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It’s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law

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Abstract

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.

The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explains how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s “self-interest” conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s “sovereign autonomy” conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances.

I resolve this dilemma by explaining that Raz’s “autonomy is good” conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s “self-interest” conception, or Feinberg’s “sovereign autonomy” conception.

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Notes

  1. Westen (2004, p. 15).

  2. Hurd (1996).

  3. Raz (1988, p. 408). I refer to Raz’s conception of autonomy as the “autonomy is good” theory. Raz’s conception is set forth more fully in Part I.

  4. Westen [2004, pp. 127–28 and nn. 56–59 (quoting Mill 1859)]. I refer to this as the “self-interest” theory, as it depends crucially on vindicating the individual’s evaluation of her own interests.

  5. Westen [2004, pp. 127–28 (quoting Feinberg 1989)]. I refer to this as the “sovereign autonomy” theory, as it is based on the individual’s inherent self-sovereignty.

  6. Westen (2004, p. 263). I follow Westen’s convention of using S to represent the subject of whom consent is sought, x to represent the conduct or transaction for which consent is sought, and A to represent the actor seeking S’s consent to x.

  7. In speaking of “the criminal law,” I refer to actual criminal law doctrine as it exists (focusing on American and British law), not some ideal conception of the criminal law. I focus on consent as it operates in the criminal law, as opposed to the distinct debate over consent as a justification for the state’s political authority. See, e.g., Simmons (2010).

  8. Westen (2004, p. 263).

  9. Westen (2004, p. 263).

  10. Hyams (2011, p. 111) (“Consent is an act, an intentionally performed behaviour that may take the form of either an action or an omission,” which “allows agents to change their rights, and the duties and correlate with them. Consent legitimizes by changing rights: when an agent consents, she either waves her rights and grants liberties to another agent, or she waives her liberties and grants rights to another agent, or she does both of these things.”); Kleinig (2010, p. 5).

  11. Westen (2004, pp. 4–5).

  12. Westen (2004, p. 7) (factual consent has normative force when it is given “under conditions of a certain kind—namely, such conditions of knowledge, competence, freedom, and motivation to acquiesce as are deemed necessary to give the expression legal effect”); Hyams (2011, pp. 112–115); Kleinig (2010, p. 13).

  13. Feinberg (1989, pp. 189–343) (discussing failures of consent due to “coercive force,” “coercive offers,” “defective belief,” and “incapacity”); Westen (2004, pp. 119–124).

  14. Mill (1859, Ch. IV p. 4).

  15. Mill (1859, Ch. IV p. 4).

  16. Mill (1859, Ch. IV p. 4).

  17. Feinberg (1989, p. 48).

  18. Feinberg (1989, pp. 51–52).

  19. Feinberg (1989, p. 53).

  20. Feinberg (1989, p. 59).

  21. Feinberg (1989, p. 59).

  22. Feinberg (1989, p. 65).

  23. Feinberg (1989, p. 65).

  24. Feinberg (1989, p. 65).

  25. Feinberg (1989, p. 70). For example, the sovereign United Kingdom had the power to voluntarily renounce its sovereignty over India. Feinberg (1989, p. 48).

  26. Feinberg (1989, p. 70).

  27. Feinberg (1989, p. 69).

  28. Raz (1988, p. 408).

  29. Raz (1988, pp. 415, 267).

  30. Raz (1988, p. 288).

  31. Raz identifies four conditions of personal well-being. First, well-being “consist[s] of the successful pursuit of goals which [the individual] has or should have.” Second, the individual “adopt[s] and pursue[s] goals because [she] believes in their independent value.” Third, an individual’s “well-being depends, at the deepest level, on his action reasons and his success in following them.” Fourth, “a person’s well-being depends to a large extent on success in socially defined and determined pursuits and activities.” Raz (1988, pp. 308–309).

  32. Raz (1988, p. 412).

  33. Raz (1988, p. 412).

  34. Raz (1988, p. 86). See also Miller & Wertheimer (2010, p. 79) (“people typically want to make decisions for themselves and the satisfaction of this desire is also a component of their well-being apart from the intrinsic value of making decisions for oneself”); Regan (1983, p. 129) (“we might sometimes want to let an individual do something foolish, which would harm her in the future, in order to encourage her to develop the ability to make good choices”).

  35. See, e.g., Feinberg (1989, pp. 189–343) (discussing failures of consent due to “coercive force,” “coercive offers,” “defective belief,” and “incapacity”); Westen (2004, pp. 119–124) (explaining that legally valid consent depends on contested moral judgments, and providing examples of jurisdictions resolving those normative judgments in different ways).

  36. Westen (2004, p. 263).

  37. See Feinberg (1989, pp. 189–343) (explaining why consent is invalid when given under conditions of “coercive force,” “coercive offers,” “defective belief,” or “incapacity”).

  38. Raz (1988, p. 288).

  39. Raz (1988, p. 369).

  40. Husak (2010, p. 116). See also Westen (2004, p. 248) (“as a legal matter, Anglo-American criminal law tends strongly to privilege a subject’s contemporaneous assessments of her interests over her non-contemporaneous assessments”).

  41. Husak (2010, p. 121). See Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir. 1995) (Posner, J.) (“If on Friday you manifest consent to have sex on Saturday, and on Saturday you change your mind but the man forces you to have sex with him anyway, he cannot use your Friday expression to interpose, to a charge of rape, a defense of consent or of reasonable mistake as to consent. You are privileged to change your mind at the last moment.”).

  42. Homer (Book XII).

  43. Westen (2004, p. 253).

  44. Westen (2004, pp. 248–249).

  45. Westen (2004, p. 249).

  46. Westen (2004, pp. 252–253).

  47. Westen (2004, pp. 251–253).

  48. Westen (2004, p. 254).

  49. Husak (2010, p. 116).

  50. Husak (2010, p. 123).

  51. As Keith Hyams explains, arguments that appeal to “prescriptions that appropriately benefit agents” are not necessarily paternalistic: “paternalism requires, additionally, that the explanation claims that a moral prescription benefits agents by overruling their own decisions, for their own sakes.” Hyams (2011, p. 117).

  52. Husak (2010, p. 120).

  53. Feinberg (1989, p. 83).

  54. The caselaw is sparse on this point, but what there is supports the claim. See, e.g. United States v. Moore, 10 M.J. 354, 358 n.4 (C.M.A. 1983) (holding that the defendant in a rape case was not entitled to a “mistake of fact” instruction, even assuming arguendo that there was evidence the victim had “irrevocably consented to” sex, because a victim’s irrevocable prospective consent would not override her contemporaneous non-consent).

  55. Westen’s otherwise excellent account of prospective and retrospective consent does not discuss security agreements as a form of valid irrevocable prospective consent. Westen (2004, pp. 247–268) (chapter titled “Non-contemporaneous Prescriptive Consent”). I am indebted to an anonymous reviewer for offering a criticism that led me to recognize how security agreements involve irrevocable prospective consent.

  56. Reiley (1999–2010 § 2:1).

  57. See, e.g., First Nat. Bank & Trust Co. v. State, 233 S.E.2d 861 (Ga. App. 1977) (holding that employees of bank were not guilty of theft of automobile or personal property seized pursuant to valid security agreement).

  58. Sperry v. ITT Commercial Finance Corp., 799 S.W.2d 871, 878–879 (Mo. App. W.D. 1990).

  59. Hale (1847, p. 628).

  60. See, e.g., Anderson (2003, pp. 1466 n.3, 1470–1471) (citing other critics); Model Penal Code § 213.1, p. 343, Comment (1980); Brownmiller (1975, p. 381).

  61. Some states “require a couple to be separated at the time of the injury,” some require proof of “physical force and/or serious physical injury,” and some “provide for vastly reduced penalties” for rape within marriage. Hasday (2000, p. 1484 & nn. 407–411).

  62. The most recent American case to affirm an acquittal or reverse a conviction for rape or sexual assault based on the irrevocable prospective consent rationale is from 1944. State v. Ward, 28 S.E.2d 785, 787 (S.C. 1944).

  63. Regina v. R., [1991] UKHL 12 (House of Lords) (“Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband…. In modern times any reasonable person must regard that conception as quite unacceptable.”). In 1993 the United Nations Declaration on the Elimination of Violence against Women likewise recognized “marital rape” as a form of criminal “violence against women.” General Assembly Resolution 48/104 (1993).

  64. Hasday (2000, p. 1392). The marital rape exemption did not serve as a defense to sexual assault in cases where the wife’s entry into the marriage contract had been forced or otherwise deemed non-consensual. Hasday (2000, p. 1399).

  65. See, e.g., In re Estate of Peters, 765 A.2d 468, 474 (Vt. 2000) (“We reject entirely the notion that marriage creates any kind of implied ‘blanket consent to sexual contact.’”); People v. M.D., 595 N.E.2d 702, 710–711 (Ill. App. 2 Dist. 1992) (“Lord Hale’s implied consent theory…is…objectionable…, depriving women of their dignity by refusing to recognize them as whole human beings who are entitled to decide whether or when they will engage in sexual relations…); Shunn v. State, 742 P.2d 775, 778 (Wyo. 1987) (“Today, Hale’s theory is both unrealistic and unreasonable.”).

  66. Hasday (2000, pp. 1487–1488).

  67. Hasday criticizes these rationales at pp. 1486–1504. See also People v. De Stefano, 121 Misc.2d 113, 120 (N.Y. Co. Ct. 1983) (citing articles).

  68. Husak (2010, p. 116).

  69. Westen (2004, p. 263).

  70. Westen (2004, p. 263).

  71. Husak (2010, p. 120).

  72. Husak (2010, p. 120).

  73. Westen (2004, p. 263).

  74. Husak (2010, p. 119).

  75. Feinberg (1989, p. 59).

  76. Feinberg (1989, p. 65).

  77. Husak (2010, p. 120).

  78. Feinberg (1989, p. 69) (quoting Mill (1859, Ch. V para. 10)).

  79. Raz (1988, pp. 415, 267).

  80. Mill (1859, p. 158).

  81. Mill’s comment here does not seem consistent with his own explanation of the justification for honoring S’s consent. If we value S’s consent because S is the best judge of her own interests, it is not clear why S’s irrevocable consent to voluntary slavery “therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself.” Mill (1859, p. 158). Don Regan notes that “[t]here is a certain looseness here”—it is not difficult to imagine cases where a person “might have what seems to her a very strong reason for wanting to sell herself into slavery,” such as securing a life-saving operation for her child. Regan (1983, p. 117).

  82. Raz (1988, pp. 415, 267).

  83. Reiley (1999–2010, § 2:1).

  84. Feinberg (1989, p. 182).

  85. Husak (2010, p. 114).

  86. VanDeVeer (1986, p. 69).

  87. Wertheimer (2003, p. 156).

  88. Westen (2004, p. 254 (emphasis in Westen)).

  89. Chwang (2009).

  90. State v. Hartigan, 32 Vt. 607, 1860 WL 4943 (1860). See also Battle v. State, 414 A.2d 1266, 1269 (Md. 1980) (citing authorities).

  91. See, e.g., 65 Am. Jur. 2d Rape § 7 (“The ultimate consent of the woman does not have a retroactive effect….”); LaFave and Scott § 57 (1972).

  92. Westen (2004, p. 254). Alan Wertheimer discusses a similar example and likewise concludes that A’s conduct is not illegal. Wertheimer does not, however, share Westen’s view that retrospective consent explains the permissibility of A’s conduct. Instead, Wertheimer argues this example “shows that it is a mistake to conceptualize the wrong of nonconsensual intercourse purely as a violation of someone’s bodily boundaries or one’s sexual autonomy.” Wertheimer (2003, p. 156). If the conduct in question is legally permissible, but for reasons other than retrospective consent, this is consistent with the present doctrinal claim that the criminal law never gives normative force to retrospective consent.

  93. 11 Cox Crim. Cas. 191 (1868).

  94. 2 Iowa 567 (1856).

  95. 6 Cox Crim. Cas. 412 (1854).

  96. In both opinions, the opening statement of facts does suggest that the sleeping victim’s consent occurred after the defendant had initiated sexual intercourse, although neither opinion is completely clear. Once the legal analysis begins, however, each case elides the question of retrospective consent by focusing instead on the question of fraudulent identity, effectively treating the consent as contemporaneous. The courts seem to misread the record so as to avoid the thorny question of retrospective consent. See Wald (1995) (noting the common tendency of courts to deliberately or inadvertently mis-read the record so as to avoid difficult issues).

  97. Barrow, 11 Cox Crim. Cas. at 192 (“We are of the opinion that this case comes within that class of cases in which it has been decided that where, under such circumstances, consent has been obtained by fraud, the offense does not amount to rape.”); Clarke, 6 Cox Crim. Cas. at 413. The reporter’s headnotes preceding both Barrow and Clarke also show that the cases were understood as raising the question of fraudulent identity, not retrospective consent. Barrow is categorized as involving “Rape—Consent—Fraud,” and Clarke is categorized as a case of “Rape—Consent—Carnal connexion under circumstances which induce the woman to believe the man is her husband,” a headnote abbreviated in the index as “Rape—Consent induced by fraud.”

  98. The court held the statute in question, Code of Iowa § 2582 (1850), did “not call for affirmative evidence of consent, on the part of the defendant, but evidence of dissent and repulsion, on the part of the state.” Pollard, 2 Iowa 567, 1856 WL 131, *3 (1856). Thus a defendant who initiated sex with a sleeping victim—who did not actively dissent but simply failed to affirmatively consent—had not violated the statute so interpreted.

  99. Holsey v. State, 61 S.E. 836, 836 (Ga. App. 1908) (quoting Georgia Penal Code § 225 (1895)).

  100. Ibid.

  101. Ibid.

  102. Fletcher (1998, p. 39); Blackstone (1769, p. 5) (“THE distinction of PUBLIC WRONGS. from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; wrongs, or crime and misdemeanors, are breach and violation of the public rights and duties, due to the whole community, considered as community, in its social aggregate capacity.”).

  103. Westen (2004, p. 263).

  104. Westen (2004, p. 263).

  105. Westen (2004, p. 263).

  106. Westen (2004, p. 263).

  107. VanDeVeer (1986, p. 69).

  108. Hyams (2011, p. 111); Kleinig (2010, p. 5).

  109. Westen (2004, p. 263).

  110. Feinberg (1989, p. 182).

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Acknowledgments

Special thanks to Peter Westen for his very helpful feedback on drafts of this article. Thanks to two anonymous Criminal Law and Philosophy referees, whose incisive comments helped greatly improve the paper. Thanks also to Caroline Mala Corbin, Dena Davis, Patti Falk, Peter Garlock, Brian Ray, and John E. Taylor for their careful reading and helpful comments. Thanks to Maria Witmer-Rich for her unending support and encouragement.

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  1. Cleveland-Marshall College of Law, Cleveland State University, 2121 Euclid Ave., LB 138, Cleveland, OH, 44115, USA

    Jonathan Witmer-Rich

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Witmer-Rich, J. It’s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law. Criminal Law, Philosophy 5, 377–398 (2011). https://doi.org/10.1007/s11572-011-9126-9

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