Autonomy and Consent

Abstract

This chapter considers the concepts of sexual autonomy and consent. Sexual autonomy is conceived of as a “bundle” of prima facie rights organized around the idea of securing for the holder various forms of sexual self-determination. There is a distinction between negative sexual autonomy (the right not to engage in, or be subject to, one or another form of sexual conduct) and positive sexual autonomy (the prima facie right to engage in such conduct). Sexual autonomy is violated either when a person is subjected to nonconsensual sex (usually by another individual) or when a person is prevented from engaging in consensual sex (typically by operation of law). To consent to sexual contact is essentially to waive the right not to have such contact. Consent also relieves those to whom it is given of the obligation to refrain from contact. Consent involves a “binary” judgment reflecting various “scalar” qualities (meaning that it is a yes/no kind of judgment that typically turns on the existence of a property that is a matter of degree). Of particular concern here is the distinction between consent and mere “unwantedness.” A fundamental distinction is also made concerning consent in an “attitudinal” or “mental” sense (a state of mind of acquiescence), consent in a “communicative” sense (consent that is conveyed to another in words or actions), and consent in a “prescriptive” sense (consent that is regarded as normatively or legally valid). Further, for consent to be prescriptively valid, it must be voluntary, knowing, and competent.