Some Common Confusions About Consent in Rape Cases

27 Pages Posted: 20 Dec 2004

See all articles by Peter K. Westen

Peter K. Westen

University of Michigan Law School

Abstract

Consent to sex matters, because it can transform coitus from being among the most heinous of criminal offenses into sex that is of no concern at all to the criminal law. Unfortunately, the normative task of making the law of rape more just is commonly impaired by conceptual confusion about what consent means. Consent is both a single concept in law and a multitude of opposing and cross-cutting conceptions of which courts and commentators tend to be only dimly aware. Thus, consent can be a mental state on a woman's part, an expression by her, or both; it can consist of facts about a woman's mental state or expressive conduct that do not necessarily constitute a defense to rape or consist only such facts as do constitute a defense to rape; and it can consist of facts about a woman's mental state or expressive conduct or a legal fiction of such facts. In so far as we are unaware of the ways in which this conceptual framework structures the way we think about consent, we risk confusing ourselves and others in undertaking to make the law of rape more just. Some examples are (1) confusion as to whether the defense of consent ought to be deemed to consist of a mental state on a woman's part or an expression; (2) confusion about the relationship between consent to sexual intercourse and resistance to it; and (3) confusion about the relationship between force and non-consent.

Suggested Citation

Westen, Peter K., Some Common Confusions About Consent in Rape Cases. Available at SSRN: https://ssrn.com/abstract=637541

Peter K. Westen (Contact Author)

University of Michigan Law School ( email )

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