A kind reader recently brought my attention to an article regarding consent published in the Ohio State Journal of Criminal Law by Rutgers Law Professor Vera Bergelson. That article is entitled The Meaning of Consent, 12 Ohio St. J. Crim. L. 171 (2014).

Professor Bergelson first posits that there are two methodologies for understanding the nature of consent.

The first method, the attitudinal method, argues that “consent means one’s subjective state of mind, ‘attitudinal’ consent.” The Meaning of Consent at 172. As an example of this method, which focuses on the internal thoughts of the victim, the article points to a New York case, People v. Bink, 84 A.D.2d 607 (N.Y. App. Div. 1981). There, a prisoner reported that Bink was planning to sexually assault him the next morning. The putative victim declined the State’s offer of protection, and instead asked that guards watch and catch Bink “in the act.” The encounter occurred, observing guards did not intervene to stop the incident, and Bink was convicted of a sexual offense. His conviction was reversed, however, because, though the victim’s external conduct may not have disclosed it, the victim actually lacked the required attitudinal non-consent because he had “wanted to be assaulted.” K. Ferzan, Clarifying Consent: Peter Westen’s ‘The Logic of Consent’, 25 Law & Phil. 193, 214 (2006).

The second method, the performative method, asserts that consent requires “explicit permission by words or conduct to another’s act.” The Meaning of Consent at 174. As an example of this method, focusing on the perception of the accused as to the victim’s external behavior, Professor Bergelson points to a California case, People v. Burnham, 176 Cal. App. 3d 1134 (Ct. App. 1986). There, in private, a husband beat his wife to force her into having sex with strangers. Later, to those strangers, she feigned consent and appeared a willing participant in sexual conduct. The husband was convicted of spousal rape and the strangers were not charged.

Having explained the two methods of understanding consent, Professor Bergelson reasons:

Both models capture some of our important moral inuitions and yet both are flawed. Their flaw, in my view, lies in their absolutist approach to the role of consent in drastically different circumstances. The supporters of both the attitudinal and the performative theories aspire to explain very different moral realities with one overarching model. In contrast, I suggest that we should not be selecting one theory over the other to cover all cases, but instead we should establish a rule that would assign the attitudinal model to one group of cases and the expressive model to the other.

The Meaning of Consent at 176.

Professor Bergelson would apply the attitudinal method of understanding consent to conduct that is otherwise, prima facie, morally neutral. These are cases where non-consent is typically an element of the offense which the state must prove. For example, walking into someone’s home is a morally neutral act – it is only trespass if the government can prove non-consent by the lawful possessor.

Professor Bergelson would apply the performative method of understanding consent to conduct that is, prima facie, morally wrong. These are cases where the defense generally bears the burden of establishing consent as a defense. For example, in cases involving the intentional infliction of physical harm, if the accused is to be excused – perhaps on a self defense theory – then the accused is obliged to provide the explanation.

Professor Bergelson’s paradigm for adjudicating the issue of consent, I think, boils down to this:

Use the attitudinal method to focus on the victim’s state of mind in cases where the government bears the burden to prove that otherwise innocuous conduct is nefarious.

Use the performative method to focus on the accused’s state of mind in cases where the accused bears the burden to prove that otherwise nefarious conduct is innocuous.

[This dualistic understanding of consent] has the advantage of recognizing that consent should be treated differently depending on whether the act of the perpetrator is prima facie wrong or not.

The Meaning of Consent at 179.

4 Responses to “Scholarship Saturday: A dualistic understanding of consent”

  1. Sir Visdis Crediting says:

    I presume whatever is prima facie wrong happens to be whatever Professor Bergelson happens to think is wrong and there is to be no disagreement whatsoever.

  2. Concerned Defender says:

    Call me a cynic.  Here’s the real world legally applied duality:
    1.  Men are required to get witnessed consent from multiple sober witnesses and only have any intimate contact with a woman provided express, written, notarized and videotaped verbal consent preserved for 5 years after the Statute of Limitations expires.  Anything less is de facto sex assault.  Level of man’s intoxication is irrelevant of course, because you can rape if you’re drunk if you’re a man, but you cannot be raped or held blameless for your rapey actions if you’re drunk (unless you’re a woman, and then you’re exonerated).
    2.  Women control all consent for both parties.  They can invoke or withdraw consent for any action, at any point in time before, during, or decades after.  Consent can be withdrawn years later no matter how absurd the fact pattern, and regardless of any evidence of ongoing obvious consensual dating or marital relations even for months or years after the alleged assault.  By virtue of their chromosomes, they can never commit assault no matter how sober or drunk.  They can only be assaulted, and any evidence they smelled alcohol in the week preceding or thereafter defacto creates and inability to consent.  No matter what the woman does after the alleged assault, even written, recorded, or witnessed statements that she was NOT assaulted are disregarded as evidence of victim hood.  Oh, and all of this trumps a sober, written, witnesses, recorded, sworn statement made by the woman that she was not assaulted and she provided consent, if she arbitrarily elects to withdraw consent months or years later.  And finally, no evidence of obvious motives to lie, fabricate, evidence of lies, evidence of impeachment, motives for child custody, financial gain, reputation, etc. will be considered against the woman.  Also, no matter what the woman’s own misconduct (lying, breaking rules, underaged drinking, etc.) she should not be punished but instead rewarded with victim hood.
    Pretty much sums it up.  Military Justice in the modern era. 
    In 2016, there were 6000+ reports of “sex assault” in the military.  
    I venture high % were false and based on aggressive changes in critical definitions, overzealous prosecutions, politics, unlawful command influence, and incentives for reporting.  As a result it’s a figured that doubled from 3000 in 2012.  Hard to put an exact number or percent on how many of these are false/fabricated, but I’ve venture the false reports are significantly high given the cases I’ve seen and researched.   Most involve MUTUAL bad decisions (which the man was accused of a crime and the woman labeled the victim), or cases of regret reported as assault.  Very rare to see actual non-consensual assaults.  
    By contrast, at the height of a two front war OIF/OEF, there were about 1500 deaths in any given year and often about 1/2 that.  
    Lesson: If you’re a man in the military today, you have far greater chance of a false allegation of sex assault than you are likely to be killed in combat.  Roughly 6 times more likely to be falsely accused of a sex crime and lose your career and go to prison, than you are of dying in combat. 

  3. Kettle Black says:

    That might summarize society in the modern era, not military justice alone…

  4. Bionic Barry Dylan says:

    Back when I was still serving as a Defense Counsel, if Commands would let me speak to their units w/o the senior leadership present, I always emphasized that the males were, statistically speaking, better off not getting involved with a female member of the military.  I know that caused a few eye rolls in the audiences, but I believed it then and I still do now.
    I’ve heard through friends in various communities (Defense, SVC, and SHARP) that since expedited transfers became a thing, the number of reported sex assaults in undesirable duty locations like Minot AFB have gone through the roof.  Anyone know if those numbers are publicly reported?  If not, I’d be curious to see what a FOIA request might reveal.