ABSTRACT
The purpose of this chapter is to examine areas in which the conceptual apparatus of consent can mislead people of good faith into making mistakes of judgment. We have seen that consent is a single concept with a multiplicity of competing conceptions. Some conceptions of consent are purely factual, while others are prescriptive. Some conceptions of consent involve mental states of acquiescence, while others involve expressions of acquiescence. Some conceptions of consent either consist of or contain instances of actual acquiescence, while others consist of fictions of actual acquiescence. The confusions of consent arise when one conception or one category of consent is confounded with another. We shall focus below on three types of confusion: (A) the category mistake of confusing consent as a choosing of x under the circumstances ( ‘factual consent’) with consent as a choosing of x under conditions of voluntariness sufficient to render it a defense to the crime of committing x ( ‘prescriptive consent’); (B) the mistake of confusing consent as a prescriptive subjective choice ( ‘prescriptive attitudinal consent’) with consent as a prescriptive expression of such a choice (‘prescriptive expressive consent’); and (C) the mistake of confusing legal consent as an actual choice of x (‘prescriptive consent’) with legal consent as a legal fiction of such a choice (‘imputed consent’).
