours a certain interpretation. This evidence must make sufficiently clear that the consent-giver intends to permit the relevant action.⁹ Consider: Foreign Language. Physician tells Foreigner that they are proposing a biopsy and seeks Foreigner’s consent. In faltering English, with mispronunciation, Foreigner says, ‘I . . . agree to the . . . biopsy.’

If we fill in the background details in the right way, then the balance of the available evidence could marginally favour the conclusion that Foreigner is attempting to communicate that they are permitting the biopsy. This

⁹ For discussion of what constitutes sufficiently clear consent, with particular reference to omissions and nonverbal behaviour, see Pallikkathayil (2019).

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evidence would come from the fact that Foreigner utters a sentence that indicates consent to a biopsy, according to the linguistic conventions of English. But even if the balance of the evidence marginally favours this interpretation, the evidence would not sufficiently support this interpretation. There remains too great a risk that the conventional meaning of Foreigner’s utterance does not coincide with the message that Foreigner intends to communicate. The relevant threshold for sufficient support would be sensitive to the stakes of the consent. More evidence is required to authorize an invasive procedure like a biopsy than the use of impersonal property. An advantage of the Available Reliable Evidence Principle it that it avoids a separate problem that confronts the Simple Evidence Principle. This problem concerns the fact that third parties can provide a consent-receiver with misleading evidence about how to interpret the consent. Consider a riff on a case from Chapter 6: Scope Prank. Chair welcomes new staff by saying, ‘Feel free to drop by my office whenever you want.’ By saying this, Chair intends to permit staff to visit them during normal working hours. Colleagues play a prank on foreign Post-Doc. Colleagues tell Post-Doc that by saying this, Chair intends to permit Post-Doc to enter the office late at night when Chair has gone home.

The prank provides Post-Doc with evidence concerning how to interpret Chair’s consent. If we were to make certain assumptions about the rest of Post-Doc’s evidence, then the Simple Evidence Principle would imply that the prank affects the scope of Chair’s consent. That implication is unacceptable. Intuitively, Chair does not unintentionally consent to Post-Doc turning up late at night just because Colleagues have played a prank. To avoid this result, we must reject the Simple Evidence Principle. The Scope Prank case is not a problem for the Available Reliable Evidence Principle because that principle allows us to exclude misleading evidence from third parties. A consent-giver can reasonably object to misleading third-party testimony being used to interpret their consent. If this testimony were used for interpreting their consent, then this interpretation could be distorted by conversations between the consent-receiver and third parties. Given the consent-giver would be unaware of these conversations, the consent-giver would not be able to control how their consent-giving behaviour is interpreted by the consent-receiver. Consequently, if these

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conversations were to provide the consent-receiver with misleading testimony, then the consent-giver could reasonably maintain that this testimony should not bear on the appropriate interpretation of their consent. This rationale for rejecting the third-party testimony crucially depends on the fact that the testimony is misleading in the sense that the evidence brings the consent-receiver further from understanding the consent-giver as they intend to be understood. There is no similar rationale for rejecting testimony that is accurate in the sense that the evidence leads the consent-receiver closer to understanding the consent-giver as they intend to be understood. If the consent-giver is unaware of this accurate testimony, then the consentgiver cannot take this testimony into account when shaping their consentgiving behaviour. But this does not mean that the consent-giver has grounds for reasonably excluding the accurate testimony from evidence that bears on how they are interpreted. Since the testimony is accurate, it is unobjectionable for the consent-receiver to be guided by the testimony when interpreting the consent. It will sometimes not be apparent to a consent-receiver whether the testimony that they have received is misleading or accurate. As a result, a consent-receiver will sometimes be unable to tell whether an action falls within the scope of the consent that they have received. Therefore, the consent-receiver is not always in a position to know the scope of this consent. This conclusion is unavoidable in light of the Scope Prank case. Because of the misleading evidence from Colleagues, Post-doc does not know the scope of Chair’s consent. As well as appealing to evidential considerations, someone can also appeal to moral considerations in order to reasonably reject a source of evidence from bearing on the interpretation of consent. Consider our prior example of an unjust convention, according to which someone’s clothing choices bear on the conventional interpretation of their consent. In this example, if a woman wears certain clothes and initiates kissing, then this conventionally signifies consent both to kissing and more intimate sexual activity. Let us assume that a particular woman is aware of this convention but chooses to wear this clothing and kiss someone without intending to permit intimate sexual activity. Because the woman is aware of the convention, she can control the interpretations that others form on the basis of the evidence that this convention provides. In that respect, the woman’s position differs from the position of Chair in the Scope Prank case. Even so, the woman can reasonably reject the conventional interpretation of her behaviour on the grounds that the convention is unjust. She has a legitimate interest in

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wearing this clothing and a legitimate interest in kissing people. She is entitled to pursue these interests without releasing others from their duties to refrain from engaging in intimate sexual activity with her. Consequently, she can reasonably object to anyone using the unjust convention as evidence that bears on how her consent is to be interpreted. Things are different when a consent-giver knows about a just convention. The consent-giver must reasonably recognize that there is a general need for shared authoritative standards that bear on how consent should be interpreted. Just conventions are ideally suited to provide these standards. If the convention is just and the consent-giver is aware of the convention, then the consent-giver has an adequate opportunity to decide whether to engage in behaviour that is governed by the convention. An opportunity would be adequate in the sense that the consent-giver can modify their behaviour without unduly setting back other legitimate interests of theirs. Consequently, a consent-giver must reasonably accept that a just convention provides a source of defeasible evidence concerning how their consent should be interpreted. Beyond conventions, a consent-giver must also reasonably accept that their consent-giving behaviour should be interpreted in light of evidence from other features of the conversational context. One example is the consent-receiver’s knowledge of the consent-giver’s personality or character. Another example would be the recent history of the conversation. This would include the recent interactions between the consent-giver and the consent-receiver as these interactions set the scene in which the consent is given. In this regard, we can make use of Japa Pallikkathayil’s (2019) distinction between solicited and unsolicited consent. Solicited consent is given in response to a request or a proposal from the consent-receiver, while unsolicited consent is given without prompting.¹⁰ Pallikkathayil points out that it is more difficult for non-verbal behaviour to communicate unsolicited consent than it is for non-verbal behaviour to communicate solicited consent.

¹⁰ Pallikkathayil also distinguishes both solicited consent and unsolicited consent from ‘presupposed consent’. Pallikkathayil’s idea is that some speech acts, such as requests, presuppose that the speaker is giving consent. For example, if a speaker asks a friend to move the speaker’s car, then this request presupposes that the speaker is consenting to the friend moving the car. In the terms of the Expression of Will View, Pallikkathayil’s ‘presupposed consent’ could either be an implicit expression of permission or a directive. Our discussion in Chapter 9 shows that not all directives implicitly express permission. For example, in the Tattoo/Sober case, Hipster requests a tattoo while explicitly denying that they are granting Tattooist a permission. This explicit denial would cancel any presupposition to the effect that Hipster is expressing permission.

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The prior solicitation is an important part of the context that bears on how the consent-giving behaviour should be interpreted.

10.3 Summary We considered various principles that appeal to conventions to determine the scope of consent (Section 10.1). However, these principles fail to correctly specify consent’s scope in situations where these conventions are absent. In addition, consent can be communicated by non-conventional means. When we take this point into account, we should conclude that consent’s scope is fixed by evidence, with conventions providing one source of evidence. This raises the question of which evidence determines the scope of consent (Section 10.2). Since the consent-receiver may have misleading evidence, the scope is not determined by the totality of the consent-receiver’s evidence. In addition, the scope may be determined by evidence that a consent-receiver does not yet possess, even though it is publicly available. To capture these points, the Available Reliable Evidence Principle states that the scope of consent is fixed by the available ‘reliable evidence’. We can summarize our elaboration of the Available Reliable Evidence Principle in terms of the following five claims: (1) The scope of consent turns on the reliable evidence about what the consent-giver intends to cover by engaging in consent-giving behaviour. Evidence is reliable if and only if the consent-giver and the consent-receiver must reasonably accept that this evidence bears on how the consent ought to be interpreted. (2) The scope depends on the reliable evidence that is actually available, even if the consent-receiver is not aware of the evidence. (3) In order for reliable evidence to imply that an action falls within the scope of the consent, this evidence must sufficiently support this interpretation. The threshold for support is context-sensitive and depends on the stakes of the consent. (4) Reliable evidence can come from multiple sources. If a consent-giver knows about just conventions, then these conventions are one source. Another source is the conversational context, including the consent-receiver’s knowledge of the consent-giver. No evidential source is privileged, and each is defeasible.

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(5) With respect to how their consent should be interpreted, a consentgiver can reasonably reject misleading evidence that the consentreceiver receives from third-parties. There is an asymmetry with accurate testimony, as a consent-giver cannot reasonably reject this as bearing on the appropriate interpretation of their consent.

11 The Due Diligence Principle ‘Turning a blind eye’ is an expression that started with an anecdote about Admiral Nelson, who had lost the sight of one eye. In the Napoleonic Wars, Nelson was at the forefront of a British attack on the Danish fleet stationed in Copenhagen. Meanwhile, Nelson’s commanding officer, Admiral Parker, sat back at a safe distance, observing how things were going. After the attack got off to a bad start, Parker hoisted a flag to command Nelson to retreat. Judging that it was better to continue the offensive, Nelson said to a shipmate, ‘I have only one eye. I have a right to be blind sometimes.’ Holding a spyglass to the eye that lacked vision, Nelson added, ‘I declare, I really do not see that signal.’ After the attack succeeded, the British government recalled Parker from duty and gave their job to Nelson. The British government’s tolerance of Nelson’s behaviour turned entirely on the victory. The government would not have been impressed by the defence that Nelson’s evidence indicated that their orders were to continue with the attack. For a start, it is dubious whether Nelson’s evidence really did indicate this. If Nelson was not suspicious that Parker was signalling a retreat, then why did Nelson refuse to look at the flag? But even if Nelson’s evidence did favour this conclusion, Nelson could not justify relying on this evidence. It was easy for Nelson to acquire additional evidence that would have settled the matter. Nelson only had to hold the spyglass up to the other eye. A similar point holds for consent. If a consent-receiver can take reasonable steps to acquire additional evidence concerning how to interpret the consentgiver, then the consent-receiver cannot reasonably rely on the evidence that is currently available. Since the Available Reliable Evidence Principle focuses only on the reliable evidence that is currently available, this means that we need to revise the principle. In its place, I propose the Due Diligence Principle. This principle grounds the scope of consent partly in terms of the available reliable evidence and partly in terms of the union of this evidence and any additional evidence that the consent-receiver has a duty to acquire. In this chapter, we will develop the Due Diligence Principle as follows. In Section 11.1, we will introduce the idea that we have duties of due diligence to investigate what someone intends to cover with their consent-giving The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0012

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behaviour. In Section 11.2, we will appeal to these duties to develop the Due Diligence Principle.

11.1 Duties of Due Diligence to Investigate Consent If we are not satisfied that we have understood what someone said, then we can ask them to clarify what they meant. Sometimes, we seek this clarification because we cannot form any confident hypothesis about what they are trying to communicate. At other times, we seek this clarification when we already have a good guess about what they meant, but we want to know for sure. When they clarify what they meant, they provide us with additional evidence with which we can interpret what they said. This point applies to consent. When someone’s consent-giving behaviour is ambiguous, we often need to investigate which actions they intend to permit with this behaviour. Consider the Foreign Language case from Chapter 10: Foreign Language. Physician tells Foreigner that they are proposing a biopsy and seeks Foreigner’s consent. In faltering English, with mispronunciation, Foreigner says, ‘I . . . agree to the . . . biopsy.’

Since there is too much room to doubt that Foreigner meant to permit a biopsy, Physician would have a ‘duty of due diligence’ to clarify what Foreigner meant to permit. How should we characterize a duty of due diligence? Suppose that an agent is considering whether to perform an action for which they need another individual’s consent. The agent would have an investigative duty to ascertain whether the other individual is deliberately engaging in behaviour that constitutes consent.¹ On the assumption that this individual is giving consent, the agent would also have a duty to find out which actions the individual intends to cover with their consent.² Consequently, if the

¹ I defend this view in Dougherty (2018b). Alexander Guerrero (forthcoming) also develops an account of our duties to investigate each other’s consent in the context of discussing affirmative consent policies. Guerrero argues that whether someone discharges these duties bears on their culpability. ² One plausible ground of this investigatory duty is that its breach is a form of disrespect: if an agent fails to investigate whether a partner is willing to engage in this activity, then the agent would be acting as though they are willing to subject someone to non-consensual activity. Discussing the law, Westen (2004: 161) says that failing to investigate someone’s willingness constitutes a ‘dignitary harm’. Compare the wrong associated with Acting With Disregard that we discussed in Chapter 6.

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agent plans on performing an action for which they need the individual’s consent, the agent would have a duty to investigate that the individual intends to consent to this action. These investigative duties have a temporal profile.³ Often, people do not give blanket consent to the performance of an action at any time in the future. For example, if your friend says that you may borrow their pen, then they normally mean that you can borrow their pen in the near future. In light of this point, for the purposes of theorizing the scope of consent, we should individuate actions according to the time at which they are performed. Borrowing the pen at 10 a.m. would be a different action from borrowing the pen at 11 a.m. If your friend consents to your borrowing the pen at both times, then the scope of their consent includes a set of actions which includes the action of borrowing the pen at 10 a.m. and the action of borrowing the pen at 11 a.m. Once we individuate actions according to the times at which they are performed, we can say more about the duties that a consent-receiver has to investigate how far consent extends into the future. Often, it is sufficiently clear that the consent-giver intends to cover actions at times that are in the near future. But often there will be a future time, tf, for which it is insufficiently clear that the consent-giver intends to cover the performance of an action at this time. When this unclarity exists, if the consent-receiver plans to perform an action at this future time, tf, then the consent-receiver has a duty of due diligence to investigate whether the consent-giver means to cover this action at tf. This duty of due diligence is a duty to adequately investigate what someone meant to cover with their consent. The phrase ‘adequately investigate’ is deliberately vague in light of the fact that the appropriate forms of investigation are context-sensitive. It would matter whether the consent is ‘low-stakes’ consent, such as consent to minor uses of each other’s property, or ‘high-stakes’ consent, such as invasive medical surgery. Often, adequate investigation is not equivalent to maximal investigation. For example, someone may have no reason to be aware that there is a need to acquire further evidence. Recall the Date Mistake case in which Landlord asks Tenant if it is okay to show the apartment on the 30th. Tenant does not intend to permit Landlord to show the apartment on Mondays. However, because Tenant mistakenly believes that the 30th is a Tuesday, Tenant ³ Time’s passage also matters in another respect. The moral force of consent projects only so far into the future. Someone might be explicit that a neighbour can take a shortcut across their lawn at any time in the future. This would mean that any future shortcut falls within the scope of the consent. But the moral force of the consent itself would eventually wear out. For example, ten years later, the neighbour would need a separate token of consent.

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replies that it is okay for Landlord to show the apartment on the 30th. Assuming that Landlord has no reason to suspect that Tenant is confused about the dates, Landlord has no duty to ask, ‘Wait are you sure you know which day of the week the 30th is? Can I clarify that you meant Monday the 30th?’ Clarifying this would be over the top. One reason is that this investigation would be costly. Relevant costs would include the opportunity costs to people’s time when they could be getting on with their lives. In addition, investigation may be costly in the respect that it is insulting to the consent-giver. That said, if costless investigation would help clarify whether a consent-giver meant to cover an action, and the agent intends to perform this action, then the agent would usually need to carry out this investigation. It is worth noting one important way that we can investigate whether someone intends to cover an action: we can disclose information about this action. Consider the Foreign Language case. Because of Foreigner’s limited grasp of English, the available reliable evidence does not sufficiently support the conclusion that Foreigner means to permit a biopsy. To get sufficiently strong evidence, Physician could explain to Foreigner what a biopsy involves. If Foreigner still agrees to the biopsy after this explanation, then there is now compelling evidence that Foreigner intends to permit the biopsy by giving consent. In this way, the goal of clarifying someone’s consent can provide a rationale for disclosing information. Since disclosing relevant information is part of seeking someone’s informed consent, this furnishes a rationale for informed consent. This rationale is that informing a consent-giver can bring to light evidence that matters for the scope of their consent.⁴

11.2 The Due Diligence Principle for the Scope of Consent We have just been discussing our duties of due diligence to investigate which actions a consent-giver intends to cover. Our last task is to investigate the moral significance of these duties for the scope of consent. The Available Reliable Evidence Principle focuses on the reliable evidence that is currently available. I called this the ‘available reliable evidence’. As we

⁴ I discuss other rationales for informed consent in Dougherty (2020). For other work on informed consent, see Faden & Beauchamp (1986); Sreenivasan (2003); Manson & O’Neill (2007); Walker (2012); Bromwich & Millum (2013); Bromwich (2015); Millum & Bromwich (2018).

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saw in Chapter 10, the consent-receiver need not be aware of this evidence. Still, it must be the case that the evidence is suitably available. In addition to this evidence, there may be unavailable evidence that the consent-receiver has a duty to acquire. This evidence would supplement the available reliable evidence. To refer to this supplemented body of evidence, let us introduce the following definition: Enhanced Reliable Evidence Definition. By stipulation, the ‘enhanced reliable evidence’ is defined as the available reliable evidence, supplemented by any reliable evidence that the consent-receiver has a duty to acquire.⁵

In what follows, we will develop a way to use this definition when formulating a principle for the scope of someone’s consent. Should the scope of someone’s consent be fixed by the available reliable evidence? Should the scope be fixed by the enhanced reliable evidence? Should the scope be fixed by both pools of evidence? To answer these questions, let us consider an arbitrary instance of consent-giving behaviour, and let us consider the interpretation that the consent-giver intends to cover an action with this behaviour. This interpretation could be: (1) sufficiently supported by the available reliable evidence and sufficiently supported by the enhanced reliable evidence; (2) insufficiently supported by the available reliable evidence and insufficiently supported by the enhanced reliable evidence; (3) sufficiently supported by the available reliable evidence but insufficiently supported by the enhanced reliable evidence; (4) insufficiently supported by the available reliable evidence but sufficiently supported by the enhanced reliable evidence. The first two possibilities are easy to analyse. In the case of (1), it is obvious that the action falls inside the scope of the consent. In the case of (2), it is obvious that the action falls outside the scope of the consent. The difficult questions concern the other two possibilities, (3) and (4).

⁵ To be clear, this definition focuses on actual phenomena. Specifically, it concerns the evidence that someone has a duty to acquire. It is not a counterfactual definition concerning the evidence that someone would have, were they to behave in a certain way.

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When possibility (3) arises, the available reliable evidence indicates that the consent-giver intends to cover the relevant action with their consent. Is this enough to justify the consent-receiver in performing this action? No. The consent-receiver owes the consent-giver a duty to acquire additional reliable evidence. Since the consent-receiver owes a duty to the consentgiver to acquire this evidence, the consent-giver could demand that the consent-receiver acquires this evidence. Consequently, the consent-giver could reasonably insist that their consent should be interpreted on the basis of this evidence. This evidence indicates that the consent-giver does not intend to cover the action. As a result, the consent-giver could reasonably insist that they should be interpreted as not intending to cover this action. As a result, the consent-giver could complain about the consentreceiver performing that action. This means that the consent-receiver could not justify performing that action on the basis of the consent that they have received. What about possibility (4)? When this possibility arises, the enhanced reliable evidence indicates that the consent-giver intends to cover the relevant action with their behaviour. Is this enough to justify the consentreceiver in performing this action? No. This enhanced reliable evidence is not currently available. Moreover, the reason why it is not currently available is that the consent-receiver has not carried out their duty to acquire this evidence. Consequently, the consent-receiver could not appeal to this unavailable evidence to justify performing the action to the consentgiver. The reason why is not that the consent-receiver does not possess the evidence, as interpersonal justification is not limited to evidence that one has. However, even if an agent does not possess certain evidence, the evidence must be suitably available for the agent to appeal to this evidence to justify their behaviour. Meanwhile, by assumption, the available reliable evidence does not provide sufficient support for the interpretation that the consent-giver intends to cover this action. Therefore, the consentreceiver could not appeal to the consent-giver’s behaviour to justify performing the action. Therefore, the action does not fall within the scope of the consent. To illustrate why the available reliable evidence matters independently of the enhanced reliable evidence, consider a case in which the available reliable evidence changes over time: Tattoo/Confirmation. A tattoo parlour offers both temporary henna tattoos and permanent ink tattoos. Some designs are for temporary tattoos, and others are for permanent tattoos. The following conversation takes place:

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t1. Customer points to the dragon tattoo and says, ‘I want you to give me that tattoo.’ t2. Tattooist does not investigate whether Customer meant to request a permanent or henna tattoo. Tattooist is about to start the tattoo when the telephone rings, and Tattooist takes the call. t3. After the telephone call is over, Tattooist remembers to investigate what exactly Customer is giving consent to. Tattooist asks, ‘Do you realize that this is one of the permanent tattoos?’ t4. Customer says, ‘Yes.’

Let us assume that the exchange at t3 and t4 is sufficient for Tattooist to discharge their duty of due diligence to investigate what Customer intends to cover by requesting the dragon tattoo. This means that at t4, the available reliable evidence is equivalent to the enhanced reliable evidence. On that assumption, at t4 the dragon tattoo falls within the scope of Customer’s consent. It does so because at t4 both the available reliable evidence and the enhanced reliable evidence sufficiently support the interpretation that Customer intends to cover this tattoo with their consent. But we have to decide whether it was also the case that at t2 the tattoo fell within the scope of Customer’s consent. My view is that it did not. In order to justify their behaviour to Customer at a certain time, Tattooist is constrained by the evidence that is available at that time. However, at t2, the available reliable evidence insufficiently supported the interpretation that Customer intends to cover the tattoo with their consent. Therefore, Tattooist could not justify giving Customer the tattoo at t2. From this analysis, it follows that an action falls within the scope of the consent only when possibility (1) arises. However, the Available Reliable Evidence Principle mistakenly implies that when possibility (3) arises, the relevant action falls within the scope of the consent. Therefore, the Available Reliable Evidence Principle is false. Our analysis indicates how we should modify the Available Reliable Evidence Principle. We should endorse a principle that requires that both the available reliable evidence and the enhanced reliable evidence sufficiently support the interpretation that the consent-giver intends to cover the action with their consent. This implies that the scope of someone’s consent can change over time. In the Tattoo/Confirmation case, at t2, the dragon tattoo fell outside the scope of Customer’s consent, while, at t4, the tattoo falls within the scope of their consent. To capture the fact that the scope of consent evolves over time, we should formulate our principle so that it indexes consent’s scope to specific times:

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Due Diligence Principle. At time t, an action A falls within the scope of the consent that X gives to Y if and only if (i) at t, X gives consent or, prior to t, X has given consent and has not subsequently revoked this consent; (ii) at t, the available reliable evidence sufficiently supports the interpretation that X intends their consent-giving behaviour to apply to Y performing A; and⁶ (iii) at t, the enhanced reliable evidence also sufficiently supports this interpretation.

The principle relies on an independent view of what someone must do in order to give consent. This independent view is the Expression of Will View from Chapters 8 and 9. The Due Diligence Principle correctly implies that an action falls within the scope of the consent in possibility (1), but not in possibilities (2)–(4). With respect to clause (ii), the available reliable evidence includes any remarks from the consent-giver that clarify what they meant by an earlier utterance. For example, in the Tattoo/Confirmation case, the available reliable evidence at t4 includes Customer’s clarifying remark ‘Yes.’ The entire conversation includes this remark, even though it is distinct from Customer’s behaviour at t1 that constituted their consent.

11.3 Limitations of the Evidential Account I have completed my defence of the Due Diligence Principle, which I endorse as the principle that determines the scope of consent. This defence has involved pairing the principle with the Expression of Will View of what constitutes consent. Together, this principle and this view enjoy two types of support. First, they have the explanatory power to predict intuitive results about the various cases that we have encountered. Second, this principle and view are motivated by the Interpersonal Justification Argument. According to this argument, consent is morally significant as a consideration that the consent-receiver could appeal to in order to justify their behaviour to the consent-giver. This supports both a view of consent as an expression of the will that facilitates interpersonal justification and a principle for consent’s scope that concerns the type of evidence that a consent-receiver could reasonably offer when engaging in interpersonal justification. The Due Diligence Principle characterizes the evidence that can play this role ⁶ Thanks to Victor Tadros for help with this clause.

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in interpersonal justification. Together, the Interpersonal Justification Argument, the Expression of Will View, and the Due Diligence Principle make up what I call the ‘Evidential Account’. While I take this defence to show that we have most reason to adopt the Evidential Account, I do not want to overstate the strength of this defence. Making visible the limitations of an account is important both to enable the account to be refuted or reinforced and to bring out the difficulty of choosing between candidate principles for the scope of consent. Understanding the philosophical difficulty of a question is a type of intellectual progress, above and beyond any progress that we make towards providing the right answer to the question. One important limitation of the Evidential Account is that a lot of heavy lifting is done by the notion of what evidence someone must reasonably accept. Since I think that it is impossible to define reasonableness in this context, this is a primitive notion in the Evidential Account. Consequently, to apply the account, we have to rely on our intuitive grasp of this normative notion. In so far as we have to rely on normative intuition when applying a principle like the Due Diligence Principle, the principle is less explanatory. By contrast, we do not need to rely on normative intuition when applying the Permissive Intention Principle. To apply the Permissive Intention Principle, we simply need to know the content of a consent-giver’s permissive intentions. Similarly, we do not need to rely on normative intuition to apply the Successful Communication Principle. We only need to know what the consent-giver successfully communicated to the consent-receiver. In so far as the Due Diligence Principle has less determinate implications, when unassisted by intuition, than the Permissive Intention Principle and the Successful Communication Principle, this is a comparative disadvantage of the Due Diligence Principle. In my view, this is outweighed by the Due Diligence Principle’s comparative advantages. In particular, the Due Diligence Principle has the comparative advantage that it entails that consent is a public phenomenon while avoiding the objections that face the Uptake Condition and the Intention Condition. Another limitation of the Evidential Account is its complexity. One aspect of this complexity is that a multitude of moral considerations bear on what evidence someone must ‘reasonably’ accept. A second aspect is that the Expression of Will View allows for two different ways that someone can consent: they can consent either by deliberately expressing permission or by deliberately issuing a directive. A third aspect concerns the fact that the Due Diligence Principle implies that the scope of consent is simultaneously

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determined both by the reliable evidence that is available and by the reliable evidence that the consent-receiver has a duty to acquire. By contrast, rival accounts are each focused around a unitary phenomenon. The Mental Account focuses on the consent-giver’s permissive intentions, while the Successful Communication Account focuses on what is successfully communicated between the consent-giver and the consent-receiver. These rival accounts are attractively elegant not only because they are simple but also because they have considerable cohesion and unity. While I accept that this is an important limitation to the Evidential Account, I see it as outweighed by two competing considerations. First, we face a trade-off between the theoretical virtue of elegance and the theoretical virtue of extensional adequacy. While the Mental Account and the Successful Communication are more elegant, this elegance comes with the cost that these accounts have counterintuitive implications for various cases. In particular, these rival accounts have counterintuitive implications for the cases that we encountered in Chapters 6 and 7, which fuelled the objections to the Uptake Condition and Intention Condition. If we accept our intuitions about the cases that we have encountered in this book, then this suggests that the phenomenon that we are investigating is itself complex. If so, then an account must be correspondingly complex to fit this phenomenon. That said, there is a further methodological question about how much intuitive cost we should bear for the sake of a more elegant and unified theory.⁷ My defence of the Evidential Account strikes the balance in favour of avoiding counterintuitive implications. It is hard to argue for how to strike this type of balance, and this limits my ability to persuade anyone who is inclined to strike the balance in a different way. The second competing consideration is that the Evidential Account does enjoy a significant degree of theoretical unity in so far as it is organized around the idea that we should account for consent’s nature and scope in terms of how consent features in interpersonal justification. This does not restore simplicity to the account because the notion of interpersonal justification is complex. However, this does at least make the Evidential Account more internally cohesive. The account’s complexity is not engendered by a series

⁷ For example, even though act-utilitarianism has counterintuitive implications, some accept the theory on the grounds that the theory has other theoretical virtues: the theory is unified and simple, it provides determinate verdicts for cases, and it has a rationale that is attractive in the abstract.

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of modifications that are made in isolation from each other. Instead, this complexity arises from working through the details of a bigger-picture idea. However, in so far as the Evidential Account’s theoretical cohesion depends on approaching the ethics of consent in terms of interpersonal justification, the account is vulnerable to objections that can be raised against the interpersonal justification approach. Accordingly, I will complete my defence of the Evidential Account by responding to what I consider the most pressing objections in this regard. One objection is that the interpersonal justification approach gets the order of explanation the wrong way round. According to the approach, the fact that an agent could justify performing an action to a patient explains why the action does not wrong the patient. An objector could maintain that the reverse is true: the fact that an action does not wrong a patient explains why an agent could justify performing the action to the patient. On the grounds that it would be viciously circular to appeal to X to explain Y while also appealing to Y to explain X, the objector would resist appealing to the fact that an agent could justify performing the action to a patient in order to explain why the action does not wrong the patient. I am unmoved by this objection. Order of explanation arguments do not carry much weight when, as is often the case, we feel ambivalent about which order of explanation appears correct when considered in the abstract. Instead, I think that the best way to resolve these explanatory issues is to consider theoretical frameworks holistically and to compare how well these frameworks facilitate explanation. In this light, the paradigm of interpersonal justification is a particularly fruitful framework for accounting for a great deal of interpersonal ethics, including the ethics of consent.⁸ One source of evidence of this is that the interpersonal justification approach provides successful explanations of the intuitive verdicts concerning the various cases that we have encountered.

⁸ Another way to respond to the objection is to endorse a broader theory of normative ethics that systematically explains the permissibility of actions in terms of interpersonal justification. An example would be Scanlon’s (1998) contractualist theory that an action is wrong if and only if the action is prohibited by a principle that no one could reasonably reject. Part of Scanlon’s idea is that an agent could not justify their behaviour to an individual by appealing to a principle if this individual could reasonably reject the principle as a candidate for a shared moral code that governs the agent’s and individual’s interactions. It is beyond the scope of this book to explore in detail the pros and cons of Scanlon’s theory. Instead, I will simply clarify that I do not here presuppose that Scanlon’s theory is correct either as a comprehensive theory of morality or as a comprehensive theory of interpersonal morality.

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In addition, the interpersonal justification approach is particularly fruitful for giving accounts of aspects of the ethics of consent besides those that have been our focus in this book. In particular, the approach is fruitful for explaining how consent can be invalidated in virtue of the consent-giver being coerced or uninformed. Since I have explored these issues in detail elsewhere, I will sketch only briefly how the interpersonal justification approach can help. Why do some coercive threats invalidate consent? Because the consent-giver has a complaint against the consent-receiver making this threat. In light of the consent-giver’s complaint against the way that the consent has been obtained, the consent-receiver could not justify their behaviour to the consent-giver by appealing to this consent (Dougherty forthcoming). Similarly, suppose that, as a result of failing to disclose certain information, a consent-receiver has breached a duty to put the consent-giver in a better position for deciding whether to consent. If this breach explains why the consent-giver consents, then the consentgiver would have a complaint about how their consent has been obtained. Because the consent-giver has a complaint against the way that their consent has been obtained, the consent-receiver could not justify their behaviour to the consent-giver by appealing to this consent (Dougherty 2020). In this way, the interpersonal justification approach establishes connections between two sets of complaints. On the one hand, there are consent-givers’ complaints against the way that their consent has been obtained. On the other hand, there are consent-givers’ complaints against the performance of the actions to which they gave consent. Accordingly, the interpersonal justification approach is ideally suited for explaining why one wronging, such as that involved in obtaining someone’s consent by coercion or non-disclosure, can lead to a separate wronging of acting without someone’s valid consent. Still, even if an interpersonal justification approach is useful for theorizing the ethics of consent, this does not yet address a narrower objection that there is a particular respect in which the Due Diligence Principle gets the order of explanation the wrong way round. Let us distinguish two sets of facts. First, there are facts about which actions fall within the scope of someone’s consent. Second, there are facts concerning the evidence that the consent-giver and the consent-receiver must reasonably accept as bearing on how the consent is interpreted. The Due Diligence Principle explains the first set of facts in terms of the second set of facts. However, an objector might maintain that the second set of facts is explained in terms of the first set of facts. On the objector’s view, the scope of the consent itself determines

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what evidence the consent-giver and the consent-receiver should accept as relevant to how the consent should be interpreted. I think that we are unlikely to satisfactorily adjudicate this type of objection if we remain at a high level of abstraction. Instead, to determine whether the objection has force, we should focus on a particular explanation that is furnished by the Due Diligence Principle and consider whether we find this explanation compelling. Suppose that Laura puts up a sign saying that Maria may walk on the lawn, but Laura whispers that Maria may only do so at 3 a.m. I take it to be a datum that Maria could reasonably reject the whisper as evidence that bears on how the sign should be interpreted. According to the objection under consideration, the fact that Maria could reasonably reject the whisper as evidence that bears on how Laura’s scope should be interpreted would be explained by a fact about the scope of Laura’s consent. For example, this could be the fact that Maria’s walking on the lawn at different times falls within the scope of Laura’s consent. That explanation is not as attractive as the explanation that I endorse. My preferred explanation is that Maria can reject the whisper as evidence on the grounds that the whisper is so private that it is unreasonable to expect Maria to discover the whisper. Once we have this case clearly in view, I take it to be compelling that the epistemic inaccessibility of the whisper explains why the whisper does not bear on the scope of consent. That is the explanation that is secured by the interpersonal justification approach. However, even if we adopt an interpersonal justification approach for addressing the topic of the scope of consent, there remains a further question about how to correctly implement the approach with respect to this topic. The correct implementation will depend on the way in which facts or evidence should feature in interpersonal justification. If an agent attempts to justify their behaviour to another individual, to what extent must this attempt be based on the factual circumstances of the behaviour? To what extent may this justification take into account the agent’s evidence or the individual’s evidence about the circumstances in which the behaviour took place? As we might put the point, to what extent is interpersonal justification fact-relative and to what extent is it evidence-relative? If interpersonal justification is universally fact-relative, then considerations of interpersonal justification should not lead us to adopt the Due Diligence Principle, which grounds the scope of consent in certain evidence. My response to this objection is that it is implausible that interpersonal justification is universally fact-relative. Consider self-defence. Someone can forfeit their right against defensive harm by providing a victim with evidence

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that they pose a threat. Suppose that an agent draws a replica gun in order to frighten a victim into thinking that they will be killed.⁹ Although the agent poses no threat, the agent provides the victim with evidence that they pose a threat. The victim could appeal to this evidence in order to disable the agent with their Taser. Similarly, one way that communication can proceed is via a speaker providing a listener with evidence with which to interpret the speaker.¹⁰ If appropriate background circumstances obtain, then the listener could appeal to this evidence to justify their behaviour to the speaker. In this way, we can allow that an agent’s evidence can feature in interpersonal justification without adopting the implausible position that interpersonal justification is simply a matter of the agent’s evidence.¹¹ The agent’s evidence can play this circumscribed role in interpersonal justification when the individual has provided the agent with this evidence. Since that condition is satisfied in the case of consent, it is appropriate for the Due Diligence Principle to ground the scope of consent in facts about evidence.

11.4 Summary A consent-receiver can have certain duties of due diligence to investigate what a consent-giver meant when they gave consent (Section 11.1). What counts as adequate investigation depends on the stakes of the consent and the costs of investigating. This investigation can be carried out in various ways. One way is for the consent-receiver to disclose information about an action. This disclosure can reveal whether the consent-giver aims to cover this action when giving consent.

⁹ For discussion of the role that bluffs play in self-defence, see Ferzan (2017). ¹⁰ This is not to say that all aspects of communication are evidential. As we noted in Chapter 9, there are facts concerning the conventional meaning of certain utterances, and these facts hold independently of the evidence of the speaker and the listener. ¹¹ The topic of self-defence also shows why it is implausible that interpersonal justification is universally based on the evidence of an agent. Recall McMahan’s (2009: 164) Twin case, which we discussed in Chapter 8. In this case, Murderer’s innocent Twin is mistaken by Resident as an aggressor. Even if Resident has compelling evidence that Twin is likely to murder them, Twin’s innocence implies that they do not forfeit a right against Resident inflicting harm on Twin in self-defence. Resident could not successfully justify imposing this harm simply by appealing to their evidence that Twin posed a threat. (The absence of this justification is consistent with Resident having an excuse for imposing the harm in the sense that Resident would do so nonculpably.) I also take our discussion of an agent’s duties of due diligence to acquire evidence to show that interpersonal justification concerns more than the evidence that an agent actually possesses.

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If the consent-receiver has a duty to acquire additional evidence concerning how to interpret the consent-giver, then this evidence bears on the scope of the consent (Section 11.2). The ‘enhanced reliable evidence’ is the union of the available reliable evidence and the additional reliable evidence that the consent-receiver has a duty to acquire. An action falls within the scope of someone’s consent only if the enhanced reliable evidence sufficiently supports the interpretation that the consent-giver means to cover this action when giving consent. This is a separate necessary condition to the requirement that the available reliable evidence also sufficiently supports this interpretation. Together, the Expression of Will View, the Interpersonal Justification Argument, and the Due Diligence Principle make up the Evidential Account (Section 11.3). This account has various limitations. Since the account takes the notion of reasonableness as a primitive notion, we need to rely on normative intuition to guide our judgements of what counts as reasonable. To the extent that we rely on intuition in this way, the account is less explanatory. In addition, the account is more complex, and hence less elegant, than the Mental Account and the Successful Communication Account. These limitations are outweighed by two types of support for the Evidential Account. First, the Evidential Account does a better job of predicting the correct verdicts about cases. Second, the Evidential Account has internal cohesion in virtue of being unified around the bigger-picture idea that we should understand the ethics of consent in terms of interpersonal justification.

12 Conclusions We have completed our quest for the principle that governs the scope of someone’s consent. The scope is determined by evidence that is ‘reliable’ in the sense that both the consent-giver and the consent-receiver must reasonably accept this evidence as bearing on how the consent ought to be interpreted. Specifically, the scope of consent is determined partly by the reliable evidence that is available and partly by the union of this evidence and any other reliable evidence that the consent-receiver has a duty to acquire. Some quests end in certainty. For example, we can be sure that we have succeeded in quests for misplaced keys when we have them in our hands. By contrast, this book’s quest ends more like the search for the best place to camp in inhospitable terrain. You and your camping mates have considered various possible locations, but each had problems. Finally, you settled on ground that is at least flat and sheltered. But the site could turn out to be worse than it initially appeared, as you do not know how the night will unfold. Perhaps, those nearby woods contain animals that you would rather not meet. Maybe, the heavens will open, and the soil will become boggy. It could become clear that you would have been better off at one of the alternative sites that you passed on earlier. Similarly, there may be novel objections lying in wait for the Due Diligence Principle or more attractive rival principles than those that we have discussed. As such, the viability of the Due Diligence Principle is hostage to what future research might uncover. But besides the fact that this book’s arguments could be improved on, there is a deeper reason why any attempt to find the principle for the scope of consent is likely to end with lingering doubts. There is a tension between two attractive thoughts. On the one hand, there is a pull to thinking that a consent-giver should be able to control the scope of their consent. On the other hand, there is a pull to thinking that the consent-receiver should have epistemic access to the scope of the consent. Since the consent-giver may fail to control the epistemic access of the consent-receiver, these thoughts cannot be fully reconciled, and so any account will miss out on something attractive.

The Scope of Consent. Tom Dougherty, Oxford University Press (2021). © Tom Dougherty. DOI: 10.1093/oso/9780192894793.003.0013

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In this concluding chapter, we will reflect on how the Evidential Account navigates this tension, before considering its implications for sexual deception. In Section 12.1, we will summarize the Evidential Account by using it to analyse the case of Ashley and Taylor that we encountered in Chapter 1. In Section 12.2, we will consider how the Evidential Account resolves the tension between the roles for the consent-giver and the consent-receiver with respect to the scope of consent. In Section 12.3, we will consider what the Evidential Account implies for sexual deception.

12.1 The Account That I Endorse: The Evidential Account In Chapter 1, we framed our investigation with a case in which Ashley says to their house guest Taylor, ‘Make yourself at home while I am at work.’ We have been investigating which principle determines what Taylor is now permitted to do. The range of these permitted actions is the scope of Taylor’s consent. As a principle that governs the scope of consent, I have defended the Due Diligence Principle. This is part of the Evidential Account, which I will summarize with reference to the case of Ashley and Taylor. Since Ashley’s house is part of their personal domain, Taylor needs to justify to Ashley how Taylor behaves in the house. Taylor could provide this justification by appealing to how Ashley has expressed their will concerning how Taylor behaves in the house. This would be to appeal to Ashley’s consent. According to the Expression of Will View, there are two ways that someone could consent. First, a consent-giver could direct a consentreceiver’s behaviour. Second, a consent-giver could express permission to the consent-receiver. Ashley at least consents in the second way by implicitly expressing permission to Taylor in virtue of saying, ‘Make yourself at home.’ If we assume that this utterance constitutes an instruction (and this assumption is not obviously correct), then Ashley also simultaneously consents in the first way. Since Ashley consents, there arises the question of which actions are permitted by this consent. According to the Due Diligence Principle, the consent’s scope is determined by the appropriate interpretation of what Ashley says. This interpretation is determined by the ‘reliable evidence’ that both Ashley and Taylor must reasonably accept as bearing on how Ashley’s consent should be interpreted. Which evidence does this include? For a start, if Ashley is aware of relevant background conventions, and these conventions are just, then these conventions bear on how Ashley’s consent

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should be interpreted. In general, when a host tells their guest to make themselves at home, there are social conventions concerning what the guest is allowed to do. For example, our society’s conventions prohibit a guest from trying on their host’s clothes but permit a guest to leaf through the books on their host’s shelves. However, the evidence supplied by conventions has to be considered alongside other evidence. For example, if it is common knowledge between Ashley and Taylor that Ashely has a neurosis about other people reading their books, then the available reliable evidence does not support interpreting Ashley’s consent as covering Taylor reading their books. The scope of Ashley’s consent is not just fixed by the reliable evidence that is available at the time at which Ashley tells Taylor to make themselves at home. The scope is also fixed by the union of this evidence and any reliable evidence that Taylor has a duty to acquire. For example, to the extent that it is insufficiently clear whether Ashley’s consent covers Taylor using their home computer, Taylor would have a duty to clarify this if they plan on using the computer. The union of the available reliable evidence and any reliable evidence that Taylor has a duty to acquire is the ‘enhanced reliable evidence’. The Due Diligence Principle implies that in order for Taylor to justify performing an action by appealing to Ashley’s consent, it must be the case that at the time that Taylor performs this action, both the available reliable evidence and the enhanced reliable evidence make sufficiently clear that by giving consent Ashley intends to cover this action. In this respect, it is not enough that the balance of evidence favours interpreting Ashley as intending their consent to cover an action. In addition, this evidence must pass a threshold to authorize this action. In the course of developing this account, we have formulated canonical statements of its components. As a summary, I will repeat these. The principle for the scope of consent that we should accept is the following: Due Diligence Principle. At time t, an action A falls within the scope of the consent that X gives to Y if and only if (i) at t, X gives consent, or prior to t, X has given consent and has not subsequently revoked this consent; (ii) at t, the available reliable evidence sufficiently supports the interpretation that X intends their consent-giving behaviour to apply to Y performing A; and (iii) at t, the enhanced reliable evidence also sufficiently supports this interpretation.

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This principle should be interpreted in light of the following two definitions: Reliable Evidence Definition. By stipulation, evidence is defined as ‘reliable evidence’ if and only if the consent-giver and the consent-receiver must reasonably accept that this evidence bears on how the consent ought to be interpreted. Enhanced Reliable Evidence Definition. By stipulation, the ‘enhanced reliable evidence’ is defined as the available reliable evidence, supplemented by any reliable evidence that the consent-receiver has a duty to acquire.

The Due Diligence Principle comes into play only on condition that consent is given. We should accept the following view of whether someone consents: Expression of Will View of Consent. X gives consent to Y if and only if either X gives consent to Y via expressing permission or X gives consent to Y via a directive.

This is a disjunctive view, and each disjunct should be interpreted as follows: Consent via Expressing Permission. X gives consent to Y via expressing permission if and only if X deliberately engages in behaviour B that indicates that X is releasing Y from a duty. Consent via a Directive. X gives consent to Y via a directive if and only if (i) X deliberately performs a directive speech act addressed to Y; (ii) this speech act either creates a new option for Y, robustly gives Y a reason to choose an option, or robustly removes a reason that Y had not to choose an option; and (iii) with respect to this option, X is not simultaneously expressing a lack of permission for Y.

Both the Due Diligence Principle and the Expression of Will View are supported by the Interpersonal Justification Argument. According to this argument, an individual’s consent is a consideration that an agent can appeal to in order to justify to the individual performing a certain action. Since an agent can provide this justification by appealing to how the individual has expressed their will for how the agent behaves, this argument supports the Expression of Will View. Since this justification turns on the

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evidence that both the agent and the individual must reasonably accept as bearing on how the consent can be interpreted, this argument supports the Due Diligence Principle. Together, this principle, view, and argument make up the Evidential Account that we should accept.

12.2 Remaining Doubts At the beginning of this chapter, we noted that there is a tension between two attractive ideas. The first is that a consent-giver should control whether they consent and what they consent to. The second is that a consent-receiver should have suitable epistemic access to consent. To frame how the Evidential Account resolves this tension, let us review how other accounts do so. If all that mattered were the consent-giver and their ability to control their consent, then we should accept the Mental Account. According to the Mental Account, someone consents in virtue of forming ‘permissive intentions’. These are an individual’s intentions to release another agent from duties that they owe to the individual. The Mental Account holds that the content of a consent-giver’s permissive intentions determines the scope of their consent. Since the consent-giver can always control their intentions, this account attractively maximizes the consent-giver’s control over their consent. However, this comes with the cost of leaving the consent-receiver out of the picture. Consequently, the account fails to do justice to the idea that consent must be sufficiently public that the consent-receiver has access to the consent. The Successful Communication Account brings the consent-receiver into the picture. According to the Successful Communication Account, someone consents by successfully communicating a permissive intention to the consent-receiver. The Successful Communication Account fixes the scope of the consent by the content of what is successfully communicated. Specifically, according to this account, an action falls within the scope of someone’s consent when they successfully communicate to the consentreceiver that they intend to release the consent-receiver from a duty not to perform this action. Since the Successful Communication Account requires that this communication is successful, the account implies that the consent must have ‘uptake’ with the consent-receiver in the sense that the consentreceiver must be aware of the consent. In this respect, the Successful Communication Account entails that the consent-receiver must have epistemic access to the consent.

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Unfortunately for the Successful Communication Account, this is more epistemic access than is required for consent. A third party can know that someone has given consent by publicly authorizing the consent-receiver’s behaviour even though the consent-receiver is not yet aware of this authorization. So long as the consent has been made suitably public, the consent has been given. The publicity of the consent ensures that the consent is accessible to the consent-receiver, but it is not necessary for the consentreceiver to be aware of the consent in order for the consent to be given. In other words, the consent does not need to be successfully communicated in order for the consent to be given. In addition to these problems, the Successful Communication Account and the Mental Account share a problem. Both accounts imply that someone consents to an action only if they intend to permit this action. This implication is false. For example, someone can consent by making a request while falsely believing that this request does not create a new permission for the addressee. For example, this situation might occur because someone is unaware that they possess a right that would be waived by the request. Alternatively, this situation might occur because someone is unaware that they are giving consent that is valid. In addition, someone can make a mistake when attempting to express their consent and consequently consent to an action that they do not intend to permit. By mistakenly constraining the scope of consent by the consent-giver’s permissive intentions, both the Mental Account and the Successful Communication Account give the consent-giver the wrong role in determining the consent’s scope. Instead, the Evidential Account gives the consent-giver and the consentreceiver the following roles in determining the scope of consent. The account implies that whether consent is given depends entirely on the deliberate behaviour of the consent-giver. Whether they consent depends on whether they deliberately act in a way that constitutes issuing a directive or giving permission. In that respect, the consent-giver always retains significant control over their consent. But the Evidential Account implies that the consent-giver may fail to control the scope of their consent. The consent-giver fails to control the scope of their consent whenever their intentions come apart from the relevant evidence that bears on how their consent-giving behaviour should be interpreted. This is the reliable evidence that the consent-giver and the consent-receiver must reasonably accept as bearing on the appropriate interpretation of the consent. Since the Due Diligence Principle entails that the scope of consent is determined by the reliable evidence that is available to the consent-receiver and the reliable

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evidence that the consent-receiver has a duty to acquire, the Evidential Account validates the idea that the consent-receiver must have epistemic access to the consent. Since the Evidential Account is complex, it lacks the elegance of the Mental Account and the Successful Communication Account. The Evidential Account is also less explanatory than these accounts in the respect that the Evidential Account makes use of the notion of reasonableness as a primitive notion, and hence we have to rely on normative intuition when applying the account. However, these disadvantages are offset by greater advantages that the Evidential Account enjoys. On the one hand, the Evidential Account has intuitive implications for various cases. Meanwhile, the Mental Account and the Successful Communication Account have counterintuitive implications for cases that we have considered. On the other hand, the Evidential Account has an attractive rationale. This rationale is that consent is a consideration to which a consentreceiver can appeal in order to justify how they treat the consent-giver. While I take these advantages to outweigh the Evidential Account’s disadvantages, we may have lingering doubts about whether to strike a different balance between these advantages and disadvantages. In addition, we may have doubts about the Evidential Account because it lacks the virtues of the rival accounts. There is appeal to the idea that consent is entirely a matter of the consent-giver’s will, and there is also appeal to the incompatible idea that consent facilitates or involves a public meeting of the minds between the consent-giver and the consent-receiver about how their moral relationship has changed. Given each account’s respective advantages and disadvantages, it is philosophically difficult to decide which principle determines the scope of consent. In light of this difficulty, we cannot expect any account to emerge as clearly correct. Instead, we should aim to determine which account has the best overall balance sheet of its pros and cons. The conclusion of this book is that the account that does best overall is the Evidential Account.

12.3 Sexual Deception Revisited As I mentioned in this book’s Introduction, the project behind this book began with an interest in the topic of sexual deception. I will end by returning to this topic. Once we distinguish the question of whether someone’s consent is valid from the question of whether an action falls within the scope of their

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consent, we can see that there are two ways that deception can lead to a sexual encounter to which the victim of the deception does not validly consent. The first way is that the deception can render someone’s consent invalid (Lazenby & Gabriel 2018). A necessary condition for valid consent is that the consent-giver is suitably informed. Since deception can leave someone uninformed, deception can make it the case that they do not validly consent. Since we have not discussed the validity conditions of consent in this book, our discussion does not have implications for how deception can invalidate consent. However, our discussion does have implications for the second way that deception can lead to an encounter that someone does not validly consent to. If someone is deceived, then they may unwittingly take part in a sexual encounter that falls outside the scope of their consent. Since our discussion has led us to the principle governing the scope of consent, our discussion has implications for when this type of sexual misconduct is committed. However, our discussion does not have implications for the separate question of how grave this sexual misconduct is. For all that has been said in this book, it may be that if the victim is not harmed and does not particularly mind the fact that the sexual encounter has taken place, then they are not gravely wronged by the encounter.¹ A principle for the scope of consent is not committed to any position on the gravity of this sexual misconduct.² It only has implications for when this misconduct occurs. In the Introduction, we saw that this is the sexual misconduct that Ana Margarita Martinez alleged was committed by their spouse Juan Pablo Roque, who had concealed that they were a Cuban spy. Martinez alleged that as a result of the deception, Martinez had sex with a Cuban spy without intending to permit sex with a Cuban spy. For the sake of illuminating the Evidential Account’s implications for sexual deception, let us assume that Martinez’s allegations were true. On the assumption that Martinez did not intend to permit sex with a spy, does it follow that Martinez did not consent to sex with Roque? We should agree that this follows if we accept the Intention Condition. The Intention Condition implies that an action falls within the scope of someone’s consent only if they intend to permit this action. Since Martinez

¹ For views according to which a difference is made by the strength of a victim’s desire, see Brown (2020); Boonin (n.d.). ² Compare our discussion of the Behavioural View’s implications in Chapter 4, Section 4.2. We noted that if behaviour is required for consent, then the absence of a victim’s consent is not sufficient for the commission of an especially grave offence.

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did not intend to permit sex with a spy, the Intention Condition implies that sex with a spy did not fall within the scope of Martinez’s consent. More generally, the Intention Condition has that implication for deception that is relevantly similar to Roque’s. By stipulation, let us adopt the following definition of a ‘deal-breaker’. A deal-breaker for someone is any feature of a sexual encounter, such that they do not intend to permit a sexual encounter with this feature. Since someone’s sexual partner is a component of a sexual encounter, someone’s deal-breakers can include features of their partner. This definition concerns the actual content of someone’s actual attitudes, namely their permissive intentions. (In other words, the definition does not concern what someone would counterfactually agree to if they were not deceived.) The Intention Condition implies that whenever a deceiver hides the fact that a sexual encounter involves a deal-breaker for their victim, the victim does not consent to this encounter. Since a deal-breaker could be any feature of a sexual encounter, the Intention Condition implies an expansive view of sexual misconduct via deception. For example, the Intention Condition does not only imply that sexual misconduct occurs when a perpetrator impersonates another person to have sex with their spouse. Since someone’s deal-breakers could concern which university their partners went to, the Intention Condition also implies that misconduct can occur when a perpetrator conceals which university they went to. The Intention Condition is entailed by the Mental Account, according to which the scope of consent is determined solely by a consent-giver’s permissive intentions. The Intention Condition is also entailed by the Successful Communication Account, according to which consent’s scope is determined by the permissive intentions that the consent-giver successfully communicates to the consent-receiver. Therefore, both the Mental Account and the Successful Communication Account inherit the Intention Condition’s commitment to an expansive view of sexual misconduct via deception. However, in Chapter 7, we saw various compelling reasons to reject the Intention Condition. For example, a consent-giver may make a mistake and communicate in a way that does not accurately express their underlying intentions. Since the scope of their consent would be determined by the meaning of their public behaviour rather than by their private intentions, we must reject the Intention Condition. Rejecting the Intention Condition has implications for our position on sexual deception. From the mere fact that a feature is a deal-breaker for the consent-giver, it no longer immediately follows that they do not consent to a sexual encounter with this feature. Instead of accepting a principle that implies the Intention Condition, we should accept the Due Diligence Principle. According to this principle, the

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scope of consent is determined by the available reliable evidence concerning how to interpret the consent and by any evidence that the consent-receiver has a duty to acquire in this regard. This principle implies that we should not adopt a uniform view of cases in which someone unwittingly takes part in a sexual encounter that has a deal-breaker for them. Instead, we need to look at the evidential aspects of these cases and evaluate these on a case-by-case basis. In some cases, there will be no available evidence that a certain feature is a deal-breaker for someone. For example, a sports fan might be unwilling to permit a sexual encounter with anyone who supports a rival team. Since this is an unusual deal-breaker, a random stranger has scant evidence that the fan does not intend to permit a sexual encounter with a supporter of the rival team. It is also a sufficiently unusual deal-breaker that a random stranger has no duty to investigate whether this is a deal-breaker for the fan. Therefore, the enhanced reliable evidence sufficiently supports interpreting the consent as licensing sex with a supporter of the rival team. Therefore, the Due Diligence Principle implies that if the stranger supports the rival team, and the sports fan has sex with the stranger, then this sexual encounter falls within the scope of the fan’s consent. In this way, the Due Diligence Principle lets the innocent stranger off the hook. However, the Due Diligence Principle does not so readily let deceivers off the hook. We should consider why a deceiver is hiding something about themselves. A deceiver may hide this in order to manipulate their victim. That is, the deceiver may conceal a feature of themselves because they are worried that their victim would be unwilling to have sex with anyone who has this feature. In this scenario, it is likely that the available evidence does not sufficiently support the conclusion that the victim consents in order to permit sex with someone who has this feature.³ Suppose, by contrast, that the deceiver has sufficiently strong evidence that the victim consents in order to permit sex with someone who has this feature. On that assumption, the deceiver would not need to conceal this feature in order to get the victim to have sex with them. Therefore, on that assumption, it is likely that the available reliable evidence does not sufficiently support interpreting the consent as licensing sex with someone who has this feature. But if that is the case, then the Due Diligence Principle implies that this sexual encounter falls outside the scope of the victim’s consent. Moreover, if a deceiver conceals a feature of themselves and intends to have sex with their victim, then the deceiver will have a duty of due diligence ³ I hedge by saying that this is ‘likely’ in light of the fact that the deceiver may have a mistaken belief concerning what the available evidence is.

  

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to investigate whether this feature is a deal-breaker for the victim. To carry out this investigation, the deceiver could disclose this feature. This disclosure would swiftly bring to light whether the feature is a deal-breaker for the victim. But disclosure is not the only way to bring this to light, and disclosure will not be required of everyone. For example, someone might have a weighty privacy interest in concealing a feature of themselves. To protect their privacy, this person may not be required to disclose that they have this feature.⁴ Still, this person could still have a duty to investigate their partner’s deal-breakers in a different way. An alternative way would be to have a conversation that directly or indirectly establishes what their partner’s deal-breakers are. Suppose that a deceiver has a duty to acquire evidence that indicates that a certain feature is a deal-breaker for the victim. On this assumption, it is likely that the union of this extra evidence and the available reliable evidence does not sufficiently support interpreting the consent as covering a sexual encounter with this feature.⁵ If that is the case, then the Due Diligence Principle implies that sex with the deceiver lies outside the scope of the victim’s consent. For example, an undercover spy is likely to have a duty to acquire additional evidence about whether a dissident is unwilling to permit sex with a spy. On the assumption that this additional evidence indicates that the dissident’s consent does not cover sex with a spy, the Due Diligence Principle implies that sex with a spy lies outside the dissident’s consent. We can sum up these conclusions as follows. Sometimes, a deceiver conceals features of themselves in order to manipulate their victim into taking part in a sexual encounter. In these cases, it will usually be the case that either the deceiver has evidence that counts against interpreting the consent as covering this sexual encounter or the deceiver has a duty to acquire evidence that indicates this. When either of these conditions obtains, the Due Diligence Principle will usually imply that the victim does not consent to the sexual encounter. As a result, the Due Diligence Principle often has broad implications for misconduct via sexual deception: not only do perpetrators wrong their victims with the deception; they also wrong their victims by imposing on them non-consensual sex.

⁴ For discussion of some of the privacy interests that would permit someone to refrain from disclosure, see Lazenby & Gabriel (2018). ⁵ Again, I hedge by saying that this is ‘likely’. This time I do so because of the possibility that the extra countervailing evidence does not take the total body of evidence below the relevant evidential threshold. I speculate that this possibility will obtain rarely.

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Index of cases For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. Car/Change 28 Car/Constant 28 Car/Forgetful 29 Car/Truancy 38, 121 Cleaning 90 Complete Communication 73 Complete Miscommunication 74 Darts 104 Date Mistake 94 Doorstep 130 Entrapment 38–9 Firearm Accident 111 Foreign Language 136, 143 Hazardous Waste 104–5 Identity Mistake 95 Invitation/Desire 27 Invitation/Choice 27

Lawn/Unread Sign 81 Limited Vocabulary 40–1 Mauling 106 Motorcycle 87 Odd Face 129 Omission 62 Parking 93, 112, 122 Partial Communication 74 Party Confusion 43 Paternalistic Deal-Breaker 16 Patriarchal Marriage 91–2 Pet 47 Prostate 47 Reflection Confusion 45 Revocation Prank 78 Royal Swan 119 Scope Prank 137 Spam Filter 67, 82

Joyride 54 Key 113 Lawn/Flag 134 Lawn/Forgetful 82 Lawn/Sign 79 Lawn/Testimony 80 Lawn/Tree 135

Table 91 Taser 103 Tattoo/Sober 90–1 Tattoo/Confirmation 147 Telepathy 89 Twin 110–11 Unwilling 62

Index of topics For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages. Accountability 58–60, 64 Acting With Disregard 83, 110n.9, 143n.2 Acting Without Behaviour 61–3 Acting Without Being Controlled 83–4, 110n.9 Acting Without Being Released 83, 110n.9 Acting Without Intention 61–3 Affirmative consent 23n.1, 53–4, 63–5, 143n.1 Alexander, Larry 24–5, 28n.7, 39n.2, 55, 80n.3, 87n.1, 90n.6, 130n.3 Austin, J. L 57n.6, 117n.1, 130n.3 Authorize (Authorization) 1–3, 54, 69–71, 77, 94, 105, 108–9, 115, 126, 137, 159, 162 Authority 16, 57n.9, 69–70, 70n.4, 83, 103, 117–18 Autonomy 19, 24–7, 30–7, 60, 71 negative and positive autonomy 31–3 Autonomy Argument 8, 24–36, 71, 93, 114 Available evidence. See evidence, available Behavioural View 8–9, 23–6, 30–4, 53–65, 67, 75, 80, 80n.3, 84, 88n.5, 130n.3, 164n.2 Bolinger, Renée Jorgensen 12n.4, 32n.10, 87n.1, 112–13, 127–8, 130n.4, 131n.6, 132n.7 Bratman, Michael 29n.8 Capacity for giving valid consent, see competence Chadha, Karamvir 15n.10, 16n.11, 92n.9, 124n.3 Choice 7, 23, 25n.5, 26–30, 34, 36, 39n.2, 40–3, 45, 66, 69, 92, 102–5, 107–8, 111, 117, 120, 124n.3, 128, 138, 153 Coercion 6, 13n.6, 53, 118, 153

Communication 6, 8–9, 19, 24–6, 40–1, 53–97, 107–8, 112–13, 118, 122–3, 127–32, 136–7, 139–40, 143, 150–1, 155, 161–3, 165 Communicative intention 40–1, 88–9, 92, 94 Communicative Intention Condition 40–1, 88–90 Communicative Intention Principle 40–1, 88 Comparative method 17–18 Competence, for giving valid consent 12n.3, 23, 90–1, 106 Complaints 14, 28n.7, 71, 91, 102–6, 114–15, 147, 153 Content 4, 5n.5, 8, 35–50, 72, 88, 95–6, 127n.1, 131n.5, 150, 161, 165 Control 6, 8–9, 25–36, 50, 57, 59–60, 66–72, 75–6, 78, 80, 82–6, 93, 110n.9, 114, 126, 137–8, 157, 161–3 Control Argument 9, 66–72, 75–6, 78, 80, 82–5 Conventions 9–10, 101, 126–33, 136–40, 155n.9, 158–9 Convention Principle 128 Conventions as Evidential Thesis 132 Darwall, Stephen 13n.7, 58–9, 69n.2, 69n.3, 70n.4, 117 Deal-breaker 5–8, 16, 164–7 Deception. See Sexual Deception. Decision. See Choice Default Just Convention Principle 131–3 Deliberate 2–3, 8–10, 25–7, 32, 39–40, 86–7, 89, 93, 111–15, 119–22, 128–9, 131, 137, 143, 150, 160–3 Descriptions, consenting under 47–50 Directive 116–21, 123–5, 139n.10, 150, 160, 162 Dissent 88n.2, 89, 119–21, 123–4

   Domain 9, 14–17, 20, 34, 61, 70–2, 75, 82–5, 102–3, 110n.9, 158 Due Diligence, duties of 143–5, 148 Due Diligence Principle 10, 142–3, 145–50, 153–63, 165–7 Duress—see Coercion Duties, directed 13 Enhanced Reliable Evidence, see Evidence Enoch, David 46n.9, 92n.10, 118 Evidence 2–3, 7–8, 10, 19, 55, 68, 103–4, 110–12, 114, 126–7, 131–63, 166–7 available reliable evidence 2–3, 7, 10, 132–40, 142, 145–51, 156–60, 163, 165–7 Available Reliable Evidence Principle 10, 133–40, 142, 145, 148 enhanced reliable evidence 2–3, 10, 146–9, 156, 159–60, 166 Evidential Account 8–10, 17, 32, 158–64 Expression of the Will 2–3, 9, 30–2, 60, 101–125, 127, 133, 139n.10, 149–50, 156, 158, 160 False Belief Objection 87–93, 96–7 Ferzan, Kimberly 12, 26, 27n.6, 28, 39n.2, 57n.7, 62n.16, 130n.3, 155n.8 Forfeiture 102–9, 112, 114, 154–5 Frick, Johann 7n.8, 102n.3 Functions, of consent 58–9, 64 Gettier, Edmund 70n.5 Guidance 66, 70–2, 75–6, 82, 110, 138 Gravity 5n.6, 61–4, 83–4, 164 Grice, Paul 77, 130n.3, 130n.4, 131n.5 Guerrero, Alexander 39n.2, 53n.3, 55 Harm 14, 102–12, 114, 143n.2, 154–5, 164 Hart, H. L. A. 68–9 Healey, Richard 55n.5, 59n.12, 68n.1, 70n.4 Hume, David 101, 115 Hurd, Heidi 12, 24–6, 29n.8, 37–40, 48n.10, 48n.11, 49n.12, 49n.14 Hypothetical consent 46, 92–5 Indication 8, 60, 79, 89, 97, 114, 119–23, 126–7, 129, 137, 160 Informed consent 4n.3, 6–7, 11n.1, 12n.3, 53, 106, 145, 153, 164 Insincerity 87, 97

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Intentions 8–11, 25, 27, 28n.7, 29–32, 34–50, 54–7, 61–3, 66–7, 70, 73–6, 78–9, 84, 87–97, 107, 112–13, 115, 118–19, 122–3, 127, 131–2, 136–40, 142–51, 159, 161–6 permissive intentions 8–9, 28n.7, 35, 39–50, 54–5, 61–3, 66–7, 70–1, 73–6, 78, 84, 87–97, 107, 112, 115, 118, 122, 136, 143–5, 150–1, 161–2, 164–6 Intention Condition 73, 75, 86–97, 112, 115, 118, 132, 150–1, 164–5 Permissive Intention Principle 8–9, 35, 39–50, 86, 96, 150 Intentional, see deliberate. Interpretation 2–3, 7–11, 19–20, 26, 32, 53, 59, 67, 73–6, 78–9, 84, 93, 111, 123, 126–9, 131–43, 146–9, 153–62, 166–7 Interpersonal justification, see Justification, Interpersonal Invalid consent 4n.3, 6, 7n.7, 12–13, 23n.1, 87, 90, 153, 164 Investigation 143–5, 148, 155, 166–7 Justification, interpersonal 7, 9, 19, 102–16, 124–5, 127, 135, 147–56, 158–60, 163 Just Convention Principle 129–31 Knowledge Claim 81 Kukla, Quill (writing as Rebecca Kukla) 15n.9, 69n.3, 79n.2 Lack of Permission 119–21, 160 Lance, Mark 69n.3 Langton, Rae 79 Law 4, 12, 23, 53, 55, 69, 143n.2 Liberto, Hallie 15–16, 49n.14, 90, 117n.1, 118 Manson, Neil 11n.1, 25n.4, 44, 47–8, 145n.4 McGregor, Joan 55–6 McMahan, Jeff 103n.4, 110, 155n.10 Meaning 11, 41, 59, 93, 95, 127, 129–31, 133, 137, 143–5, 155n.9, 165 Medical consent 1–3, 6, 12, 12n.3, 15, 30–1, 42–8, 58–9, 69, 86, 106–9, 115–16, 136–7, 143, 145 Mental attitude 5–6, 23, 27–30, 33–4, 41–4, 53, 56, 59, 64, 96 Mental Account 8, 17, 32, 37, 39, 48, 73, 96, 114, 151, 156, 161–3, 165

178

  

Mental content 8, 35–7, 95–6 Mental View 8–9, 23–35, 39–40, 50, 54–7, 59–61, 64, 71, 87–8, 92–3 Method of cases 18–19, 25 Miller, Franklin 55n.5 Mistake Objection 93–7, 113, 122 Mode of presentation 44n.7, 49–50 Negligence 104–5, 109, 112–14 Nussbaum, Martha 35 O’Neill, Onora 11n.1, 25n.4, 44, 47–8, 145n.4 Owens, David 24n.3, 38n.1, 57n.9, 72n.6, 91n.8, 101n.2 Permissive intentions. See Intentions Policy 12, 23, 53, 63–5 sexual offence policy 12, 23, 53, 63–5 affirmative consent policy 53, 63–5 Power, normative 1–2, 39, 70n.4, 101, 107, 122 Pragmatics 127n.1, 130n.3, 130n.4 Privacy 5, 9, 56, 58–60, 64, 95, 134, 154, 167 Promise 12, 14, 30, 56–9, 64, 70n.4, 101 Propositions 37, 41–2 Propositional attitudes 41–2, 50 Protection 14, 26, 57–9 Publicity 6, 9, 54–61, 64, 67, 78–80, 82, 84–5, 93, 95–7, 113, 128, 150, 161–3, 165 Publicity Argument 54–61, 64 Public Commitment Objection 79–82, 84–5 Punishment 63–5 Rape 23, 35, 62n.15, 63–5, 79, 84 Rape law. See Policy, sexual offence Rawls, John 17n.12, 58n.11 Reasonableness 2–3, 7, 10, 53, 104–6, 108, 111–13, 115, 126, 134–42, 147, 149–50, 153–4, 156–63 Release Claim 81 Reliable evidence, see Evidence Requests 2–3, 6, 71–2, 91, 106n.6, 108–9, 115–18, 121, 123–4, 127, 139, 148, 162 Revoking consent 32–3, 56, 78–9, 84, 120–1, 123–5, 149, 159 Rights 5, 13–17, 20, 25–6, 28n.7, 30, 36, 56, 58–60, 64, 69, 70n.4, 91, 97, 103–9, 112–13, 154, 162 Risk 104–9, 114, 128, 137

Sanctions, see Punishment Scanlon, Thomas M 6–7, 57n.9, 101n.1, 102n.3, 105, 130, 152n.7 Self-defence 103–4, 110, 114, 154–5 Semantics 127n.1, 130n.4 Sexual consent 3–8, 12–16, 23–5, 27, 35, 53–4, 62–5, 79, 84, 91–2, 101, 114, 116, 118, 128–9, 138, 163–7 Sexual deception 3–8, 10, 35, 158, 163–7 Sexual misconduct 3–4, 12, 23, 35, 53–4, 62–5, 79, 84, 163–5, 167 Sexual offence policy. See policy, sexual offence Shiffrin, Seana 30–1, 57n.6, 57n.10 Sidgwick, Henry 13n.7, 17n.12 Simple Evidence Principle 133–4, 137 Sovereignty 69, 75 Stalnaker, Robert 42n.5 Successful Communication Account 8–9, 17, 32, 151, 156, 161–3, 165 Successful Communication Principle 9, 66–7, 71–6, 78, 80, 84, 86, 96, 131–2, 150 Successful Communication View 9, 67–72, 75 Tadros, Victor 4n.4, 12n.4, 16, 29–32, 38, 40n.3, 70n.5, 88n.4, 92n.9, 92n.10 Testimony Claim 80–1 Third-Party Interference Objection 78–9 Uptake 57n.6, 60, 73, 75–85, 110, 120, 132–3, 150–1, 161 Uptake Condition 73, 75–85, 110, 132–3, 150–1 Valid consent 4, 4n.3, 6, 7n.7, 12–14, 17, 20, 23, 31, 87, 90–2, 96–7, 101, 118, 162–4 Wertheimer, Alan 12n.4, 23–5, 31, 55n.5 Westen, Peter 12, 27n.6, 28n.7, 48n.10, 62n.16, 90n.7, 143n.2 Will, willingness 1–5, 7–10, 23–32, 34–7, 47, 53–5, 60, 62–3, 66–8, 71–2, 82, 87, 91–2, 94, 103, 108–11, 114–16, 124, 143n.2, 149–50, 158, 160, 163, 166–7 Wronging 9, 14, 26–7, 36, 45–6, 54, 61–4, 67–8, 70–2, 75, 82–5, 110n.9, 143n.2, 152–3, 164, 167