Commonsense Consent

93 Pages Posted: 17 Apr 2016 Last revised: 11 Aug 2020

See all articles by Roseanna Sommers

Roseanna Sommers

University of Michigan Law School

Date Written: August 5, 2020

Abstract

Consent is a bedrock principle in democratic society and a primary means through which our law expresses its commitment to individual liberty. While there seems to be broad consensus that consent is important, little is known about what people think consent is.

This Article undertakes an empirical investigation of people’s ordinary intuitions about when consent has been granted. Using techniques from moral psychology and experimental philosophy, it advances the core claim that most laypeople think consent is compatible with fraud, contradicting prevailing normative theories of consent. This empirical phenomenon is observed across over two dozen scenarios spanning numerous contexts in which consent is legally salient, including sex, surgery, participation in medical research, warrantless searches by police, and contracts.

Armed with this empirical finding, this Article revisits a longstanding legal puzzle about why the law refuses to treat fraudulently procured consent to sexual intercourse as rape. It exposes how prevailing explanations for this puzzle have focused too narrowly on sex. It suggests instead that the law may be influenced by the commonsense understanding of consent in all sorts of domains, including and beyond sexual consent.

Meanwhile, the discovery of “commonsense consent” allows us to see that the problem is much deeper and more pervasive than previous commentators have realized. The findings expose a large—and largely unrecognized—disconnect between commonsense intuition and the dominant philosophical conception of consent. The Article thus grapples with the relationship between folk morality, normative theory, and the law.

Keywords: consent, psychology, law, experimental jurisprudence

Suggested Citation

Sommers, Roseanna, Commonsense Consent (August 5, 2020). 129 Yale Law Journal 2232 (2020) , Available at SSRN: https://ssrn.com/abstract=2761801 or http://dx.doi.org/10.2139/ssrn.2761801

Roseanna Sommers (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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