18 Pages Posted: 8 Jun 2005
This essay provides a short critique of Peter Westen's excellent new book, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct (Burlington: Ashgate Publishing Co., 2004). It examines whether there is a meaningful and normatively compelling difference (as Westen suggests) between factual consent (connoting psychological acquiescence) and legal consent (connoting the conditions under which we recognize a defense in law), and argues that the concept crucially missing in the analysis is that of moral consent - a concept that captures the conditions under which a person's willingness to encounter what would otherwise constitute a rights-violation turns a wrong into a matter of right. The essay defends the claim that moral consent has a mens rea requirement, but no actus reus requirement; and thus it disputes the currently popular claim that consent constitutes a performative or expressive act. As the essay argues, if consent required manifest action, the Sleeping Beauty, Snow White, the little Mermaid, and the Frog Prince would all be tales of sexual molestation! The essay concludes by exploring whether the law might properly demand more than does morality before recognizing a legal justification of consent, by, for example, requiring that psychological consent be made manifest through overt deeds. But it rejects such a claim, suggesting that when persons have acted in the presence of uncoerced psychological acquiescence, but in the absence of objective evidence of such acquiescence, the law ought to invoke attempt liability and punish them for what they thought they were doing.
Suggested Citation: Suggested Citation
Hurd, Heidi M., Was the Frog Prince Sexually Molested?: A Review of Peter Westen's The Logic of Consent. Michigan Law Review, Vol. 103, No. 6, pp. 1329-1346, May 2005. Available at SSRN: https://ssrn.com/abstract=739287