It’s Good to Be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law

Criminal Law and Philosophy, Vol. 5, 2011

Cleveland-Marshall Legal Studies Paper No. 11-209

25 Pages Posted: 1 Jun 2011

See all articles by Jonathan Witmer-Rich

Jonathan Witmer-Rich

Cleveland State University - Cleveland-Marshall College of Law

Date Written: May 31, 2011

Abstract

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.

The criminal law’s approach to the problem of non-contemporaneous consent - prospective consent and retrospective consent - casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explain how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s "self-interest" conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s "sovereign autonomy" conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances.

I resolve this dilemma by explaining that Raz’s "autonomy is good" conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s "self-interest" conception, or Feinberg’s "sovereign autonomy" conception.

Keywords: Consent, Autonomy, Criminal Law, Harm, Prospective Consent, Retrospective Consent

Suggested Citation

Witmer-Rich, Jonathan, It’s Good to Be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law (May 31, 2011). Criminal Law and Philosophy, Vol. 5, 2011, Cleveland-Marshall Legal Studies Paper No. 11-209, Available at SSRN: https://ssrn.com/abstract=1856203

Jonathan Witmer-Rich (Contact Author)

Cleveland State University - Cleveland-Marshall College of Law ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

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