Rather than as a giving of permission to someone to transgress one’s bodily boundaries, I argue for defining sexual consent as feeling-with one’s sexual partner. Dominant approaches to consent within feminist philosophy have failed to capture the intercorporeal character of erotic consciousness by treating it as a form of giving permission, as is evident in the debate between attitudinal and performative theories of consent. Building on the phenomenology of Maurice Merleau-Ponty, Ann Cahill, Linda Martín Alcoff, and others, I argue that (...) taking consent to be an intercorporeal and dynamic coexistence of desiring bodies opens up new ways of thinking about the role of consent in sexual ethics. I suggest that phenomenology’s theories of embodied consciousness, operative intentionality, and the direct perception of others provide a better groundwork for conceptualizing the role of ambiguity and subtle power dynamics in sexual encounters than attitudinal or performative accounts of consent. I also defend my view against Jonathan Jenkins Ichikawa’s argument for doing away with the concept of consent in sexual ethics due to consent's stubborn and infelicitous presupposition of permission-giving. (shrink)

The law and society occasionally impute consent to an agent despite a clear lack of actual consent. A common type of such ‘fictitious consent’ is constructive consent. In this practice, we treat an agent as if she consented to Φ because she did Ψ. By examining how constructive consent operates in law and daily life, I show that our treatment of agents in these cases bears no normatively relevant resemblance to consent because it is grounded in values and concerns other (...) than autonomy. Thus, the practice may diminish the very autonomy consent proper seeks to promote. Hiding this potential for conflict creates the risk moral concerns will not be appropriately balanced when deciding on the permissibility of an action. We thus ought to be explicit that such cases don’t involve consent and its common justification. (shrink)

A longstanding debate regarding the nature of consent has marked a tri-fold division among philosophical and legal theorists according to whether they take consent to be a type of mental state, a form of behaviour, or some hybrid of the two. Theorists on all sides acknowledge that ordinary language cannot serve as a guide to resolving this ontological question, given the polysemy of the word “consent” in ordinary language. Similar observations have been noted about the function of consent in the (...) law and use of the word “consent” in legal contexts. This paper makes a parallel argument regarding consent’s characteristic normative role: roughly, to transform moral prohibitions into permissions. This role is neither unique nor essential to any one particular kind of thing, be it a mental state, form of behaviour, or hybrid of the two—rather, it is played by mental states and behaviour in independent and context-sensitive ways. The upshot is that insofar as we are interested in its normative implications, we ought to adopt a pluralistic approach to consent which gives independent weight to the moral contributions of facts about mental states and facts about behaviour relative to a context. (shrink)

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two (...) non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well. (shrink)

Spanish Translation of "He/She/They/Ze" (Ergo, 2018).