The Logic of Consent

The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct

Peter Westen

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351886482
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The Logic of Consent analyzes the varied nature of consent arguments in criminal law and examines the confusions that commonly arise from the failure of legislatures, courts and commentators to understand them. Peter Westen skillfully argues that the conceptual aspect accounts for a significant number of the difficulties that legislatures, courts and scholars have with consent in criminal cases; he observes that consent masquerades as a single kind of event when, in reality, it refers to diverse and sometimes mutually exclusive kinds of events. Specifically, consent is used in law to refer to three pairs of contrasting kinds of events: factual versus legal, attitudinal versus expressive, and prescriptive versus imputed. While Westen takes no position on whether the substance of existing defenses of consent in criminal law ought to be enlarged or reduced in scope, he examines each of these contrasting events and analyzes the normative confusions they produce.

PART I

FACTUAL CONSENT

Introduction

Consent matters because of the normative work it does. Consent possesses what Heidi Hurd calls ‘moral magic’.¹ Its moral magic—as well as its legal magic—consists of its power to change moral and legal relationships between persons who engage in consent and persons to whom the consent is directed. In criminal law, consent can transform the most horrific crimes into noncrimes, turning ‘rape’ into sexual intercourse, ‘maiming’ into therapeutic surgery, ‘kidnapping’ into vacation, ‘trespass’ into hospitality, and ‘theft’ into gift-giving.² Even when it does not transform crimes into noncrimes, consent can mitigate the severity of crimes by reducing them from aggravated offenses to nonaggravated offenses, as it does, for example, in reducing murder to assisted suicide, and rape to adultery or fornication in jurisdictions that continue to criminalize the latter.

Yet not every conception of consent is legally transformative in the aforementioned way. Only certain conceptions of consent—only conceptions of legal consent—operate to transform crimes into non-crimes and aggravated offenses into lesser offenses. ‘Legal consent’, as I define it, is consent by a subject, S, to conduct, x, on the part of an actor, A, that either exonerates A of criminal responsibility for x or mitigates A’s responsibility for x by fulfilling or signaling the fulfillment^a of whatever interests on S’s part the jurisdiction deems S to possess with respect to x. The law of rape uses ‘consent’ in a legal sense, for example, when it defines the offense as ‘sexual intercourse without consent’.³ Courts use consent legally when they distinguish it from mere ‘acquiescence’ or ‘submission’.⁴ Susan Estrich uses consent legally when she states that force and coercion ‘negate’ consent; John Harman uses consent legally when he emphasizes that the law must specify what ‘counts’ as consent; Leigh Bienen uses consent legally when she writes of rape cases in which ‘force, injury, and the relationship of the parties’ establish that ‘there was no consent’.⁵

Legal consent, as we shall see in Part II, comes in the form of three distinct conceptions: (1) a certain mental state of acquiescence by S to A’s conduct; (2) a certain expression by S of such a mental state on her part; and (3) a legal fiction of one or the other (or both) of the two prior conceptions of legal consent. Significantly, the first two conceptions of legal consent (of which the third in turn is a legal fiction) both consist in part of more fundamental conceptions of consent that are non-normative in nature. These more fundamental conceptions of consent are non-normative in that, although they constitute component parts of what together constitutes complete or partial defenses to criminal responsibility, they do not alone suffice to constitute such defenses.

To illustrate the relationship between legal conceptions of consent, on the one hand, and the simpler, non-normative conceptions of consent they incorporate, consider the 1969 Canadian statute that decriminalized the crime of sodomy among consenting adults:

(1) The offense of sodomy does not apply to any act committed in private between … any two persons, each of whom is 21 years or more of age, both of whom consent [consent_legal] to the commission of the act.

(2) For purposes of subsection (1) … a person shall be deemed not to consent [consent_legal] to the commission of the act if the consent [consent_factual] is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentation as to the nature and quality of the act.⁶

The word ‘consent’ appears in the Canadian statute three times. However, the first two usages of consent, i.e., ‘consent_legal’, differ significantly from the third, ‘consent_factual’; and I have marked them accordingly. Consent_legal is legal in nature, because it is consent by adults that suffices under Canadian law to relieve their sexual partners of criminal responsibility for sodomy. Yet consent_legal differs significantly from consent_factual, because consent_legal is defined in terms of consent_factual: consent_legal is defined as consisting of some but not all instances of consent_factual, namely, only such instances of consent_factual that are not the product of ‘force’, ‘fear’, or ‘fraud’ within the meaning of Canadian law. Consent_factual thus refers to a kind of consent that is necessary to legal consent but that, because it may include events that do not amount to legal consent (i.e., instances of consent_factual induced by force, fear or fraud), is not sufficient to constitute legal consent. Therefore, in contrast to consent_legal, the usage of ‘consent’ in consent_factual is non-normative because it is consent that does not itself suffice to constitute a complete or partial defense to criminal responsibility under the Canadian statute.

Given their differences, it is important to be able to distinguish non-normative conceptions of consent from legal conceptions of consent. The term I shall use for non-normative conceptions of consent is ‘factual’. With respect to conduct x with which an actor, A, is criminally charged, a subject, S, ‘factually consents’ to x when her acquiescence to x—whether in mind or expression—does not necessarily constitute a complete or partial criminal defense to A for subjecting S to x. Unfortunately, because ‘factual’ is a term that is used differently by different people, some of whom claim more for it than I do here, I should emphasize what I do not mean. By ‘factual consent’ I do not mean consent that is uninfluenced by culture, context, market pressures, gender relations, socialization, or social institutions. Nor do I mean consent that is emptied of all value judgments, or consent that serves no human ends, or consent that possesses no legal significance. On the contrary, ‘factual consent’, as I use it, is invariably a product of social context, can be highly value-laden, and is explicitly a subject of criminal law. By S’s ‘factual consent’ to A’s conduct x, I refer to mental states of acquiescence by S in x, or objective expressions by S of such mental states, that—however much they may be influenced by social context, and however value-laden they may be—are not themselves complete or partial defenses to A for subjecting S to x.

To illustrate what I do, and do not, mean by factual consent, consider the relationship in Regina v. Carmen M.⁷ between an anonymous 13-year-old Ontario girl, whom I shall call ‘Mary’, and a 23-year-old young man, Carmen M. Mary was eleven years-old in 1986 and living with her aunt when Carmen M., then 21-years-old, began dating Mary’s aunt. Within two years, when Mary was 13, she became infatuated with Carmen M. and for the next five years engaged in what the Ontario court called ‘consensual acts of vaginal intercourse, anal intercourse, and oral intercourse’. Mary regarded Carmen M. as her boyfriend, even after he became engaged to marry her aunt. It was not until Mary was 18 and Carmen M. actually married her aunt that (in the court’s words) Mary ‘realized’ that Carmen’s ‘statements of love were lies’. Mary complained to the authorities; and Carmen was arrested and convicted of having sexual intercourse with Mary during the several months five years earlier when Mary was under the statutory age of 14.

All Anglo-American jurisdictions like Canada make it an offense for an adult to have sexual intercourse with girls under certain ages, but they conceptualize the prohibition in different ways. Some jurisdictions follow the Model Penal Code and, without ever mentioning consent, simply state that it is an offense for an adult to have sexual intercourse with an underage girl.⁸ Other jurisdictions, like New York, invoke the language of consent by first declaring it to be sexual assault for a person to have sexual intercourse with a female without her consent and, then, defining sexual intercourse with an underage female to be without her consent:

N.Y. Penal Code Section 130.20: A person is guilty of sexual misconduct when … being a male, he engages in sexual intercourse with a female without her consent [consent_legal]….⁹

N.Y. Penal Code Section 130.05: Lack of consent [consent_legal] results from … (b) Incapacity to consent [consent_legal]. A person is deemed incapable of consent [consent_legal] when he is … less than 17-years-old.¹⁰

In contrast, Canada achieves the same prohibition in a different way. Canada begins as New York does by defining it to be sexual assault for a person to have sexual intercourse with another person without the latter’s consent. Yet rather than declaring sexual intercourse with underage persons to be without their consent, Canada takes the converse position that all sexual intercourse that is ‘voluntarily agreed’ to—including by underage persons—is with consent for purposes of sexual assault. Then, having declared voluntarily-agreed-to sexual intercourse by underage persons to be with their consent, Canada goes on to declare that it is ‘no defense’ to sexual assault on an underage person that the latter ‘consented’ to the sexual intercourse:

Assault. A person commits an assault when, without the consent [consent_legal] of another person, he applies force intentionally to that other person, directly or indirectly. This section applies to all forms of assault, including sexual assault [section 271], sexual assault with a weapon [section 272], … and aggravated sexual assault [section 273].

Meaning of ‘consent’. ‘Consent’ [consent_legal] means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent no defense. Where an accused is charged with an offence under … section 271, 272, or 273 in respect of a complainant under the age of 14 years, it is not a defense that the complainant consented [consent_factual] to the activity that forms the subject-matter of the charge.¹¹

Thus, in contrast to the Model Penal Code which makes it an offense to have sexual intercourse with underage girls without mentioning consent, New York and Canada both do so by invoking the language of ‘consent;’ and they invoke consent in contrary senses. New York uses consent legally, that is, it uses consent to refer to acquiescence that when present constitutes a complete defense to the crime of sexual assault and, hence, it declares that sexual intercourse with underage girls is ‘without’ their consent. In contrast, Canada uses consent in two distinct ways. In defining the offense of sexual assault with respect to all persons other than those who are underage, Canada uses consent in a legal sense to refer to acquiescence by such persons that occurs under conditions of competence, knowledge, freedom, and motivation that suffice to protect the interests that Canada deems them to possess with respect to the offense of sexual assault and that, therefore, exonerate their partners of sexual assault. Yet in stating it to be an offense to have sexual assault with an underage person with her consent, Canada uses ‘consent’ factually because Canada uses it to refer to a mental state or expression of acquiescence on an underage victim’s part that does not occur under conditions of competence, knowledge, freedom and motivation sufficient to fulfil her legal interests regarding sexual intercourse—and, hence, does not possess the legal ‘magic’ to exculpate her sexual partner of criminal assault. For, if it possessed such magic, the Canadian court would acquit defendants like Carmen M. who have sexual intercourse with underage girls.

Except for their ages, the mental state or expression that constitutes factual consent to sexual intercourse on the part of, say, a 13-year-old girl may be identical to the mental state and/or expression that constitutes legal consent on the part of, say, an 18-year-old girl, namely, ‘voluntary agreement to engage in the sexual activity in question’. Yet, because two such girls differ in age, they differ precisely in their legal competence under Canadian law to assess their interests regarding sexual intercourse and, hence, in their legal competence to exonerate their sexual partners of sexual assault. Canada would say that both girls ‘consented’. But because Canada regards only the 18-year-old girl’s consent as sufficient in itself to protect her interests regarding sexual intercourse, only the 18-year-old girl’s ‘consent’ is legal consent. And because only the 18-year-old girl’s consent is legal, the 13-year-old girl’s ‘consent’ is factual consent.

With respect to 13-year-old Mary and her adult lover, the Canadian court described Mary’s intercourse with Carmen M. as ‘consensual’, because it adjudged Mary to have ‘voluntarily agreed’ to have sexual intercourse with Carmen M. In our terminology, Mary’s consent was factual because it consisted of a mental state and/or expression by Mary of acquiescence to sexual intercourse that, though genuine, fell short of constituting a complete or partial defense to Carmen M’s crime of sexual assault. Calling it ‘factual consent’, however, does nothing to deny either the complex social forces that influenced Mary or the value judgments inherent in its constituting consent under Canadian law. Mary’s acquiescence was surely a product in part of her socialization, the social meaning of her age difference with Carmen M., her perception of gender roles, her socially-constructed relationship to her aunt, and her understanding of ‘love’. Her acquiescence was also heavily value-laden, considering that, had Mary been a few months older when Carmen M. seduced her, her age would have sufficed under Canadian law to exonerate him of criminal assault. Yet her acquiescence nevertheless constituted factual consent because it consisted of subjective and/or expressive acquiescence on her part to sexual intercourse with Carmen M. that, given her age, did not suffice to protect the interests that Canada deemed her to possess with respect to sexual intercourse and hence did not negate or mitigate Carmen M.’s criminal responsibility for seducing her.

We shall see in Chapter 3 that the conditions of competence, knowledge, freedom and motivation that jurisdictions deem necessary to transmute S’s factual consent into legal consent will differ depending upon the offense at issue. Consequently, a given instance of acquiescence to x may occur under conditions that suffice to render it a defense for purposes of one offense and, yet, fail to render it a defense for purposes of another statute. To avoid confusion, therefore, I shall treat the statutory offense with which an actor A is charged as the measure of whether S’s acquiescence is a defense (...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• INTRODUCTION
• PART I FACTUAL CONSENT
• PART II LEGAL CONSENT
• PART III THE CONSEQUENCES OF CONCEPTUAL COMPLEXITY
• Conclusion
• Bibliography
• Index of Cases
• Index