Introduction

We have seen that the term ‘consent’ is commonly used in law in a manner that I call ‘factual’. That is, it is used in a non-normati ve sense in law to refer to instances in which a subject S subjectively acquiesces in her mind to an actor A’s conduct in doing x to her or objectively expresses such acquiescence-without necessarily connoting that S’s subjective or objective acquiescence constitutes a criminal defense to A’s doing x to S. Thus, criminal courts use consent in a factual sense when they state that a woman’s consent to sexual intercourse is a defense to rape if her consent is shown to be ‘free’, ‘informed’, ‘competent’, ‘voluntary’— and that her consent is not a defense if her consent is shown to be ‘coerced’, ‘forced’, ‘fraudulent’, ‘incompetent’, or ‘involuntary’.1 These references to consent are factual in nature because they are references to instances of attitudinal or expressive acquiescence to sexual intercourse that are not in themselves defenses to rape but, rather, depend for their legal import upon the accompanying circumstances under which they occur.