The Scope of Consent

Abstract

Consent covers certain actions but not others. If I lend you my new car, you are now free to use it to run errands but not to compete in a demolition derby. This is obvious enough, but determining exactly what I have permitted is much harder. Since you cannot read my mind, you cannot know for sure which uses of the car fall within the contours of my consent. But if you get this wrong, you use my car without my permission, and that is a rights violation. There is a lot riding on determining which actions are permitted by my consent. Fortunately, Tom Dougherty offers us a novel way to determine this in their excellent book The Scope of Consent.It is natural to think that the scope of consent is fixed by what the consent-giver intended to permit. This captures the intuition that the scope of consent is controlled by the person giving consent. This used to be Dougherty’s view. However, this Permissive Intentions View is implausible. Suppose I had no intention of lending you my car—I only said you could borrow it because I falsely believed it would not start. Despite saying you could use it, this view implies that your use would not fall under the scope of my consent since I did not, in fact, intend you to use it. Cases like these lead Dougherty to reject the Permissive Intentions View in parts 1 and 2 of the book. And, since this view is implied by the Mental View of Consent—the view that we consent only if we have a certain mental attitude—they reject that too.Another plausible idea is that the scope of consent is fixed by what the consent-giver successfully communicates to the consent-receiver. This is intuitive in two respects. First, while most people agree that the consent-giver should determine what has been permitted, they also think that the consent-receiver should have epistemic access to whatever falls within the scope of consent. Second, this view implies that consent is a public phenomenon. Dougherty agrees with the second implication, and this provides them with another reason to reject the Mental View in favor of a Behavioral View of Consent. However, they are not persuaded by the Successful Communication Principle itself. Since successful communication requires uptake, the view implies that the consent-giver has not waived their rights until the consent-receiver finds out. So, even if I leave you a note saying that you can borrow my car, I have not succeeded in consenting until you have read the note. Dougherty finds this counterintuitive, and they therefore reject the view.Dougherty agrees that consent requires public behavior, and so the Successful Communication Account is the closest rival to the view they end up defending. And yet, despite engaging with arguments offered in favor of a view that makes consent and its scope a matter of private intention in part 1 of the book, there is no discussion of arguments offered in favor of a view that makes consent and its scope a matter of public performance in part 2. As a result, Dougherty fails to consider why uptake might be a feature—rather than a bug—of any view that attempts to do justice to the bilateral nature of consent. To see what is attractive about uptake, consider the function consent plays in interpersonal morality. If you have read my note, you can appeal to it to justify your use of my car. However, if the note falls behind the back of the shelf before you could read it or if my partner grabs it, intends to give it to you, and promptly forgets, you have no good reason to think you are now permitted to borrow my car. To justify an action that would be impermissible without my consent, it is not enough that others have good reason to believe you have my permission; you need to have good reason to believe you have it, and that requires uptake. The lack of engagement with actual defenses of the Successful Communication Account is a little unfortunate here given the virtues of that view and the limitations of Dougherty’s own (which to their credit, they discuss at length at the end of the book.)With the goal of reconciling the intuitions that pulled us toward each rejected view—namely, that the consent-giver should determine the scope of consent and yet the consent-receiver must have epistemic access to what is permitted— Dougherty offers us their Evidential Account in part 3 of the book. The account comprises (1) a view about what constitutes consent (the Expression of Will View), (2) a principle that determines the scope of consent (the Due Diligence Principle), and (3) an argument that supports both (the Interpersonal Justification Argument). The Expression of Will View preserves the intuition that the consent-giver plays a role in determining the scope of consent since consent just is a deliberate expression of will. However, the Due Diligence Principle ensures that the scope of consent is fixed by certain evidence that is available to parties to the consent transaction, so the consent-receiver has epistemic access to what is permitted. In turn, each is supported by the Interpersonal Justification Argument, which tells us that “consent is morally significant as a consideration that the consent-receiver could appeal to in order to justify their behaviour to the consent-giver” (149). Now, since the Interpersonal Justification Argument also supports the Successful Communication Account, the reason to favor the Evidential Account over its rival is because it has “the explanatory power to predict intuitive results about the various cases … encountered” (149).While the originality of this complex and intuitive account is impressive, its explanatory power is doubtful. To see this, consider the Due Diligence Principle. To fall within the scope of consent, Dougherty claims that an action must meet three necessary and jointly sufficient conditions, and these constitute the Due Diligence Principle. First, consent must be given at a specific time and not retracted. Second, at that time, the available and reliable evidence must sufficiently support the interpretation that consent is given to that act. This evidence not only refers to “what the consent-giver intends to cover” (140), but both parties “must reasonably accept that this evidence bears on how the consent ought to be interpreted” (140). The evidence might include (just) conventions, the conversational context, and knowledge of the consent-giver, and while the evidence must be available to the consent-receiver, they might not be aware of it yet. And so, third, at the time consent is given, the enhanced reliable evidence must also sufficiently support the interpretation that consent has been given to that act. This evidence is obtained when the consent-receiver discharges certain duties of due diligence to investigate what the consent-giver intended to permit.What is supposed to set the Evidential Account apart is its explanatory power, and yet we would be hard pushed to derive anything from the Due Diligence Principle alone. It is silent on a range of normative issues that need settling before we could determine whether an action falls within the scope of consent. For instance, an action only falls within the contours of consent if parties reasonably accept that the reliable and available evidence supports how the consent ought to be interpreted. However, the principle itself tells us nothing about whether and why certain facts ought to be accepted by parties to the consent transaction. Dougherty admits that “a lot of heavy lifting is done by the notion of what evidence someone must reasonably accept” here, and the reliance on normative intuitions about reasonableness renders “the principle … less explanatory” (150). But this is far from the only place we find intuitions shouldering the explanatory load. The principle is also silent on what constitutes adequate investigation of what the consent-giver intended to permit or what constitutes a low- or high-stakes consent decision, and so we need to rely on normative intuitions when applying the principle here too. The upshot is this: when taken alone, the principle cannot explain intuitive verdicts about consent cases, and it offers no guidance about whether actions fall within the scope of consent when intuitions about reasonableness, adequateness of investigation, or stakes of the consent decision are contested.However, these criticisms should not be read as minimizing the importance of this highly original account. The value of the book does not lie in Dougherty’s solution to the problem but in the cases and arguments they provide to deepen our understanding of consent. The Expression of Will View is a case in point. On this view, consent is not a matter of intending to release someone from a duty, it is a matter of doing so with a deliberate expression of will. We can do this by expressing permission, of course, but Dougherty thinks that we can also consent by issuing a directive that is not an expression of permission. This challenges the prevailing view: most scholars agree that to give consent the consent-giver must understand that they are giving consent. However, Dougherty provides a range of fascinating cases in which the consent-giver could not be read as intentionally waiving their rights, and yet they seem to give consent all the same. One such case is Patriarchal Marriage: Wife believes that she has waived her rights against Husband’s sexual trespass by getting married, but now she says to him, “I know that you do not need my permission for sex, but would you like to have sex?” (91) Dougherty thinks that she consents to sex with this proposal, and yet it could not be an expression of permission since she does not believe Husband needs her permission to have sex with her. Even though she does not take herself to be waiving a right against sexual trespass (because she thinks that that right has already been waived), by proposing this joint action she succeeds in giving Husband a good reason to think he is now permitted to have sex with her. The implication is surprising: a consent-giver may be able to give consent without understanding that that is what they are doing.The Scope of Consent is full of similarly novel arguments, stimulating cases, and creative proposals. And, in many ways, Dougherty achieves something remarkable in this book: they envisage a way of determining the scope of consent that perfectly balances the control we think the consent-giver ought to have over what they have consented to without denying the consent-receiver epistemic access to what falls within the contours of that consent. Although there are problems with the account, none is insurmountable, and an account that promises to balance these considerations has high value. Those working in the field—and those outside who want a clear insight into a major debate in the area—will profit from reading this beautifully written, imaginative, and ambitious book.