The conventional wisdom that influences university policy on what is considered valid sexual consent has undergone radical change over the past twenty years. Valid consent being the criteria that makes subsequent sexual behavior morally justified because the consent is morally transformative in the way that matters. Affirmative consent policies are now being used increasingly at universities across the country, as well as forming the basis for legislation in some U.S. states. University policies that define (...) class='Hi'>affirmative consent are varied, but policies generally require the consent to be voluntary, conscious, unambiguous, and ongoing. The consent can be communicated verbally or behaviorally as long as it is clear and continues throughout the sexual encounter. I will argue against both the unambiguous and ongoing requirements of sexual consent. I contend that we should reject the affirmative model of sexual consent because of the problems with these requirements and I then offer some reasons in favor of returning to a lack of dissent model of sexual consent. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement (...) of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

Aim Genetic research representative of the population is crucial to understanding the underlying causes of many diseases. In a prospective evaluation of informed consent we assessed the willingness of individuals of different ethnicities, gender and drug dependence history to participate in genetic studies in which their genetic sample could be shared with a repository at the National Institutes of Health. Methods Potential subjects were recruited from the general population through the use of flyers and referrals from previous participants and (...) clinicians with knowledge of our study. They could consent to 11 separate choices so that they could specify how and with whom their genetic sample could be shared. Rates of affirmative consent were then analysed by gender, ethnicity and drug dependence history. Results Of 1416 volunteers enrolled, 99.7% gave affirmative informed consent for studies of addiction conducted in our laboratory. No significant difference was found for participation in genetic studies conducted in our laboratory by gender, ethnicity or drug dependence history. Over all 11 questions, individuals with a history of drug use were more likely to agree to consent to participate in our study than were healthy volunteers. Conclusion A high percentage of each category of gender, ethnicity and drug history, gave affirmative consent at all levels. The level of detail in and the amount of time spent reviewing the informed consent, and a relationship of trust with the clinical investigator may contribute to this outcome. (shrink)

The way in which consent to sexual interactions is understood in the US is undergoing a transformation. Many universities, sometimes at the behest of lawmakers, are moving to adopt ‘affirmative consent’ policies, which define consent in terms of affirmative behavior that goes beyond mere silence or lack of resistance. Although these policies are a move in the right direction, I argue that their content has not been properly understood. In particular, the circumstances in which nonverbal (...) behavior may communicate consent are more limited than might be apparent. And even though these circumstances can be abstractly identified, it is difficult to give people adequate guidance about when some of them obtain. Moreover, I argue that no matter how the allowance for nonverbal behavior is construed, affirmative consent policies unnecessarily prohibit interactions that people may have reason to engage in. I propose an alternative policy that remedies these problems with the affirmative consent policies that are currently being implemented. And I note that the justification for this alternative policy does not turn on any special features of the university setting. Instead, the account I give suggests grounds for reforming the law as well. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual (...) activity, with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

The legal basis of informed consent in Texas may on first examination suggest an unqualified affirmation of persons as the source of authority over themselves. This view of individuals in the practice of informed consent tends to present persons outside of any social context in general and outside of their families in particular. The actual functioning of law and medical practice in Texas, however, is far more complex. This study begins with a brief overview of the roots of (...) Texas law and public policy regarding informed consent. This surface account is then contrasted with examples drawn from the actual functioning of Texas law: Texas legislation regarding out-of-hospital do-not-resuscitate (DNR) orders. As a default approach to medical decision-making when patients lose decisional capacity and have failed to appoint a formal proxy or establish their wishes, this law establishes a defeasible presumption in favor of what the law characterizes as “qualified relatives” who can function as decision-makers for those terminal family members who lose decisional capacity. The study shows how, in the face of a general affirmation of the autonomy of individuals as if they were morally and socially isolated agents, space is nevertheless made for families to choose on behalf of their own members. The result is a multi-tier public morality, one affirming individuals as morally authoritative and the other recognizing the decisional standing of families. (shrink)

Sexual consent is advocated around the world to reduce sexual assault. The widespread affirmative consent model emphasizes a need for unambiguous consent. In this paper, we contribute to a deeper understanding of how ambiguities in the initiations of sexual activities are routinely solved to achieve consent. Drawing on conversation analytic research on joint decision-making, and a dataset of 80 cases of sexual initiation in contemporary TV-series and movies, we investigate the interactional practices by which sexual (...) activities are presented as consensual and how consent is achieved across sequences of interaction. We found there to be social advantages of synchronous initiation, compared to sequential verbal initiations, which were associated with various social vulnerabilities. These vulnerabilities could however be circumvented by two practices, each of which made use of a distinct combination of verbal and embodied resources. While ambiguities exist, our results oppose the idea of sexual consent as a practically hopeless and awkward endeavor. Instead, consent consists of joint action that is achieved through recognizable and systematic ways. (shrink)

Gender affirming hormone treatment is an important part of the care of trans adolescents which enables them to develop the secondary sexual characteristics congruent with their identified genders. There is an increasing amount of empirical evidence showing the benefits of gender affirming hormone treatment for psychological health and social well-being in this population. However, in several countries, access to gender affirming hormone treatment for trans adolescents has recently been severely restricted. While much of the opposition to gender affirming hormone treatment (...) for trans adolescents has in part been ideologically motivated, it also reflects a debate about whether there are harms that outweigh the benefits of the treatment. Accordingly, a systematic and comprehensive philosophical analysis of the ethics of gender affirming hormone treatment for trans adolescents is needed. Herein, I offer such an analysis that draws on the four principles of biomedical ethics by Tom Beauchamp and James Childress. Based on the considerations of beneficence, nonmaleficence, autonomy, and justice, I argue that the provision of access to gender affirming hormone treatment for consenting trans adolescents is ethically required and that the current restrictions to such treatment are ethically wrong. (shrink)

Even more than for other treatments, great importance must be given to informed consent in the case of electroconvulsive therapy. In a percentage of cases, the symbolic connotation of the treatment, even if mostly and intrinsically negative, may actually be a determining factor in the patient’s motives for giving consent. On an ethical and medicolegal level, the most critical point is that concerning consent to the treatment by a psychotic subject with a severely compromised ability to comprehend (...) the nature and objective of the proposed therapy, but who nonetheless expresses his consent, for reasons derived from delusional thoughts. In fact, this situation necessarily brings to light the contradiction between an explicit expression of consent, a necessary formality for the commencement of therapy, and the validity of this consent, which may be severely compromised due to the patient’s inability to comprehend reality and therefore to accept the proposal of treatment, which is intrinsic to this reality. With the use of an electric current, the symbolic experience associated with anaesthesia, and the connection to convulsions, ECT enters the collective consciousness. In relation to this, ECT is symbolic of these three factors and hooks on to the thoughts, fears, feelings and expectations of delusional patients. These are often exemplified in the violent intervention of the persecutor in the patient with schizophrenia, the expected punishment for the ’error’ committed for which the depressed patient blames himself and the social repression of the maniacal patient’s affirmation of his inflated self-esteem. (shrink)

The standard liberal sexual ethic maintains that consent is the only requirement for ethical sexual relations. While consent is certainly necessary for an adequate sexual ethic (and it’s important to know what it involves), I argue that it’s far from sufficient. The key claims that I advance are the following: (1) The consent-only model of sexual ethics affirms a “casual” view of sex and therefore it can’t make sense of and properly combat what’s worst in the sexual (...) domain: namely, the grave evil of sexual violence. (2) The consent-only model of sexual ethics fails properly to recognize the special significance of human sexuality and the nature of erotic love and its role in human sexual fulfillment and therefore it can’t make sense of and properly support what’s best in the sexual domain: namely, a committed erotic loving relationship. A more adequate sexual ethic, I maintain, would be a more traditionalist one that involves the following: it would give proper recognition to the special significance of human sexuality, avoid dehumanization in sexual desire, and encourage and support committed erotic love and its role in human fulfillment. Moreover, it would regard this as requiring that we cultivate sexual virtues such as chastity, modesty, and fidelity, and that we encourage and support life-long monogamous marriage as the proper context for human sexual relationship. (shrink)

The Lockean natural rights tradition—including its libertarian branch-- is a work in progress.1 Thirty years after the publication of Anarchy, State, and Utopia, Robert Nozick’s classic work of political theory is still regarded by academic philosophers as the authoritative statement of right-wing libertarian Lockeanism in the Ayn Rand mold.2 Despite the classic status of this great book, its tone is not at all magisterial, but improvisational, quirky, tentative, and exploratory. Its author has more questions than answers. On some central foundational (...) questions he refrains from taking a stand. There is spadework yet to be done on the project of developing the most plausible versions of Lockean and Lockean libertarian views. Prior to doing this work, and articulating the sensible alternatives and what can be said for and against them, we are not yet in a position reasonably to opt for any particular version of Lockean theory or for that matter to decide between the natural rights tradition and rival consequentialisms. This essay aims to explore hard and soft versions of Lockean theory. The exploration aims to persuade the reader to favor the soft versions. Section I formulates four claims (all asserted by Nozick) and provisionally identifies the Lockean libertarian view with these claims. Section II notes that although Nozick in his 1974 book made scant progress toward providing a justification of his particular doctrine of rights, compared to rivals, no rights theorist since then has made significant advances on that front, so Nozick’s achievement has not been superseded. Nozick’s view of rights as side constraints is rehearsed. Sections III and IV raise a question that Nozick first posed: Should rights be regarded as specifying ways individuals may not be treated, infringement of which is sometimes, or always, or never morally acceptable provided full compensation is paid to any victims? Hard libertarianism is defined as a version of Lockean libertarianism that replies “Never!” to this question along with offering strict interpretation and uncompromising affirmation of the four provisional claims detailed in Section I.. (shrink)

Treatment informed consent aims to preserve the autonomy of patients in the clinician – patient relationship so as to ensure valid consent. An acceptable method of evaluating understanding of consent information is by assessing the extent of recall by patients of the pieces information believed to have been passed across. When concerns are not satisfactorily addressed from the patients’ perspective, recall of consent information may be low. This study is a questionnaire – based cross – sectional (...) interview of consecutive adult surgical patients who could give their respective medical histories and who were booked for elective major surgical procedures over a period of 7 months in a tertiary health institution in southeastern Nigeria. Four to five days after a formal consent session, during ward admission, extent of recall of information on the nature of the disease condition or diagnosis, the nature of the planned procedure and the risks involved in the planned procedure were assessed and analyzed on the background of how satisfying the consent sessions were from individual patient’s perspective. Generally, the recall of nature of disease condition and nature of planned procedure is better than recall of risks involved in the planned procedure. More specifically however, recall in these 3 domains is significantly better among the patients that affirmed that their concerns were satisfactorily addressed. The findings from this study support that no effort should be spared in ensuring that the consent information are satisfying to the patients from the patients’ viewpoint. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and (...) physical autonomy, rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

El siguiente artículo interroga dos concepciones que Ricoeur desarrolla sobre la vida en dos momentos distintos de su obra: el primero corresponde a una filosofía de la voluntad desarrollado a lo largo de una década (1950-1960), y el segundo a una hermenéutica de los textos que elabora particularmente a partir de su trilogía Temps et récit. Nuestra tesis de lectura consiste en afirmar que los discursos que Ricoeur ha elaborado sobre la vida, tanto fenomenológico como hermenéutico, están marcados por el (...) predominio de la afirmación, de la potencia del sí que se sobrepone a las diversas figuras de la negatividad, cobrando sentido el título de su obra póstuma Vivo hasta la muerte. Consentir y narrar son dos modos de afirmar a pesar de su opacidad y negatividad. The following article examines two manner of understandings life that Ricoeur develops in two different moments of his work: the first moment corresponds to a philosophy of the will developed during the decade of the 50th and the second corresponds to a hermeneutics of the texts that Ricoeur develops particularly in his trilogy Temps et récit. My thesis is that the different discourses that Ricoeur has elaborated about life, phenomenological and hermeneutical, are marked by the idea of affirmation, that is, by the potency of a self that overcomes the different figures of negativity. Then, we can make sense of the title of Ricoeur posthumous work Living Up to Death. Consent and narrate are two ways to affirm despite its opacity and negativity. (shrink)

Previously proposed strategies for tackling hermeneutical injustices take for granted the interests people have in certain things about them being intelligible to them and/or to others, and seek to enable them to satisfy these interests. Strategies of this sort I call interests-as-given strategies. I propose that some hermeneutical injustices can instead be tackled by doing away with certain of these interests, and so with the possibility of their unfair non-satisfaction. Strategies of this sort I call interests-in-question strategies. As a case (...) study in when such an interests-in-question strategy ought to be pursued, I look at how to tackle hermeneutical injustices arising in the context of gender-affirming healthcare as provided to adults by the National Health Service in the UK. I argue that considerations of trust, privacy, and respect all support pursuing such a strategy. One way to do so, I suggest, would be by replacing the existing gatekeeping model with an informed consent model for the provision of gender-affirming healthcare. Considerations of hermeneutical justice can hence be added to the already-impressive case for undertaking this shift. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake about (...) whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

Institutional guidelines for transgender children and adolescent minors fail to adequately address a critical juncture of care of this population: how to proceed if a minor and their parents have disagreements concerning their gender-affirming medical care. Through arguments based on ethical, paediatric, adolescent and transgender health research, we illustrate ethical dilemmas that may arise in treating transgender and gender diverse youth. We discuss three potential avenues for providing gender-affirming care over parental disagreement: legal carve-outs to parental consent, the mature (...) minor doctrine and state intervention for neglect. Our discussion approaches this parent–child disagreement in a manner that prioritises the developing autonomy of transgender youth in the decision-making process surrounding medically assisted gender affirmation. We base our arguments in the literature surrounding the risks and benefits of gender-affirming therapy in transgender children and the existing legal basis for recognising minors’ decision-making authority in certain medical situations. (shrink)

This paper emphasizes a need to recognize sexual refusals both in public discourse and in the context of particular interactions. I draw on sociolinguistic work on the structure of refusals to illuminate a much-discussed case of alleged sexual violence as well as to inform how we ought to think and talk about sexual consent and refusal more generally. I argue on empirical and ideological grounds that we ought to impute the same significance to refusals uttered in sexual contexts as (...) we do to those uttered in nonsexual contexts. Finally, I propose an amendment to the definition of affirmative consent that would put it in line with the conclusions drawn in the rest of the paper. (shrink)

Feminists are divided on whether consent should be employed in legal definitions of rape. Catharine MacKinnon has criticized the usefulness of consent in enabling legal systems to recognize and prosecute instances of rape (MacKinnon 1989, 2005, 2016). In a recent article in this journal, Lisa H. Schwartzman defends the use of affirmative consent in rape law against MacKinnon’s critique (Schwartzman 2019). In contrast to MacKinnon, Schwartzman claims our understanding of rape must include both force and (...) class='Hi'>consent components. In this paper, I will argue in agreement with Schwartzman and against MacKinnon that the legal definition of rape should include an affirmative consent component. I will take Schwartzman’s discussion as my point of departure and consider whether she has responded adequately to MacKinnon’s criticisms of consent. I will argue that her responses are not fully adequate. In particular, she has not successfully rebutted the argument that an appeal to consent is unnecessary once we have accepted an expanded definition of coercion. I will then provide a more affirmative defense of affirmative consent in response to MacKinnon’s most challenging criticism. (shrink)

Patients belonging to ethnic, racial, and religious minorities have been all but excluded from the legal academy's on-going conversation about informed consent. This article repairs that egregious omission. It begins by observing the narrowing of ethical justifications that underlie our informed consent law, tracing the ethical literature from the ancients to modern formulations of autonomy-centered models. Next, this article reviews the vast body of empirical data available in social science literature, that demonstrates how distinct from the autonomy model (...) the broad range of values and priorities held by patients from racial, ethnic, and religious minority groups is. The conclusion that informed consent's focus on the western notion of autonomy affirmatively harms minority patients is inescapable. The article concludes by offering a fiduciary model of informed consent law that could improve the quality of health care for more than 100 million minority patients, potentially at risk under current law while also regulating the informed consent procedure and practice in a way that will bring balance and justice to all American patients and providers. (shrink)

Political debate regarding trans youth’s access to gender-affirming care (GAC) has pushed many to advocate for GAC by pointing to tragic, pathological outcomes of non-treatment, namely suicide. However, these pathologized arguments are a harmful ethical “shortcut” which should be replaced by a meaningful engagement with the ethics of providing GAC to youth.

Organ procurement policy from the recently deceased recasts families into gatekeepers of a scarce medical resource. To the frustration of organ procurement teams, families do not always authorize organ donation. As a result, efforts to increase the number of organs available for transplantation often seek to limit the authority of families to refuse organ retrieval. For example, in some locales if a deceased family member has satisfied the legal conditions for first-person prior assent, a much looser and easier standard to (...) satisfy than informed consent, organ retrieval may proceed despite the family’s objections. Some countries have replaced voluntary consent to organ donation with forms of organ conscription. Often referred to under the misnomer “presumed consent,” such policies legalize the harvesting of organs at death, unless individuals exercise official options to opt out. As this article explores, however, there are good grounds for affirming the authority of the family to consent to or to deny organ donation on behalf of recently deceased family members, as well as to reject first-person assent and “presumed consent” policies of organ procurement. Insofar as individuals have failed clearly and competently to provide informed consent to organ donation, moral authorization for the use of the person and his body ought to be grounded on the foundational authority of the family, rather than the state’s supposed interests in obtaining organs for transplantation. (shrink)

Consent remains a crucial, yet challenging, cornerstone of clinical practice. The ethical, legal and professional understandings of this construct have evolved away from a doctor-centred act to a patient-centred process that encompasses the patient’s values, beliefs and goals. This alignment of consent with the philosophy of shared decision-making was affirmed in a recent high-profile Supreme Court ruling in England. The communication of information is central to this model of health care delivery but it can be difficult for doctors (...) to gauge the information needs of the individual patient. The aim of this paper is to describe ‘core information sets’ which are defined as a minimum set of consensus-derived information about a given procedure to be discussed with all patients. Importantly, they are intended to catalyse discussion of subjective importance to individuals. The model described in this paper applies health services research and Delphi consensus-building methods to an idea orginally proposed 30 years ago. The hypothesis is that, first, large amounts of potentially-important information are distilled down to discrete information domains. These are then, secondly, rated by key stakeholders in multiple iterations, so that core information of agreed importance can be defined. We argue that this scientific approach is key to identifying information important to all stakeholders, which may otherwise be communicated poorly or omitted from discussions entirely. Our methods apply systematic review, qualitative, survey and consensus-building techniques to define this ‘core information’. We propose that such information addresses the ‘reasonable patient’ standard for information disclosure but, more importantly, can serve as a spring board for high-value discussion of importance to the individual patient. The application of established research methods can define information of core importance to informed consent. Further work will establish how best to incorporate this model in routine practice. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Justice and the General Will:Affirming Rousseau's Ancient OrientationDavid Lay WilliamsThere is much confusion about how to characterize the work of Jean-Jacques Rousseau. His thought has at various times been related to such dissimilar thinkers as Plato and Hobbes. From Plato he is said to have acquired his affinities for community and civic virtue. And one does not have to look too hard to find his praise for the great (...) sage of the Academy: "Plato only purified the heart of man."1 He was often eager to affiliate his ideas with those of antiquity. He yearned for modern society to rekindle the flames of a once-great civilization. "[W]hat keeps us [the moderns] from being men like them [the ancients]? Our prejudices, our base philosophy, and the passions of petty self-interest, concentrated together with egoism in all hearts by inept institutions in which genius never had any share."2 Despite his obvious admiration for the perceived greater ideas of the past, however, Rousseau also expressed some skepticism. James Miller has suggested that he held Plato's theory of the Forms to be unsustainable.3 Allan Bloom has likewise argued that Rousseau's "teaching is not... a revival of those of Plato.... If he admires the practice of antiquity, he does not accept the theory."4This has led many to argue that Rousseau is best understood as student of Thomas Hobbes. Roger D. Masters, for example, has suggested that "Rousseau's principles of political right can... be best described as a reformulation [End Page 383] of Hobbes' conception of the social contract."5 Arthur Melzer also argues, "The purpose of the doctrine Rousseau elaborates in the Social Contract is essentially the same [as Hobbes']."6 This view is argued on the grounds that the General Will is a positive or arbitrary standard, functioning as the primary principle of Rousseau's constructive political program. Yet the vision of Rousseau as a Hobbesian or modernist also merits skepticism. While he employs a social contract, as does Hobbes, he explicitly rejects traditional forms of positivism. "What is good and conformable to order is so by the nature of things and independently of human conventions."7 Whatever one might say about such passages, it at least raises the possibility that Rousseau is no modernist in the Straussian sense of defining Justice as human agreement.Much of what contributes to the conflicting interpretations of Rousseau can be attributed to different understandings of the relative priority and relationship of two central concepts in his writings. One of these is the well-discussed notion of the General Will. The dominant fashion is to read the General Will as a conventional substitute for natural law or transcendent Ideas. According to this reading, the General Will is grounded on nothing more than consent and functions as the first principle of all legitimate political societies. The other term central to Rousseau's program is the far less discussed but equally important concept of Justice. Little has been written on his understanding of Justice and, for that matter, he himself rarely discussed it explicitly. But it, too, could also be considered a primary principle. While it would be foolish to dismiss the importance of the General Will to Rousseau, it would be equally problematic to explore it independently of his Idea of Justice. The question in understanding his work is which of these two principles—the General Will or Justice—is primary or fundamental. If it is the General Will, a case can be made that the Straussians are right, and Rousseau is a positivist. If Justice is prior, on the other hand, then there is reason to believe that he was something much different.I argue that the positivist reading of Rousseau is flawed. Indeed, my thesis is that he is among the greatest and most thorough Platonists of the modern era.8 His rejection of Hobbes is not merely rhetorical. In fact, it represents the [End Page 384] true impetus of his social contract. This contract is designed explicitly to counter Hobbesian positivism. In the same way that Plato responds to Protagoras' positivism with his theory of the Forms, Rousseau responds to Hobbes... (shrink)

Inherent in providing healthcare for youth lie tensions among best interests, decision-making capacity, rights, and legal authority. Transgender youth experience barriers to needed gender-affirming care, often rooted in ethical and legal issues, such as healthcare provider concerns regarding youth capacity and rights to consent to hormone therapy. Even when decision-making capacity is present, youth may lack the legal authority to give consent. The aims of this paper are therefore to provide an empirical analysis of minor trans youth capacity (...) to consent to hormone therapy and to address the normative question of whether there is ethical justification for granting trans youth the authority to consent to this care. Through qualitative content analysis of interviews with trans youth, parents, and healthcare providers, we found that trans youth demonstrated the understandings and abilities characteristic of the capacity to consent to hormone therapy and that they did consent to hormone therapy with positive outcomes. Employing deontological and consequentialist reasoning and drawing on a foundation of empirical evidence, human rights, and best interests we conclude that granting trans youth with decisional capacity both the right and the legal authority to consent to hormone therapy via the informed consent model of care is ethically justified. (shrink)

In December 2017, Law 219/2017, ‘Provisions for informed consent and advance directives’, was approved in Italy. The law is the culmination of a year-long process and the subject of heated debate throughout Italian society. Contentious issues are addressed in the law. What emerges clearly are concepts such as quality of life, autonomy, and the right to accept or refuse any medical treatment – concepts that should be part of an optimal relationship between the patient and healthcare professionals. The law (...) maximizes the value of the patient’s time to decide. Every patient is allowed to make choices for the present as well as for the future, conceived as a continuation of the present, and to decide what comes next, based on what he/she already knows. The law identifies three distinct but converging paths towards the affirmation of a care relationship based on reciprocal trust and respect: the possibility to consent to or refuse treatment, the shared care planning, and advance directives. The fundamental point to emerge from the new Italian law is that consensus is an essential connotation of the treatment relationship. Consensus is not limited to the acceptance/rejection of medical treatment but is ongoing. It is projected into the future through shared care planning and advance directives which act as tools for self-determination and the manifestation of the beliefs and preferences of persons unable to express their will. These principles are in line with the idea of appropriate care as evaluated from two different perspectives, one of scientific adequacy and the other commensurate with the individual’s resources, fragility, values, and beliefs. Surely, however, the new law is not the end of the matter on issues such as conscientious objection, which is deeply rooted within the Italian cultural and political debate. In this regard, healthcare institutions and policymakers will be called upon to develop and implement organizational policies aimed at the management of foreseeable conscientious objection in this field. (shrink)

The 2015 judgment of the Namibia Supreme Court in Government of the Republic of Namibia v LM and Others set an important precedent on informed consent in a case involving the coercive sterilisation of HIV-positive women. This article analyses the reasoning and factual narratives of the judgment by applying Neil Manson and Onora O’Neill’s approach to informed consent as a communicative process. This is done in an effort to understand the practical import of the judgment in the particular (...) context of resource constrained public healthcare facilities through which many women in southern Africa access reproductive healthcare. While the judgment affirms certain established tenets in informed consent to surgical procedures, aspects of the reasoning in context demand more particularised applications of what it means for a patient to have capacity and to be informed, and to appropriately accommodate the disruptive role of power dynamics in the communicative process. (shrink)

As more young people feel safe to outwardly identify as transgender or gender expansive (TGE), meaning that their gender identity does not align with the sex they were assigned at birth, an increasing number of youth who identify as TGE seek gender-affirming medical care (GAMC). GAMC raises a number of ethical questions, such as the capacity of a minor to assent or consent, the role of parents or legal guardians in decisions about treatment, and implications for equitable access to (...) care when differing parental or custodial viewpoints are present. These questions are further complicated by the difficulties in explaining the limits of long-term research in GAMC, with regard to the preservation of fertility, for example. We present two de-identified composite case studies to highlight dilemmas that may arise and offer recommendations to better support patient- and family-centered decision making for GAMC. These include employing a multidisciplinUniverary shared decision-making approach, disentangling informed consent and assent from chronological age, developing a consistent approach to the assessment of decisional capacity, and developing age-appropriate informational materials. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:To Be or Not to Be:Waiving Informed Consent in Emergency ResearchCharles R. McCarthy (bio)The requirements for prior, legally authorized informed consent constitute a necessary condition for recruiting subjects into biomedical or behavioral research. However, informed consent requirements pose a serious problem for most research conducted in emergency care settings. For this reason, the Food and Drug Administration's (FDA) regulations governing investigational devices and the Department of (...) Health and Human Services' (HHS) regulations for the protection of human subjects allow narrow exceptions to the general requirements of informed consent. In a joint effort to clarify the applicability of the current FDA regulations and to better understand the intent of the HHS regulations as they apply to emergency research, the FDA and the National Institutes of Health (NIH) cosponsored a public forum on the ethical conduct of emergency research in January 1995.Although the forum was not designed as a consensus conference and participants vigorously disagreed on some of the details, a broad consensus emerged on several major points: (1) both HHS and FDA regulations should, in the immediate future, be interpreted to allow for randomized clinical trials in emergency situations so long as the subjects are carefully protected; and (2) consideration should be given to producing new, closely harmonized regulations from both agencies that will provide greater clarity concerning what kinds of emergency research may be allowed without obtaining prior informed consent.The FDA-NIH forum in January was occasioned primarily by controversy about the hypothermia research protocol described below, but it is obvious that many other kinds of emergency research also await the outcome of deliberations concerning waiver of informed consent in emergency situations. These include research into the care and treatment of: occlusive stroke; subarachnoid hemorrhage due to intracranial aneurysm; metabolic coma; status epilepticus; cardiac arrest; myocardial infarction; cardiac arrhythmia; hemorrhagic shock; pulmonary embolism; acute asthmatic attack; and poisoning. All of these conditions [End Page 155] are encountered in emergency settings where obtaining informed consent from the patient-subjects to participate in research is seldom possible, and obtaining consent from legally authorized representatives of the subjects is either not feasible, or, if obtained, is of doubtful validity.The Hypothermia Research Case and HHS RegulationsA $7.2 million grant for research on the use of hypothermia in the treatment of severe head trauma, the largest award ever made to the University of Texas Health Sciences Center at Houston, is in danger of expiring before the study is completed. The protocol, which involves the use of cooling blankets to induce hypothermia in patients suffering from severe head injuries, is designed to test the hypothesis that: "Early lowering of the body temperature of patients suffering from severe head trauma to approximately 91 degrees Fahrenheit will slow patients' metabolism and will/will not, as a consequence, reduce the rates of both morbidity and mortality in these patients." The protocol was approved by seven Institutional Review Boards (IRBs), each of which waived the requirement to obtain informed consent from research subjects in accordance with Sec. 46. 116(d) of the HHS Regulations for the Protection of Human Subjects.1However, NIH's Office for Protection from Research Risks (OPRR), which is responsible for assuring compliance with the HHS regulations, has taken a controversial regulatory position by requiring informed consent from a legally authorized representative of each subject to be entered in the hypothermia trial. Because the obtaining of surrogate consent has proved to be very difficult, OPRR's position has slowed the research to a point where it may have to be terminated.At issue in the controversy is a fundamental question of ethics and public policy. Is it ever permissible to involve incompetent subjects in research without either their consent, or the consent of their legally authorized representatives? Pertinent HHS regulations for the protection of human subjects seem to answer the question affirmatively by allowing local IRBs to waive some or all of the elements of informed consent under carefully limited circumstances (45 CFR 46 116(d)). Nevertheless, OPRR has signalled the research community that use of the informed consent waiver provision for the Houston hypothermia study is not permitted under the regulations. OPRR judged that the risks... (shrink)

Se busca aportar elementos conceptuales para una filosofía del consentimiento, al interrogar el privilegio que otorga Paul Ricoeur a la afirmación con respecto a las múltiples formas de negatividad inscritas en el ser humano y en sus acciones. Para ello, se propone un análisis del consentimiento próximo a Le volontaire et l'involontaire, en el que se tiene siempre en la mira la hermenéutica del sí-mismo y del homo capax, desarrolladas por Ricoeur desde 1990. Se defiende que el consentimiento va siempre (...) acompañado de la paciencia, y que ambos pueden y deben ser pensados como elementos estructurales que constituyen al sí-mismo. By inquiring into the privilege granted by Paul Ricoeur to affirmation with respect to the multiple forms of negativity inscribed in human beings and their actions, the article seeks to contribute conceptual elements for a philosophy of consent. To this effect, it proposes an analysis of consent along the lines of Le volontaire et l'involontaire, bearing in mind the hermeneutics of self and of homo capax, developed by Ricoeur since 1990. The paper argues that consent goes hand in hand with patience, and that both can and should be thought as structural elements that constitute the oneself. Neste artigo, procura-se contribuir elementos conceituais para uma filosofia do consentimento, ao interrogar o privilégio que outorga Paul Ricoeur à afirmação a respeito das múltiplas formas de negatividade inscritas no ser humano e em suas ações. Para isso, propõe-se uma análise do consentimento próximo a Le volontaire et l'involontaire, no qual se tem sempre no alvo a hermenêutica do si-mesmo e do homo capax, desenvolvidas por Ricoeur desde 1990. Defende-se que o consentimento vai sempre acompanhado da paciência e que ambos podem e devem ser pensados como elementos estruturais que constituem o si-mesmo. (shrink)

We critically evaluate arguments in a recent Journal of Law, Medicine & Ethics article by Svoboda, Adler, and Van Howe disputing the 2012 affirmative infant male circumcision policy recommendations of the American Academy of Pediatrics. We provide detailed evidence in explaining why the extensive claims by these opponents are not supported by the current strong scientific evidence. We furthermore show why their legal and ethical arguments are contradicted by a reasonable interpretation of current U.S. and international law and ethics. (...) After all considerations are taken into account it would be logical to conclude that failure to recommend male circumcision early in infancy may be viewed as akin to failure to recommend childhood vaccination to parents. In each case, parental consent is required and the intervention is not compulsory. Our evaluation leads us to dismiss the arguments by Svoboda et al. Instead, based on the evidence, infant male circumcision is both ethical and lawful. (shrink)

This paper identifies and offers commentary upon a previously un-remarked consonance between Nietzsche and Weil when it comes to the idea of a universal love of the world. The discussion focuses on five features of the Nietzschean account of affirmation, which are as follows: that the possibility of affirmation has the form of a fundamental question at the heart of human life, which has an all-or-nothing character ; that genuine affirmation is rare, difficult or traumatic in an existentially revealing way, (...) primarily because affirmation means facing up to the lack of finality in the world, and in particular the problem of meaningless suffering, which means that affirmation is tied up with a fundamental revaluation. The first half of the paper outlines the parallels between Nietzschean affirmation and Weilian ‘consent to necessity’ in relation to the first three of these, which are also the most general. The second half of the paper explores the fourth and fifth, so as to suggest a way of reading the underlying similarity between these two projects: both are attempts to rediscover the possibility of an all-embracing affirmation of reality in the absence of any existential teleology, and when eschatology has been presumed to be impossible. In other words, both Nietzsche and Weil are compelled to find a way of achieving a transfigured perspective on ‘the whole’ in the absence of any transformation of ‘the whole’. (shrink)

This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment (...) of section 273.2 in 1992. Revisions to the Model Jury Instructions posted by the National Judicial Institute are also considered. (shrink)

Background There is lack of consensus in the bioethics literature regarding the use of cardiopulmonary resuscitation (CPR) for organ-preserving purposes. In this study, we assessed the perspectives of clinicians in critical care settings to better inform donor management policy and practice.Methods An online anonymous survey of members of the Society of Critical Care Medicine that presented various scenarios about CPR for organ preservation.Results The email was sent to 10,340 members. It was opened by 5,416 (52%) of members and 405 members (...) (4%) completed the survey with few missing data. A majority of respondents (81%) answered that donation status should not influence whether CPR is performed on an imminently dying patient. There was very strong agreement (>85%) that 1) CPR should be performed on a registered donor who experiences a cardiac arrest with an unknown code status before death by neurological criteria (DNC) and 2) CPR should be performed if the patient is not a registered donor and experiences cardiac arrest but the surrogate/power of attorney (POA) has not yet been approached regarding code status and donation. When a registered donor with a DNR order experiences cardiac arrest before DNC, 98% of respondents would not perform CPR. However, after DNC, respondents were evenly divided on whether they would (49%) or would not (51%) perform CPR on a registered donor with an undocumented code status. When asked whether consent should be required for CPR for organ-preserving purposes, 39% answered “Yes” when a patient arrests before DNC and 48% answered “Yes” when a patient arrests after DNC (P = 0.2).Conclusions The majority of respondents did not consider donor status relevant to CPR decisions before DNC, and virtually all would respect a DNR order in a registered donor before DNC. Respondents were divided about the need for an affirmative consent for CPR for organ-preserving purposes both before and after DNC. (shrink)

In this paper I examine the presence of rape myths and gender stereotypes, and the norms of sexuality they reflect and reinforce, in Croatian rape laws, as exemplified by the recent practice of the Zagreb County Court. I begin with a general discussion of the gendered myths and stereotypes that have shaped the content and application of the criminal law of rape everywhere. I then briefly introduce the definition of rape under the 1997 Croatian Criminal Code which was in force (...) at the time of my research, after which I proceed to the critical analysis and the assessment of the Zagreb County Court practice. Next, I turn to the changes in the new Criminal Code to see how they address the identified problems. I offer a model of an affirmative consent standard, based on a communicative model of sexuality, which values reciprocal responsibility, communication and mutuality of sexual desire. I argue that this standard has greater potential to challenge rape myths and gender stereotypes and to promote sexual freedom and gender equality. (shrink)

Legal definitions of rape traditionally required proof of both force and nonconsent. Acknowledging the difficulty of demonstrating the conjunction of force and nonconsent, many feminists argue that rape should be defined based on one element or the other. Instead of debating which of these two best defines the crime of rape, I argue that this framework is problematic, and that both force and nonconsent must be situated in a critique of social power structures. Catharine MacKinnon provides such a critique, and (...) she reframes rape as a matter of gender inequality. However, rather than rejecting the force/nonconsent dichotomy, MacKinnon focuses exclusively on force, which she thinks can be reconceived to include inequalities. Considering the #MeToo movement and feminist efforts to use Title IX to address campus rape, I argue that the concept of consent is more flexible than MacKinnon suggests and that “affirmative consent” can challenge this liberal model. In requiring active communication, affirmative consent shifts responsibility for rape, opens space for women’s sexual agency, and allows for the transformation of rape culture. Thus, I argue that rape should be defined by the use of force, the lack of affirmative consent, or the presence of both elements. (shrink)

Collected and edited by Noah Levin -/- Table of Contents: -/- UNIT ONE: INTRODUCTION TO CONTEMPORARY ETHICS: TECHNOLOGY, AFFIRMATIVE ACTION, AND IMMIGRATION 1 The “Trolley Problem” and Self-Driving Cars: Your Car’s Moral Settings (Noah Levin) 2 What is Ethics and What Makes Something a Problem for Morality? (David Svolba) 3 Letter from the Birmingham City Jail (Martin Luther King, Jr) 4 A Defense of Affirmative Action (Noah Levin) 5 The Moral Issues of Immigration (B.M. Wooldridge) 6 The Ethics (...) of our Digital Selves (Noah Levin) -/- UNIT TWO: TORTURE, DEATH, AND THE “GREATER GOOD” 7 The Ethics of Torture (Martine Berenpas) 8 What Moral Obligations do we have (or not have) to Impoverished Peoples? (B.M. Wooldridge) 9 Euthanasia, or Mercy Killing (Nathan Nobis) 10 An Argument Against Capital Punishment (Noah Levin) 11 Common Arguments about Abortion (Nathan Nobis & Kristina Grob) 12 Better (Philosophical) Arguments about Abortion (Nathan Nobis & Kristina Grob) -/- UNIT THREE: PERSONS, AUTONOMY, THE ENVIRONMENT, AND RIGHTS 13 Animal Rights (Eduardo Salazar) 14 John Rawls and the “Veil of Ignorance” (Ben Davies) 15 Environmental Ethics: Climate Change (Jonathan Spelman) 16 Rape, Date Rape, and the “Affirmative Consent” Law in California (Noah Levin) 17 The Ethics of Pornography: Deliberating on a Modern Harm (Eduardo Salazar) 18 The Social Contract (Thomas Hobbes) -/- UNIT FOUR: HAPPINESS 19 Is Pleasure all that Matters? Thoughts on the “Experience Machine” (Prabhpal Singh) 20 Utilitarianism (J.S. Mill) 21 Utilitarianism: Pros and Cons (B.M. Wooldridge) 22 Existentialism, Genetic Engineering, and the Meaning of Life: The Fifths (Noah Levin) 23 The Solitude of the Self (Elizabeth Cady Stanton) 24 Game Theory, the Nash Equilibrium, and the Prisoner’s Dilemma (Douglas E. Hill) -/- UNIT FIVE: RELIGION, LAW, AND ABSOLUTE MORALITY 25 The Myth of Gyges and The Crito (Plato) 26 God, Morality, and Religion (Kristin Seemuth Whaley) 27 The Categorical Imperative (Immanuel Kant) 28 The Virtues (Aristotle) 29 Beyond Good and Evil (Friedrich Nietzsche) 30 Other Moral Theories: Subjectivism, Relativism, Emotivism, Intuitionism, etc. (Jan F. Jacko). (shrink)

International law lacks many of the standard features of domestic law. There are few legislative or judicial bodies with exclusive authority over particular jurisdictions or subject matters, the subjects regulated by international law typically must affirmatively consent to be bound by it, and supranational authorities with the power to coerce states to comply with international obligations are rare. How can a legal system with these features generate changes in state behavior? For many theories, the ability of international law to (...) inform and change individual preferences provides the answer. When voters care that treaty commitments be kept, or that international norms be honored, the theory goes, leaders are more likely to be able to make choices consistent with international obligations. Over the last decade, a literature has emerged testing these theories using surveys and experiments embedded in surveys. Multiple U.S. studies find that international law and international norm arguments shift public opinion in the direction of greater compliance by 4 to 20 percentage points. However, studies in foreign contexts are more mixed, with some backlash reported in countries in which international law is highly politicized. This Article describes the state of current knowledge about whether international law actually does change preferences, explains the limitations with existing research, and proposes avenues for future study. (shrink)

The Ethics of Sex: An Introduction systematically and comprehensively examines the ethical issues surrounding the concept of sex. It addresses important questions such as: How to approach questions of sexual ethics in a philosophical way? Must we give affirmative consent to all sexual activity and what would be the impact of implementing an affirmative consent standard into law? Should we promote monogamy as the best way to live? Can the tools of behavioural economics offer insights into (...) the issues of sexual ethics? What constitutes harassment? How does the state involve itself in the private sexual lives of its citizens and is it justified in doing so? What privacy issues arise within relationships due to the development of technology? What ethical issues may arise as the result of future technological developments? Including discussion questions and suggestions for further reading at the end of each chapter The Ethics of Sex is the perfect philosophical introduction to the perennially topical issue, and ideal reading for students taking courses within the fields of applied ethics, sociology, law, religion and politics. (shrink)

Since children are considered incapable ofgiving informed consent to participate inresearch, regulations require that bothparental permission and the assent of thepotential child subject be obtained. Assent andpermission are uniquely bound together, eachserving a different purpose. Parentalpermission protects the child from assumingunreasonable risks. Assent demonstrates respectfor the child and his developing autonomy. Inorder to give meaningful assent, the child mustunderstand that procedures will be performed,voluntarily choose to undergo the procedures,and communicate this choice. Understanding theelements of informed consent has been (...) theparadigm for assessing capacity to give assent.This method leaves the youngest, leastcognitively mature children vulnerable towaiver of assent and forced researchparticipation. Voluntariness can also becompromised by the influence of authorityfigures who can exert undue influence andcoerce children to participate in research. This paper discusses factors that may influencethe decision to give assent/permission,potential parent-child conflict in theassent/permission process and how it isresolved, and potential parental undueinfluence on research participation. Theseissues are illustrated with quotations drawnfrom a larger qualitative study of parentalpermission and child assent (data notpresented). We suggest a developmentalapproach, viewing assent as a continuum rangingfrom mere affirmation in the youngest childrento the equivalent of the informed consentprocess in the mature adolescent. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

The inauguration of Michigan’s BioTrust for Health, a research biobank for leftover neonatal blood spots, posed several novel questions for the state’s Department of Community Health institutional review board. The IRB’s response to these questions affirmed that respect for persons requires consent from donors for tissue donation to a public health biorepository with a research mission. It also acknowledged that the existence of potential risks and benefits to groups as well as to individuals necessitated new institutional collaborations between the (...) IRB and the appointed community oversight board for the BioTrust to foster consideration of the impacts on all stakeholders. (shrink)

All contentious moral issues--from gay marriage to abortion and affirmative action--raise difficult questions about the justification of moral beliefs. How can we be justified in holding on to our own moral beliefs while recognizing that other intelligent people feel quite differently and that many moral beliefs are distorted by self-interest and by corrupt cultures? Even when almost everyone agrees--e.g. that experimental surgery without consent is immoral--can we know that such beliefs are true? If so, how? These profound questions (...) lead to fundamental issues about the nature of morality, language, metaphysics, justification, and knowledge. They also have tremendous practical importance in handling controversial moral questions in health care ethics, politics, law, and education. Sinnott-Armstrong here provides an extensive overview of these difficult subjects, looking at a wide variety of questions, including: Are any moral beliefs true? Are any justified? What is justified belief? The second half of the book explores various moral theories that have grappled with these issues, such as naturalism, normativism, intuitionism, and coherentism, all of which are attempts to answer moral skepticism. Sinnott-Armstrong argues that all these approaches fail to rule out moral nihilism--the view that nothing is really morally wrong or right, bad or good. Then he develops his own novel theory,--"moderate Pyrrhonian moral skepticism"--which concludes that some moral beliefs can be justified out of a modest contrast class but no moral beliefs can be justified out of an extreme contrast class. While explaining this original position and criticizing alternatives, Sinnott-Armstrong provides a wide-ranging survey of the epistemology of moral beliefs. (shrink)

This paper critically explores key aspects of the gulf between traditional Christian bioethics and the secular moral reflections that dominate contemporary bioethics. For example, in contrast to traditional Christian morality, the established secular bioethics judges extramarital sex acts among consenting persons, whether of the same or different sexes, as at least morally permissible, affirms sexual freedom for children to develop their own sexual identity, and holds the easy availability of abortion and infanticide as central to the liberty interests of women. (...) Secular bioethics seeks to separate children from the authority of their parents, placing children themselves as in authority to make their own judgments about appropriate lifestyle choices, including sexual behaviors. As I argue, however, absent God, there exists no standpoint outside of our own cultural sociohistorically conditioned understanding from which to communicate any deeper perspective of reality or the bioethics that such a perspective would secure. Consequently, rather than discerning moral truth, secular bioethics merely affirms its own particular cultural sociohistorically conditioned ideological perspective. It is a social and political worldview bereft of definitive moral foundation, independent moral authority, or unambiguous content. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;Bearing in mind the (...) Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)