ABSTRACT
We have seen that prescriptive consent to conduct consists of actual acquiescence to the conduct-whether attitudinal or expressive-under such conditions as jurisdictions prescribe. The prescribed conditions can vary enormously from one jurisdiction to another and within jurisdictions from one offense to another. Prescribed conditions also vary in accord with whether the prescriptive consent is essentially attitudinal or essentially expressive in nature, because attitudinal acquiescence performs a different legal function than expressive acquiescence and, accordingly, demands different accompanying conditions:
Attitudinal Acquiescence. The legal function of attitudinal acquiescence on a subject S’s part is to determine whether S suffered the primary harm that offenses of non consent are designed to prevent, namely, the harm of subjecting S to conduct without her having chosen the conduct for herself under circumstances that are consistent with her well-being. In order for S’s subjective choice of the conduct to be consistent with her well-being, her choice must be ‘voluntary’, that is, it must be the product of such freedom, knowledge, and competence as the jurisdiction deems sufficient to enable S to assume responsibility for her choice.
