ABSTRACT
All incidents of legal consent by a subject, S, to conduct, jc, by another person, A, are predicated upon empirical events on S’s part. Sometimes the underlying empirical event consists of an attitude or action or omission by S upon which the courts, in turn, construct the legal fiction that S actually acquiesced to x in her mind and/or expression. More often, however, the underlying empirical event consists of actual acquiescence by S to x in mind and/or expression-acquiescence that, though insufficient in itself to constitute a defense to criminal wrongdoing by A, is nevertheless a necessary component of such a defense. Thus, consider what is meant in rape cases when it is said: ‘Every consent involves a submission, but it by no means follows that submission involves consent. ’1 The reference to ‘consent’ is legal because it is a reference to that which constitutes a defense to rape. The reference to ‘submission’ is to an empirical event that is necessary but not sufficient to a defense to rape, namely, an act of conscious, even if reluctant, acquiescence to sexual intercourse on S’s part, whether in mind or expression. S’s actual acquiescence to sexual intercourse is a necessary component of her legally consenting to it because sexual intercourse that takes place without it is invariably rape, e.g., when S is unconscious or asleep. But S’s actual acquiescence is not sufficient to constitute legal consent because it can occur under conditions that fail to suffice to satisfy her interests regarding sexual intercourse, e.g., when it occurs at the point of a gun.
