86 Pages Posted: 17 Apr 2016 Last revised: 4 Mar 2018
Date Written: April 10, 2016
Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. This Article investigates people’s commonsense understanding of when consent has been granted.
Using techniques from moral psychology and experimental philosophy, I propose a folk theory of consent. I show, first, that most laypeople generally think consent is compatible with significant forms of deception. This intuition runs counter to both legal consent and prevailing philosophical theories of consent. I next provide evidence that commonsense consent represents a deep moral belief, not a superficial disagreement about the term “consent.” Laypeople genuinely believe that a meaningful waiver has been executed when an offeree accepts a proposal as a result of deception. I then show that laypeople’s moral intuitions track the much-maligned common-law distinction between fraud in the factum and fraud in the inducement. Finally, I demonstrate that respondents react differently when one party uses coercion, as opposed to deception, to induce the other party to acquiesce, suggesting that there is something special about deception that makes it seem uncorrupting of consent.
I present several possible explanations for why laypeople maintain that consent is compatible with material deception. I observe that while this view is difficult to square with prevailing moral theories, it is readily explained by classic psychological theories about how we reason about the mental states of others.
The discrepancy between legal consent and commonsense consent, I argue, carries implications for the law. For those who believe the law should align with commonsense morality, these findings suggest that laws regarding consent should be reformed to match the folk understanding. For those, however, who prefer that the law conform to objective facts about morality, regardless of commonsense intuition, these findings offer practical guidance about how legal rules should be crafted to achieve the aims of moral theory.
Beyond law, commonsense consent carries broader implications for social life. Members of the public may be overly reluctant to assert their rights when they are exploited, manipulated, or deceived. Moreover, we may be unduly harsh toward victims of fraud, if we judge that they have voluntarily consented to their mistreatment.
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