Consent

This series of lectures is going to be concerned with the

role of consent in the law.

So consent is a central topic in a range of different areas in law.

It's important in determining when people can be given

medical treatment. It's important in the context of sex

where sexual consent is really important.

And it's important in the context of the, the consent to harm,

where sometimes people can consent to certain kinds of

harm but not other kinds of harm.

So I need to be looking at consent in general across

different kinds of contexts.

We're going to be looking at some of the different ways in

which the validity of consent could be undermined as well. So for example,

consent might be invalid as a person lacks certain kinds of capacities

or because they suffer a certain kind of coercion

or because they've been deceived about what they were

consenting two.

So we're going to be looking at all of these different areas

across different areas of the law by thinking about the

general concept of consent and how it might apply.

This lecture is going to be concerned with the nature of

consent itself. How should we understand the idea of consent?

In itself, and how is that idea framed in the law?

So the criminal law doesn't contain too many different

definitions of consent,

but the two thousand and three sexual offences Act did include

a definition of consent.

It said that someone consents to something if they agree to

that thing by choice and they have the freedom and capacity

to make that choice. So it has these different elements,

a person must have agreed to something by choice and they

must have had the freedom and capacity to make that choice.

But in a way,

that definition of consent also doesn't tell us too much,

even though it was an improvement on the earlier law,

which didn't have a definition of content in it at all.

The reason why it doesn't tell us too much is because it

includes the words agrees to as part of the definition of consent.

But it looks like consenting to something and agreeing to

something are really very similar ideas.

And it's often pretty unhelpful to define a thing by using a

term, which is almost identical to that term.

So if we think consenting to something and agreeing to

something are really similar to each other,

The definition in that way is also a little bit unhelpful.

So how should we understand consent?

What kind of thing is consent?

Well,

one way of understanding consent is by thinking of it as

some kind of mental state like a desire.

Maybe consenting to something is like wanting something.

So for example,

if I consent to having a certain kind of operation,

say I'm gonna have an operation on my knee,

which will make my knee function better, I consent to that,

and we might think that that's just like wanting to have the operation.

It's consenting like desiring then.

It doesn't really look like consenting is like desiring,

though. Here's one way to see that.

Before I consent to the operation,

I already desire the operation.

And I consent to the operation because I desire it. So that

all seems to make sense.

But if consenting to something is done because you desire it,

we can't think of consent as being like desire.

Desire is what gives me a reason to consent or causes me to consent.

So it can't then be So it's a bit unhelpful to say that

consent is like a desire, I think.

Furthermore,

we might think that consenting to something can be done even

when I don't desire it. Here's an example.

Suppose that my son wants to use the car,

He wants to go out for the night with his friends,

and I want him to stay at home with the family.

But I don't want him to stay at home with the family because

he's not allowed to use the car, and so I consent to him

using the car.

And I say Tim, look,

I agree to you to the that you're allowed to use the car,

but I really don't want you to use this.

I'd much rather you stayed at home with family.

That seems perfectly coherent for me to both consent to his

using the car and yet want him not to use the car and express

to him that I don't want him use the car.

So that looks like a case where I can consent to something,

but although I've consented to it,

I don't want the thing to happen.

So consenting to his using the car and desiring him using the

car seem like they're quite different things.

What's the difference then? Well,

here's one obvious way to think about it.

By consenting to his using the car, I permit him to use the

car, or I allow him to use the car.

What might that involve?

Here's a way of understanding it.

Given that it's my car, my son owes me a duty not to use

the car. Normally,

he can't use the car just because it's mine and not his.

In order for him to be allowed to use the car, he has to get my permission.

And he gets my permission by me permitting him to use the car

and permitting him to use the car is just consenting to it.

Consenting to it is like releasing him from a duty not

to use the car.

So by consenting I communicate to him, that he's allowed to

use it and by communicating to him that he's allowed to use

it, I therefore permit him to use the car.

He's being permitted to use the car, though,

doesn't imply that I warn him to use the car.

I might permit him to use it by releasing him from the duty not

to use it. And yet still want him not to use the car.

If he does use it, he won't act wrongly towards me

because I've released him from the duty.

But he does do something that's in conflict with what I want him to do.

I can't complain in the sense that I can't say you've wronged

me by using the car, because I permitted him to do it.

I could though still say, I wish you hadn't done that,

it's still against what I wanted you to do.

So that's the kind of complex relationship then we might have

between wanting and consenting.

Wanting might give us a reason consent, but it need not do so.

Sometimes we want just to release people from a duty even

when we don't want them to perform the action.

Consenting, I think, is just like permitting.

And that seems like the right way to think about consent

across all of the different realms that I talked about in advance.

So consenting to sex, for example,

involves permitting someone to have sex with you.

Contenting to use your property involves permitting someone to

use your property.

Contenting to an operation involves permitting that operation.

So that the doctor can now perform it without wronging

you, where otherwise if they'd done it without consent,

they would have wronged you.

So we need this kind of structure where we think people

owe each other duties, and then by consenting,

we can release them from those duties.

That's what consent involves.

It naturally follows from this that consenting is some kind of action.

It's not just like a mental state like desiring.

It's not something you can just do in your head.

It's something that involves some kind of action.

Consenting involves like a communicative action than you

might think between people.

What kind of communicative action does it involve though?

One element that we might focus on is whether the communicative

action needs someone

to receive it. So when you communicate with people, often

you, at least if you successfully communicate with people,

there's some kind of uptake on the part of the person who you

communicate with.

In my example of the car,

I communicate with my son that he's permitted to use the car.

He hears my And as a result of that, he recognizes that he's

now permitted to use it.

So communication normally involves uptake but does it

need to involve uptake for consent to be successful?

I think the answer to that question is that it doesn't.

I think that quite often we can consent

without successfully

communicating with anyone, even when they don't under stand.

Here's an example. Suppose I go to the doctors, and,

I'm told that I need one of two different kinds of operations.

I can choose between those two operations.

One of them is going to be less effective,

but it's also going to be less invasive.

The other one's going to be more effective,

but it's going to be more invasive.

I'm given a form and I'm supposed to write on the form

which operation I want to have That will then go to the

surgeon who'll then perform the operation.

Unfortunately, and this is in fact true,

my handwriting is terrible.

So I write on the form that I want to have the second

operation, the one that's more invasive, but more effective,

but my handwriting's really bad.

And so it looks like I've consented to the first operation.

Which operation have I consented to?

To me,

it looks like I've consented to the second operation even

though it looks to the surgeon as though I've communicated

that I've consented to the first.

Although there's miscommunication in this case,

the doctor believes that I've consented to the first

operation, in fact, I've communicated to the second.

I've consented to the second operation,

but if we thought that uptake was needed,

so someone has to hear your communication for there to be concerned,

It looks like I must have communicated either to no

operation at all,

or I must have communicated I must have communicated that

I've consented to the first top So that's the one I've

consented to.

That doesn't seem to me plausible though.

It seems clear to me that I've communicated

unsuccessfully

that I've in fact consented to the second operation.

So I don't think that consent requires uptake.

So I think the right theory of consent then is something like this.

People owe each other duties

They can sometimes release each other from duties by consenting.

What's needed for consent is an attempt to communicate that the

other person is released from a duty,

but that attempt need not be successful.

In the doctor case that I outlined,

I tried to communicate the permission

to perform the second operation,

and that's the one that I in fact consented to.

And that's so even though the doctor didn't realize,

and we know that from the fact that when the doctor's trying

to read the form,

he's trying to find out which operation I consented to.

But that only makes sense if I have in fact communicated,

if I have in fact consented to an operation,

and that operation must have been the second one.

So consent I think requires an attempt to communicate,

an attempt to communicate that a person's release from a duty

that communication need not be successful.