Victimless Conduct and the Volenti Maxim: How Consent Works

Criminal Law and Philosophy, Vol. 7, No. 1, January 2013

Villanova Law/Public Policy Research Paper No. 2013-3038

37 Pages Posted: 7 May 2013 Last revised: 11 May 2013

Michelle Madden Dempsey

Villanova University School of Law

Date Written: 2013

Abstract

This article examines the normative force of consent, explaining how consent works its moral magic in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission. When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one¹s conduct: cases in which one is consent-insensitive to the rational force of another¹s consent, and cases in which one acts for sadistic reasons.

Keywords: Consent, moral conduct

Suggested Citation

Dempsey, Michelle Madden, Victimless Conduct and the Volenti Maxim: How Consent Works (2013). Criminal Law and Philosophy, Vol. 7, No. 1, January 2013; Villanova Law/Public Policy Research Paper No. 2013-3038. Available at SSRN: https://ssrn.com/abstract=2261213

Michelle Madden Dempsey (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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