04 April 2019


Revisiting 'The Moral Magic of Consent' by Heidi M Hurd in (1996) 2 Legal Theory 121-146.

Hurd comments
 We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to oth- ers' exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent. When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of others. 
In this article, I explore one of these remarkable powers of personhood- the power of consent. In Section I, I will trace the source of this power to our commitment to autonomy. In Section II.A, I will argue that, insofar as autonomy resides in the ability to will the alteration of rights and duties, consent must essentially constitute an act of will--a subjective mental state akin to other morally and legally significant mens Tea. In Section II.B, I will narrow down the nature of this mens rea to specific intent; that is, to a purposive mental state possessed of propositional content. I will argue that the propositional content of the mens rea of consent is given by a fine- grained version of what I call "the first identity thesis," which holds that the mens rea of consent is essentially identical to the mens rea required for principal liability. To give consent, a victim or plaintiff must intend what the defendant must be culpable with regard to (namely, the material elements of the actus reus of the offense he would commit in the absence of consent).' In Section II.C, I will take tip the question of whether there is an actus reus of consent. I will argue that a person does all she needs to do in order to alter the moral rights or obligations of another simply by entertaining the mens rea of consent. However, I do not rule out the possibility that there may be prudential reasons for the law to require observable behavior that manifests that mens rea before according a defendant a legal defense of consent. 
Section III will address the background conditions under which prima facie consent possesses moral force. In this section, I argue that, just as a defendant who satisfies the mens rea and aclus reus conditions that define a prima facie offense may nevertheless have an excuse that makes him ineli- gible for praise or blame, so a plaintiff or victim who satisfies the mens rea and actus reus conditions of consent (if an actus reus condition is required) may nevertheless fail to give consent if she acts under circumstances that render her insufficiently autonomous to affect others' rights and obliga- tions. I argue, in this section, for what I call "the second identity thesis," which holds that the conditions under which prima facie consent is de- feated are identical to the conditions under which defendants are properly excused from moral blame, and, to the extent that the law mirrors morality, from legal liability. While the complexity of the moral and legal literature on excusing conditions renders my argument in this part necessarily cur- sory, I attempt to demonstrate the plausibility of the claim that prima facie consent should be deemed void only when a victim or plaintiff lacks the capacity or opportunity for meaningful choice concerning the defendant's actions. In Section III.A, I argue that a plaintiff or victim lacks the capacity for meaningful choice under just those conditions in which a defendant lacks such capacity-namely, under conditions of youth, insanity, (involun- tary) intoxication, and extreme provocation. In Section III.B, I further argue that a plaintiff or victim lacks the opportunity for meaningful choice under just those conditions in which a defendant lacks such an opportu- nity-that is, under conditions of non-natural duress. 
If the two identity theses that I argue for in this article are right, then the conditions of consent parallel the conditions of liability. We should hold victims and plaintiffs responsible for their choices under just the same conditions that we hold defendants responsible for theirs. Since it is persist- ently tempting to think that persons must exercise a more robust autonomy to give up their rights than to be held liable for invading the rights of others, the application of the two identity theses may strike many as counterintui- tive. While our commitment to equality would seemingly require us to consider plaintiffs responsible under the same conditions which we con- sider defendants responsible, the identity theses are at odds with a popular conservatism that supports unrestrictive avenues for plaintiffs to bring suit while simultaneously demanding that we lock up defendants and throw away the keys. If I am right, the double standard embedded in this popular conservatism should be resisted.
 Hurd continues
 There appear to be two distinct ways in which a person's consent can alter the morality of another person's actions. First, consent can function to transform the morality of another's conduct-to make an action right when it would otherwise be wrong. For example, consent turns a trespass into a dinner party; a battery into a handshake; a theft into a gift; an invasion of privacy into an intimate moment; a commercial appropriation of name and likeness into a biography. 
Second, consent can generate a permission that allows another to do a wrong act. When consent operates in this second manner, it does not morally transform a wrong act into a right act, but it grants another a right to do wrong. It conveys, in these circumstances, a "stained permis- sion," for the act done remains, in some sense, wrong, and hence, morally stained, but the consent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act. Consider, for example, the case of a woman who prefers to avoid motherhood by having successive abortions, rather than by using birth control. Suppose that her doctor has repeatedly tried to induce her to abandon this strategy, but, in the face of her refusal to do so, he has continued to perform abortions whenever she finds herself pregnant. Even the most committed pro-choice advocates can condemn the woman's choice to substitute abor- tion for birth control, for they can judge her wrong to prefer her own freedom from trivial inconveniences to the genuine interests that can be attributed to fetuses. Nevertheless, if such pro-choice advocates are right in thinking that the liberty interests possessed by such a woman outweigh the interests of the fetuses that she seeks to abort, then they must admit that her consent to the abortions makes her abortions morally permissible. That is, they must think that the woman has a right to be wrong, and hence, that when she gives her doctor consent to perform an abortion, the doctor does what is permissible. Since a permission constitutes a right (or, put more accurately, since a permission negates any rights on the part of others that one not do the permitted act), and since doing what one has a moral right to do cannot be thought morally wrong, all things considered, the doctor cannot be thought to have acted unjustifiably in performing the abortions. Whether it functions as a "moral transformative" or as a "stained per- mission," consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others' actions. By consenting to another's touch, one puts that person at liberty to do what it was antecedently obligatory of her not to do. By consenting to another's intrusion onto one's land, one dispels a duty that antecedently obligated that person to keep off private property. By con- senting to another's use of one's name and likeness, one gives that person a right that previously did not exist, thus vitiating a duty that previously did exist. To have the ability to create and dispel rights and duties is what it means to be an autonomous moral agent. To respect persons as autonomous is to recognize them as the givers and takers of rights and duties. It is to conceive of them as very powerful moral magicians. The capacity for autonomy is the capacity for self-legislation. To recognize this capacity is one way to give meaning to the historic philosophical claim that persons are free inasmuch as they will their own moral laws. Persons will their own moral laws-that is, they alter the moral fabric, rearrange the moral furniture, redraw the moral landscape-when their consent to others' actions is taken to alter the morality of those actions, or when their promises regarding their own actions are taken to bind them in ways that alter the morality of their own future conduct.