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

• Author: Hurd, Heidi M.
• Position: Brief Article - Book Review

THE LOGIC OF CONSENT: THE DIVERSITY AND DECEPTIVENESS OF CONSENT AS A DEFENSE TO CRIMINAL CONDUCT. By Peter Westen. Burlington: Ashgate Publishing Co. 2004. Pp. vii, 383. $104.95.

Peter Westen's The Logic of Consent (1) is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. (2) While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly predicate legal rights and responsibilities on findings of consent or its absence, Professor Westen convincingly proves that (1) we do not share, either individually or institutionally, a common concept of consent; (2) a number of the competing conceptions of consent that are regularly employed (sometimes simultaneously by the same person or court) are either, in themselves, conceptually incoherent, or are frequently combined in ways that produce conceptual confusion; and (3) our failure to sort out our conceptual confusions results in gross injustices and inequities as we punish the innocent and acquit the guilty.

Frankly speaking, when one agrees to review a book one privately hopes for two things: that the book will not offer so many points of disagreement as to make one's review feel like a remedial exercise (giving rise to the "so many confusions, so little time" response); and that it will offer enough points of disagreement to provide one with grounds for serious debate with the author. If I have one disappointment with Professor Westen's marvelous book, it is that I can find too little with which to disagree! And this is a book of sufficient philosophical daring to deserve more feisty debate than I find myself able to muster.

Professor Westen's enterprise is to elucidate the distinctly separate empirical and normative components of legally-effective consent and to demonstrate how confusions of these components have resulted in morally unjustified legal judgments. Consider Professor Westen's opening example of twenty-five-year-old Elizabeth Wilson, who awoke in the middle of a September night in 1992 to find that a total stranger, Joel Valdez, had broken into her Texas apartment and was advancing on her with a knife. She leapt from her bed and fled to the bathroom, but Valdez broke down the door and demanded that she pull down his pants. Fearing both that she would be stabbed if she resisted, and that she would contract AIDS if he forced her into the unprotected intercourse that he made clear was his purpose, Wilson agreed to submit to sexual intercourse if Valdez put on a condom. He did so, and then subjected her to intercourse for an hour before she was able to escape from his clutches and flee naked to the aid of a neighbor. Without explanation, the grand jury refused to indict Valdez for rape, though an unnamed participant later stated that several members of the grand jury believed that the apparent bargain Wilson struck with Valdez constituted consent on her part. (3)

As Professor Westen suggests, such a finding is only plausibly explained if one assumes that the grand jury confused factual consent with legal consent, mistaking true acquiescence by Wilson (that is, an all-things-considered choice to submit to intercourse with Valdez), with that amalgam of conditions that are individually necessary and only jointly sufficient for a genuine justification on the part of Valdez (that is, subjective acquiescence by Wilson under circumstances in which her rational capacities were fully intact, she was armed with adequate information, and she was sufficiently free to have meaningfully chosen otherwise) (pp. 2, 9-10). Only a finding of legal consent could properly have absolved Valdez of blame and rightly insulated him from legal consequences, and inasmuch as it seems clear that Wilson's choice--albeit an autonomous and fully informed one--was hardly made under circumstances of adequate freedom, the grand jury could not have fairly said that her factual consent satisfied the requirements of legal consent.

The Wilson case nicely motivates one of the principal themes that runs through Professor Westen's sophisticated analysis of consent--the claim that juries and judges often confuse a finding of a complainant's "factual consent" (which, at its core, constitutes a state of subjective acquiescence to what would be a rights violation in the absence of such acquiescence, and which is generally a necessary, though not sufficient, means of according another a justification for action) with her "legal consent" (which varies in its requirements from one jurisdiction to the next, but which requires sufficient knowledge, rational capacity, and freedom as to make the defendant's behavior toward the complainant justified, and hence, not a rights violation). Part I of his book is dedicated to an analysis of what he terms "factual consent." Part II is then devoted to analyzing the further conditions that must be present before factual consent will provide another with a legal justification for a prima facie rights violation. Part III concludes the book by revisiting decisions and doctrines previously discussed in the text so as to summarize ways in which courts have perpetrated and perpetuated doctrinal confusions by conflating concepts of factual consent with concepts of legal consent. Because Part III largely summarizes the principal themes that animate Parts I and II, I shall focus my energies here on the first two parts of his book.

In Chapter One, Professor Westen articulates the conditions of what he calls "attitudinal consent," which as he says is "central to all conceptions of consent," both factual and legal (p. 51). When the law concerns itself with an offense to which consent is a defense, it recognizes that subjective acquiescence has the capacity (under the right conditions) to eliminate the wrongdoing addressed by the offense. In words from my past, rather than in Professor Westen's words, subjective acquiescence has the potential to be "morally magical"--it can transform a wrong into a right when it constitutes an autonomous exercise of will that conveys a permission on another that he would not otherwise have? Inasmuch as an autonomous willing or choice is a subjective mental state, so consent must consist of a subjective mental state if its normative power is to derive from its instantiation of autonomy.

As Professor Westen maintains, mental states of choosing can take several alternative forms, any one of which will suffice to constitute factual attitudinal consent (p. 53).

[I]t is enough that a person possess an unconditional desire for x. It is also enough that a person possess a decided preference for x under the circumstances--that is, a desire for x, all things considered. It can also be enough that a person be so indifferent to x as to be willing to leave it to others as to whether x occurs. (p. 53) As Professor Westen spends time making clear, one cannot satisfy these requirements without an appreciation of the nature and quality of x and without the capacity to assess one's desires and the ability of x to satisfy them. Thus, a woman who acquiesces to penetration believing herself to be having a gynecological examination does not consent to sexual intercourse. (5)

But Professor Westen powerfully maintains in his opening chapter that "a person can subjectively choose x as that which she desires for herself under the circumstances even if she has no control over whether x occurs, and even if she would not choose x but for the circumstances in which she finds herself" (p. 53). And crucially, when a person does subjectively choose x as that which she desires for herself under the circumstances, all things considered, she factually consents to it (even if she does not legally consent to it). Thus, when Wilson submitted to sexual intercourse with Valdez as a means of preventing him from stabbing her, Professor Westen maintains that she factually consented to intercourse, because she subjectively chose it over what she believed to be the alternatives, and the fact that she could not have prevented him from having intercourse with her does not make her choice to engage in it something less than factual attitudinal consent.

Professor Westen takes pains to remind his readers throughout his chapters on factual consent that a finding of factual consent does not exhaust the question of whether there was legal consent, for while factual attitudinal consent is a core requirement for legal consent, it is not sufficient for legal consent, and hence, we need not fear that in saying that Wilson factually consented to intercourse we are simultaneously saying that she was not raped. Still, I want to take issue with the defining claim that Professor Westen introduces in Chapter One that a woman who knowingly and in full possession of her rational capacities acquiesces to intercourse at gunpoint gives anything that should be thought of as "consent." I want to suggest, instead, that coerced consent is no consent at all.

Professor Westen defends the conceptual integrity of the notion of factual consent by arguing that it alone captures the difference between the woman who fights to the bitter end to defend against forced penetration and the woman who acquiesces to it because she holds her bodily integrity less dear than something else--e.g., her life, her property, the lives of loved ones, etc. And while there may be no moral difference between one who achieves intercourse through force and one who achieves it through threats, Professor Westen insists that we have reason to want to preserve the conceptual distinction between...