User:Eleanorg/annotation/The Nature of Consent

This essay is included as the first chapter in Franklin Miller & Alan Wertheimer's compilation, "The Ethics of Consent: Theory and Practice". It attempts to clarify what should be understood by the term 'consent' in a broad moral sense.

The essay begins by asserting that consent works "a moral magic" which "transforms the normative expectations that hold between people" (p.4). In order for this 'magic' to be worked - i.e., for otherwise impermissible acts to be made permissible, and/or for certain obligations to be created - certain conditions must be met.

The Grammar of Consent

Kleinig's first assertion in this regard is that consent is "a communicative act" characterized as "A consented (to B) to P". There are always three parties involved: B, who seeks some kind of permission; A, the agent whose consent is sought; and P, the act for which permission is sought. P is "a course of action... for whose pursuit A's authorization, permission, or agreement is required... which B has no right to expect of A absent A's consent" (p.7). Kleinig notes here that consent is a reactive gesture; to initiate a course of action (for example, to make a sexual advance) is different from consenting to it. [1]

The Ontology of Consent

The question then arises, what exactly does it mean for A to 'give consent'? Is it a state of mind, or must it be a performative act? Kleinig argues for the latter. It is possible to approve of something without giving consent, and conversely, to consent despite disapproving of something. In opposition to some other theorists, Kleinig argues that "consent is a social act in which A conveys something to B" (p.10). [2]

Signification

If something must be "conveyed", the form that this gesture takes becomes important. Kleinig argues that signifiers must be read in a social context. For example, silence may in some, but not all, circumstances signal consent. Neither is consent composed merely of a gesture, although it requires this gesture to be valid. (Eg, saying "yes" under duress does not count as valid consent. Kleinig labels this kind of coerced gesture 'assent' rather than morally valid consent (pp. 12-13).) He notes however the difficulty of reaching agreement upon which gestures should be taken to signal consent and which not, particularly in sexual contexts. [3]

Consent & Responsibility

Underpinning the moral transformation brought about by consent is the necessity for A to be responsible for the consent s/he gives. In order to be 'responsible', a consenting agent must be:

• Competent -- Not underage/intoxicated/insane/under torture
• Voluntary -- Not coerced. (Thus the definition of 'coercion' becomes controversial here (p.16).)
• Knowing -- Informed about the act consented to. (How much knowledge is necessary is also controversial. Eg, when does fraud become assault? (p.17).)
• Intentional -- What is intended by A's consent is bounded by socially-determined limits. (Eg, consent to play a risky sport is not the same as consenting to assault during the game.)

Kleinig then elaborates on this last point, discussing the ways in which cultural norms delimit the permission given when an agent consents. For example, "carte blanche" consent is not usually sufficient to protect B (legally or morally) if s/he takes things too far (p.18). Voting is given as an example of carte blanche consent, to whatever the outcome of the election. Thus, to vote is to consent to whichever government takes power. consent is not given to government by a particular leader, but to the outcome of the process itself. (And to abstain from voting is to withhold consent. Kleinig here rejects the idea of 'tacit consent' in the absence of a consenting gesture.) Debates thus follow about how far a government may legitimately interpret this "carte blanche" - at what point can consent to be governed be withdrawn by the constituents?

Limitations to Consent's Moral Magic

Kleinig closes by considering some controversial cases which raise the question of whether subjects should be allowed to consent to things which harm them. He notes that the moral force of consent is "rooted in a conception of the social conditions under which humans may best flourish", and is therefore rightly limited in cases where consent "functions otherwise". In these cases, consent has "uprooted itself from that which sustains it". [4]

[1] This grammar is heavily loaded with political assumptions, particularly when it comes to sexual consent. The assumption is of an active (male) subject who seeks the consent of a reactive (female) subject. Look at feminist writers who have proposed different models - e.g., Easton & Hardy's model of consent as "an active collaboration".

[2] This debate also splits along political lines. Many feminist slogans stress the importance of the "communicative act" theory - e.g., "No means no" - over a 'state of mind' theory- e.g., "she wanted it".

[3] The implied debate here seems to be of the "short skirt"/"she was flirting" variety - essentially an argument about how certain signifiers should be read.

[4] This seems a disappointingly poorly-argued conclusion. The Enlightenment idea of 'flourishing' is surely grounded not in an avoidance of harm but precisely in the freedom to make decisions (i.e., to consent) without interference - even to those things which may be harmful?