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.