Consent

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Consent refers to the provision of approval or assent, particularly and especially after thoughtful, informed consideration.

Quotes

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  • Similarly wobbly views on sex and adolescents—or rather sex with adolescents—are on profligate historical display elsewhere. It goes in the opposite direction, too. The age of consent in 1920s Chile was 20, but now it's 16. A century ago in Italy, it was 16, too. But today it's 14 there. Overall, studying the numbers in even the most contemporary international age-of-consent table will give you the impression that you're looking at a flurry of seemingly random digits between 12 and 21 (a sizable range): It's 13 in Argentina, 18 in Turkey, 16 in Canada, 12 in Mexico, 20 in Tunisia, 16 in Western Australia, 15 in Sweden, and so on. "More than 800 years after the first recorded age of consent laws," writes the historian Stephen Robertson, "the one constant is the lack of consistency."
    Just as when we're assessing religions with conflicting theologies, we can draw only two possible conclusions from Robertson's observation: Either some societies have the one true age of consent and every other has therefore got it wrong, or any given society's age of consent is based on what its citizens have simply chosen to believe about human sexuality and psychological development. And similar to what any objective analysis of competing religious beliefs would force us to conclude, there's no evidence that the former is the case for cultural variations in age of consent laws (that there is "one true age") and every reason for us to conclude the latter is in fact what we're dealing with.
  • Rubenfeld is right that most instances in which one of the parties having sex (or both) have failed to give consent to the act, the act is morally wrong. Immoral sex need not be rape (or sexual assault), however. For example, if both sex partners are minors, they are not legally in a position to give consent. If they have sex, they have not given legal content. But it doesn't follow that one person raped or assaulted the other. 'Rape’ is better understood as follows:
    A’s sexual encounter with B counts as A's rape of B, just in case (i) A is in a position to give informed consent to have penetrative sex, (ii) A knows or ought to have known that B is not in a position to consent to have penetrative sex or is not verbally or physically agreeing to have penetrative sex, and (iii) A is proceeding to have penetrative sex with B, despite (ii).
  • In order to answer the question about the conditions under which sex is morally wrong, we need to know what it means to consent to sex. “Consent” is shorthand for “voluntary informed consent.” Agreeing to have sex does not count as consenting to an entire sexual encounter for three reasons.
    1. Consent given prior to a sexual encounter can be withdrawn at any time.
    2. Agreeing to have sex can be involuntary. Submission to a sexual encounter is involuntary when it is forced upon a dissenting person by the use of physical force, threat or incapacitating behavior. It is admittedly difficult to specify what exactly counts as threatening or incapacitating behavior. A dissenting person who is too shocked by the other person’s sexual approach to move away or resist is incapacitated, even if she does not feel threatened.
    3. The person may not be in a position to consent. Children, for example, are unable to consent to sex. This is not because minors are unable to consent to anything. Certainly, if a parent asks an average six-year old whether she would like the parent to brush her hair, and the six-year old responds that she does, her agreement counts as consent. Six-year olds are normally old enough to understand what it means for someone to brush their hair, and hair brushing does not ordinarily have unforeseen and potentially harmful consequences. So, not only is the child voluntarily entering into the interaction, she also understands the nature and consequences of the action. A six-year old cannot ordinarily consent to sex, however, as she is not in a position to understand what the act entails. Similar remarks apply to at least some mentally challenged individuals.
  • Isabel Grant, a law professor at the University of British Columbia, agreed that the way the Supreme Court rules could open a Pandora’s Box for women with any kind of mental disability that compromises their ability to consent to sex.
    “And in the context of elderly individuals, if you have someone with advanced dementia, the issue might be what has she said beforehand to her sexual partner, that when she became incapable it was OK to have sex with her.”
    In a sense, she argued, that turns women into sexual objects once they become incapable: “You can sort of do whatever you want to me then because I’m not going to be able to change my mind.”
    “Are we going to treat that as consent in law?” asked Grant, adding that such a decision could effectively reverse many of the legal gains women have made in the last decade regarding sexual assault.
  • As stated, informed consent is both a legal obligation and an ethical principle. The requirement that medical providers obtain permission from their patients prior to providing treatment is embedded in the idea that individuals should be empowered to make autonomous decisions regarding their own care. Accordingly, informed consent is a process through which accurate and relevant information is presented to a patient so that he or she is able to knowledgeably accept or forego medical care, based on an appreciation and understanding of the facts presented.
    In general, the literature documenting the process of obtaining informed consent indicates that it involves three broad principles: disclosure, capacity and voluntariness. Disclosure requires the physician to provide accurate and adequate information on the benefits, risks, costs and alternatives of treatment; in this context, adequacy is often understood as the amount of information that the average patient would require to be an informed participant in the decision. Capacity refers to the patient's ability to understand and rationally process the information presented to him or her and to make health care choices based on this understanding. And voluntariness describes the patient's ability to make a decision free from coercion or any type of unfair incentives. According to attorney J. Steven Svoboda and colleagues, writing for the Journal of Contemporary Health Law and Policy, this requires the physician to "distance himself as much as possible from his personal preferences and values and to present interests at stake for the patient."
  • These two arguments for inalienability, one looking to coercion and the other to invidious symbolism, begin to merge if the definition of coercion is broadened to include the desperate circumstances that are likely to be present when a competent, undeceived person, who is not being threatened with violence, is willing to sell himself into slavery. A man would have to be in pretty tight straights before he would agree to a contact like the one Bailey signed, but he signed it, and so did many others. They were not always physically threatened. There is no evidence that Bailey was. Their acquiescence cannot simply be dismissed as the product of fraud or incompetence; employment on such terms may indeed have been the best option they had. Even though Bailey’s poverty or powerlessness does not fit into classical economic notions of “coercion”-he did, after all, willingly enter into a deal that made both parties better off-we are reluctant to call a decision made in such circumstances a free choice. Consent is an ambiguous concept.
  • “In one sense of the word” observes Robert Lee Hales, “no labor is “involuntary"-not even that of a slave. It is performed through the voluntary muscular movements of the laborer, who chooses to perform it in order to avoid something worse. Obviously, the word is not used in the Thirteenth Amendment in this restricted sense.” Nat Turner, who has hanged in Virginia in 1831 after leading a bloody slave rebellion, would probably have agreed with Hegel that “if a man is a slave, his own will is responsible for his slavery, just as it is its will which is responsible if a people is subjugated. Hence the wrong of slavery lies at the door not simply of enslavers or conquerors but of the slaves and the conquered themselves.” But Hegel did not infer that slavery therefore was legitimate. If the ubiquity of consent in this sense is not to vitiate the thirteenth amendment altogether, the amendment must be understood as standing for the proposition that there are certain choices that a person should not find herself having to make: specifically, choices between submitting to servitude or denying a need (for example, the need for food, or to be free form pain) that almost all human beings find irresistible. That is why the courts should not give their imprimatur to choices made under such circumstances.
  • Like Bailey, women who consent to the risk of pregnancy do so within a complex field of pressures and constraints. Most obviously, both women and men feel a powerful need for sex. Lifelong abstinence is an option, of course, but it is not clear that it is any more reasonable an option than Bailey’s option of remaining permanently unemployed Religious ascetics do without sex, but they also often do without food; doubtless Bailey would have been better able to resist the blandishments of the Riverside Company if he had been willing to follow the ascetics’ example. Again, if the thirteenth amendment means anything, it means that a person should not have to choose between submitting to servitude or denying a need that almost all human beings find irresistible.
  • A person would be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself. This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.
  • At first glance, it would seem it should be easy for German authorities to prosecute Meiwes. In fact, however, as the New York Times reported on December 27, though the authorities want to prosecute Meiwes to the fullest extent of the law, they are having trouble finding any serious crimes with which to charge him.
    The obstacle to a murder charge is the fact that the evidence incontrovertibly shows that Meiwes's victim wanted to be eaten. Indeed, he had agreed to the arrangement over the Internet, answering an ad placed by Meiwes that specifically sought a person who wanted to be slaughtered and cannibalized.
    In the United States, the victim's consent is no defense to murder, and it would be easy to prosecute an American counterpart to Meiwes. But in Germany, the victim's consent renders the crime a "killing on request" -- that is, an instance of illegal euthanasia. Unfortunately, this offense is punishable by a very modest sentence of from six months to five years of incarceration.
  • Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.
  • Consent for the purposes of sexual assault is defined in s. 273.1(1) ( of the Criminal Code) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind. As discussed below, this Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]".
  • The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault: Ewanchuk, at para. 31.
    • Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.18.
  • Section 273.1(2)(b) provides that no consent is obtained if “the complainant is incapable of consenting to the activity”. Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau, [1997] 2 S.C.R. 777; R v. Humphrey (2001), 143 O.A.C. 151, at para. 56, per Charron J.A. (as she then was). It follows that Parliament intended consent to mean the conscious consent of an operating mind.”
    • Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.35.
  • Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.
    • Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.36.
  • "What they’re looking at is can you say when I become unconscious, as in this case, could I have pre-consented to sex?” said Jane Meadus, a lawyer at the Advocacy Centre for the Elderly in Toronto.
    “But the broader implications are that I could consent today and say if I became incapable — I got dementia or I got in a coma or something — it’s OK for my spouse to come and have sex with me. And is that pre-consent really a pre-consent and what are the implications for the people who are, for example, in long-term care?”
  • Capacity of adults with intellectual disabilities to consent to sexual relationships Sexual consent capacity criteria (1) knowledge of body parts, sexual relations, and sexual acts; (2) knowledge of the consequences of sexual relations, sexually transmitted diseases, and pregnancy; (3) understanding of appropriate sexual behavior and the context for it; (4) understanding that sexual contact must be voluntary; (5) ability to recognize potentially abusive situations; and (6) ability to show assertiveness in social and personal situations and to reject unwanted advances.
    • Murphy, G., O’Callaghan, A., “Capacity of adults with intellectual disabilities to consent to sexual relationships", Psychol. Med,34, 1347–1357 (2004).; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.43.
  • Health care providers are legally required to obtain patients’ informed consent before performing a medical procedure. Specific definitions of informed consent may vary from state to state, but the goal of the informed consent process is well established: to ensure that patients understand the nature and risks of the procedure they are considering and that their decision to undergo it is voluntary (AAAHC, 2016; AMA, 2016; HHS, 2017a; Joint Commission, 2016). The discussion should also include options for analgesia, sedation, or anesthesia, including their associated risks and benefits (AANA, 2016; ASA Committee on Ethics, 2016).
  • At the moment it's no defence at all to say that person is consenting, because of Brown. People certainly can't consent to being killed, they can't consent to injury which amounts to actual bodily harm if it's in the course of S&M.
  • …where a man does not engage in communicative sexuality, he acts either out of reckless disregard, or out of willful ignorance. For he cannot know, except through the practice of communicative sexuality, whether his partner has any sexual reason for continuing the encounter. And where she does not, he runs the risk of imposing on her what she is not willing to have. All that is needed, then, in order to provide women with legal protection from date rape is to make both reckless indifference and willful ignorance a sufficient condition of mens rea, and to make communicative sexuality the accepted norm of sex to which a reasonable woman would agree.
    • Pineau, L., 1989, “Date Rape: A Feminist Analysis”, Law and Philosophy, 8(2): pp. 239-40; as quoted in "Feminist Perspectives on Rape", Stanford Encyclopedia of Philosophy, first published Wed May 13, 2009; substantive revision Wed Jun 21, 2017
  • Unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind.
  • At best, consent is vital not because it insures safety but because it enables danger.
    • Becca Rothfield, "All Good Sex Is Body Horror," 2024
  • According to section 74 of the Sexual Offences Act 2003, someone consents when she or he "agrees by choice…and has the freedom and capacity to make that choice."
    That’s a clear definition.
    And there are some equally clear examples of when someone doesn’t have "freedom" or "capacity" to agree by choice or to "consent".
    For example: if someone is under the age of 16, they don’t legally have the capacity to consent to sex. If someone is asleep or unconscious, they don’t have the capacity to consent. If they’ve been kidnapped or held against their will, they don’t have the freedom to consent.
  • Likewise, having consented to sex with someone once or even several times in the past doesn’t mean you’ve consented to sex with that person indefinitely. Consent is not like a physical permit that, once issued, we can save for use at a future date. The person who willingly and enthusiastically had sex with us last night might not want to have sex with us this morning and that’s their right and prerogative.
    The law is also very clear that a person can give their consent to one kind of sexual activity but not another in a single situation. For example, someone might consent to vaginal but not anal penetration, or they might consent to sex with a condom but not without one. Again, this is common sense.
  • Criteria for inferring sexual consent capacity. 1. Voluntariness: A person must have the ability to voluntarily decide, without coercion, with whom he or she wants to have sexual relations. 2. Safety: Both participants in the sexual behavior must be reasonably protected from physical harm (e.g., sexually transmitted disease) or psychological harm (e.g., undesired separation from each other). 3. No exploitation: A person should not be taken advantage of or used by another (e.g., someone with power or higher status) in a way that is inconsistent with voluntariness. 4. No abuse: Psychological or physical abuse must not be present in the relationship. 5. Ability to say no: A person must be able to communicate ‘‘no’’ verbally or non-verbally, and to remove himself or herself from the situation at hand, indicating a wish to discontinue the interaction. 6. Socially appropriate time and place: Either the person must be able to choose a socially acceptable time and place, or the person must be responsive to directives toward that end. Mental Retardation. 4, 264–268 (1995).
    • Ames, T., Samowitz, P., “Inclusionary standard for determining sexual consent for individuals with developmental disabilities”, in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.42.
  • “Everything you and I need, love, want, hate and value is what a person with dementia loves, hates, needs, wants and values,” she said. “So that need does not go away because someone has dementia. What complicates that need is the ability to make informed decisions about sexual behaviour as it does with all behaviour and to understand the consequences of those decisions.”
  • The appeal to permission as the source of authority involves no particular moral vision or understanding. It gives no value to permission. It simply recognizes that secular moral authority is the authority of permission. This appeal is a minimal condition in relying on what it is to resolve issues among moral strangers with moral authority; consent. It establishes a secularly acknowledgeable authority for its conclusions: agreement. By appealing to ethics as a means for peaceably negotiating moral disputes, one discloses as a necessary and sufficient condition…for a general secular ethics the requirement to respect the freedom of the participants in a moral controversy…as a basis for common moral authority.
  • An ethics of permission, however, can extend only to those who are capable of giving or refusing permission. Thus secular bioethics has a bias in favor of “persons,” where “person” is understood in terms of this prior notion of permission: persons are all and only those beings capable of entering into, or refusing to enter into agreement with others. One obvious consequence of this is that there can be no secular restraints on the morality of abortion: embryos and fetuses cannot enter into agreements, and so are left unprotected from those who would do them harm. The unborn are radically outside of the secular moral community.
  • The second meaning of “legitimation,” developed in critical scholarship of the late twentieth century, concerns the nature and role of consent and the specific impact of an individual’s consent to the perceived justice of either particular transactions or entire institutions to which consent is given. In liberal market economies and the legal orders that govern them, the act of consent generally insulates the object of consent even from criticism, much less legal challenge. Consent to the terms of a contract, for example, almost always insulates the fairness of the terms of that contract from both public scrutiny and legal attack, regardless of how harmful or injurious that contract turns out to be to any of the parties that consented to it. If the contract was consensual, it cannot possibly be unfair to execute it against a later regretful party, no matter how harmful its terms might appear to be. Widely shared norms against paternalistic legislation, an ideological and seemingly bottomless belief in the ability of individuals to understand and act on their own welfare, skepticism regarding the motivation of regulatory bodies or meddling individuals who would seek to upset consensual individual transactions, and at least for some, a definitional commitment to consent as that which maximizes value, all burden attempts to intervene in or even question contract terms. They may do so through “unconscionability” or “duress” limits in the common law of contract, or through more explicitly regulatory means, such as consumer protection legislation or workers’ rights laws. I have argued elsewhere that the same dynamic increasingly limits critique of intimate sexual relations: consensual sex is viewed not only as not rape, but also as not subjected appropriately to moral or political criticism. To subject consensual sex to criticism is puritanical, moralistic, or worse. Lastly, in the public sphere, “consent” operates similarly: the consent of the governed legitimates whatever governance follows. We can generalize from these three examples of the impact of consent in the private, intimate, and public spheres: consent cleans or purifies that to which the consent is given, and thereby insulates it from political critique as well as legal challenge. Questioning the value of that to which consent has been given is politically suspect—because it is unjustifiably paternalist, logically incoherent, or both.
  • Perhaps the hallmark of late twentieth-century critical legal studies (CLS) writing was the claim that this widely made inference from consent to value is simply unwarranted. People’s abilities to ascertain and act on their own self-interest are limited, the critical scholars argued. The capacity of countries, institutions, multinational corporations, social forces, or simply stronger parties to create in individual subjects a willingness to consent to transactions or changes that do not in fact increase their well being is well documented. “Consent” of the weaker can be manufactured to serve the interests of dominant parties, and when it is manufactured, it is not a good measure of the value to the weak of that to which consent was given. Neither skepticism regarding the good motives or knowledge base of the “paternalist,” nor faith in the self-regarding preferences of the individual, justify the unexamined inference that a consensual change so extracted is a good one for all affected parties. The degree to which a consensual change is perceived as such is the degree to which it has been unduly legitimated by the consent that preceded it. The legitimation cost of consensual transactions, then, is the sometimes unwarranted belief in the increased value of the change to which consent was proffered.
  • Some schools recommend or require that for consent to be valid, it must be given while sober, and others rule that consent cannot be given when a student is “under the influence,” vague standards that could cover any amount of alcohol consumption. Some embrace “affirmative consent,” which, at its limit, requires that each touch, each time, be preceded by the explicit, verbal granting of permission. At times, the directives given to students about sex veer squarely into the absurd: A training video on sexual consent for incoming students at Brown University, for instance, included this stipulation, among many others: “Consent is knowing that my partner wants me just as much as I want them.”
  • Sometimes, of course, there is no ambiguity, as when a woman says no, or sends visible, consistent physical signals that she is not consenting to a sexual act. But many schools no longer require women to say or signal no in order for an encounter to be considered nonconsensual. Affirmative-consent rules, particularly when written or interpreted expansively, do that directly; in California, Connecticut, and New York, affirmative-consent codes for college students have been signed into law. So do policies that treat women who have been drinking—but who are not by any objective standard incapacitated—as unable to give consent.
    The problem with both types of policies is that they are intrusive and impractical. Couples are especially unlikely to adhere to contract-negotiation-style bedroom interactions (and it is no small intrusion on privacy to require them to do so). The proscription on drinking before sex is certain to be widely ignored; sexually inexperienced students (and even experienced ones) often drink in order to lower their inhibitions. And yet ignoring these rules puts men in great jeopardy should their partner later reconsider what seemed to have been a consensual encounter.
    In the world outside campus, people who are merely intoxicated, not incapacitated, can legally consent to sex, even if they make poor or regrettable decisions. In many states, sex with an incapacitated partner is a crime when the accused knows, or reasonably should know, about the incapacity and intends to act without consent. Recently, some schools have adopted clearer standards for incapacitation, including the requirement that the accused should reasonably know about the incapacity in order for consent to be invalidated. But on many campuses, no such knowledge or intent is required for an adjudication to determine that a violation has occurred.
  • The sheer infeasibility of a ‘just say yes, over and over again’ rule has been the subject of some appropriately incredulous critiques. How will campus triers of fact determine whether an ‘explicit yes’ was repeatedly rendered, satisfying the ongoing affirmative consent requirement? Students are encouraged, not entirely satirically, to tape their sexual encounters or to obtain a series of signed consent forms as their activities progress… Advocates of ongoing, explicit yes rules respond to these criticisms partly by explaining that the rules are intended to ‘send a message’ and ‘change the culture’. As the New York Times reports, ‘Many supporters of affirmative consent say its greatest power may lie in changing attitudes’. This is a telling defence that implicitly acknowledges the impracticality of the new rules and the likelihood that few if any people will actually comply with them. It’s also a chilling defence that practically endorses arbitrary, discriminatory enforcement regimes.
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Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 39.
  • You cannot consent to a thing unless you have knowledge of it.
    • Jessel, M..R., Ex parte Ford; In re Cauchey (1876), L. R. 1 C. D. 528.
  • Parties cannot by consent give to the Court a power which it would not have without it.
  • I have very often had occasion to say, that acquiescence is founded on knowledge, and that a man cannot be said to acquiesce in a transaction if he is not proved to have had knowledge of it. I think that this principle requires to be attended to in all cases turning upon acquiescence.
    • Sir G. J. Turner, L.J., Stewart's Case (1866), L. R. 1 Ch. Ap. Ca. 587.
  • It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all the expense would have been rendered unnecessary.
    • Lord Lyndhurst, St. Victor v. Devereux (1845), 14 L. J. Ch. (N. S.) 246.
  • If a client be present in Court, and stand by and see his solicitor enter into terms of an agreement, and makes no objection whatever to it, he is not at liberty afterwards to repudiate it.
    • Sir John Romilly, M.R., Swinfen v. Swinfen (1857), 24 Beav. 559.
  • A man who does not speak when he ought, shall not be heard when he desires to speak.
    • L'Amoureux v. Vischer, 2 Cornstock (New York) R. 281.
  • I think it is now clearly established that counsel appearing for a party in an action is held out as having authority, and has full authority, as to all matters which relate to the conduct of the action and its settlement, and further that, notwithstanding a limit may have been placed upon the authority of counsel, the party for whom he appears is bound by such settlement unless the fact that the counsel's apparent authority had been limited was communicated to the other side.
    • Lord Alverstone, Neale v. Gordon Lennox (1902) L. T. Rep. Vol. 18, p. 392, and authorities there cited. On appeal affirmed, T. L. B., Vol. 18, p. 791.

“The Limits of Bodily Integrity: Abortion, Adultery, and Rape Legislation in Comparative Perspective” (2007)

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Miller, Ruth Austin (2007). “The Limits of Bodily Integrity: Abortion, Adultery, and Rape Legislation in Comparative Perspective”. Ashgate Publishing.

  • Modern consent, then, is a very specific, narrowly defined legal concept developed at the end of the eighteenth century in part to differentiate full citizens from partial citizens or non-citizens. It is not a vague or open idea: citizens-mature, sane, politically active individuals-are capable of cosnnet. Partial citizens, passive citizens, or non citizens-those below the ae of maturity, those declared insane, orthe politically inactive-are not. In ther eam of sexual crime, the most obvious manifestation of this notibly is in legislation on statutory rape where, whether or not a child consents to sex according to conventional standards, the activity is strll criminal because the child has not become a full citizen and thus capable of consent according to political and legal standards.
    Children, however, are noy the only partial citizens or non-citizens regulated by national or international political structures, and it is here that the cosnent/bodily integrity formula becomes problematic. Another increasingly recognizable non-citizen or partial citizen is the (internal or external) refugee-mature, sane regualted, but not in any way a full political actor. Indeed, what recent national and international interpetations of consent and bodily integrity have produced from the perspective of refugees-even, or especially, to the extent that they have been endowed with ersatz riights-is a situation in which any and all sexual or reproductive behavior on their part has become crinimal. Sex has become rape and reproduction has become criminal abortion and/or criminal procreation.
    • pp.7-8
  • I would like to consider some further aspects of the role of consent in the early twentieth century legislation. First of all, when we conceive of consent theory as a theory absent of any choice-operating as a means of delimiting borders rather than of defining behavior-the problems and contradictions that occur when it runs up against “reality”begin to make more sense. When Pateman, for instance, notes that, “consent as an ideology cannot be distinguished from habitual acquiscence, assent, silent dissent, submission, or even enforced submission. Unless refusal of consent or withdrawal of consent are real possibilities, we can no longer speak of “consent” in any genuine sense,”104 she is clearly understanding consent as something linked to juridical freedom or, more basically, to choice. Likewise, when Agamben, in his discussion of medical experimentation on prisoners in Nazi concentration camps or in United States prisons that that,
    The final criterion, which elicited general agreement, was the necessity of an explicit and voluntary consent on the part of the subject who was to be submitted to the experiment .. [T]he obvious hypocrisy of such documents cannot fail to leave one perplexed. To speak of free will and consent in the case of a person sentenced to death or of a detained person who must pay serious penalties is, at the very least, questionable,
    he is operating within the same framework. If, however, we understand consent as no more and no less than means of defining sovereign space-of collapsing political and biological borders and boundaries-the seemingly perverse or at least disingenuous insistence on consent in such situations becomes more reasonable. The question is not whether the individual “really” consented to what is, for all intents and purposes, sexual, social, reproductive, political, biological, or medical enslavement. It is instead the extent to which the consensual relationship has successfully defined both political and biological space. Indeed, we can see in these early approaches to reproduction, experimentation, and execution important precursors to the humane reliance on lethal injection-rather than, say, beheading, hanging, or electrocution-as a means of eliminating criminals in the modern United States. Above all a spectacle of consent, the lethal injection-absent any wound or executioner-plays out first and foremost as a doctor/patient relationship, the physician eliminating the biologically passive, juridically consenting citizen in the end for his own good.
    • Agamben 1998, 157; quoted on pp.52-53
  • By the early twentieth century, this articulation of women's bodies as biopolitical space had become far more pronounced-expressed throughout the 1920s and 1930s in particular in a language of consent. The talk of contracts, and especially the reinterpretation of the medieval private contract as a nineteenth century social contract, had led above all to an interwar fascination on the part of jurists with the biologically defined citizen and how consent theory specifically might regulate this citizen's sexuality. Italian fascist legislators, for example, began to imagine rape as both a crime against public morality and a crime against something called “sexual liberty,” the latter operating as a subset of the former. What exactly was meant by “sexual liberty” and why fascist legislators found it meaningful will be the questions that drive this section.
    I will indeed suggest over the next few pages that “sexual liberty” was a right that could be possessed only by biopolitically defined citizens, and that the consent on which this right was founded was likewise a biopolitical one-that paradoxically, as Vera Bergelson puts it, “valid consent eliminate[d] [the possibility of a] violation of rights.” I will therefore also suggest that consent played the same role in interwar sexual legislation that it had in interwar reproductive legislation. First and foremost a means of transforming women's bodies into space, it had little or nothing to do with “choice” or “freedom” per se, and placed women, not men, at the center of the public sphere.
    • pp.93-94
  • As I argued in the last chapter, Scarry's notion that consent as a political concept is meaningful only given a passive of threatened body leads likewise to the notion that the liberal citizen's political autonomy, his or her ability to consent or to invoke political power, is inversely proportional to his or her bodily or biological autonomy. It is important to reiterate, in fact, that Scarry's reading of consent theory brings us directly to a spatial rather than a behavioral unerstanding of political activity. If the ideal, politically active, consenting citizen is a physically incapacitated or immobile one, consent necessarily has to do with boundaries rather than behavior. I examined the reproductive implications of this reading in the last chapter. What I would like to do now is to discuss its implications in terms of sexual legislation-to ask especially what happens when consent describes sexual and political space, and when the act of consent is in and of itself a waiver of rights.
    • p.94
  • Bergelson likewise discusses the role played by consent in the transformation of private contracts into public contracts in the seventeenth and eighteenth centuries. She notes that whereas in the early modern period, consent was a catch all defense in penal legislation, “changes in the power of an individual to conenet to personal harm came in the seventeenth century. They were a natural consequence of the monopolization of the system of punishment by the state. While in the early ages of criminal justice the victim was the central figure in the prosecution and settlement of any non-public offense,in the normative and centralized juridical structure the victim became almost entirely excluded from the criminal process.” She continuied by noting that the right to consent was thus constrained, as the victims of crime became abstract concepts such as “public peace” or sovereingty.
    • Bergelson, forthcoming, 9-10; footnote 77, p.93
  • One major theme that runs throughout Bergelson's article is this tension between the ability to consent, which “is recognized in moral philosophy as a central manifestation of personhood and individual autonomy,” and the act of consent, which is “a waiver of rights.”
    • Bergelson forthcoming, 5,7; footnote 79, p.94
  • That consent has almost nothing to do with choice and everything to do with an unabashedly authoritarian understanding of political space in which rights are assumed to be waived can be seen in the actual outcome of the case in which Scarry conteztualizes her analysis. As Paul A. Lombardo has observed, “it is rarely clear in most discussions of the Cardozo opinion that Mary Schloendorff lost her case. That result is not only startling because of the way Cardozo ignored the absence of consent for dangerous and unwanted surgery, but also for its extraordinary deference to charitable immunity of hospitals, employing questionable arguments and contorted interpretations of the facts tor eacha conclusion that would allow the case to bdismissed. The very Court that Cardozo sat on-New York's Court of Appeals-criticized the reasoning on charitable immunity in the Schloendorff case as 'logically weak' only ten years after it was decided, and it was completely overruled in 1957 when the shield of non-profit status was discarded in new York as “out of tune with life about us.' Yet we still celebrate the case as a salute to patient autonomy.” Lombardo continues by pointing out that the specific unwanted surgery performed on mary Schloendorff was a hysterectomy to rid her of a “phantom tumor.” Lombardo 2005, 792. John T. Parry had addressed this paradox-the extent to which contemporary rights are assumed to be enforced only by the act of waiving the-as well, noting in his anaysis of the 2002 case USA v. Drayton: Justice Kennedy clsoed with the folllowing comments on citizenship, police conduct, and the rule of law: 'In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent.
    • Footnote 80, p.94
  • [T]o complain in public of inequality within the private contradicts the liberal definition of the private … [I]njuries arise through violation of the private sphere, not within and by and because of it. In private, consent tends to be presumed. Showing coercion is supposed to void this presumption. But the problem is getting anything private to be perceived as coercion … [W]hy a person wouldd “allow” force in private (the “why doesn't she leave” question raised to battered women) is a question given its insult by the social meaning of the private sphere as a sphere of choice.”
    • MacKinnon 1989, 190-191; as quoted on p.96
  • Each of these theorists, in other words, links the failure of neutral or equal citizenship to the creaiton of the private sphere, to the placement of women into this sphere, and to the indeed dangerous way in which women's bodies personify it. Consent-a public, political act-becomes meaningless in such a frameowrk. Indeed, as MacKinnon argues with reference to rape law, consent is simply assumed in the private, that “arena of choice;” it is a metaphysical quality rather than a political act. Women carry the private around with them. And it is a result of their empathatically private nature that consent theory cannot serve them as citizens in the end.
    My purpose over the next few pages will be to challenge this analysis. More specifically, I will try to demonstrate that to the extent that sexual legislation-and more basically, sexual identity-became central to political identity over the first few decades of the twentieth century, women, sexualized, increasingly became actors within the rhetorical public, rather than within the rhetorical private. Indeed, rape and adultery law trendered women essential, prototypical, biopolitical subjects, their bodies representative of a new, relentless concept of the politicall. Moreover, I will argue that it was the thetoric of consent in particular that transformed women citizens in this way. Far from meaningless or irrelevant, consent instead served as a foundation for an interwar reinterpertation of both sexual and political identity. The paradox of both the biologicaly passive, politically active consenting individual
    • p.96
  • Usually assault is not consented to in law; either it cannot be consented to, or consensual assault remains assault. Yet sexual assault consented to is intercourse, no matter how much force was used.
    • MacKinnon 1989, 174; footnote 86, p.96
  • [T]he relationship between rape laws, democratic theories of consent, and patriarchy has been a matter of concern to feminist political theorists for some time. These feminists have exposed the 'double speak' of social contract consent theory … [T]hey have detailed the ways in which the emphasis on consent relies on a masculine concept of the self as an autonomous, independent being. They have examined the ways in which this concept of self runs counter women's experiences of the self as a relational being with responsibility to/for others … [I]t prompts us to argue for the rule of consent in the context of a theory of justice where vulnerability rather than autonomy defines the integrity of the political subject.” **
    • Bergoffen 2003, 126; footnote 89, p.96

See also

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