Kenneth W. Simons

Boston University School of Law Working Paper 06-10


In this detailed recapitulation and review of Peter Westen's new book, The Logic of Consent, I commend Westen for a rigorous and illuminating analysis of the concept of consent in criminal law. Westen helpfully distinguishes factual from legal consent, factual attitudinal from factual expressive consent, and imputed consent from prescriptive consent, and he demonstrates the relevance of these distinctions to sexual assault legislation and judicial decisions.

At the same time, the review offers a number of important suggestions and criticisms:

- Westen's framework cannot readily explain two significant contemporary approaches to nonconsent - the "'No' means 'no'" and the "Only 'yes' means 'yes'" approaches - because it cannot explain why a jurisdiction might choose to treat the conduct and mental state of S in these situations as not amounting to legal consent.

- Westen's definitions of force and resistance, while elegant, are procrustean: he presupposes that "force" is just a term of art for all unlawful pressures that induce S's acquiescence, and that "resistance" is essentially a term of art for any option available to S by which she could avoid both x and A's threat. These very broad definitions are disconnected from the history of sexual assault and from the normative controversies that these terms continue to provoke.

- The provocative argument that a jurisdiction's wrongful force requirement entails, as a logical corollary, a duty to resist is fallacious. A jurisdiction might have good reason to prohibit wrongful threats only of a certain type or degree of harm, but also good reason not to impose an affirmative duty on a victim of an immediate violent threat to resist even if she could thereby avoid suffering the same type or degree of harm. Accordingly, the choice set over which factual consent ranges should not include options of affirmative action that the victim S could choose. Otherwise, we will be presupposing a controversially stringent duty to resist.

- The terminology of factual "consent" creates significant confusion, which Westen understates. Moreover, the subcategory of factual consent in which S is "indifferent" to whether x occurs is somewhat problematic, and involves only a weak sense of choice.

- The category of factual expressive consent (FEC) should be divided into two separate categories, factual subjectively expressed consent and factual observed consent.

- The FEC category is too crude, because it does not permit a jurisdiction to choose a mens rea other than negligence with respect to S's factual attitudinal consent. More generally, although a jurisdiction might indeed wish to characterize FEC as pertaining to mens rea, it also might have reason to characterize FEC (or some variant of FEC) as constitutive of the actus reus.

- The claim that retrospective consent essentially dissolves the harm of sexual assault is unpersuasive. For it is an open and normatively contestable question whether we should always give priority to what S today views as having been in her best interests over what she viewed as in her interests in the past.

- The so-called "fictions" of constructive, informed, and hypothetical consent often do not deserve to be so characterized. For although these categories do not involve persons who consented to x in Westen's prescriptive sense, they frequently involve scenarios in which S does consent in a significant sense, either to a social activity that includes x, or to the risk of x; or they involve a subject who would have consented but did not have the capacity to do so. Thus, these forms of consent at the very least bear a family resemblance to Westen's core category of prescriptive consent. Indeed, informed consent to a risk of x can be defined in precisely parallel fashion to prescriptive consent to x itself (incorporating the same criteria of factual and legal consent, suitably modified).

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Kenneth W. Simons Contact Information
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
(617) 353-4701

Presentation and Publication Information:

9 Buffalo Criminal Law Review 577 (2006)

On Social Science Research Network Electronic Paper Collection:

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