Vol. 15 No.5 (May 2005), pp.370-375

THE LOGIC OF CONSENT: THE DIVERSITY AND DECEPTIVENESS OF CONSENT AS A DEFENSE TO CRIMINAL CONDUCT, by Peter Westen.  Burlington, VT: Ashgate Publishing, 2004. 392pp.  Hardback.  $119.95 / £62.50. ISBN: 0-7462407-2.

Reviewed by Marc-Georges Pufong, Department of Political Science, Valdosta State University, Valdosta, Georgia.  Email: mpufong@valdosta.edu .

With emphasis on the contingent nature and relation to justice and power, THE LOGIC OF CONSENT is both substantively and stylistically a welcome addition to the collection of Law, Justice and Power series edited by Austin Sarat of Amherst College. The intent and purpose of the book is to displace the unstated assumption all too common that people readily understand what consent means in common parlance, or at the very least, they understand its implications in criminal law situations where its matters most.

In tackling consent, Peter Westen provides proof of its importance as a concept in Anglo-American legal jurisprudence. He sees the concept of consent as all too often assumed to be obviously understood, and thus argues that the notion that there is a shared assumption of its meaning is indeed, seriously misplaced. The book therefore is an exercise of conceptual analysis in an effort to clarify the meaning of consent, and most notably, its meaning in the criminal law context (p.1). In doing so, Westen seeks to locate and identify the many forms of consent and the diverse consequences that its differing meaning, forms and use entails.

A cursory examination of Anglo-American statutory law reveals an impressive index of consent laws, none of which states with any precision what consent really means. The obvious fallacy therefore is that the courts can, and must determine whether consent has occurred in a given set of facts even if there is little agreement to what consent is all about. To explicate the complexity of consent as a legal concept, Westen engages the reader in a thorough and careful analysis of the various meanings of consent in criminal law. He frames subtle but important issues within logical contexts to explain what he sees as confusion of consent.

Westen considers a wealth of real world consent case examples to flesh out his narrative and assessment. Add to that, the fact that all 50 states in the US have enacted some form of general or specific consent statute makes Westen’s effort a unique undertaking. In an often employs first-person narrative style, he dissects the concept of consent into three intricate parts—the factual, the legal, and the consequence of conceptual complexity.  In all, the book contains three main parts that include eight chapters, a conclusion, a bibliography, a general index, and an index of cases.

In Part I, “Factual Consent,” Westen presents two chapters that draw attention to how “consent” is conceptualized with a notable focus on the actual problem of factual acquiescence in a given context [*371] (pp.1-103).  He begins his narrative with analysis of various arguments commonly advanced to grapple with the concept of “consent” in the criminal law context. For starts, Westen sees the confusion regarding consent as endemic. He points to the failure of legislatures to understand the very unique nature of “consent” when drafting consent laws.  Moreover, he sees judges who interpret those laws, and scholars and commentators who hold passionate positions on consent, as contributing to further misunderstandings.

The failure to have a conceptual handle on consent, he argues, accounts for significant difficulties, especially within the context of criminal law. For example, the inability to distinguish or disentangle the diverse and often mutually exclusive strands of consent in-lieu of single event views is often a key problem in consent issue. Thus, Westen sees consent as having three types of reference that supply different events used in law. They include factual versus the legal, the attitudinal versus the expressive, and the prescriptive versus the imputed, all of which Westen intimates, form the basis of their normative confusions (p.50).

To illuminate the normative confusion, Westen points to the frequent disagreements among advocates of rape reform about the relationship between “consent” on one hand, and “force” on the other, signified by the differences in perspective of those who argue for enhancing the autonomy of women through rape reform versus those who reject consent, arguing that the focus should be on prohibition of force. Susan Estrich and Catherine Mackinnon are notable advocates representing the two positions. To Westen, the very real differences between the two are their distinct conceptions of consent and force. If any difference exists at all, then it is because of poor understanding of the nature of interpersonal relationships. In essence, poor understanding is enough reason to create the false impression of normative disagreement as well as false impression of normative consensus.  Thus, Westen argues for a conceptualization that effectively clarifies how we think and converse about the normative view of consent than to advocate change in people’s normative views.  Through this conception, Westen sees consent as co-existing in two forms, single and “generic.”

In its generic stand, Westen sees consent as including all instances in which a person is deemed to acquiesce to or choose for themselves what other persons do to them. But he sees consent as also capable of being reduced to an understanding of choice that entails discrete notions of what it is to acquiesce to something. In either case, he argues that boundary and configuration problems exist. Thus, Westenian consent derives its conceptual power from its relationship between its generic and specific forms. First, Westen sees the generic consent as having scope and range. The range encompasses every instance in which a person acquiesces, whether in actual fact, hypothetically, or constructively. Second, the specific conception of consent gives it particularity, thereby identifying subsets of acquiescence. However, since the interplay between consent’s generic and specific forms also creates confusion, Westen cautions that the key to thinking [*372] clearly about consent lies ultimately in understanding its various conceptions.

Westen also sees consent as consisting of a core conception from which other notions of consent derive.  He argues further that those derivatives also incorporate the core conception in the way that nesting dolls include smaller inner-dolls as well. So while some derivative conceptions simply make necessary reference to the core without actually incorporating it, others constitute fictions of the core conception. It follows that, while each differs from the others, together they constitute the totality of what, in fact, it means to consent in criminal law.

Westen sees the core conception of consent as consisting of a factual state of mind of acquiescence. This includes the subjective feeling that one experiences internally (on a first person basis) as opposed to something manifested externally (in the third person). In effect, consent in the latter sense is a state of mind of acquiescence or willingness to agree with – or best yet, to choose what another person seeks or proposes. In practice, this would be the equivalent of an implicit consent or approval that may be translated as “a welcoming state of consent” rather than an “explicit expression” of factual consent or overt declaration of acceptance.

Regarding the latter expression of factual consent and unlike the mental state of mind or the subjective attitude counterpart, Westen is referring to objective words and conduct, one that expresses a choice.  Here an expressive consent is said to be a conceptual derivative of the attitudinal consent since it makes reference to the latter. Put differently, expressive consent, according to Westen’s articulation is the subjective attitude of acquiescence. In practice, this means that a person can express a mental state that does not correspond to her subjective feeling, and vise versa.  Accordingly, other corresponding strands of consent include legal consent, prescriptive consent, and imputed consent, all of which incorporate factual elements of consent as well.

Having examined the factual aspects of consent from a conceptual level and laying a logical ground work for conceptualizing consent in Part I, Part II, consisting of five chapters focuses on “Legal Consent.” This portion of the book addresses varieties of “consent conceptions” by subject matter relative to a “subject’s” conduct that constitutes a criminal defense. The chapters include legal consent as a state of mind, legal consent as an expression of a mental state, prospective and retrospective forms of each, and the fictions of each. Most American jurisdictions define legal consent as a mental state, but it is not clear that our ordinary language of consent can be reduced to a mental state.  While Westen takes no position on justice or injustice that may ensue from any particular definition and use of legal consent, he assesses the common elements that contested judgments of legal consent possess. For example, in Chapter 3 he draws attention primarily from law of rape to illustrate features that are common to prescriptive and imputed consent (pp.111-138).

In Chapter 4, Westen examines whether the normative force of prescriptive consent can be predicated on a subjective attitude or an objective [*373] expression on either of them, or on both. The examination is a functional assessment of the purposes served by defining prescriptive consent as a mental state or as an expression of mental state of acquiescence. But again, consent is both a noun and an intransitive verb and most obviously a communicative act in which a subject communicates permission for or agreement to a course of action. Assuming that consent exists as a communicative act, only then can we inquire further as to its legal and moral effect.

Focusing on prescriptive attitudinal consent, Chapter 5 discusses what indeed may be required beyond what Westen calls “factual attitudinal acquiescence” to transform acquiescence into a defense in criminal law situations (pp.177-245). With sixty-eight pages, Chapter 5 is by far the longest and most detailed section of the book.  In Chapter 6 Westen addresses non-contemporaneous prescriptive consent. This involves discussion of cases where persons (subjects) did not prescriptively consent to an act at the time the act occurred but are subsequently understood as having prescriptively consented to it by acquiescing either prospectively or retrospectively (pp.247-267). Finally, in Chapter 7 Westen focuses on “imputed consent,” especially where “consent to a conduct” is made prospectively or retrospectively. These consent types consist mainly of making inferences and include constructive consent, informed consent, and hypothetical consent. However, Westen observes that criminal law recognizes prospective factual consent as a valid defense despite the absence of contemporaneous prescriptive consent (pp.369-304).

Part III of the book, titled “The Consequences of Conceptual Complexity,” has one chapter and a conclusion.  Besides serving as a summation, it broadens the framework on the logic of consent adopted in the book beyond the basic conceptions discussed in earlier chapters. Specifically the focus of Chapter 8 is on the various ways in which confusion about the conceptual apparatus of consent can lead to normative confusion, especially in sexual assault cases.  It explores the legal confusion that often arises when lawmakers only dimly comprehend the conceptual structures of consent. To accomplish this, Westen offers three broad categories of confusion, illustrating with cases that involve (a) rulings that are legally problematic, (b) rulings that are framed in terms of consent, and (c) the actual languages of consent invoked by lawmakers that in themselves create legal confusion (pp.308-35).

To provide a sense of what he means under each type of confusion, Westen outlines the common mistakes. First is the mistake of confusing consent under one circumstance with consent under other situations. An example would be responding to questions about prescriptive consent with answers about factual consent. Because of the lowest incidence of this kind of confusion in tainting the outcome of trials, Westen considers this category of confusion to be the most prevalent type of mistake in criminal law. Accordingly, this cannot occur when the decision-maker is responding to a judge’s question whether the subject factually consent because (factually) consent is a necessary component of prescriptive consent. Second, the mistake of confusing [*374] consent as a prescriptive choice – prescriptive attitudinal consent – with consent as “prescriptive expression” of such a choice – prescriptive expressive consent.  Accordingly, the second category of mistake occurs simply by unwittingly confounding distinctions of consent as well as the distinct function they serve.  For example, the practice of defining the defense of consent of rape in some jurisdictions consists as neither “prescriptive attitudinal acquiescence” or as “prescriptive expressive acquiescence” but rather as an amalgam of the two (pp.318-19).

Third, Westen points to the mistake of confusing legal consent as an actual choice of an activity (i.e., prescriptive consent) with a legal fiction of such a choice (in this case an imputed consent). Finally, as noted here, Westen draws upon real world cases with common features to illustrate how confusions may emerge on the part of decision-makers under any of these assumptions of consent.  Conceptual confusion can also arise in cases in which, as Westen asserts, everyone understands that consent is being used prescriptively to refer to whether a “subject” voluntarily acquiesced to an “act.” More importantly, confusion can occur because of human error; that is, people mistakenly associate features that are characteristic of one of the two elements that constitute prescriptive concern with features of the other element (p.327).

While the conclusion of the book provides an appraisal of the preceding Chapters 1-8, it does so in a rather unique fashion. Westen uses the case of a Commission established by the English Parliament in 1965 to propose revisions in English consent law to illustrate the pervasive ambiguities that accompany most discussions of consent.  To that end he shows how the ensuing ambiguities that resulted from the Commission’s report are all too common in legislative provisions and other thoughtful writings on consent.  Rape statutes in several states in the United States, as Westen so well points out, use consent prescriptively but fail to specify whether the underlying acquiescence of a subject consists of a mental state on the subject’s part or an expression thereof which leaves these statutes contradictory in their consent provisions. Thus, in the final analysis, confusions regarding consent result, not only in conflating one conception with another, but also from confounding the basic elements that constitute all conceptions of legal consent (pp.339-50).

Finally, my assessment of the book on the important issue of “consent” is generally positive. The strongest attribute of the book, besides its passion for the issue of consent, is that it is substantively driven, quite conceptual, but it makes for difficult reading regardless of level of use – graduate, law or professional. My qualms regarding difficult reading aside, the effort made here is to be commended. By unraveling the various aspects consent, Westen makes a valiant effort and a compelling case for consent as an ambiguous concept that is fraught with legal and factual confusion, especially within the context of criminal law cases.  He also does more. He locates the core problem of confusion in legislative hallways where not only lawmakers are the obvious culprit in creating ambiguous consent laws, but he also extends similar indictments to scholars and commentators who most likely [*375] propagate more confusion in their articulation of consent laws and events.

In the end, Westen locates and identifies the many forms of consent and the diverse consequences that flow from them. Confusion results from conflating one conception of consent with another, as well as from confounding the basic elements that constitute all conceptions of legal consent.  For example, Westen notes that the view of consent as a single kind of event is indeed false, since in reality, it refers to diverse and sometimes mutually exclusive kinds of events. The ability to distinguish clear cases of consent and its absence is not sufficient for understanding. While consent may be seem obvious when someone says “I consent” and really means it, to conclude that consent is absent when someone says, “I object” and really means it may be rather confusing, we are told. While taking no position on whether the substance of existing defense of consent in criminal law ought to be enlarged or reduced in scope, Westen’s examination of the contrasting events of consent and his analysis of the normative confusions they produce are painstaking.

Finally, Westen’s consideration of the full range of issues related to consent will certainly appeal to a wide readership in political philosophy, law, and the social sciences.  As indicated, post-graduate students in law, society, and gender studies, as well as law professors and practitioners, will find in THE LOGIC OF CONSENT an excellent source for discussion.

REFERENCES:

Estrich, Susan. 1994. “Rape: A Question of Fear.” USA Today, 11 August 1994, p.13A.

Estrich, Susan. 1987.  REAL RAPE.  Cambridge, MA: Harvard University Press.

MacKinnon, Catherine.  2001.  SEX EQUALITY: RAPE LAW.  New York, NY:  Foundation Press.

MacKinnon, Catherine.  1988.  TOWARD A FEMINIST THEORY OF THE STATE.  Cambridge, MA: Harvard University Press.

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© Copyright 2005 by the author, Marc-Georges Pufong.